County of Riverside * * * OVERRULED IN PART by Walnut Valley Unified School District (2016) PERB Decision No. 2495 (PERB 2090M)

OVERRULED IN PART by Walnut Valley Unified School
District (2016) PERB Decision No. 2495
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JOHN BREWINGTON,
Charging Party,
V.
COUNTY OF RIVERSIDE,
Respondent.
Case No. LA-CE-261-M
PERB Decision No. 2090-M
December 31, 2009
Appearances: Tomlinson, Nydam & Prince by Alan J. Leahy, Attorney, for John Brewington;
The Zappia Law Firm by Edward P. Zappia, Attorney, for County of Riverside.
Before Dowdin Calvillo, Acting Chair; McKeag and Neuwald, Members.
DECISION
NEUWALD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the County of Riverside (County) to a proposed
decision of an administrative law judge (ALJ). The complaint alleged that the County violated
the Meyers-Milias-Brown Act (MMBA)1 by taking several adverse actions against John
Brewington (Brewington) in retaliation for having engaged in protected activities. In this
decision, the Board concludes that the County unlawfully retaliated against Brewington for
having engaged in protected activity.
PROCEDURAL HISTORY
On March 28, 2006, Brewington filed an unfair practice charge alleging that the County
took adverse action against him in retaliation for having engaged in protected activity. After
the charge was amended several times, PERB' s acting General Counsel issued a complaint on
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

August 21, 2006. After the matter was assigned for hearing , the ALJ issued an amended
complaint on November 28, 2006.2 Thereafter, the matter was deferred to the
grievance/arbitration procedure
of
the memorandum
of
understanding (MOU) between Service
Employees International Union (SEIU) and the County, but was revived when the contractual
procedure failed over a dispute as to who would pay the cost
of
arbitration. The ALJ issued
the proposed decision on April 25, 2008. The County filed timely exceptions to the proposed
decision.
The amended complaint alleges that Brewington exercised rights guaranteed by the
MMBA by: (1) speaking with his supervisor on November 9, 2005, about a co-worker's
behavior; (2) meeting with his union representative on November 9, 2005; (3) having his union
representative write to the County's human resources office on February 13, 2006, regarding
his working conditions; (4) meeting with his supervisor on February 14, 2006, regarding his
working conditions; and (5) attending a meeting on March 30, 2006, with his union
representative and the County's representatives to discuss his complaints. The amended
complaint further alleges that the County violated MMBA section 3506 and committed an
unfair practice under MMBA section 3509(b) and PERB Regulation 32603(a)3 by taking the
following actions because
of
Brewington's protected activities: (1) issuing a memorandum on
February 16, 2006, entitled "job duties and responsibilities" that indicated that violations
of
the
memo may subject Brewington to discipline; (2) issuing Brewington a Directive Memorandum
on March 30, 2006; (3) issuing Brewington a Medical Certification Directive on June 13, 2006;
(4) docking Brewington's pay on July 5, 2006; (5) informing Brewington on June 7, 2006, that
The complaint was further amended at the hearing to reflect correct dates for the
alleged adverse actions.
3 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

he was the subject
of
an investigation which may have criminal implications; (6) placing
Brewington on paid administrative leave on July 10, 2006; (7) conducting an investigatory
interview on July 18, 2006, in the absence ofBrewington's counsel, whom he had requested to
be present; (8) issuing Brewington a Notice
of
Proposed Termination on August 9, 2006; and
(9) terminating Brewington's employment on August 23, 2006.
BACKGROUND4
The County is a public agency within the meaning
of
MMBA section 3501(c). SEIU is
a recognized employee organization within the meaning
of
section 3501(b), representing a
bargaining unit that includes the County's engineers. At all relevant times, SEIU and the
County were parties to an MOU, which was effective from 2006 to 2009.
Brewington was hired by the County in 1984, and since 1986 was a soil grading
engineer in the Department
of
Building and Safety, a division
of
the County's Transportation
and Land Management Agency (TLMA). When he was first hired, he was a civil engineer by
education, and received his state engineer's license thereafter in 1992.
Brewington's duties as a soil grading engineer included ensuring that soil grading plans
submitted by various contractors, civil engineers, landowners, etc., in preparation for building
construction were properly written, ensuring that the plans were properly implemented, and
certifying the completion
of
the final plans, a prerequisite to beginning construction. He
worked mainly in an office, but
if
there were problems with the plans, he would come out to
the front counter and speak with whomever submitted the plans, e.g., the architect, contractor,
or landowner. He thus had daily contact with the public, as well as with fellow engineers and
others in his department.
4 The Board adopts the ALJ' s findings of fact, including credibility determinations, to
the extent they are consistent with this decision.
3

Brewington was first assigned to the County's Riverside office. Because
of
his
expertise and with his consent, he was transferred to the Indio office in June 1999. By 2000,
he began complaining to Indio Regional Office Director, Bob Lyman (Lyman), about the Indio
office. In particular, Brewington felt that the building inspectors were too lenient in approving
building projects that did not have proper drainage plans.
	.A~s
a result
of
an alleged conflict
between Brewington and a fellow employee, he was transferred back to Riverside in 2000.
While there, in September 2002, he and eleven fellow employees sent a memo to the TLMA
director complaining that non-licensed engineers were directing the work
of
licensed
engineers. In October 2005, over his objection, he was transferred back to Indio. He testified
that Indio was a "tough, tough reassignment," because the "rules seemed to change" with
regard to interpretation and application
of
the relevant state codes and ordinances.
Brewington' s Complaints
From the beginning
of
his second tenure at Indio, Brewington was critical
of
its office
procedures and expressed his views several times to Lyman, both verbally and in writing. 	On
November 3, 2005, Brewington had an altercation with a coworker, Garry Shopshear
(Shopshear). Shopshear, who was not a trained or licensed engineer, presented a final site
grading plan to Brewington for his certification. Brewington was not satisfied that the plan
carried sufficient inspection verification and refused to sign off on it, believing that to do so
would be illegal, unsafe, and a violation
of
his state license. Shopshear demanded that
Brewington clear the plans. Brewington repeated that he would not. Finally, Shopshear said,
in a low tone of voice and with a "direct cold stare" according to Brewington, "Oh yes, you
will." Brewington claimed he felt threatened and challenged. Although Shopshear was the
office supervisor, Brewington did not believe he had the authority to direct Brewington's work.
Shopshear did not testify at the hearing.
4

Following this incident, Brewington contacted his direct Supervisor, Greg McCombs
(McCombs), and Lyman. Lyman told him he would look into it. The next day, Brewington,
believing the problems would not be resolved, began the paperwork necessary to retire from
the County. However, he then decided not to retire but instead to seek advice from his union.
He was not a union activist and had never before asked for the union's help, but he went to the
SEIU office on November 28 and spoke with Business Representative, Chris Swanson
(Swanson). He told her about the Shopshear incident and related several
of
his complaints
about the Indio office, especially his concern that non-licensed engineers were clearing site
inspections and issuing building permits. Swanson then phoned Human Resources (HR)
Services Manager, Peter Morelli (Morelli), to ask for the proper form to file a complaint about
Shopshear5 and to set up a meeting. Morelli was not in, so Swanson left messages.
Brewington also left a few messages, but Morelli never responded to him or to Swanson.
Because SEIU was then heavily involved in contract negotiations with the County, Swanson
was unable to do any follow-through at that time.
Brewington also shared his complaints about the Indio office with McCombs, who
responded by e-mail on December 16, 2005.6 The e-mail, a copy
of
which was sent to Lyman,
begins:
I feel it necessary to clarify the grading plan review process in the
Indio office after observing some
of
the grading plan reviews that are
occurrmg.
5 SEIU did not believe the incident was grievable as it was not a matter covered by the
MOU.
6 McComb's e-mail is not alleged as an unfair practice, nor are Brewington's
complaints to him alleged as protected activity.
5

It
instructs Brewington to use the proper grading forms, and criticizes him for insisting
on
certain drainage procedures, using other employees for assistance, not prioritizing his work to
get plan checks completed, billing his time to overhead instead
of
to "permits or planning
cases," and being confrontational with Shopshear. The e-mail ends:
Please, step back, stop the bitterness, and just simply do your
job. I will support you 100%.
Brewington testified that Mc Combs later "backed
off'
some
of
the criticisms, but he did not
provide any specific details
of
what Mc Combs said, or when, or under what circumstances.
McCombs left his employment with the County in early 2006 and did not testify at the hearing.
On February
9,
2006,7 after contract negotiations were completed and Swanson could
spend more time on the Brewington matter, Swanson spoke by phone with Senior HR Analyst,
Lenore Reyes (Reyes). Reyes told her there was no complaint form relevant to the Shopshear
incident, but Swanson could put her complaint in writing and send it to HR. Swanson sent a
letter addressed to Morelli dated February 13, by mail and by fax, stating:
It
has come to the attention
of
SEIU Local 1997 that John
Brewington, Associate Civil Engineer
of
the Indio County
Administrative Center may be directed and intimidated into
approving and/or granting permits that are a violation
of
County
rules and regulations as well as a violation against Mr.
Brewington' s licensure and possibly a violation
of
State law.
\X/e
have requested a meeting
\Vith
you
to
resolve the situation;
however, to date we have been unsuccessful in scheduling a
meeting with you.
We realize the seriousness
of
these allegations and, as such, are
again requesting to meet with you to resolve this situation.
Please contact me at your very earliest convenience so that we
may meet and discuss the above in hopes of an agreeable
resolution.
7 All dates hereafter refer to the year 2006 unless otherwise specified.
6

