Colusa Unified School District (PERB 0296EA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	COLUSA
CHAPTER NO. 	574,
Charging 	Party,
v.
COLUSA 	UNIFIED SCHOOL 	DISTRICT,
Respondent.
Case No. 	S-CE-400
Request 	For 	Reconsideration
PERB Decision No. 	296
PERB Decision No. 	296a
July 15, 	1983
Appearances; 	Robert A. 	Galgani, Attorney 	(Breon, Galgani,
Godino 	& O'Donnell) 	for 	Colusa Unified School District.
Before Gluck, 	Chairperson; 	Tovar and Burt, Members.
DECISION
TOVAR, 	Member: 	The 	Public Employment Relations Board 	(PERB
or 	Board) 	having 	duly considered 	the 	request 	for
reconsideration 	and 	for 	stay 	filed 	by 	the 	Colusa Unified School
District 	(District), 	hereby denies 	that 	request.
DISCUSSION
The 	underlying 	case 	in 	this 	matter 	came 	before 	the Board
upon exceptions 	filed 	by 	the District 	to 	an 	adverse proposed
decision 	issued 	by 	a PERB administrative 	law judge 	(ALJ). 	On
review, 	we 	affirmed 	the ALJ's 	determination 	that 	the District
had 	violated 	subsection 	3543.5(c) 	of 	the Educational Employment
Relations Act 	by 	unilaterally 	changing 	a policy 	on paid 	holiday

leave 	for 	classified 	employees 	which 	had 	been 	previously
established 	by 	contractual 	agreement 	with 	the 	California School
Employees Association 	and 	its 	Colusa Chapter No. 	574
(CSEA).1 Specifically, 	the ALJ 	found 	that 	the parties 	had
contractually 	agreed 	that 	when 	an 	established 	non-working
holiday 	fell on 	a Tuesday 	or 	a Thursday, 	then 	the Monday
preceding 	the Tuesday 	holiday, 	or 	the Friday following 	a
Thursday 	holiday, 	would also be 	a day of paid 	leave, 	thereby
creating 	a 	four-day 	weekend 	for 	the 	employees. 	He 	found 	that
despite 	this 	contractually 	agreed-upon 	policy, 	the 	District 	had
reverted, 	during 	the 	term of 	the contract, 	to 	its earlier
policy 	of 	not 	granting 	paid 	leave 	on 	those Mondays 	and 	Fridays.
In order 	to 	resolve CSEA's charge on 	the merits, 	the ALJ
was 	required 	to 	interpret 	the 	contract. 	Because 	the 	contract
provision on paid 	leave 	was ambiguous, 	he 	relied 	on 	evidence of
negotiating 	history 	and 	the 	negotiators' 	intent 	at 	the
bargaining 	table. 	Based 	upon 	this 	evidence, 	he 	determined 	that
the 	District 	had 	contractually 	agreed 	to 	the 	policy 	of 	paid
holiday 	leave 	for 	those 	certain Mondays 	and Fridays 	at 	issue.
1The 	Educational Employment 	Relations 	Act 	is 	codified 	at
Government Code 	section 	3540 	et 	seq. 	Section 	3543.5 provides
in 	relevant part 	as 	follows:
It 	shall be 	unlawful 	for 	a public school
employer 	to:
(c) 	Refuse or 	fail 	to meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
N
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
2

