Decision A482M – County of Santa Clara

SF-CE-1688-M

Decision Date: November 2, 2020

Decision Type: Administrative Appeal

Description:  A Board agent deferred SEIU’s unfair practice charge to arbitration and placed the charge in abeyance pending the completion of arbitration proceedings. SEIU appealed the Board agent’s decision to the Board. The Appeals Office rejected the appeal for failure to comply with PERB Regulation 32200, which allows the Board to accept an appeal of an interlocutory order only when the Board agent joins in the appeal request.

Disposition:  The Board held that a Board agent’s decision to defer a charge to arbitration and place it in abeyance pending completion of arbitration proceedings is not an interlocutory order, and therefore PERB Regulation 32200 does not apply in such circumstances. Rather, the abeyance letter is an administrative decision that may be appealed directly to the Board pursuant to PERB Regulation 32360.

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Decision Headnotes

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

Because a Board agent’s decision to defer a charge to arbitration and place it in abeyance pending completion of arbitration proceedings substantially limits the charging party’s subsequent ability to pursue the allegations in the charge, such a decision is an administrative decision that may be appealed directly to the Board under PERB Regulation 32360. (pp. 10-11.)

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

To prove repugnancy, the charging party must show the arbitration award is “palpably wrong” or “not susceptible to an interpretation consistent with the Act.” Under this standard, the “possibility that this Board may have reached a different conclusion in interpreting the parties’ agreement and the evidence does not render the award unreasonable or repugnant.” (p. 9, fn. 11.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.12000 – Interlocutory Appeal

PERB Regulation 32200 allows the appeal of an interlocutory order to the Board only when the Board agent joins in the request. (p. 3, fn. 4.) Because pre-arbitration deferral has a substantial impact on the charging party’s subsequent ability to pursue the allegations in the charge, and to bring uniformity to PERB’s practice under the various statutes it administers, a Board agent’s decision to defer a charge to arbitration and place it in abeyance pending completion of arbitration proceedings is not an interlocutory order, and therefore PERB Regulation 32200 does not apply in such circumstances. Rather, such a decision is an administrative decision that may be appealed directly to the Board under PERB Regulation 32360. (pp. 8-11.)

PERB Regulation 32380, by its plain language, contemplates that an administrative decision may constitute an interlocutory order. Thus, administrative decisions and interlocutory orders are not mutually exclusive. (pp. 6-7.)

Although the Board has not yet fully delineated the scope of what constitutes an interlocutory order, interlocutory orders are not limited to rulings made in the course of a hearing. (p. 7, fn. 9.)

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

Because pre-arbitration deferral has a substantial impact on the charging party’s subsequent ability to pursue the allegations in the charge, and to bring uniformity to PERB’s practice under the various statutes it administers, a Board agent’s decision to defer a charge to arbitration and place it in abeyance pending completion of arbitration proceedings is an administrative decision that may be appealed directly to the Board under PERB Regulation 32360. (pp. 8-11.)

PERB Regulation 32380, by its plain language, contemplates that an administrative decision may constitute an interlocutory order. Thus, administrative decisions and interlocutory orders are not mutually exclusive. (pp. 6-7.)

The Board accepted an administrative appeal, even though it failed to specifically identify any factual, procedural, or legal errors in the appealed administrative decision as required by PERB Regulation 32360(c), where the appellant’s claim that it had already filed a valid administrative appeal gave the Board adequate notice of the primary issue on appeal. (p. 6, fn. 8.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.03000 – Regulations Considered (By Number) (Continued)

PERB Regulation 32200 allows the appeal of an interlocutory order to the Board only when the Board agent joins in the request. (p. 3, fn. 4.) Because pre-arbitration deferral has a substantial impact on the charging party’s subsequent ability to pursue the allegations in the charge, and to bring uniformity to PERB’s practice under the various statutes it administers, a Board agent’s decision to defer a charge to arbitration and place it in abeyance pending completion of arbitration proceedings is not an interlocutory order, and therefore PERB Regulation 32200 does not apply in such circumstances. Rather, such a decision is an administrative decision that may be appealed directly to the Board under PERB Regulation 32360. (pp. 8-11.)

The Board accepted an administrative appeal, even though it failed to specifically identify any factual, procedural, or legal errors in the appealed administrative decision as required by PERB Regulation 32360(c), where the appellant’s claim that it had already filed a valid administrative appeal gave the Board adequate notice of the primary issue on appeal. (p. 6, fn. 8.)

PERB Regulation 32380, by its plain language, contemplates that an administrative decision may constitute an interlocutory order. Thus, administrative decisions and interlocutory orders are not mutually exclusive. (pp. 6-7.)