Decision 2926S – State of California (Department of Corrections and Rehabilitation)

Each labor relations statute PERB administers either explicitly or implicitly states a preference for parties to resolve unfair practice issues through contractual arbitration, if arbitration under the operative contractual provisions is adequate to fully and fairly resolve the claims that would otherwise proceed through PERB’s process. (County of Santa Clara (2021) PERB Order No. Ad-485-M, pp. 16-17; see § 3514.5(a)(2).) Nonetheless, deferral to arbitration is an affirmative defense, meaning that a party seeking deferral has the burden to timely plead the defense. (Claremont Unified School District (2014) PERB Decision No. 2357, p. 17.) (p. 7.)

The Board initially adopted NLRB deferral tests. (See, e.g., Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81a, pp. 4-5.) Doing so was appropriate given the similarities between the laws PERB administers and federal law governing private sector labor relations. (San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 12.) However, private sector precedent is at most persuasive. (Operating Engineers Local Union No. 3, AFL-CIO (Wagner et al.) (2021) PERB Decision No. 2782-M, p. 9, fn. 10; County of Santa Clara (2021) PERB Order No. Ad-485, p. 8, fn. 7.) Even when PERB precedent expressly borrows wording and/or principles from private sector precedent, that “does not mean we necessarily follow subsequent developments in NLRB precedent.” (Regents of the University of California (2023) PERB Decision No. 2880-H, p. 9, fn. 6; El Camino Healthcare District, et al. (2023) PERB Decision No. 2868-M, p. 26, fn. 18; Napa Valley Community College District (2018) PERB Decision No. 2563, p. 13.) As PERB has shifted how it interprets multiple elements of the pre-arbitration and post-arbitration deferral tests over time, such shifts have not necessarily matched the NLRB’s shifts. (pp. 7-8.)

Deferral to arbitration is discretionary. For a 15-year period beginning in 1987, the Board treated deferral as jurisdictional rather than discretionary based on the Board’s holding in Lake Elsinore School District (1987) PERB Decision No. 646 (Lake Elsinore), which the Board reversed in 2002. This impacts multiple deferral standards and means that PERB will not “defer to a brick wall” or to an arbitration that will not apply statutory standards. It also means that deferral is an affirmative defense which may be waived. PERB cautions extra diligence in checking whether principles previously enunciated remain the most current statement of PERB precedent. The Board noted that, in addition to Lake Elsinore, the following decisions have been overruled because, among other infirmities, they relied on the notion that deferral was jurisdictional rather than discretionary: State of California (California Department of Forestry and Fire Protection) (1989) PERB Decision No. 734-S; State of California (Department of Parks and Recreation) (1990) PERB Decision No. 810-S; State of California (Department of Corrections) (1992) PERB Order No. Ad-231-S, pp. 8-10; State of California (Department of Parks and Recreation) (1993) PERB Decision No. 1026-S; State of California (Department of Corrections) (1995) PERB Decision No. 1100-S), and State of California (Office of Emergency Services) (1995) PERB Decision No. 1122-S. (pp. 14, 16-19.)

Union claimed that the CBA does not allow arbitration over interference with the union’s own rights in violation of section 3519(b), and for that reason PERB cannot defer any of the claims. PERB assessed whether the section 3519(b) claim involves any standards or facts that could make its outcome or remedy materially diverge from the section 3519(a) claim. Notably, a section 3519(b) claim may, but need not, be derivative of a section 3519(a) claim. (See, e.g., County of San Joaquin (2021) PERB Decision No. 2761-M, pp. 20-22 [finding interference with union’s right to be independent claim].) If and only if the section 3519(b) claim will necessarily involve the same standards applied to the same facts as the section 3519(a) claim, and therefore have the same outcome (and materially the same potential remedies), then PERB can safely defer both claims. Under current Board precedent, the Union’s section 3519(b) claim involves the same statutory standards, the same facts, and effectively the same remedies as the section 3519(a) claim, allowing PERB to defer both claims. PERB noted that the following decisions no longer have precedential value on deferral issues because they relied on the notion that deferral was jurisdictional rather than discretionary, applied standards that are now superseded, and improperly bifurcated interrelated claims: State of California (California Department of Forestry and Fire Protection) (1989) PERB Decision No. 734-S; State of California (Department of Parks and Recreation) (1990) PERB Decision No. 810-S; State of California (Department of Corrections) (1992) PERB Order No. Ad-231-S, pp. 8-10; and State of California (Department of Parks and Recreation) (1993) PERB Decision No. 1026-S. (pp. 15-16; see also pp. 22-23.)

