California State University (State Employees Trades Council) (PERB 0392H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATE 	EMPLOYEES 	TRADES 	COUNCIL
LOCAL 1268, 	LIUNA AFL-CIO,
Charging 	Party,
v.
CALIFORNIA 	STATE 	UNIVERSITY,
Respondent.
Case No. 	SF-CE-185-H
PERB Decision No. 	392-H
August 1, 	1984
Appearances; 	Mary H. Mocine 	(Mocine, 	Plotz & Eggleston),
Attorney for 	State Employees Trades Council Local 	1268, 	LIUNA
AFL-CIO; 	William B. 	Haughton, 	Attorney for California State
University.
Before Hesse, Chairperson; Jaeger and Burt, Members.
DECISION
BURT, 	Member: 	This case 	is before 	the Public Employment
Relations 	Board 	(Board) 	on Respondent California State
University's 	(CSU or 	University) 	appeal 	of 	the attached Order
of an administrative 	law judge 	(ALJ). 	The Order denies CSU's
motion 	to defer 	to 	arbitration 	that portion of 	the 	complaint
based 	on 	the 	allegation by 	the 	State 	Employees Trades Council
Local 	1268, 	LIUNA AFL-CIO that CSU failed 	to participate 	in
good 	faith 	in 	the 	contractual 	arbitration process 	in violation
of 	the Higher 	Education Employer-Employee 	Relations Act
(HEERA), 	subsections 3571 (a) 	and 	(b).1 Pursuant to PERB
1The 	HEERA 	is 	codified 	at Government Code 	section 	3560
et 	seq. 	Section 3571 reads 	in pertinent part:
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regulation 	32200,2 the 	ALJ 	certified 	this 	interlocutory
appeal 	to 	the 	Board 	itself. 	After 	a 	complete 	review of 	the
record, 	the 	Board 	affirms 	the 	ALJ's 	findings 	and 	conclusions
and 	adopts 	the 	attached 	Order 	as 	the 	decision 	of 	the 	Board
itself.
In 	affirming 	the 	underlying 	Order, 	we 	approve 	the 	ALJ's
reasoning 	with 	the 	following 	comments. 	We 	agree 	with 	the ALJ
that 	CSU 	failed 	to 	carry 	its 	burden 	of 	demonstrating 	that 	the
charge 	of 	bad-faith 	participation 	in 	the 	grievance 	procedure 	is
amenable 	to 	arbitral 	resolution.3 As 	the 	ALJ 	noted, 	there 	is
It 	shall 	be 	unlawful 	for 	the 	higher
education 	employer 	to:
(a) 	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 	this 	chapter.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
2PERB 	regulations 	are 	codified 	at 	California
Administrative 	Code, 	title 	8, 	section 	31001 	et 	seq.
3We 	disagree 	with 	the 	dissenting 	member's 	assumption 	that
a 	charge 	of 	bad-faith 	participation 	in 	the 	grievance 	procedure
necessarily 	translates 	into 	an 	outright 	refusal 	to 	process
grievances 	and 	would 	thus 	be 	a 	clear 	contractual 	violation 	of
any 	grievance 	procedure 	set 	forth 	in 	a 	collective 	bargaining
agreement. 	There 	is 	no 	case 	authority 	for 	this proposition,
nor 	does 	the 	record 	in 	this 	case 	mandate 	the 	Board's 	(or 	an
arbitrator's) 	acceptance 	of 	this 	leap 	in 	reasoning. 	By 	denying
the 	deferral 	request, 	the majority 	does 	not 	specifically 	find
that 	the 	University 	did 	not 	violate 	the 	contract 	which 	may
include 	implied 	terms. 	Rather, 	we 	find 	that, 	regardless 	of
whether 	the 	contract 	in 	its 	broadest 	sense 	is 	violated, 	the
dispute 	is 	not 	amenable 	to 	arbitral 	resolution.
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no 	specific 	contract 	language 	addressing 	the 	conduct 	in
question, 	and 	the 	contract 	explicitly 	limits 	the 	authority 	of
an 	arbitrator 	solely 	to 	ruling 	on whether 	CSU's 	conduct
violated 	specific 	terms 	of 	the contract.
