Dave Lukkarila, a certificated teacher at Claremont High School, filed numerous grievances with the Claremont Unified School District (District).  The grievances alleged, among other claims, health and safety violations by the District and retaliation against Lukkarila for his bringing grievances.  Lukkarila then filed an unfair practice charge with PERB, alleging discrimination and interference with employee rights.  The collective bargaining agreement (CBA) between the District and the representative bargaining unit provides for a multi-step grievance procedure that ends in binding arbitration.  The CBA also provides that the bargaining unit must consent to proceed to arbitration, and that retaliation for participating in the grievance procedure is prohibited.

In response to the unfair practice charge, PERB's Office of General Counsel dismissed and deferred the matter to arbitration.  The General Counsel explained that the issues raised in Lukkarila's charge directly involve interpretation of CBA provisions and the issue whether the District violated the CBA.  Lukkarila appealed.

PERB held that deferral of the charges to arbitration was not appropriate.  The Educational Employment Relations Act (EERA) section 3541.5 provides that PERB shall not issue a complaint against conduct that is also prohibited by the provisions of a CBA until the arbitration provisions provided for in the CBA are exhausted.  The Section also provides that when the charging party demonstrates that resorting to the CBA arbitration would be futile, this exhaustion requirement does not apply.  For example, it is futile to exhaust arbitration where the exclusive representative is unwilling to take a grievance to arbitration under the CBA.

Here, PERB determined that the representative bargaining unit's unwillingness to take some of Lukkarila's grievances that overlapped with his unfair practice charge to arbitration was sufficient for the futility exception to apply.  Therefore, PERB reversed the dismissal and deferral of Lukkarila's charge. 

As part of this decision, PERB also set forth a new rule on when to apply the futility exception:  The futility exception applies either when (1) the employer's conduct undermines the integrity or effectiveness of the arbitration process, or (2) the representative bargaining unit decides, for any reason, to not arbitrate an issue that is the subject of the unfair practice charge.  In applying this new rule, PERB also created a new obligation on the Office of the General Counsel.  Namely, now, where the charging party is not a party to the CBA but rather is dependent on the willingness of the employer and representative bargaining unit to move forward with arbitration, the Office of the General Counsel must determine whether both the employer and the representative bargaining unit are ready and willing to proceed with arbitration.

Lukkarila v. Claremont Unified School Dist. (2014) PERB Decision No. 2357 [__ PERC ¶__].