Decision 1566S – State of California (Department of Parks and Recreation)
LA-CE-561-S
Decision Date: December 16, 2003
Decision Type: PERB Decision
Description: CAUSE alleged that the State used a non-unit employee/supervisor to perform bargaining unit work without prior notice or opportunity to negotiate. The State waived procedural defenses. The Board agent dismissed and deferred the charge to arbitration.
Disposition: The Board affirmed the Board agent’s dismissal and deferral. The Board found that CAUSE waived the right to negotiate removal of unit work via the MOU zipper clause. CAUSE further argued that the case should not be deferred because it alleged derivative claims not covered by the MOU. The Board found that NLRB and Board precedent require that where the employer’s conduct is arguably prohibited by the MOU, the Board must defer all legal theories that derive from that conduct.
Perc Vol: 28
Perc Index: 31
Decision Headnotes
1102.01000 – Pre-Arbitration
Agreement’s article on changes covers subject of charge and provides that any dispute as to coverage also goes to the arbitrator. Thus deferral is appropriate. 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.
1103.01000 – In General
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.
1103.11000 – 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.
1103.12000 – Concurrent or Derivative Violations
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.
1107.04000 – Unalleged Violations
Board finds that when raising a violation for the first time on appeal there must be an identification of facts to support such violation. A charging party may not present new charge allegations or supporting evidence in an appeal unless good cause is shown.
1107.20000 – Other
Board finds that when raising a violation for the first time on appeal there must be an identification of facts to support such violation. A charging party may not present new charge allegations or supporting evidence in an appeal unless good cause is shown.