| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2934E |
San Bernardino County Superintendent of Schools
605.02000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
While an employer can never unilaterally impose a statutory rights waiver, PERB decisions classify certain proposed statutory rights waivers as mandatory topics, others as permissive, and still others as illegal. These designations control whether an employer can insist to impasse on such waivers. The quintessential example of a statutory rights waiver that involves a mandatory bargaining topic is a no-strike clause. (Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, pp. 35-37.) Other statutory rights waivers, in contrast, are permissive, including a proposal for a union to contractually waive its right to file a grievance in its own name, or to waive its right to arbitrate without a grievant’s consent. (Mt. Diablo Unified School District (1990) PERB Decision No. 844, p. 2; Chula Vista City School District (1990) PERB Decision No. 834, pp. 18-23 & 31-35.) The same is true of proposals that a union waive statutory rights by withdrawing or settling a pending grievance, unfair practice charge, or lawsuit. (See, e.g., Lake Elsinore School District (1986) PERB Decision No. 603, pp. 6-9.) Still other statutory rights waivers are illegal, typically because external law sets an immutable and therefore non-waivable standard. (Berkeley Unified School District (2012) PERB Decision No. 2268, p. 9.) This category includes, for example, proposals to allow an employer to garnish employee wages without employee consent, thereby violating the California Labor Code. (Id. at pp. 9-11.) However, given that wages are a mandatory subject of bargaining, garnishment proposals are mandatory provided they do not conflict with external law. (Id. at p. 9; see Los Angeles Unified School District (2013) PERB Decision No. 2326, pp. 14-15 [parties cannot negotiate away or waive rights guaranteed by statute, but “may agree to incorporate an external law-derived right into the collective bargaining agreement,” and/or negotiate “more generous terms” or other agreements “in areas left unaddressed by the external law”].) (pp. 21-22.) more or view all topics or full text. |
49 | 117 | 12/20/24 |
| 2934E |
San Bernardino County Superintendent of Schools
605.02000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
If a bargaining proposal includes a mix of permissive and mandatory topics, or if it is unclear whether the proposal is partially or wholly permissive, the receiving party cannot flatly refuse to bargain. Instead, it must seek in good faith to clarify the proposal and clearly state its willingness to bargain over any aspects of the proposal involving a mandatory bargaining topic. (Cerritos Community College District (2022) PERB Decision No. 2819, pp. 23-24, fn. 9; City of Palo Alto (2017) PERB Decision No. 2388a-M, p. 33; Healdsburg Union High School District and Healdsburg Union School District/San Mateo City School District (1984) PERB Decision No. 375, pp. 9-10.) Thus, a party must bargain over mandatory subjects even though in doing so it must address proposals that also touch on permissive subjects. (Anaheim Union High School District (2016) PERB Decision No. 2504, p. 11 [finding such a circumstance “neither unprecedented nor particularly troubling”].) (p. 19.) more or view all topics or full text. |
49 | 117 | 12/20/24 |
| 2934E |
San Bernardino County Superintendent of Schools
605.02000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Where a bargaining proposal is permissive, if the party receiving such a proposal effectively indicates that it will not bargain over the proposal because it is permissive, the proposing party must either withdraw the proposal by the time the parties reach a bona fide impasse, or otherwise demonstrate its willingness to reach an overall agreement without any concession by its counterpart on the permissive topic. (See Anaheim Union High School District (2016) PERB Decision No. 2504, p. 9 [party that objects to bargaining need not use any “magic words,” but must make it sufficiently clear that it “is unwilling to engage in further negotiations on the issue”]; State of California (Department of Personnel Administration) (2009) PERB Decision No. 2081-S, pp. 3-7 [context is critical in determining whether receiving party has unequivocally refused to bargain over permissive proposal and whether proposing party thereafter unlawfully insisted on the proposal to impasse]; Lake Elsinore School District (1986) PERB Decision No. 603, pp. 7-10 [same] (Lake Elsinore).) Thus, the proposing party may be able to lawfully maintain the proposal by specifying an alternate set of parameters—involving exclusively mandatory bargaining topics—on which it could reach agreement even in the absence of any concession on the permissive topic. (See Lake Elsinore, supra, p. 7 [although a party may not insist on permissive proposal as absolute requirement for agreement, permissive issue may have bearing on party’s position on economic matters or other mandatory proposals].) (pp. 18-19; see also p. 26, fn. 9 [a party that refuses to bargain over a permissive proposal must make it sufficiently clear that it “is unwilling to engage in further negotiations on the issue”].) more or view all topics or full text. |
49 | 117 | 12/20/24 |
| 2934E |
San Bernardino County Superintendent of Schools
605.02000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
If a party insists to impasse on an illegal proposal, that constitutes a bargaining violation irrespective of whether or how its counterpart responded to the proposal. (City of San Jose (2013) PERB Decision No. 2341-M, p. 44.) (p. 18.) more or view all topics or full text. |
49 | 117 | 12/20/24 |
| 2934E |
San Bernardino County Superintendent of Schools
605.02000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
A principle of good faith bargaining allows a party to make proposals on permissive bargaining topics but prohibits such a party, at the time of impasse or thereafter, from conditioning its willingness to sign an overall agreement on its counterpart conceding to a permissive or illegal proposal. PERB refers to this as “insisting to impasse” on a permissive or illegal proposal. (p. 17.) “Permissive” describes subjects about which parties need not bargain, although they may choose to do so. (Oakland Unified School District (2024) PERB Decision No. 2875, p. 3, fn. 4.) PERB sometimes refers to such topics as falling outside the “scope of bargaining” or “scope of representation.” (Ibid.) In contrast, an illegal proposal is one that parties cannot lawfully agree upon. (City of San Jose (2013) PERB Decision No. 2341-M, pp. 43-44 (San Jose).) (p. 17, fn. 6.) more or view all topics or full text. |
49 | 117 | 12/20/24 |
| 2934E |
San Bernardino County Superintendent of Schools
601.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
In determining whether a party has violated its duty to bargain in good faith, PERB uses a “per se” test or a “totality of conduct” analysis, depending on the specific conduct involved. (City of Arcadia (2019) PERB Decision No. 2648-M, p. 34.) Per se violations generally involve conduct that violates statutory rights or procedural bargaining norms. (Id. at pp. 34-35.) Unlike the totality of conduct analysis, a per se violation requires no inquiry into the respondent’s subjective intent or finding of bad faith. (Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, p. 15.) (pp. 15-16.) more or view all topics or full text. |
