State of California (Department of Corrections) (California Correctional Peace Officers Association) * * * OVERRULED IN PART by repeal of former PERB Reg. 32646 and OVERRULED by multiple decisions, as recognized in State of California (Department of Corrections and Rehabilitation) (2024) PERB Decision No. 2926-S, pp. 16-19 * * * (PERB A231S)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
CALIFORNIA 	CORRECTIONAL
	PEACE
OFFICERS 	ASSOCIATION,
Charging
	Party,
v.
STATE
	OF
	CALIFORNIA
	(DEPARTMENT
OF
	CORRECTIONS) ,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
____________________ )
Case
	No.
	S-CE-509-S
Administrative
	Appeal
PERB
	Order
	No.
	Ad-231-S
April
	9,
	1992
Appearances:	
Roy
	J.
	Chastain,
	Labor
	Relations
	Counsel,
	for
State
	of
	California
	(Department
	of
	Corrections);
	Jeffrey	
A.
Diamond,
	Staff
	Legal 	Counsel,
	for 	California 	Correctional
	Peace
Officers
	Association.
Before
	Hesse,
	Chairperson; 	Camilli
	and
	Carlyle,
	Members.
DECISION
CAMILLI, 	Member:
	This
	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	appeal
	by
	the
	State
	of
California
	(Department
	of 	Corrections) 	(Corrections)
	to 	the
	PERB
administrative
	law
	judge's
	(ALJ)
	denial 	of
	its
	motion
	to 	dismiss
the
	complaint
	in 	this
	matter.
	The
	California 	Correctional
	Peace
Officers 	Association
	(CCPOA)
	opposed
	the 	appeal 	of
	this
	motion,
and
	requested 	oral
	argument. 	Oral 	argument
	was
	heard
	by
	the
Board 	on 	March
	10, 	1992.
The 	Board 	has 	reviewed 	the 	entire 	record 	as
	it
	concerns 	the
motion
	to 	dismiss, 	the 	ALJ's 	order 	denying 	the
	motion
	to 	dismiss,
Corrections' 	appeal 	of 	the 	order 	denying 	the 	motion
	to 	dismiss,
CCPOA's
	opposition 	to 	the 	appeal, 	and
	oral
	argument 	by 	both
* * * OVERRULED IN PART by repeal of former PERB Reg. 32646 and OVERRULED by multiple
decisions, as recognized in State of California (Department of Corrections and Rehabilitation)
(2024) PERB Decision No. 2926-S, pp. 16-19 * * *

parties.
	In
	accord
	with 	the
	following
	discussion,
	the
	AlJ's
order
	denying
	the
	motion
	to
	dismiss
	is
	affirmed.
PROCEDURAL
	BACKGROUl.J'D
Complaint·
The
	complaint
	in
	this
	matter
	alleges
	that
	David 	P.
	Prasinos
(Prasinos) 	exercised
	rights
	guaranteed 	to
	him 	by
	the
	Ralph
	C.
Dills
	Act
	(Dills
	Act
	or
	Act)
1
when
	he
	discussed
	a
	disciplinary
action 	in
	which 	he
	was
	represented
	by
	CCPOA
	with
	other
	employees.
It
	is
	further
	alleged
	that
	Corrections
	took 	adverse
	action
against
	Prasinos
	by
	dismissing
	him 	from 	employment 	and
	that
Prasinos
	was
	dismissed 	because
	he 	engaged
	in
	the 	above-described
activity.
	Finally, 	the
	conduct
	engaged
	in
	by
	Corrections
	is
alleged 	to
	have
	denied
	CCPOA
	its
	right
	to 	represent
	its
	members
in 	violation
	of
	section
	i519(b)
2
of 	the 	Dills
	Act.
Motion
	to
	Dismiss
On
	December
	4,
	1991,
	the
	Department
	of
	Personrtel
Administration
	(DPA),
	on
	behalf 	of 	Corrections,
	made
	a
	motion
to 	dismiss 	the 	complaint
	on
	the
	grounds
	that:
	(1)
	the
	conduct
alleged
	fails
	to 	state
	a
	prima
	facie 	violation
	of
1
Ralph
	C.
	Dills 	Apt.is 	codified
	at
	Government
	Code
	section
3512
	et
	seq. 	Unless 	o:tperwise
	indicated, ·all statutory
references 	herein 	are 	to 	the
	Government 	Code.
2
Section
	3519(b)
	provides 	in 	pertinent 	part:
It
	shall
	be 	unlawful 	for 	the 	state 	to
	do 	any
of 	the 	following:
(b) 	Deny
	to
	employee
	organizations 	rights
guaranteed 	to
	them 	by
	this 	chapter.
•
2

