County of Santa Clara (PERB A485M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 521,
Charging Party,
v.
COUNTY OF SANTA CLARA,
Respondent.
Case No. SF-CE-1688-M
Administrative Appeal
PERB Order No. Ad-485-M
March 2, 2021
Appearances: Weinberg, Roger & Rosenfeld by Kerianne R. Steele and Katharine R.
McDonagh, Attorneys, for Service Employees International Union Local 521; Office of
the County Counsel by Nancy J. Clark, Deputy County Counsel, for County of Santa
Clara.
Before Banks, Chair; Shiners and Krantz, Members.
DECISION
SHINERS, Member: This case is before the Public Employment Relations
Board (PERB or Board) on Service Employees International Union Local 521’s appeal
of an administrative decision by PERB’s Office of the General Counsel (OGC). OGC
concluded the dispute alleged in SEIU’s unfair practice charge is subject to binding
arbitration under the Memorandum of Agreement (MOA) between SEIU and the
County of Santa Clara. OGC accordingly placed the charge in abeyance pending
completion of arbitration proceedings.
SEIU contends its charge should not have been deferred to arbitration because
none of the allegations are appropriate for deferral. The County asserts OGC properly

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deferred the charge because all allegations within it center on whether the County
violated contractual release time provisions. Based on our review of the administrative
decision, the entire case file, and relevant legal authority in light of the parties’
submissions, we conclude the charge is not appropriate for deferral to arbitration. We
therefore reverse the administrative decision and remand this case to OGC for further
investigation and processing consistent with this Decision.
BACKGROUND1
Section 4.1(d) of the parties’ MOA provides:
“Release time shall be granted to Local 521 Official
Representatives of up to a maximum of fifteen hundred
(1500) hours per fiscal year for attendance at meetings of
the Board of Supervisors and the Personnel Board. The
official representative shall notify his/her supervisor of
his/her intention to be on release time as far in advance as
reasonably possible, but not later than the end of the normal
business hours the day before such meeting, except in
emergency situations. Insofar as possible, such release time
shall be made through the Department of Labor Relations at
least 24 hours in advance of the Board meeting.”
Anna Griffin is an administrative assistant in the County’s Roads and Airport
Department. Griffin is also an SEIU steward. On January 28, 2019, an SEIU internal
organizer e-mailed County Labor Relations requesting release time for Griffin to attend
the January 29 Board of Supervisors meeting. The charge does not allege that Griffin
notified her supervisor, Eric Peterson, about the release time request by the end of
1 The factual allegations in this section are taken from SEIU’s unfair practice
charge. When reviewing a charge on appeal, “we assume the charging party’s factual
allegations are true.” (County of San Diego (2020) PERB Decision No. 2721-M, p. 2.)

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normal business hours on January 28. Griffin attended the January 29 Board of
Supervisors meeting.
On February 8, 2019, another SEIU internal organizer e-mailed Peterson about
Griffin’s release time for January 29. Peterson responded that Griffin’s release time
was not authorized because she failed to follow the Department’s SEIU 521 Release
Time Process Policy when requesting the time. He nonetheless approved the release
time on Griffin’s timecard.
A week later, Peterson reversed his approval of Griffin’s release time, writing to
the internal organizer that he had since gathered the relevant facts and confirmed that
Griffin did not follow applicable procedures. Peterson’s decision forced Griffin to use
accrued leave to cover her absence from work to attend the January 29 meeting.
On March 8, 2019, SEIU filed a grievance alleging the County violated “Section
2.2 (Union Affiliation), Section 4.1(d) (Bank of Hours), and Article 27 (Full Agreement)
of the Memorandum of Agreement” by denying Griffin paid release time to attend the
January 29 Board of Supervisors meeting.2 The grievance alleged: “The County
2 MOA Section 2.2 states: “[n]either the County, nor the Union, shall interfere
with, intimidate, restrain, coerce or discriminate against any worker in his/her free
choice to participate or join or refuse to participate or join the Union.”
MOA Article 27 states: “It is understood this Agreement represents a complete
and final understanding on all negotiable issues between the County and its
Departments and the Union. This Agreement supercedes all previous memoranda of
understanding or memoranda of agreement between the County and its Departments
and the Union except as specifically referred to in this Agreement. All ordinances or
rules covering any practice, subject or matter not specifically referred to or covered in
this Agreement shall not be superseded, modified or repealed by implication or
otherwise by the provisions hereof. The parties, for the term of this Agreement,
voluntarily and unqualifiedly agree to waive the obligation to negotiate with respect to