To establish a prima facie interference case under either section 3519(a) or section 3519(b), a charging party union must show that an employer’s conduct tends to or does result in some harm to protected union and/or employee rights. (Regents of the University of California, supra, PERB Decision No. 2880-H, p. 7.) The union need not establish that the employer acted because of an unlawful motive. (Ibid.) If the union establishes a prima facie case, the burden shifts to the employer. (Ibid.) The degree of harm dictates the employer’s burden. (Ibid.) If the harm is “inherently destructive” of protected rights, the employer must show that the interference results from circumstances beyond its control and that no alternative course of action was available. (Id. at pp. 7-8.) For conduct that is not inherently destructive, the respondent may attempt to justify its actions based on operational necessity. (Id. at p. 8.) In such cases, PERB balances the asserted business need against the tendency to harm protected rights; if the tendency to harm outweighs the necessity, PERB finds a violation. (Ibid.) Within the category of actions or rules that are not inherently destructive, the stronger the tendency to harm, the greater is the respondent’s burden to show its business need was important and that it narrowly tailored its actions or rules to attain that purpose while limiting harm to protected rights as much as possible. (Ibid.) (p. 20.)

Additional standards apply to allegations that an employer interfered with the right to display union insignia or other protected messages in the workplace. First, an employer rule is unlawful if, on either a facial or as-applied basis, the employer singles out protected conduct or speech, as compared to non-protected activities or speech. (Regents of the University of California (2023) PERB Decision No. 2880-H, p. 13.) Second, a facially neutral, consistently applied rule may still be unlawful if the charging party shows that the employer adopted it in retaliation for protected activity. (Ibid.)
Third, even as to a rule that is non-discriminatory and non-retaliatory, PERB recognizes that displaying union insignia or other protected messages in the workplace is generally “far less disruptive” than solicitation and distribution, and for that reason there is a rebuttable presumption against restricting such display. (Regents of the University of California, supra, PERB Decision No. 2880-H, pp. 8-9; City of Sacramento (2020) PERB Decision No. 2702-M, p. 9.) An employer may rebut this presumption only if it can establish “special circumstances” that justify the restriction. (City of Sacramento, supra, p. 9.) PERB considers such questions on a case-by-case basis, requiring the employer to make a “concrete, fact-based evidentiary showing” of a special circumstance. (Id. at p. 10.) Relevant factors include whether an insignia or message is likely to negatively affect operations, such as by posing a safety risk, disrupting employee discipline, distracting from work demanding great concentration, or damaging employer property. (Regents of the University of California, supra, PERB Decision No. 2880-H, p. 10.) Also important is the specific context in which the employer enacted or enforced the prohibition, the locations involved, industry practice, and the parties’ past practice. (Ibid.) Thus, a history of insignia or messages in the workplace without resulting incidents can undercut an employer’s argument. (Ibid.) General, speculative, isolated, or conclusory evidence of potential disruption to an employer’s operations does not amount to special circumstances. (Ibid.) Moreover, an employer may not rely on a concern to establish special circumstances if the record demonstrates that the employer has asserted it as a pretext for limiting protected activity. (Id. at pp. 10-11.) (pp. 20-22.)