We 	find, 	however, 	additional justification for 	not
deferring 	this 	issue 	in National 	Labor 	Relations 	Board 	(NLRB)
decisions 	refusing 	to 	defer 	when 	the 	integrity 	of 	the
arbitration process 	itself 	is at 	issue. 	For example, 	in United
States Postal Service 	(1982) 	263 NLRB 357 	[111 LRRM 1534], 	the
NLRB was 	asked 	to defer 	to 	arbitration 	the 	question of 	whether
the 	employer 	had 	improperly 	altered 	its 	past practice 	of
releasing 	shop 	stewards 	to process 	grievances. 	The NLRB
declined 	to defer, 	adopting 	the ALJ's decision which 	stated, 	at
p. 366:
[N]oting 	that 	allegations 	of 	wrongdoing
which 	bear 	directly 	on 	a 	union's 	ability 	to
use 	the 	very 	grievance 	procedures 	themselves
are matters 	that go 	the 	[sic] 	core of 	labor-
management relations, 	I 	find that 	it would
not be appropriate to defer 	the 	issues 	in
the case 	to 	the arbitral process.
See 	also Native 	Textiles 	and Communications Workers 	of
America, 	Local 1127 	(1979) 	246 NLRB 228 	[102 LRRM 1456]. 	The
proper 	functioning 	of 	the grievance/arbitration process 	is 	of
similar 	importance 	to 	the 	labor 	relations 	scheme 	established 	by
HEERA, 	and 	it 	is equally 	inappropriate 	to defer 	the 	issue 	in
the 	instant case 	to arbitration. 	Sending 	the employees' 	charge
of 	bad-faith participation 	in 	the 	arbitration process 	back
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through 	the 	very process 	the 	employer 	has 	allegedly obstructed
and 	delayed 	is 	rather 	like 	a 	utility 	agency 	telling 	a 	person
whose 	phone 	is 	broken to call 	the 	telephone 	company 	to 	fix 	it.
ORDER
For 	the 	reasons 	stated 	above 	and 	in 	the 	attached Order, 	the
Board 	adopts 	the ALJ's Order 	as 	its 	own 	and 	the 	appeal 	of 	the
Order 	on Motion 	to Defer 	is 	hereby DENIED.
Chairperson Hesse 	joined 	in 	this Decision.
Jaeger, Member, 	dissenting: 	PERB's administrative law
judge 	places 	an 	unnecessary, 	and 	somewhat misguided, 	emphasis
on 	the Association's 	reference 	to 	a 	"covenant of 	good 	faith."
Although 	I 	agree 	that 	absence 	of good 	faith 	is 	not, 	by 	itself,
a basis 	for PERB deferral, 	I 	do find 	it of probative value 	in
determining 	whether 	a party has 	refused 	to 	engage 	in 	certain
required 	processes. 	Just 	as 	absence 	of 	good 	faith 	in
negotiations 	translates 	as 	a refusal 	to bargain, 	so 	lack of
good 	faith 	in processing 	a 	grievance 	requires 	a 	finding 	that
the 	party 	is 	really 	refusing 	to process 	the 	grievance.
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The 	negotiated 	agreement 	here 	requires 	the 	parties 	to
follow 	stipulated 	grievance 	procedures. 	The Union 	supports 	its
bad 	faith claim with 	factual 	allegations which, 	if 	true, 	would
establish 	that 	the 	University was 	effectively 	refusing 	to
process 	the 	grievance on 	holiday 	pay 	and 	certain 	other matters,
thus 	breaching 	its 	contractual 	obligation. 	According 	to 	the
contract, 	any 	alleged 	contractual 	breach may 	be 	subject 	to
final 	and 	binding 	arbitration 	upon demand 	by 	a 	party.
Thus, 	the 	issues 	raised 	here 	are whether 	the University did
actually conduct 	itself 	as 	the Union claims 	and, 	if 	so, 	whether
that 	conduct 	constituted 	a 	refusal 	to 	comply with 	the
contractual 	grievance 	procedures. 	By denying 	the 	deferral
request, 	the majority finds 	that 	the University did 	not 	breach
the 	contract 	and 	thus 	decides 	the 	very 	issue 	which 	the
arbitration 	procedure 	was 	designed 	to 	deal 	with.1
I 	do not 	find 	the 	cases 	cited 	by 	the majority, 	United
States Postal Service 	and Native Textiles, 	to 	stand 	for 	the
1The 	majority may 	also 	have 	indirectly 	decided 	the 	unfair
practice 	charge, 	albeit 	inadvertently, 	since the arbitration
and 	unfair 	practice 	issues 	appear 	to be 	identical. 	PERB's
normal 	inquiry 	in deferral matters 	is whether 	the 	issues 	raised
by 	the 	charge 	can 	be 	addressed 	by 	the 	arbitrator. 	The Board
does 	not 	consider 	the merits 	of 	the 	charge. 	The NLRB's
contract-related 	findings 	in Native Textiles 	and 	United 	States
Postal Service, 	infra, 	were occasioned 	by appeals 	from the
decisions 	of 	the 	administrative 	law 	judges 	who 	had 	conducted
full 	hearings on the 	unfair 	practice 	complaints 	as well 	as 	the
deferral 	issues. 	Here, 	of course, 	the 	unfair practice hearing
has 	not 	been 	held 	and only 	the 	deferral 	issue 	had 	reached 	the
Board.
