PERB Tinkers With Its Deferral Policy

Claremont Unified School District (2014) PERB Decision No. 2357-E (Issued on 2/21/14)

This case involves an unfair practice charge filed by an individual employee alleging various acts of discrimination and interference with employee rights. The employer responded by asserting that the charge should be deferred to arbitration. Consistent with PERB’s application of the Collyer deferral standards, the Board agent requested and received confirmation from the employer that it was willing to arbitrate the dispute. The charge was then deferred to arbitration and dismissed.

Subsequently, the union notified the employee that it would not arbitrate some of the employee’s grievances. The employee cited to this “new” fact in his appeal of the dismissal. In reversing the dismissal, the Board revised its existing deferral procedures to take into account situations where the union may refuse to take a matter to arbitration. The Board stated the following:

We also take this opportunity to revise PERB’s deferral procedures. We hold that, in cases where the affirmative defense of deferral is asserted and the charging party cannot invoke binding arbitration independent of the exclusive representative, the Office of the General Counsel, as part of its initial investigation into the appropriateness of deferral, shall determine not only whether the employer, but also whether the exclusive representative, is ready and willing to proceed to arbitration before deferring the matter to arbitration.

Comments:

The main holding of this case seems reasonable enough. The more fascinating part of this case appears in a couple of footnotes.
In footnote 12, the Board notes that this decision is based on the statutory language of EERA which does not require deferral to arbitration where it would be “futile.” The Board expressly states that this case does not address “related questions as to the appropriateness and desirability of extending the Collyer Insulated Wire (1971) 192 NLRB 837 (Collyer) deferral policy to charges brought by individuals who have no independent access to the collectively-bargained grievance-arbitration procedures.” The Board then cites some of the history of the NLRB’s deferral policy which has flip-flopped over the years. For example, the Board notes that the NLRB expanded its deferral policy in National Radio Co. (1972) 198 NLRB 527, contracted it in General American Transportation Corp. (1977) 228 NLRB 808, and then expanded it again “several years after EERA was enacted.”
I have a couple of comments on footnote 12. The way the footnote is worded, it seems to me the Board is trying to set the stage for holding that it will not defer charges based on discrimination or interference. In Collyer, the charge at issue was an 8(a)(5) – unilateral change – charge. National Radio expanded Collyer to include 8(a)(3) – discrimination – charges. After National Radio, the NLRB routinely deferred 8(a)(3) and also 8(a)(1) – interference – charges. In General American Transportation, the NLRB changed its policy and began refusing to defer 8(a)(3) and 8(a)(1) charges. As the Board notes in the footnote, the NLRB then changed course again. I bet the Board would like to adopt the holding of General American Transportation. This would be consistent with Member Huguenin’s dissent in Trustees of the California State University (Long Beach) (2011) PERB Decision No. 2201-H, where he stated that he would not defer 8(a)(4)-type charges alleging discrimination for utilizing PERB’s processes. In essence, I think the Board is concerned about ceding authority to arbitrators over discrimination and interference issues.
But here’s my objection. Unlike the NLRA, where deferral is a NLRB-created doctrine, deferral to arbitration under EERA is based on statute. Therefore I do not think the Board can change course under EERA in the same manner the NLRB can under the NLRA. EERA was enacted in 1975 and took effect in 1976. National Radio was issued in 1972. General American Transportation was issued in 1977. So to the extent the California Legislature modeled EERA after the NLRA – and absent some piece of legislative history that I am not aware of – the deferral standard that the California Legislature would have looked at would be the one set forth in National Radio. If that’s the case, any change to that standard should come from the Legislature.
In footnote 14, the Board discusses the issue of “bifurcation.” This occurs where only part of a charge is subject to deferral to arbitration. When that occurs, the options are: 1) defer everything; 2) defer nothing; or 3) bifurcate the charge and defer only the portion covered by arbitration. The Board notes that “bifurcation” was a practice utilized when deferral was considered jurisdictional. The Board changed that in State of California (Department of Food and Agriculture) (2002) PERB Decision No. 1473-S. Because deferral is no longer considered jurisdictional, the Board states in this footnote that: “no allegation is appropriate for deferral, unless the entire matter is appropriate for deferral.” So while I like option #1, PERB makes it clear it is going with option #2.
Even before this decision, a savvy union could usually pick its forum by filing a grievance and demanding arbitration or by filing an unfair practice charge with PERB. I may not like it, but that’s the way it is. My main concern is that the union only gets one bite of the apple; that whatever forum it picks is the only forum that hears the dispute. Hopefully PERB agrees and will implement its deferral policies consistent with this principle.