A union can contractually waive employees’ statutory right to display protected insignia and messages in the workplace, but to be effective, such a contractual waiver must be clear and unmistakable. (Regents of the University of California (Irvine) (2018) PERB Decision No. 2593-H, p. 10; Regents of the University of California (2012) PERB Decision No. 2300-H, p. 27.) Normally, imprecise phrasing does not satisfy the clear and unmistakable standard. (Regents of the University of California (Irvine), supra, PERB Decision No. 2593-H, pp. 10-11 [contractual provision allowing employer to adopt “reasonable” rules did not waive statutory access rights].) Moreover, a waiver of employees’ statutory rights, even if clear and unmistakable, is unenforceable if it seriously impairs employees’ right to communicate about union matters. (Omnitrans (2009) PERB Decision No. 2030-M, p. 21; accord Regents of the University of California (Irvine), supra, PERB Decision No. 2593-H, p. 11, fn. 9.) (pp. 22-23.)

Additional standards apply to allegations that an employer interfered with the right to display union insignia or other protected messages in the workplace. First, an employer rule is unlawful if, on either a facial or as-applied basis, the employer singles out protected conduct or speech, as compared to non-protected activities or speech. (Regents of the University of California (2023) PERB Decision No. 2880-H, p. 13.) Second, a facially neutral, consistently applied rule may still be unlawful if the charging party shows that the employer adopted it in retaliation for protected activity. (Ibid.)
Third, even as to a rule that is non-discriminatory and non-retaliatory, PERB recognizes that displaying union insignia or other protected messages in the workplace is generally “far less disruptive” than solicitation and distribution, and for that reason there is a rebuttable presumption against restricting such display. (Regents of the University of California, supra, PERB Decision No. 2880-H, pp. 8-9; City of Sacramento (2020) PERB Decision No. 2702-M, p. 9.) An employer may rebut this presumption only if it can establish “special circumstances” that justify the restriction. (City of Sacramento, supra, p. 9.) PERB considers such questions on a case-by-case basis, requiring the employer to make a “concrete, fact-based evidentiary showing” of a special circumstance. (Id. at p. 10.) Relevant factors include whether an insignia or message is likely to negatively affect operations, such as by posing a safety risk, disrupting employee discipline, distracting from work demanding great concentration, or damaging employer property. (Regents of the University of California, supra, PERB Decision No. 2880-H, p. 10.) Also important is the specific context in which the employer enacted or enforced the prohibition, the locations involved, industry practice, and the parties’ past practice. (Ibid.) Thus, a history of insignia or messages in the workplace without resulting incidents can undercut an employer’s argument. (Ibid.) General, speculative, isolated, or conclusory evidence of potential disruption to an employer’s operations does not amount to special circumstances. (Ibid.) Moreover, an employer may not rely on a concern to establish special circumstances if the record demonstrates that the employer has asserted it as a pretext for limiting protected activity. (Id. at pp. 10-11.) (pp. 20-22.)

A party has the right to ask PERB’s Office of the General Counsel (OGC) to defer to arbitration pursuant to PERB Regulation 32620(b)(5)-(6). Irrespective of whether a party asked OGC for deferral at an earlier stage, it can plead deferral as an affirmative defense in its answer to a complaint and file a deferral motion pursuant to Regulation 32190(a). But no party has a right, at any stage of PERB proceedings, to unilaterally “elect” deferral. (p. 6, fn. 2.)

Each labor relations statute PERB administers either explicitly or implicitly states a preference for parties to resolve unfair practice issues through contractual arbitration, if arbitration under the operative contractual provisions is adequate to fully and fairly resolve the claims that would otherwise proceed through PERB’s process. (County of Santa Clara (2021) PERB Order No. Ad-485-M, pp. 16-17; see § 3514.5(a)(2).) Nonetheless, deferral to arbitration is an affirmative defense, meaning that a party seeking deferral has the burden to timely plead the defense. (Claremont Unified School District (2014) PERB Decision No. 2357, p. 17.) (p. 7.)