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proposition 	they claim. 	In Postal Service, 	the NLRB 	law judge
made 	an 	express 	finding 	that 	the 	general 	counsel's 	complaint
did not 	allege 	a 	breach of 	the 	negotiated 	contract. 	Rather, 	he
found 	it 	to 	be 	a 	complaint 	that 	the 	employer 	had 	engaged 	in
"efforts 	to 	change 	the 	long-established 	policy 	under 	which
stewards" 	were 	to be 	released 	upon 	request, 	and 	that:
The General Counsel 	is 	seeking 	to 	have 	the
Board 	write 	finis 	to 	such 	continued 	efforts
and 	is 	not 	alleging 	that Respondent 	adopted
a 	temporary modification of 	a 	contractual
provision which would 	be 	susceptible 	to 	the
grievance-arbitration 	procedures 	for
appropriate 	clarification 	and
interpretation. 	P. 	366.
Since 	the 	decision 	rested 	on 	the 	finding 	that 	the 	complaint
did not 	allege 	a contract 	breach, 	the 	quotation 	selected 	by 	the
majority may be 	treated 	as dicta. 	Nevertheless, 	it should 	be
read 	together 	with Native Textiles, 	which 	the 	law 	judge 	cited
immediately 	following 	the 	quoted 	language. 	In Native Textiles,
the NLRB 	concluded 	that 	the 	parties' 	contract 	did 	not 	cover 	the
dispute 	on which 	arbitration was 	sought.2 But, 	perhaps 	of
greater 	significance 	is 	the 	fact 	that 	the 	three-member-NLRB
panel 	deciding 	this 	case 	included members 	Fanning 	and Jenkins,
both 	of 	whom 	have 	openly 	and 	consistently 	disagreed 	with 	and
refused 	to 	follow 	the 	board's 	Collyer 	deferral 	policy.3
2The 	employer 	refused 	to 	allow 	a 	certain 	union
representative 	to 	process 	an ongoing 	grievance.
3For 	a 	comprehensive 	presentation of Fanning's 	and
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Their 	views 	are 	demonstrated 	by 	the 	following:
The 	right 	of 	employees 	to designate 	and 	to
be 	represented 	by 	representatives 	of 	their
own 	choosing 	is 	a basic 	statutory
policy . 	. 	. 	and a fundamental right
guaranteed 	employees 	by Section 7 	of 	the
Act. 	When it is alleged, 	as here, 	that an
employer 	is 	refusing 	to 	recognize 	a
designated 	representative 	of 	its 	employees,
especially 	for 	a matter 	of 	such 	obvious
importance 	as processing grievances, 	it 	is
not 	simply a matter 	of 	contract
interpretation, 	but 	rather 	an alleged
interference 	with 	a 	basic 	statutory 	right
that 	this Board 	is 	entrusted 	with
protecting. 	Accordingly, 	it 	is not a matter
to be 	deferred 	to 	arbitration. 	Native
Textiles, 	p. 	229. 	(Emphasis added.)
Thus, 	it is clear 	that the judge 	in Postal Service, 	having
determined 	that 	no 	contract 	breach was 	charged, 	was 	necessarily
following 	the majority 	rationale 	in Native Textiles.
Of course, 	members Fanning and Jenkins, 	consistent with
their opposition to deferral, 	were 	"dissenting" 	from an
administrative 	policy 	voluntarily 	followed 	by 	other 	board
members. 	PERB members 	have no such 	latitude. 	Although, 	unlike
the Educational Employment Relations Act, 	HEERA 	contains 	no
provision mandating 	deferral, 	the Board 	has 	adopted Regulation
32620(b)(5) 	which 	does.4 See Regents 	of 	the University of
California 	(12/15/83) 	PERB Order Ad-139-H.
Jenkins' position on pre-arbitral deferral, 	see 	1 Morris, 	The
Developing Labor Law 	(2d ed. 	1983) 	Ch. 	20, pp. 	926-956.
