Decision 2231Ma – Stanislaus Consolidated Fire Protection District

SA-CE-711-M

Decision Date: May 23, 2012

Decision Type: PERB Decision

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Perc Vol: 36
Perc Index: 185

Decision Headnotes

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.01000 – In General

Failure by the Board to include in its decision fact that the respondent subsequently offered to meet and confer after a unilateral change had already occurred did not constitute a prejudicial error of fact because the later reversal or rescission of a unilateral action or subsequent negotiation on the subject of a unilateral action does not cure the violation.

1102.00000 – CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION
1102.02000 – Post Arbitration; Repugnancy

A deferral to arbitration claim is not jurisdictional and therefore must be raised as an affirmative defense to an unfair practice charge in a timely manner, or it is waived; where neither the issuance of the complaint nor the dismissal of the remaining allegations by the Office of General Counsel occurred until approximately one month after the arbitration, and the respondent knew long before the arbitration that the grievances concerning the Union Time Bank were subject to binding and final arbitration and never raised the issue of deferral to grievance arbitration during the charge processing stage of the PERB proceedings, raising deferral to arbitration for the first time in a request for reconsideration was untimely, and therefore waived.

1102.00000 – CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION
1102.03000 – Other

A deferral to arbitration claim is not jurisdictional and therefore must be raised as an affirmative defense to an unfair practice charge in a timely manner, or it is waived; where neither the issuance of the complaint nor the dismissal of the remaining allegations by the Office of General Counsel occurred until approximately one month after the arbitration, and the respondent knew long before the arbitration that the grievances concerning the Union Time Bank were subject to binding and final arbitration and never raised the issue of deferral to grievance arbitration during the charge processing stage of the PERB proceedings, raising deferral to arbitration for the first time in a request for reconsideration was untimely, and therefore waived.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.10000 – Request for Reconsideration

Request for reconsideration of decision reversing a partial dismissal of the unfair practice charge and remanding matter to the Office of the General Counsel for issuance of a complaint failed to provide grounds for reconsideration under PERB Regulation 32410, subdivision (a), where the request for reconsideration failed to demonstrate that an arbitration award arising out of an arbitration that occurred six months prior to Board’s decision qualified or an attempt to resolve dispute at mediation qualified as newly discovered evidence; also failure by the Board to include in its decision fact that the respondent subsequently offered to meet and confer after a unilateral change had already occurred did not constitute a prejudicial error of fact because the later reversal or rescission of a unilateral action or subsequent negotiation on the subject of a unilateral action does not cure the violation.

1405.00000 – GENERAL LEGAL PRINCIPLES; COLLATERAL ESTOPPEL; RES JUDICATA
1405.02000 – Type or Nature of Prior Proceeding

The Board rejected respondent’s argument that principles of collateral estoppel barred “relitigation” of issues decided by an arbitrator relating to the Union Time Bank because issues of discrimination/retaliation and interference in PERB proceeding do not involve same dispute as issue of contract violation in arbitration proceeding; moreover, even assuming the issues were identical, PERB is not obligated to give collateral estoppel effect to a decision by an arbitrator.