PERB Modifies Its Deferral Policy

Trustees of the California State University (East Bay) (2014) PERB Decision No. 2391-H (Issued on 9/02/14)

The facts in this 50-page decision are voluminous and complex.  But here’s what you need to know.  An employee filed a grievance alleging that his termination was without “just cause” and other contractual violations.  The grievance advanced to arbitration.  The employee also filed an unfair practice charge alleging that his termination was in retaliation for protected activity under HEERA.  The University moved to defer the unfair practice charge to arbitration.  The Administrative Law Judge (ALJ) granted the deferral motion.  With respect to the employee’s termination, the ALJ reasoned that consideration of “just cause” necessarily requires consideration of the employee’s retaliation claims.  Therefore, the ALJ ruled, the Collyer standards for deferral were satisfied.

While affirming the rest of the ALJ’s decision and affirming the dismissal, the Board took the opportunity to modify its deferral policy. The Board noted that under the National Labor Relations Act (NLRA), unfair labor practice charges alleging retaliation for protected activity under the NLRA are not deferred to arbitration.  (Filmation Associates, Inc. (1977) 227 NLRB 1721 (Filmation).)  In Filmation, the National Labor Relations Board (NLRB) held that “the duty to preserve the Board’s processes from abuse is a function of this Board and may not be delegated to the parties or to an arbitrator.”  Accordingly, the policy of the NLRB has been not to defer unfair labor practice charges alleging retaliation for protected activity under the NLRA—what are termed 8(a)(4) charges.

Finding the same public policy concerns exist under PERB, the Board adopted the Filmation standard and held that:

For these reasons, we determine that we will henceforth follow the rule enunciated in Filmation, supra, 227 NLRB 1721, and not defer unfair practice charges filed under HEERA that allege retaliation for filing PERB charges or otherwise participating in PERB processes.

The Board further held that this new rule will only apply prospectively.

Comments:

  1. This decision is not a surprise.  In 2011, Member Huguenin issued a dissent on this exact issue in California State University (Long Beach) (2011) PERB Decision No. 2201-H.  Back then, the Board was comprised of three members, two of whom were appointed by Governor Schwarzenegger.  Those Board members are gone and now the Board is fully comprised of appointees of Governor Brown.  With this change in composition, Member Huguenin’s position is now the position of the Board.
  2. If you look at the quote above, you’ll see that the Board specifies that this change applies to HEERA.  What about the other acts, such as EERA, MMBA and the Dills Act?  That’s the big question in my mind.  Under the NLRA, the policy on deferral is not based on statutory language but is a NLRB-created doctrine.  HEERA is similarly silent on deferral, which arguably allows PERB to craft what it considers to be an appropriate deferral policy.  However, under EERA, MMBA and the Dills Act, deferral to arbitration is set forth in statute.  The statutory language does not contain an exception for 8(a)(4)-type charges.  So in my opinion, there is a good argument that the Board on its own cannot alter the statutory deferral policy under EERA, MMBA and the Dills Act.
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