Claremont Unified School District (PERB 2357E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DAVE LUKKARILA,
Charging Party, 	Case No. LA-CE-5727-E
V . 	PERB Decision No. 2357
February 21, 2014	CLAREMONT UNIFIED SCHOOL DISTRICT,
Respondent.
Appearances: Dave Lukkarila, on his own behalf; Fagen, Friedman & Fulfrost by Milton E.
Foster, Attorney, for Claremont Unified School District.
Before Martinez, Chair; Huguenin, Winslow and Banks, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by Dave Lukkarila (Lukkarila) from a dismissal and deferral to arbitration
of his unfair practice charge. The charge alleged that the Claremont Unified School District
(District) retaliated against Lukkarila for his involvement in various protected activities and
interfered with the rights of employees, in violation of sections 3540, 3543 and 3543.5(a) of
the Educational Employment Relations Act (EERA).'
On appeal, Lukkarila argues that the Office of the General Counsel misstated certain
factual allegations included in the charge and/or failed to grasp their legal significance when
determining whether the charge was appropriate for deferral. He urges the Board to reverse the
dismissal and issue a complaint. The District argues that Lukkarila's appeal is procedurally
EERA is codified at Government Code sections 3540 et seq. Unless otherwise noted,
all statutory references are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DA VE LUKKARILA,
Charging Party,
V.
CLAREMONT UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-5727-E
PERB Decision No. 2357
February 21, 2014
Appearances: Dave Lukkarila, on his own behalf; Fagen, Friedman & Fulfrost by Milton E.
Foster, Attorney, for Claremont Unified School District.
Before Martinez, Chair; Huguenin, Winslow and Banks, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by Dave Lukkarila (Lukkarila) from a dismissal and deferral to arbitration
of
his unfair practice charge. The charge alleged that the Claremont Unified School District
(District) retaliated against Lukkarila for his involvement in various protected activities and
interfered with the rights
of
employees, in violation
of
sections 3540, 3543 and 3543.5(a)
of
the Educational Employment Relations Act (EERA). 1
On appeal, Lukkarila argues that the Office
of
the General Counsel misstated certain
factual allegations included in the charge and/or failed to grasp their legal significance when
determining whether the charge was appropriate for deferral. He urges the Board to reverse the
dismissal and issue a complaint. The District argues that Lukkarila's appeal is procedurally
1 EERA is codified at Government Code sections 3540 et seq. Unless otherwise noted,
all statutory references are to the Government Code.

and substantively defective; that the charge is appropriate for deferral, and that the dismissal
should therefore be affirmed.
After reviewing the entire record in this matter in light of the relevant law," the Board
has determined that, the charge is not appropriate for deferral, pursuant to the "futility
exception" of EERA section 3541.5, subdivision (a)(2), because the exclusive representative,
the Claremont Faculty Association (Association),' is unwilling to arbitrate Lukkarila's
allegations. We therefore reverse the decision to dismiss and defer to arbitration and remand
the matter to the Office of the General Counsel to determine whether the charge states a prima
facie case.
We also take this opportunity to revise PERB's deferral procedures. We hold that, in
cases where the affirmative defense of deferral is asserted and the charging party cannot
invoke binding arbitration independent of the exclusive representative, the Office of the
General Counsel, as part of its initial investigation into the appropriateness of deferral, shall
determine not only whether the employer, but also whether the exclusive representative, is
ready and willing to proceed to arbitration before deferring the matter to arbitration.
I 	reviewing the dismissal of a charge, the Board assumes the essential facts alleged
in the charge are true. (San Juan Unified School District (1977) EERB Decision No. 12
before January 1, 1978, PERB was known as the Educational Employment Relations Board or
EERB]; Trustees of the California State University (Sonoma) (2005) PERB Decision
No. 1755-H.)
Lukkarila's appeal and his correspondence with the investigating Board agents
variously identified the exclusive representative as the "Claremont Faculty Association" and
the "California Faculty Association." The Board may take administrative notice of PERB's
own records for material that is of probative value in a matter before the Board. (San Ysidro
School District (1997) PERB Decision No. 1198.) PERB's records indicate that the Claremont
Faculty Association, and not the California Faculty Association, which represents certain
academic employees in the California State University system, is the appropriately identified
employee organization in this case.
2
and substantively defective; that the charge is appropriate for deferral, and that the dismissal
should therefore be affirmed.
After reviewing the entire record in this matter in light
of
the relevant law,2 the Board
has determined that, the charge is not appropriate for deferral, pursuant to the "futility
exception"
ofEERA
section 3541.5, subdivision (a)(2), because the exclusive representative,
the Claremont Faculty Association (Association),3 is unwilling to arbitrate Lukkarila's
allegations. We therefore reverse the decision to dismiss and defer to arbitration and remand
the matter to the Office
of
the General Counsel to determine whether the charge states a prima
facie case.
We also take this opportunity to revise PERB' s deferral procedures. We hold that, in
cases where the affirmative defense
of
deferral is asserted and the charging party cannot
invoke binding arbitration independent
of
the exclusive representative, the Office
of
the
General Counsel, as part
of
its initial investigation into the appropriateness
of
deferral, shall
determine not only whether the employer, but also whether the exclusive representative, is
ready and willing to proceed to arbitration before deferring the matter to arbitration.
n In reviewing the dismissal
of
a charge, the Board assumes the essential facts alleged
.in the charge are true. (San Juan Unified School District (1977) EERB Decision No. 12
[before January
1,
1978, PERB was known as the Educational Employment Relations Board or
EERB]; Trustees
of
the California State University (Sonoma) (2005) PERB Decision
No. 1755-H.)
3 Lukkarila's appeal and his correspondence with the investigating Board agents
variously identified the exclusive representative as the "Claremont Faculty Association" and
the "California Faculty Association." The Board may take administrative notice of PERB' s
own records for material that is of probative value in a matter before the Board. (San Ysidro
School District (1997) PERB Decision No. 1198.) PERB's records indicate that the Claremont
Faculty Association, and not the California Faculty Association, which represents certain
academic employees in the California State University system, is the appropriately identified
employee organization in this case.
2

PROCEDURAL HISTORY
On August 7, 2012, Lukkarila filed the present charge, which alleges various acts of
discrimination and interference with employee rights, in violation of EERA sections 3540, 3543,
and 3543.5, subdivision (a).
On October 19, 2012, the District filed a position statement, denying any wrongdoing and
asserting various affirmative defenses. Specifically, the District argued that the charge should be
dismissed for failure to specify an appropriate remedy; for PERB's lack of jurisdiction over
claims against a public school district or entity that is not the employer of the charging party; for
insufficient specificity in the factual statement of the charge; for failure to state a prima facie
case; and for inclusion of claims that overlap with pending grievances or that are otherwise
subject to dismissal and deferral to arbitration, pursuant to EERA section 3541.5,
subdivision (a)(2).
On October 29, 2012, counsel for the District provided PERB with written confirmation
of the District's willingness to "waive any contract-based procedural defenses . . . to any claims
[in Lukkarila's charge that are] controlled by the Collective Bargaining Agreement" between the
District and the Association.
On November 5, 2012, the Office of the General Counsel issued a warning letter
advising Lukkarila that all allegations included in the charge were appropriate for deferral to
the Collective Bargaining Agreement's (CBA) grievance and arbitration provisions, and that,
unless Lukkarila amended or withdrew the charge by November 26, 2012, the charge would be
dismissed and deferred. The warning letter stated that, "the issue raised by this charge," i.e.,
that "the District engaged in reprisals against Lukkarila because he gave notice of and
subsequently filed grievances," directly involved an interpretation of certain provisions of the
CBA and "whether the District's conduct is prohibited by the CBA." The warning letter also
3
PROCEDURAL HISTORY
On August
7,
2012, Lukkarila filed the present charge, which alleges various acts
of
discrimination and interference with employee rights, in violation
of
EERA sections 3540, 3543,
and 3543.5, subdivision (a).
On October 19, 2012, the District filed a position statement, denying any wrongdoing and
asserting various affirmative defenses. Specifically, the District argued that the charge should be
dismissed for failure to specify an appropriate remedy; for PERB's lack
of
jurisdiction over
claims against a public school district or entity that is not the employer
of
the charging party; for
insufficient specificity in the factual statement
of
the charge; for failure to state a prima facie
case; and for inclusion
of
claims that overlap with pending grievances or that are otherwise
subject to dismissal and deferral to arbitration, pursuant to EERA section 3541.5,
subdivision (a)(2).
On October 29, 2012, counsel for the District provided PERB with written confirmation
of
the District's willingness to "waive any contract-based procedural defenses
...
to any claims
[in Lukkarila's charge that are] controlled by the Collective Bargaining Agreement" between the
District and the Association.
On November 5, 2012, the Office
of
the General Counsel issued a warning letter
advising Lukkarila that all allegations included in the charge were appropriate for deferral to
the Collective Bargaining Agreement's (CBA) grievance and arbitration provisions, and that,
unless Lukkarila amended or withdrew the charge by November 26, 2012, the charge would be
dismissed and deferred. The warning letter stated that, "the issue raised by this charge," i.e.,
that "the District engaged in reprisals against Lukkarila because he gave notice of and
subsequently filed grievances," directly involved an interpretation of certain provisions
of
the
CBA and "whether the District's conduct is prohibited by the CBA." The warning letter also
3

