CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION – Pre-Arbitration

Single Topic for Decision A485M

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When considering whether to defer an unfair practice charge to arbitration, PERB applies a three-part test: (1) whether the dispute arises within a stable collective bargaining relationship; (2) whether the respondent is willing to waive contract-based procedural defenses to the grievance or arbitration and is willing to arbitrate the dispute; and (3) whether the contract and its meaning lie at the center of the dispute. (p. 6.) The contract and its meaning lie at the center of the dispute when (1) the alleged unfair practice is arguably prohibited by the collective bargaining agreement and (2) resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation. (p. 8.) PERB determines the appropriateness of deferring an allegation on a case-by-case basis by focusing on whether an arbitrator would necessarily have to resolve the statutory unfair practice allegation. (p. 18.) Deferral is not appropriate unless all factually or legally interrelated allegations are subject to deferral. (pp. 9-12.) The Board concluded the charge was not subject to deferral because, while three of four factually interrelated allegations met the criteria for deferral, the fourth allegation did not. (pp. 12-23.)

Categorically barring retaliation or discrimination allegations from deferral to arbitration is not appropriate because parties may agree to have an arbitrator decide a statutory unfair practice issue. (pp. 15-18.) While a contractual just cause provision typically does not support deferral of a retaliation or discrimination allegation, deferral may be appropriate when the agreement contains a non-discrimination clause. (p. 19.) A retaliation allegation was subject to deferral when the collective bargaining agreement contained a non-discrimination clause prohibiting the employer from discriminating against employees because of union activity, and the charge alleged a steward was denied paid release time because of her attendance at a meeting on behalf of the union. (pp. 20-22.)