State of California (Developmental Services) (Dixon) (PERB A145S)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
J.D.
	DIXON,
Charging
	Party,
v.
STATE
	OF
	CALIFORNIA
	(DEPARTMENT
	OF
DEVELOPMENTAL
	SERVICES),
Respondent.
)
)
)
)
)
)
)
)
)
)
____________________
)
Case
	No. 	LA-CE-141-S
PERB
	Order
	No. 	Ad-145-S
Administrative
	Appeal
(Interlocutory)
April
	11,
	1985
Appearances: 	J.D.
	Dixon,
	on
	his
	own
	behalf;
	Department
	of
Personnel 	Administration,
	by
	Christine
	A.
	Bologna 	and
Lester
	L.
	Jones, 	for
	State
	of
	California
	{Department
	of
Developmental
	Services).
Before
	Jaeger,
	Morgenstern
	and
	Burt,
	Members.
DECISION
JAEGER, 	Member:
	This
	interlocutory
	appeal
	by
	the
Department
	of
	Developmental
	Services
	iDepartment)
	is
	before 	the
Public
	Employment
	Relations
	Board
	(PERB
	or
	Board) 	upon
certification
	by 	an
	administrative
	law
	judge
	(ALJ)
	pursuant 	to
section
	32200
	of
	PERB's
	rules
	and
	regulations.
	The
	appeal
is
	from
	the
	ALJ's
	denial 	of 	the 	Department's 	motion
	to 	dismiss
the 	instant
	charge,
	which
	alleges 	that
	the
	Department
unlawfully 	discharged 	J.D.
	Dixon 	from
	his
	employment. 	The
motion
	was 	made 	on
	the 	grounds
	that,
	pursuant 	to
1
PERB's
	rules
	and
	regulations 	are 	codified 	at 	California
Administrative
	Code,
	title
	8, 	section
	31001,
	et
	seq.
l

section 	3514.S(a) 	of 	the 	State 	Employer-Employee 	Relations 	Act
(SEERA), 	PERB 	has 	no 	jurisdiction 	to 	hear 	the 	case. 	Section
3514.S(a) 	provides 	in 	pertinent 	part 	that:
2
Any 	employee, 	employee 	organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice 	charge, 	except 	that 	the
board 	shall 	not 	do 	either 	of 	the 	following:
••• 	i 	(2) 	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. 	However, 	when 	the
charging 	party 	demonstrates 	that 	resort 	to
contract 	grievance 	procedure 	would 	be
futile, 	exhaustion 	shall 	not 	be 	necessary •
. For 	the 	reasons 	which 	follow, 	we 	reverse 	the 	ALJ 	and
dismiss 	Mr. 	Dixon's 	charge.
PROCEDURAL 	HISTORY
On 	May 	24, 	1984, 	Charging 	Party 	J.D. 	Dixon 	filed 	an 	unfair
practice 	charge 	against 	his 	state 	employer 	alleging 	that 	the
Department 	of 	Developmental 	Services 	had 	harassed 	and,
ultimately, 	fired 	him 	because 	of 	his 	exercise 	of 	rights
guaranteed 	by 	the 	SEERA. 	The 	charge 	was 	assigned 	to 	PERB's 	Los
Angeles 	regional 	attorney 	for 	investigation.
The 	State's 	Department 	of 	Personnel 	Administration 	(DPA),
representing 	the 	respondent 	state 	employer, 	called 	the 	regional
attorney's 	attention 	to 	the 	collectively-negotiated 	contract
The 	SEERA 	is 	codified 	at 	Government 	Code 	section 	3512
et 	seq.
2
2