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erroneously believes that an alleged breach of a unilaterally imposed policy on release
time absolves the County of its obligation for payment under the contract.” As
remedies, SEIU asked the County to authorize paid release time for Griffin’s
attendance at the Board of Supervisors meeting and “cease and desist application and
enforcement of the unilaterally imposed release time policy on the bargaining unit.”3
One month after the County denied the grievance, SEIU filed this unfair practice
charge. The charge alleges that Peterson’s rescission of his prior approval of Griffin’s
paid release time constituted retaliation for her attendance at the Board of Supervisors
meeting on behalf of SEIU. It also alleges that the County unilaterally changed the
procedure for requesting release time by adding additional requirements to those
contained in the MOA and engaged in unlawful direct dealing with bargaining unit
employees. The charge alleges that by this same conduct the County interfered with
employees’ right to request release time.
any practice subject or matter not specifically referred to or covered in this Agreement
even though such practice, subject or matter may not have been within the knowledge
of the parties at the time this Agreement was negotiated and signed. In the event any
new practice, subject or matter arises during the term of this Agreement and an action is
proposed by the County, the Union shall be afforded all possible notice and shall have
the right to meet and confer upon request. In the absence of agreement on such as
proposed action, the County reserves its right to take necessary action by Management
direction.”
3 The County provided a copy of the grievance as an exhibit to its position
statement. At the charge investigation stage, PERB may consider information provided
by the respondent, when such information is submitted under oath, complements
without contradicting the facts alleged in the charge, and is not disputed by the charging
party. (PERB Reg. 32620, subd. (c) [PERB Regulations are codified at California Code
of Regulations, title 8, section 31001 et seq.]; Service Employees International Union
#790 (Adza) (2004) PERB Decision No. 1632-M, adopting dismissal letter at p. 1.)
Those conditions are met here.

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The County filed a position statement arguing that the grievance covered this
same dispute, making it subject to binding arbitration under the parties’ MOA. Seeking
to defer this dispute to arbitration, the County said it would waive any procedural
defenses to arbitration of the grievance.
On June 8, 2020, OGC issued an administrative decision placing SEIU’s charge
in abeyance until the parties’ contractual arbitration process was complete and
notifying the parties that the charge would be dismissed following arbitration unless
the Union sought repugnancy review of the arbitrator’s decision. In County of Santa
Clara (2020) PERB Order No. Ad-482-M, we concluded that a decision by OGC to
place a charge in abeyance pending the completion of arbitration proceedings may be
appealed directly to the Board itself, and accepted SEIU’s appeal. (Id. at pp. 10-11.) At
the same time, we requested supplemental briefing on two issues:
1. 	The unfair practice charge alleges retaliation/
discrimination, interference, unilateral change, and direct
dealing, and also appears to allege a violation of
Government Code section 3558.8. Do any of these alleged
violations subject the charge to deferral? What is the
relevance, if any, of the fact that the allegations reference
both a collectively-bargained policy and an employer policy
that was not collectively-bargained?
2. 	Board precedent does not allow an allegation that an
employee suffered discrimination or retaliation for filing a
PERB charge or participating in PERB proceedings to be
deferred to arbitration. Under what additional circumstances,
if any, should PERB decline to defer a discrimination/
retaliation allegation to arbitration?
The parties filed supplemental briefs on January 11, 2021.

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DISCUSSION
In an appeal from an administrative decision, the appellant must demonstrate
how or why the challenged decision departs from the Board’s precedents or
regulations. (Regents of the University of California (2016) PERB Order No. Ad-434-H,
p. 8; County of Santa Clara (2014) PERB Order No. Ad-411-M, p. 5.) In its appeal,
SEIU primarily argues that the Board should substantially extend precedent by holding
that allegations of discrimination, retaliation, interference, or direct dealing, as well as
unilateral change allegations related to a retaliation claim, may never be deferred to
arbitration. For the following reasons, we decline to adopt such categorical exclusions
but find deferral of this charge inappropriate under existing precedent.
I. 	Legal Standard for Pre-Arbitration Deferral
There is a preference in California’s public sector “that disputes be resolved
through the parties’ mutually agreed upon grievance arbitration procedures.” (State of
California (Department of Food and Agriculture) (2002) PERB Decision No. 1473-S,
p. 13.) “When considering whether to defer an unfair practice charge to arbitration, the
Board, following Collyer Insulated Wire (1971) 192 NLRB 837 (Collyer), applies a
three-part test: (1) whether the dispute arises within a stable collective bargaining
relationship; (2) whether the respondent is willing to waive contract-based procedural
defenses to the grievance or arbitration and is willing to arbitrate the dispute; and
(3) whether the contract and its meaning lie at the center of the dispute.”4 (Trustees of
4 When the charging party is an individual employee and the applicable
collective bargaining agreement does not allow an employee to advance a grievance
to arbitration, PERB also must determine whether the exclusive representative is