section
	3519(b);
	and 	(2)
	the
	conduct
	alleged
	is
	prohibited
	by
	the
parties'
	collective
	bargaining
	agreement
	(CBA),
	which
	contains
	a
grievance
	procedure 	culminating
	in
	binding
	arbitration,
	and
therefore
	must 	be
	dismissed
	on
	the
	grounds
	that
	it
	is
	deferrable
to
	arbitration.
Order
	Denying
	Motion
	to
	Dismiss
On
	December
	10, 	1991,
	the
	ALJ
	issued
	an
	order
	denying
	the
motion
	to
	dismiss
	on
	three
	grounds:
	(1)
	the
	charge
	alleged
	a
violation
	of
	section
	3519(b)
	of
	the
	Dills
	Act, 	while
	the
arguments
	in
	support 	of 	dismissal
	went
	to
	a
	section
	3519(a)
allegation;
	(2)
	the
	(b)
	charge
	was
	not
	covered
	by
	the
	CBA,
rendering
	deferral
	inappropriate,
	and 	(3)
	the
	additional
	charges
filed
	were
	not
	of
	sufficiently
	wide 	scope
	to 	necessitate 	granting
a
	continuance
	to
	DPA
	to
	prepare
	for 	hearing.
3
Appeal
	of
	Order
	Denying 	Motion
	to
	Dismiss
DPA,
	on
	behalf 	of 	Corrections, 	appeals 	the 	order
	denying
	its
motion
	to 	dismiss,
	on
	the
	ground
	that 	deferral
	to
	arbitration 	is
appropriate.
	DPA
	claims
	that
	the
	conduct 	complained
	of,
dismissal 	of
	officer
	Prasinos 	for 	discussing
	prior 	disciplinary
action
	taken
	against
	him,
	constitutes 	retaliation
	for
	engaging
	in
protected 	activity.
	This 	conduct,
	DPA
	contends,
	is
	addressed
	by
an
	allegation
	of
	a
	violation 	of 	section
	3519(a).
DPA
	points 	out
	that 	the 	language 	of 	section
	5.03 	of 	the
	CBA
mirrors 	section
	3519(a) 	and 	mandates
	alleged 	violations 	of 	the
3
The
	order 	stated 	that
	an
	oral
	motion would 	be 	considered
during 	hearing
	if 	it
	became
	apparent 	that
	a
	continuance was,
	in
fact,
	needed.
·
3

section
	be
	processed
	through
	the
	grievance 	procedure.
	The
grievance
	procedure
	is
	contained
	in Article
	VI
	of 	the
	CBA,
	and
culminates
	in
	final
	and
	binding
	arbitration.
Section
	5.03
	of 	the
	CBA
	states:
a.
	The
	State
	and
	the
	Union
	shall
	not
	impose
or 	threaten 	to
	impose
	reprisals
	on
	employees,
to 	discriminate 	or 	threaten 	to 	discriminate
against
	employees,
	or
	otherwise
	to
	interfere
with,
	restrain
	or
	coerce
	employees
	because
	of
their
	exercise 	of
	rights
	guaranteed
	by
	the
State
	Employer-Employee
	Relations
	Act 	(Ralph
C.
	Dills'
	Act).
b.
	The
	requested
	remedy
	for
	violation
	of
this
	section
	shall
	be
	through
	the
	grievance
and
	arbitration
	procedure 	contained
	in 	this
Agreement,
	beginning
	at
	the
	departmental
(third) 	level.
	The
	employee
	and/or
association 	shall
	have
	thirty
	(30)
	days
	from
the
	act
	or
	occurrence
	of
	violation 	or
knowledge
	of
	the
	violation to
	file
	this
	type
of 	grievance
	at
	the
	departmental
	level.
c.
	Should
	the 	grievance 	eventuate
	in
arbitration,
	the
	Arbitrator's
.decision
	andaward
	shall
	be
	final
	and
	binding
	on
	all
	the
parties.
	The
	Arbitrator 	shall
	have
	full
authority 	to 	grant
	any
	appropriate
	remedy;
including, 	but 	not
	limited 	to,
	a
	remedy
	or
award 	which
	a 	PERB
	Administrative
	Law
	Judge
could
	grant.
d.
	If
	the
	Lake
	Elsinore 	decision
	is
overturned
	by
	the 	Courts, 	Public
	Employee
[sic] 	Relations
	Board
	or 	the 	Legislature,then
	this
	section
	may
	be
	re-opened.
DPA
	contends
	that
	the 	Board's 	majority 	opinions
	in 	State 	of
California 	(California
	Department
	of 	Forestry
	and
	Fire
Protection)
	(1989)
	PERB
	Decision
	No.
	734-S
	(Forestry
	and
	Fire)
and
	State
	of 	California
	{Department
	of 	Parks 	and
	Recreation)
(1990)
	PERB
	Decision
	Nos. 	810-S 	and 	810a-S 	(Parks 	and 	Recreation)
were
	incorrectly 	decided.
	The 	Board
	is
	urged 	to 	adopt 	the
4