4Subsection 32620(b)(5) 	provides:
(b) 	The 	powers 	and duties of 	such Board
agent 	shall be 	to:
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Finally, 	The majority's 	sympathy 	for 	the mythical 	telephone
subscriber 	perks 	up an otherwise 	regrettable decision, 	but
overlooks 	the 	fact 	that 	here 	it 	is 	the University, 	the 	alleged
"perpetrator," 	which 	is 	seeking 	binding 	arbitration 	to
determine whether 	it 	has 	indeed 	breached 	the 	collective
bargaining 	agreement. 	The 	majority might 	have 	expressed 	some
interest 	in why 	the 	disadvantaged 	telephone 	customer 	would 	not
accept 	the 	phone company's offer 	to 	refer 	his 	complaint 	to 	the
binding 	judgment 	of 	a mutually 	selected 	repairperson.5
I 	find 	that 	the 	dispute 	goes 	to the 	core of 	the meaning 	of
the 	contractual grievance 	provisions, 	that 	the 	party against
whom 	the 	claim of 	breach 	is 	alleged 	is 	willing - 	indeed,
requests 	- 	that 	the matter 	be 	referred 	to 	arbitration, 	and 	that
the 	grieving Union 	has 	provided 	no 	factual 	or 	legal 	basis 	for
this Board's 	refusal 	to comply with 	its 	obligations 	under
Regulation 32620(b)(5). 	I would therefore defer.
(5) 	Dismiss the 	charge or 	any part
thereof 	as 	provided 	in Section 32630 	if
it 	is 	determined 	that 	the 	charge or 	the
evidence 	is 	insufficient 	to establish 	a
prima facie case; 	or 	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.
5Ironically, 	the majority's 	parable 	better 	fits 	the ALJ's
conclusion 	that 	arbitration 	is 	not 	available 	because 	a 	grievance
had 	not 	been 	filed over 	the University's 	failure 	to process 	the
grievances, 	a 	view that 	places 	procedure 	above 	substance 	and,
to coin a word, 	"bureaupathy" 	over 	judicial purpose.
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• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATE 	EMPLOYEES 	TRADES 	COUNCIL
LOCAL 	1268, 	LIUNA 	AFL-CIO,
Charging 	Party,
v.
CALIFORNIA 	STATE 	UNIVERSITY
(SAN 	FRANCISCO),
Respondent.
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) 	Case 	No. 	SF-CE-.185-H
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) 	ORDER 	ON 	MOTION 	TO DEFER
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INTRODUCTION
On May 	21, 	1984, 	the 	respondent 	in 	this 	action 	filed 	a
motion 	to 	defer 	the matter 	to 	arbitration. 	On May 	30, 	1984,
the 	charging 	party 	filed 	a 	response 	to 	the 	motion 	to 	defer. 	A
review of 	the 	substance 	of 	the 	charge, 	the 	amendments 	to 	the
charge, 	and 	the 	procedural 	steps 	preceding 	the 	motion 	to 	def2r,
is 	required.
FACTUAL 	BACKGROUND
The 	charging 	party 	(Union) 	and 	the 	respondent 	(University)
are 	signatories 	to 	a 	collective 	bargaining 	agreement 	(or
contract) 	for 	a 	term 	commencing January 	25, 	1983 	and 	ending
June 	30, 	1984. 	The 	contract 	includes 	a 	grievance procedure
culminating 	in 	binding 	arbitration.
In 	July 	1983 	a 	dispute 	arose 	between 	the 	Union 	and 	the
University 	regarding 	the 	amount 	of 	holiday 	pay 	which 	certain
employees 	covered 	by 	the 	contract, 	employed 	at 	the 	Humboldt

campus 	of 	the 	University, 	were 	entitled 	to. 	The 	Union 	filed 	a
grievance 	about 	the 	dispute.
In 	August 	1983, 	there 	arose 	a 	dispute 	between 	the 	Union 	and
the 	University 	regarding 	the 	entitlement 	of 	certain 	employees
of 	the University, 	employed 	at 	the 	Chico 	campus, 	to 	holiday
pay. 	The 	Union 	filed 	a 	grievance 	about 	the 	dispute.
In September 	1983, 	two 	disputes 	arose 	between 	the
University 	and 	the 	Union 	regarding 	the 	University's 	decision 	to
subcontract 	to 	outside 	businesses 	work 	to 	be 	done 	on 	the
Sacramento 	campus 	of 	the 	University. 	In 	each 	of 	these 	two
cases, 	the Union 	alleged 	that 	the 	work 	was, 	or 	may 	have 	been,
bargaining 	unit 	work 	which 	should 	have 	been 	assigned 	to
bargaining 	unit 	employees. 	The 	Union 	filed 	a 	grievance 	about
each 	of 	the 	two 	subcontracting 	incidents.