In 	its exceptions 	to 	the ALJ's proposed decision, 	the
District 	argued, 	inter 	alia, 	that 	the Board 	should 	exclude
CSEA's 	evidence 	as 	to negotiating history. 	It asserted 	that
CSEA 	had 	failed 	to 	present 	this 	evidence 	when 	the 	holiday-leave
dispute 	came 	before 	the 	school board 	in 	a grievance 	hearing.
To permit 	the 	union 	to 	present 	before 	PERB 	evidence 	which 	it
chose 	to withhold 	at 	the grievance 	hearing, 	argued 	the
District, 	would encourage 	litigants 	to engage 	in 	this
undesirable practice 	in 	the future; 	the Board, 	therefore,
should 	strike 	this 	evidence 	from 	the 	record.
We dismissed 	this exception 	on 	the grounds 	that 	the
District 	was 	raising 	an 	issue 	which 	it 	had 	not 	raised 	before
the ALJ. 	We 	noted 	that 	it 	is a well-established 	rule of
administrative 	appellate 	procedure 	that 	a matter 	not 	raised
before 	the 	trial judge 	is 	not properly 	reviewable 	by 	the
appellate 	tribunal.
In 	the 	instant 	request 	for 	reconsideration 	and 	for 	stay,
the District maintains 	that 	it 	in 	fact did 	raise 	an objection
before 	the ALJ 	to 	any 	reliance 	on 	the 	evidence 	of 	negotiating
history 	submitted 	by CSEA. 	It cites 	to 	the 	hearing 	transcript
and 	to 	its 	reply brief 	to 	the ALJ. 	Further, 	the District
argues 	that 	the Board 	applied 	an 	incorrect 	rule 	of 	law 	in
rejecting 	its 	exception. 	It maintains 	that 	the correct 	rule of
law 	is 	that where, 	as 	in 	the underlying case, 	there 	is a
sufficient 	record 	upon 	which 	to 	resolve 	the 	District's
exceptions on 	their 	merits, 	the Board 	should properly 	do 	so.
3

The 	cases cited 	by 	the Board, 	Butte View Farms v. 	ALRB 	(1979)
95 Cal.App.3d 961 	[157 	Cal.Rptr. 	476] 	and Fresno Unified School
District 	(4/30/82) 	PERB Decision No. 	208, 	are asserted 	to be
distinguishable.
The Asserted 	Error 	of 	Fact
The 	portions 	of 	the 	transcript 	and 	the 	reply 	brief 	cited 	in
the District's 	request 	for 	reconsideration 	fail 	to 	demonstrate
that 	it 	raised 	any 	objection 	before 	the 	hearing 	officer 	to 	the
admission of 	the 	challenged 	evidence 	on 	the 	grounds 	now
asserted. 	The 	first passage 	of 	transcript 	to 	be 	cited 	is 	at
p. 	83, 	lines 14-21, which states:
[District Counsel]: 	The hearing 	testimony
reflects 	— 	of 	January 	12, 	only 	reflects 	her
hearsay 	statements. 	There's 	no 	evidence
put 	in of 	any 	contract 	interpretation,
bargaining 	history or 	anything, 	during 	the
course of 	that proceeding. 	There 	was 	none
— 	only 	her 	statements 	as 	to 	what 	county
councils 	had 	said. 	She 	was given 	the
opportunity 	to 	call 	witnesses 	to present
evidence 	but did 	not do 	so. 	Then 	the
decision came out which we 	now have 	in
evidence.
The 	second passage 	is at p. 	84, 	lines 	10-28, which states:
[District Counsel] 	I'm putting 	aside 	any
anti-union 	animus 	statements, 	but 	— 	and 	I
don't 	know 	the 	technicalities 	of 	putting 	the
pleadings 	in. 	They're 	a part of 	the 	record
but 	I 	can point out 	those 	sections of 	her
pleadings 	that 	bring 	— 	and 	I 	want 	to 	make
— 	so 	that 	there 	is 	no 	mistake 	in 	the 	record
at all, 	that we continue 	to object 	to any
consideration of 	the 	unilateral 	action 	issue
because 	that 	is, 	in essence, 	a contract
interpretation 	question 	and 	when 	there 	had
been a denial of a grievance, 	then 	the
unfair 	labor practice 	was 	filed. 	And 	in
order 	to 	reach 	the 	unfair 	labor 	practice
A	4