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the California State University (East Bay) (2014) PERB Decision No. 2391-H, p. 35
(Trustees); cf. State of California (Department of Food and Agriculture), supra, PERB
Decision No. 1473-S, p. 13 [holding that section 3541.5, subdivision (a) of the
Educational Employment Relations Act (§ 3540 et seq.) codified the National Labor
Relations Board’s (NLRB) “pre-arbitration deferral policy as articulated in Collyer”
(underline in original)].)
When a respondent pleads deferral and establishes each of the above
elements, PERB defers to the parties’ contractual arbitration procedure unless a
recognized exception applies. (See, e.g., Gov. Code, § 3505.8 [PERB “shall place [an
unfair practice charge] in abeyance if the dispute is subject to final and binding
arbitration pursuant to [a] memorandum of understanding”]; PERB Reg. 32620,
subd. (b)(6) [a charge must be placed in abeyance “if the dispute . . . is subject to
deferral to final and binding arbitration pursuant to a collective bargaining
agreement”].)5
Here, it is undisputed that SEIU and the County have a stable bargaining
relationship, and the County has waived procedural defenses and is willing to arbitrate
the merits of SEIU’s grievance. This case thus turns on “whether the contract and its
meaning lie at the center of the dispute.”
willing to proceed to arbitration on the employee’s grievance. (Claremont Unified
School District (2014) PERB Decision No. 2357, p. 18 (Claremont).)
5 Government Code section 3505.8 is part of the Meyers-Milias-Brown Act
(MMBA), which is codified at Government Code section 3500 et seq. All further
statutory references are to the Government Code.

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“[T]he contract and its meaning lie at the center of the dispute” when two
conditions are met. First, “the alleged unfair practice [must be] arguably prohibited by
the parties’ agreement.” (Fremont Unified School District (2003) PERB Decision
No. 1571, p. 4, underline in original; Los Angeles Unified School District (1990) PERB
Decision No. 860, pp. 3-4.) “[I]t is not sufficient for the agreement to merely cover or
discuss the matter. The conduct alleged to be an unfair practice must be prohibited.”
(Fremont Union High School District (1993) PERB Order No. Ad-248, p. 5.)
Second, resolution of the contractual issue must necessarily resolve the merits
of the unfair practice allegation.6 (Springfield Day Nursery (2015) 362 NLRB 261, 280;
Servomation Corp. (1984) 271 NLRB 1112.)7 If resolution of the alleged unfair practice
requires application of statutory legal standards, and “there is no guarantee that an
arbitrator will look beyond the contract and consider statutory principles,” deferral is
not appropriate. (North American Pipe Corp. (2006) 347 NLRB 836, 852; see
International Organization of Masters (1975) 220 NLRB 164, 168 [deferral
inappropriate where “there is no assurance that the arbitrator would necessarily
resolve the unfair labor practice issue”].)
6 As illustrated post, this condition may be met where the parties incorporate
the statutory legal standard into their collective bargaining agreement. It also could be
met by a stipulation that the parties will ask the arbitrator to resolve the statutory unfair
practice issue.
7 Federal judicial and administrative precedent is not binding on PERB, though
we may find such precedent persuasive in construing California’s public sector labor
relations statutes. (City of Sacramento (2020) PERB Decision No. 2702-M, p. 9,
fn. 13.)

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Further, as a general policy “no allegation is appropriate for deferral, unless the
entire matter is appropriate for deferral.” (Claremont, supra, PERB Decision No. 2357,
p. 17, fn. 14.) “[S]uch a rule ensures one forum for resolution of a dispute, eliminates
overlapping and duplicative proceedings, promotes more timely resolution of disputes
and contributes to employer-employee stability.” (State of California (Department of
Mental Health) (2003) PERB Decision No. 1567-S, p. 8 (Department of Mental
Health); State of California (Department of Corrections) (1995) PERB Decision
No. 1100-S, p. 14.)
How this general policy against bifurcation applies to a particular charge
depends on whether the alleged violations are independent of one another or,
alternatively, one violation is derivative of another violation. As the terms suggest, an
independent violation can be proven without also proving another alleged violation,
while a derivative violation depends entirely on proving another violation. (Regents of
the University of California (Berkeley) (2018) PERB Decision No. 2610-H, p. 68.)8
County of San Diego, supra, PERB Decision No. 2721-M, illustrates the
distinction. There, the charge alleged interference, discrimination, and maintenance of
8 Under this standard, interference can be either an independent violation or
derivative of another violation, depending upon whether the facts at issue permit a
charging party to establish interference without establishing any other violation. Be
that as it may, there is little doubt that interference is the most common derivative
violation because it may arise from failure to bargain in good faith, discrimination, or
retaliation. (See, e.g., County of Sacramento (2020) PERB Decision No. 2745-M, p. 26
[county’s failure to meet and confer in good faith also interfered with employees’ right
to be represented by their union and the union’s right to represent bargaining unit
members]; City of Santa Maria (2020) PERB Decision No. 2736-M, adopted proposed
decision at p. 47 [city’s retaliatory investigation of union executive board members
interfered with the union’s right to represent bargaining unit members].)