position
	held
	by
	the
	dissent,
	on
	reconsideration,
	in
	Parks
	and
Recreation.
	DPA
	claims
	the
	Board
	should 	focus
	on
	the
	conduct
alleged,
	and
	not
	the
	rights
	claimed
	to
	have 	been
	violated,
	in
determining
	whether
	a
	matter
	must
	be
	deferred
	to
	arbitration.
DPA
	argues
	that
	the
	conduct
	alleged 	herein
	is
	the 	termination 	of
Prasinos,
	which
	is
	prohibited
	by
	the
	CBA,
	and
	therefore
	must 	be
dismissed
	and
	deferred 	to
	arbitration.
4
Lastly,
	DPA
	contends
	that
	the 	Legislature did
	not
	intend 	the
state
	be
	required 	to
	defend
	its
	actions 	in 	multiple
	forums,
	as
would
	occur
	if
	this
	matter
	were
	not 	dismissed.
Opposition
	to
	Appeal
	of
	Order
	Denying 	Motion
	to
	Dismiss
CCPOA
	opposes
	the
	appeal
	on
	both 	procedural
	and
	substantive
grounds.
	CCPOA
	argues
	that
	DPA's
	appeal
	is
	not
	properly before
the
	Board
	because:
	(1)
	the 	order
	appealed
	is
	not
	a
	final
	order,
in
	part
	because
	the
	ALJ
	retained 	jurisdiction
	as
	to
	certain
matters,
	and
	is,
	therefore,
	not 	appealablei
	(2)
	the
	ALJ
	did
	not
certify
	the 	order 	for
	appeal 	as
	required
	by
	PERB
	Regulation
32200
5 ;
	and 	(3)
	the 	order
	is
	interlocutory 	in 	nature,
	and
	cannot
be
	appealed 	under
	PERB
	Regulation
	32646.
CCPOA
	disagrees 	with
	DPA's
	contention
	that 	the 	appropriate
focus 	concerning 	the 	issue 	of
	deferral
	is
	on
	the
	conduct
	alleged.
Instead,
	CCPOA
	would 	have
	the
	Board
	determine 	whether
	the
	CBA
4DPA
	claims,
	and
	CCPOA
	does 	not 	rebut, 	that
	an
	allegation 	of
retaliatory
	discharge 	for
	engaging
	in protected 	activity 	iscurrently 	before 	an
	arbitrator.
5PERB
	Regulations 	are 	codified 	at 	California
	Code
	of
Regulations,
	title
	8, 	section
	31001
	et
	seq.
5

contains
	a
	grievance
	machinery
	which
	covers
	the 	matter
	at
	issue
and
	culminates
	in
	binding
	arbitration.
Furthermore,
	CCPOA
	argues
	that 	arbitration 	is
	a
	matter 	of
contract
	between
	the
	parties,
	and
	if
	a
	CBA
	does
	not
	contain
grievance
	procedures
	which
	cover
	the 	matter
	at
	issue,
	PERB
	cannot
defer 	to
	arbitration
	a
	matter
	which
	the
	parties
	did 	not 	agree
	to
arbitrate.
DISCUSSION
Procedural
	Arguments
In
	its
	motion
	to
	dismiss,
	DPA
	argues
	that
	the
	complaint
fails
	to 	state
	a
	prima
	facie
	case.
	The
	ALJ
	denied
	the
	motion
	to
dismiss 	the
	complaint,
	and
	also 	refused 	to
	certify
	the
	issue 	to
the
	Board
	itself.
	PERB
	Regulation
	32200
	states 	that
	the
	Board
may
	not
	accept
	an
	appeal 	of
	a
	motion
	or 	interlocutory 	matter
unless 	the
	Board
	agent
	joins 	in 	the 	request
	by
	certifying 	the
matter 	to 	the
	Board.
6
Therefore,
	this
	matter
	is
	not
	properly
before 	the
	Board.
With
	regard
	to
	CCPOA's
	argument
	that
	the 	appeal
	is
	not
properly 	before 	the
	Board,
	the 	proper
	PERB
	Regulation 	governing
an
	appeal 	of
	an
	ALJ 1 s
	denial 	of
	a
	motion
	to
	dismiss
	and
	defer
	a
6PERB
	Regulation
	32200
	states, 	in 	pertinent 	part:
A
party
	may
	object 	to
	a
	Board
	agent's
interlocutory 	order 	or 	ruling
	on
	a
	motion 	and
request
	a
	ruling
	by
	the
	Board
	itself
....
The 	Board
	agent
	may
	refuse 	the 	request, 	or
may
	join 	in 	the 	request
	and
	certify 	the
matter 	to 	the 	Board. 	The 	Board
	itself 	willnot 	accept 	the 	request 	unless 	the
	Board 	agent
joins 	in 	the 	request
....
6

