Regents of the University of California (San Francisco) (PERB A139H)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
LOCAL 1650,

Charging Party, Case No.. SF-CE-174-H

Ve PERB Order No. Ad-139-H

REGENTS OF THE UNIVERSITY OF
CALIFORNIA (SAN FRANCISCO),

Administrative Appeal
(Interlocutory)

Respondent. February 15, 1984

Set el et nee Nee Se ce ee Net et et Nl Ae

Appearances: Glenn Rothner, Attorney (Reich, Adell & Crost)
for American Federation of State, County and Municipal
Employees, Local 1650; Gerald A. Becker, Attorney for the
Regents of the University of California.

Before Tovar, Morgenstern and Burt, Members.
DECISION

TOVAR, Member: This interlocutory appeal by the Regents of
the University of California (University) is before the Public
Employment Relations Board (PERB or Board) upon the
certification of an administrative law judge (ALJ) pursuant to
section 32200 of PERB's rules and regulations.1 The
University appeals the attached order of the ALJ denying its
motion to dismiss the instant charge, which alleges that the

University unlawfully discharged an employee because of his

iPERB's rules and regulations are codified at California
Administrative Code, title 8, section 31001 et seq.

protected
	activity.
	The
	University's
	motion
	was 	made
	on
	the
grounds
	that
	it
	is
	prepared 	to
	submit
	the
	dispute
	to
	binding
arbitration
	as
	provided
	for
	in
	its
	Staff
	Personnel
	Manual
	and
that
	PERB
	must
	therefore
	defer
	its
	jurisdiction
	over
	the
dispute.
For
	the 	reasons
	which
	follow,
	we
	affirm
	the
	ALJ's
	denial
	of
the
	University's
	motion
	to 	dismiss.
DISCUSSION
Subsection
	32620(b)
(5)
	of
	PERB's
	rules
	and
	regulations
provide
	that
	a
·charge
	is
	to
	be
	dismissed
	where
	it
	is
	based
	upon
".
	• 	. 	a
	dispute
	arising
	under
	HEERA
	[which]
	is
	subject 	to
final
	and
	binding
	arbitration."2
The
	University
	asserts 	that
	the
	instant
	charge
	can
	be
resolved 	via
	the 	binding
	arbitration
	procedure
	which
	it
	makes
available
	to
	its
	employees
	through
	the
	Staff
	Personnel
	Manual.
The 	Manual
	is
	a
	publication
	unilaterally
	compiled
	and
	issued	
by
the 	University. 	In
	view
	of 	the
	availability
	of
	this
	procedure,
it
	argues,
	PERB
	is
	compelled
	to 	defer
	its
	jurisdiction
	under
the 	terms 	of
	its
	own
	regulations.
The
	University
	has
	misinterpreted 	the
	regulation.
	The
policy 	of
	deferral
	to 	binding
	arbitration 	is
	not 	unique
	to
regulation
	32620.
	Rather, 	the 	doctrine
	has
	a
	well-established
history
	before 	both 	the 	National
	Labor
	Relations
	Board 	and
	the
2The 	Higher 	Education Employer-Employee
	Relations 	Act(HEERA)
	is 	codified 	at	
Government 	Code
	section
	3560
	et. 	seq.
2

PERB
	itself.
	In
	his
	order
	denying
	the
	University's
	motion,
	the
ALJ
	reviewed
	that 	history
	and,
	on
	that 	basis,
	concluded
	that
r~gulation
	32620
	mandates
	deferral
	of 	the 	Board's
	jurisdiction
to
	binding
	arbitration
	only
	where
	the
	parties
	have
	previously
agreed
	to
	such
	a
	procedure 	through
	a
	collectively
	negotiated
agreement.
	In
	addition 	to
	the
	cases
	cited
	by
	the
	ALJ,
	we
	note
King
	City
	Joint
	Union 	High
	School
	District
	(3/3/82)
	PERB
Decision
	No.
	197,
	in
	which
	we
	reviewed
	at
	p. 	33,
	the
	clear
public 	policy 	disfavoring 	involuntary
	arbitration
	arrangements.
In 	finding
	that
	such
	prior
	agreement
	is
	required 	before 	the
Board
	will
	defer
	its
	jurisdiction
	to 	binding
	arbitration,
	the
ALJ
	correctly 	interpreted 	regulation
	32620.
	We
	therefore
	adopt
his
	rationale
	on
	this
	point
	as 	the 	conclusion 	of
	the
	Board
itself.3
ORDER
The
	motion
	to 	dismiss 	the 	charge
	in
	Case
	No. 	SF-CE-174-H
	is
DENIED.
Members
	Morgenstern
	and
	Burt 	joined 	in 	this
	Decision.
3While
	the
	ALJ 	went 	on
	to 	address 	the 	issue 	of
	deferral
where
	the 	charge
	is
	one
	of 	anti-union 	discrimination,
	we
	find
it
	unnecessary 	to 	reach
	this 	question.
	We
	therefore
	disavow
the 	ALJ's 	discussion 	of
	this 	matter, 	deferring 	our
	own
consideration 	of 	the 	issue 	until
	such 	time 	as
	it
	is 	squarely
placed 	before
	us 	by 	a
	case 	in 	controversy.
3