Swanson sent the letter by fax to Brewington at 5:18 p.m. on February 13. She sent it
sometime thereafter to Morelli, but the record does not clearly reflect when it was sent to
Morelli or when he received it. The letter eventually reached HR, but it is unlikely anyone in
HR saw it before February 16. Morelli left his position with the County in early 2006 and did
not testify at the hearing.
February
16
MOU
On the morning
of
February 14, after several previous conversations, Lyman met with
Brewington. The only matters discussed were Brewington's assigned County vehicle and his
overtime requests. On February 16, Lyman sent Brewington an MOU entitled "Job duties and
responsibilities." The memo instructs Brewington to report directly to Lyman, to submit
requests for time
off
three days in advance, to phone him or Shop shear
if
he is sick or late, to
keep a daily log
of
time spent on each project, and to limit his overtime. The memo also states
the following:
4.
	Job duties - This includes and is not limited to the following:
a.	
Plan check-all grading that is submitted to the
Indio office is to be reviewed by you. Plan check
is to be conducted on a first in-first out basis. The
Regional Office Manager has the authority to
prioritize your work load based on County and
office needs.
b. 	Conditioning
of
projects-it is your responsibility to
condition projects for grading. These conditions
and approvals including routing are to be done [on]
a timely basis and must be ready for TRC. I
expect the review to be reasonable and justifiable.
Attendance at TRC may be required and
if
requested, you will attend and contribute at the
TRC meeting. This is not an optional program.
d. [8] Technical issues are to be addressed through Greg
McCombs or Kack Sung. Greg and Kack are to be
8 There is no item "c" in the original memo.
7

kept informed as to any cases that are experiencing
problems.
e.	
Clients are not to be directed to Ann Nicholas for
technical matters. She can only address
administrative issues and clearances may still
require your intervention.
f.	
E-mail addressed to you is to be opened and
responded to in a timely manner.
g.	
Clients are not to be told that you are not doing
TRC.
h.	
Interface with Garry Shopshear on various matters.
1.	
You are to communicate with all applicants
regarding grading issues and not just Engineers.
Effective with this memo, you and I will meet on Wednesday
mornings at 8:00 a.m. to discuss projects, issues and any other
outstanding issues or problems.
You are to keep this memo in a convenient place and refer to it
when you need to refresh your memory.
Violations
of
this memo
of
understanding will not be tolerated
and may result in disciplinary action.
Lyman did not testify at the hearing.
Brewington testified without contradiction that, before the memo issued, prior approval
was not needed for time
off
or overtime, he was not previously required to attend TRC
meetings, no daily log was required, assistants were assigned to help him with his plan checks,
and he received too many e-mails to make timely responses.
A week after Lyman sent his memo, he met with Swanson and Brewington.
Brewington testified that Lyman retracted a number of the points in the memo, but he did not
specify which points or what Lyman said about them. Brewington responded to Lyman's
memo by e-mail of February 22, stating that the directives were neither acceptable nor
accomplishable, and requested that they meet again with HR. Swanson tried to set up a
8

meeting with Reyes for March 22, but Reyes was unavailable, so it was scheduled for
March 30.
With Swanson's assistance, Brewington filed the instant unfair practice charge
on
March 28, complaining about Shopshear's conduct and Morelli's failure to take action, and
alleging retaliation because he had gone to the union for assistance. The unfair practice charge
was served on HR Director, Ron Komers (Komers) on March 27.
March 30 Meeting at Human Resources
The March 30 meeting was held at the HR office, attended by Brewington, Swanson,
Reyes, and her Supervisor, Terri Stevens (Stevens), who succeeded Morelli as HR services
manager. Following an agenda he prepared, Brewington presented his complaints about the
alleged threat by Shopshear as well as several problems he saw with the operation
of
the Indio
office, and cited violations
of
County ordinances and policies. He illustrated his complaints
with several files
of
individual building projects he had brought with him. Reyes and Stevens
asked some questions but mostly listened. At the end
of
the meeting, they asked Brewington
for the files he brought, but he said they were official files that he could not leave with them.
After they told him they would need some documentation to support his complaints, he said he
would put something together for them.
After the meeting, Brewington began assembling a large volume
of
documents and later
gave them to Swanson to review before forwarding them to HR. The record reflects that
Swanson was unable to confirm that she actually sent the documents to Reyes, and Reyes and
Stevens testified that they never received them; therefore they did not pursue any investigation
of the Shopshear incident or any of Brewington' s other complaints.
Within a week after the March 30 meeting, Reyes and Stevens met with Director of
Building and Safety, Jim Miller (Miller). They related to him Brewington's complaints about
9

the Indio office and the Shopshear incident, although they testified that they did not mention
Brewington's claim that Shopshear threatened him with violence.
Reyes and Stevens testified that Miller conceded that licensed engineers frequently did
not want to take direction from unlicensed engineers; however, they also said that Miller, as
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problems taking direction from any supervisor, that he was not properly reporting his time, was
frequently away from his work station, and had low productivity. Stevens suggested to Miller
that Brewington be issued a directive and be transferred back to Riverside.
Miller retired from the County in the Spring
of
2007 and did not testify.
HR did not conduct any investigation
of
the Shopshear incident or
of
Brewington's
other complaints. Reyes and Stevens contend this was because Brewington never provided
supporting documentation. They testified that they were not concerned about the incident
because it was a situation in which a supervisor was giving directions to a subordinate.
June 6 Directive Memorandum
On May 23, Brewington received a "Directive Memorandum" from Miller reassigning
him to Riverside as
of
Tuesday, June 6, to work under supervisor Kack Sung (Sung).
When Brewington reported to work at Riverside on the morning
of
June 6, Miller gave him a
second memo that recited his new job duties, including daily time-reporting and closing out
hundreds
of
old files, and a third memo entitled "Directive Memorandum." 	Miller then read
the Directive Memorandum aloud to Brewington, asking him several times whether he
understood the directives. This third memo required him to bill a minimum
of
seven hours per
day, cited the order of supervisors to whom he must report, his work schedule and break times,
and stated the following:

• 	All requests for time off must be submitted and approved
by a supervisor a minimum
of
48 hours in advance.
[Emphasis in original.]
• 	When calling in sick you must talk directly to a supervisor
within one hour
of
your reporting time. Phone messages
are not allowed.
• 	You are not to leave the 1ih floor without first getting
permission from a supervisor.
• 	In the event
of
a personai emergency and none
of
the
reporting supervisors are available you are to send a
detailed e-mail to all
of
the above supervisors as to why it
was necessary to deviate from your work schedule.
• 	While working you are prohibited from going to the
second floor.	
If
you need file information you are to make
a request to a supervisor who will make arrangements to
retrieve the information for you.
• 	You are not to use your personal cell phone while at work.
It is to be turned off at all times while you are working.	
If
you need a cell phone one will be issued to you.
• 	You are not to use your personal lap top computer at
work.	
If
you bring it to work it must remain out
of
site
[sic] at all times.
• 	Your new job assignment does not require you to leave
your work station or discuss grading issues with staff.
Socializing directly, through e-mail or the internet with
other employees will no[t] be allowed.
• 	You will not be providing direct services to the general
public as a function
of
your job and are instructed to refer
any and all public contacts and inquiries to a supervisor.
Stevens testified that she recommended these memos and participated in drafting them. In so
doing, she did not review Brewington's prior evaluations, but relied solely on information
provided by Miller.
Brewington testified that the Directive Memorandum made several changes to his
working conditions: it was a great inconvenience for him to leave work at 5 p.m. as traffic is
very heavy at that time; he did not need either an hour for lunch or a work break; he never
previously had to speak directly with a supervisor when calling in sick; he never had a
problem with visiting the second floor, where his wife worked, or with his cell phone or his
laptop, or with socializing with fellow employees. Brewington also stressed the importance
11

of his daily contact with the public in order to resolve permit problems, which the memo
restricts. Brewington testified without contradiction that Miller had never raised these issues
before.9
Events of June 7
Brewington finished his shift on June 6. On June 7, he was late to work because his
son was having trouble at school. He left messages for Sung the night before and again that
morning informing Sung that he would be late. Before arriving at work, he called Lyman, who
was no longer his supervisor, and left a voice-mail message complaining about Miller. Lyman
called Stevens, who advised him to file a workplace violence report with HR claiming that he
and Miller had been threatened. Lyman filed a report the same day. In the report, Brewington
is quoted as saying:
You got off the railroad tracks. Remember a while ago I told you
that you were on the track and the train was coming? Does
Jim Miller know what you did to him? I don't know how you did
it. You got off the track and there is a line of buses waiting for
Mr. Miller. I want to thank you for several things you did for me.
Again, [I] don't know how you did it. You know that I filed
against you with the state.
Reyes reviewed Lyman's report, but she did not seek to hear the actual voice-mail
recording. At the hearing, she claimed that she asked Lyman what he thought Brewington
meant by his reference to trains and buses, but she could not recall his answer, except that he
said Brewington meant some unspecified harm to himself and Miller.
Brewington did not deny leaving the message quoted in Lyman's violence report. He
claimed that his reference to a train was not a threat but a "metaphor" that he had used in a
9 Although Reyes testified that Miller had discussed some performance issues with her
concerning Brewington, neither Miller, Lyman or McCombs testified about any of these issues.
Therefore, we cannot rely on uncorroborated hearsay to make a finding that Brewington's
performance was deficient. (PERB Reg. 32176.)
12