complaint
	to
	binding
	arbitration
	is
	PERB
	Regulation
	32646,
	which
states:
{a)
	If
	the
	respondent
	believes
	that
	issuance
of 	the
	complaint
	is
	inappropriate
	either
because
	the 	dispute
	is
	subject 	to
	final
	and
binding
	arbitration,
	or
	because
	the
	charge
	is
untimely,
	the
	respondent
	shall 	assert
	such
	a
defense
	in
	its
	answer
	and
	may
	move
	to
	dismiss
the
	complaint,
	specifying
	fully
	the
	legal
	and
factual
	reasons
	for
	its
	motion.
	The
	motionand
	all
	accompanying 	documents
	shall
	be
served
	on
	the 	charging
	party.
	The
	charging
party
	may
	respond
	to 	the 	respondent's
	motion
within
	10
	days
	after
	service 	or 	within
	a
lesser
	period 	of
	time
	set
	by
	the
	Board
	agent.
The
	Board
	agent
	shall
	inquire 	into
	the
	issues
raised
	by
	the
	motion,
	and
	shall
	dismiss 	the
complaint
	and
	charge
	if
	appropriate.
	If
	the
Board
	agent
	sustains 	the
	motion,
	the
dismissal
	may
	be
	appealed
	to
	the
	Board
	itself
in	
accordance
	with
	section
	32635.
(b)
	If
	the
	Board
	agent 	determines
	that
	thedefenses
	raised
	by
	the
	respondent 	pursuant
	tosection
	32646(a)
	do
	not
	require 	dismissal 	of
the
	complaint,
	the
	Board
	agent
	shall
	deny
	the
respondent's
	motion,
	specifying 	the
	reasons
for 	the 	denial.
	The
	Board
	agent's 	denial 	of
respondent's
	motion
	to 	defer
	an
	unfair
practice
	charge
	to 	final
	and
	binding
arbitration
	may
	be
	appealed
	to 	the
	Board
itself
	in
	accordance with 	the
	appeal
procedures
	set
	forth 	in 	section
	32635.
(Emphasis
	added.)
As
	PERB
	Regulation
	32646(b)
	expressly 	provides 	for
	an
	appeal
of
	a
	Board
	agent's 	denial 	of
	a
	motion
	to 	dismiss
	and
	defer
	a
complaint 	to 	arbitration,
	CCPOA's
	contention
	that
	the 	order 	in
this
	case
	is
	not 	appealable
	is
	without 	merit.
	(Inglewood
	Unified
School
	District
	(1991)
	PERB
	Order
	No.
	Ad-222.)
Concerning
	CCPOA's
	claim
	that 	the 	order 	is
	not
	final, 	the
order 	rules
	on 	DPA's 	motion 	to 	dismiss.
	The
	ALJ's 	ruling 	on 	the
7

motion 	to 	dismiss 	is, 	therefore, 	final, 	and 	the 	appeal 	is
properly 	before 	the 	Board.
Deferral 	to 	Arbitration
In 	Lake 	Elsinore 	School 	District 	(1987) 	PERB 	Decision
No. 	646 	(Lake 	Elsinore), 	the 	Board 	considered 	the 	language
contained 	in 	section 	3541.5 	of 	the 	Educational 	Employment
Relations 	Act 	(EERA) 7 which 	provides, 	in pertinent 	part:
Any 	employee, 	employee 	organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice 	charge 1 	except 	that 	the 	board
shall 	not 	... 	issue 	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 ....
The 	Board 	found 	that 	the 	above-cited 	language 	was 	intended 	by 	the
Legislature 	to 	operate 	as 	a 	jurisdictional 	limitation on 	the
Board's 	authority 	to 	issue 	a 	complaint where 	the 	matter 	is
covered 	by 	the 	parties' 	grievance 	procedures 	and 	binding
arbitration. 8 The 	Board 	also 	stated, 	"In 	reaching 	this
conclusion, 	this 	Board 	recognizes 	the 	strong 	policy 	in 	California
in 	favor 	of 	arbitration 	and 	that 	provisions 	of 	EERA 	embody 	such 	a
policy. 11 	(Lake 	Elsinore, 	id., 	p. 	26.)
7EERA 	is 	codified· at 	Government 	Code 	section 	3540 	et 	seq.
8 Identical 	languag~ 	is 	found 	at 	section 	3514.5(a) 	of 	the
Dills 	Act, 	and 	the 	Board 	has 	held 	that 	Lake 	Elsinor~ applies 	to
cases 	arising 	under 	the 	Dills 	Act. 	(Forestry 	and 	Fire 	(1989)
PERB 	Decision 	No: 	734-S, 	Warning 	letter, 	p. 	2.)
-
8