While PERB has long phrased the required elements of the deferral defense differently depending on whether the parties have already completed arbitration, recent precedent clarifies that PERB cohesively interprets the pre-arbitration and post-arbitration deferral tests with reference to one another, so that the critical legal principles are consistent in each context. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 18, fn. 12; see also id. at p. 22, fn. 17 [if PERB defers at the pre-arbitration stage, charging party may still argue at the post-arbitration stage that PERB’s assumptions as to how the arbitrator would approach the case did not pan out].) (p. 8.)

When PERB considers deferral before the arbitration process is complete (including where the charging party union has not yet filed a grievance), the party seeking deferral has the burden to establish that: (1) the dispute arises within a stable collective bargaining relationship; (2) the respondent is willing to waive procedural defenses and to arbitrate the merits of the dispute; (3) the contract and its meaning lie at the center of the dispute; and (4) no deferral exception applies. (County of Orange (2022) PERB Order No. Ad-496-M, p. 5.) (p. 9; id. at p. 19.)

The most critical element of the pre-arbitration deferral test is often whether the contract and its meaning lie at the center of the dispute. (County of Orange (2022) PERB Order No. Ad-496-M, p. 5.) For this element, the party seeking deferral must establish two conditions. First, the alleged unfair practice must be arguably prohibited by the parties’ agreement. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 8 (Santa Clara).) Thus, “it is not sufficient for the agreement to merely cover or discuss the matter. The conduct alleged to be an unfair practice must be prohibited.” (Ibid., citation omitted.) Second, beginning with Santa Clara, supra, we have required that “resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation.” (Id. at p. 8, citation omitted.) Thus, “[i]f resolution of the alleged unfair practice requires application of statutory legal standards, and there is no guarantee that an arbitrator will look beyond the contract and consider statutory principles, deferral is not appropriate.” (Ibid., internal quotation marks and citations omitted.) This condition is satisfied “where the parties incorporate the statutory legal standard into their collective bargaining agreement” or both parties “ask the arbitrator to resolve the statutory unfair practice issue.” (Id. at p. 8, fn. 6.) Notably, “this clarification ensures that our pre-arbitration deferral standard is consistent with our post-arbitration deferral standard, which requires that the arbitrator actually decide the alleged statutory violation.” (Id. at p. 18.) Indeed, it would make little sense to defer pre-arbitration if there was a likelihood of reaching the opposite conclusion post-arbitration. (pp. 9-10; id. at p. 19.)

Dills Act section 3514(a)(2) sets forth a futility exception, while other exceptions flow from the fact that deferral is a discretionary doctrine. For instance, even if all deferral elements are satisfied, PERB will not defer claims alleging interference with or retaliation for filing a PERB charge or participating in PERB processes. (Trustees of the California State University (East Bay) (2014) PERB Decision No. 2391-H, p. 39.) (p. 9, fn. 5.) Moreover, deferral is normally improper if individual employees wish to arbitrate but their union controls that decision and declines to arbitrate. (State of California (Department of Parks and Recreation) (1995) PERB Decision No. 1125-S, pp. 8-9.) Accordingly, State of California (Office of Emergency Services) (1995) PERB Decision No. 1122-S, where the Board deferred to arbitration even though the charging party’s exclusive representative would not arbitrate his claims, is no longer good law on this point. (p. 17, n. 16.)

Because PERB will not defer where it is futile to do so, the relevant statutory standards that the arbitrator must apply include those related to both liability and remedy. (Oxnard Union High School District (2022) PERB Decision No. 2803, pp. 55-56 [deferral improper where contract required grievant to show employer violated an “express term” in an “arbitrary, capricious or discriminatory manner,” which deviated from PERB standards].) (p. 10.)