advised Lukkarila of the District's willingness to waive all procedural, contract-based defenses
to arbitration of the claims in the charge. It further advised Lukkarila that the Office of the
General Counsel had found "no evidence . . . to indicate that the parties [to the CBA] are not
operating within a stable collective bargaining relationship."
After issuing the warning letter, the Office of the General Counsel granted Lukkarila
several extensions of time in which to amend or withdraw the charge.
By letter dated January 18, 2013, Lukkarila requested additional time in which to amend
the charge and provided the Board agent assigned to this case with additional information,
including copies of three grievances filed by Lukkarila on January 8, 2013.
Although additional extensions were granted, Lukkarila did not amend or withdraw the
charge. On February 7, 2013, the Office of the General Counsel dismissed and deferred the
matter to arbitration pursuant to PERB Regulation 32620, subdivision (b)(5)* and EERA
section 3541.5, subdivision (a)(2).
After additional extensions of time were granted to both parties, Lukkarila filed and
served his appeal on April 26, 2013. Attached to the statement of the appeal were 5 exhibits
which included documentation pertaining to Lukkarila's pending grievances against the District.
Lukkarila's appeal requests that the Board consider these grievances and his contention that the
Association is unwilling to advance Lukkarila's grievances to arbitration.
On June 5, 2013, the District filed and served its response to the appeal in which it
opposed Lukkarila's request for the Board to consider new information or additional factual
allegations, reiterated that the charge is appropriate for deferral, and urged the Board to affirm
the decision to dismiss and defer the charge to arbitration.
* PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
4
advised Lukkarila
of
the District's willingness to waive all procedural, contract-based defenses
to arbitration
of
the claims in the charge. It further advised Lukkarila that the Office
of
the
General Counsel had found "no evidence
...
to indicate that the parties [to the CBA] are
not
operating within a stable collective bargaining relationship."
After issuing the warning letter, the Office
of
the General Counsel granted Lukkarila
several extensions
of
time in which to amend or withdraw the charge.
By letter dated January 18, 2013, Lukkarila requested additional time in which to amend
the charge and provided the Board agent assigned to this case with additional information,
including copies
of
three grievances filed by Lukkarila on January
8,
2013.
Although additional extensions were granted, Lukkarila did not amend or withdraw the
charge. On February
7,
2013, the Office
of
the General Counsel dismissed and deferred the
matter to arbitration pursuant to PERB Regulation 32620, subdivision (b)(5)4 and EERA
section 3541.5, subdivision (a)(2).
After additional extensions
of
time were granted to both parties, Lukkarila filed and
served his appeal on April 26, 2013. Attached to the statement
of
the appeal were 5 exhibits
which included documentation pertaining to Lukkarila' s pending grievances against the District.
Lukkarila's appeal requests that the Board consider these grievances and his contention that the
Association is unwilling to advance Lukkarila' s grievances to arbitration.
On June 5, 2013, the District filed and served its response to the appeal in which it
opposed Lukkarila's request for the Board to consider new information or additional factual
allegations, reiterated that the charge is appropriate for deferral, and urged the Board to affirm
the decision to dismiss and defer the charge to arbitration.
4 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
4

Lukkarila's Request to Amend the Charge and/or Supplement the Record of this Appeal
Before proceeding to the allegations in Lukkarila's charge, we first consider his request
to amend the charge and/or to supplement the record of his appeal with new or additional
information. PERB's regulations do not permit a charging party to amend a dismissed charge,
unless and until the dismissal is reversed and remanded for further proceedings. (PERB
Regs. 32621 and 32647; Pittsburg Unified School District (1984) PERB Decision No. 318a.)
We therefore deny Lukkarila's request to amend the charge with any evidence or allegations
presented for the first time in his appeal.
However, pursuant to PERB Regulation 32635, subdivision (b), the Board may
supplement the record of an appeal with new supporting evidence for "good cause."
PERB has generally found "good cause" to do so, when the new allegations or supporting
evidence presented in an appeal could not have been discovered by the charging party with the
exercise of reasonable diligence before the charge was dismissed. (American Federation of
State, County, and Municipal Employees, Local 2620 (McGuire) (2012) PERB Decision
No. 2286-S.) Thus, "good cause" may be found when the events giving rise to the new
allegations or supporting evidence did not occur until after the charge was dismissed.
The new or additional information included in Lukkarila's appeal pertains largely to the
approximately 13 grievances which he filed against the District between February 2012 and
February 2013. Because this information, as well as copies of three grievances filed on
January 8, 2013, were already provided to the Office of the General Counsel before it
dismissed the charge, no further action by the Board is necessary for these documents to be
considered as part of the dismissed charge and as part of the record of Lukkarila's appeal.
However, Lukkarila's appeal also encompasses new information and allegations which
support his argument that "neither the . . . Association, nor the District wish[] to process [his]
5
Lukkarila's Request to Amend the Charge and/or Supplement the Record
of
this Appeal
Before proceeding to the allegations in Lukkarila' s charge, we first consider his request
to amend the charge and/or to supplement the record
of
his appeal with new or additional
information. PERB' s regulations do not permit a charging party to amend a dismissed charge,
unless and until the dismissal is reversed and remanded for further proceedings. 	(PERB
Regs. 32621 and 32647; Pittsburg Unified School District (1984) PERB Decision No. 318a.)
We therefore deny Lukkarila's request to amend the charge with any evidence or allegations
presented for the first time in his appeal.
However, pursuant to PERB Regulation 32635, subdivision (b), the Board may
supplement the record
of
an appeal with new supporting evidence for "good cause."
PERB has generally found "good cause" to do so, when the new allegations or supporting
evidence presented in an appeal could not have been discovered by the charging party with the
exercise
of
reasonable diligence before the charge was dismissed. (American Federation
of
State, County, and Municipal Employees, Local 2620 (McGuire) (2012) PERB Decision
No. 2286-S.) Thus, "good cause" may be found when the events giving rise to the new
allegations or supporting evidence did not occur until after the charge was dismissed.
The new or additional information included in Lukkarila' s appeal pertains largely to the
approximately
13
grievances which he filed against the District between February 2012 and
February 2013. Because this information, as well as copies
of
three grievances filed on
January 8, 2013, were already provided to the Office
of
the General Counsel before it
dismissed the charge, no further action by the Board is necessary for these documents to be
considered as part of the dismissed charge and as part of the record of Lukkarila' s appeal.
However, Lukkarila's appeal also encompasses new information and allegations which
support his argument that "neither the
...
Association, nor the District wish[] to process [his]
5

