Fremont Union Union High School District (PERB A248EA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FREMONT 	EDUCATION ASSOCIATION,
CTA/NEA,
Charging 	Party,
V.
FREMONT UNION HIGH 	SCHOOL 	DISTRICT,
Respondent.
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) 	Case 	No. 	SF-CE-1557
Request 	for 	Reconsideration
PERB 	Order 	No. 	Ad-248
PERB 	Order 	No. 	Ad-248a
November 	23, 	1993
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__________________ )
Appearances: 	California 	Teachers 	Association 	by 	Ramon 	E. 	Romero,
Attorney, 	for 	Fremont 	Education Association, 	CTA/NEA; 	Zampi 	and
Associates 	by 	Joseph 	P. 	Zampi 	and Gerald 	B. 	Determan, 	Attorneys,
for 	Fremont 	Union 	High 	School 	District.
Before 	Blair, 	Chair; 	Hesse 	and 	Caffrey, 	Members.
DECISION
BLAIR, 	Chair; 	This 	case 	is 	before 	the 	Public 	Employment
Relations 	Board 	(PERB 	or 	Board) 	on 	a 	request 	for 	reconsideration
filed 	by 	the 	Fremont 	Unified 	School 	District 	(District) 	of 	the
Board's 	decision 	in 	Fremont 	Union 	High 	School 	District 	(1993)
PERB 	Order 	No. 	Ad-248 	(Fremont). 	In 	that 	decision 	the 	Board
denied 	the 	District's 	motion 	to 	dismiss 	the 	unfair 	practice
complaint 	and 	defer 	the 	matter 	to 	arbitration under 	section
3541.S(a) (2) 	of 	the 	Educational 	Employment 	Relations 	Act 	(EERA) . 1
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Section 	3541.5 	states, 	in 	pertinent 	part:
(a) 	Any 	employee, 	employee 	organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice 	charge, 	except 	that 	the 	board
shall 	not 	do 	either 	of 	the 	following:
(2) 	Issue 	a 	complaint 	against 	conduct 	also
prohibited 	by 	the 	provisions 	of 	the 	agreement

between 	the 	parties 	until 	the 	grievance
machinery 	of 	the 	agreement, 	if 	it 	exists 	and
covers 	the 	matter 	at 	issue, 	has 	been
exhausted, 	either by 	settlement 	or 	binding
arbitration. 	However, 	when 	the 	charging
party 	demonstrates 	that 	resort 	to 	contract
grievance 	procedure would 	be 	futile,
exhaustion 	shall 	not 	be 	necessary.
The 	District 	alleged 	that 	its 	collective 	bargaining 	agreement
with 	the 	Fremont 	Education Association, 	CTA/NEA 	(Association)
prohibits 	the 	conduct 	complained 	of 	in 	the 	Association's 	unfair
practice 	charge 	and, 	consequently, 	the 	matter must 	be 	deferred 	to
the 	arbitration 	process. 	In 	its 	request 	for 	reconsideration, 2
the 	District 	asserts 	that 	it 	discovered 	new 	evidence 	which 	was
not 	previously 	available 	and 	which 	supports 	its 	position. 	We
find 	that 	the 	alleged 	new 	evidence 	is 	not 	determinative 	in 	this
case.
DISCUSSION
In 	Fremont, 	the 	Board 	determined 	that 	it 	was 	not 	appropriate
to 	defer 	the 	Association's 	unfair 	practice 	charge 	to 	arbitration
because 	the 	parties 	agreement 	does 	not 	prohibit 	the 	alleged
unlawful 	conduct 	of 	employer 	discrimination 	against 	employees.
The 	District 	argued 	that 	Article 	1.2 	and Article 	2, 	sections 	2.3
and 	2.3.2 	incorporated 	EERA 	into 	the 	parties' 	agreement3 and
2The 	District 	also 	requested 	a 	stay 	of 	the 	hearing.
3The 	District 	cited Article 	1.2 	of 	the 	collective 	bargaining
agreement 	which 	states:
This 	Agreement 	is 	entered 	into 	pursuant 	to
Chapter 	10.7, 	Sections 	3540 	through 	3549 	of
the 	Government 	Code.
2

