Deferral To Arbitration: One Board Member Signals A Future Change

Trustees of the California State University (Long Beach) (2011) PERB Decision No. 2201-H (Issued on 9/13/11)

This case involved an unfair practice charge by a University lecturer alleging that the California State University retaliated against her for filing grievances and a prior PERB unfair practice charge. The charge was initially deferred to arbitration under the applicable Memorandum of Understanding (MOU). An arbitration decision was issued. The employee, however, did not request “repugnancy review” of the arbitration decision within six months. Accordingly, the Board upheld the dismissal of the request for repugnancy review because it was not timely.

Member Huguenin filed a concurring opinion. According to Member Huguenin, if the initial deferral issue was before the Board, he would not have deferred to arbitration
a charge that an employee was discriminated against for utilizing PERB’s
procedures (e.g. filing an unfair practice charge, testifying at a PERB
hearing). The concurrence cited to Filmation Associates, Inc. (1977) 227 NLRB 1721, for the proposition that the NLRB would not defer to arbitration such claims. The concurrence goes on to state:

Like the NLRB, we must safeguard our processes from abuse and should not delegate the responsibility to protect employees who use our processes. Accordingly, I would treat allegations of discrimination or retaliation for accessing or participating in PERB’s remedial processes as matters for adjudication by PERB and not for disposition under our routine deferral rules.

Comments:

It’s interesting that Member Huguenin took the effort to state his position on this issue in this particular case. Under the facts, Member Huguenin’s concurrence was unnecessary, and legally, it is dicta. However, it absolutely signals to the labor community that he (and perhaps other Board members) would invite such an argument in the future. I’m sure it’s just a matter of time before a party asserts the position member Huguenin is advocating—and that’s probably his intent.
On the merits, Member Huguenin is correct in that the NLRB would not typically defer to arbitration a charge alleging discrimination for utilizing the board’s processes. Under Collyer Insulated Wire (1971) 192 NLRB 837, pre-arbitration deferral is not appropriate where the charge alleges a violation of Section 8(a)(4), which is the section prohibiting discrimination against employees for filing unfair labor practice charges or cooperating with the NLRB. While PERB generally follows Collyer, PERB’s standard for deferral is at least partially set forth in statute and/or regulation. Under EERA, PERB is prohibited from issuing a complaint “against conduct also prohibited by the provisions of the agreement between the parties until the grievance machinery of the agreement, if it exists and covers the matter at issue, has been exhausted, either by settlement or binding arbitration.” (Gov. Code, § 3541.5) There is no “8(a)(4)” exception. Similarly, PERB regulation 32620 provides that PERB must place in abeyance a charge arising under the MMBA, HEERA, TEERA, Trial Court Act or Court Interpreter Act if it is subject to final and binding arbitration pursuant to a collective bargaining agreement. Again, there is no “8(a)(4)” exception.
Despite the above statutory and regulatory language, could PERB adopt—via a precedential decision—an exception to pre-arbitration deferral for 8(a)(4)-type situations? Perhaps. However, I hope PERB seriously considers whether such a move is necessary and/or wise. I guess Member Huguenin’s fear is that an arbitrator may not have as much incentive to protect the integrity of PERB’s processes as PERB itself. Whether there is any evidence of this I don’t know. But I don’t see this as necessarily a pro-union or pro-employer decision. I like PERB and most times I’m perfectly happy going to PERB rather than an arbitrator. Indeed, many employers consider binding arbitration a “benefit” for the union and will eagerly refuse to arbitrate once a contract expires. So forcing the parties to go to PERB instead of an arbitrator is not always a benefit to the union. It will be interesting to see whether PERB takes any action on this issue in the next few years.