The California Department of Corrections and Rehabilitation (CDCR) and SEIU Local 1000 were parties to a Collective Bargaining Agreement (CBA).
In April 2023, SEIU gave hats to employees working in the Correctional Supervising Cooks (CSC) classification that had the following slogans on the back: “SEIU Local 1000” and “Respect Us, Protect Us, Pay Us.” In late August 2023, CDCR allegedly disallowed the hats and threatened employees with writeups for noncompliance. SEIU raised the issue with management, but CDCR allegedly reiterated its prohibition and issued a counseling memorandum to a CSC who wore the hat.
SEIU filed an unfair practice charge, and the Public Employment Relations Board (PERB) Office of General Counsel issued a complaint alleging interference and retaliation. CDCR answered the complaint, denying the allegations and asserting affirmative defenses, including deferral to arbitration. The Administrative Law Judge (ALJ) granted CDCR’s deferral motion and dismissed SEIU’s charge. SEIU appealed to PERB.
PERB upheld the ALJ’s grant of dismissal. PERB then provided a comprehensive overview of its established pre-arbitration and post-arbitration deferral doctrine, and how that doctrine has evolved over time.
A party that seeks pre-arbitration deferral has the burden to establish that: 1) the dispute arises within a stable collective bargaining relationship; 2) the party is willing to waive procedural defenses and to arbitrate the merits of the dispute; 3) the CBA and its meaning lie at the center of the dispute; and 4) no exception to deferral applies. In order to establish the third element, the party seeking deferral must establish that the alleged unfair practice was arguably prohibited by the parties’ agreement, and that resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation.
If PERB considers deferral after the parties have completed arbitration and received the arbitrator’s final decision, PERB will typically 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.
In this case, multiple, interrelated claims were presented, including the claims for alleged interference with employee and union rights. PERB differentiates between independent claims, which can stand alone, and derivative claims, which hinge on the outcomes of others. PERB explained that when a claim is derivative, it doesn’t need a separate deferral justification if the independent claim is deferable.
Here, PERB found that the claims for interference with both employee and union rights shared the same facts, standards, and potential remedies, allowing both claims to be resolved together in arbitration without risking an incomplete resolution. PERB explained that SEIU’s claim for interference with the union’s own rights, was derivative of the claim for interference with employee rights. PERB found that deferral to arbitration applied to both claims, even though SEIU argued that the claims required separate handling. PERB thus deferred both claims to arbitration and dismissed SEIU’s complaint.
State of California (Department of Corrections and Rehabilitation) (2024) PERB Dec. No 2926-S.