between 	the 	Department 	and 	Dixon's 	exclusive 	representative,
the 	Communication Workers 	of 	America· (CWA). 	That 	agreement
contains 	a 	provision 	prohibiting 	the 	employer 	from
discriminating 	against 	employees 	because 	of 	activity 	which 	is
protected 	by 	the 	SEERA. 	Another 	provision 	of 	the 	agreement
provides 	for 	a 	grievance 	procedure 	and 	specifies 	that 	if 	a
grievance 	is 	not 	resolved 	at 	the 	first 	three 	steps 	of 	the
procedure, 	CWA 	(but 	not 	an 	individual 	employee) 	shall 	have 	the
right 	to 	continue 	the 	grievance 	to 	binding 	arbitration.
Relying 	on 	these 	contract 	provisions, 	DPA 	urged 	the 	regional
attorney 	to 	dismiss 	the 	charge 	on 	the 	grounds 	that 	section
3514.S(a) 	requires 	PERB 	to 	defer 	where, 	as 	here, 	a 	charge 	is
based 	on 	conduct 	which 	constitutes 	a 	violation 	of 	a
collectively-negotiated 	contract 	and 	where 	that 	contract
provides 	for 	binding 	arbitration 	of 	such 	contract-violation
claims. 	The 	regional 	attorney 	acknowledged 	that 	the 	contract
does 	prohibit 	discrimination 	because 	of 	SEERA-protected
activity 	and 	does 	provide 	for 	binding 	arbitration 	of 	claims
that 	such 	discrimination 	has 	occurred. 	Nevertheless, 	he
refused 	to 	find 	deferral 	appropriate, 	citing 	the 	portion 	of
section 	3514.S(a) (2) 	which 	reads 	as 	follows:
However, 	when 	the 	charging 	party
demonstrates 	that 	resort 	to 	contract
grievance 	procedure 	would 	be 	futile,
exhaustion 	shall 	not 	be 	necessary.
In 	a 	letter 	to 	DPA dated 	August 	21, 	the 	regional 	attorney
explained 	his 	conclusion 	that 	resort 	by 	Dixon 	to 	the
3

contractual 	grievance 	procedure 	would 	be 	futile:
There 	is 	evidence 	of 	animosity 	between
Mr. 	Dixon 	and 	his 	union's 	officers. 	The
Union's 	representative 	has 	stated 	that 	he
cannot 	commit 	that 	the 	Union 	would 	take 	a
Dixon-filed 	grievance 	to 	arbitration. 	Under
the 	grievance 	procedure, 	the 	Union, 	not 	the
individual 	employee, 	has 	the 	right 	to
continue 	the 	grievance 	to 	arbitration.
Where 	there 	is 	animosity 	between 	an
individual 	and 	his 	union 	representatives 	who
are 	involved 	in 	grievance 	decisions,
deferral 	is 	inappropriate. 	Kansas 	Meat
Packers 	(1972) 	198 NLRB 	No. 	2. 	Such 	is 	the
case 	here, 	since 	the 	persons 	involved 	in 	the
decisions 	regarding 	whether 	to 	seek
arbitration 	are 	also 	persons 	who 	have 	a
strained 	relationship 	with 	the 	charging
party.
Having 	refused 	to 	defer, 	and 	finding 	further 	that 	the 	facts
alleged 	in 	the 	charge 	stated 	a 	prima 	facie 	case, 	the 	regional
attorney 	issued 	a 	complaint 	on 	September 	25. 	At 	no 	point 	did
the 	regional 	attorney 	reveal 	the 	specific 	evidence, 	discovered
in 	the 	course 	of 	his 	investigation, 	which 	led 	him 	to 	his
conclusion 	that 	animosity 	existed 	between 	Dixon 	and 	CWA 	of 	such
a 	kind 	as 	to 	show 	that 	CWA 	could 	not 	be 	expected 	to 	fairly
represent 	Dixon. 	Rather, 	he 	cited 	section 	32162 	of 	PERB's
regulations, 	explaining 	to 	DPA 	that 	evidence 	disclosed 	in 	the
course 	of 	a 	regional 	attorney's 	investigation 	is
confideptial. 3
3section 	32162 	states 	as 	follows:
The 	Board 	shall 	not 	disclose 	any
confidential 	statement 	submitted 	by 	a 	party,
4

