Decision 1376E – North Orange County Community College District


Decision Date: February 28, 2000

Decision Type: PERB Decision

Description: Employee appealed Board agent’s dismissal of unfair practice charge alleging that District violated EERA by retaliating against employee for participation in protected activities.

Disposition: Dismissed and deferred to arbitration. Even if charge was within PERB’s jurisdiction, it did not state a prima facie case of retaliation for protected activities.

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Perc Vol: 24
Perc Index: 31061

Decision Headnotes

1102.01000 – Pre-Arbitration

A charge will be dismissed and deferred to arbitration if the grievance machinery of the agreement covers the matter at issue and culminates in binding arbitration, and the conduct complained of in the unfair practice charge is prohibited by the provisions of the agreement between the parties. EERA does not require exhaustion of the grievance procedure when resort to that procedure would be futile. Futility may be found when the arbitration process itself is at issue or when the association is unwilling to take the grievance to arbitration. However, mere animosity between the grievant and the union is insufficient; the grievant must demonstrate the union's unwillingness to pursue the matter. Here, charging party had not asked the union to file a grievance, nor filed her own grievance and asked the union for help. Charging party argues that the union ignored her regarding previous issues. These facts do not support a finding of futility. Board decisions indicated that the Association had helped the Charging Party in the past. The charge does not establish that the Association committed itself to a position in conflict with the Charging Party's interests.