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an unreasonable local rule, all arising from the employer’s local rule prohibiting
members of its governing board from discussing subjects within the scope of
representation with employees or union representatives while the employer was
engaged in bargaining. (Id. at pp. 4-5.) We concluded that the charge established
independent, prima facie discrimination and interference violations, but only a
derivative unreasonable rule violation that depended upon proving discrimination or
interference. (Id. at pp. 15-16.)
Department of Mental Health, supra, PERB Decision No. 1567-S, demonstrates
how the general policy against bifurcation applies to a derivative violation. The charge
alleged that the employer made an unlawful unilateral change when it transferred work
out of the bargaining unit, and that the alleged transfer of work interfered with the
union’s right to represent bargaining unit members. (Id. at pp. 4-6.) The Board
concluded the unilateral change allegation was subject to deferral because the parties’
collective bargaining agreement required the employer to bargain over “the impact of
changes in negotiable matters that are not covered by the agreement.” (Id. at pp. 5-6.)
The Board then rejected the union’s argument that the interference allegation should
not be deferred, concluding the alleged interference violation was derivative of the
unilateral change allegation. (Id. at p. 9.) Thus, an allegation that is derivative of an
allegation subject to deferral must also be deferred. (Ibid.)
The deferral analysis is more complex, however, when a charge alleges two or
more independent violations. If at least one such violation is not deferrable, PERB will
not defer any other violation that is “closely related” to it. (Department of Mental
Health, supra, PERB Decision No. 1567-S, p. 7, citing Clarkson Industries (1993) 312

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NLRB 349.) While “closely related” has not been explicitly defined in this context, the
NLRB has recognized that deferral may be appropriate for allegations that “are not in
any way factually or legally interrelated with” allegations that are not subject to
deferral. (Clarkson Industries, supra, 312 NLRB at p. 353.) We thus construe “closely
related” to mean the allegations are “factually or legally interrelated.”
In Clarkson Industries, supra, 312 NLRB 349, the complaint included
allegations that the employer discriminated against a union steward by disparately
enforcing a work rule against him because of his position as a steward and interfered
with protected rights by threatening to hold the steward to a higher standard of
conduct than other employees. (Id. at p. 351.) The NLRB declined to defer the
interference allegation because the parties’ contract prohibited the arbitrator from
ordering the employer not to apply the work rule disparately against the steward in the
future. (Ibid.) It then declined to defer the discrimination allegation because it was
“closely related” to the interference allegation—even though it would have been
subject to deferral standing alone. (Id. at p. 352.)
The NLRB reached a similar result in Graymont PA, Inc. (2016) 364 NLRB
No. 37. There, the complaint alleged that the employer unilaterally changed its
absenteeism and discipline policy and refused to provide the union with requested
information about the changes. (Id. at p. 21.) The NLRB declined to defer the
information request allegation under its longstanding policy against deferring such
allegations. (Ibid.) It then declined to defer the unilateral change allegation because
the requested information related to the alleged change to the employer’s
absenteeism and discipline policy, and thus whether the employer had a duty to

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provide the requested information was dependent upon whether it had a duty to
bargain over the change. (Ibid.) In so ruling, the NLRB noted that deferral of the
unilateral change allegation but not the information request allegation would risk
inconsistent results between the NLRB and the arbitrator on “an overlapping and
related question.” (Ibid.)
Based on these persuasive NLRB decisions, we clarify that when a charge
alleges two or more independent violations, and one of the alleged violations is not
subject to deferral, any allegations that are “closely related” to, i.e., “factually or legally
interrelated with,” the non-deferable allegation also may not be deferred. (Claremont,
supra, PERB Decision No. 2357, p. 17, fn. 14; Department of Mental Health, supra,
PERB Decision No. 1567-S, p. 7.)
II. 	Application of Pre-Arbitration Deferral Standard to SEIU’s Charge
SEIU’s charge allegations arise from the same core set of facts as the
grievance—the County’s denial of paid release time to Griffin based on her purported
failure to comply with a release time policy the County allegedly imposed unilaterally.
Because these allegations are factually interrelated, the charge may not be deferred to
arbitration unless deferral is appropriate for all allegations. (Claremont, supra, PERB
Decision No. 2357, p. 17, fn. 14; Department of Mental Health, supra, PERB Decision
No. 1567-S, p. 7.) We accordingly analyze each allegation in turn.
A. 	Unilateral Change
The charge alleges the County made an unlawful unilateral change by adopting
the SEIU 521 Release Time Process Policy. To prove an unlawful unilateral change,
SEIU must show: “(1) the [County] took action to change policy; (2) the change