In
	Parks
	and
	Recreation, 	supra, 	the
	Board
	found
	that
	a
denial
	of
	an 	employees'
	right
	to 	representation
	constitutes
	a
violation
	of
	section
	3519(a)
	of 	the
	Dills
	Act,
	and
	that
	an
employee
	organization
	has
	a
	concurrent
	right
	to
	represent
employees
	at
	investigatory
	interviews.
	The
	parties'
	CBA
contained
	a
	provision
	virtually 	identical 	to 	section
	3519(a)
	of
the
	Act,
	and
	also
	contained
	a
	grievance 	procedure
	which
	provided
for
	binding
	arbitration.
	In 	applying
	Lake
	Elsinore
	to 	the 	facts
and
	allegations
	before
	it,
	the
	Board
	held:
....
	where
	conduct
	allegedly
	violates
	both
employee 	and 	employee
	organization
	rights,
and
	the
	parties'
	collective
	bargaining
agreement
	only
	prohibits
	the
	violation
	of
employee
	rights,
	only
	the
	employee
	charge
should
	be
	deferred.
(Parks
	and
	Recreation, 	supra,
	PERB
	Decision
	No.
	810-S, 	p. 	6,
citing
	Forestry
	and
	Fire,
	supra.)
In 	applying
	Lake
	Elsinore
	and
	its
	progeny
	to 	the 	case
presently
	before 	the
	Board,
	we
	look
	to 	the
	parties'
	CBA
	to
determine
	if
	the 	grievance
	machinery
	of 	the
	agreement
	covers 	the
matter
	at
	issue
	and
	culminates
	in
	binding
	arbitration.
	If
	so,
	it
shall
	be
	deferred 	to
	arbitration.
Section
	5.03
	of 	the
	CBA,
	supra, 	contains
	language
	virtually
identical 	to 	section
	3519(a)
	of 	the 	Dills
	Act, 	and,
	in 	fact,
expressly 	refers 	to 	the 	Act.
	The
	CBA
	also 	provides
	that 	the
"remedy
	for 	violation 	of
	this 	section 	shall
	be 	through 	the
grievance
	and
	arbitration
	procedure 	contained
	in 	this
9

Agreement,"
	supra.
	Article
	VI
	of
	the
	CBA
	contains
	a
	grievance
procedure
	which
	culminates
	in
	final
	and
	binding
	arbitration.
9
Although 	the.
CBA
	does
	contain
	a
	grievance 	procedure
	which
culminates
	in
	binding
	arbitration,
	and 	which 	would
	cover 	an
allegation
	of
	interference
	with
	or 	discrimination 	against
employee
	rights,
	the
	grievance procedure
	in
	this
	case
	does
	not
cover
	the
	matter
	at
	issue 	herein,
	i.e.,
	an
	alleged 	denial
	to
	an
employee
	organization 	of
	its
	rights
	under
	the
	Dills
	Act.
10
Based
upon
	all
	of 	the
	above,
	and
	in
	accord 	with
	Lake
	Elsinore
	and
	its
progeny,
	the
	allegations
	contained
	in
	the
	complaint
	in
	this
matter 	are
	not
	deferrable 	to
	arbitration.
CCPOA's
	argument
	that
	the
	Board
	cannot
	make
	arbitrable 	that
which·
the
	parties
	did 	not 	agree
	to
	arbitrate 	is
	well 	taken.
Arbitration
	is
	a
	creature
	of
	contract.
	An
	arbitrator's
	authority
is
	derived
	from 	and
	limited
	by
	the
	parties'
	agreement
	to
arbitrate.
	California
	Code
	of 	Civil
	Procedure,
	section
	1281.2;
Meat
	Cutters
	Local
	No.
	439	
v.	
Olson
	Brothers, 	Inc.
	(1960) 	186
9
section
	6.16
	of 	the
	CBA
	states:
a.
	The
	decision 	of 	the
	arbitrator 	shall
	be
final
	and
	binding.b.
	The
	arbitrator 	shall
	have
	no
	authority 	to
add
	to, 	delete, 	or
	alter
	any
	provisions 	of
this
	Agreement,
	or
	any 	agreements
supplementary
	thereto, 	but 	shall 	limit 	the
decision 	to 	the 	application
	and
interpretation 	of
	its
	provisions.
foThe
	fact 	that 	the 	Association
	may
	be
	a 	named
	grievant,
either 	as
	a
	result 	of
	CBA
	language 	or 	case 	law,
	is 	irrelevant.
The
	matter 	at 	issue,
	an 	alleged 	denial 	of
	CCPOA's
	rights 	granted
it
	by 	the 	Act,
	is 	not 	grievable 	under 	the
	CBA.
10