prior conversation with Lyman. In that prior conversation, Brewington said things were tough
on both of them, there was a "train," i.e., a problem, on the tracks, and that Lyman could take
shelter under the train or get out from under it when it starts to move, and that Lyman
understood it that way. Brewington contended that his June 7 message was a continuation of
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problem was Miller's. Given that Lyman did not testify and Reyes did not recall what Lyman
said to her, we adopt the ALJ's credibility determination that Brewington did not threaten
Lyman.
Shortly after Brewington arrived at work on June 7, Miller again summoned him to
Miller's office. Miller told Brewington that he was in violation of the June 6 directive for
calling in late, because he had not reported it in person to any supervisor. According to Reyes,
Miller subsequently told her that Brewington responded by yelling, "You need to change your
call in procedure!" Reyes further testified that Sung, who was also present in Miller's office,
told her that Brewington responded in a "loud, raised voice." Against this uncorroborated
hearsay testimony, Brewington testified that he did not complain about the call-in procedure in
general, but told Miller that he (Brewington) should not have been faulted for the June 7
tardiness. 10 He admitted that his voice was loud, but said that he was not yelling. Given that
neither Miller nor Sung testified, Brewington's testimony that he was not yelling is credited
over Reyes' hearsay testimony.
Elevator Incident
At lunchtime the same day, Brewington got into an elevator heading down. Miller and
Deputy Director, Environment Programs Department, Greg Neal (Neal), got in the elevator.
10 Pursuant to PERB Regulation 32176, hearsay evidence is admissible, but shall not be
sufficient in itself to support a finding unless it would be admissible over objection in civil
actions.
13

When they all got to the ground floor, Brewington said, "Be careful." Miller phoned Stevens,
who told him that Lyman had already filed a workplace violence report and suggested that he
do the same, which he did, claiming that Brewington had threatened him. 	She also advised
Miller that Brewington be "admonished."
The record reveals numerous inconsistencies in the testimony of the County's witnesses
concerning this incident. According to Reyes, both Miller and Neal told her that they and
Brewington were the only ones in the elevator, and that they took Brewington's comment "Be
careful" as a threat. Reyes also testified that Miller told her Brewington was staring at him on
the way down. 	She testified that Neal told her that Brewington was already in the elevator
when he and Miller got on, but he could not confirm the stare because he was facing forward.
She also testified that Neal told her that Brewington's comment was unusual because there was
no other conversation preceding it in the elevator. Neil, however, testified that he did not
know whether Brewington was already in the elevator when he and Miller got in or whether
Brewington was staring at Miller. He also did not know whether there were others in the
elevator, but admitted that there could have been others, including Majeed Farshad (Farshad),
an engineer. 11 There are surveillance cameras outside the ground floor elevators at the
Riverside facility, but Reyes did not seek to determine whether the cameras were facing the
elevators or whether this incident was recorded.
Brewington, on the other hand, testified that when he entered the elevator, two women
were already on the elevator and he stood between them. At the next stop J\1iller and Neal got
on. He and Miller looked at each other; he felt uncomfortable and thought about getting off,
but stayed on. At the next stop Farshad got on. Farshad was very loud and demonstrative, and
made numerous comments about Brewington having cut his hair and his beard. When the
11 Neal did not offer this name; he was asked about Farshad on cross-examination.
14

elevator stopped at the ground floor, Farshad got off first and Brewington got off last. Before
Brewington exited he looked toward Farshad and said to him, "You be careful now."
Brewington testified that this was a common salutation to engineers like Farshad who work in
the field.
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adopt the ALJ' s credibility determination that Brewington' s comment was directed not to
Miller or Neal but to Farshad, and that Brewington was not staring at Miller but rather they
were looking at each other.
June 7 Administrative Investigation Memo
That afternoon, Miller called Brewington into his office. Sung and Supervisor,
Ed Nichols (Nichols) were also present. Miller gave Brewington a fourth memo entitled
"Administrative Investigation," informing him that he was under investigation because
of
unspecified misconduct. Reyes, who wrote the memo under Miller's name, testified that it is
standard practice to omit specific allegations
of
misconduct or reasons for the investigation.
The memo instructed Brewington that he must be available to be interviewed by HR, that
because it is not a criminal investigation he has no Fifth Amendment right to remain silent, and
that he is not to discuss the matter with anyone except the investigators, his "union
representative, legal representative or counsel." The memo also warns that failure to comply
may be considered insubordination and may result in disciplinary action separate from any
other charges that may be brought against him as a result of the investigation.
Brewington had no idea what the memo referred to, or what misconduct he was being
accused of. He asked Miller for clarification, but Miller did not respond except to say that it
could lead to criminal charges. Miller also gave him another memo stating that he was to be
interviewed by HR at 4:30 p.m. that day. At the start of the 4:30 meeting Brewington
15

requested counsel, so Reyes, who was to conduct the interview, postponed it. On June 9, Alan
Leahy (Leahy) called Reyes to say he was Brewington's new counsel, and the interview was
set for June 13.
Shortly after Brewington reported to work on June 8, Miller summoned him to his
office once again, with Nick i\.nderson (A.nderson) present, to discuss his assigned duties. It
seemed to Brewington that Miller was overloading him with responsibilities that could not be
fulfilled. 	He felt very pressured and told Miller he had to leave work. Miller said he could not
leave unless he was sick. Brewington then filled out a vacation slip, left the premises and went
to the emergency unit of the County's medical clinic. He received some medication for
indigestion, but he continued to have chest pains that night. The next morning, he returned to
the clinic and was admitted to the cardiac unit of the nearby hospital where he stayed for a few
days. Brewington's wife phoned the County the following Monday, June 12, and he himself
called on Tuesday June 13 to report that he was on sick leave. 12 Because ofBrewington's
absence for medical reasons, the interview with HR scheduled for June 13 had to be postponed
a second time. Brewington was treated at the clinic on June 13 or 14.
Neither Sung, Anderson, or Nichols testified at the hearing.
June 13 Medical Certification Directive; July 5 Dock in Pay
Also on June 13, Miller mailed to Brewington's home address a memo, issued on the
recommendation of Reyes and Stevens, entitled "Medical Certification Directive" stating that
"good cause exists for believing you may be abusing your sick leave privilege." Reyes and
Stevens testified that the good cause was that Brewington had failed to file the proper sick
leave documentation. However, Stevens conceded that medical documentation is not required
Brewington did not call in sick on Friday, June 9, as that was his day off.
16

until an employee returns to work from sick leave. Stevens contended that good cause also
existed because Brewington "took off' when he learned of the administrative investigation.
Reyes testified that it is common for employees to take sick leave upon learning that they are
under investigation. However, neither Reyes nor Stevens denied that Brewington and his wife
1,,,r1	.1..J..!,,C,-. 1"\hAfiPrl	_t-'.1..1.V.1. V'-'- thP	\. V County	.I.'- 	Afi	V.L .J
T11nP	Y..1..1.V 1.I.....,') \.4,,J....J..'-1-	,,,,,r1 11	..L-' tr,	1,V rpport	V 	h'"	.1.IJ "'"k	IJ.l.V i... .I.VY-¥	lP!>UPV UJ..1.'-1-	anrl hnsp1tal	J..I.V 	.I.I, 	stay •
The medical directive memo directs Brewington to provide, upon his return to work, a
doctor's certificate explaining the reason for his sick leave, and states:
Failure to provide a satisfactory certificate, as described above,
will be considered insubordination and absence without leave,
and you will be carried on the payroll as absent without pay.
The memo also requires him to speak in person with either Sung, Anderson, or Miller within
an hour of his start time when calling in sick, and concludes:
Insubordination and absence without leave may result in
disciplinary action up to and including termination.
On June 15, Brewington sent a handwritten note to Miller via his home fax machine
stating that he had been ill, accompanied by a discharge form from the hospital dated June 10
and a certificate from the clinic stating that he was under doctor's care from June 14 to 17 and
could return to work on June 18; he also faxed the note to Sung and Anderson. On June 19 he
faxed another handwritten note to l'v1iller and Sung attaching a slip, signed by the psychiatric
unit of the clinic, putting him off work until July 3. In addition, Brewington testified that he
spoke several times with Reyes and told her that, pursuant to Miller's instructions, he was
reporting his sick leave through the proper chain of command. However, his pay stub for
July 5 cited him as being AWOL (absent without leave), and his pay was docked.
After Brewington submitted further medical reports, the payroll records were corrected
by mid-July and a make-up check was issued and sent to him by certified mail. Brewington
never signed for the certified mail and never received the check.
17