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concerns a matter within the scope of representation; (3) the change has a
generalized effect or continuing impact on represented employees’ terms or conditions
of employment; and (4) the [County] reached its decision without first providing
advance notice of the proposed change to [SEIU] and bargaining in good faith over
the decision.” (County of Merced (2020) PERB Decision No. 2740-M, p. 8.)
In its position statement, the County asserts the SEIU 521 Release Time
Process Policy implemented, but did not change, the MOA’s paid release time policy.
The County does not address the other three elements of the unilateral change test.
Thus, it appears the only issue in dispute is whether the County changed the parties’
established policy on paid release time.
“[T]here are three primary types of policy changes: (1) deviation from the status
quo set forth in a written agreement or written policy; (2) a change in established past
practice; and (3) a newly created policy or application or enforcement of existing policy
in a new way.” (County of Merced, supra, PERB Decision No. 2740-M, p. 9.) To
determine whether the County “took action to change policy,” PERB will have to
decide whether the SEIU 521 Release Time Process Policy adds to the requirements
of MOA section 4.1(d), or deviates from it or enforces it in a new way (as SEIU
argues) or is consistent with MOA section 4.1(d) and past practice (as the County
argues). Because the alleged policy change is the only disputed issue, the meaning of
MOA section 4.1(d) “lie[s] at the center of the [unilateral change] dispute.” Moreover,
as SEIU alleged in its grievance, unilateral adoption of a release time policy
inconsistent with MOA section 4.1(d) is arguably prohibited by the MOA. The unilateral
change allegation therefore is subject to deferral. (Trustees, supra, PERB Decision

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No. 2391-H, p. 35; Fremont Unified School District, supra, PERB Decision No. 1571,
p. 4.) Nevertheless, because we find post that the direct dealing allegation arising from
the same core set of facts is not subject to deferral, we cannot defer the unilateral
change allegation. (Claremont, supra, PERB Decision No. 2357, p. 17, fn. 14;
Department of Mental Health, supra, PERB Decision No. 1567-S, p. 7.)
B. 	Direct Dealing
The charge alleges the County’s adoption of the SEIU 521 Release Time
Process Policy constituted unlawful direct dealing. To prove direct dealing in this
context, SEIU must show the County “dealt directly with its employees to create a new
policy of general application, or to obtain a waiver or modification of existing policies
applicable to those employees.” (City of Culver City (2020) PERB Decision No. 2731-
M, p. 22; Walnut Valley Unified School District (1981) PERB Decision No. 160, p. 6.)9
Like the unilateral change allegation, this allegation requires determining whether the
County followed existing policy or, alternatively, created a new policy, modified a
policy, or obtained a waiver of an existing policy. Although an arbitrator could decide
this issue as a matter of contract interpretation, nothing in the MOA indicates that if
the arbitrator were to find the SEIU 521 Release Time Process Policy inconsistent with
section 4.1(d), the arbitrator would look beyond the contract and engage in the
required additional statutory analysis—whether the County “dealt directly with its
9 In other contexts, a union can establish direct dealing by showing that an
employer communicated directly with employees to undermine or derogate a union’s
exclusive authority to represent unit members. (Muroc Unified School District (1978)
PERB Decision No. 80, pp. 19-21; see Trustees of the California State University
(2006) PERB Decision No. 1871-H, adopting dismissal letter at p. 3 [discussing direct
dealing related to collective bargaining].)

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employees” in adopting the Policy. We therefore cannot find that the meaning of
section 4.1(d) “lie[s] at the center” of the direct dealing allegation. (North American
Pipe Corp., supra, 347 NLRB 836, 852.) Nor does there appear to be a provision in
the MOA that arguably prohibits direct dealing. For these reasons, the direct dealing
allegation is not subject to deferral.10
C. 	Retaliation
1. 	SEIU’s Proposed Categorical Rule
SEIU urges us to adopt a categorical rule that retaliation, discrimination, and
interference allegations may never be deferred to arbitration. Although such a bright
line rule would be easy to apply, we reject it because existing precedent properly
balances PERB’s authority to adjudicate and remedy unfair practices with parties’
ability to agree to have those same disputes decided by an arbitrator.
SEIU builds its argument on the foundation of Trustees, supra, PERB Decision
No. 2391-H, where we held that allegations of “retaliation for filing PERB charges or
otherwise participating in PERB processes” are not subject to deferral.11 (Id. at p. 39.)
10 In so finding, we decline to create a categorical rule that all direct dealing
allegations must be excluded from deferral to arbitration, as SEIU urges. Rather, each
direct dealing allegation must be evaluated under the particular circumstances to
determine whether deferral is appropriate.
11 SEIU claims “[i]t is unclear whether the holding also extends to claims that an
employee was discriminated against for filing a PERB charge or otherwise
participating in PERB processes.” Consistent with PERB practice, the Trustees
decision uses “retaliation” and “discrimination” interchangeably. (E.g., Trustees, supra,
PERB Decision No. 2391-H, p. 29 [finding the charging party “failed to establish a
prima facie case for retaliation or discrimination on the basis of his protected
activities”].) We therefore clarify that the prohibition on deferral announced in Trustees
applies to allegations that an employee was retaliated or discriminated against for

