CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION – Pre-Arbitration

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If a respondent establishes all four elements needed to prevail in a pre-arbitration deferral motion, then PERB follows one of two procedures, depending on which public sector labor relations statute covers the parties. Under the statutes referenced in PERB Regulation 32620(b)(5)—including the Dills Act—a successful deferral motion leads PERB to dismiss the unfair practice charge. In contrast, under the labor relations statutes referenced in PERB Regulation 32620(b)(6), PERB merely places the charge in abeyance. (County of Orange (2022) PERB Order No. Ad-496-M, p. 5.) However, this is a distinction without a difference. After PERB defers a charge to arbitration and places it in abeyance pursuant to Regulation 32620(b)(6), the case normally remains in abeyance until arbitration is complete. At that point, PERB dismisses the charge unless the charging party can disprove one or more elements of the post-arbitration deferral test discussed post. If the charging party believes one of these circumstances exists, it normally asks PERB to take its charge out of abeyance and amends it to include all needed allegations about the arbitration process and/or arbitration decision. (Trustees of the California State University (Long Beach) (2011) PERB Decision No. 2201-H, pp. 3-6.) A slightly different procedure is available under the statutes covered by PERB Regulation 32620(b)(5). Under those laws, pre-arbitration deferral leads PERB to dismiss the unfair practice charge, meaning there is no opportunity to file an amended charge. Instead, the charging party can file a new charge that alleges the original violation(s) as well as the circumstances preventing PERB from continuing to defer. Therefore, under each PERB-administered statute, after PERB issues a pre-arbitration deferral order, the charging party has a later opportunity to ask PERB to revisit that conclusion post-arbitration. (pp. 10-12.)