In the meantime, by letter dated June 12, Swanson informed Brewington, as she had
done verbally a number
of
times before, that because he engaged his own attorney, SEIU could
no longer represent him. 	Swanson did, however, send a letter on June 7 to PERB, with
documents attached, in support
of
the instant charge, and sent a copy
of
the letter to Komers on
June 13.
July l 0 Placement on Administrative Leave
Brewington returned to work on July 10. Shortly after his arrival, he was summoned
once again to Miller's office; Sung and Anderson were again present. Miller gave him a letter
dated July 10, which he had signed, and read it aloud.	
It
states that he is being placed on paid
administrative leave effective immediately, "pending investigation
of
allegations
of
misconduct by you relating to threats
of
workplace violence."
It
prohibits him from entering
County buildings or property without prior approval, from discussing the investigation or the
allegations
of
misconduct with any County employee, and from engaging in "harassment,
reprisal, or an attempt to influence a witness."
It
orders him to be available during normal
working hours for telephone contact, meetings, or an order to return to work, to report each day
to management, and to turn in his County identification and any "equipment, supplies or items
issued to you (keys, pagers, cell phones, etc.)." In conclusion, it states:
Failure to comply with the above directives will be considered
insubordination and will result in disciplinary action.
Brewington did not say anything or ask any questions; he testified that he had no idea what
threats he was being accused of. He was escorted to his work station to gather his belongings,
then escorted out
of
the building. He immediately phoned his doctors for appointments.
According to the County's Workplace Violence, Threats and Securities policy, item II:
The supervisor to whom an incident is reported shall immediately
provide security for the threatened individual, co-workers, and
the public at the worksite by:
18

a. 	Immediately placing an employee alleged to have made
threats or engaged in violent behavior on paid leave
pending the outcome of an investigation.
However, Brewington was not immediately placed on leave on June 7, the date when his two
alleged threats were made, but rather was allowed to work the rest of that day and to return to
work on June 8 without any mention of the two incidents. When questioned about this at the
hearing, Reyes and Stevens stated that they first had to investigate the incidents and that, after
June 7, Brewington was only at work for a short time on June 8 and then was out on sick leave
until July 10, when he was placed on administrative leave.
Reyes testified that it was Komers who made the decision to place Brewington on
administrative leave. She did not give Komers her investigative material nor provide him with
any input toward his decision, and she did not know the reasons for his decision.
Komers did not testify.
July 18 Investigatory Interview
Within a few days after July 10, while on administrative leave, Brewington received
several phone messages at home from both Miller and Anderson informing him that the
investigatory meeting at HR was rescheduled to July 18. Reyes also phoned him, and he told
her that he could not confirm the date until he verified that Leahy vvould be available. On
July 14, Leahy sent Reyes a letter stating that Leahy would be out of town from July 17
through July 22, and proposed July 24, 26, or 31 as alternative meeting dates. Leahy also sent
the letter by fax at 3: 10 p.m. to HR. The same day, Brewington told Reyes that Leahy was
unavailable on July 18 and asked her to postpone the meeting, but she insisted it would go
forward. 	Reyes also phoned Leahy's office and told his secretary that the meeting would go
forward on July 18. Reyes advised Brewington that he had the right to engage another attorney
19

or a union representative instead
of
Leahy, but he responded that "they [SEIU] won't touch
it."13
Brewington nonetheless appeared at HR on July 18
and again requested a
postponement, to which Reyes again refused, telling Brewington that the County needed to
,-r,ceed	P
...,..._,
	'W1'th	\,
..
u .
,t-,	
.1.1,,._:,
l'C>SP.	
'-'"
'-'•	
Brew1
..1..1..1.6"'--'.I.J.	
no-trn,
.1.v	
rP.pe<>+edly	
U..L	
tolrl
th	
u
1,1..1\,,,
"
;,..+,,,."1·	
.l.l.l\..V.l	
"Wers
th"+
l-,,,
'""U
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.l	
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answer any questions they asked provided his attorney was present. Reyes and Stevens
insisted that the meeting was going forward and told him he would not have another chance to
present his defense. They proceeded to ask him several questions from a prepared list, and he
repeated his willingness to answer questions provided his attorney was present. The meeting
lasted approximately 45 minutes, after which Brewington left the facility.
Both Reyes and Stevens testified that they did not further postpone the interview
because they had to go forward with the investigation. However, when questioned about
whether a short postponement would have impeded the investigation, Reyes responded that she
did not know, while Stevens conceded that the investigation would not have been impeded.
On July 19, Leahy's associate filed a second amended charge with PERB and faxed a
copy to Reyes.
, IR eyes 	nvest1gat10n. 	. 	14
At some point after June 7, Reyes interviewed Lyman, Miller, Neal, and Sung by
telephone. Reyes did not take or receive from these witnesses any written statements, and
testified that County policy did not require her to do so. She took her own notes during the
13
We adopt the ALJ' s credibility determinations that, despite her testimony to the
contrary, Reyes knew that SEIU would not represent Brewington, that he did not have a viable
representative available for the July 18 meeting, and that Leahy would be available beginning
July 24. Reyes admitted that she knew "the union was not an option" and that she received
Leahy' s letter advising her that he would be available the following week.
14 Reyes' investigation is not alleged as an unfair practice.
20

interviews, but testified that they no longer existed, because "I imagine that they were disposed
of." When she began her investigation she knew only about the two reports
of
workplace
violence, one from Lyman and one from Miller.
The Cell Phone
Reyes testified that, during her investigation, ~.1iller also told her that when Brewington
was placed
on
administrative leave he was told to return his County-issued cell phone and
other equipment, and that he told Miller it was in a box in the Indio office, but that it could not
be found there. Reyes obtained telephone invoices showing that a few calls were charged to
that phone after June 6, when Brewington was transferred from Indio to Riverside, and that a
few calls were charged to that phone after July 10, when Brewington was put on administrative
leave. The invoices show that these calls were made to Brewington's home phone,
of
which
Reyes was aware, and they contain the notation "CF," which she testified she did not
understand but did not question. Reyes concluded that Brewington lied about the whereabouts
of
the phone and continued to use it in violation
of
the order to return it.
Brewington testified that he never used that phone except to forward calls to his home
phone. He further testified that he did not tell Miller on July 10 that it was in a box in Indio,
but rather that it was probably in a box he packed in Indio, i.e., for his transfer to Riverside; as
of
July 10 he did not know exactly where the box was, but it might have been in his garage
along with other boxes from Indio; and he returned it to the County on August 23 at his exit
interview. Given that Miller did not testify, Brewington's account is credited.
15
15
We do not adopt the ALJ's conclusion that Reyes' claim that she lacked knowledge
that "CF" meant "call forwarding" must be discredited as "lack[ing] common sense," but we
do conclude that Reyes failed to adequately investigate the possibility of a legitimate
explanation for the charges.
21

Reyes' Final Report
On July
31
Reyes' submitted her final six-page investigative report to TLMA. 	She
included all
of
the above allegations and added her own accusation
of
insubordination based on
Brewington' s refusal to answer questions at the July
18
interview. In that regard, she
contended that, as Brewington
\Vas
on administrative leave, he was obligated to attend all
meetings called by the County and to cooperate in any investigation. Reyes stated her
conclusions that all allegations against Brewington were justified, that he engaged in
misconduct, and that "disciplinary action" should be taken.
August 9 Notice
of
Proposed Termination
On August 9, Brewington was summoned to the Riverside facility, where TLMA
Director Tony Carstens (Carstens) handed him a "Notice
of
Proposed Termination," written in
consultation with Stevens, citing the following causes for termination as listed in the MOU:
A. 	Dishonesty;
E.	
Insubordination;
F.	
Willful violation
of
an employee regulation prescribed by
the Board
of
Supervisors or the head
of
the department in
which the employee is employed;
I. 	Discourteous treatment
of
the public or other employees;
M. 	Conduct either during or outside
of
duty hours which
adversely affects the employee's job performance or
operation
of
the department in which he is employed;
P. 	Violation
of
the County Anti-Violence in the Workplace
Policy.
The items are explained in the Notice as follows:
Dishonesty - This alleges that Brewington lied about the whereabouts of his County-
issued cell phone and continued to use it after he was placed on administrative leave.
22

Insubordination - The Notice goes into great detail about the scheduling and
rescheduling
of
the administrative investigation, Brewington's right to have a representative
but not to demand any particular representative, his obligation to answer questions, and his
refusal to do so
on
July 18.
\XT,llfu
1 \ 1
1'olat1'on
o+'
Pmp 1r"'"'"' R"'gu 1 	0	
''
.1..1.	
..l.	
.J.._	
1	
.L.1.1.1..1.V
Y""""	
'-.\..I	
.1
at;,...n.	
J..VJ.'
V1'olat1'on
J..
o+'
.J..
'
yy
' ,....,.1r,.,J,,",,	
VJ.J.'\..!-:'.lU\,,,\..t
r"l...
An+;
L.1"""
V1'olenc	
.l
'"-'
Policy
-These
counts refer to Brewington's June 7 phone message to Lyman and the June 7
elevator incident.
Discourteous Treatment
of
Employee - This alleges that Brewington yelled at Miller on
June 7 regarding the call-in procedure.
Conduct Adversely Affecting Job Performance - According to Reyes, this is a standard
charge when anyone has engaged in misconduct.
The Notice was based entirely on Reyes' investigative report. It provides Brewington
the right to respond, orally or in writing or both. On August
15
Leahy sent a letter to Stevens
advising that he was in the process
of
preparing a written response on Brewington's behalf.
On August 16 Leahy sent a letter to TLMA advising that Brewington would submit a written
response and would respond orally to any questions, and that he (Leahy) would clear his
schedule for August 18 for that purpose. On August 18 Leahy sent TLMA a detailed letter in
response to the termination notice, with documents attached, and faxed a copy
of
the letter,
without documents, to Stevens. Neither Leahy nor Brewington took further steps to schedule a
meeting for a verbal response, and none was held.
August 23 Termination
On August 23 Brewington was called back to the Riverside facility where Carstens
gave him a Notice
of
Termination which states, in part:
We have evaluated your written statement dated August 18, 2006,
in mitigation of the charges in the notice of proposed
23