issue, 	if 	there 	is one, you have 	to construe
the 	contract. 	You have 	to 	interpret what
the 	terms mean, 	whether Article XIII 	took 	in
local holidays. 	What 	did 	that 	term mean 	and
what 	was 	the 	bargaining 	background of 	that
whole 	section. 	We've 	done 	some 	of 	that 	this
morning. 	But 	I'm 	lodging 	an objection 	right
now 	to 	any 	further 	testimony 	this 	afternoon
as 	to bargaining 	background 	because 	all 	that
was 	dealt with 	in 	the 	grievance 	procedure,
and 	resulting 	in 	the 	decision of 	the Board
on 	that 	grievance 	to 	deny 	the 	local holiday
issue. 	Am I making myself clear?
Certainly 	these 	passages 	of 	transcript 	show 	that 	the
District presented 	to 	the ALJ 	an 	allegation 	that 	CSEA 	had 	not
put on 	evidence 	of 	negotiating 	history 	at 	the 	grievance
proceeding 	of January 	12. 	The 	latter 	passage of 	transcript
also 	contains 	an 	express 	objection 	to 	the 	introduction 	of
evidence 	as 	to bargaining 	background. 	However, 	a complete
reading 	of 	these 	passages 	in 	context makes 	clear 	that 	the 	basis
for 	the District's objection 	was 	its 	contention 	that PERB 	has
no 	jurisdictional 	authority 	to 	interpret 	contracts.
Importantly, 	the 	ALJ 	specifically 	expressed 	this 	understanding
of 	the District's 	argument 	in his 	response 	to District
counsel. 	Following 	the 	above-quoted 	statements of District
counsel, 	the ALJ replied 	as 	follows:
HEARING OFFICER: 	Well, 	yes. 	You're 	stating
the 	issue 	in 	this 	case 	and 	that's 	the 	issue
ultimately 	that's 	going 	to 	have 	to be
resolved 	before 	you 	can 	get 	to 	the 	merits 	as
to whether 	or 	not 	there 	is 	a 	unilateral
change 	in past practice or 	whether 	or 	not
this 	is 	essentially a 	contract violation
case 	that 	doesn't come 	before 	us. 	[Emphasis
added.]
55

From District 	counsel's 	failure 	to 	take 	issue 	with 	the ALJ's
characterization 	of 	his 	argument 	as 	simply 	a 	statement 	of 	the
jurisdictional 	issue, 	we 	infer 	that 	the ALJ 	had 	correctly
captured 	his 	meaning.
In 	sum, 	the 	passages 	cited 	from 	the 	transcript 	fail 	to
support 	the District's 	assertion 	that 	it 	ever 	proposed 	to 	the
ALJ 	application 	of 	the 	evidentiary 	rule 	advocated 	on 	exceptions
which 	would 	bar 	the 	introduction of 	evidence 	not previously
presented 	at 	a prior 	grievance 	proceeding.
Neither 	do 	the 	cited 	passages 	of 	the District's 	reply 	brief
to 	the ALJ 	indicate 	that 	the 	District 	ever 	proposed 	that
evidentiary 	rule 	to 	the ALJ. 	While 	the 	cited passages make
mention 	of 	CSEA's 	asserted 	failure 	to present 	evidence 	of
negotiating 	history 	at 	the grievance proceeding, 	this 	factual
matter 	is 	raised 	only 	in connection 	with 	legal 	arguments
unrelated 	to 	the 	belatedly-advocated 	evidentiary 	rule. 	We 	thus
adhere 	to our 	determination 	that 	the 	District's 	evidentiary
argument 	was 	raised 	for 	the 	first 	time 	on exceptions.
The Asserted 	Error 	of Law
The District 	argues 	that, 	even 	if 	it 	failed 	to present 	its
evidentiary objection before 	the ALJ, 	the Board 	should
nevertheless 	consider 	its 	arguments 	on 	exceptions. 	It 	asserts
that 	the 	authority 	we 	relied 	on 	in 	refusing 	to consider 	those
arguments 	can 	be 	distinguished, 	and 	that 	the 	only 	"real vice 	to
be 	avoided 	by a 	rule 	such 	as 	the 	one 	declared 	by PERB here 	is
that 	there 	is 	no 	record 	upon 	which 	a determination may 	be
6