Cal.App. 	2d 	200 	[8 	Cal.Rptr. 	789]; 	Unimart 	v. 	Sunerior 	Court
(1969) 	1 Cal.App. 	3d 	1039 	(82 	Cal.Rptr. 	249]. 	In 	the 	present
case, 	the 	CBA 	expressly 	states 	that 	an 	arbitrator 	must 	limit 	his
or 	her 	decision 	to 	the 	application 	and 	interpretation 	of 	the
provisions 	of 	the 	agreement. 	See 	footnote 	9, 	supra. 	In 	this
case, 	therefore, 	an 	arbitrator would 	not 	have 	the 	authority 	to
determine 	whether 	the 	conduct 	alleged 	violated 	the 	rights 	granted
to 	the 	Association 	by 	the 	Act. 	Focussing 	on 	conduct 	as 	the 	sole
criterion on 	the 	issue 	of 	deferral 	serves 	only 	to 	ensure 	that 	the
(b) 	allegation will 	never 	be 	addressed, 	as 	there 	is 	no 	forum 	for
doing 	so. 	Therefore, 	the 	Board 	finds 	the 	policies 	of 	the 	Act 	are
furthered 	by 	providing 	a 	forum 	for 	the 	adjudication 	of 	rights
granted 	therein. 11
In 	sum, 	the 	Board 	declines 	the 	invitation 	to 	overrule 	prior
precedent 	and 	adopt 	the 	position 	taken 	by 	the 	dissent 	on
reconsideration 	in 	Parks 	and 	Recreation.
ORDER
The 	Board AFFIRMS 	the 	ALJ's-order 	denying 	the 	motion 	to
dismiss 	the 	complaint, 	and 	REMANDS 	this 	case 	to 	the 	Chief
11Although 	the 	Board 	recognizes 	the 	judicial 	inefficiency 	of
litigating, 	in 	separate 	forums, 	matters 	which 	arise 	out 	of 	the
same 	conduct, 	this 	can 	be 	alleviated by 	incorporating 	(b)
allegations 	into 	a 	CBA 	along 	with 	(a) 	allegations, 	and 	making
them 	subject 	to 	a 	grievance 	procedure 	which 	culminates 	in 	binding
arbitration.
- 	.
11

Administrative
	Law
	Judge
	to
	be
	processed
	iri
	accordance
	with
	PERB
regulations.
Member
	Carlyle 	joined
	in
	this
	Decision.
Chairperson 	Hesse's
	dissent
	begins
	on
	page
	13.
12

HESSE,
	dissenting:
	As
	previously
	stated 	in
	Lake
	Elsinore
School
	District
	(1987)
	PERB
	Decision
	No.
	646
	(Lake
	Elsinore)
	,
	my
dissent
	in 	State
	of
	California
	(Department
	of
	Parks
	and
Recreation)
	(1990)
	PERB
	Decision
	No.
	810a-S
	(Parks
	and
Recreation),
	and
	my
	concurrence
	in 	California 	State 	University,
San
	D~ego
	(1991)
	PERB
	Decision
	No.
	890-H,
	I
	find
	that
	the 	Public
Employment
	Relations
	Board
	(PERB
	or
	Board)
	does
	not
	have
jurisdiction
	over
	an
	unfair 	practice
	charge
	if:
	(1)
	the
grievance
	procedure
	of 	the
	parties'
	collective
	bargaining
agreement
	(CBA)
	culminates
	in
	binding
	arbitration;
	and 	(2)
	the
conduct
	alleged
	in
	the
	unfair 	practice
	charge
	is
	arguably
prohibited
	by
	the
	parties'
	CBA. 1
Section 	3514.5(a)(2) 	of 	the
	Ralph
	C.
	Dills
	Act
	(Dills
	Act)
specifically 	states 	that
	the
	Board
	shall
	not:
...
	issue
	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.
	(Emphasis
	added.)
Lake
	Elsinore 	interpreted 	the 	exact
	language
	in 	section
	3541.5
	of
the 	Educational
	Employment
	Relations
	Act
	(EERA).
	Based 	on
	the
statutory
	language,
	the
	Board 	found
	that
	if
	the
	conduct
	is
arguably 	prohibited
	by
	the
	CBA
	and
	the 	grievance 	procedure
culminates 	in
	binding
	arbitration,
	then
	PERB
	has
	no
	jurisdiction
over 	the 	unfair 	practice
	charge.
1As 	PERB
	Regulation 	32646(b) 	expressly 	provides 	for 	an
appeal 	of 	an 	administrative 	law 	judge's 	denial 	of
	a
	motion 	to
dismiss 	and 	defer
	a
	complaint 	to 	binding 	arbitration,
	I
	agree
with 	the 	majority 	that 	this 	appeal 	is 	properly 	before 	the 	Board.
13