If a respondent establishes all four elements needed to prevail in a pre-arbitration deferral motion, then PERB follows one of two procedures, depending on which public sector labor relations statute covers the parties. Under the statutes referenced in PERB Regulation 32620(b)(5)—including the Dills Act—a successful deferral motion leads PERB to dismiss the unfair practice charge. In contrast, under the labor relations statutes referenced in PERB Regulation 32620(b)(6), PERB merely places the charge in abeyance. (County of Orange (2022) PERB Order No. Ad-496-M, p. 5.) However, this is a distinction without a difference. After PERB defers a charge to arbitration and places it in abeyance pursuant to Regulation 32620(b)(6), the case normally remains in abeyance until arbitration is complete. At that point, PERB dismisses the charge unless the charging party can disprove one or more elements of the post-arbitration deferral test discussed post. If the charging party believes one of these circumstances exists, it normally asks PERB to take its charge out of abeyance and amends it to include all needed allegations about the arbitration process and/or arbitration decision. (Trustees of the California State University (Long Beach) (2011) PERB Decision No. 2201-H, pp. 3-6.) A slightly different procedure is available under the statutes covered by PERB Regulation 32620(b)(5). Under those laws, pre-arbitration deferral leads PERB to dismiss the unfair practice charge, meaning there is no opportunity to file an amended charge. Instead, the charging party can file a new charge that alleges the original violation(s) as well as the circumstances preventing PERB from continuing to defer. Therefore, under each PERB-administered statute, after PERB issues a pre-arbitration deferral order, the charging party has a later opportunity to ask PERB to revisit that conclusion post-arbitration. (pp. 10-12.)

When a charge or complaint alleges multiple claims that are factually or legally interrelated, PERB must first determine whether such interrelated claims are “independent” or “derivative,” following the principle that a claim is independent of another if it can potentially prevail while the other does not. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 9.) For interrelated claims that are independent of one another, the party seeking deferral must separately show that each claim satisfies the applicable deferral test, or else PERB refrains from deferring any of the interrelated claims. (Id. at pp. 10-12.) In contrast, if a claim is derivative of another, the party seeking deferral need not make a separate showing that the derivative claim meets the applicable deferral test. (Id. at p. 10.) (pp. 13-14.)

Union claimed that the CBA does not allow arbitration over interference with the union’s own rights in violation of section 3519(b), and for that reason PERB cannot defer any of the claims. PERB assessed whether the section 3519(b) claim involves any standards or facts that could make its outcome or remedy materially diverge from the section 3519(a) claim. Notably, a section 3519(b) claim may, but need not, be derivative of a section 3519(a) claim. (See, e.g., County of San Joaquin (2021) PERB Decision No. 2761-M, pp. 20-22 [finding interference with union’s right to be independent claim].) If and only if the section 3519(b) claim will necessarily involve the same standards applied to the same facts as the section 3519(a) claim, and therefore have the same outcome (and materially the same potential remedies), then PERB can safely defer both claims. Under current Board precedent, the Union’s section 3519(b) claim involves the same statutory standards, the same facts, and effectively the same remedies as the section 3519(a) claim, allowing PERB to defer both claims. PERB noted that the following decisions no longer have precedential value on deferral issues because they relied on the notion that deferral was jurisdictional rather than discretionary, applied standards that are now superseded, and improperly bifurcated interrelated claims: State of California (California Department of Forestry and Fire Protection) (1989) PERB Decision No. 734-S; State of California (Department of Parks and Recreation) (1990) PERB Decision No. 810-S; State of California (Department of Corrections) (1992) PERB Order No. Ad-231-S, pp. 8-10; and State of California (Department of Parks and Recreation) (1993) PERB Decision No. 1026-S. (pp. 15-16; see also pp. 22-23.)