made." 	The District 	argues 	that 	there 	is a sufficient 	record
here 	and 	that 	there 	is 	neither 	reason 	nor 	authority 	supporting
the Board's 	refusal 	to consider 	the merits of 	the exception 	at
issue.
The 	District's 	efforts 	to 	distinguish 	the 	authority on
which 	we 	relied 	in our 	Decision 	are 	unpersuasive. 	As 	to Fresno
Unified School District 	(4/30/82) 	PERB Decision No. 	208, 	the
District says " 	. 	. 	. 	the authority cited is distinguishable.
In Fresno, 	it 	appears 	that 	nothing 	was 	done 	by 	the District 	to
bring 	the 	undecided 	issue 	to 	the 	attention of 	the 	hearing
officer." 	As 	reviewed 	above, 	however, 	the District has 	failed
to 	show 	that it ever 	raised 	its 	evidentiary 	argument before 	the
ALJ 	in 	the 	instant 	case.
Neither 	does 	the 	District's 	claim 	that 	a 	sufficient 	record
exists 	persuade 	us 	that 	we may properly 	resolve 	an 	issue 	not
raised 	at 	the 	trial 	level. 	It 	is 	a 	fundamental principle of
due process 	that parties 	to 	an 	adjudicatory proceeding must 	be
afforded 	the 	opportunity 	to 	litigate 	the 	questions 	by which
their 	rights may be 	determined. 	This 	is 	the basis 	for 	the 	rule
that 	an 	appellate 	tribunal will 	not 	consider 	a party's 	de 	novo
claim 	that 	evidence 	should 	have 	been excluded 	at 	the 	trial
level. 	See Doers v. 	Golden Gate Bridge Etc. 	District 	(1979) 	23
Cal.3d 180, 184 	[151 Cal.Rptr. 	837, 	588 P.2d 1261], citing
legal 	scholar 	Bernard Witkin 	as 	follows:
An 	appellate 	court 	will 	ordinarily 	not
consider 	procedural defects 	or 	erroneous
rulings, 	in connection with 	relief 	sought or
77

defenses asserted, 	where 	an objection could
have 	been 	but was 	not presented 	to 	the 	lower
court by some appropriate method. 	. 	. 	. 	The
circumstances 	may 	involve 	such 	intentional
acts or 	acquiescence 	as 	to be 	appropriately
classified 	under 	the 	heading 	of 	estoppel or
waiver. 	. 	. 	. 	Often, however, the
explanation 	is 	simply 	that 	it 	is 	unfair 	to
the 	trial judge 	and 	to 	the 	adverse party 	to
take 	advantage 	of 	an 	error 	on 	appeal when 	it
could 	easily 	have 	been 	corrected 	at 	the
trial. 	(6 Witkin Cal. 	Procedure 	(2d ed.
1971) Appeal, section 218, pp. 	4264-4265.)
Here, 	consideration 	by 	the Board 	of 	the 	evidentiary 	rule
proposed 	by 	the District 	on exceptions 	would 	violate 	this
principle 	by 	denying 	CSEA 	the 	opportunity 	to present 	evidence
and 	full 	argument 	on 	the 	questions 	of 	whether 	the Educational
Employment 	Relations Act 	should 	be 	read 	to 	include 	such 	a 	rule
in general, 	and, 	if so, whether 	the instant case 	is one in
which 	the 	rule 	should 	apply.
Finding 	that 	the 	District 	has 	failed 	to 	identify 	any 	error
of law or 	fact 	in Decision No. 	296, 	the Board denies 	the
request 	for 	reconsideration 	and 	for 	stay.2
2PERB's 	rules 	and 	regulations 	are 	codified 	at 	California
Administrative Code, 	title 8, 	section 31001 et 	seq. 	Section
32410 of 	those 	rules 	and 	regulations 	provides 	in pertinent part
as follows:
(a) 	Any 	party 	to a decision of 	the Board
itself may, 	because of extraordinary
circumstances, 	file a request 	to reconsider
the 	decision 	. . . . 	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.
8

ORDER
The 	request 	by 	the 	Colusa 	Unified 	School 	District 	that 	the
Public 	Employment 	Relations 	Board 	grant 	reconsideration 	of
Colusa Unified 	School District 	(3/21/83) 	PERB 	Decision No. 	296
is DENIED.
Chairperson 	Gluck 	and Member 	Burt 	joined 	in 	this 	Decision.
9