CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ – Motions

Single Topic for Decision A496M

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“PERB may defer an unfair practice charge to arbitration if the respondent carries its burden to establish that: (1) the dispute arises within a stable collective bargaining relationship; (2) the respondent is willing to waive procedural defenses and to arbitrate the merits of the dispute; (3) the contract and its meaning lie at the center of the dispute; and (4) no recognized exception to deferral applies.” (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 53 (Oxnard).) Moreover, if the charging party is an individual employee and the applicable MOU does not allow an employee to advance a grievance to arbitration, PERB also must determine whether the exclusive representative is willing to proceed to arbitration on the employee’s grievance. (Claremont Unified School District (2014) PERB Decision No. 2357, p. 18.) The most critical prong of the deferral test is often whether the contract and its meaning lie at the center of the dispute. (Oxnard, supra, PERB Decision No. 2803, p. 55.) To meet this prong, the respondent must show, first, that the parties’ agreement prohibits the alleged unfair practice. (Ibid.) It is not sufficient for the agreement to “merely cover or discuss the matter.” (Ibid.) Rather, “the conduct alleged to be an unfair practice must be prohibited.” (Ibid.) Second, “resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation.” (Ibid.) This condition exists “if the contract incorporates the statutory legal standard, or if the parties ask the arbitrator to resolve the statutory unfair practice issue.” (Ibid.) “If resolution of the alleged unfair practice requires application of statutory legal standards, and there is no guarantee that an arbitrator will look beyond the contract and consider statutory principles, deferral is not appropriate.” (Ibid.) (pp. 5-6.)