-
ـى

STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
AMERIC~'1 	FEDERATION
	OF
	STATE,
COUNTY
	AND
	MUNICIPAL 	EMPLOYEES,
LOCAL
	1650,
Charging
	Party,
v.
REGENTS
	OF 	THE
	UNIVERSITY
	OF
CALIFORNIA 	(SAN 	FRANCISCO),
Respondent.
}
)
}
)
)
)
)
)
)
)
)
)	
__________________
)
Case
	No.
	SF-CE-174-H
ORDER
	ON
	MOTION 	TO
DISMISS
	COMPLAINT 	(TO
DEFER
	TO
	ARBITRATION)
The
	charge 	in
	this
	case
	was
	filed
	on
	August
	5,
	1983.
	It
alleged
	that
	the
	University's
	discharge 	of
	Joseph 	Brenner,
	a
University 	transportation
	assistant
	and
	vice-president
	of
Local 	1650,
	American
	Federation	
of 	State,
	County
	and
	Municipal
Employees
	(AFSCME),
	the 	charging
	party,
	was
	motivated	
by	
the
University's
	knowledge
	of
	Brenner's
	participation 	in
	AFSCME. 	A
complaint
	was
	issued
	by
	the 	Genaral 	Counsel
	on
	August 	17, 	1983.
On
	September 	28,
	the 	University
	filed
	its
	Answer
	to 	the
Complaint,
	and 	a
	Motion
	to
	Dismiss 	the 	Complaint, 	based 	on
	the
asserted
	availability
	of
	a
	procedure
	by 	which 	a
	hearing
	officer
not
	employed	
by 	the 	Univ~rsity
	could
	be
	called
	on
	to 	hear
	and
decide 	the 	dispute 	underlying 	the 	complaint.
On
	October 	31,
	a
	hearing
	was
	held 	before 	the 	undersigned
administrative
	law
	judge,
	at
	which 	time 	each
	party 	presented
evidence 	relevant 	to 	the
	University's
	motion
	to 	dismiss 	the

complaint.
	At
	the
	close
	of
	presentation
	of 	evidence, 	the
administrative
	law
	judge 	denied
	the
	motion
	to
	dismiss
	the
complaint
	and
	stated
	the
	reasons.
	The
	hearing
	was
	then
	recessed
until
	December
	13,
	1983,
	to
	allow 	the 	respondent
	to
	pursue
	an
interlocutory
	appeal
	of
	the 	hearing
	officer's
	denial
	of 	the
motion
	to
	dismiss.
	The
	administrative
	law
	judge 	has
	certified
the
	question 	to
	the 	Board,
	in
	a
	separate
	document.
This 	order
	is
	issued 	to
	state
	in
	a 	more
	structured
	form,
	the
reasons 	for 	the
	denial
	of
	the
	motion.
I.
	The
	Grievance.
On
	July 	1,
	1983, 	Brenner
	submitted
	a
	grievance 	challenging
his
	discharge,
	and
	-alleging,
	inter
	alia,
I
	believe
	that
	Jim
	Wood
	was
	well
	aware
	of
	my
position
	as 	an
	active
	AFSCME
	1650 	member 	and
officer
	and
	that 	this
	action
	of
	dismissal
	was
at 	least
	in
	part
	for
	that
	reason.
The
	grievance 	also 	alleged
	that
	the
	investigation
	undertaken 	by
Brenner's 	supervisor 	before 	the
	discharge
	was
	incomplete
	and
irresponsible.
	Brenner 	denied
	specifically 	that
	he 	had	
engag2d
in
	any
	misconduct
	related
	to 	his
	job
	responsibilities,
	and
	set
out 	his
	reasons 	for
	that 	assertion.
	The
	grievance
	was
	denied,
and 	on
	October 	6, 	Brenner 	asked
	to 	submit 	the 	case 	to 	review
	by
a
	hearing
	officer.
II.
	The
	University's
	Dispute 	Resolution 	Procedures.
The
	University 	Staff
	Personnel
	Manual
	includes 	provisions,
in 	section
	280,
	defining
	a
	resolution 	procedure 	for 	disputes
5

