County of Santa Clara (2020) PERB Dec. No. Ad-482-M (Issued on 11/2/20)
The statutory language of EERA, the Dills Act, and JCEERA provides for the deferral of an unfair practice charge to arbitration where certain conditions are met. For example, EERA provides that PERB may not “[i]ssue 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(a)(2).) An unfair practice charge that is deferred to arbitration under one of these acts is dismissed. (PERB Reg. 32620(b)(5).) That dismissal is then appealable to the Board. (PERB Reg. 32635.)
In contrast, HEERA, TEERA, the Trial Court Act, and the Court Interpreter Act do not contain statutory language deferring unfair practice charges to arbitration. However, PERB has promulgated a deferral policy via its regulations. (PERB Reg. 32620(b)(6).) Because deferral is not authorized by statute the regulation does not require the dismissal of an unfair practice charge that is deferred to arbitration. Instead, such a charge is placed in abeyance. (PERB Reg. 32620(b)(6).) The MMBA is unique in that it directly provides for the abeyance of an unfair practice charge deferred to arbitration in its statutory language.
The issue in this case was one of first impression: whether an order placing an unfair practice charge in abeyance pending arbitration is immediately appealable to the Board. The administrative decision stated that the deferral order was an interlocutory order and therefore not immediately appealable. After analyzing the regulations, PERB concluded that an order placing an unfair practice charge in abeyance is not an interlocutory order. PERB reasoned that once a charge is deferred to arbitration, “the charging party is no longer able to fully litigate the charge allegations before PERB.” This is because once arbitration is concluded the unfair practice charge is dismissed and only subject to repugnancy review. (PERB Reg. 32620(b)(6).) Accordingly, PERB held that an order placing a charge in abeyance pending arbitration is immediately appealable to the Board.