grievances in a meaningful manner," and which were not presented to the investigating Board
agents before the charge was dismissed. Specifically, the appeal asserts that on November 20,
2012, Lukkarila learned from Kim Breen (Breen)" that the Association's Representative Council
had decided to reconsider whether to advance Lukkarila's March 20, 2012 grievances to
arbitration. The appeal states that Breen also informed Lukkarila that the Association would no
longer authorize an attorney to prepare a letter to the District about alleged violations of
employee rights, as previously requested by Lukkarila. Lukkarila's appeal asserts that in the
ensuing weeks, he left several messages for Dave Chamberlain (Chamberlain), the Association's
president, about the Representative Council's reconsideration of these grievances but that
Chamberlain did not respond until "a few days" before February 12, 2013, when the
Representative Council's "revote" was scheduled to take place. As a result, Lukkarila asserts
that he was unable to attend the meeting and present his case to the Representative Council.
Lukkarila's appeal further asserts that, in his absence, the Representative Council voted
on February 12, 2013 to reverse its previous decision to advance the two March 20, 2012
grievances to arbitration. The Representative Council allegedly also voted not to advance three
more of Lukkarila's grievances to arbitration, including his June 12, 2012 grievance alleging that
Brett O'Connor (O'Connor) threatened the Association president during an April 30, 2012
disciplinary meeting and thereby interfered with the rights of employees to be represented and to
engage in other protected conduct. Lukkarila's appeal also asserts that, on March 12, 2013, the
Representative Council voted not to advance to arbitration his three January 8, 2013 grievances,
which alleged, among other things, that the District has retaliated against Lukkarila for filing
grievances, bringing the present unfair practice charge, and engaging in other protected activity.
The appeal identifies Breen as an "advisor" employed by "Ontario Uniserv" and by
the California Teachers Association. The precise relationship between the California Teachers
Association, Ontario Uniserv and the Association is not discussed in the charge.
6
grievances in a meaningful manner," and which were not presented to the investigating
Board
agents before the charge was dismissed. 	Specifically, the appeal asserts that on November 20,
2012, Lukkarila learned from Kim Breen (Breen)5 that the Association's Representative Council
had decided to reconsider whether to advance Lukkarila's March 20, 2012 grievances to
arbitration. The appeal states that Breen also informed Lukkarila that the Association would no
longer authorize an attorney to prepare a letter to the District about alleged violations
of
employee rights, as previously requested by Lukkarila. Lukkarila's appeal asserts that in the
ensuing weeks, he left several messages for Dave Chamberlain (Chamberlain), the Association's
president, about the Representative Council's reconsideration
of
these grievances but that
Chamberlain did not respond until
"a
few days" before February 12, 2013, when the
Representative Council's "revote" was scheduled to take place. As a result, Lukkarila asserts
that he was unable to attend the meeting and present his case to the Representative Council.
Lukkarila's appeal further asserts that, in his absence, the Representative Council voted
on February 12, 2013 to reverse its previous decision to advance the two March 20, 2012
grievances to arbitration. The Representative Council allegedly also voted not to advance three
more
of
Lukkarila' s grievances to arbitration, including his June 12, 2012 grievance alleging that
Brett O'Connor (O'Connor) threatened the Association president during an April 30, 2012
disciplinary meeting and thereby interfered with the rights
of
employees to be represented and to
engage in other protected conduct. Lukkarila's appeal also asserts that, on March 12, 2013, the
Representative Council voted not to advance to arbitration his three January 8, 2013 grievances,
which alleged, among other things, that the District has retaliated against Lukkarila for filing
grievances, bringing the present unfair practice charge, and engaging in other protected activity.
5 The appeal identifies Breen as an "advisor" employed by "Ontario Uniserv" and by
the California Teachers Association. The precise relationship between the California Teachers
Association, Ontario Uniserv and the Association is not discussed in the charge.
6

Much of this information, particularly the information concerning the Representative
Council's decision not to take some of Lukkarila's grievances to arbitration, pertains to events
allegedly occurring after February 14, 2013, when the charge was dismissed. By definition,
this information was therefore not previously available to Lukkarila through the exercise of
reasonable diligence. (American Federation of State, County, and Municipal Employees,
Local 2620 (McGuire), supra, PERB Decision No. 2286-S.)
Because Lukkarila asserts that he was unable to attend the February 12, 2013 meeting
at which the Representative Council decided to abandon some of his grievances, it is also
unclear whether he learned of the Council's decision on the same day or later. Moreover, the
Representative Council's February 12, 2013 decision affected a subset of Lukkarila's 13
grievances, whose allegations overlap with those in his Board charge. Thus, even if we were
to determine that Lukkarila had failed to exercise reasonable diligence by neglecting to notify
the investigating Board agents of the Representative Council's February 12, 2013 decision on
or before February 14, 2013, when the charge was dismissed and deferred to arbitration, that
determination would not fully dispose of either Lukkarila's request for the Board to consider
new information and allegations on appeal."
Where the "new" information included in Lukkarila's appeal pertains to earlier events,
for example, Lukkarila learning in November 2012 of the Representative Council's decision to
reconsider arbitrating some of his grievances, Lukkarila cannot be expected to have amended
his charge based on a possible outcome of the "revote."
As discussed below, we decline to bifurcate the allegations of Lukkarila's charge by
deferring only those that meet the statutory requirements for deferral, while the remaining
allegations are heard before PERB. Accordingly, even if we were to determine that Lukkarila
could have notified the Board agents of the Representative Council's decision to abandon his
grievance before his charge was dismissed two days later, it would not dispose of the central
issue raised by his appeal - whether the present charge, in its entirety, is appropriate for
deferral.
7
Much of this information, particularly the information concerning the Representative
Council's decision not to take some of Lukkarila's grievances to arbitration, pertains to events
allegedly occurring after February 14, 2013, when the charge was dismissed. By definition,
this information was therefore not previously available to Lukkarila through the exercise of
reasonable diligence. (American Federation of State, County, and Municipal Employees,
Local 2620 (McGuire), supra, PERB Decision No. 2286-S.)6
Because Lukkarila asserts that he was unable to attend the February 12, 2013 meeting
at which the Representative Council decided to abandon some of his grievances, it is also
unclear whether he learned of the Council's decision on the same day or later. Moreover, the
Representative Council's February 12, 2013 decision affected a subset ofLukkarila's 13
grievances, whose allegations overlap with those in his Board charge. Thus, even if we were
to determine that Lukkarila had failed to exercise reasonable diligence by neglecting to notify
the investigating Board agents of the Representative Council's February 12, 2013 decision on
or before February 14, 2013, when the charge was dismissed and deferred to arbitration, that
determination would not fully dispose of either Lukkarila's request for the Board to consider
new information and allegations on appeal. 7
6 Where the "new" information included in Lukkarila' s appeal pertains to earlier events,
for example, Lukkarila learning in November 2012 of the Representative Council's decision to
reconsider arbitrating some of his grievances, Lukkarila cannot be expected to have amended
his charge based on a possible outcome of the "revote."
7 As discussed below, we decline to bifurcate the allegations of Lukkarila' s charge by
deferring only those that meet the statutory requirements for deferral, while the remaining
allegations are heard before PERB. Accordingly, even if we were to determine that Lukkarila
could have notified the Board agents of the Representative Council's decision to abandon his
grievance before his charge was dismissed two days later, it would not dispose of the central
issue raised by his appeal - whether the present charge, in its entirety, is appropriate for
deferral.
7