which
	arise
	between 	employees
	and
	the
	University.
	The
procedure,
	like
	the
	other 	provisions
	of
	the
	Staff
	Personnel
Manual,
	were
	adopted
	some
	time
	ago
	by
	the
	University,
	and
	is
	not
the
	product 	of
	collective
	bargaining 	or
	negotiations
	with
	any
employee
	organization.
1
Pertinent 	portions 	of 	the
	dispute 	resolution
	procedure
	set
out 	in 	the
	manual
	are
	reprinted
	here:
280.16
	Non-University
	Hearing
	Officers.
	As
	an
alternative
	to
	the
	use
	of
	a
	University
Hearing
	Committee
	or 	Hearing
	Officer,
	an
employee
	may
	elect
	in 	writing
	that
	the
grievance
	be
	heard
	by 	a
	non-University
Hearing
	Officer.
	The
	Chancellor
	shall
	obtain
a
	panel 	of 	prospective 	non-University
	Hearing
Officers
	from
	the
	local 	office
	of
	the
American
	Arbitration 	Association.
280.17
	The
	hearing 	process
	shall
	provide
	an
opportunity
	for
	the
	employee
	or 	the
employee's
	representative
	and
	the 	department
head
	or 	the 	department
	head's 	representative
(see
	Staff
	Personnel 	Policy 	Section
	280.31)
to
	examine
	witnesses
	and
	to
	submit
	relevant
evidence.
	Each
	party
	shall
	provide 	the
	other
with
	relevant 	material
	and 	names
	of
	all
witnesses
	who
	are 	to
	be
	introduced
	at
	a
hearing.
	To
	the
	extent 	possible
	thismaterial
	should
	be
	provided
	at 	least
	seven
calendar 	days
	p-rior
	to 	the
	hearing.
lin
	May
	and
	June 	1983,	
PERB	
conducted
	a
	series
	of
elections
	among
	University
	employees
	to 	determine 	whether
employees
	in 	specified 	bargaining 	units
	favored
	collectivebargaining 	representation
	by 	employee
	organizations. 	Prior
	to
that
	time, 	the 	only
	employees
	who 	were
	represented
	by 	employee
organizations 	for
	collective 	bargaining 	purposes 	were
	police
officers,
	and
	faculty
	members
	at
	one 	campus. 	The
	dispute
resolution
	procedure
	at 	issue 	here
	was
	in 	use 	long 	before 	theMay-June
	elections,
	Rnd
	the
	certifications
	which
	followed.
6

280.20
	Responsibility
	and
	Authoritv
	of 	the 	Hearing
Committee 	or
	Officer.
	The
	Hearing
	Committee
or
	Officer 	shall:
b.
	conduct
	a
	hearing 	to
	determine 	the
facts
	and
	whether
	the
	management
	action
grieved
	was
	in
	violation
	of
	Staff
Personnel
	Policy
	or 	the
	Chanc~llor's
implementing
	procedure
	or,
	if
	the
grievance 	involves
	corrective 	action
	or
dismissal,
	whether
	the
	management
action
	was
	reasonable
	under
	the
circumstances:
	....
280.22
	The
	Hearing
	Committee
	or
	Officer
	sha.11
	have
no
	authority
	to
	depart
	from
	or 	otherwise
modify
	Staff
	Personnel
	Policies.
280.24
	Decision.
	The
	decision 	of
	the
	Hearing
Com.~ittee
	or
	Officer
	shall
	be
	final
	and
binding
	when
	the
	issue 	reviewed
	under
	this
policy 	alleges 	violations 	of 	Staff
	Personnel
Policies
	270
	(Corrective 	Action},
	740
(Dismissal
	of
	Regular
	Status
	Employees),
or
	760
	(Layoff,
	Furlough,
	and
	Reduction 	in
Time 	from
	Career
	Positions}
	and
	if
	the
employee
	had
	regular
	status 	at
	the
	time
	thegrievance
	was
	filed.
	Recommended
	decisionsto
	resolve
	all
	other
	issues
	are
	advisory 	to
the
	Chancellor.
In
	addition,
	the 	Chancellor 	of 	the
	San
	Francisco
	campus
	of
the 	University
	has 	adopted
	certain 	regulations 	to
	implement
	the
University-wide
	policies.
	Relevant
	portions 	include 	the
following:
280.16
	The
	responsibility
	for 	o~taining
	a
panel	
of 	prospective 	Non-University 	Hearing
Officers
	from
	the
	local 	office
	of 	theAmerican
	Arbitration 	Association 	is 	delegated
by
	the 	Chancellor 	to 	the
	Labor
	Relations
Manager.
	Upon
	receipt 	of	
a	
list
	from
	theAmerican
	Arbitration 	Association, 	the
	partiesshall 	independently 	strike
	any 	name(s)
7