This 	case 	involves 	the 	termination 	of 	an 	officer which
resulted 	in 	alleged 	discrimination 	and 	interference 	violations 	of
section 	3519(a) 	and 	(b) 	of 	the 	Dills 	Act. 	While 	the 	section
3519(a) 	allegations 	are 	being 	litigated 	in 	binding 	arbitration,
the 	section 	3519(b) 	allegations 	are 	before 	PERB.
·The 	alleged 	conduct 	is 	Department 	of 	Correction's
termination 	of 	Officer 	David 	P. 	Prasinos. 	This 	conduct 	is
alleged 	to 	violate 	section 	3519(b) 	of 	the 	Dills 	Act. 	However,
this 	conduct 	is 	arguably 	prohibited 	by 	the 	parties' 	CBA, 	which
has 	a 	grievance 	procedure 	culminating 	ip 	binding 	arbitration.
(See 	section 	5.03 2 and 	6.01 	through 	6.17 3 of 	the 	CBA.J 	The 	fact
that 	the 	same 	conduct 	may 	constitute 	a 	violation 	of 	section
3519(b) 	cannot 	be 	used 	to 	defeat 	the 	jurisdictional 	bar 	of
section 	3514.5(a)(2). 	(See 	Lake 	Elsinore, 	supra, 	PERB 	Decision
No. 	646.) 	By 	is~uing 	a 	complaint 	alleging 	a 	violation 	of 	section
3519(b), 	the 	Board 	is 	issuing 	a 	complaint 	against 	conduct
arguably 	prohibited 	by 	the 	parties' 	CBA.
2Section 	5.03(a) 	of 	the 	CBA 	states 	that:
The 	State 	and 	the 	Union 	shall 	not 	impose 	or 	threaten 	to
impose 	reprisals 	on 	employees, 	to 	discriminate 	or
threaten 	to 	discriminate 	against 	employees, 	or
otherwise 	to 	interfere 	with, 	restrain 	or 	coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed 	by 	the 	State 	Employer-Employee 	Relations 	Act
(Ralph 	C. 	Dills' 	Act).
3Section 	6.16(a) 	of 	the 	CBA 	states 	that 	"[t]he 	decision 	of
the 	arbitrator 	shall 	be 	final 	and 	binding."
.
14

Further, 	the
	grievance
	and
	arbitration
	procedures
	allow
California
	Correctional
	Peace
	Officers
	Association
	(CCPOA)
	to
	be
a
	name
d
	grievan
	. 4	
Section 	6.02(a)
	defines
	grievance
	as:
. 	. 	a
	dispute
	of
	one
	or
	more
	employees
	or
	a
dispute
	between
	CCPOA
	and
	the
	State
	involving
the
	interpretation,
	application 	or
enforcement
	of
	the 	provisions 	of
	this
Agreement,
	or
	involving
	a
	law,
	policy 	or
procedure 	concerning 	employment-related
matters 	not
	covered
	in
	this
	Agreement 	and
	not
under
	the
	jurisdiction
	of 	the
	State
	Personnel
Board
	(SPB).
Section
	6.02(c)
	defines
	a
	party
	as
	11
CCPOA,
	an 	employee
	or
	the
State."
	Based 	on
	the 	provisions
	of 	the
	CBA,
	the
	conduct
	is
arguably
	prohibited
	by
	the
	parties'
	CBA
	and
	the
	grievance
	and
arbitration
	procedures 	cover
	the 	matter. 	Therefore,
	I
	would
dismiss
	and
	defer 	the
	unfair 	practice
	charge
	and
	complaint
	to
binding
	arbitration.
Further,
	I
	disagree
	with
	the
	CCPOA's
	interpretation
	of 	State
of
	California 	(California
	Department
	of 	Forestry
	and
	Fire
Protection)
	(1989)
	PERB
	Decision
	No.
	734-S
	(Forestry
	and
	Fire
Protection).
	Consistent 	with
	my
	previousrposition, 	the present
case
	is
	distinguishable
	from
	the 	Board's 	decision 	in 	Forestry
	and
Fire 	Protection, 	supra,
	PERB
	Decision
	No.
	734-S.
	In 	Forestry
	and
Fire 	Protection, 	the
	Board
	was
	confronted with
	two
	employer
statements
	which
	allegedly 	interfered
	with 	the
	employees'
	rights
and 	employee
	organization's 	rights.
	The 	Board 	found 	one
	of 	the
4
Even
	if
	the 	parties'
	CBA
	were
	silent
	on
	this 	issue, 	the
Board 	has 	held 	that 	the 	exclusive 	representative 	has 	the
statutory 	right 	to 	file
	grievances 	in
	its
	own 	name. 	(Chula 	Vista
City 	School
	District
	(1990)
	PERB
	Decision
	No. 	834,
	Mt.
	Diablo
Unified 	School
	District
	(1990)
	PERB
	Decision
	No. 	844, 	review
denied.)
. 	t
-
15