None 	of 	the 	grievances 	was 	resolved 	at 	the 	pre-arbitration
level, 	and 	the 	Union 	notified 	the 	University 	it 	wished 	to
submit 	each 	grievance 	to 	arbitration.
Beginning 	in November 	1983, 	the 	Union 	proposed
consolidation 	of 	the 	Humboldt 	and 	Chico 	grievances 	into 	one,
for 	arbitration 	purposes, 	and 	consolidation 	of 	the 	two
Sacramento 	grievances 	into 	one, 	for 	arbitration 	purposes. the
University 	declined 	to 	agree 	to 	the 	consolidation 	proposals,
and 	indicated 	it 	preferred 	four 	different 	arbitrations.
In 	December, 	the 	Union 	counsel 	again 	sought 	University
consent 	to consolidate the 	two 	contracting-out 	grievances, 	and
2

the 	two 	holiday 	pay 	grievances. 	Alternatively, 	the 	Union
proposed 	choosing 	one 	arbitrator 	to 	hear 	all 	four
unconsolidated 	grievances 	consecutively 	on 	one 	day. 	Each 	of
these 	consolidation 	proposals 	was 	rejected 	by 	the 	University.
Following 	these 	exchanges, 	the 	Union 	filed 	a 	grievance
alleging 	that 	the 	University's 	refusal 	to 	consolidate 	the 	prior
grievances 	was 	itself 	a 	violation 	of 	the 	contract. 	And 	on
February 	16, 	1984, 	the 	Union 	filed 	an 	unfair 	practice 	charge
against 	the 	University, 	alleging 	that 	the 	University 	violated
HEERA 	section 	3571(a) 	and 	(b) 	by 	its 	refusal 	to 	consolidate
grievances 	for 	arbitration 	purposes, 	and 	by 	its 	delay 	in
processing 	the grievance 	about 	the 	refusal 	to 	consolidate, 	for •
the 	purpose 	of 	arranging 	arbitration 	on 	that 	dispute.1 The
Union's 	charge 	describes 	a 	sequence 	of 	events 	beginning 	with
the 	filing 	of 	the 	consolidation 	grievance 	on 	December 	21, 	1983,
and 	continuing 	until 	February 	15, 	1984.
1HEERA 	sections 	3571(a) 	and 	(b) 	read 	as 	follows:
It 	shall 	be 	unlawful 	for 	the 	higher
education 	employer 	to:
(a) 	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 	this 	chapter.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
w3

On March 	12, 	the 	charging 	party 	filed 	an 	amendment 	to 	the
charge, 	alleging 	that 	at 	various 	times 	after 	the 	filing 	of 	the
initial charge 	on 	February 	16, 	the 	University 	delayed
participation, 	or 	failed 	to participate 	in 	various 	ways, 	in 	the
contractual 	grievance 	process 	in 	connection with 	a 	third
grievance 	over 	holiday 	pay 	(referred 	to 	as 	the 	"In 	Lieu 	Day"
grievance). 	The 	charge 	alleged 	that 	the 	University had
violated 	sections 	3571(a) 	and 	(b) 	by 	this 	conduct.
On March 	16, 	the 	general 	counsel 	issued 	a 	complaint 	against
the 	University, 	incorporating 	the 	allegations 	of 	the 	charge 	as
amended 	on 	March 	8.
. .. .
At 	some 	point, 	the 	Union 	and 	the 	University 	agreed 	that 	the
consolidation 	grievance 	would 	be 	submitted 	to 	the 	arbitrator 	on
the 	basis 	of 	written 	briefs 	only, 	and 	that 	no 	evidence 	would 	be
presented. 	The 	University 	submitted 	to 	Arbitrator
Donald Wollett 	its 	letter 	brief 	on 	the 	matter 	on 	March 	27. 	The
Union 	submitted 	its 	letter 	brief 	in 	that 	arbitration 	on
April 	6, 	1984.