Because the new information included in Lukkarila's appeal regarding the
Representative Council's reconsideration and ultimate decision not to arbitrate some or all of
Lukkarila's grievances was not previously available, and because it is also germane to whether
the present charge is appropriate for deferral, we find "good cause" to consider it as part of the
record of the appeal, at least to the extent it relates to the statutory "futility exception" to
deferral discussed below.
FACTUAL BACKGROUND
Lukkarila is employed by District as a certificated teacher at Claremont High School in a
bargaining unit exclusively represented by the Association. At all times material to this charge,
the District and the Association were parties to the CBA, which remains in effect until June 30,
2015. Lukkarila is a member of the Association. However, he holds no elected or appointed
office with the organization and he does not allege that he otherwise has any authority to speak
or act on its behalf.
Article VII of the CBA provides for a multi-step grievance procedure ending in binding
arbitration. However, Article VII.7.5 provides that, "No grievant may proceed to [arbitration]
without the consent of the Association." Article VII, section 7.6.3 also provides that, "No party
to a grievance shall take any reprisals against the other party to the grievance because he/she
participated in an orderly manner in the grievance procedure."
Article XVI, sections 16.4.2 and 16.4.3 additionally govern the procedures for
observation and evaluation of bargaining unit employees.
Article XIX, section 19.1 includes language providing for safe working conditions, while
section 6 includes a procedure for reporting unsafe or hazardous conditions.
Lukkarila alleges that he scheduled a meeting for February 3, 2012 with Assistant
Principal Steve Patterson (Patterson) to discuss health and safety concerns and to notify the
8
Because the new information included in Lukkarila' s appeal regarding the
Representative Council's reconsideration and ultimate decision not to arbitrate some or all
of
Lukkarila' s grievances was not previously available, and because it is also germane to whether
the present charge is appropriate for deferral, we find "good cause" to consider it as part
of
the
record
of
the appeal, at least to the extent it relates to the statutory "futility exception" to
deferral discussed below.
FACTUAL BACKGROUND
Lukkarila is employed by District as a certificated teacher at Claremont High School in a
bargaining unit exclusively represented by the Association. At all times material to this charge,
the District and the Association were parties to the CBA, which remains in effect until June 30,
2015. Lukkarila is a member
of
the Association. However, he holds no elected or appointed
office with the organization and he does not allege that he otherwise has any authority to speak
or act on its behalf.
Article VII
of
the CBA provides for a multi-step grievance procedure ending in binding
arbitration. However, Article VII.7.5 provides that, "No grievant may proceed to [arbitration]
without the consent
of
the Association." Article VII, section 7.6.3 also provides that, "No party
to a grievance shall take any reprisals against the other party to the grievance because he/she
participated in an orderly manner in the grievance procedure."
Article XVI, sections 16.4.2 and 16.4.3 additionally govern the procedures for
observation and evaluation of bargaining unit employees.
Article XIX, section 19
.1
includes language providing for safe working conditions, while
section 6 includes a procedure for reporting unsafe or hazardous conditions.
Lukkarila alleges that he scheduled a meeting for February 3, 2012 with Assistant
Principal Steve Patterson (Patterson) to discuss health and safety concerns and to notify the
8

District of Lukkarila's intent to file a grievance alleging that the presence of mold in Lukkarila's
classroom violated state law and the CBA. Lukkarila further alleges that, after he informed
Patterson of his intent to bring Association Representative Chamberlain and Association
President Joe Tonan (Tonan) to the February 3, 2012 meeting, Patterson, who was accompanied
by O'Connor, excluded Tonan from the meeting and changed the agenda to a discussion of the
District's concerns about Lukkarila's performance.
Beginning February 7, 2012, which was the first work day following Lukkarila's notice,
he was subject to formal observations over five consecutive days, and received two adverse
observations. A summary report of these observations issued on February 14, 2012. Lukkarila
disputes the factual accuracy and conclusions of the summary report, and has requested that the
summary report be destroyed along with all related reports of "pop-in" observations of his
classroom. In the ensuing four-month period, Lukkarila alleges that he was subject to
observation 12 times, which he alleges is in excess of what is permitted by the CBA.
On March 20, 2012 Lukkarila filed two grievances against the District. One of these
grievances alleged various health and safety violations, while the second alleged that District
personnel had interfered with the grievance process, in violation of the "no reprisals" language of
Article 7.6.3. On March 22, 2012, O'Connor allegedly "berated" Lukkarila for his efforts to
enforce the safety provisions of the CBA.
In addition to the two grievances filed on March 20, 2012, on April 30, 2012, Lukkarila
filed two more grievances. On June 5, 2012, the Association's Representative Council voted
19-1 to advance Lukkarila's two March 20, 2012 grievances to arbitration.
On or about May 30 and July 26, 2012, Lukkarila filed two more grievances. The July 26
grievance alleged, among other things, that the District had violated the "no reprisals" language
in the CBA by subjecting Lukkarila to excessive scrutiny, treating him disparately, and carrying
9
District
of
Lukkarila' s intent to file a grievance alleging that the presence
of
mold in Lukkarila' s
classroom violated state law and the CBA. 	Lukkarila further alleges that, after he informed
Patterson
of
his intent to bring Association Representative Chamberlain and Association
President Joe Tonan (Tonan) to the February 3, 2012 meeting, Patterson, who was accompanied
by O'Connor, excluded Tonan from the meeting and changed the agenda to a discussion
of
the
District's concerns about Lukkarila's performance.
Beginning February 7, 2012, which was the first work day following Lukkarila's notice,
he was subject to formal observations over five consecutive days, and received two adverse
observations. A summary report
of
these observations issued on February 14, 2012. Lukkarila
disputes the factual accuracy and conclusions
of
the summary report, and has requested that the
summary report be destroyed along with all related reports
of
"pop-in" observations
of
his
classroom. In the ensuing four-month period, Lukkarila alleges that he was subject to
observation 12 times, which he alleges is in excess
of
what is permitted by the CBA.
On March 20, 2012 Lukkarila filed two grievances against the District. One
of
these
grievances alleged various health and safety violations, while the second alleged that District
personnel had interfered with the grievance process, in violation
of
the "no reprisals" language of
Article 7.6.3. On March 22, 2012, O'Connor allegedly "berated" Lukkarila for his efforts to
enforce the safety provisions
of
the CBA.
In addition to the two grievances filed on March 20, 2012, on April 30, 2012, Lukkarila
filed two more grievances. On June 5, 2012, the Association's Representative Council voted
19-1 to advance Lukkarila' s two March 20, 2012 grievances to arbitration.
On or about May 30 and July 26, 2012, Lukkarila filed two more grievances. The July 26
grievance alleged, among other things, that the District had violated the "no reprisals" language
in the CBA by subjecting Lukkarila to excessive scrutiny, treating him disparately, and carrying
9

out other "discriminatory reprisals" against him, because he had filed grievances and
administrative complaints regarding health and safety and other matters.
On August 7, 2012, Lukkarila filed the present charge. The charge alleges that District
officials have reprimanded and disciplined Lukkarila and subjected him to unwarranted scrutiny
for filing grievances, and that the District interfered with Lukkarila's freedom of speech by
requiring him to submit information requests pertaining to his grievances through the offices of
the Association rather than directly to the District.
The charge also alleges that, on April 30, 2012, O'Connor "unnecessarily threatened"
Tonan while he was representing Lukkarila in a disciplinary meeting." The specifics of the threat
are not set forth in the charge but are apparently included in the narrative portion of a June 12,
2012 grievance, a copy of which was included with Lukkarila's appeal. According to
Lukkarila's grievance statement, O'Connor informed Lukkarila and Tonan that Lukkarila would
Lukkarila includes this allegation in his July 26, 2012 grievance and in the present
unfair practice charge. Without deciding whether, or to what extent the right to self-
representation under EERA section 3543, subdivision (a) affords an individual employee a
right to request and obtain from a public school employer information that is presumptively
necessary and relevant for processing a health or safety grievance or complaint against a public
school employer (Oakdale Union Elementary School District (1998) PERB Decision No. 1246;
County of Riverside (2009) PERB Decision No. 2090-M), by Lukkarila's own account, it was
not until April 2013, that the Association's Representative Council decided that it would no
longer represent any of Lukkarila's 13 pending grievances. Thus, to the extent this issue must
be decided on remand, it will presumably be limited to the period after April 2013 when the
Association no longer represented Lukkarila's grievances.
'Neither the warning letter nor the Office of the General Counsel's dismissal letter
specifically mentions or discusses either Lukkarila's allegation in the statement of the charge that
the Association president was "unnecessarily threatened" during a disciplinary meeting, or the
additional narrative account included in Lukkarila's June 12, 2013 grievance, which was
provided to the investigating Board agents.
10
out other "discriminatory reprisals" against him, because he had filed grievances and
administrative complaints regarding health and safety and other matters.
On August
7,
2012, Lukkarila filed the present charge. The charge alleges that District
officials have reprimanded and disciplined Lukkarila and subjected him to unwarranted scrutiny
for filing grievances, and that the District interfered with Lukkarila' s freedom
of
speech
by
requiring him to submit information requests pertaining to his grievances through the offices
of
the Association rather than directly to the District. 8
The charge also alleges that, on April 30, 2012, O'Connor "unnecessarily threatened"
Tonan while he was representing Lukkarila in a disciplinary meeting.9 The specifics
of
the threat
are not set forth in the charge but are apparently included in the narrative portion
of
a June 12,
2012 grievance, a copy
of
which was included with Lukkarila's appeal. According to
Lukkarila's grievance statement, O'Connor informed Lukkarila and Tonan that Lukkarila would
8 Lukkarila includes this allegation in his July 26, 2012 grievance and in the present
unfair practice charge. Without deciding whether, or to what extent the right to self-
representation under EERA section 3543, subdivision (a) affords an individual employee a
right to request and obtain from a public school employer information that is presumptively
necessary and relevant for processing a health or safety grievance or complaint against a public
school employer (Oakdale Union Elementary School District (1998) PERB Decision No. 1246;
County
of
Riverside (2009) PERB Decision No. 2090-M), by Lukkarila's own account, it was
not until April 2013, that the Association's Representative Council decided that it would no
longer represent any
of
Lukkarila's
13
pending grievances. Thus, to the extent this issue must
be decided on remand, it will presumably be limited to the period after April 2013 when the
Association no longer represented Lukkarila's grievances.
9 Neither the warning letter nor the Office of the General Counsel's dismissal letter
specifically mentions or discusses either Lukkarila's allegation in the statement of the charge that
the Association president was "unnecessarily threatened" during a disciplinary meeting, or the
additional narrative account included in Lukkarila's June 12, 2013 grievance, which was
provided to the investigating Board agents.