unacceptable,
	rank
	any
	remaining 	name(s)
	in
order	
of	
preference
	and
	return
	the
prospective
	list
	to
	the
	American
	Arbitration
Association
	for
	selection
	of
	a
	Non-University
Hearing
	Officer
••..
280.17
	•..
	In 	the 	event
	either 	party
	wishes
principals
	or
	witnesses 	to	
be	
sworn,
	it
	will
be
	strictly
	up
	to 	the
	principals
	or
	witnessto
	determine
	if
	they
	wish
	to
	be
	sworn
	with
the 	understanding
	that
	declining
	to	
be	
sworn
carries
	no
	implication
	whatsoever
	concerningthe
	credibility
	of
	the
	principals
	or
witnesses.
	Principals
	and
	witnesses 	shouldunderstand
	that
	they
	will
	be
	held
	to 	the
veracity 	of
	their
	statements
.
At
	the
	time
	of
	th~
	hearing, 	the 	University
	and
	the
	Union
	had
obtained	
a	
list
	of 	possible
	hearing
	officers
	from
	the
	American
Arbitration
	Association,
	and
	each
	had
	submitted
	to
	the
	AAA
	its
list
	of 	unacceptable
	and
	acceptable 	hearing
	officers.
	A
hearing
officer
	had
	not
	yet
	been
	selected
	and
	consequently,
	no
	hearing
dates
	had 	been
	scheduled.
III.
	The
	Authority	
of	
the
	Arbitrator
Section
	280.20
	of 	the
	Staff
	Personnel
	Manual
	cited
	above
describes 	the 	hearing
	officer's
	authority
	or
	jurisdiction.
Tom
	Matteoli, 	University 	labor
	relations 	coordinator
assigned 	to
	the
	San
	Francisco
	campus,
	who
	has
	in 	the
	past
represented 	the 	University 	in 	hearings
	arising
	under
	the
dispute 	resolution 	provisions 	cited
	above,
	testified 	that
	the
phrase 	"reasonable
	under 	the 	circumstances"
	refers
	to 	the
appropriateness 	of
	the
	severity 	of 	the 	penalty
	imposed	
by 	the
University
	on 	an
	errant
	employee, 	in
	light 	of 	the
	misde2d
	of
.
8

the
	employee.
	Matteoli
	also
	testified,
	in 	response
	to
	a
question
	put	
by	
the
	representative
	of
	the
	Union,
	that
	there
	is
no
	section
	of 	the
	Staff
	Personnel
	Manual 	which
	expressly
prohibits
	discrimination 	against
	employees 	based 	on
	their
affiliation
	with,
	or
	support
	for,
	a
	union~
	There
	is,
	however,
in 	section
	280.32,
	a
	prohibition 	against
	reprisals
	against
employees
	for 	using
	or
	participating
	in 	the 	grievance 	process.
The
	Union
	contended
	during 	the 	hearing
	t~at
	pursuant 	to
	the
past 	practice
	of 	the
	University
	and
	of 	University
	hearing
officers
	assigned 	to 	hear
	disputes,
	the 	hearing
	officer
	would
be
	unable
	to
	hear 	evidence 	regarding 	the 	Onion's
	contention
that
	Brenner
	was
	discharged
	because
	of 	his
	participation
	in
Local
	1650.
	Howev~r,
	the 	University
	placed 	in 	evidence
	an
Arbitrator's
	Opinion
	and 	Award
	issued
	May
	11, 	1983, 	in
	which
the 	grievant
	was
	Patrick
	Harvey.
	In 	the
	opinion, 	the
arbitrator
	ruled
	on 	(and
	rejected} 	the 	Union's
	contention
	that
Harvey
	was
	suspended 	because
	of
	union
	activity.
	On
	page
	13
	of
the 	decision,
	the
	arbitrator
	wrote:
The 	Union
	cites
	an
	incident 	involving 	the
wearing
	of
	a 	Union
	button 	but
	neither 	thatincident
	nor
	the
	prior
	and
	subsequent 	conduct
of
	management
	demonstrates
	any
	basis 	toconclude
	that
	the 	Grievant
	was
	discriminated
against
	or 	punished 	because
	of
	Union
advocacy.
Counsel 	for 	the 	University 	in 	the
	instant 	case 	stated
	on
the 	record 	that 	in 	the 	contemplated 	hearing 	before 	the 	hearing
officer
	in 	Brenner's 	case, 	the 	University 	will 	not 	object 	to
9

i
the 	introduction 	of
	evidence 	concerning
	Brenner's
	union
activity.
	University
	counsel
	indicated
	it
	is 	his
	view
.that
	a
hearing
	officer
	who
	eventually
	hears
	a
	case
	under
	the
University's
	dispute 	resolution
	mechanism
	will
	have
	the
authority
	to
	determine 	the
	significance
	of 	Brenner's
	union
activity
	in 	the
	University's
	discharge
	decision.
The
	Union
	representative
	in
	this
	case, 	Ellen
	Shaffer,
testified
	that
	in
	another 	grievance 	(in
	which
	the
	grievant
	was
Ellen
	Harvey)
	heard
	by 	a
	University
	hearing
	committee,
	the
chair 	of
	the
	committee
	did 	not 	allow
	certain
	evidence 	to
	be
presented
	regarding 	the
	union
	activities
	of 	the
	grievant.
However,
	it
	also
	appears
	from
	the 	testimony
	that
	there
	was 	no
allegation
	in 	the 	grievance
	that
	the
	University's 	action
	with
respect
	to
	that
	grievant
	was
	motivated	
by	
anti-union
	animus.
Shaffer 	also
	testified
	that
	it
	is
	difficult
	to
	raise
	the
issue 	of 	anti-union
	animus
	in
	a
	University 	grievance, 	since
there
	is
	no
	specific 	section 	of 	the
	Staff
	Personnel
	Manual
which
	prohibits
	it,
	and
	grievances 	are 	limited 	to 	those
	which
all~ge 	violations 	of 	the
	Manual. 	She
	also
	testified 	that 	at
times 	the 	University
	has 	refused 	to 	"accept"
	a
	written
grievance,
	based 	on
	the 	contents 	of 	the
	initial
	grievance
document.
	She
	did 	not,
	however,
	indicate 	that
	the 	University,
in 	the 	grievance 	about
	which 	she
	testified,
	or 	in
	any
	other
grievance, 	rejected
	a
	grievance
	specifically
	because
	it
	raised
10