49 | 117 | 12/20/24 |
| 2934E |
San Bernardino County Superintendent of Schools
101.02000: PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES; Conflicts Between PERB-Administered Laws and Other California Statutes; Education Code/Supersession; MMBA Supersession
Bargaining parties can agree to more generous terms than those set out in the Education Code, if doing so strengthens the Education Code’s provisions rather than annulling them. (Cerritos Community College District (2022) PERB Decision No. 2819, p. 21; Los Angeles Unified School District (2013) PERB Decision No. 2326, pp. 14-15.) The Education Code sets a floor regarding entitlement to holiday pay, but bargaining over the timing of holiday accrual and payment can strengthen the statutory provisions. Indeed, the Education Code invites more generous accrual terms. (Ed. Code § 45203, 4th par. [clarifying that statutory language on holiday pay shall not be interpreted as barring employer “from providing holiday pay for employees who have not been in paid status on the days specified herein”].) Timing of accrual and/or payment is normally a mandatory topic. (See, e.g., Laguna Salada Union School District (1995) PERB Decision No. 1103, pp. 11-13 & fn. 13 [employer must bargain over “how and when” employees are paid].) The Board harmonized that general principle with its finding that the Education Code includes a default provision for holiday accrual requirements allowing more generous provisions, to find that the employer did not violate EERA in proposing to continue the parties’ longstanding non-traditional practice regarding accrual and payment of holiday pay. Moreover, because the parties’ longstanding agreement was a beneficial pay practice and not a statutory waiver, its terms remained the status quo at the end of the parties’ CBA. (pp. 25-27.) more or view all topics or full text. |
49 | 117 | 12/20/24 |
| 2934E |
San Bernardino County Superintendent of Schools
101.02000: PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES; Conflicts Between PERB-Administered Laws and Other California Statutes; Education Code/Supersession; MMBA Supersession
“Because EERA exists alongside the Education Code, the former gives way to the latter when there is a specific conflict between the statutes.” (Cerritos Community College District (2022) PERB Decision No. 2819, p. 20 (Cerritos); Gov. Code, § 3540 [EERA “shall not supersede other provisions of the Education Code”].) However, “the Education Code’s supersession over EERA is not absolute.” (Cerritos, supra, p. 20.) Rather, as the California Supreme Court first explained in San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, parties may bargain over matters the Education Code regulates, provided that its provisions would not be “replaced, set aside or annulled by the language of the proposed contract clause.” (Id. at p. 864.) In other words, the Education Code does not “fully occupy the field” on any subject, and bargaining is permitted to the extent a proposal “would not supersede the relevant part of the Education Code” and instead “would strengthen it.” (Id. at p. 866.) Thus, the Education Code precludes bargaining only to the extent it “clearly evidences an intent to set an inflexible standard or insure immutable provisions.” (Id. at pp. 864-865.) Notably, the Supreme Court has repeatedly reaffirmed these principles since first announcing them. (See, e.g., United Teachers of Los Angeles v. Los Angeles Unified School Dist. (2012) 54 Cal.4th 504, 515-516; Board of Education v. Round Valley Teachers Assn. (1996) 13 Cal.4th 269, 286.) Accordingly, there is a duty to bargain whenever the Education Code leaves discretion as to terms or conditions of employment, and the parties may agree to “additional employee protections beyond those provided in the Education Code” if they do not circumvent or eviscerate mandatory statutory provisions. (Cerritos, supra, p. 22; San Francisco Unified School District (2009) PERB Decision No. 2040, p. 5, fn. 4.) (pp. 22-23.) more or view all topics or full text. |
49 | 117 | 12/20/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1107.12000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Interlocutory Appeal
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.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1107.06000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; De Novo Review; Standard of Review by Board
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.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions
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.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
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.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
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.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
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.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
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.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
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.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
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.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
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.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
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.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration
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.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1102.02000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Post Arbitration; Repugnancy
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.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1102.02000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Post Arbitration; Repugnancy
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.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1102.02000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Post Arbitration; Repugnancy
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.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1102.02000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Post Arbitration; Repugnancy
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.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
| 2926S |
State of California (Department of Corrections and Rehabilitation)
1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration
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.) more or view all topics or full text. |
49 | 80 | 10/22/24 |
ePERB Portal Status: Operational
The ePERB Portal services have been restored. Thank you for your patience.
Notice Regarding Use of Generative Artificial Intelligence (“AI”) at PERB
For information about use of AI in PERB filings, see Atwater Elementary Teachers Association, CTA/NEA (Garcia) (2025) PERB Decision No. 2995-E and our FAQ.