be disciplined for failing to attend an Individualized Education Program (IEP) meeting. " Tonan
requested a list of all other teachers who had missed an IEP meeting during the previous two
years along with copies of any related disciplinary measures. O'Connor allegedly laughed,
slapped his hand on his desk and refused to provide the requested information. He allegedly also
characterized Tonan's request as "the oldest . . . trick in the book." After Tonan asked O'Connor
if he was "really going to defy the [Association by] refusing [Tonan's] request," O'Connor
replied that he "will be sure to tell the Special Education Department." Neither Lukkarila's
statement of the charge, nor the grievance statement from which the above allegations are taken,
explain the significance of this "threat," though the grievance statement asserts that Tonan "was
threatened with having his reputation tarnished with the Special Education Department," and that
O'Connor's actions were "unnecessary" and "interfered with [Tonan's] good faith attempts to
represent [Lukkarila]" in a disciplinary matter, in violation of the CBA's "no reprisals" language.
Finally, Lukkarila's charge alleges that the law firm of Fagen, Friedman & Fulfrost may
retaliate against him or has already done so because of Lukkarila's representation of his wife in
PERB proceedings in a separate matter captioned Jurupa Unified School District (2012) PERB
Decision No. 2283. Fagen, Friedman & Fulfrost represents both the District and the Jurupa
Unified School District, the former employer of Lukkarila's wife.
Because the term "IEP" is not identified or explained in the appeal or in the District's
opposition to the appeal, pursuant to Evidence Code section 451, we take administrative notice
of the federal Individuals with Disabilities Education Act (IDEA), 20 U.S.C. $ 1400(d)(1),
which requires public schools to develop an Individualized Education Program or IEP for
every student with a disability who is found to meet the federal and state requirements for
special education.
"Although not spelled out in the charge, it appears from the statement of Lukkarila's
grievance that O'Connor's threat was to "blame" Tonan for the additional work required of
employees in the Special Education Department to fulfill Tonan's information request.
11
(IEP)
10
be disciplined for failing to attend an Individualized Education Program 	meeting.
	Tonan
requested a list
of
all other teachers who had missed an IEP meeting during the previous
two
years along with copies
of
any related disciplinary measures. O'Connor allegedly laughed,
slapped his hand on his desk and refused to provide the requested information. He allegedly also
characterized Tonan's request as "the oldest
...
trick in the book." After Tonan asked
O'Connor
ifhe
was "really going to defy the [Association by] refusing [Tonan's] request," O'Connor
11
Neither Lukkarila's
statement
of
the charge, nor the grievance statement from which the above allegations are taken,
explain the significance
of
this "threat," though the grievance statement asserts that Tonan "was
threatened with having his reputation tarnished with the Special Education Department,"
and
that
O'Connor's
actions were "unnecessary" and "interfered with [Tonan's] good faith attempts to
represent [Lukkarila]" in a disciplinary matter, in violation
of
the CBA's "no reprisals" language.
replied that he "will be sure to tell the Special Education Department."
Finally, Lukkarila's charge alleges that the law firm
of
Fagen, Friedman & Fulfrost may
retaliate against him or has already done so because
of
Lukkarila' s representation
of
his wife in
PERB proceedings in a separate matter captioned Jurupa Unified School District (2012) PERB
Decision No. 2283. Fagen, Friedman & Fulfrost represents both the District and the Jurupa
Unified School District, the former employer
of
Lukkarila' s wife.
10
Because the term "IEP" is not identified or explained in the appeal or in the District's
opposition to the appeal, pursuant to Evidence Code section 451, we take administrative notice
of
the federal Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400(d)(l),
which requires public schools to develop an Individualized Education Program or IEP for
every student with a disability who is found to meet the federal and state requirements for
special education.
11
Although not spelled out in the charge, it appears from the statement
of Lukkarila's
grievance that O'Connor's threat was to "blame" Tonan for the additional work required
of
employees in the Special Education Department to fulfill Tonan's information request.
11

Lukkarila's appeal asserts that, by September 7, 2012, five of his grievances had reached
Level IV, the final step of the CBA's grievance procedure before arbitration. The Association
and the District agreed to place these grievances in abeyance, pending settlement discussions.
However, by October 15, 2012, settlement talks had failed and the Association took up the issue
of whether to advance some or all of Lukkarila's outstanding grievances to arbitration.
Lukkarila's appeal asserts that on November 20, 2012, Breen informed him that the
Association's newly-elected Representative Council had decided to reconsider whether to
advance Lukkarila's March 20, 2012 health and safety and interference grievances to arbitration.
Breen also informed Lukkarila that, although the Association had previously authorized an
attorney to prepare a letter for Lukkarila to send to the District about its alleged violations of
employee protected activity, as a result of the change in the Association's elected officers, the
Association would now no longer authorize an attorney to work on this letter. Lukkarila alleges
that he made several attempts to contact Chamberlain, who had replaced Tonan as the
Association president, about the Representative Council's reconsideration of Lukkarila's
grievances but that Chamberlain did not return Lukkarila's messages until "a few days" before
February 12, 2013, when the Representative Council's "revote" was to take place. Lukkarila
alleges that he was unable to attend the meeting due to insufficient notice and that, in his
absence, the Representative Council voted to reverse its previous decision to advance
Lukkarila's first two grievances to arbitration. The Representative Council also voted not to
arbitrate the three grievances that Lukkarila had filed on April 30, May 30, and July 26, 2012.
Meanwhile, on January 18, 2013, Lukkarila filed three more grievances. The first of
these alleged that the District had improperly denied Lukkarila and his Association
representative access to his personnel file, that the District had included derogatory and improper
materials in the file without Lukkarila's knowledge, and, that the derogatory materials were
12
Lukkarila's appeal asserts that, by September 7, 2012, five
of
his grievances had reached
Level IV, the final step
of
the CBA's grievance procedure before arbitration. The Association
and the District agreed to place these grievances in abeyance, pending settlement discussions.
However, by October 15, 2012, settlement talks had failed and the Association took up the issue
of
whether to advance some or all
of
Lukkarila's outstanding grievances to arbitration.
Lukkarila's appeal asserts that on November 20, 2012, Breen informed him that
the
Association's newly-elected Representative Council had decided to reconsider whether to
advance Lukkarila's March 20, 2012 health and safety and interference grievances to arbitration.
Breen also informed Lukkarila that, although the Association had previously authorized
an
attorney to prepare a letter for Lukkarila to send to the District about its alleged violations
of
employee protected activity, as a result
of
the change in the Association's elected officers, the
Association would now no longer authorize an attorney to work on this letter. Lukkarila alleges
that he made several attempts to contact Chamberlain, who had replaced Tonan as the
Association president, about the Representative Council's reconsideration
of
Lukkarila' s
grievances but that Chamberlain did not return Lukkarila' s messages until "a few days" before
February 12, 2013, when the Representative Council's "revote" was to take place. Lukkarila
alleges that he was unable to attend the meeting due to insufficient notice and that, in his
absence, the Representative Council voted to reverse its previous decision to advance
Lukkarila's first two grievances to arbitration. The Representative Council also voted not to
arbitrate the three grievances that Lukkarila had filed on April 30, May 30, and July 26, 2012.
Meanwhile, on January 18, 2013, Lukkarila filed three more grievances. The first
of
these alleged that the District had improperly denied Lukkarila and his Association
representative access to his personnel file, that the District had included derogatory and improper
materials in the file without Lukkarila's knowledge, and, that the derogatory materials were
12