On
	October 	17,
	DPA
	filed
	an 	answer
	to
	the 	complaint.
Accompanying
	the
	answer
	was 	a
	motion
	to 	dismiss
	on
	the
	grounds
that
	the 	matter
	should
	be
	deferred 	to
	arbitration.
	On
November
	9,
	Dixon
	submitted
	his
	opposition 	to
	DPA's
	motion
	to
dismiss
	setting 	forth 	allegations
	of
	fact
	in
	support 	of
	his
claim of
	CWA
	animosity
	towards
	him.
	On
	November
	30,
	again 	in
support 	of
	his
	claim 	of
	CWA
	animosity,
	he
	submitted
declarations
	and
	copies 	of
	leaflets
	which 	he
	allegedly 	prepared
personally
	and 	which
	contain
	criticism
	of 	the
	local
	and
national
	CWA
	organizations.
	Dixon's 	submissions 	provide
	the
information
	which
	follows.
Psychiatric
	Technicians
	Local
	11555,
	affiliated
	with
Communication Workers
	of
	America,
	is
	the 	exclusive
representative 	of
	all
	psychiatric 	technicians 	in California
state
	service.
	This
	statewide
	Local
	is
	part
	of
	CWA's
or 	the
	identity
	of
	any
	person
	who
	submitssuch
	a
	statement, 	unless 	the 	person
submitting 	the 	statement 	agrees 	to
disclosure 	or 	disclosure
	is
	required:
(a)
	Pursuant 	to 	Section
	32206,
	concerning
production 	of 	statements 	of 	witnesses
	after
direct
	testimony;
(b)
	In
	a
	court 	proceeding
	upon 	a
	complaint
for 	injunctive
	relief;
(c) 	By
	order 	of 	the
	Board
	itself:
(d) 	By
	final 	order 	of
	a
	court 	of 	competent
jurisdiction.
5

District
	11.
	In
	turn,
	the
	Local
	is
	subdivided
	such
	that
employees
	at
	each
	state
	psychiatric 	hospital
	constitute
	a
"chapter"
	of 	the 	Local.
The
	president 	of
	the
	Local
	is
	Angel
	Hernandez.
	The
	vice
president
	of
	CWA
	for
	District
	11
	is
	William
	"Bill"
	Demers.
Demers
	is
	the
	CWA
	official
	with
	authority 	to
	make
	all
	decisions
on
	taking 	grievances
	to
	binding
	arbitration.
Dixon
	has 	been
	a
	very
	active 	leader
	of
	a
	dissident
	employee
movement
	at
	the
	Camarillo
	Hospital
	Chapter.
	He
	was
	initially
very 	supportive 	of
	CWA
	and
	was 	a
	prominent
	organizer 	in
	CWA's
campaign 	which
	culminated
	in
	the
	certification
	election 	victory
of
	Local
	11555
	in
	November
	1981. 	Following
	this 	election,
	he
held 	the
	position
	of
	steward
	at
	Camarillo
	Hospital.
After 	the
	election 	victory,
	CWA
	Vice
	President
	Demers
removed 	most
	of 	the
	original
	Local
	organizers
	from
	their
positions.
	He
	then 	himself
	selected
	the 	persons 	to
	fill
	the
paid
	staff
	positions
	of 	the 	Local.
In
	March
	1982, 	Dixon
	ran 	for 	the
	office
	of
	Chapter
president.
	When
	he
	complained
	that
	candidates 	favored
	by
	the
District
	were
	using
	Union
	resources 	in 	their
	campaigns,
	the
election
	was
	cancelled
	by
	the
	District.
	Dixon
	thereupon
printed
	and
	distributed
	a
	flyer 	to
	employees.
	The
	flyer 	stated
the 	circumstances 	of 	the 	election 	cancellation
	and
	alleged 	that
the 	true 	reason 	for 	the 	cancellation
	was
	that
	he, 	Dixon, 	was
clearly
	going 	to 	win, 	an 	event 	which 	the 	District
	wanted
	to
6