While PERB has long phrased the required elements of the deferral defense differently depending on whether the parties have already completed arbitration, recent precedent clarifies that PERB cohesively interprets the pre-arbitration and post-arbitration deferral tests with reference to one another, so that the critical legal principles are consistent in each context. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 18, fn. 12; see also id. at p. 22, fn. 17 [if PERB defers at the pre-arbitration stage, charging party may still argue at the post-arbitration stage that PERB’s assumptions as to how the arbitrator would approach the case did not pan out].) (p. 8.)

If pre-arbitration deferral leads PERB to dismiss an unfair practice charge, the statutory tolling doctrine permits a charging party to timely file a new charge that alleges the original violation(s) as well as the circumstances preventing PERB from continuing to defer within six months of when it knew or should have known of the deficiency in the arbitration process or the arbitrator’s decision. (Los Angeles Unified School District (2014) PERB Decision No. 2359, p. 10; Trustees of the California State University (Long Beach) (2011) PERB Decision No. 2201-H, p. 6.) (p. 11, fn. 6.)

When PERB considers deferral after the parties have completed arbitration and received the arbitrator’s final decision, PERB normally will exercise its discretionary authority to defer to a final arbitration decision and dismiss the related unfair practice claim(s), if: (1) the unfair practice issues were presented to and considered by the arbitrator; (2) the arbitral proceeding was fair and regular; (3) the party asserting deferral agrees to be bound by the arbitrator’s decision; and (4) the arbitration was not clearly repugnant to the purposes and policies of the statute. (County of Orange (2022) PERB Order No. Ad-496-M, p. 8 (Orange).) Regarding the third element, a party manifests an intent not to be bound by the arbitrator’s decision, thereby undercutting its claimed agreement to be bound, if it successfully sues to vacate or alter the decision. (State of California (Department of Corrections and Rehabilitation) (2024) PERB Order No. Ad-516-S, p. 5.) As to the fourth element, “repugnancy” is a term of art that does not match the normal English definition of the word. (Orange, supra, PERB Order No. Ad-496-M, p. 8.) A traditional repugnancy assessment arises where the arbitrator has considered and resolved the unfair practice issues in a fair and regular proceeding, meaning that the sole question before the Board is whether the content of the arbitrator’s decision or remedy is “palpably wrong” or “not susceptible to an interpretation” consistent with the statutes PERB administers. (Ibid.) (p. 12.)

There can never be an advance “guarantee” that an arbitrator will “look beyond the contract and consider statutory principles” as required since County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 6. However, if the arbitrator fails to do so, charging party is free to request that PERB cease deferring to arbitration, following the procedures described ante at pages 10-11. PERB will normally grant such a request if the arbitrator has not considered and resolved the unfair practice issues, has misunderstood statutory standards explained in Board precedent, or has failed to order a fully effective remedy for any violation found. (pp. 9-13, 16 & fn. 9.)

A party has the right to ask PERB’s Office of the General Counsel (OGC) to defer to arbitration pursuant to PERB Regulation 32620(b)(5)-(6). Irrespective of whether a party asked OGC for deferral at an earlier stage, it can plead deferral as an affirmative defense in its answer to a complaint and file a deferral motion pursuant to Regulation 32190(a). But no party has a right, at any stage of PERB proceedings, to unilaterally “elect” deferral. (p. 6, fn. 2.)

Each labor relations statute PERB administers either explicitly or implicitly states a preference for parties to resolve unfair practice issues through contractual arbitration, if arbitration under the operative contractual provisions is adequate to fully and fairly resolve the claims that would otherwise proceed through PERB’s process. (County of Santa Clara (2021) PERB Order No. Ad-485-M, pp. 16-17; see § 3514.5(a)(2).) Nonetheless, deferral to arbitration is an affirmative defense, meaning that a party seeking deferral has the burden to timely plead the defense. (Claremont Unified School District (2014) PERB Decision No. 2357, p. 17.) (p. 7.)

