Decision A496M – County of Orange

LA-CE-1603-M

Decision Date: October 6, 2022

Decision Type: Administrative Appeal

Description: The complaint alleged that the County of Orange discharged Charging Party Jaime Avila because he engaged in conduct protected by the MMBA. The ALJ deferred the dispute to binding arbitration under an MOU between the County and the union that represents Avila’s bargaining unit. Avila asked PERB to reverse the ALJ’s deferral order and find that the arbitration process, including the arbitration decision that ultimately issued, was repugnant to the MMBA.

Disposition: The Board affirmed the ALJ’s deferral order, finding that the parties submitted the MMBA retaliation question as one of the issues for the arbitrator to resolve and that he did so, applying the statutory standard. The Board exercised its discretion to resolve Avila’s post-arbitration repugnancy claim rather than remanding it to the ALJ and found that the arbitration process and decision were not repugnant to the MMBA. Accordingly, the Board dismissed the complaint and underlying unfair practice charge.

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Perc Vol: 47
Perc Index: 66

Decision Headnotes

102.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION
102.01000 – In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts

Under MMBA section 3505.8 and PERB Regulation 32620, subdivision (b)(6), PERB is authorized to: (1) grant a deferral motion and place an unfair practice charge in abeyance if the parties’ dispute is subject to final and binding arbitration pursuant to an MOU; and (2) dismiss the charge at the conclusion of the arbitration process, unless the charging party demonstrates that the ultimate settlement or arbitration award is repugnant to the MMBA. (p. 5.)

1102.00000 – CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION
1102.01000 – Pre-Arbitration

Under MMBA section 3505.8 and PERB Regulation 32620, subdivision (b)(6), PERB is authorized to: (1) grant a deferral motion and place an unfair practice charge in abeyance if the parties’ dispute is subject to final and binding arbitration pursuant to an MOU; and (2) dismiss the charge at the conclusion of the arbitration process, unless the charging party demonstrates that the ultimate settlement or arbitration award is repugnant to the MMBA. (p. 5.)

1102.00000 – CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION
1102.01000 – Pre-Arbitration

“PERB may defer an unfair practice charge to arbitration if the respondent carries its 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 recognized exception to deferral applies.” (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 53.) Moreover, if the charging party is an individual employee and the applicable MOU does not allow an employee to advance a grievance to arbitration, PERB also must determine whether the exclusive representative is willing to proceed to arbitration on the employee’s grievance. (Claremont Unified School District (2014) PERB Decision No. 2357, p. 18.) (p. 5.)

1102.00000 – CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION
1102.01000 – Pre-Arbitration

The most critical prong of the deferral test is often whether the contract and its meaning lie at the center of the dispute. (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 55.) To meet this prong, the respondent must show, first, that the parties’ agreement prohibits the alleged unfair practice. (Ibid.) It is not sufficient for the agreement to “merely cover or discuss the matter.” (Ibid.) Rather, “the conduct alleged to be an unfair practice must be prohibited.” (Ibid.) Second, “resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation.” (Ibid.) This condition exists “if the contract incorporates the statutory legal standard, or if the parties ask the arbitrator to resolve the statutory unfair practice issue.” (Ibid.) “If 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.) (p. 6.)

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

Under MMBA section 3505.8 and PERB Regulation 32620, subdivision (b)(6), PERB is authorized to: (1) grant a deferral motion and place an unfair practice charge in abeyance if the parties’ dispute is subject to final and binding arbitration pursuant to an MOU; and (2) dismiss the charge at the conclusion of the arbitration process, unless the charging party demonstrates that the ultimate settlement or arbitration award is repugnant to the MMBA. (p. 5.)

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

The Board exercised its discretion to resolve charging party’s repugnancy claim rather than remanding it to the ALJ, because doing so promotes administrative efficiency. (Alliance Judy Ivie Burton Technology Academy High School, et al (2022) PERB Decision No. 2809, pp. 23-24 [Board may exercise discretion to promote efficiency by resolving issues at Board level in the first instance]; PERB Reg. 32661, subd. (d) [where charging party files repugnancy claim, the Board itself “may, at any time, direct that the record be submitted to the Board itself for decision”].) (p. 7.)