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The rationale for this limitation is that “[p]arties are implicitly guaranteed access to
PERB without fear of reprisal or discrimination, and safeguarding that access is a
function that more appropriately lies with the Board, rather than an arbitrator.” (Id. at
p. 38.)
Although the Board’s animating concern was to protect access to PERB’s
processes, the Board went on to make the following general observations about the
suitability of arbitration as a forum for adjudicating retaliation claims:
“PERB has adjudicated retaliation claims since its
inception, has developed and refined a workable test for
assessing such claims, and applies the test uniformly to all
the statutes it administers. Even if a retaliation claim could
arguably fall within an arbitrator’s jurisdiction where, as in
this case, the CBA contains a just cause clause, the
meaning of the CBA does not generally lie at the center of
the dispute in such cases. . . . [¶] Unlike a typical contract
interpretation matter, for which arbitration is uniquely suited
and bargained for, retaliation cases do not require the trier
of fact to discern the meaning of a CBA.”
(Trustees, supra, PERB Decision No. 2391-H, p. 38.)
SEIU cites these general observations to argue for a total ban on arbitration of
retaliation claims. But while these observations express a general preference for
PERB to decide retaliation claims, they do not support a categorical ban on deferral
because existing law does not preclude an arbitrator from deciding a statutory claim if
the parties so agree. (See State of California (Department of Corrections), supra,
PERB Decision No. 1100-S, p. 9 [“the parties have the right to choose a grievance
filing a PERB charge or otherwise participating in PERB processes. Further, while this
case arises under a different labor relations statute than Trustees, we find its
reasoning applies equally under the MMBA.

17
and arbitration process, rather than PERB, as that neutral, administrative forum, and
the Board should defer to the parties’ choice”]; California Correctional Peace Officers
Assn. v. State of California (2006) 142 Cal.App.4th 198, 210 [“the body of case law
governing arbitration has recognized repeatedly that arbitrators may be presented with
issues of statutory interpretation and are entitled to resolve those issues”].) For
instance, a non-discrimination clause may provide a basis for deferral of a retaliation
allegation. (Fremont Unified School District, supra, PERB Decision No. 1571, p. 4.)
Thus, while the above quote from Trustees shows that a collectively-bargained “just
cause” provision by itself does not provide a sufficient basis for PERB to defer a
retaliation or discrimination allegation, deferral is appropriate where parties have
explicitly agreed to arbitrate claims involving discrimination or retaliation for union
activity—as the parties in this case did in their MOA.
SEIU also relies on another general observation by the Board: “The only
assurance PERB and the parties have that an arbitrator correctly applies the statutory
standard in judging retaliation claims is through the repugnancy process, which adds a
layer of delay onto cases that should be decided without delay.” (Trustees, supra,
PERB Decision No. 2391-H, p. 39.) This observation appears to assume that PERB’s
pre-arbitration deferral standard does not require a determination that the arbitrator
will apply the statutory standard. To the extent there is any ambiguity on this point, we
clarify that deferral of an allegation is not appropriate unless the arbitrator necessarily

18
must apply the statutory standard to resolve the contractual dispute.12 (North
American Pipe Corp., supra, 347 NLRB 836, 852.)
Under existing precedent, PERB determines the appropriateness of deferring
an allegation on a case-by-case basis by focusing on whether an arbitrator would
necessarily have to resolve the statutory unfair practice allegation. This standard
accommodates the preference for arbitration as a means of resolving labor disputes
with PERB’s statutory authority and duty to adjudicate and remedy unfair practices. It
also accounts for nuances that may arise from particular combinations of contract
language and facts. While SEIU clearly would prefer that all retaliation, discrimination,
and interference allegations be decided by PERB, it presents no compelling reason
why PERB should not defer to the parties’ choice to have such allegations decided by
an arbitrator where it is clear they have done so. (State of California (Department of
Corrections), supra, PERB Decision No. 1100-S, p. 9.) Accordingly, we reject SEIU’s
invitation to extend the limited prohibition on deferral announced in Trustees to all
retaliation, discrimination, and interference allegations.
2. 	Application of Existing Deferral Standard
The charge alleges that Peterson’s rescission of his prior approval of Griffin’s
paid release time constituted retaliation for her attendance at the Board of Supervisors
meeting on behalf of SEIU. To establish a prima facie case that the County
12 This clarification ensures that our pre-arbitration deferral standard is
consistent with our post-arbitration deferral standard, which requires that the arbitrator
actually decide the alleged statutory violation. (Santa Ana Unified School District
(2008) PERB Decision No. 1951, pp. 9-11; Yuba City Unified School District (1995)
PERB Decision No. 1095, p 14.)