the 	issue 	of 	anti-union
	motivation
	on
	the
	part
	of 	the
University.
ANALYSIS
	AND
	CONCLUSIONS
The
	practice
	of
	deferring
	to
	the
	decision
	of
	an
	arbitrator
was
	adopted 	by	
the 	National
	Labor
	Relations
	Board
	in
	1955,
beginning
	with
	the 	Spielberg
	Manufacturing
	Corn~
	decision,
112
	NLRB
	1080.
	The
	Board
	provided
	this
	explanation:
[t]he
	proceedings
	appear
	to
	have 	been
	fair
and
	regular,
	all
	parties
	had
	agreed
	to
	be
bound,
	and
	the 	decision 	of
	the
	arbitration
panel
	is
	not
	clearly
	repugnant
	to
	thepurposes
	and
	policies
	of
	the 	Act. 	In
	thesecircumstances
	we
	believe
	that
	the
	desirableobjective
	of
	encouraging 	the
	voluntary
settlement 	of 	labor
	disputes 	will
	be
	best
served	
by	
our
	recognition
	of 	the
	arbitrator's
award.
The
	NLRB
	expanded
	on
	its
	rational
	for
	voluntarily deferring
to
	a
	private
	forum
	decision-making 	process 	in
	International
Harvester
	Comcanv
	(1962) 	138
	NLRB
	923, 	enf'd
	sub
	nom
	Ramsey
	v.
NLRB
	(7th
	Cir.
	19
6 4) 	3 2 7 	F • 2 	7 8
4:
If
	complete
	effectuation
	of 	the 	Federal
policy
	is
	to
	be
	achieved,
	we
	firmly
	believe
that
	the 	Board,
	which
	is
	entrusted
	with 	the
administration 	of
	one
	of 	the
	many
	facets 	of
national 	labor 	policy,
	should 	give
	hospitableacceptance 	to 	the
	arbitral
	process
	as
	"part
and
	parcel 	of 	the
	collective
	bargaining
process
	itself,"
	and
	voluntarily
	withhold
	its
undoubted
	authority 	to 	adjudicate 	alleged
unfair 	labor 	practice
	charges 	involving 	thesame
	subject
	matter, 	unless
	it
	clearlyappears
	that
	the
	arbitration
	proceedings
	were
tainted
	by
	fraud, 	collusion, 	unfairness, 	or
serious 	procedural
	irregularities
	or
	that
	theaward 	was
	clearly
	repugnant 	to 	the 	purposesand
	policies 	of 	the 	Act.
11

In
	Dubo
	Manufacturing
	Corporation
	(1963) 	142
	NLRB
	431,
	the
Board
	held
	that
	it
	would
	defer 	action
	on 	a
	charge
	of
discriminatory
	discharge
	where
	the
	employer
	had
	bee~
	ordered	
by
a
	federal 	court
	to
	arbitrate
	the
	case.
	The
	Board
	emphasized
the
	statutory
	policy
	favoring 	the
	utilization
	of
	contractual
grievance
	machinery,
	particularly 	arbitration,
	in
	resolving
disputes
	falling
	within
	the 	reach 	of
	both
	the
	contract
	and
	the
NLRA.
In
	1971, 	in 	Collyer
	Insulated
	Wire, 	192
	NLRB
	837, 	the
	Board
announced
	its
	willingness
	to 	defer
	its
	own
	resolution
	of
	a
dispute 	to
	the
	arbitration
	process
	established 	in
	a
	collective
bargaining
	agreement,
	even
	before 	the
	dispute
	was
	the
	subject
of
	a
	grievance.
The
	Board's 	reasoning 	in 	the 	Collyer 	case
	was
	summarized
	as
follows
	in 	Morris,
	The 	Developing 	Labor
	Law
	(1983)
	at
	page 	923:
The 	Board
	majority 	ruled
	that
	the
	Board
should
	and 	would
	defer 	to
	existing
	gri2vance-
arbitration
	procedures
	prior 	to
	either
party's
	invocation 	of 	those 	procedures 	in 	the
following 	circumstances:
	{l)
	Where
	the
dispute 	arose 	"within 	the 	confines 	of
	a
	long
and
	productive
	collective
	bargaining
relationship,"
	and
	there
	was 	no
	claim	
of
"enmity by 	Respondent
	to 	employeas'
	exercise
of	
protected 	rights";	
(2)	
where 	"Respondent
has
	•••	
credibly 	asserted
	its
	willingness
·to
	resort
	to
	arbitration
	under
	a
	clauseproviding 	for
	arbitration
	in
	a
	very 	broad
range 	of 	disputes
	and
	unquestionably 	broadenough
	to
	embrace
	'the 	dispute 	before 	the
Board'";
	and
	( 3) 	where
	the 	con
tr
act
	and
	its
meaning
	lie 	at
	the 	center 	of 	the 	dispute.
12