While PERB has long phrased the required elements of the deferral defense differently depending on whether the parties have already completed arbitration, recent precedent clarifies that PERB cohesively interprets the pre-arbitration and post-arbitration deferral tests with reference to one another, so that the critical legal principles are consistent in each context. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 18, fn. 12; see also id. at p. 22, fn. 17 [if PERB defers at the pre-arbitration stage, charging party may still argue at the post-arbitration stage that PERB’s assumptions as to how the arbitrator would approach the case did not pan out].) (p. 8.)

The most critical element of the pre-arbitration deferral test is often whether the contract and its meaning lie at the center of the dispute. (County of Orange (2022) PERB Order No. Ad-496-M, p. 5.) For this element, the party seeking deferral must establish two conditions. First, the alleged unfair practice must be arguably prohibited by the parties’ agreement. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 8 (Santa Clara).) Thus, “it is not sufficient for the agreement to merely cover or discuss the matter. The conduct alleged to be an unfair practice must be prohibited.” (Ibid., citation omitted.) Second, beginning with Santa Clara, supra, we have required that “resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation.” (Id. at p. 8, citation omitted.) Thus, “[i]f resolution of the alleged unfair practice requires application of statutory legal standards, and there is no guarantee that an arbitrator will look beyond the contract and consider statutory principles, deferral is not appropriate.” (Ibid., internal quotation marks and citations omitted.) This condition is satisfied “where the parties incorporate the statutory legal standard into their collective bargaining agreement” or both parties “ask the arbitrator to resolve the statutory unfair practice issue.” (Id. at p. 8, fn. 6.) Notably, “this clarification ensures that our pre-arbitration deferral standard is consistent with our post-arbitration deferral standard, which requires that the arbitrator actually decide the alleged statutory violation.” (Id. at p. 18.) Indeed, it would make little sense to defer pre-arbitration if there was a likelihood of reaching the opposite conclusion post-arbitration. (pp. 9-10; id. at p. 19.)

Dills Act section 3514(a)(2) sets forth a futility exception, while other exceptions flow from the fact that deferral is a discretionary doctrine. For instance, even if all deferral elements are satisfied, PERB will not defer claims alleging interference with or retaliation for filing a PERB charge or participating in PERB processes. (Trustees of the California State University (East Bay) (2014) PERB Decision No. 2391-H, p. 39.) (p. 9, fn. 5.) Moreover, deferral is normally improper if individual employees wish to arbitrate but their union controls that decision and declines to arbitrate. (State of California (Department of Parks and Recreation) (1995) PERB Decision No. 1125-S, pp. 8-9.) Accordingly, State of California (Office of Emergency Services) (1995) PERB Decision No. 1122-S, where the Board deferred to arbitration even though the charging party’s exclusive representative would not arbitrate his claims, is no longer good law on this point. (p. 17, n. 16.)

Because PERB will not defer where it is futile to do so, the relevant statutory standards that the arbitrator must apply include those related to both liability and remedy. (Oxnard Union High School District (2022) PERB Decision No. 2803, pp. 55-56 [deferral improper where contract required grievant to show employer violated an “express term” in an “arbitrary, capricious or discriminatory manner,” which deviated from PERB standards].) (p. 10.)

When a charge or complaint alleges multiple claims that are factually or legally interrelated, PERB must first determine whether such interrelated claims are “independent” or “derivative,” following the principle that a claim is independent of another if it can potentially prevail while the other does not. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 9.) For interrelated claims that are independent of one another, the party seeking deferral must separately show that each claim satisfies the applicable deferral test, or else PERB refrains from deferring any of the interrelated claims. (Id. at pp. 10-12.) In contrast, if a claim is derivative of another, the party seeking deferral need not make a separate showing that the derivative claim meets the applicable deferral test. (Id. at p. 10.) (pp. 13-14.)