avoid. 	Dixon 	also 	sent 	a 	letter 	of 	complaint 	to 	District 	head
Bill 	Demers.
In 	April, 	Dixon 	sent 	a 	long 	letter 	complaining 	of 	poor
union 	leadership 	to 	CWA 	President 	Glenn Watts 	in Washington,
D.C. 	In 	addition 	to 	itemizing 	his 	complaints, 	Dixon 	demanded
the 	removal 	of 	Bill Martin, 	assistant 	to 	District 	Vice
President 	Demers, 	and 	Liz 	Young, 	CWA 	staff 	representative 	at
Camarillo 	Hospital. 	Later 	that 	month, 	the 	locks 	on 	the 	door 	of
the 	Chapter 	office 	were 	changed 	and 	Dixon 	was 	denied 	a 	key
despite 	his 	status 	as 	steward. 	He 	contacted 	Local 	President
Hernandez, 	who 	told 	Dixon, 	"I 	don't 	want 	you 	to 	have 	[a 	key]."
On May 	1, 	1982, 	Dixon 	received 	a 	letter 	from 	CWA
representative 	Liz 	Young 	informing 	him 	that 	he 	was 	terminated
as 	CWA 	steward 	at 	Camarillo.
In 	June 	1983, 	Dixon 	ran 	again 	for 	the 	Chapter 	presidency
against 	CWA's 	paid 	staff 	representative 	at 	Camarillo. 	He 	won
the 	ballot 	count, 	but 	the 	election committee 	searched 	for
irregularities 	and 	leaked 	word 	to 	Dixon's 	opponent, 	who
thereupon 	filed 	an 	appeal. 	The 	election 	committee 	then 	ordered
that 	the 	election 	be 	repeated. 	Dixon 	also 	won 	the 	rerun
election.
On 	December 	24, 	Dixon 	sent 	a 	long 	letter 	to 	Local 	President
Hernandez 	charging 	him 	with 	extensive 	misconduct 	and 	ultimately
demanding 	his 	resignation. 	The 	letter 	ended 	with 	this
statement:
If 	you 	fail 	to 	resign 	I 	will 	do 	everything
7

within 	my 	power 	to 	see 	that 	you 	are 	formally
charged 	under 	the 	provisions 	of 	the
Constitution 	of 	Communication 	Workers 	of
America.
In 	February 	1984, 	CWA placed 	Local 	11555 	under 	trusteeship
at 	the 	request 	of 	President 	Hernandez. 	Dixon 	was 	thereafter
removed 	from 	the 	office 	of 	president 	of 	the 	Camarillo 	chapter
along 	with 	some 	other 	members 	of 	the 	Local's 	executive 	board.
Attached 	as 	exhibits 	to 	Dixon's 	declaration 	are 	copies 	of
letters 	and 	fliers 	substantiating 	the 	facts 	alleged 	in 	the
declaration. 	Also 	among 	these 	are 	copies 	of 	a 	newsletter
called 	"Concerned 	Psych 	Techs." 	The 	newsletter 	indicates 	that
it 	is 	a 	publication 	of 	a 	group 	of 	dissident 	members 	of
Local 	11555 	who 	also 	call 	themselves 	"Concerned 	Psych 	Techs."
The 	publication, 	of 	which 	Dixon 	is 	apparently 	chief 	editor 	and
writer, 	strongly 	attacks 	local 	and 	national 	CWA 	leadership. 	He
accused 	them 	of 	running 	a 	dictatorship 	after 	the 	Local 	was
placed 	in 	trusteeship. 	The 	trusteeship, 	he 	wrote, 	was 	imposed
after 	he 	and 	fellow 	Concerned 	Psych 	Techs 	were 	elected 	to
chapter 	presidencies 	and 	thereby 	gained 	a 	majority 	of 	seats 	on
the 	Local's 	executive 	board.
Dixon 	also 	circulated 	fliers 	under 	the 	Concerned 	Psych 	Tech
caption 	urging 	the 	electoral 	defeat 	of 	District 	Vice-President
Demers. 	One 	accuses 	Demers 	of 	ushering 	in 	the 	"Dark 	Ages" 	and
of 	implementing 	a 	scheme 	to 	take 	over 	control 	of 	the 	Local. 	It
also 	asserts 	that 	psych 	techs 	have 	been 	"forced 	to 	fight
8