The
	Board's
	plurality
	opinion
	rested
	onbroad
	foundations:
	(1)
	that
	the
	courts
	have
recognized
	a
	national
	policy
	of 	encouraging
resolution
	of
	labor
	disputes
	through
	the
grievance-arbitration
	machinery;
	(2)
	that
	it
is
	in
	keeping 	with 	the
	statutory 	policy,
expressed 	in 	Section
	203(d)
	of 	the
	LMRA
	to
encourage
	the
	parties
	to 	resolve
	disputes
through
	the
	"method
	agreed
	upon 	by	
the
parties";
	...•
The
	Collyer 	case
	involved
	a
	charge
	filed 	with
	the
	NLRB
	which
alleged
	a
	violation
	of
	NLRA
	section
	8(a}
(5), 	prohibiting
	an
employer
	from 	making
	unilateral
	changes
	in
	working
	conditions.
In
	National
	Radio
	(1972) 	198
	NLRB
	527 	[80
	LRRM
	1718],
	the
	Board
expanded
	its
	Collyer
	doctrine
	to 	include 	charges
	alleging
violations 	of
	NLRA
	section
	8(a) {3),
	which
	prohibits
discrimination
	by
	employees
	to 	discourage
	union
	activity.
However,
	in
	1977,
	the
	NLRB
	overruled 	the 	National
	Radio
expansion 	of 	the 	Collyer
	doctrine,
	while
	affirming
	the
	validity
of
	Collyer 	in
	its
	original
	scope.
	In 	General
	American
Transnortation 	Corn.
	(1977)
	228
	NLRB
	808,
	the
	Board 	announced
that
	henceforth
	it
	would
	not
	defer,
	pre-arbitration,
	in 	cases
which
	alleged 	violations
	of 	individual 	rights 	protected
	by 	the
NLRA.
	It
	would
	continue 	to 	defer 	in 	cases
	which
	alleged
violations
	of
	rights
	guaranteed 	to
	a 	Union
	or
	to
	an
	employer.
The 	Board
	refused 	to
	defer, 	in 	General 	American
	Transoortation,
because 	the 	charge 	alleged 	violations 	of 	sections
	3 (a) ( 1) 	and
8(a) (3).
The
	policy 	stated 	in 	General 	American
	Transportation 	is
cur~ent
	NLRB
	p~licy.
13

Throughout
	this
	period, 	there
	was 	no
	aspect 	of
	the 	National
Labor
	Relations
	Act
	which
	required 	the
	NLRB
	to
	dafer 	in
	any
cases.
	The
	policy
	was
	solely
	a
	matter 	of 	the
	NLRB's
	discretion.
Deferral
	in
	California
	Labor
	Relations
	Laws.
The
	Legislature
	included
	deferral
	provisions
	in
	EERA
	(the
law
	governing
	employment
	relations
	in 	school
	districts)
	and
	in
SEERA
	(the
	law
	governing
	labor
	relations
	in 	the
	state
	civil
service)
	but 	not
	in
	HEERA
	(the
	law
	governing
	labor
	relations
	in
the
	state's
	institutions
	of 	higher
	learning).
	The
	EERA
deferral
	provision, 	in
	Government
	Code
	section
	3541.S(a)
	reads:
The
	board
	shall
	not
	do
	either
	of
	the
following:
	• 	(2)
	issue
	a
	complaint
against
	conduct
	also 	prohibited
	by
	the
provisions 	of 	the
	agreement 	between
	the
parties 	until
	the 	grievance
	machinery
	of
	theagreement,
	if
	it
	exists
	and
	covers 	the 	matter
at 	issue,
	has
	been
	exhausted,
	either
	by
settlement
	or 	binding
	arbitration.
	However,when
	the 	charging
	party
	demonstrates
	thatresort
	to 	contract
	grievance 	procedure
	would
be
	futile,
	exhaustion
	shall
	not
	be
	necessary.
The
	SEERA
	deferral
	provision, 	in
	Government
	Code
section
	3514.5
	reads:
The
	board
	shall
	not
	do
	either
	of 	the
following:
	•.•
	(2)
	issue
	a
	complaint
against
	conduct
	also 	prohibited	
by	
the
provisions 	of 	the 	agreement 	between
	the
parties 	until
	the 	grievnnce 	machinery
	of 	the
agreement,
	if
	it
	exists
	and
	covers 	the 	matter
at 	issue,
	has 	been
	exhausted,
	either	
by
settlement
	or 	binding
	arbitration.
	However,when
	the 	charging 	party demonstrates
	thatresort 	to 	contract 	grievance 	procedure
	would
be
	futile,
	exhaustion 	shall 	not
	be
	necessary.
Neither 	provision,
	it
	should
	be
	note1,
	makes
	the
14

