Decision 1122S – State of California (Office of Emergency Services) * * * OVERRULED IN PART by multiple decisions, as recognized in State of California (Department of Corrections and Rehabilitation) (2024) PERB Decision No. 2926-S, pp. 16-19 & fn. 11 * * *
LA-CE-320-S
Decision Date: November 7, 1995
Decision Type: PERB Decision
Description: State discriminated and retaliated against employee for his exercise of protected activity.
Disposition: Dismissed for lack of Jurisdiction. Board deferred charge to parties’ contractual grievance procedure.
Perc Vol: 20
Perc Index: 27003
Decision Headnotes
102.01000 – In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts
* * * OVERRULED by multiple decisions, as recognized in State of California (Department of Corrections and Rehabilitation) (2024) PERB Decision No. 2926-S, pp. 16-19 & fn. 10, because relied on notion that deferral was jurisdictional rather than discretionary, applied standards that are now superseded, and improperly deferred despite the fact deferral is normally improper if individual employees wish to arbitrate but their union controls that decision and declines to arbitrate. * * *
Charging party's failure to file a grievance under Unit 11 MOU based on misbelief of improper Unit assignment and speculative belief that the Union would not be supportive of charging party's grievance does not constitute exhaustion of the grievance procedure; p. 2, warning letter. Speculation is not evidence that resort to the grievance procedure would be futile, nor would mere "disagreement or personal preference [be sufficient to] by pass the statutory deferral requirement" (State of California (Department of Corrections) (1986) PERB Decision No. 561-S, citing State of California (Department of Developmental Services) (1985) PERB Order No. Ad-145-S); p. 4, warning letter. A charging party's "failure to exercise the grievance process," even if that precludes further pursuit of the grievance process and arbitration, "does not create futitlity" (Desert Sands Unified School if that precludes further pursuit of the grievance process and arbitration, "does not create futitlity" (Desert Sands Unified School
800.02000 – Grievance Handling/Contract Administration
* * * OVERRULED by multiple decisions, as recognized in State of California (Department of Corrections and Rehabilitation) (2024) PERB Decision No. 2926-S, pp. 16-19 & fn. 10, because relied on notion that deferral was jurisdictional rather than discretionary, applied standards that are now superseded, and improperly deferred despite the fact deferral is normally improper if individual employees wish to arbitrate but their union controls that decision and declines to arbitrate. * * *
A charging party's "failure to exercise the grievance process," even if that precludes further pursuit of the grievance process and arbitration, "does not create futility" (Desert Sands Unified School District (1995) PERB Decision No. 1102); p. 2, dismissal letter.
1102.01000 – Pre-Arbitration
* * * OVERRULED by multiple decisions, as recognized in State of California (Department of Corrections and Rehabilitation) (2024) PERB Decision No. 2926-S, pp. 16-19 & fn. 10, because relied on notion that deferral was jurisdictional rather than discretionary, applied standards that are now superseded, and improperly deferred despite the fact deferral is normally improper if individual employees wish to arbitrate but their union controls that decision and declines to arbitrate. * * *
PERB held that section 3541.5(a) of EERA established a jurisdictional rule requiring that a charge be dismissed and deferred if: (1) the grievance machinery of the agreement covers the matter at issue and culminates in binding arbitration; and, (2) the conduct complained of in the unfair practice charge is prohibited by the provisions of the agreement between the parties; p. 4, warning letter. Charging party's failure to file a grievance under Unit 11 MOU based on misbelief of improper Unit assignment and speculative belief that the Union would not be supportive of charging party's grievance does not constitute exhaustion of the grievance procedure; p. 2, warning letter. Speculation is not evidence that resort to the grievance procedure would be futile, nor would mere "disagreement or personal preference [be sufficient to] by pass the statutory deferral requirement" (State would be futile, nor would mere "disagreement or personal preference [be sufficient to] by pass the statutory deferral requirement" (State Developmental Services (1985) PERB Order No. Ad-145-S); p. 4, warning letter. A charging party's "failure to exercise the grievance process," even if that precludes further pursuit of the grievance process and arbitration, "does not create futility" (Desert Sands Unified School District (1995) PERB Decision No. 1102); p. 2, dismissal letter.
1309.07000 – Unit Size
* * * OVERRULED ON OTHER GROUNDS by multiple decisions, as recognized in State of California (Department of Corrections and Rehabilitation) (2024) PERB Decision No. 2926-S, pp. 16-19 & fn. 10* * *
Charging party's unfair is not an appropriate vehicle to resolve unit placement, an individual employee lacks standing to file a unit modification petition (Riverside Unified School District (1985) PERB Order Nos. Ad-148 and Ad-148a, and California School Employees Association (Petrich) (1989) PERB Decision No. 767); p. 5, warning letter.
1503.03000 – Regulations Considered (By Number) (Continued)
* * * OVERRULED by multiple decisions, as recognized in State of California (Department of Corrections and Rehabilitation) (2024) PERB Decision No. 2926-S, pp. 16-19 & fn. 10, because relied on notion that deferral was jurisdictional rather than discretionary, applied standards that are now superseded, and improperly deferred despite the fact deferral is normally improper if individual employees wish to arbitrate but their union controls that decision and declines to arbitrate. * * *
PERB Regulation 32620(b)(5) (Cal. Code Regs., tit. 8, sec. 32620(b)(5)) also requires the investigating Board agent to dismiss a charge where the allegations are properly deferred to binding arbitration; p. 4, warning letter.