without
	their
	union
	against
	the
	[employer]."
	A
second
	flyer
sets
	forth
	a
	long
	list
	of 	accusations
	against
	Demers.
ALJ's
	Ruling
	and
	the 	Department's
	Appeal
On
	December
	5, 	1984,
	the
	ALJ
	denied
	DPA's
	October
	17
	motion
to
	dismiss.
	Her
	grounds
	for
	the
	denial
	were
	stated
	as 	follows:
Based
	upon
	the 	findings
	made 	by
	the
	Regional
Attorney 	pursuant
	to
his 	confidential
investigation
	and ·based
	upon
	the
supplemental 	information 	provided
	by Mr.
Dixon 	on 	November 	9 and 	November
	30, 	1984,
it
	is
	determined
	that
	an
	adequate
	showing
has
	been
	made
	to
	reach 	the 	conclusion
	that
resort
	to 	the 	grievance
	arbitration
machinery
	would 	be
	futile.
Thereafter,
	she
	certified
	the 	Department's
	request 	to 	appeal
her 	ruling
	on
	an
	interlocutory 	basis 	to 	the
	Board
	itself.
On
	December
	13,
	DPA
	wrote
	to
	PERB's
	Chief
	ALJ
	requesting
that
	the
	scheduled 	hearing
	on
	the
	charge
	be
	stayed 	pending 	the
Board's 	resolution
	of 	the 	appeal.
	It
	also
	set
	forth
	the
Department's
	position
	on
	appeal.
	The
	Department
	argues
	first
that
	Dixon's 	submissions
	are 	inadequate 	because 	the 	conduct
revealed 	therein
	occurred
	outside
	SEERA's
	six-month
	statute
	of
limitations 	period.
	Second,
	it
	argues
	that 	in
	any
	event,
	and
particularly
	in
	light
	of 	Dixon's
	failure
	to 	actually
	ask
	CWA
	to
take 	his
	claim 	to
	arbitration,
	the 	information 	disclosed
	by
Dixon's 	submissions
	fails
	to 	prove
	that
	recourse 	to 	the
grievance 	procedure
	would 	be
	futile.
DISCUSSION
The
	appeal
	now
	before
	PERB
	is
	from 	a
	decision 	of 	an 	ALJ
9

denying 	Respondent's
	motion
	to 	dismiss 	the
	charge
	and
complaint.
	That
	decision,
	as
	noted
	above,
	was
	based
	on
	"the
findings
	made 	by
	the
	Regional
	Attorney~
	••
	and
	•••
	the
supplemental 	information 	provided
	by Mr.
	Dixon.	
. . 	. II
Initially
	we
	note
	that
	our 	review
	of 	the
	ALJ's
	ruling
	must
be
	based
	on
	the 	public
	record
	amassed
	thus
	far
	in
	the
	case.
The
	information
	collected
	by
	the 	regional 	attorney
	in
	the
course 	of
	his 	investigation,
	and
	thereafter
	kept
	confidential,
is
	not
	a
	part
	of
	that
	record.
	It
	is
	not
	clear
	from
	the
	ALJ's
order
	denying
	Respondent•s'motion
	whether 	she
	was 	made
	privy
	to
the 	confidential
	information 	discovered
	by
	the 	regional
attorney
	or
	whether,
	in
	basing 	her 	determination 	in
	part
	on
	his
findings,
	she
	was
	merely
	accepting 	as
	true 	his 	ultimate
findings.
	In
	either
	event,
	however,
	the
	ALJ
	committed
	error
	in
relying
	on
	information 	not
	a
	part
	of 	the 	public
	record
	in 	the
case.
	Respondent
	was
	entitled
	to
	know
	the
	specific 	factual
basis 	for 	the
	ALJ's
	ruling 	in 	order
	that
	it
	might 	have 	a
	fair
opportunity 	to
	respond
	to 	the 	issues 	raised 	thereby. 	In
	turn,
the
	Board
	cannot 	meaningfully 	review 	the 	ALJ's
	ruling
	on
Respondent's 	motion 	without
	knowing
	the
	specific 	basis 	for 	that
decision.
'
While
	the
	ALJ
	could 	not 	properly 	rely
	on
	the 	regional
attorney's 	findings, 	the 	record 	nevertheless 	contains
	a
substantial
	body
	of 	evidence 	bearing
	on
	the 	deferral 	issue
consisting 	of 	the 	uncontroverted 	declarations
	and 	documentary
10