Termination. 	We have further considered the matter and find no
reason to modify the disciplinary action in our letter
of
August 9,
2006. This action is being taken for the causes and acts specified
in our letter
of
August 9, 2006.
The Notice cites Brewington's appeal rights, but no appeal was taken because, according to
Brewington, it would be too expensive. Instead, he filed a grievance, which was denied by the
County. As discussed above, the grievance did not go to arbitration due to a dispute over the
payment
of
the arbitration fee.
Reyes and Stevens both testified that none
of
their actions were motivated by
Brewington's having sought assistance from SEIU, or by the instant charge, which they
claimed they did not learn
of
until after his termination.
PROPOSED DECISION
The ALJ found that the County retaliated against Brewington for having engaged in
protected activities by: (1) issuing the June 6, 2006 Directive Memorandum; (2) issuing the
June 7, 2006 Administrative Investigation memo; (3) placing him on administrative leave on
July 10, 2006; (4) insisting on going forward with the July 18, 2006 investigatory interview;
(5) issuing the August 9, 2006 Notice
of
Proposed Termination; and (6) terminating his
employment on August 23, 2006. The ALJ further found that the County did not violate the
Ml\1BA by issuing the February 16, 2006 memorandum or the June 13, 2006 :Medical
Certification Directive, or by docking his pay on July 5, 2006. The ALJ ordered that the
termination be rescinded, that specified records be expunged from the County's records, that
the County offer Brewington reinstatement and restoration
of
benefits and make Brewington
whole for financial losses suffered as a result of his termination, and that a notice be posted.
APPEAL AND RESPONSE
The County excepts to several of the ALJ' s factual findings and credibility
determinations and to the ALJ' s determination that it unlawfully retaliated against Brewington
24

based upon his exercise
of
protected rights. The County also argues that the remedy ordered
by the ALJ is inappropriate. Finally, the County argues, for the first time on appeal,
that
the
matter should have been pursued through the contractual grievance and arbitration process and
that the California Constitution prohibits PERB from making a decision in this case.
Brewington argues that the ALJ' s proposed decision was correct and should be upheld.
DISCUSSION
To demonstrate that an employer discriminated or retaliated against an employee
in
violation
of
MMBA section 3506 and PERB Regulation 32603(a), the charging party
must
show that: (1) the employee exercised rights under MMBA; (2) the employer had knowledge
of
the exercise
of
those rights; (3) the employer took adverse action against the employee; and
(4) the employer took the action because
of
the exercise
of
those rights. (Novato Unified
School District (1982) PERB Decision No. 210 (Novato); County
of
San Joaquin (Health Care
Services) (2003) PERB Decision No. 1524-M (San Joaquin); San Leandro Police Officers
Assn.
v.
City
of
San Leandro (1976) 55 Cal.App.3d 553 (San Leandro).) In determining
whether evidence
of
adverse action is established, the Board uses an objective test and will not
rely upon the subjective reactions
of
the employee. (Palo Verde Unified School District (1988)
PERB Decision No. 689.) In a later decision, the Board further explained:
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment.
(Newark Unified School District (1991) PERB Decision No. 864 (Newark); emphasis added;
fn. omitted.) 16
The test is not, as suggested by the ALJ, whether the action would reasonably lead an
employee to fear for his job, but whether a reasonable person under the same circumstances
would consider the action to have an adverse impact on the employee's employment. (Ibid.)
25

Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264 (North Sacramento)), it does not, without more, demonstrate the
necessary connection or "nexus" between the adverse action and the protected conduct.
establishing one or more
of
the following additional factors must also be present: (1) the
employer's disparate treatment
of
the employee (State
of
California (Department
of
Transportation) (1984) PERB Decision No. 459-S; Campbell Municipal Employees Assn.
v.
City
of
Campbell ( 1982)
131
Cal.App.3d 416); (2) the employer's departure from established
procedures and standards when dealing with the employee (Santa Clara Unified School
District (1979) PERB Decision No. 104; San Leandro); (3) the employer's inconsistent or
contradictory justifications for its actions (State
of
California (Department
of
Parks and
Recreation) (1983) PERB Decision No. 328-S; San Leandro); (4) the employer's cursory
investigation
of
the employee's misconduct (City
of
Torrance (2008) PERB Decision
No. 1971-M; Coast Community College District (2003) PERB Decision No. 1560); (5) the
employer's failure to offer the employee justification at the time it took action or the offering
of
exaggerated, vague, or ambiguous reasons (County
of
San Joaquin (Health Care Service)
(2001) PERB Order No. IR-55-M); (6) employer animosity towards union activists (Jurupa
Community Services District (2007) PERB Decision No. 1920-M; Cupertino Union
Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that might
demonstrate the employer's unlawful motive. (North Sacramento; Novato.)
Exercise of Protected Rights
MMBA section 3502 gives public employees the right to "represent themselves
individually in their employment relations with the public agency." Interpreting similar
26

language in the Educational Employment Relations Act (EERA)
17
section 3543, PERB has
held that individual complaints related to employment matters made by an employee to his
superior are protected. (See, e.g., Pleasant Valley School District (1988) PERB Decision
No. 708 (Pleasant Valley).) This right
of
selfrepresentation, however, is not unlimited. 	For
i...L
inc:::tanf'P
	,._,.,
..._
...
...,_.,
thP
	'-"-
-
	Rr."1rrl	
L-''-'\.-1,,.1..,,..._
.A....l'--'"U	
h"1C:::
.l..l.-.L	
hPld
tl,"1t	
\,.J..1.""1,
V.J..J..1.	
PrnplrnrPP	
.lVJVV
f'An11"\l,,;nts	
VVJ.J.J.f-'
UJ..l	
to	
'-"	
"'mp	
\,,,.1
J.
11
oy"''"S	
\,,,J.	
ar"'
\,,,
pr"'t"'cted	V
\.,
	'When
those
complaints "are a logical continuation
of
group activity." (Los Angeles Unified School District
(2003) PERB Decision No. 1552.) Thus, where an employee's complaint is undertaken alone
and for his/her sole benefit, that individual's conduct is not protected. (Ibid; Oakdale Union
Elementary School District (1998) PERB Decision No. 1246.)
In the instant case, Brewington harbored concerns regarding the use
of
non-licensed
engineers directing the work
of
licensed engineers. Indeed, in September 2002, Brewington
and eleven fellow employees sent a letter to County management expressing this concern.
Clearly, Brewington's complaints regarding the use
of
non-engineers were neither undertaken
alone nor taken for his sole benefit. Consequently, Brewington's complaints were a logical
continuation
of
a group activity and, therefore, constituted protected activity.
In addition, Brewington engaged in protected activity when he sought the assistance
of
SEID in connection with his complaints over the manner in which the Indio office was being
managed as well as his concerns over the County's use
of
non-licensed engineers to clear site
inspections and issue building permits. (County
of
Merced (2008) PERB Decision No. 1975-M
(Aferced) (representation by a union in a work-related dispute is a protected activity); see also,
Regents
of
the University
of
California (1995) PERB Decision No. 1087-H (using a union
representative to pursue matters relating to working conditions is protected conduct).) Finally,
17
EERA is codified at Government Code section 3540 et seq.
27