improperly disseminated to PERB in the District's October 19, 2012 response to the present
charge. Each of these actions, Lukkarila alleges, was taken in retaliation for Lukkarila's use of
the grievance procedure and PERB's administrative process.
The second of Lukkariala's January 8, 2013 grievances alleges that, on October 10, 2012,
less than 10 minutes after Lukkarila had publicly voiced his concerns about a new teacher
evaluation process at a staff meeting, three District administrators, armed with yellow notepads,
entered his classroom and began asking students questions about the curriculum and instruction
of Lukkarila's courses. Based on the close temporal proximity of these two events, the fact that
three administrators were present, and on Lukkarila's belief that he had previously been
subjected to unwarranted scrutiny after notifying the District in February of his intent to file a
health and safety grievance, Lukkarila alleges that the administrators' conduct constitutes
excessive scrutiny of Lukkarila in retaliation for various protected activities, including voicing
his concerns about the teacher evaluation process at a staff meeting less than 10 minutes earlier.
The same grievance alleges that Assistant Superintendent Bonnie Bell and other District officials
have also subjected Lukkarila to excessive scrutiny, beginning shortly after he filed a complaint
about irregularities in the District's testing procedures.
The third of Lukkarila's January 8, 2013 grievances alleges that, on October 18, 2013,
Assistant Principal June Hilton, Superintendent Jim Elsasser and School Board Member Steven
Llanusa demanded to meet with Lukkarila, ostensibly to discuss concerns arising from a "walk-
through" and observation of Lukkarila's classroom that had occurred on September 26, 2012.
Lukkarila alleges that any legitimate concerns the District may have had from the September 26
walk-through were stale and pretextual, and that, in fact, the official visit was in response to
Lukkarila's public criticism of the newly-adopted teacher evaluation procedure at staff meeting
13
improperly disseminated to PERB in the District's October 19, 2012 response to the present
charge. Each
of
these actions, Lukkarila alleges, was taken in retaliation for Lukkarila's use
of
the grievance procedure and PERB's administrative process.
The second
of
Lukkariala's January
8,
2013 grievances alleges that, on October 10, 2012,
less than
10
minutes after Lukkarila had publicly voiced his concerns about a new teacher
evaluation process at a staff meeting, three District administrators, armed with yellow notepads,
entered his classroom and began asking students questions about the curriculum and instruction
of
Lukkarila' s courses. Based on the close temporal proximity
of
these two events, the fact that
three administrators were present, and on Lukkarila's belief that he had previously been
subjected to unwarranted scrutiny after notifying the District in February
of
his intent to file a
health and safety grievance, Lukkarila alleges that the administrators' conduct constitutes
excessive scrutiny
of
Lukkarila in retaliation for various protected activities, including voicing
his concerns about the teacher evaluation process at a staff meeting less than 10 minutes earlier.
The same grievance alleges that Assistant Superintendent Bonnie Bell and other District officials
have also subjected Lukkarila to excessive scrutiny, beginning shortly after he filed a complaint
about irregularities in the District's testing procedures.
The third
of
Lukkarila' s January
8,
2013 grievances alleges that, on October 18, 2013,
Assistant Principal June Hilton, Superintendent Jim Elsasser and School Board Member Steven
Llanusa demanded to meet with Lukkarila, ostensibly to discuss concerns arising from a "walk-
through" and observation
of
Lukkarila's classroom that had occurred on September 26, 2012.
Lukkarila alleges that any legitimate concerns the District may have had from the September 26
walk-through were stale and pretextual, and that, in fact, the official visit was in response to
Lukkarila's public criticism of the newly-adopted teacher evaluation procedure at staff meeting
13

occurring the previous week. This grievance also alleges that the heightened scrutiny of
Lukkarila is in retaliation for his filing grievances and the present unfair practice charge.
As noted above, Lukkarila's appeal asserts that, on March 12, 2013, the Association's
Representative Council voted not to advance Lukkarila's three January 8, 2013 grievances to
arbitration. On April 12, 2013, Breen informed Lukkarila that the Association would no longer
represent him in any of his 13 pending grievances, because of his failure to provide written
accounts of the grievances to Breen by April 10, 2013. Lukkarila does not deny that he failed
to comply with Breen's request. Instead, he alleges that some of the grievances were still at
the "informal" stage of the process and had thus not yet been reduced to writing.
On March 21, 2013, Lukkarila contacted O'Connor to request the opportunity to
present a lunch-time lecture, which would include matters related to Lukkarila's health and
safety grievances. On March 25, 2013, the District placed Lukkarila on administrative leave,
pending investigation of matters raised by a petition that had circulated among staff members.
DISCUSSION
EERA section 3541.5, subdivision 2(a)(2) states, in part, that PERB shall not:
Issue a complaint against conduct also prohibited by the
provisions of [a collective bargaining 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, the language of the statute also states that, "when the charging party
demonstrates that resort to contract grievance procedure would be futile, exhaustion shall not
be necessary."
The statutory "futility exception" is grounded in a recognition that the overriding
justification for the policy of deferral, which is to promote the voluntary resolution of labor
disputes, is absent when an individual employee who seeks to vindicate statutory rights is not
14
occurring the previous week. This grievance also alleges that the heightened scrutiny
of
Lukkarila is in retaliation for his filing grievances and the present unfair practice charge.
As noted above, Lukkarila's appeal asserts that, on March 12, 2013, the Association's
Representative Council voted not to advance Lukkarila's three January 8, 2013 grievances to
arbitration. On April 12, 2013, Breen informed Lukkarila that the Association would no longer
represent him in any
of
his
13
pending grievances, because
of
his failure to provide written
accounts
of
the grievances to Breen by April 10, 2013. Lukkarila does not deny that he failed
to comply with Breen's request. Instead, he alleges that some
of
the grievances were still at
the "informal" stage
of
the process and had thus not yet been reduced to writing.
On March 21, 2013, Lukkarila contacted O'Connor to request the opportunity to
present a lunch-time lecture, which would include matters related to Lukkarila's health and
safety grievances. On March 25, 2013, the District placed Lukkarila on administrative leave,
pending investigation
of
matters raised by a petition that had circulated among staff members.
DISCUSSION
EERA section 3541.5, subdivision 2(a)(2) states, in part, that PERB shall not:
Issue a complaint against conduct also prohibited by the
provisions
of
[a collective bargaining 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.
lfowever, the language
of
the statute also states that, "when the charging party
demonstrates that reso1i to contract grievance procedure would be futile, exhaustion shall not
be necessary."
The statutory "futility exception" is grounded in a recognition that the overriding
justification for the policy of deferral, which is to promote the voluntary resolution of labor
disputes, is absent when an individual employee who seeks to vindicate statutory rights is not
14

