PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION – In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts

Single Topic for Decision 2926S

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Deferral to arbitration is discretionary. For a 15-year period beginning in 1987, the Board treated deferral as jurisdictional rather than discretionary based on the Board’s holding in Lake Elsinore School District (1987) PERB Decision No. 646 (Lake Elsinore), which the Board reversed in 2002. This impacts multiple deferral standards and means that PERB will not “defer to a brick wall” or to an arbitration that will not apply statutory standards. It also means that deferral is an affirmative defense which may be waived. PERB cautions extra diligence in checking whether principles previously enunciated remain the most current statement of PERB precedent. The Board noted that, in addition to Lake Elsinore, the following decisions have been overruled because, among other infirmities, they relied on the notion that deferral was jurisdictional rather than discretionary: State of California (California Department of Forestry and Fire Protection) (1989) PERB Decision No. 734-S; State of California (Department of Parks and Recreation) (1990) PERB Decision No. 810-S; State of California (Department of Corrections) (1992) PERB Order No. Ad-231-S, pp. 8-10; State of California (Department of Parks and Recreation) (1993) PERB Decision No. 1026-S; State of California (Department of Corrections) (1995) PERB Decision No. 1100-S), and State of California (Office of Emergency Services) (1995) PERB Decision No. 1122-S. (pp. 14, 16-19.)