Deferral to arbitration is discretionary. For a 15-year period beginning in 1987, the Board treated deferral as jurisdictional rather than discretionary based on the Board’s holding in Lake Elsinore School District (1987) PERB Decision No. 646 (Lake Elsinore), which the Board reversed in 2002. This impacts multiple deferral standards and means that PERB will not “defer to a brick wall” or to an arbitration that will not apply statutory standards. It also means that deferral is an affirmative defense which may be waived. PERB cautions extra diligence in checking whether principles previously enunciated remain the most current statement of PERB precedent. The Board noted that, in addition to Lake Elsinore, the following decisions have been overruled because, among other infirmities, they relied on the notion that deferral was jurisdictional rather than discretionary: State of California (California Department of Forestry and Fire Protection) (1989) PERB Decision No. 734-S; State of California (Department of Parks and Recreation) (1990) PERB Decision No. 810-S; State of California (Department of Corrections) (1992) PERB Order No. Ad-231-S, pp. 8-10; State of California (Department of Parks and Recreation) (1993) PERB Decision No. 1026-S; State of California (Department of Corrections) (1995) PERB Decision No. 1100-S), and State of California (Office of Emergency Services) (1995) PERB Decision No. 1122-S. (pp. 14, 16-19.)

Union claimed that the CBA does not allow arbitration over interference with the union’s own rights in violation of section 3519(b), and for that reason PERB cannot defer any of the claims. PERB assessed whether the section 3519(b) claim involves any standards or facts that could make its outcome or remedy materially diverge from the section 3519(a) claim. Notably, a section 3519(b) claim may, but need not, be derivative of a section 3519(a) claim. (See, e.g., County of San Joaquin (2021) PERB Decision No. 2761-M, pp. 20-22 [finding interference with union’s right to be independent claim].) If and only if the section 3519(b) claim will necessarily involve the same standards applied to the same facts as the section 3519(a) claim, and therefore have the same outcome (and materially the same potential remedies), then PERB can safely defer both claims. Under current Board precedent, the Union’s section 3519(b) claim involves the same statutory standards, the same facts, and effectively the same remedies as the section 3519(a) claim, allowing PERB to defer both claims. PERB noted that the following decisions no longer have precedential value on deferral issues because they relied on the notion that deferral was jurisdictional rather than discretionary, applied standards that are now superseded, and improperly bifurcated interrelated claims: State of California (California Department of Forestry and Fire Protection) (1989) PERB Decision No. 734-S; State of California (Department of Parks and Recreation) (1990) PERB Decision No. 810-S; State of California (Department of Corrections) (1992) PERB Order No. Ad-231-S, pp. 8-10; and State of California (Department of Parks and Recreation) (1993) PERB Decision No. 1026-S. (pp. 15-16; see also pp. 22-23.)

In resolving pre-hearing dismissal motions, ALJs must apply the same principles that OGC applies in determining which charge allegations (if any) warrant dismissal. (Cal Fire Local 2881 (Tobin) (2018) PERB Decision No. 2580-S, p. 2.) As a result, ALJs must assume charging party’s factual allegations are true, and view the allegations in the light most favorable to charging party. (City and County of San Francisco (2023) PERB Decision No. 2846-M, p. 8.) (pp. 6-7.)

In resolving pre-hearing dismissal motions, ALJs must apply the same principles that OGC applies in determining which charge allegations (if any) warrant dismissal. (Cal Fire Local 2881 (Tobin) (2018) PERB Decision No. 2580-S, p. 2.) And where a party appeals an ALJ’s dismissal, the Board applies the same principles in its de novo review. As a result, the Board assumes charging party’s factual allegations are true, and view these allegations in the light most favorable to SEIU. (City and County of San Francisco (2023) PERB Decision No. 2846-M, p. 8.) (pp. 6-7.)

Under each labor relations statute PERB administers, decisions granting deferral are appealable as of right, whereas decisions denying deferral are interlocutory and thus appealable only when a Board agent issuing such an order certifies it to the Board. (State of California (Department of Corrections and Rehabilitation) (2024) PERB Order No. Ad-516-S, p. 4.) (p. 6, fn. 3.)