Decision 2357E – Claremont Unified School District
Decision Date: February 21, 2014
Decision Type: PERB Decision
Description: The charge alleged that that the Claremont Unified School District (District) had retaliated against the charging party for his involvement in protected activities. The Office of the General Counsel dismissed the allegations and deferred the matter to arbitration.
Disposition: The Board reversed the dismissal and remanded the matter to the General Counsel for further investigation. The Board determined that deferral was not appropriate, pursuant to the futility exception of EERA section 3541.5, subd. (a)(2), because the exclusive representative was unwilling to arbitrate the charging party’s allegations. The Board held that: (1) when a charging party cannot invoke binding arbitration independent of the exclusive representative, the Office of the General Counsel shall first determine whether the employer and the exclusive representative are ready and willing to proceed to arbitration before deferring the matter to arbitration; and (2) a Board charge including multiple allegations is not appropriate for deferral unless all of its allegations are deemed appropriate for deferral.
Perc Vol: 38
Perc Index: 128
1100.04000 – Amendments
A charging party is not permitted to amend a dismissed charge until the dismissal is reversed and remanded for further proceedings.
1100.05000 – Dismissal of Charge; Appeal
The Board may supplement a record of an appeal with new evidence for good cause. Where, after the charge was dismissed and deferred, the exclusive representative decided not to arbitrate some of charging party’s grievances, good cause existed for Board to consider the appropriateness of deferral, regardless of whether charging party had previously argued that point in his appeal.
1102.01000 – Pre-Arbitration
Pursuant to the “futility exception” of EERA section 3541.5, subdivision (a)(2), deferral of individual employee’s charge alleging retaliation for his protected activity was not appropriate where the exclusive representative was unwilling to arbitrate the employee’s grievance. The statutory “futility exception" recognizes the voluntary resolution of labor disputes, is absent when an individual employee who seeks to vindicate statutory rights is not himself or herself a “party” to the grievance machinery to which the matter has been deferred, and therefore has no control over whether the dispute will be heard on its merits.
1103.05000 – Answer or Other Defense/Waiver
Deferral to arbitration is an affirmative defense which is waived, if not timely raised in the respondent’s answer.