evidence 	submitted 	to 	the 	ALJ 	by 	Dixon. 	The 	ALJ 	stated 	in 	her
order 	that 	her 	ruling 	was 	based 	on 	this 	evidence 	as 	well 	as 	the
regional 	attorney's 	findings. 	If 	this 	evidence 	is 	by 	itself
sufficient 	to 	support 	the 	ALJ's 	ruling, 	then 	her 	decision
should 	be 	affirmed. 4
This 	Board 	has 	not 	previously 	considered 	the 	standard 	by
which 	claims 	of 	futility 	such 	as 	the 	one 	now 	before 	us 	should
be 	decided. 	The 	National 	Labor 	Relations 	Board 	(NLRB),
however, 	has 	fot 	some 	time 	recognized 	and 	applied 	a 	doctrine 	of
pre-arbitral 	deferral 	which 	no 	doubt 	forms 	the 	basis 	of 	the
deferral 	policy codified 	in 	the 	labor 	relations 	acts
administered 	by 	PERB. 	Collyer 	Insulated 	Wire 	(1971) 	192 	NLRB
837 	[77 	LRRM 	1931]; 	Dry 	Creek 	Joint 	Elementary 	School 	District
(1980) 	PERB 	Order 	No. 	Ad-8la.
The 	Department 	on 	appeal 	argues 	£hat 	the 	facts 	submitted
by 	Dixon 	in 	support 	of 	his 	futility 	claim cannot 	properly 	be
considered 	by 	PERB 	because 	the 	events 	he 	relies 	on 	occurred
more 	than 	six 	months 	prior 	to 	the 	date 	he 	filed 	his 	charge.
This 	argument 	is 	based 	on 	a 	misunderstanding 	of 	the 	SEERA's
statute 	of 	limitations. 	Section 	3514.S(a) 	provides 	only 	that
PERB 	will 	not 	issue 	a 	complaint 	on 	a 	charge 	alleging 	that 	a
given 	event 	constitutes 	an 	unfair 	practice 	if 	that 	event
occurred 	more 	than 	six months 	prior 	to 	the 	filing 	of 	the
charge. 	Here, 	Dixon 	does 	not 	charge 	that 	the 	events 	referred
to 	in 	his 	submissions 	to 	the 	ALJ 	are 	unfair 	practices. 	He 	only
submits 	evidence 	of 	those 	events 	in 	support 	of 	his 	claim 	that
PERB 	should 	take 	jurisdiction over 	his 	charge 	that 	his
termination 	by 	the 	Department 	violated 	the 	SEERA's 	unfair
practice 	provisions. 	The 	Department 	does 	not 	contend 	that 	this
termination 	occurred 	more 	than 	six 	months 	prior 	to 	the 	date
Dixon 	filed 	his 	charge.
4
11

Decisions
	of 	the
	federal
	labor
	board
	interpreting
	the
private
	sector
	deferral
	doctrine
	were
	cited
	by
	the
	regional
attorney
	and,
	by
	adoption, 	the
	ALJ
	in
	their
	respective
determinations 	to
	send
	the
	instant
	charge
	to
	hearing 	before
this
	agency.
	These
	underlying
	determinations
	chiefly 	rely
	on
Kansas
	Meat
	Packers
	(1972) 	198
	NLRB
	543 	[80
	LRRM
	1473]. 	In
that
	case
	two
	employees
	were
	fired
	after
	repeatedly
	and
vociferously
	complaining
	to
	both
	management 	and
	their
	union's
business
	agent
	about
	safety
	conditions 	in 	the
	workplace.
	As 	a
result
	of 	these 	complaints,
	antagonism 	developed
	between
	the
two
	employees 	and
	the 	business 	agent. 	After
	angry 	exchanges
between
	these
	individuals,
	one
	of 	the
	employees
	resigned
	his
position
	as
	a
	union
	steward,
	and
	both
	men
	gave
	written 	notice
of 	resigning
	from
	union
	membership.
	Following
	the 	discharge 	of
the
	two 	men,
	their
	immediate
	supervisor
	testified
	that 	their
discharge
	had 	been
	requested
	by
	their
	business 	agent.
Thereafter 	the
	union 	took
	no
	action 	to
	protest
	or 	challenge 	the
firings.
	On
	these
	facts
	the
	board 	concluded 	as 	follows:
Under
	all
	the
	facts
	and
	circumstances
	setforth
	above
	-- 	particularly
	the 	apparentantagonism 	between
	the
	interests
	of 	the
discriminatees,
	on
	the
	one
	hand, 	and
	both
parties
	to 	the 	collective-bargaining
	--
contract 	herein,
	on
	the 	other,
	and
	the
discriminatees' 	resultant 	election 	to
refrain
	from
	seeking 	redress 	through
	thatcontract
1 s
	grievance 	procedures
	--
	we
conclude
	that
	it
	would 	be
	repugnant 	to 	the
purposes 	of 	the
	Act
	to 	defer 	to 	arbitrationin 	this 	case 	as 	to
	do 	so 	would
	relegate 	the
12