Brewington engaged in protected activity by filing an unfair practice charge with PERB. (See,
e.g., Trustees
of
the California State University (2008) PERB Decision No. 1970-H.)
Employer Knowledge
It is clear that Reyes had knowledge
of
Brewington's protected activity not later than
F
P.bru!Olry
	"""
	9
2onr;	
1 he
11
	..1..	
'-'&<.&.
	'
	'-''-',
n
"'
.L
..l..J..
'-;urnn.,r,n	
!,.J
l'l'\..1-.L.L._,V.L..i.
"nnkP.	
...:,.J:-'VJ. "-"
tr.	
"-V
.L.1.'-,,.1.	h,,
...
hu	
UJ
}'l..l	
nho""'	
.l.1.V
,,,..."C"'	
\.IVJ.J.
\,,,J..l
...
n1·ng
Br"'w1·ngton's comp 1	\,,, 	J.J.
.l
a1·n+s	
l.
I, •
In addition, Lyman had knowledge
of
Brewington's complaints as early as November 2005,
when Brewington complained to him about the Shopshear incident. Komers had knowledge
of
Brewington's complaints by March 27, when he was served with the charge in the instant case.
Stevens had knowledge by March 30, when she attended the meeting with Brewington to
discuss his complaints. Miller had knowledge within a week after the March 30 meeting, when
Reyes and Stevens related to him Brewington's complaints discussed at the March 30
meeting.
18
Adverse Actions and Retaliation
As determined by the Board in Novato and Newark, an employer's action is adverse
if
a
reasonable person under the same circumstances would consider the action to have an adverse
impact on the employee's employment. Thus, a counseling memorandum that threatens future
disciplinary action is an adverse action. (City
of
Long Beach (2008) PERB Decision
No. 1977-M (Long Beach); Los Angeles Unified School District (2007) PERB Decision
No. 1930.) The action need not specifically threaten discipline, however,
if
it otherwise has an
adverse impact on the employee's employment. (See, e.g., County
of
Yolo (2009) PERB
Decision No. 2020-M (loss
of
alternative work schedule); Regents
of
the University
of
18
The ALJ found Reyes' testimony was not credible in that she did not recall whether
she told Miller about Swanson's attendance at the March 30 meeting. While it seems unlikely
that Reyes omitted this fact from her description of the meeting, we need not resolve this
credibility issue. Whether or not Miller knew of Swanson's presence at the meeting, he clearly
knew of Brewington's protected activity.
28

California (1984) PERB Decision No. 403-H (loss of flexible work schedule).) PERB has
found that the involuntary reassignment of duties is an adverse action when the working
conditions of the new position are less favorable than those of the previous position, even if the
reassignment does not result in loss of pay or benefits. (Trustees of the California State
TTvii"ov«ih,	\JIH, Y\,.,I ;Jl,,t,_,Y {')009)	\~ 	PERP.	'-..LI .LJ'-'	n"C'"''""	J....J.l.V.l..l l\J,-,	l-"IV, ,f.,.,V..Ju=..1.	')f\ 1 Q H {Trustees)·	\1 J 	'..LI	T?ve«vin	i..JIH/ '-..,,VWIH	rn.,vity '--./Jj	nmz,..e	\,., 	oifEducatioM	t, fl,
(2004) PERB Decision No. 1674.) PERB has also found adverse action when a reasonable
person would consider the duties of the new position to be a step down from those of the
previous position. (Trustees of the California State University (2006) PERB Decision
No. 1853-H (warehouse worker reassigned to "count discarded supplies"); Pleasant Valley
(groundskeeper reassigned from mowing duties to raking, pruning and watering).) Finally,
PERB has held that placing an employee on involuntary paid administrative leave is an adverse
action. (San Mateo County Community College District (2008) PERB Decision No. 1980
(San Mateo); Oakland Unified School District (2003) PERB Decision No. 1529 (Oakland).)
February 16 MOU
In addition to setting out the employer's expectations, the February 16 MOU threatened
Brewington with disciplinary action if he violated the MOU. PERB has held that the threat of
adverse action and the adverse action itself constitute separate and independent violations of the
Higher Education Employer-Employee Relations Act (HEERA.). 19 (Regents of the University of
California (2004) PERB Decision No. 1585-H.) Thus, a threat may constitute an adverse action
even if the employer never follows through with the threatened action. Moreover, in some
circumstances, placing a document that could support future discipline in an employee's
personnel file may also be an adverse action. (Long Beach [counseling memorandum addressing
19 HEERA is codified at Government Code section 3560 et seq.
29

performance deficiencies]; Alisa! Union Elementary School District (2000) PERB Decision
No. 1412 [letter ofreprimand].)
In this case, the February
16
MOU simply informed Brewington
of
the County's
performance expectations and advised him that failure to abide by the expectations set forth in
the memorandum may result in disciplinary action. .Although the document
\Vas
placed in
Brewington's personnel file, it did not identify any performance deficiencies, but simply set forth
reasonable expectations concerning office procedures. The job duties set forth in the MOU are
not
of
a nature that would cause a reasonable person under the same circumstances to consider
them to have an adverse impact on the employee's employment. Therefore, we conclude that
the February
16
MOU was not an adverse action and did not constitute unlawful retaliation.
June 6 Directive Memorandum
As discussed above, PERB has found changes in working conditions to constitute
adverse action
if
a reasonable person would consider such changes to have an adverse impact
on the employee's employment. (Newark; Trustees.) The June 6 Directive Memorandum
made several changes to Brewington's working conditions, including altering his work hours;
imposing additional conditions when calling in sick; prohibiting him from leaving his work
station or even the floor without permission, going to the second floor (where his wife
worked), using his personal laptop and cell phone, discussing grading issues with staff,
socializing with other employees, and having public contact in order to resolve permit issues.
A reasonable person would consider these changes, taken together, to have an adverse impact
on working conditions. Therefore, we conclude that the Directive Memorandum was an
adverse action.
We also find that a nexus exists between Brewington's protected activities and the
issuance of the June 6 memorandum. Typically, the closeness in time (or lack thereof) between
30

the protected activity and the adverse action goes to the strength of the inference of unlawful
motive to be drawn and is not determinative in itself. (Moreland; Regents of the University of
California (1998) PERB Decision No. 1263-H.) PERB has found a lapse of less than three
months between the protected activity sufficient to establish the timing factor. 	(See, e.g.,
Calaveras County Water District (2009) PERB Decision No. 2039-M [negative evaluation
within one to two months of protected activity and termination within 3-1/2 months].) Miller
reassigned Brewington to the Riverside office on May 23, less than two months after Reyes
and Stevens informed him about the March 30 meeting with Brewington and Swanson at
which Brewington presented his complaints concerning the Indio office and about the incident
with Shopshear. Brewington also filed the charge in this case on March 28, two days before
the March 30 meeting.20 Upon the recommendation of Reyes and Stevens, Miller then issued
the June 6 Directive Memorandum on Brewington's first day of work in his new assignment.
Therefore, we find that the timing factor was met in this case.
Additional factors that support a finding of nexus in this case include the County's
departure from established procedures and standards, its cursory investigation of the
employee's misconduct, and its failure to offer any justification for its actions. Although they
quickly investigated the threat allegations against Brewington in July, Reyes and Stevens did
not conduct any investigation of the allegation that Shopshear had threatened him or any of
Brewington's complaints before recommending to Miller that Brewington be transferred and
helping to draft the June 6 memorandum. Brewington testified, without contradiction, that
Miller had never raised concerns about the issues identified in the June 6 memorandum,
including calling in sick, visiting the second floor where his wife worked, using his personal
20 We agree with the ALJ that Reyes must have had knowledge of the filing of the
charge, given her position in the HR office.
31

cell phone or laptop, socializing with fellow employees, or having daily contact with the public
in order to perform his job duties. 	Given that Miller did not testify to explain his actions and
the only evidence on the basis for the memo came in the form
of
uncorroborated hearsay
testimony by Reyes and Stevens, we must conclude that the County failed to establish any
legitimate justification for the June 6 memo and that the decision to reassign Brewington and
the imposition
of
new and onerous restrictions on his working conditions were taken in
retaliation for Brewington's exercise
of
protected rights. (North Sacramento; San Joaquin
Delta Community College District (1982) PERB Decision No. 261; County
of
San Joaquin
(Health Care Services) (2004) PERB Decision No. 1649-M; Oakland [failure to provide
reasons for action supports finding
of
nexus].)
June 7 Administrative Investigation memo
The initiation
of
an investigation
of
an employee for misconduct constitutes an adverse
action. (State
of
California (Department
of
Corrections) (2006) PERB Decision No. 1826-S;
State
of
California (Department
of
Youth Authority) (2000) PERB Decision No. 1403-S.) This
is so even
if
the investigation does not ultimately result in discipline. (California Union
of
Safety
Employees (Coelho) (1994) PERB Decision No. 1032-S.) Accordingly, we conclude that the
issuance
of
the June 7 Administrative Investigation memo was an adverse action.
Failure to offer a justification for the memorandum supports a finding
of
nexus.
(North Sacramento; Marin Community College District (1980) PERB Decision No. 145.) In
addition, the County failed to provide any evidence at hearing that would support issuance
of
the memorandum. Brewington testified credibly that his reference to a "train" during his
phone message to Lyman was not a threat of violence, but instead was a metaphor that Lyman
understood based upon a previous conversation. In addition, Reyes testified that she did not
know whether Brewington's remarks were threats of violence. With respect to the elevator
32

incident, the ALJ properly credited Brewington's testimony that he was not staring at Miller
and that his comment "be careful" was not directed at Miller, but at another employee. Again,
the County's case suffers from the virtual lack
of
any direct testimony by the percipient
witnesses other than Brewington to the relevant incidents. Although Neal testified about his
recollection
of
the elevator incident, his testimony contradicted that
of
Reyes' s account
of
what
he told her, and was properly discredited by the ALJ. Thus, the County failed to establish that
it acted reasonably in relying on Lyman's and Miller's reports as a basis for initiating an
investigation.
Moreover, the fact that the County allowed Brewington to keep working on
June 7 and 8 supports the inference that the June 7 memorandum, purportedly issued because
of
two threats
of
workplace violence that day, was pretextual. Had the County truly believed
that Brewington had made credible threats
of
violence, it would not have permitted him to
continue working. We agree with the ALJ's conclusion that Reyes distorted the facts as a
pretext in order to support the June 7 memorandum. Accordingly, the timing
of
the
memorandum, on Brewington's second day in the Riverside office and only two months after
the March 30 meeting and the filing
of
the PERB charge, plus the lack
of
explanation or
justification for the memorandum, supports an inference that it unlawfully motivated by
Brewington's protected activities. (San Joaquin [employer's reasons for letter ofreprimand do
not withstand scrutiny, but are pretextual and suggest an unlawful motive].)
June
13
Medical Certification Directive
As discussed above, a threat to take disciplinary action in the future may constitute an
adverse action if it gives the employee unequivocal notice that the employer has made a firm
decision to take the threatened action. (Merced.) While the issuance of the June 13 directive
stating that there was "good cause" to believe Brewington may be abusing his sick leave
33

