CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION – Post Arbitration; Repugnancy

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When PERB considers deferral after the parties have completed arbitration and received the arbitrator’s final decision, PERB normally will exercise its discretionary authority to defer to a final arbitration decision and dismiss the related unfair practice claim(s), if: (1) the unfair practice issues were presented to and considered by the arbitrator; (2) the arbitral proceeding was fair and regular; (3) the party asserting deferral agrees to be bound by the arbitrator’s decision; and (4) the arbitration was not clearly repugnant to the purposes and policies of the statute. (County of Orange (2022) PERB Order No. Ad-496-M, p. 8 (Orange).) Regarding the third element, a party manifests an intent not to be bound by the arbitrator’s decision, thereby undercutting its claimed agreement to be bound, if it successfully sues to vacate or alter the decision. (State of California (Department of Corrections and Rehabilitation) (2024) PERB Order No. Ad-516-S, p. 5.) As to the fourth element, “repugnancy” is a term of art that does not match the normal English definition of the word. (Orange, supra, PERB Order No. Ad-496-M, p. 8.) A traditional repugnancy assessment arises where the arbitrator has considered and resolved the unfair practice issues in a fair and regular proceeding, meaning that the sole question before the Board is whether the content of the arbitrator’s decision or remedy is “palpably wrong” or “not susceptible to an interpretation” consistent with the statutes PERB administers. (Ibid.) (p. 12.)