On 	May 	7, 	the 	charging 	party 	submitted 	a 	second 	amendment
to 	the 	charge, 	setting 	out 	a 	longer 	chronology 	of 	events,
beginning 	on 	December 	16, 	1983 	and 	continuing 	until 	May 	4,
1984. 	This 	chronology 	has 	to 	do 	with 	communications 	between
the 	Union 	and 	the 	University, 	or 	attempts 	at 	communication,
concerning 	three 	different 	grievances 	(the 	consolidation
grievance, 	the 	"in-lieu 	day" 	grievance, 	and 	the 	Bjorge
4

grievance).2 This 	amendment 	to 	the 	charge, 	like 	the 	initial
charge 	and 	the 	March 	8 	amendment, 	accused 	the 	University 	of
intentionally 	delaying 	and 	refusing 	to 	cooperate 	in 	the
contractual 	grievance 	procedure, 	and 	thereby 	denying 	to 	the
Union 	and 	to 	the 	employees 	represented 	by 	the 	Union 	rights
guaranteed 	by HEERA 	sections 	3571(a) 	and 	3571(b).
THE 	MAY 	7 	AMENDMENT 	TO 	THE 	CHARGE
An 	employer's 	refusal 	to 	process 	a 	union's 	contractual
grievances, 	or 	its 	unreasonable 	delay 	in 	processing 	or
answering 	grievances, 	violates 	NLRA 	sections 	8(a)(5) 	and
8(a)(l). 	Murphy Diesel Company 	(1970) 	184 	NLRB 	757
[76 LRRM 1469] ; 	American 	Beef Packers, 	Inc. 	(1971)
193 	NLRB 1117, 	1119 	[78 	LRRM 1508]. 	There 	appears 	to 	be 	no
PERB 	decision 	in 	which 	similar 	conclusions 	are 	reached 	by 	PERB
with 	respect 	to 	comparable 	provisions 	of 	HEERA 	sections 	3571(a)
and 	3571(c). 	However, 	in view of 	the 	similarity of 	HEERA
language 	to NLRA 	language 	in 	this 	respect, 	and 	in 	view 	of 	the
similarities 	of 	HEERA's 	purpose 	and 	the 	NLRA's 	purpose, 	it 	is
concluded 	that 	such 	conduct 	by 	an 	employer 	subject 	to 	the 	HEERA
would be 	a violation of HEERA sections 	3571(a) 	and 	(c).3
2The 	substance 	of 	these 	last 	two 	grievances 	was 	not
described 	in 	the 	charge.
3The 	construction 	of 	similar 	or 	identical 	provisions 	of
the National 	Labor 	Relations 	Act 	(hereafter 	NLRA), 	29 	U.S.C,
section 	141 	et 	seq., 	may 	be 	used 	to 	aid 	interpretation 	of 	the
w
	3
5

PERB regulation 	section 	32647 	authorizes 	a 	Board 	agent 	to
issued 	an 	amended 	complaint 	incorporating 	a 	charging 	party's
allegations of a respondent's unlawful conduct, 	if 	the
amendment charging 	party 	seeks 	to amend 	the 	complaint 	after 	the
complaint is 	issued. 	In this case, 	the 	facts 	alleged 	in the
May 	7 	amendment 	regarding 	events 	occurring 	after 	March 	are
closely 	related 	in 	subject matter 	to 	the 	facts 	alleged
concerning 	events 	which 	took 	place 	before 	issuance of 	the
complaint on March 16. 	The facts alleged, 	if 	true, would
establish 	a prima 	facie 	violation of HEERA sections 	3571(a)
and 	(c),4 under 	the 	authority cited 	above. 	Therefore, 	it 	is
hereby ordered 	that 	the complaint 	issued 	on March 	16 	be 	amended
to 	include 	the allegations of 	the May 	7 	amendment.
THE DEFERRAL 	MOTION
A party 	to 	a PERB proceeding 	seeking 	PERB deferral 	to a
grievance procedure 	in which 	the 	underlying dispute may be
resolved, 	has 	the burden of establishing 	that 	the grievance-
resolution mechanism 	is 	the 	result of 	collective 	bargaining,
and 	that 	the dispute 	set out 	by the 	charge 	is 	one which 	is
EERA. 	See, 	e.g., 	San Diego Teachers Assn. 	v. 	Superior Court,
24 Cal.3d 1, 	12-13; 	Fire Fighters Union v. 	City of Valley
(1974) 	12 Cal.3d 608, 618.
4The 	facts 	would 	also establish 	a derivative 	violation 	of
HEERA section 	3571(b). 	North Sacramento School District
(12/20/82) 	PERB Decision No. 	264.
66

cognizable 	under 	grievance 	machinery 	to 	which 	PERB 	must 	defer.
Regents 	of 	the 	University 	of 	California 	(San 	Francsico)
(2/15/84) 	PERB Prder 	No. 	Ad-139-H, 	and 	Charter 	Oak 	Education
Association 	(2/25/82) 	PERB Order 	No. 	Ad-125.
