CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION – Pre-Arbitration

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The most critical element of the pre-arbitration deferral test is often whether the contract and its meaning lie at the center of the dispute. (County of Orange (2022) PERB Order No. Ad-496-M, p. 5.) For this element, the party seeking deferral must establish two conditions. First, the alleged unfair practice must be arguably prohibited by the parties’ agreement. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 8 (Santa Clara).) Thus, “it is not sufficient for the agreement to merely cover or discuss the matter. The conduct alleged to be an unfair practice must be prohibited.” (Ibid., citation omitted.) Second, beginning with Santa Clara, supra, we have required that “resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation.” (Id. at p. 8, citation omitted.) Thus, “[i]f resolution of the alleged unfair practice requires application of statutory legal standards, and there is no guarantee that an arbitrator will look beyond the contract and consider statutory principles, deferral is not appropriate.” (Ibid., internal quotation marks and citations omitted.) This condition is satisfied “where the parties incorporate the statutory legal standard into their collective bargaining agreement” or both parties “ask the arbitrator to resolve the statutory unfair practice issue.” (Id. at p. 8, fn. 6.) Notably, “this clarification ensures that our pre-arbitration deferral standard is consistent with our post-arbitration deferral standard, which requires that the arbitrator actually decide the alleged statutory violation.” (Id. at p. 18.) Indeed, it would make little sense to defer pre-arbitration if there was a likelihood of reaching the opposite conclusion post-arbitration. (pp. 9-10; id. at p. 19.)