All notes for Subtopic 1103.11000 – Request for Deferral to Arbitration
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
Union claimed that the CBA does not allow arbitration over interference with the union’s own rights in violation of section 3519(b), and for that reason PERB cannot defer any of the claims. PERB assessed whether the section 3519(b) claim involves any standards or facts that could make its outcome or remedy materially diverge from the section 3519(a) claim. Notably, a section 3519(b) claim may, but need not, be derivative of a section 3519(a) claim. (See, e.g., County of San Joaquin (2021) PERB Decision No. 2761-M, pp. 20-22 [finding interference with union’s right to be independent claim].) If and only if the section 3519(b) claim will necessarily involve the same standards applied to the same facts as the section 3519(a) claim, and therefore have the same outcome (and materially the same potential remedies), then PERB can safely defer both claims. Under current Board precedent, the Union’s section 3519(b) claim involves the same statutory standards, the same facts, and effectively the same remedies as the section 3519(a) claim, allowing PERB to defer both claims. PERB noted that the following decisions no longer have precedential value on deferral issues because they relied on the notion that deferral was jurisdictional rather than discretionary, applied standards that are now superseded, and improperly bifurcated interrelated claims: State of California (California Department of Forestry and Fire Protection) (1989) PERB Decision No. 734-S; State of California (Department of Parks and Recreation) (1990) PERB Decision No. 810-S; State of California (Department of Corrections) (1992) PERB Order No. Ad-231-S, pp. 8-10; and State of California (Department of Parks and Recreation) (1993) PERB Decision No. 1026-S. (pp. 15-16; see also pp. 22-23.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
Deferral to arbitration is discretionary. For a 15-year period beginning in 1987, the Board treated deferral as jurisdictional rather than discretionary based on the Board’s holding in Lake Elsinore School District (1987) PERB Decision No. 646 (Lake Elsinore), which the Board reversed in 2002. This impacts multiple deferral standards and means that PERB will not “defer to a brick wall” or to an arbitration that will not apply statutory standards. It also means that deferral is an affirmative defense which may be waived. PERB cautions extra diligence in checking whether principles previously enunciated remain the most current statement of PERB precedent. The Board noted that, in addition to Lake Elsinore, the following decisions have been overruled because, among other infirmities, they relied on the notion that deferral was jurisdictional rather than discretionary: State of California (California Department of Forestry and Fire Protection) (1989) PERB Decision No. 734-S; State of California (Department of Parks and Recreation) (1990) PERB Decision No. 810-S; State of California (Department of Corrections) (1992) PERB Order No. Ad-231-S, pp. 8-10; State of California (Department of Parks and Recreation) (1993) PERB Decision No. 1026-S; State of California (Department of Corrections) (1995) PERB Decision No. 1100-S), and State of California (Office of Emergency Services) (1995) PERB Decision No. 1122-S. (pp. 14, 16-19.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
When a charge or complaint alleges multiple claims that are factually or legally interrelated, PERB must first determine whether such interrelated claims are “independent” or “derivative,” following the principle that a claim is independent of another if it can potentially prevail while the other does not. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 9.) For interrelated claims that are independent of one another, the party seeking deferral must separately show that each claim satisfies the applicable deferral test, or else PERB refrains from deferring any of the interrelated claims. (Id. at pp. 10-12.) In contrast, if a claim is derivative of another, the party seeking deferral need not make a separate showing that the derivative claim meets the applicable deferral test. (Id. at p. 10.) (pp. 13-14.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
Because PERB will not defer where it is futile to do so, the relevant statutory standards that the arbitrator must apply include those related to both liability and remedy. (Oxnard Union High School District (2022) PERB Decision No. 2803, pp. 55-56 [deferral improper where contract required grievant to show employer violated an “express term” in an “arbitrary, capricious or discriminatory manner,” which deviated from PERB standards].) (p. 10.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
Dills Act section 3514(a)(2) sets forth a futility exception, while other exceptions flow from the fact that deferral is a discretionary doctrine. For instance, even if all deferral elements are satisfied, PERB will not defer claims alleging interference with or retaliation for filing a PERB charge or participating in PERB processes. (Trustees of the California State University (East Bay) (2014) PERB Decision No. 2391-H, p. 39.) (p. 9, fn. 5.) Moreover, deferral is normally improper if individual employees wish to arbitrate but their union controls that decision and declines to arbitrate. (State of California (Department of Parks and Recreation) (1995) PERB Decision No. 1125-S, pp. 8-9.) Accordingly, State of California (Office of Emergency Services) (1995) PERB Decision No. 1122-S, where the Board deferred to arbitration even though the charging party’s exclusive representative would not arbitrate his claims, is no longer good law on this point. (p. 17, n. 16.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
The most critical element of the pre-arbitration deferral test is often whether the contract and its meaning lie at the center of the dispute. (County of Orange (2022) PERB Order No. Ad-496-M, p. 5.) For this element, the party seeking deferral must establish two conditions. First, the alleged unfair practice must be arguably prohibited by the parties’ agreement. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 8 (Santa Clara).) Thus, “it is not sufficient for the agreement to merely cover or discuss the matter. The conduct alleged to be an unfair practice must be prohibited.” (Ibid., citation omitted.) Second, beginning with Santa Clara, supra, we have required that “resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation.” (Id. at p. 8, citation omitted.) Thus, “[i]f 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., internal quotation marks and citations omitted.) This condition is satisfied “where the parties incorporate the statutory legal standard into their collective bargaining agreement” or both parties “ask the arbitrator to resolve the statutory unfair practice issue.” (Id. at p. 8, fn. 6.) Notably, “this clarification ensures that our pre-arbitration deferral standard is consistent with our post-arbitration deferral standard, which requires that the arbitrator actually decide the alleged statutory violation.” (Id. at p. 18.) Indeed, it would make little sense to defer pre-arbitration if there was a likelihood of reaching the opposite conclusion post-arbitration. (pp. 9-10; id. at p. 19.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