privileges was not factually supported, it did not constitute a separate adverse action. The
directive merely directed Brewington to provide a doctor's certificate upon his return to work
and to contact his supervisor within an hour
of
his start time when calling in sick. A
reasonable person under the same circumstances would not consider the directive to have an
adverse impact
on
his
or
her
employment. (lVewark.)	
1'-Jor
did
it
give unequivocal notice
that
the employer had made a firm decision to take adverse action. Accordingly, we agree with the
ALJ that the Medical Certification Directive was not an adverse action and did not constitute
unlawful retaliation.
21
July 5 Dock in Pay
As found by the ALJ, the brief dock in pay was a ministerial mistake that the County
corrected shortly thereafter. Accordingly, we agree no violation was established by this
incident.
July 10 Placement on Administrative Leave
It is well established that being placed on involuntary administrative leave, even with
no loss in pay, is an adverse employment action. (San Mateo; Oakland.) According to Reyes,
Komers, who had knowledge
of
Brewington's protected activity, made the decision to place
Brewington on administrative leave on the first day after Brewington returned from sick leave.
Although Reyes testified that she did not know the basis for his decision, the notice refers to
"misconduct by you relating to threats
of
workplace violence." The only such threats
identified were those filed on July 7 by Lyman and Miller, with the help of Reyes and Stevens.
Therefore, in the absence
of
any testimony by Komers or most
of
the percipient witnesses to
those incidents, we conclude that the decision to place Brewington on administrative leave was
21
Because we find that the Medical Certification Directive was not an adverse action,
we need not and do not reach the issue of whether it was otherwise valid under the County's
attendance policies and procedures.
34

based upon the same pretextual considerations and unlawful motivation as those which led to
the issuance
of
the June 7 administrative memo.
On appeal, the County asserts that the Board should not rely on the proximate timing
between the July 10 leave placement and the filing
of
the PERB charge because, according to
ArPurinatr.n	
............
_.
...
.L
........
b
... .....,
........
,....
h1's
protef'tPrl	""'"....,.._..
""""....,"	
<if'tiuitiP"	
....
".1.".1."''-'
hPO<ln	
v""-'5u.1..1. much	i..	
earl1'er
.1.,
in	
.1. .1.
2nn.::	
vv..,1
•
Tho	
.LJ..l\,.;
'-'VUJ.	
r'rn,nt"
y,
howeve~
.1,
~+-+-a~~	
Vl.l.Vli:)
no authority for its argument that, "as a matter
of
law, the ALJ' s reliance on union activities
proximate to this July 10, 2006 administrative leave may not be used to support violations
of
the MMBA as the county had attenuated knowledge
of
Brewington's known activities dating
back to 2005 or before, well prior to the events leading to his termination." While it is true
that no nexus can exist where the adverse action precedes the protected activity (see, e.g.,
Metropolitan Water District (Jones-Boyce) (2009) PERB Decision No. 2066-M; Berkeley
Unified School District (2004) PERB Decision No. 1702), it is clear that Brewington's
protected activities continued into 2006 and that the County began taking adverse actions
shortly after his complaints came to a head at the March 30 meeting. Therefore, we find the
nexus element satisfied in this case.
July 18 Investigatory Interview
The ALJ found that the County retaliated against Brewington by refusing to delay the
July 18 interview due to the unavailability
of
Brewington's attorney, in violation
of
MMBA
section 3506. That section prohibits a covered employer from interfering with, intimidating,
restraining, coercing or discriminating against public employees because
of
the exercise
of
their rights under MMBA section 3502. Section 3502, in turn, provides:
Except as otherwise provided by the Legislature, public employees
shall have the right to form, join, and participate in the activities ofemployee organizations of their own choosing for the purpose ofrepresentation 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 organizations and shall
35

have the right to represent themselves individually in their
employment relations with the public agency.
It is well established that an employee required to attend an investigatory interview
with the employer is entitled to union representation where the employee has a reasonable
basis to believe discipline may result from the meeting. (Rio Hondo Community College
District (1982) PERB Decision No. 260 (Rio Hondo), adopting National Labor Relations
Board
v.
Weingarten (1975) 420 U.S.
251
(Weingarten).) In order to establish a violation
of
this right, the charging party must demonstrate: 	(a) the employee requested representation;
(b) for an investigatory meeting; (c) which the employee reasonably believed might result in
disciplinary action; and (d) the employer denied the request. (See Redwoods Community
College Dist.
v.
Public Employment Relations
Bd.
(1984) 159 Cal.App.3d 617; Fremont Union
High School District (1983) PERB Decision No. 301; see also, Social Workers' Union,
Local 535
v.
Alameda County Welfare Dept. (1974)
11
Cal.3d 382.)
Construing similar language under the Ralph C. Dills Act (Dills Act),22 PERB has held
that Weingarten does not confer a right to representation by private counsel. (State
of
California (Department
of
Consumer Affairs) (2005) PERB Decision No. 1762-S (Consumer
Affairs).) As explained by the Board:
[T]his right is grounded in the employee's right to 'participate in
the activities
of
employee organizations
of
their own choosing for
the purpose
of
representation on all matters
of
employer-
employee relations' and the corresponding right
of
employee
organizations to 'represent their members in their employment
relations with public school employers.'
(Ibid, citing Rio Hondo and similar language in EERA.) Accordingly, under Consumer
Affairs, Brewington had no right to insist on representation by a private attorney at the July 18
investigatory interview.
22
The Dills Act is codified at Government Code section 3512 et seq.
36

August 9 Notice
of
Proposed Termination and August
23
Termination
The County's investigation and decision to place Brewington on administrative leave
based upon the alleged threats
of
June 7 culminated in the August 9 Notice
of
Proposed
Termination and August
23
Termination based upon the same conduct. In addition, the notices
alleged that Brewington was dishonest concerning his cell phone use and whernabouts, that he
yelled at Miller, and that he was insubordinate in refusing to answer questions without his
attorney at the July
18
interview. As discussed above, the County's accusations were not
supported by the evidence presented at hearing.
23
In addition, a finding
of
nexus is supported
by the County's cursory investigation
of
the alleged misconduct prior to initiating disciplinary
action. (Coast Community College District (2003) PERB Decision No. 1560.) First, Reyes's
failure to keep any notes or take any statements, failure to listen to Lyman's voice mail message,
and failure to determine whether a security video
of
the elevator incident existed, coupled with
her lack
of
recollection
of
many details purportedly related to her by the witnesses, demonstrates
that her investigation into Brewington's alleged threats was less than thorough. Again, the
failure
of
most
of
the percipient witnesses to testify undermined the County's case, since there
was no direct testimony to corroborate Reyes's hearsay testimony.
Second, by refusing to reschedule the July
18
interview to enable Brewington' s attorney
to attend, she failed to adequately investigate the June 7 incidents by failing to reasonably afford
Brewington the opportunity to explain the incidents. In addition, although Brewington had no
protected right to representation by an attorney, the County's refusal to reschedule the interview
is further evidence of its unlawful motivation. The record establishes that the County had no
23
While the County may have been justified in considering Brewington to be
insubordinate for refusing to answer questions at the July 18 interview, we nonetheless
conclude that the decision to take adverse action was unlawfully motivated, based upon a
totality of the evidence.
37

objection to Brewington's use
of
a private attorney at the investigatory interview. Indeed,
Reyes told Brewington that he had the right to engage another attorney and communicated with
Leahy's office on July 14 about the interview date. The only objection raised by the County
was the assertion that, pursuant to Upland Police Officers Assn.
v.
City
of
Upland (2003) 111
"al
App 4
th
'---' 	• 	•	
.1~/1,	
l
')QLI_	
P.r"'w1'ngton	.J..J V	
J.
,-1;,-1	
UJ.U.
nr.t	
J..lVL
.1.1
ha'\!e the	
.l	
..
.11.fSJ.	
;,...ht
L
tr.	
LV
a '""'pres"'ntat;'\1"'	
.l\,,,,
	\.,,J.	
.L
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r.+h;n	
H_.l.:)
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hut	
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=nn+
choose a representative who is reasonably available and,
if
unable to do so, should select
another representative so that the interrogation may proceed. The County did not, however,
provide any explanation
of
how the short delay requested would have prejudiced its ability to
conduct a thorough investigation.
Third, the County failed to adequately investigate the cell phone incident, concluding
incorrectly that Brewington had been using his County cell phone. Therefore, we conclude that
the decision to terminate Brewington was motivated by the same unlawful retaliation as the
County's prior adverse actions toward Brewington.
The County's argument that it followed its own procedures and MOU does not
contravene our finding
of
unlawful motivation. As discussed above, the County failed to
conduct an adequate investigation
of
the alleged misconduct and relied on unsubstantiated
allegations
of
misconduct. Moreover, by refusing to allow a short postponement
of
the
investigatory interview, it failed to afford Brewington a reasonable opportunity to provide
information that would have aided in its investigation.
The County's Defense
Once the charging party establishes a prima facie case
of
retaliation, the employer then
bears the burden
of
proving that it would have taken the adverse action even
if
the employee had
not engaged in protected activity. (Novato; Martori Brothers Distributors
v.
Agricultural Labor
Relations Bd. (1981) 29 Cal.3d 721,729-730 (Martori Brothers); Wright Line (1980) 251 NLRB
38