Charging
	Parties
	to
	an
	arbitral
	process
authored, 	administered,
	and
	invoked
	entirely
by
	parties 	hostile
	to
	their 	interests.
Other
	decisions 	of
	the
	NLRB
	reflect
	similar
considerations.
	Thus,
	in
	General
	Motors 	Corp.
	(1975) 	218
	NLRB
472 	[89
	LRRM
	1891],
	two
	employees
	again
	became
	disfavored
	by
their
	union.
	Evidence
	showed
	that
	union
	officials
	had
encouraged
	other
	employees
	to
	name
	the
	two
	disfavored
employees,
	falsely;
	as
	the
	instigators
	of
	a
	wildcat
	walkout
which
	had
	resulted 	in
	the 	suspension 	of
	all
	the
	participants.
When
	the
	employees
	did 	so,
	the
	two
	were
	discharged 	while
	the
other
	employees
	were
	reinstated.
	One
	union
	official
characterized
	one
	of 	the 	discharged
	employees
	as
	"a
	Communist
and
	a
	pinko
	and
	~verything"
	and
	told
	employees
	that
	the
	union
intended 	"to
	come
	out
	with
	a
	leaflet
	and 	show 	what
	a.
[expletive 	deleted]
	Communist 	he
	really
	is."
	On
	these
	facts
the
	NLRB
	refused 	to 	defer 	to 	grievance
	machinery
	in
	which
	the
union
	would 	be
	defending 	the
	two
	employees.
Upon
	review
	of 	the 	information 	submitted
	by
	Dixon,
	we
	find
that
	it
	fails
	to
	meet
	the 	standard 	suggested
	by
	the
	private
sector 	cases
	reviewed 	above. 	In 	those 	cases, 	the 	record
included
	a
	direct
	showing
	that
	the 	union
	had 	committed
	itself
to
	a
	position 	in
	conflict
	with 	the
	interest
	of 	the 	grievants.
In
	Kansas 	Meat
	Packers, 	supra, 	the 	union
	was 	shown	
to	
be
	the
originator
	and 	moving
	force 	behind 	the 	employer's 	discharge 	of
13

two 	grievants; 	in General 	Motors 	Corp., 	supra, 	the 	union 	again
actively 	contributed 	to 	the 	discharge 	of 	two 	grievants 	by
encourging 	employees 	to 	name 	the 	grievants 	as 	instigators 	of 	an
unprotected 	walkout.
In 	contrast, 	the 	instant 	record 	is 	devoid 	of 	evidence 	that
the 	union 	has 	acted 	in 	furtherance 	of, 	or 	even 	condones, 	the
employer's 	action 	of 	terminating 	Dixon's 	employment. 	While 	the
extensive 	evidence·of Dixon's 	own 	actions 	in 	opposition 	to
various 	union 	officials 	may 	invite 	speculation 	as 	to 	how 	the
union 	might 	be 	inclined 	to 	treat 	Dixon, 	we 	find 	such
speculation 	to 	be 	an 	insufficient 	basis 	to 	support 	a 	conclusion
that 	binding 	arbitration 	is 	unavailable 	to 	Dixon. 	There 	is 	no
assertion 	that 	Dixon 	has 	yet 	requested 	the 	union's 	assistance
or 	that 	the 	union 	has 	declined 	to 	represent 	him. 	Therefore,
because 	of 	the 	availability 	of 	collectively-bargained 	binding
arbitration, 	we 	are 	required 	in 	the 	circumstances 	of 	this 	case
and 	under 	the 	terms 	of 	section 	3514.S(a) 	to 	refuse 	to 	issue 	a
complaint. 	Should 	Dixon 	return 	to 	PERB 	with 	evidence ·that CWA
has 	in 	fact 	refused 	to 	take 	his 	case 	to 	arbitration, 	he 	may
refile 	his 	charge. 	Under 	the 	doctrine 	of 	equitable 	tolling,
the 	statute 	of 	limitations 	would 	begin 	to 	run 	only 	after 	he 	has
exhausted 	the 	grievance 	procedure 	of 	the 	collective 	bargaining
agreement. 	Los 	Angeles 	Unified 	School 	District 	(1983) 	PERB
Decision 	No. 	311.
14

ORDER
Upon
	the 	foregoing
	findings 	of
	fact
	and
	conclusions 	of
	law,
the
	charge
	in
	Case
	No.
	LA-CE-141-S
	is
	DISMISSED.
Members
	Morgenstern
	and
	Burt
	joined
	in
	this
	Decision.
15