Decision 1473S – State of California (Department of Food and Agriculture)
Decision Date: January 31, 2002
Decision Type: PERB Decision
Description: The Board remanded the case to the General Counsel’s office for further investigation and processing, having determined that the charge should not be dismissed and deferred to the grievance machinery contained in the parties’ collective bargaining agreement.
Disposition: The Board found that EERA section 3541.5 essentially codified the NLRB’s pre-arbitration deferral policy overruling Lake Elsinore. As the Board agent dismissed the charge based exclusively on Lake Elsinore, the Board remanded the case for further investigation and processing.
Perc Vol: 26
Perc Index: 33036
1102.01000 – Pre-Arbitration
EERA section 3541.5 essentially codified the NLRB’s deferral policy as articulated in Collyer Insulated Wire (1971) 192 NLRB 837 [77 LRRM 1931]. EERA section 3541.5 mandates a return in part to the Board’s pre-arbitration deferral policy contained in Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81a. EERA section 3541.5 read in its entirety contemplates a charging party having a forum either in an arbitration or in a hearing before PERB. EERA section 3541.5(a)(2) prevents PERB from issuing a complaint against conduct also prohibited by the provisions of an agreement until the grievance machinery is exhausted either by settlement or arbitration. If a decision is not reached on the merits, it is not an arbitration of the dispute and the bar on issuing a complaint is not present. Deferring to a contractual grievance procedure where the employer can assert a procedural defense of untimeliness as justification for refusing to participate in an arbitration on the merits of the dispute renders the grievance procedure futile. Nothing in EERA or the Dills Act evidences the Legislature’s intent to shorten PERB’s statute of limitations for alleged violations from the statutory six months contained in each act to the time limits contained in the parties’ collective bargaining agreement grievance machinery.
101.03000 – NLRA/LMRDA Precedent
EERA section 3541.5 essentially codified the NLRB’s deferral policy as articulated in Collyer Insulated Wire (1971) 192 NLRB 837 [77 LRRM 1931].
1107.03000 – Remand for Further Hearing; Remand to General Counsel
As Board agent dismissed charge exclusively upon Lake Elsinore, when the Board overruled that case, the Board remanded the case to the Office of the General Counsel for further investigation and processing.