himself or herself a "party" to the private dispute resolution machinery to which the matter
has been deferred, and therefore has no control over whether it will be heard on its merits.
As explained in State of California (Department of Agriculture) (2002) PERB Decision
No. 1473-S (Agriculture), the language of the statute indicates that deferral is only appropriate,
when it is realistically possible for the charging party to obtain a decision on the merits of the
dispute, either by settlement or binding arbitration. Thus, deferral is only appropriate when all
parties to the collective bargaining agreement are willing to utilize its grievance-arbitration
procedures to resolve the dispute on its merits. (Id. at pp. 7-8; State of California (Department
of Parks and Recreation) (1995) PERB Decision No. 1125-S (Parks and Recreation), pp. 8-9;
California State University (1984) PERB Decision No. 392-H.)12
Futility may be found when the integrity or effectiveness of the arbitration process itself
is at issue, or when the exclusive representative is unwilling to take the grievance to
arbitration. (Parks and Recreation, supra, PERB Decision No. 1125-S; California State
University, supra, PERB Decision No. 392-H.) In the latter case, it makes no difference
Because we reverse and remand the dismissal and deferral of Lukkarila's charge based
on the statutory futility exception, we reserve for another day the related questions as to the
appropriateness and desirability of extending the Collyer Insulated Wire (1971) 192 NLRB 837
(Collyer) deferral policy to charges brought by individuals who have no independent access to
the collectively-bargained grievance-arbitration procedures. The mandatory deferral policy
announced in Collyer pertained to allegations of unilateral changes and involved facts in which
the parties to the collective bargaining agreement were the same as the parties to the unfair
practice proceedings. In later decisions, the National Labor Relation Board's (NLRB) policy of
mandatory deferral arguably expanded in National Radio Co. (1972) 198 NLRB 527, to include
other kinds of claims, but then contracted again in General American Transportation Corp.
(1977) 228 NLRB 808, before being expanded again, several years after EERA was enacted, to
include interference and retaliation claims brought by individual employees who were not acting
in any official capacity for the exclusive representative. (Collyer, supra, at pp. 846-850,
esp. 850, Member Fanning dissenting opinion; and 192 NLRB 850-856, esp. 852-853,
Member Jenkins dissenting opinion; National Radio Co., supra, at pp. 532-536, Members
Fanning and Jenkins, dissenting opinion; General American Transportation Corp.,
Chairman Murphy concurring opinion [overruling National Radio Co.]; United Technologies
Corp. (1984) 268 NLRB 557, 561-564, Member Zimmerman dissenting opinion; see also
Electrical Workers IBEW Local 2188 v. NLRB (D.C. Cir. 1974) 494 F.2d 1087, 1091.)
15
himself or herself a "party" to the private dispute resolution machinery to which the matter
has been deferred, and therefore has no control over whether it will be heard on its merits.
As explained in State
of
California (Department
of
Agriculture) (2002) PERB Decision
No. 1473-S (Agriculture), the language
of
the statute indicates that deferral is only appropriate,
when it is realistically possible for the charging party to obtain a decision on the merits
of
the
dispute, either by settlement or binding arbitration. Thus, deferral is only appropriate
when
all
parties to the collective bargaining agreement are willing to utilize its grievance-arbitration
procedures to resolve the dispute on its merits.	
(Id.
at pp. 7-8; State
of
California (Department
of
Parks and Recreation) (1995) PERB Decision No. 1125-S (Parks and Recreation), pp. 8-9;
California State University (1984) PERB Decision No. 392-H.)
12
Futility may be found when the integrity or effectiveness
of
the arbitration process itself
is at issue, or when the exclusive representative is unwilling to take the grievance to
arbitration. (Parks and Recreation, supra, PERB Decision No. 1125-S; California State
University, supra, PERB Decision No. 392-H.) In the latter case, it makes no difference
n; and 192 NLRB 850-856, esp. 852-853,
15
" 	Because we reverse and remand the dismissal and deferral
of
Lukkarila' s charge based
on the statutory futility exception, we reserve for another day the related questions as to the
appropriateness and desirability
of
extending the Collyer Insulated Wire (1971) 192 NLRB 83 7
(Collyer) deferral policy to charges brought by individuals who have no independent access to
the collectively-bargained grievance-arbitration procedures. The mandatory deferral policy
announced in Collyer pertained to allegations
of
unilateral changes and involved facts in which
the parties to the collective bargaining agreement were the same as the parties to the unfair
practice proceedings. In later decisions, the National Labor Relation Board's (NLRB) policy
of
mandatory deferral arguably expanded in National Radio
Co.
(1972) 198 NLRB 527, to include
other kinds
of
claims, but then contracted again in General American Transportation Corp.
(1977) 228 NLRB 808, before being expanded again, several years after EERA was enacted, to
include interference and retaliation claims brought by individual employees who were not acting
in any official capacity for the exclusive representative. (Collyer, supra, at pp. 846-850,
esp. 850, Member Farming dissenting opinio
Member Jenkins dissenting opinion; National Radio Co., supra, at pp. 532-536, Members
Fanning and Jenkins, dissenting opinion; General American Transportation Corp.,
Chairman Murphy concurring opinion [overruling National Radio Co.]; United Technologies
Corp. (1984) 268 NLRB 557, 561-564, Member Zimmerman dissenting opinion; see also
Electrical Workers !BEW Local 2188
v.
NLRB (D.C. Cir. 1974) 494 F.2d 1087, 1091.)

whether the union's refusal is a violation of its duty of fair representation or a legitimate
exercise of its discretion to administer its agreement and to determine how best to represent
employees. (State of California (Department of Developmental Services) (1985) PERB Order
No. Ad-145-S; Parks and Recreation; State of California (Department of Corrections) (1986)
PERB Decision No. 561-S (Corrections).)
We therefore need not and do not consider the issue raised in Lukkarila's appeal of
whether his grievances have been, or will be, handled in an arbitrary or perfunctory manner by
the Association." It is enough that the Association controls access to arbitration, that it has
decided that it will not authorize arbitration of some or all of Lukkarila's grievances, and that the
subject of those grievances overlaps with the allegations included in his unfair practice charge.
Common to Lukkarila's Board charge and his grievances are his allegations of excessive scrutiny
and "further discriminatory reprisals" for his filing a health and safety grievance on March 20,
2012. To the extent his charge was amended or supplemented with additional allegations before
it was dismissed, it includes additional allegations of the same nature, as indicated in the three
grievances Lukkarila filed on January 8, 2013, and provided to the investigating Board agent on
January 18, 2013. Thus, at least some of the allegations of his Board charge cannot advance to
arbitration.
Moreover, we decline to parse the contents of Lukkarila's charge to determine whether
some allegations may, conceivably, still be appropriate for deferral, because the Association has
not yet decided whether to arbitrate them, while the remaining allegations are processed before
PERB. At one time, the Board followed a practice of bifurcating charges with multiple legal
The duty of fair representation requires only that the bargaining agent refrain from
conduct that is so far outside a "wide range of reasonableness" as to be "wholly irrational" or
"arbitrary." (United Teachers of Los Angeles (Valadez, et al.) (2001) PERB Decision
No. 1453; Air Line Pilots v. O'Neill (1991) 499 U.S. 65, 78; Humphrey v. Moore (1964)
375 U.S. 335.)
16
whether the union's refusal is a violation
of
its duty
of
fair representation or a legitimate
exercise
of
its discretion to administer its agreement and to determine how best to represent
employees. (State
of
California (Department
of
Developmental Services) (1985) PERB Order
No. Ad-145-S; Parks and Recreation; State
of
California (Department
of
Corrections) (1986)
PERB Decision No. 561-S (Corrections).)
We therefore need not and do not consider the issue raised in Lukkarila's appeal
of
whether his grievances have been, or will be, handled in an arbitrary or perfunctory manner by
the Association.
13
It is enough that the Association controls access to arbitration, that it has
decided that it will not authorize arbitration
of
some or all
of
Lukkarila' s grievances, and that the
subject
of
those grievances overlaps with the allegations included in his unfair practice charge.
Common to Lukkarila's Board charge and his grievances are his allegations
of
excessive scrutiny
and "further discriminatory reprisals" for his filing a health and safety grievance on March 20,
2012. To the extent his charge was amended or supplemented with additional allegations before
it was dismissed, it includes additional allegations
of
the same nature, as indicated in the three
grievances Lukkarila filed on January 8, 2013, and provided to the investigating Board agent on
January 18, 2013. Thus, at least some
of
the allegations
of
his Board charge cannot advance to
arbitration.
Moreover, we decline to parse the contents
of
Lukkarila's charge to determine whether
some allegations may, conceivably, still be appropriate for deferral, because the Association has
not yet decided whether to arbitrate them, while the remaining allegations are processed before
PERB. At one time, the Board followed a practice
of
bifurcating charges with multiple legal
13
The duty of fair representation requires only that the bargaining agent refrain from
conduct that is so far outside a "wide range of reasonableness" as to be "wholly irrational" or
"arbitrary." (United Teachers
of
Los Angeles (Valadez, et al.) (2001) PERB Decision
No. 1453; Air Line Pilots
v.
O'Neill (1991) 499 U.S. 65, 78; Humphrey
v.
Moore (1964)
375 U.S. 335.)
16