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

In Trustees of the California State University (East Bay) (2014) PERB Decision No. 2391-H, the Board noted that deciding if an arbitration decision or settlement is repugnant to a PERB-administered statute is equivalent to deciding whether to defer to such a decision or settlement after it is final. (Id. at pp. 21-22.) Indeed, in Trustees, the Board listed four “repugnancy elements” that correspond to the Board’s post-arbitration deferral standard, as follows: “[T]he Board will . . . dismiss and defer a complaint to the arbitrator’s award if: (1) the unfair practice issues were presented to and considered by the arbitrator; (2) the arbitral proceeding was fair and regular; (3) the parties agreed to be bound; and (4) the decision of the arbitrator was not ‘clearly repugnant to the purposes and policies of the Act.’” (Id. at p. 22, citing Santa Ana Unified School District (2008) PERB Decision No. 1951, p. 6 (Santa Ana).) Thus, “repugnancy” is a term of art, because the Board may decline to defer to an arbitration award if the unfair practice issues were not presented to and considered by the arbitrator, a circumstance that does not necessarily fall within the normal English definition of the word “repugnant.” An arbitration decision or settlement is repugnant to the governing act if it is “palpably wrong” or “not susceptible to an interpretation consistent with the Act.” (County of Santa Clara (2020) PERB Order No. Ad-482-M, p. 9, fn. 11.) The mere possibility that the Board may have reached a different conclusion does not render the award repugnant. (Ibid.) A repugnancy claim can also focus, in whole or in part, on allegedly unfair procedures or simply on the fact that the arbitrator did not consider the unfair practice issues. Irrespective of whether the party alleging repugnancy focuses on the ultimate result, the process, or a combination, that party “has the burden of affirmatively demonstrating the defects in the arbitral process or award.” (Santa Ana, supra, PERB Decision No. 1951, p. 6.) (pp. 7-8.)

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.11000 – Request for Deferral to Arbitration

Under MMBA section 3505.8 and PERB Regulation 32620, subdivision (b)(6), PERB is authorized to: (1) grant a deferral motion and place an unfair practice charge in abeyance if the parties’ dispute is subject to final and binding arbitration pursuant to an MOU; and (2) dismiss the charge at the conclusion of the arbitration process, unless the charging party demonstrates that the ultimate settlement or arbitration award is repugnant to the MMBA. (p. 5.)

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.11000 – Request for Deferral to Arbitration

“PERB may defer an unfair practice charge to arbitration if the respondent carries its 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 recognized exception to deferral applies.” (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 53.) Moreover, if the charging party is an individual employee and the applicable MOU does not allow an employee to advance a grievance to arbitration, PERB also must determine whether the exclusive representative is willing to proceed to arbitration on the employee’s grievance. (Claremont Unified School District (2014) PERB Decision No. 2357, p. 18.) (p. 5.)

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.11000 – Request for Deferral to Arbitration

The most critical prong of the deferral test is often whether the contract and its meaning lie at the center of the dispute. (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 55.) To meet this prong, the respondent must show, first, that the parties’ agreement prohibits the alleged unfair practice. (Ibid.) It is not sufficient for the agreement to “merely cover or discuss the matter.” (Ibid.) Rather, “the conduct alleged to be an unfair practice must be prohibited.” (Ibid.) Second, “resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation.” (Ibid.) This condition exists “if the contract incorporates the statutory legal standard, or if the parties ask the arbitrator to resolve the statutory unfair practice issue.” (Ibid.) “If 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.) (p. 6.)

1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
1104.02000 – Motions

“PERB may defer an unfair practice charge to arbitration if the respondent carries its 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 recognized exception to deferral applies.” (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 53 (Oxnard).) Moreover, if the charging party is an individual employee and the applicable MOU does not allow an employee to advance a grievance to arbitration, PERB also must determine whether the exclusive representative is willing to proceed to arbitration on the employee’s grievance. (Claremont Unified School District (2014) PERB Decision No. 2357, p. 18.) The most critical prong of the deferral test is often whether the contract and its meaning lie at the center of the dispute. (Oxnard, supra, PERB Decision No. 2803, p. 55.) To meet this prong, the respondent must show, first, that the parties’ agreement prohibits the alleged unfair practice. (Ibid.) It is not sufficient for the agreement to “merely cover or discuss the matter.” (Ibid.) Rather, “the conduct alleged to be an unfair practice must be prohibited.” (Ibid.) Second, “resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation.” (Ibid.) This condition exists “if the contract incorporates the statutory legal standard, or if the parties ask the arbitrator to resolve the statutory unfair practice issue.” (Ibid.) “If 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.) (pp. 5-6.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.21000 – Administrative Appeals

A Board agent’s decision to defer a charge to arbitration and place it in abeyance pending completion of such proceedings is an administrative decision appealable under PERB Regulation 32360. (County of Santa Clara (2020) PERB Order No. Ad-482-M, pp. 10-11.) In an appeal from an administrative decision, the appellant has the burden to show that the challenged decision is contrary to law. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 6.) (p. 4.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.21000 – Administrative Appeals

The Board exercised its discretion to resolve charging party’s repugnancy claim rather than remanding it to the ALJ, because doing so promotes administrative efficiency. (Alliance Judy Ivie Burton Technology Academy High School, et al (2022) PERB Decision No. 2809, pp. 23-24 [Board may exercise discretion to promote efficiency by resolving issues at Board level in the first instance]; PERB Reg. 32661, subd. (d) [where charging party files repugnancy claim, the Board itself “may, at any time, direct that the record be submitted to the Board itself for decision”].) (p. 7.)