L
distinction
	which
	the
	NLRB
	makes:
	that
	is,
	neither 	distinguishes
between
	individual
	rights
	charges
	on
	the
	one
	hand,
	and
	charges
concerning
	employee
	organization
	rights,
	or
	employer
	rights,
	on
the
	other.,
PERB
	has 	adopted
	certain
	regulations
	pertinent
	to
	the 	issue
of
	deferral.
	Section
	32620(b)
(5)
	reads, 	in
	pertinent:
(b)
	The 	powers
	and
	duties 	of
	such
	Board
agent
	shall
	be
	to:
(S)Dismiss 	the 	charge 	or
	any
	part
thereof
	.•.
	if
	it
	is
	determined
	that
	a
complaint
	may
	not
	be
	issued 	in
	light
	of
Government
	Code
	sections
	3514.5,
	3541.5
	or
3563.2 	or 	because
	a
	dispute 	arising
	under
HEERA
	is
	subject
	to
	final
	and
	binding
arbitration.2
Section
	32661
	of 	the 	Board's
	regulations 	provides
	a
procedure 	for
	a
	party 	to
	file
	a
	charge 	with 	the
	Board
	after
completion
	of
	the
	arbitration
	process, 	to 	bring 	before
	PERB
	an
allegation 	that
	the
	result
	of 	the 	process
	is
	repugnant
	to
	EERA,
HEERA,
	or
	SEERA.
Denial of 	the 	Deferral
	Request
	is
	Required 	Here
In
	this
	case, 	the 	University 	asks 	the
	PERB
	to
	decline 	to
carry 	out
	a
	task
	which
	is 	specifically
	assigned 	to
	it	
by	
the
2rt 	is
	assumed
	here 	that 	this 	section 	is 	applicable 	here,
although,
	on
	its
	face,
	it
	applies
	to 	the 	pre-complaint 	period.
. 	. . 	.
	·.
	.
15

HEEP.A:
	to
	determine
	whether
	an
	action
	adverse
	to
	an 	employee
	of
the 	University
	was
	motivated
	by
	hostility
	toward
	the
	employee's
participation
	in
	an
	employee
	organization
	and,
	thus, 	is
	in
violation
	of
	section
	357l(a)
	of
	HEERA.
	There
	is
	no
	statutory
provision
	that
	requires
	the
	Board
	to
	defer 	action
	on
	this
allegation.
	It
	is
	my
	conclusion
	that 	deferral
	would
	not
	be
	an
appropriate 	exercise
	of
	the
	Board's
	discretion.
	Were 	PERB
	to
defer 	here,
	we
	would 	be
	declining
	to
	carry
	out
	our
	statutory
duty,
	or
	unnecessarily delaying
	action
	for
	an
	indefinite
	period.
All 	of 	the
	NLRB's 	major
	deferral
	decisions
	have
	had, 	as
their 	explicit 	rationale,
	the
	desirability
	of 	encouraging
	and
respecting 	the 	use, 	by	
unions
	and
	employers,
	of
	dispute
resolution
	mechanisms
	created	
by 	agreement 	reached 	through
collective
	bargaining.
	This
	preference
	has
	its
	origin
	in 	the
NLRA's
	statement 	of
	purpose,
	which
	refers
	to 	"encouraging 	the
practice
	and
	procedure 	of
	collective
	bargaining." 	See,
	e.g.,
Collyer 	Insulated
	Wire, 	192
	NLRB
	at
	840; 	General 	American
Transportation 	Corp.,
	228
	NLRB
	at
	811;
	National 	Radio,
	198
	NLRB
at
	531.
HEER.A
	includes
	a
	similar 	statement 	of 	purpose. 	Although
HEERA
	does 	not 	explii:::itly
	indicate
	an
	intent
	to 	"encourage"
collective 	bargaining,
	it
	does
	refer,
	in 	section
	3560,
	to
"harmonious
	and
	cooperative 	labor 	relations"
	and
	declares
	it
"advantageous
	and
	desirable" 	to
	ex~and
	the 	"opportunity 	for
16

t
collective
	bargaining" 	to
	employees
	of 	the
	institutions
	covered
by
	the
	HEERA.
If
	the
	dispute 	resolution
	procedure
	in
	use
	at
	the
University
	were
	the
	result
	of
	a
	negotiated
	agreement 	between
the 	University
	and
	the
	Unionf
	it
	might
	be
	concluded
	that
	the
present
	case
	should
	be
	deferred
	to 	the
	arbitration
	process.
That
	is,
	even
	in 	the
	absence
	of
	a
	statutory
	requirement,
	PERB
might
	find
	it
	appropriate
	to 	defer
	its
	consideration 	of
	certain
charges,
	reserving 	the
	right
	to
	review
	the
	nature 	of 	the
arbitration
	process
	and
	the
	legal
	criteria
	applied 	in
	each
case.
	But
	the
	dispute 	resolution
	process 	here
	is
	not 	the
result
	of
	a
	collective
	bargaining
	agreement.
	It
	is
	a
unilaterally
	defined
	procedure.
3
Second,
	even
	if,
	despite
	the
	unilateral
	nature	
of	
the
procedure,
	it
	is
	proper 	to
	apply
	NLRB
	practice 	here,
	I 	would
conclude
	that 	deferral
	is 	inappropriate
	because
	the 	charge
which
	is
	the 	basis 	of 	the
	PERB
	complaint
	is 	clearly
	one 	which
3rt
	has, 	in
	fact, 	several 	features 	unlikely 	to
	be
	seen 	in
a
	collectively
	bargained
	arbitration
	procedure.
	First,
	each
party
	has
	an
	unlimited
	right
	to 	veto 	the
	names
	of 	prospective
arbitrators.
	Thus,
	there
	is
	the
	possibility 	that,
	even
	with
both
	parties
	acting 	in
	good
	faith,
	the
	commencement
	of 	the
arbitration
	may 	be
	delayed
	indefinitely,
	or 	the 	process
	be
stymied
	at 	its
	inception.
	Second,
	there 	is
	a
	requirement
	thatthe 	hearing
	officer
	submit
	his 	decision 	to
	one
	party, 	the
University's 	personnel 	department, 	for
	"technical
	review"
before
	it
	is 	issued.
	Mr.
	Matteoli
	was
	unable 	to 	explain 	the
nature 	of 	the 	"technical
	review"
	referred 	to.
17