In 	this 	case, 	the 	respondent 	has 	shown 	there 	is 	a 	binding
arbitration 	provision 	in 	a 	collective 	bargaining 	agreement
between 	the 	University 	and 	the 	Union. 	However, 	the 	University
must 	also 	show 	that 	the 	disputes 	which 	underlie 	the 	charge 	are
amenable 	to 	decision 	and 	resolution 	under 	that 	grievance
machinery.
The 	instant 	cases 	involves 	two 	disputes. 	One 	dispute 	has
to 	do 	with 	the University's 	refusal 	to 	consolidate 	grievances.
The 	other 	dispute 	concerns 	the 	Union's 	allegation 	that 	the
University 	is 	denying 	to 	University 	employees 	and 	to 	the 	Union
rights 	guaranteed 	to 	each 	by 	the 	University's 	failure 	to
refusal 	to 	participate 	in 	good 	faith 	in 	the
grievance-resolution 	mechanism 	of 	the 	contract, 	by 	prompt
return 	of 	telephone 	calls, 	active 	participation 	in 	the 	choosing
of 	an 	arbitrator, 	and 	the 	selection 	of 	arbitration 	dates.
The 	consolidation 	dispute 	is 	clearly 	subject 	to 	resolution
by 	the 	arbitration 	process. 	The 	contract 	includes 	a provision
which 	indicates 	that 	the 	parties
may 	consolidate 	grievances 	on 	similar 	issues
at 	any 	level 	of 	the 	procedure. 	(Emphasis
added .)
The 	dispute 	is 	whether 	the 	University 	unreasonably 	refused 	to
77

agree 	to 	the 	Union's 	consolidation 	proposals. 	The 	parties 	have
submitted 	their 	dispute 	to 	an 	arbitrator 	chosen 	through
contractual 	procedures. 	All 	the 	factors 	supporting
pre-arbitral 	deferral 	are present, 	and 	it 	is 	appropriate 	for
the 	PERB to 	defer 	resolution 	of 	this 	dispute 	to 	the 	contractual
arbitration process.5	
UT
However, 	the 	question 	of 	whether 	the 	remainder 	of 	the
charge 	and 	complaint 	should 	be 	deferred 	raises 	different
considerations. 	First, 	there 	is 	no 	indication 	that' a grievance
has 	been 	filed 	with 	regard 	to 	the 	allegations 	of 	bad 	faith
participation 	in 	the 	grievance 	procedure. 	Second, 	several
provisions 	of 	the 	contract 	raise 	serious 	doubts 	about 	whether
this 	dispute 	is 	amenable 	to 	resolution 	by 	an 	arbitrator 	whose
authority 	arises 	from 	the 	contract. 	Section 	9.1 	of 	the
contract 	defines 	a 	grievance 	as,
(a) 	a 	written 	allegation 	by 	an 	employee 	that
there 	has 	been 	a violation, 	misapplication,
or 	misinterpretation 	of 	a 	specific 	term(s) 	of
this Agreement 	or 	(b) 	a written 	allegation 	by
an 	employee 	that 	there 	has 	been 	a 	violation,
misapplication, 	or misinterpretation 	of 	a
specific 	CSU 	policy 	governing 	working
conditions 	or 	CSU work 	rule.
Section 	9.10.f 	of 	the 	contract 	states:
It 	shall 	be 	the 	function 	of 	the 	arbitrator 	to
5The 	charging 	party 	retains 	the 	right 	to 	seek 	PERB 	action
if 	it 	believes 	the 	arbitrator's 	award 	to 	be 	repugnant 	to 	the
HEERA. 	PERB Regulation 	32661.
CO
5
8

rule 	on 	the 	specific grievance. 	The 	arbi-
trator 	shall 	be 	subject 	to 	the 	following
limitations:
(6) 	The 	standard 	for 	review 	of 	the
arbitrator 	is 	whether 	the CSU violated, 	mis-
term(s)
applied, 	or 	misinterpreted 	a 	specific
of 	the Agreement.
