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

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While PERB has long phrased the required elements of the deferral defense differently depending on whether the parties have already completed arbitration, recent precedent clarifies that PERB cohesively interprets the pre-arbitration and post-arbitration deferral tests with reference to one another, so that the critical legal principles are consistent in each context. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 18, fn. 12; see also id. at p. 22, fn. 17 [if PERB defers at the pre-arbitration stage, charging party may still argue at the post-arbitration stage that PERB’s assumptions as to how the arbitrator would approach the case did not pan out].) (p. 8.)