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

Single Topic for Decision A496M

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In Trustees of the California State University (East Bay) (2014) PERB Decision No. 2391-H, the Board noted that deciding if an arbitration decision or settlement is repugnant to a PERB-administered statute is equivalent to deciding whether to defer to such a decision or settlement after it is final. (Id. at pp. 21-22.) Indeed, in Trustees, the Board listed four “repugnancy elements” that correspond to the Board’s post-arbitration deferral standard, as follows: “[T]he Board will . . . dismiss and defer a complaint to the arbitrator’s award if: (1) the unfair practice issues were presented to and considered by the arbitrator; (2) the arbitral proceeding was fair and regular; (3) the parties agreed to be bound; and (4) the decision of the arbitrator was not ‘clearly repugnant to the purposes and policies of the Act.’” (Id. at p. 22, citing Santa Ana Unified School District (2008) PERB Decision No. 1951, p. 6 (Santa Ana).) Thus, “repugnancy” is a term of art, because the Board may decline to defer to an arbitration award if the unfair practice issues were not presented to and considered by the arbitrator, a circumstance that does not necessarily fall within the normal English definition of the word “repugnant.” An arbitration decision or settlement is repugnant to the governing act if it is “palpably wrong” or “not susceptible to an interpretation consistent with the Act.” (County of Santa Clara (2020) PERB Order No. Ad-482-M, p. 9, fn. 11.) The mere possibility that the Board may have reached a different conclusion does not render the award repugnant. (Ibid.) A repugnancy claim can also focus, in whole or in part, on allegedly unfair procedures or simply on the fact that the arbitrator did not consider the unfair practice issues. Irrespective of whether the party alleging repugnancy focuses on the ultimate result, the process, or a combination, that party “has the burden of affirmatively demonstrating the defects in the arbitral process or award.” (Santa Ana, supra, PERB Decision No. 1951, p. 6.) (pp. 7-8.)