because 	EERA prohibits 	an 	employer 	from 	discriminating 	against
employees 	for 	engaging 	in protected 	activity, 	the 	subject 	matter
of 	this 	unfair 	practice 	is 	covered by 	the 	contract.
The 	District 	now 	submits 	a 	grievance 	subsequently 	filed 	by
the 	Association 	on 	September 	3, 	1993, 	concerning 	an 	alleged
unilateral 	change 	as 	evidence 	that 	the 	Association agrees 	with
the 	District's 	argument. 	Specifically, 	the 	District 	refers 	to
the 	following 	statement 	in 	the 	Association's 	grievance:
The 	District 	has 	failed 	to 	comply with 	its
duty 	and 	responsibility 	to 	abide 	by 	the 	laws
of 	the 	State 	of 	California 	in 	the 	area 	of
collective 	bargaining. 	(Article 	2,
Subsection 	2.3)
On 	this 	basis, 	the 	District 	asserts 	that 	since 	both 	parties 	to
the 	agreement 	believe 	that 	it 	incorporates 	rights 	granted 	by
EERA, 	the 	unfair 	practice 	charge 	which 	alleges 	a 	violation 	of
EERA 	should be 	deferred 	to 	arbitration.
The 	grounds 	for 	requesting 	reconsideration are 	set 	forth 	in
PERE 	Regulation 	32410(a) 4 which 	states, 	in 	pertinent 	part:
The 	grounds 	for 	requesting 	reconsideration
are 	limited 	to 	claims 	that 	the 	decision 	of
the 	Board 	itself 	contains 	prejudicial 	errors
of 	fact, 	or 	newly 	discovered 	evidence 	or 	law
which was 	not 	previously 	available 	and 	could
not 	have 	been 	discovered with 	the 	exercise 	of
reasonable 	diligence.
In 	addition, 	the 	District 	cited Article 	2, 	sections 	2.3 	and 	2.3.2
which 	states 	that 	the 	District's 	powers, 	rights, 	and 	authority 	to
dismiss 	employees 	are 	"subject 	to 	the 	provisions 	of 	the 	law."
4 PERB 	regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 	31001 	et 	seq.
3

The 	District 	alleges 	that 	because 	the 	Association 	filed 	the
grievance 	after 	the 	District's 	time 	had 	run 	for 	filing 	an 	appeal,
this 	constitutes 	newly 	discovered 	evidence 	in accord with
Regulation 	32410. 	Although 	the 	grievance 	was 	not 	previously
available 	to 	the 	District, 	it 	does 	not 	satisfy 	the 	requirements
of 	Regulation 	32410 	as 	the 	statements 	in 	the 	grievance 	constitute
the 	Association's 	statement 	of 	a 	legal 	opinion 	that 	the 	District
violated 	state 	laws. 	A party's 	opinion 	about 	the 	legality 	of 	an
act 	is 	not 	admissible 	evidence. 5 	The 	District's 	characterization
of 	a 	specific 	statement 	extracted 	from 	an Association 	grievance
does 	not 	constitute 	new 	supporting 	evidence 	to 	justify 	its
request 	for 	reconsideration.
The 	thrust 	of 	the. District's 	argument 	is 	that 	the 	grievance
demonstrates 	that 	both 	parties 	to 	the 	agreement 	(the 	District 	and
the 	Association) 	interpret 	it 	as 	incorporating 	rights 	granted 	by
EERA. 	Consequently, 	the 	District 	argues, 	PERB 	is 	in no 	position
to 	find 	that 	the 	parties 	intended 	any 	other 	interpretation.
In 	Fremont, 	the 	Board 	found 	that 	"[t]he 	plain meaning 	of 	the
provisions 	cited 	[Article 	1.2 	and 	Article 	2, 	sections 	2.3 	and
2.3.2] 	require 	that 	the 	incorporation 	theory 	be 	rejected." 	The
Association's 	statement 	in 	its 	September 	3 	grievance 	is 	not
sufficient 	to 	alter 	the 	plain meaning 	of 	these 	contract
5McCormick 	on 	Evidence 	(1972), 	p. 	28, 	11 • 	. 	. 	courts 	do 	not
permit 	opinion 	on 	a 	question 	of 	law, 	II
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provisions. 	Based 	on 	the 	evidence 	presented, 	this 	charge 	is
inappropriate 	for 	deferral 	to 	arbitration. 6
ORDER
The 	request 	for 	reconsideration 	in 	Fremont 	Union 	High 	School
District 	(1993) 	PERE 	Order No. 	Ad-248 	and 	request 	for 	stay 	of 	the
proceedings 	in 	Case 	No. 	SF-CE-1557 	are 	DENIED.
Members 	Hesse 	and 	Caffrey 	joined 	in 	this 	Decision.
6Member 	Hesse 	considered 	and 	addressed 	the 	newly 	discovered
evidence 	in 	Fremont 	Union 	High 	School 	District 	(1993) 	PERB 	Order
No. 	248, 	concurring 	opinion, 	footnote 	8, 	p. 	17.
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