Decision A145S – State of California (Developmental Services) (Dixon)

ALJ commits error by relying on confidential information given to regional attorney in denying motion to defer to arbitration. The ALJ cannot rely on any information not contained in the public record.

Futility so as to preclude deferral to arbitration does not exist simply because the charging party has had disputes with union officers. Futility exists where the union officers previously have committed themselves to a position so adverse to the grievant as to be in conflict of interest. This includes such conduct as advocacy of the grievant's termination by the employer.