State of California (Department of Corrections and Rehabilitation) (PERB A516S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA CORRECTIONAL PEACE
OFFICERS ASSOCIATION,
Charging Party,
v.
STATE OF CALIFORNIA (DEPARTMENT OF
CORRECTIONS AND REHABILITATION),
Respondent.
Case No. SA-CE-2173-S
PERB Order No. Ad-516-S
June 24, 2024
Appearances: Janice R. Shaw, Chief Counsel, and Jennifer L. Ragan, Staff Counsel,
for California Correctional Peace Officers Association; California Department of
Human Resources by Frolan R. Aguiling, Chief Counsel, Sandra L. Lusich, Deputy
Chief Counsel, Christopher E. Thomas, Assistant Chief Counsel, and Joanna Y.
Thomas, Labor Relations Counsel, for State of California (Department of Corrections
and Rehabilitation).
Before Banks, Chair; Krantz and Paulson, Members.
DECISION
PAULSON, Member: This case is before the Public Employment Relations
Board (PERB or Board) on an interlocutory appeal filed by Respondent State of
California (Department of Corrections and Rehabilitation) (CDCR) from an
administrative law judge’s (ALJ) order denying its two motions to defer an unfair
practice charge to arbitration. The ALJ denied Respondent’s motions on the ground
that CDCR withdrew its agreement to be bound by an arbitration award when it filed a
Petition to Vacate or Correct Arbitration Award (Petition) in superior court. Following
the order, CDCR’s appeal, and California Correctional Peace Officers Association’s

2
(CCPOA) opposition thereto, the ALJ certified CDCR’s appeal to the Board itself
pursuant to PERB Regulation 32200.1
Having reviewed the record and the parties’ arguments, we affirm the ALJ’s
conclusion that deferral to an arbitration award is not appropriate when the moving
party refuses to be bound by the award.
FACTUAL AND PROCEDURAL BACKGROUND
At all relevant times, correctional officer Tracylyn Lopez was employed at
Salinas Valley State Prison (SVSP) where she served as a CCPOA job steward. In
July 2019, CDCR issued Lopez a Notice of Adverse Action. In August 2019, CDCR
issued Lopez a suspension for 60 working days. Lopez appealed the suspension to
the State Personnel Board (SPB).
In October 2019, CCPOA filed a grievance alleging that CDCR had violated
section 5.03 of the parties’ memorandum of understanding (MOU) and the Ralph C.
Dills Act (Dills Act) by retaliating against Lopez for engaging in protected activity.2
CCPOA filed this unfair practice charge in January 2020. Both the grievance and
charge include substantially the same allegations.
SPB issued a decision in October 2020 sustaining the discipline against Lopez,
and Lopez subsequently filed a petition for writ of mandate in superior court
challenging SPB’s ruling.
1 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2 The Dills Act is codified at Government Code section 3512 et seq. MOU
section 5.03 tracks the language in Dills Act section 3519, subdivisions (a) and (b).

3
PERB’s Office of the General Counsel (OGC) issued a complaint in December
2020.
In July 2021, CDCR filed a Notice of Deferral to Arbitration in which it requested
that PERB defer the matter to arbitration and dismiss the complaint. Later that month,
CCPOA requested that the matter be placed into abeyance. At the end of July 2021,
OGC granted the abeyance and took CDCR’s motion to defer under submission.
The parties arbitrated the grievance in March 2022. In June 2022, the arbitrator
issued her decision sustaining the grievance. The arbitrator concluded that CDCR had
violated the MOU and ordered CDCR to vacate and rescind Lopez’s suspension,
make Lopez whole, and post a notice at SVSP regarding its violations.
In September 2022, CDCR filed its Petition in superior court, and CCPOA filed
a Counter-Petition to Confirm Arbitration Award (Counter-Petition). In April 2023,
CDCR filed a Request to Defer to Arbitration and Dismiss Charge (Request to Defer)
with PERB. On the same date, CCPOA filed a request for continued abeyance with
PERB. Soon after, the Board denied CCPOA’s request to continue abeyance of the
matter and referred CDCR’s Request to Defer to OGC for further processing. The
PERB case ultimately remained in abeyance through June 2023 without OGC ruling
on CDCR’s motion. In November 2023, OGC notified the parties that it had not been
able to resolve the complaint through the informal conference process, and that
CDCR’s April 2023 Request to Defer had been taken under submission for a
determination by a PERB ALJ.
The superior court held a hearing on the Petition and Counter-Petition in
November 2023 and issued its final judgment in January 2024. The court struck the

4
portion of the arbitrator’s award that ordered CDCR to rescind Lopez’s Notice of
Adverse Action and the accompanying make-whole order, leaving only the notice
posting in place. CCPOA appealed the ruling, and that appeal remains pending in the
California Court of Appeal.
In December 2023, the ALJ denied CDCR’s pending requests for deferral to
arbitration on the basis that CDCR’s Petition demonstrated its unwillingness to be
bound by the arbitration award. CDCR objected to the ALJ’s interlocutory order and
requested certification of the issues to the Board itself pursuant to PERB Regulation
32200. CCPOA opposed the appeal. The ALJ certified the interlocutory appeal to the
Board in January 2024.
DISCUSSION
A Board agent’s decision to defer a charge to arbitration and place it in
abeyance pending completion of such proceedings is an administrative determination
appealable under PERB Regulation 32360. (County of Orange (2022) PERB Order
No. Ad-496-M, p. 4.) In contrast, a Board agent’s denial of a request to defer a charge
to arbitration may only be appealed if the Board agent certifies it to the Board, as
occurred here. (Ramona Unified School District (1985) PERB Decision No. 517, p. 3.)
We next consider the substantive issue: whether CDCR’s filing of the Petition
precludes deferral to arbitration. In Trustees of the California State University (East
Bay) (2014) PERB Decision No. 2391-H, the Board noted that PERB will dismiss and
defer a complaint to an arbitrator’s award if: (1) the unfair practice issues were
presented to and considered by the arbitrator; (2) the arbitral proceeding was fair and
regular; (3) the parties agreed to be bound; and (4) the decision of the arbitrator was

5
not clearly repugnant to the purposes and policies of the statute. (Id. at p. 22; County
of Orange, supra, PERB Order No. Ad-496-M, p. 8.)
Here, CDCR’s successful Petition is sufficient to show that it does not agree to
be bound by the arbitrator’s award, thereby failing the third prong of the
post-arbitration deferral standard. The Petition, by its very terms, seeks to vacate the
arbitration award, or in the alternative, correct the award to strike any findings and
conclusions that allegedly “infringe on SPB’s jurisdiction,” i.e., the rescission of
Lopez’s suspension and the accompanying make-whole order. In either scenario,
CDCR refused to comply with the arbitrator’s order. Post-arbitration deferral is only
appropriate where all four elements are satisfied. Because that is not the case here,
we reject CDCR’s motion to defer to arbitration.
ORDER
The interlocutory appeal in Case No. SA-CE-2173-S is DENIED. The matter is
remanded to PERB’s Division of Administrative Law for proceedings consistent with
this Order.
Chair Banks and Member Krantz joined in this Decision.