alleged 	statements 	was 	directed 	toward 	the 	employee 	organization
and, 	therefore, 	stated 	a 	prima 	facie 	case 	of 	interference 	with
the 	employee 	organization 1 s 	rights 	in 	violation 	of 	section
3519(b) 	of 	the 	Dills 	Act. 	The 	Board 	did 	not 	find 	that 	this
alleged 	statement 	also 	interfered with 	the 	employees 1 	rights.
Rather, 	the 	alleged 	threat 	was 	directed 	against 	the 	employee
organization. 	Unlike 	Parks 	and 	Recreation, 	the 	Board 	did 	not
find 	the 	same 	conduct was 	arguably 	prohibited by 	the 	parties 1 	CBA
and 	also 	constituted 	a 	prima 	facie 	violation 	of 	the 	Dills 	Act.
Finally, 	CCPOA 1 s 	reliance 	on San 	Diego 	County 	Office 	of
Education 	(1991) 	PERB 	Decision No. 	880 	(San 	Diego) 	is 	misplaced.
San 	Diego 	involved 	a 	post-arbitration 	situation, 	wherein 	an
arbitration award 	had 	issued. 	The 	Board 	majority 	found 	that 	the
EERA 	section 	3543.S(a) 	allegations 	were 	covered 	in 	the
arbitration 	and 	the 	arbitration 	award 	was 	not 	repugnant 	to 	EERA.
With 	regard 	to 	the 	EERA 	section 	3543.5(b) 	allegations, 	the 	Board
majority 	applied 	a 	pre-arbitration 	analysis 	and 	found 	that 	the
CBA 	did 	not 	provide 	the 	exclusive 	representative 	with 	access 	to
binding 	arbitration 	to 	litigate 	its 	right 	to 	represent 	its
members. 	In 	reaching 	this 	conclusion, 	the 	Board 	majority 	relied
on 	its 	earlier 	decisions 	in 	State 	of 	California 	(Department 	of
Parks 	and 	Recreation) 	(1990) 	PERB 	Decision 	Nos. 	810-S 	and 	Parks
and 	Recreation, 	supra, 	PERB 	Decision 	No. 	810a-s.
In 	my 	concurrence 	to 	San 	Diego, 	supra, 	PERB 	Decision
No. 	880, 	I 	agreed 	with 	the 	majority's 	analysis 	and 	conclusion
regarding 	the 	alleged 	violation 	of 	EERA 	section 	3543.S(aj. 	For
different 	reasons, 	I 	refused 	to 	defer 	the 	alleged 	violation 	of
16

EERA 	section 	3543.5(b). 	As 	the 	case 	involved 	post-arbitration
deferral, 	I 	concluded 	the 	Board 	had 	discretionary 	jurisdiction.
Although 	the 	case 	involved 	the 	same 	conduct, 	but 	different 	issues
(i.e. r 	discrimination 	versus 	interference), 	PERB 	was. the 	only
forum 	available 	to 	the 	exclusive 	representative. 	Further, 	the
CBA 	did 	not 	provide 	the 	exclusive 	representative 	with 	the 	right
to 	file 	a 	grievance, 	and 	the 	arbitrator 	did 	not 	adequately
consider 	the 	(b) 	allegations 	in 	the 	unfair 	practice 	charge.
Based 	on 	EERA 1 s 	purposes 	and 	policies, 	I 	decided 	to 	allow 	the
exclusive 	representative 	to 	proceed 	on 	its 	alleged 	(b) 	violations
rather 	than deny 	the 	exclusive 	representative 	its 	only 	forum 	to
protect 	its 	statutory 	rights.
In 	the 	present 	case, 	the 	parties 1 	CBA 	expressly 	allows 	CCPOA
to 	file 	grievances 	in 	its 	own 	name, 	and 	there 	is 	no 	arbitration
award. 	Accordingly, 	a 	pre-erbitration analysis 	applies. 	As 	the
conduct 	is 	arguably 	prohibited 	by 	the 	parties 1 	CBA 	and 	the
parties' 	CBA 	grants 	CCPOA 	the 	right 	to 	file 	grievances, 	the
grievance 	and 	arbitration procedures 	cover 	the 	matter 	at 	issue.
Therefore, 	based 	on 	the 	Lake 	Elsinore 	deferral 	standard, 	I 	would
dismiss 	and 	defer 	the 	instant 	unfair 	practice 	charge 	and
complaint 	to 	binding 	arbitration.
17