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discriminated or retaliated against Griffin in violation of MMBA sections 3506 and
3506.5, subdivision (a), and PERB Regulation 32603, subdivision (a), SEIU must
show that: (1) Griffin exercised rights under the MMBA; (2) the County had knowledge
of her exercise of those rights; (3) the County took adverse action against Griffin; and
(4) the County took the adverse action because of the exercise of those rights,
meaning Griffin’s protected activity was a substantial motivating factor in the denial of
paid release time. (City & County of San Francisco (2020) PERB Decision No. 2712-
M, p. 15.) If SEIU establishes a prima facie case, the burden shifts to the County to
prove it would have taken the same adverse action even if Griffin had not engaged in
protected activity. (Ibid.; Martori Brothers Distributors v. Agricultural Labor Relations
Bd. (1981) 29 Cal.3d 721, 729-730; Wright Line (1980) 251 NLRB 1083, 1089.)
The County contends the denial of Griffin’s paid release time was consistent
with MOA section 4.1(d) and past practice. But “even when an employer has a
managerial, statutory, or contractual right to take an employment action, its decision to
act cannot be based on an unlawful motive, intent, or purpose.” (City of San Diego
(2020) PERB Decision No. 2747-M, p. 29.) Thus, while an employer’s compliance with
contractual requirements may be relevant to its motive for taking an adverse action, it
rarely is dispositive. Accordingly, we cannot conclude that the meaning of MOA
section 4.1(d) “lie[s] at the center” of the retaliation allegation. (North American Pipe
Corp., supra, 347 NLRB 836, 852.)
Deferral of a retaliation allegation may be appropriate, however, when the
agreement contains a non-discrimination clause. (Fremont Unified School District,

20
supra, PERB Decision No. 1571, p. 4.) The MOA contains the following relevant
provisions:
“Section 2.1 – Employment. Neither the County nor the
Union shall discriminate (except as allowed by law) against
workers because of race, age, sex, color, disability, creed,
national origin, religion, Union activity, affiliations, political
opinions, or sexual orientation.
“Section 2.2 – Union Affiliation. Neither the County, nor
the Union, shall interfere with, intimidate, restrain, coerce or
discriminate against any worker in his/her free choice to
participate or join or refuse to participate or join the Union.
“Section 19.1 – Grievance Defined
a) Definition
A grievance is defined as an alleged violation,
misinterpretation or misapplication of the provisions of
this Memorandum of Agreement, Department
Memoranda of Agreement and/or Understanding, Merit
System Rules, or other County ordinances, resolutions,
Policy and/or Procedure Manuals, or alleged
infringement of a worker’s personal rights (i.e.,
discrimination, harassment) affecting the working
conditions of the workers covered by this Agreement,
except as excluded under Section 19.1(b).”13
MOA sections 2.1 and 2.2 explicitly prohibit discrimination because of “Union
activity” or participation in SEIU activities, respectively. Alleged violations of sections
13 In its supplemental brief, the County provided a URL to the full MOA on
SEIU’s website. PERB may take official notice of documents that meet the criteria for
judicial notice under Evidence Code section 452. (Santa Clara County Superior Court
(2014) PERB Decision No. 2394-C, p. 16.) Evidence Code section 452, subdivision (c)
allows a court to take judicial notice of a collective bargaining agreement adopted by a
county board of supervisors. (Association for Los Angeles Deputy Sheriffs v. County of
Los Angeles (2019) 42 Cal.App.5th 918, 924, fn. 2.) We therefore take official notice of
the parties’ 2015-2019 MOA.

21
2.1 and 2.2 are subject to the contractual grievance procedure. Indeed, the contractual
definition of “grievance” explicitly includes “alleged infringement of a worker’s personal
rights (i.e., discrimination, harassment) affecting the working conditions of the
workers.” (Italics added.) The MOA’s grievance procedure does not exclude such
grievances from binding arbitration. Thus, the allegation that the County retaliated
against Griffin because of her union activity is subject to binding arbitration under the
MOA if the meaning of section 2.1 or 2.2 “lie[s] at the center” of the dispute.
SEIU argues the meaning of MOA section 2.2 does not lie at the center of the
dispute because it is “unlikely” an arbitrator would interpret the provision as
“includ[ing] all the nuances and contours of the MMBA.”14 While section 2.2 cannot be
read to incorporate all MMBA rights, it clearly incorporates the MMBA’s prohibition
against discrimination because of protected activity. MOA section 2.2 provides:
“Neither the County, nor the Union, shall interfere with, intimidate, restrain, coerce or
discriminate against any worker in his/her free choice to participate or join or refuse to
participate or join the Union.” MMBA section 3506 provides: “Public agencies and
employee organizations shall not interfere with, intimidate, restrain, coerce or
discriminate against public employees because of their exercise of their rights under
Section 3502.”15 Because section 2.2 incorporates almost verbatim the language of
14 SEIU does not address MOA section 2.1, presumably because its grievance
did not allege a violation of that section.
15 MMBA section 3502 provides: “Except as otherwise provided by the
Legislature, public employees shall have the right to form, join, and participate in the
activities of employee organizations of their own choosing for the purpose of
representation on all matters of employer-employee relations. Public employees also
shall have the right to refuse to join or participate in the activities of employee