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.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
Each labor relations statute PERB administers either explicitly or implicitly states a preference for parties to resolve unfair practice issues through contractual arbitration, if arbitration under the operative contractual provisions is adequate to fully and fairly resolve the claims that would otherwise proceed through PERB’s process. (County of Santa Clara (2021) PERB Order No. Ad-485-M, pp. 16-17; see § 3514.5(a)(2).) Nonetheless, deferral to arbitration is an affirmative defense, meaning that a party seeking deferral has the burden to timely plead the defense. (Claremont Unified School District (2014) PERB Decision No. 2357, p. 17.) (p. 7.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
A party has the right to ask PERB’s Office of the General Counsel (OGC) to defer to arbitration pursuant to PERB Regulation 32620(b)(5)-(6). Irrespective of whether a party asked OGC for deferral at an earlier stage, it can plead deferral as an affirmative defense in its answer to a complaint and file a deferral motion pursuant to Regulation 32190(a). But no party has a right, at any stage of PERB proceedings, to unilaterally “elect” deferral. (p. 6, fn. 2.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| A516S |
State of California (Department of Corrections and Rehabilitation)
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
PERB will dismiss and defer a complaint to an 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 statute. Post-arbitration deferral is only appropriate where all four elements are satisfied. (pp. 4-5.) more or view all topics or full text. |
49 | 18 | 06/24/24 |
| A496M |
County of Orange
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
The most critical prong of the deferral test is often whether the contract and its meaning lie at the center of the dispute. (Oxnard Union High School District (2022) 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.) (p. 6.) more or view all topics or full text. |
47 | 66 | 10/06/22 |
| A496M |
County of Orange
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
“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.) 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.) (p. 5.) more or view all topics or full text. |
47 | 66 | 10/06/22 |
| A496M |
County of Orange
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
Under MMBA section 3505.8 and PERB Regulation 32620, subdivision (b)(6), PERB is authorized to: (1) grant a deferral motion and place an unfair practice charge in abeyance if the parties’ dispute is subject to final and binding arbitration pursuant to an MOU; and (2) dismiss the charge at the conclusion of the arbitration process, unless the charging party demonstrates that the ultimate settlement or arbitration award is repugnant to the MMBA. (p. 5.) more or view all topics or full text. |
47 | 66 | 10/06/22 |
| 2796E |
Bellflower Unified School District
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
Even where a new contract interpretation has a continuing impact, PERB defers to contractual procedures if: (1) the dispute arises within a stable collective bargaining relationship; (2) the employer is willing to waive procedural defenses to arbitration and 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. (County of Santa Clara (2021) PERB Order No. Ad-485-M, pp. 6-7). more or view all topics or full text. |
46 | 85 | 11/08/21 |
| A485M |
County of Santa Clara
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
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.) 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.) more or view all topics or full text. |
45 | 85 | 03/02/21 |
| 1567S |
State of California (Department of Mental Health)
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
Board finds that where conduct is arguably prohibited by the agreement between the parties, the board must defer to arbitration all multiple legal theories arising from that conduct. This ensures that there is one forum for resolution of a dispute, elimination of overlapping and duplicative proceedings, and promotion of more timely resolution of disputes that contribute to employer-employee stability. If a party fails to provide support for its contention that an arbitrator’s remedy can not resolve a derivate violation the board may dismiss that violation and also refer it to arbitration with along with the initial charge. more or view all topics or full text. |
28 | 32 | 12/16/03 |
| 1566S |
State of California (Department of Parks and Recreation)
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
Board finds that where conduct is arguably prohibited by the agreement between the parties, the board must defer to arbitration all multiple legal theories arising from that conduct. This ensures that there is one forum for resolution of a dispute, elimination of overlapping and duplicative proceedings, and promotion of more timely resolution of disputes that contribute to employer-employee stability. If a party fails to provide support for its contention that an arbitrator’s remedy can not resolve a derivate violation the board may dismiss that violation and also refer it to arbitration with along with the initial charge. more or view all topics or full text. |
28 | 31 | 12/16/03 |
| A248E |
Fremont Union High School District
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
An unfair practice case will not be deferred merely because the contract makes reference to "EERA" or includes the phrase "subject to the provisions of law;" p. 5. The Board will defer a case only where it is clear that the parties intended that the contract prohibit the alleged violative conduct; pp. 6-7. more or view all topics or full text. |
17 | 24165 | 09/24/93 |
| A222E |
Inglewood Unified School District
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
Motion to dismiss on the grounds of deferral to arbitration is properly before the Board on appeal of an ALJ's denial of a motion to dismiss at the pre-hearing stage under PERB Regulation 32646. more or view all topics or full text. |
15 | 22110 | 06/24/91 |
| 0821E |
Inglewood Unified School District
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
In determining whether deferral is appropriate, the Board must first decide whether conduct underlying charge is arguably prohibited by the parties' collective bargaining agreement, and then whether the agreement provides for resolution of the dispute by final and binding arbitration. As Association arguably has a right to file a grievance in its own name, Board will defer charge to binding arbitration. more or view all topics or full text. |
14 | 21133 | 06/27/90 |
| 0204E |
San Juan Unified School District
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
Where there is no language in the contract which will resolve the underlying dispute, deferral to grievance machinery is inappropriate. The aggrieved conduct must be "prohibited by the provisions of the agreement" and the arbitration clause must "cover the matter at issue;" pp. 6-11. more or view all topics or full text. |
6 | 13082 | 03/31/82 |