f
raises
	an
	issue 	of
	discrimination,
	a
	violation 	of
	an
	individual
right.
	Under
	these 	circumstances,
	the
	NLRB
	would
	not
	defer 	to
the
	private
	forum,
	following
	the 	precedent
	established
	in
General
	American
	Transportation.
The
	impropriety 	of
	the
	NLRB's
	deferral
	of 	charges
	which
allege 	violation
	of 	individual
	rights
	was
	addressed
	most
specifically
	by
	NLRB
	Chairwoman 	Murphy,
	in 	her 	opinion 	in
General
	American
	Transportation.
	The
	rights
	protected
	by
section
	7
	of
	the
	NLRA
	are 	public
	rights;
	a
	public
	agency,
	the
NLRB
	was
	created 	to
	protect
	them,
	she
	noted.
	Thus,
	it
	is
	not
proper 	for 	the
	NLRB
	to 	defer 	resolution
	of
	disputes
	about
	these
rights
	to
	a
	private
	forum, 	even 	though 	such
	dispute
may
	also
	involve
	an
	underlying 	disagreement
between 	he
	parties
	as
	to 	the
	meaning
	and/or
application 	of
	their
	contract.
There
	is
	a
	third 	possible
	ground 	on
	which
	the
	motion
	to
defer
	could
	be
	considered.
	That
	is,
	whether
	the
	hearing
	officer
to
	be
	appointed
	will
	have
	the
	authority 	to 	decide
	the
	dispute
which 	has 	been
	submitted 	to
	PERB	
by	
the 	charge;
	or,
	in 	the
alternative,
	whether
	the 	hearing
	officer 	will,
	of 	necessity,
make
	factual 	findings
	needed
	to
	determine 	the 	issue 	raised	
by
the 	charge.
	Los
	Angeles 	Unified 	School
	District
	(6/30/82)
	PE~n
Decision
	No.
	218.
The 	evidence 	in
	this
	area
	is 	quite
	muddy. 	The
	University
regulations
	under 	•;,;hich
	the 	hearing
	officer 	is
	to
	opP.rate
suggest 	that 	the 	hearing 	officer 	will 	not 	have 	the 	authority 	to
18

decide
	whether
	the
	University
	was
	motivated 	in
	part, 	at
	least,
by
	anti-union
	animus.
	The
	regulations
	appear
	to 	suggest
	the
hearing
	officer
	would
	not
	have
	the
	authority
	to
	decide, 	for
example,
	whether
	Brenner's
	misconduct,
	if
	it
	occurred,
	was
	the
real
	reason
	for
	the
	discharge,
	as
	well 	as
	a 	good
	reason
	for 	the
dis
charge.
There
	is
	other
	evidence
	which
	indicates
	that
	at 	least
	one
arbitrator
	has
	been
	willing
	to 	consider
	such
	evidence.
	And
University
	counsel
	indicates
	the
	University
	will
	place
	no
barrier
	in 	the
	way
	of
	introduction
	of
	such
	evidence.
Nevertheless, 	there
	remains
	uncertainty
	about 	whether
	the
University
	hearing
	officer 	will 	interpret
	the
	University
regulations
	which
	define 	his/her 	role
	in
	such
	a 	way
	to 	allow
	a
decision
	on
	the
	discrimination 	issue
	before
	PERB,
	or
	on
	the
findings 	of
	fact 	relevant
	to 	the
	discrimination 	issue.
Since
	I
	have
	denied
	the
	motion 	to
	defer
	on 	two
	other
grounds,
	I
	will
	not
	rule
	on
	the 	issue 	of
	whether
	the 	hearing
officer 	will
	have
	sufficient
	authority
	to
	fulfill
	the
requirements
	set
	out
	by
	the
	NLRB
	and
	PERB
	precedents.
DATED: 	November
	3,
	1983 .MARTIN
	FASSLER
Administrative
	Law·Judge
( Fl> J
19