22
MMBA section 3506, the best reading of the MOA is that the parties intended to
prohibit by contract the same discriminatory conduct prohibited by statute. Further, the
parties’ decision not to exclude statutory violations of section 2.2 from the contractual
grievance procedure indicates their intent to use that procedure to resolve allegations
of County discrimination against employees because of their union activity. (See
Regents of the University of California (2010) PERB Decision No. 2094-H, pp. 19-20
[recognizing that parties may incorporate external law into their agreement so that
statutory violations may be resolved through the contractual grievance process].)16
Given the MOA’s language, an arbitrator presented with an alleged violation of
section 2.2 would necessarily apply the same standard PERB would apply in
determining whether the County denied Griffin paid release time because she
attended the Board of Supervisors meeting in her role as an SEIU steward.17 Because
under these circumstances an arbitrator would have to apply the statutory retaliation
standard, deferral would be appropriate if the charge contained only this retaliation
organizations and shall have the right to represent themselves individually in their
employment relations with the public agency.”
16 Indeed, SEIU asserted a violation of MOA section 2.2 in its grievance. While
a union may file a grievance to preserve rights and doing so does not necessarily
determine contractual meaning, SEIU’s grievance appears to at least be consistent
with our contract interpretation.
17 And if the arbitrator failed to do so, SEIU could ask PERB to find the
arbitration award repugnant to the MMBA. (See Santa Ana Unified School District,
supra, PERB Decision No. 1951, pp. 11-12 [finding arbitration award was not
repugnant because the arbitrator considered whether the grievant was transferred
because of her union activity].)

23
allegation.18 (North American Pipe Corp., supra, 347 NLRB 836, 852.) But because we
have found ante that the direct dealing allegation arising from the same core set of
facts is not subject to deferral, we cannot defer the retaliation allegation. (Claremont,
supra, PERB Decision No. 2357, p. 17, fn. 14; Department of Mental Health, supra,
PERB Decision No. 1567-S, p. 7.)
D. 	Interference
The charge alleges the County’s denial of paid release time to Griffin interfered
with employees’ right to request release time. As noted ante, MOA section 2.2
incorporates MMBA section 3506’s prohibition against interference with employees’
participation in union activities. As a result, an arbitrator would necessarily apply
PERB’s interference standard in deciding an alleged section 2.2 violation, and this
allegation accordingly would be subject to deferral standing alone. But because we
have found ante that the direct dealing allegation arising from the same core set of
facts is not subject to deferral, we cannot defer the interference allegation.19
(Claremont, supra, PERB Decision No. 2357, p. 17, fn. 14; Department of Mental
Health, supra, PERB Decision No. 1567-S, p. 7.)
18 In finding deferral appropriate here, we do not rule that deferral is appropriate
whenever a collective bargaining agreement contains a non-discrimination clause.
Rather, the appropriateness of deferral must be determined based on the language
and context of the particular non-discrimination clause and the facts alleged in the
unfair practice charge.
19 This would be so even if the interference allegation was derivative of the
other allegations in the charge, as those allegations also may not be deferred. (See
Department of Mental Health, supra, PERB Decision No. 1567-S, p. 9 [derivative
violations are subject to deferral when the allegations from which they derive are
subject to deferral].)

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CONCLUSION
Applying existing precedent, we conclude SEIU’s charge is not subject to
deferral because, although the unilateral change, retaliation, and interference
allegations meet the criteria for deferral, they arise from the same core set of facts as
the direct dealing allegation, which does not. PERB therefore must retain all
allegations. (Claremont, supra, PERB Decision No. 2357, p. 17, fn. 14; Department of
Mental Health, supra, PERB Decision No. 1567-S, p. 7.) Because OGC deferred the
charge to arbitration without determining whether the charge states a prima facie case
of any of the alleged violations, it is appropriate to remand this case to OGC for further
investigation of the charge allegations. (State of California (Department of Food and
Agriculture), supra, PERB Decision No. 1473-S, pp. 13-14.) If the investigation results
in the direct dealing allegation being dismissed or withdrawn, the County may renew
its request for deferral.20
ORDER
Service Employees International Union Local 521’s appeal of the Office of the
General Counsel’s June 8, 2020 administrative decision in Case No. SF-CE-1688-M is
GRANTED. The Board REMANDS this case to the Office of the General Counsel for
further investigation and processing consistent with this Decision.
Chair Banks and Member Krantz joined in this Decision.
20 SEIU avers that it may amend its charge to allege the County violated
Government Code sections 3550 and 3558.8. Because no such allegations are in the
charge before us, we express no opinion on the extent to which such claims may be
subject to deferral.