theories whereby only those allegations which met the statutory criteria for deferral would be
deferred, while the remainder of the charge would be processed by PERB. (State of California
(California Department of Forestry and Fire Protection) (1989) PERB Decision No. 734-S;
State of California (California Department of Forestry and Fire Protection) (1989) PERB
Decision No. 734a-S; State of California (Department of Parks and Recreation) (1990) PERB
Decision No. 810-S; State of California (Department of Parks and Recreation) (1990) PERB
Decision No. 810a-S.) However, the rationale for bifurcation stemmed from the view,
announced in Lake Elsinore School District (1987) PERB Decision No. 646 (Lake Elsinore),
that the statutory deferral language imposed a nondiscretionary limit on PERB's jurisdiction
to hear allegations of unfair practices which also met the statutory deferral criteria. The
Board has since abandoned the holding of Lake Elsinore in favor of the view that deferral to
arbitration is an affirmative defense which may be waived, if not timely raised in the
respondent's answer. (Agriculture, supra, PERB Decision No. 1473-S, p. 5; see also East Side
Union High School District (2004) PERB Decision No. 1713; City of Burbank (2008) PERB
Decision No. 1988-M.)" We therefore decline to bifurcate Lukkarila's charge.
theories whereby only those allegations which met the statutory criteria for deferral would
be
deferred, while the remainder
of
the charge would be processed by PERB. (State
of
California
(California Department
of
Forestry and Fire Protection) (1989) PERB Decision No. 734-S;
State
of
California (California Department
of
Forestry and Fire Protection) (1989) PERB
Decision No. 734a-S; State
of
California (Department
of
Parks and Recreation) (1990) PERB
Decision No. 810-S; State
of
California (Department
of
Parks and Recreation) (1990) PERB
Decision No. 810a-S.) However, the rationale for bifurcation stemmed from the view,
announced in Lake Elsinore School District (1987) PERB Decision No. 646 (Lake Elsinore),
that the statutory deferral language imposed a nondiscretionary limit on PERB' s jurisdiction
to hear allegations
of
unfair practices which also met the statutory deferral criteria. The
Board has since abandoned the holding
of
Lake Elsinore in favor
of
the view that deferral to
arbitration is an affirmative defense which may be waived,
if
not timely raised in the
respondent's answer. (Agriculture, supra, PERB Decision No. 1473-S, p. 5; see also East Side
Union High School District (2004) PERB Decision No. 1713; City
of
Burbank (2008) PERB
Decision No. 1988-M.) 	We therefore decline to bifurcate Lukkarila's charge.
14
17
14
#It is doubtful to what extent the underlying rationale for bifurcation survives the	It is doubtful to what extent the underlying rationale for bifurcation survives the
reversal of the 'jurisdictional" approach of Lake Elsinore. Indeed, the practice
of
bifurcating	reversal of the "jurisdictional" approach of Lake Elsinore. Indeed, the practice of bifurcating
proceedings, although initially developed in response to Lake Elsinore, was itself rejected as	proceedings, although initially developed in response to Lake Elsinore, was itself rejected as
inconsistent with several important policy considerations, even before Lake Elsinore was	inconsistent with several important policy considerations, even before Lake Elsinore was
overruled. These policy considerations included the parties' right to have their dispute resolved	overruled. These policy considerations included the parties' right to have their dispute resolved
in one neutral forum, a preference for voluntary and private resolution
of
disputes where thein one neutral forum, a preference for voluntary and private resolution of disputes where the
parties have chosen a procedure for doing so, and, the elimination of overlapping and duplicativeparties have chosen a procedure for doing so, and, the elimination of overlapping and duplicative
proceedings. (State
of
California (Department
of
Corrections) (1995) PERB Decisionproceedings. (State of California (Department of Corrections) (1995) PERB Decision
No. 1100-S, pp. 5-9.) Because these policy considerations remain valid, even after	No. 1100-S, pp. 5-9.) Because these policy considerations remain valid, even after
Lake Elsinore, no allegation is appropriate for deferral, unless the entire matter is appropriate	Lake Elsinore, no allegation is appropriate for deferral, unless the entire matter is appropriate
for deferral. (John Swett Unified School District (1981) PERB Decision No. 188; State
of	for deferral. (John Swett Unified School District (1981) PERB Decision No. 188; State of
California (Department
of
Mental Health) (2003) PERB Decision No. 1567-S, p. 7.)California (Department of Mental Health) (2003) PERB Decision No. 1567-S, p. 7.)

We also take this opportunity to review PERB's procedures for deferral in light of the
facts of this case. Because both the employer and the exclusive representative control access to
the arbitration machinery, as explained above, the futility exception to deferral is applicable
either when the employer's conduct undermines the integrity or effectiveness of that machinery,
or when the representative - for whatever reason - decides that it will not arbitrate the subject
of the deferred charge. Following the policy of the NLRB, PERB requires, as a prerequisite for
deferral of a charge, a determination by the investigating Board agent that the employer is ready
and willing to proceed to arbitration and that it waive any contract-based procedural defenses.
Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81; Collyer, supra,
192 NLRB 837, 842.)
To date, however, we have not required, at least not as a prerequisite for deferral,
that the Office of the General Counsel determine whether the exclusive representative is also
ready and willing to proceed to arbitration, when the charging party is a rank-and-file employee,
i.e., is not acting as an official of the exclusive representative, and has no independent access to
the contractual grievance machinery. (Corrections, supra, PERB Decision No. 561-S.) To
prevent unnecessary delay and decrease the likelihood of prejudice to the parties, we hold that in
cases in which the charging party is not a party to the collective bargaining agreement and is
dependent upon the willingness of the employer and the exclusive representative to have his or
her dispute heard before an arbitrator, the Office of the General Counsel shall determine as part
of its investigation into the appropriateness of deferral, whether both the employer and the
exclusive representative are ready and willing to have the matter proceed to arbitration.
We reverse the decision and remand to the Office of the General Counsel to determine
whether the charge states a prima facie case.
18
We also take this opportunity to review PERB' s procedures for deferral in light
of
the
facts
of
this case. Because both the employer and the exclusive representative control access to
the arbitration machinery, as explained above, the futility exception to deferral is applicable
either when the employer's conduct undermines the integrity or effectiveness
of
that machinery,
or when the representative - 	for whatever reason - 	decides that it will not arbitrate the subject
of
the deferred charge. Following the policy
of
the NLRB, PERB requires, as a prerequisite for
deferral
of
a charge, a determination by the investigating Board agent that the employer is ready
and willing to proceed to arbitration and that it waive any contract-based procedural defenses.
(Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81; Collyer, supra,
192 NLRB 837, 842.)
To date, however, we have not required, at least not as a prerequisite for deferral,
that the Office
of
the General Counsel determine whether the exclusive representative is also
ready and willing to proceed to arbitration, when the charging party is a rank-and-file employee,
i.e., is not acting as an official
of
the exclusive representative, and has no independent access to
the contractual grievance machinery. (Corrections, supra, PERB Decision No. 561-S.) To
prevent unnecessary delay and decrease the likelihood
of
prejudice to the parties, we hold that in
cases in which the charging party is not a party to the collective bargaining agreement and is
dependent upon the willingness
of
the employer and the exclusive representative to have his or
her dispute heard before an arbitrator, the Office
of
the General Counsel shall determine as part
of
its investigation into the appropriateness
of
deferral, whether both the employer and the
exclusive representative are ready and willing to have the matter proceed to arbitration.
We reverse the decision and remand to the Office of the General Counsel to determine
whether the charge states a prima facie case.
18

ORDER
The dismissal and deferral
of
the unfair practice charge in Case No. LA-CE-5727-E is	The dismissal and deferral of the unfair practice charge in Case No. LA-CE-5727-E is
hereby REVERSED and REMANDED to the Office of the General Counsel to determine	hereby REVERSED and REMANDED to the Office
of
the General Counsel to determine
whether the charge states a prima facie case.	whether the charge states a prima facie case.
Chair Martinez and Members Huguenin and Winslow joined in this Decision.
19
ORDER
19
Chair Martinez and Members Huguenin and Winslow joined in this Decision.