The 	respondent 	argues 	that 	there 	is 	an 	implied 	covenant 	of
good 	faith 	and 	fair 	dealing 	in 	every 	contract 	in 	California,
and 	cites 	several 	sections 	of 	Witkin's 	Summary 	of 	California
Law 	for 	that 	contention. 	However, 	it 	is 	clear 	in 	the
contractual 	language 	that 	the 	parties 	have 	delegated 	to 	an
arbitrator 	only 	the 	authority 	to 	rule 	on 	whether 	the
University's 	conduct 	violated 	a 	specific 	term 	of 	the 	agreement
The 	respondent 	asserts 	that 	a 	breach 	of 	the 	implied
covenant 	of 	good 	faith 	is 	subject 	to 	the 	grievance 	and
arbitration 	provisions 	of 	the 	contract, 	but 	in 	view 	of 	the
specific 	limitations 	on 	the 	definition 	of 	grievance, 	and 	on 	the
authority of 	the 	arbitrator, 	that 	bare 	assertion 	is
unpersuasive. 	The 	respondent 	cited 	no 	precedent 	establishing
the 	authority 	of 	an 	arbitrator 	to 	rule 	on 	whether 	an 	employer
has 	violated 	an 	implied 	covenant 	of 	good 	faith 	in 	a 	labor
contract. 	The 	cited 	sections 	of 	Witkin 	provide 	no 	such
precedent, 	and 	the 	leading 	authority 	in 	the 	field, 	How
-
Arbitration Works, 	Elkouri 	and 	Elkouri 	(3rd 	ed. 	1973) 	appears
to 	include 	no 	such 	precedent.
• 	•
9

The 	respondent 	also argues 	that 	in 	the 	absence of 	a
specific 	contractual provision 	for 	a 	time period 	in which 	an
arbitrator 	is 	to be chosen, 	it 	is 	implied 	that each party 	is
entitled 	to 	a 	time 	reasonable 	in 	the 	circumstances 	for 	choosing
an arbitrator, 	and 	the reasonableness 	of 	the University's
conduct 	in 	this 	respect 	is subject to decision by an
arbitrator. 	However, 	the dispute, 	as outlined 	in the May 7
amendment 	to the charge, 	has 	to do with a number 	of 	aspects of
the University's 	conduct 	aside 	from alleged 	delays 	in 	the
choosing 	of 	an 	arbitrator 	(including 	delays 	in pre-arbitration
stages of 	the grievance processing, 	in connection with 	two
grievances). 	Thus, 	the University's argument on 	this point 	is
relevant 	to only a part of 	the 	issue.
It 	is 	concluded, 	then, 	that 	the University has 	not shown
that 	the 	dispute 	set out 	in 	the charge 	is 	amenable 	to
resolution 	through 	the 	contractual 	dispute-resolution
mechanism. 	Therefore, 	the University has 	not carried 	its
burden of 	establishing 	that 	deferral 	is 	required 	of 	those
aspects of 	the 	charge concerning 	the University's 	alleged
delays 	and 	failure 	to cooperate 	in 	the 	contractual 	grievance
process.6
6There 	are 	a 	number 	of 	NLRB decisions 	in which 	the 	Board
held 	that 	if 	one 	aspect 	of 	a 	complaint 	is 	deferrable 	while
another 	is 	not, 	the 	Board 	will 	not 	defer 	any 	aspect 	of 	the
complaint 	if 	the 	facts 	concerning 	the 	two 	allegations 	are
10

ORDER
IT 	IS HEREBY ORDERED 	that 	the 	complaint 	in 	this 	action,
issued by 	the general counsel on March 	16, 	1984, 	be amended 	to
refer, 	in paragraph 4 of that complaint, 	to the charge as
amended on March 12, 	1984 	and on May 7, 	1984.
IT 	IS FURTHER ORDERED 	that 	the 	aspect of 	the 	complaint
herein which 	refers 	to 	the 	University's 	alleged 	refusal 	to
consolidate 	various 	grievances 	for 	arbitration purposes 	will 	be
deferred. 	The 	respondent's motion 	to defer 	PERB consideration
of 	all 	other 	aspects 	of 	the 	complaint 	is 	denied.
DATED: 	June 	6, 	1984
. .. . 	MARTIN 	FASSLER
Administrative 	Law 	Judge
inextricably 	intertwined 	(e.g., 	National 	Rejectors 	Industries
(1978) 234 NLRB 251 	[97 	LRRM 	1142]]). 	Our 	Board 	has 	not
specifically adopted 	this 	aspect 	of NLRB procedure. 	In 	any
event, 	the 	facts 	underlying 	the 	two 	aspects of 	the 	instant
charge 	are 	not 	"inextricably 	intertwined." 	The 	facts
underlying 	the Union's 	allegation 	that 	the University 	is
delaying 	and 	otherwise 	failing 	to 	cooperate 	in good 	faith 	in
the 	grievance-resolution 	procedure 	are 	quite 	distinct 	from 	the
facts 	concerning 	the University's 	refusal 	to consolidate 	the
specific 	grievances 	which 	the Union 	sought 	to 	consolidate.
11