Decision 2357E – Claremont Unified School District
Decision Date: February 21, 2014
Decision Type: PERB Decision
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.