1083.) Thus, "the question becomes whether the ( adverse action) would not have occurred 'but
for' the protected activity." (Martori Brothers.) The "but for" test is "an affirmative defense
which the employer must establish by a preponderance
of
the evidence." (McPherson
v.
Public
Employment Relations Bd. (1987) 189 Cal.App.3d 293, 304.)
A disciplinary memorandum such as the August 9 Notice
of
Proposed Termination and
the August 23 Notice
of
Termination is hearsay and cannot by itself meet the County's burden
of
proof. (Escondido Union Elementary School District (2009) PERB Decision No. 2019
(Escondido).) As determined by the Board in Escondido, "there must be sufficient
independent evidence for us to conclude that the disciplinary action based on the hearsay
criticisms would have occurred notwithstanding the employee's protected activity."
Accordingly, we must examine the record for supporting independent evidence.
Most
of
the allegations set forth in the August 9 and August 23 notices are based upon
hearsay statements contained in Reyes's investigative report.
Because virtually none
of
the percipient witnesses to the alleged incidents testified
(Shopshear, Lyman, Miller, Komers and Carstens), there is no independent evidence in the
record to support any
of
the allegations, with the exception
of
the allegation
of
insubordination
related to the July 18 interview.24 Moreover, the testimony
of
Reyes and Stevens was
discredited on numerous points. Therefore, the County has failed to establish that it would have
taken the adverse action even
if
Brewington had not engaged in protected activity. Accordingly,
we find that the County failed to meet its burden
of
proof under the "but for" test, and therefore
retaliated against Brewington by issuing the June 6 Directive Memorandum, the July 7
Administrative Investigation memo, and the July 10 administrative leave memo; and issuing the
August 9 Notice of Proposed Termination, and the August 23 termination.
As noted above, Neal's testimony was substantially discredited.
39

REMEDY
We agree with the ALJ that the appropriate remedy in this case is to order the County to
rescind Brewington's termination, expunge from its records the disciplinary memoranda and
notices found unlawful, offer him reinstatement, and make him whole for losses he suffered as a
dl·re{'t	
v
	...._
re<:!nlt	
U\A..I.	
ofh1·Q	
.1.	
u term	1,, .l..l....l..l..L.l.
1
n<>ttr.n	
U,1,,.LV.L..1.'
,n,-.lnrl,nrr	
.1..1..l.V.J.UU..L.L.l.E,
ha"lr	u
	v.n
..
rvn,	
_l-'U)
• Tn	.1..1.l
aC""''"danc
0	
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J.
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'"I.th	
VY	
.l
PPRB	.1...j.l. 	pol;cy	1 	, ;t1	
1·s
also
appropriate that the County be ordered to post a notice incorporating the terms
of
this order.
(Los Angeles Unified School District (2001) PERB Decision No. 1469.)
The County has excepted to the ALJ' s proposed order and remedy on the ground that
any award should have properly been made under the grievance process under the MOU.
Pursuant to PERB Regulation 32300(b ), the statement
of
exceptions may refer only to matters
contained in the record
of
the case. The record in this case indicates that PERB initially
deferred this matter to arbitration, but then removed the case from abeyance due to a
breakdown in the arbitration. The parties do not dispute that the arbitration process broke
down after a dispute over whether or not Brewington was required to pay for one-half the
arbitrator's fee. 	On appeal, the County contends that, in 2008, the Fourth District Court
of
Appeal, "ruled that the cost-sharing requirement constituted an unlawful denial
of
due process
to the grievant and ordered the County to cover all arbitration fees and costs associated with
arbitration." (Citing Soto
v.
County
of
Riverside (2008) 162 Cal.App.4 th 492.) The County
further asserts that it "intends to abide with [sic] this ruling in future arbitration under its
various MOU [sic], and this removes any obstacle to completion
of
arbitration."
We do not find good cause to defer this matter to arbitration at this late juncture. Once
this matter was removed from abeyance, the County never objected to proceeding before the
ALJ to resolve all issues raised in the complaint, and participated fully in the hearing and
40

briefing before the ALJ. Moreover, the County has not established that the prerequisites to
arbitration under PERB Regulation 32620(b )( 6) continue to be met in this case. 25
Finally, the County asserts that PERB has no authority or jurisdiction to issue its
decision, order, or award in this matter because the State Constitution prohibits any external
tribunal from making a decision that may affect local County administration or expenditures,
including the payment
of
wages and benefits for County personnel, citing County
of
Riverside
v.
Superior Court (2003) 30 Cal.4th 278,
291
(Riverside). 	PERB has no authority to declare a
statute unconstitutional unless an appellate court has determined that the statute is
unconstitutional. (Cal. Const., art. III, § 3.5). Thus, Riverside is inapposite. In that case, the
California Supreme Court invalidated as unconstitutional a statute that required counties and
other local agencies to submit, under certain circumstances, to binding arbitration
of
economic
issues that arise during negotiations with unions representing firefighters or law enforcement
officers, thereby removing the authority
of
local agencies to set salaries. Riverside is
inapplicable to this case, which involves PERB' s exercise
of
its authority to remedy unfair
labor practices under the MMBA. No court has held that the MMBA's provisions vesting
jurisdiction in PERB to decide and remedy unfair practices are unconstitutional. Indeed, the
California Supreme Court has twice upheld the constitutionality
of
the MMBA in the face
of
challenges to its application to charter cities and counties. (Los Angeles County Civil Service
25
PERB Regulation 32620(b )( 6) requires the Board agent processing the charge to:
Place the charge in abeyance
if
the dispute arises under MMBA,
HEERA, TEERA, Trial Court Act or Court Interpreter Act and is
subject to final and binding arbitration pursuant to a collective
bargaining agreement, and dismiss the charge at the conclusion ofthe arbitration process unless the charging party demonstrates that
the settlement or arbitration award is repugnant to the purposes of
MMBA, HEERA, TEERA, Trial Court Act or Court Interpreter
Act, as provided in section 32661.
41

Com. v. Superior Court (1978) 23 Cal.3d 55 [requiring county to meet and confer with
employee unions under MMBA before amending its civil service rules does not offend the
home-rule provisions of Art. XI, §§ 3 and 4 of the California Constitution]; People ex rel. Seal
Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591 [charter city council
must comply ·with MMBA's meet and confer requirements before proposing amendment to the
city charter affecting terms and conditions of public employment].) Accordingly, PERB has
the authority and duty to issue decisions and orders to effectuate the purposes of the MMBA.
ORDER
Based upon the entire record in this case, the Public Employment Relations Board
(PERB) finds that the County of Riverside (County) violated the Meyers-Milias Brown Act
(MMBA), Government Code section 3500 et seq. The County violated the MMBA by issuing
John Brewington (Brewington) disciplinary memoranda, placing him under investigation,
ordering him on administrative leave, and terminating his employment, all in retaliation for his
protected activities.
It is also found that the County did not violate the MMBA by issuing Brewington a
memorandum of understanding on February 16, 2006, or a Medical Certification Directive on
June 13, 2006, docking his pay on July 5, 2006, or denying his request to postpone the July 18,
2006 investigatory interview due to the unavailability of his attorney, and it is hereby
ORDERED that those allegations of the amended complaint in John Brewington v. County of
Riverside, Case No. LA-CE-261-M are DISMISSED.
Pursuant to MMBA section 3509(b) of the Government Code, it hereby is ORDERED
that the County, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
42

Issuing to employees disciplinary memoranda, placing them under investigation,
ordering them on administrative leave, and terminating their employment, in retaliation for
their protected activities;
B.
	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF MMBA:
1.	
Rescind Brewington' s termination;
2.	
Expunge from its records, including Brewington's personnel file: 	(1) the
June 6 Directive Memorandum; (2) the June 7 Administrative Investigation memo; (3) the
July 10 letter
of
Administrative Leave; (4) the August 9 Notice
of
Proposed Termination and
the July
31
Investigative Report on which it was based; (5) the August
23
Notice
of
Termination; and (6) all references to those documents and to the allegations contained therein;
3.	
Offer Brewington immediate reinstatement to his former position
of
employment or,
if
that position no longer exists, then to a substantially similar position, and
restore to him all earned benefits as
of
August 23, 2006;
4.	
Make Brewington whole for financial losses which he suffered as a
direct result
of
his termination, including paying him back pay augmented at the rate
of
seven percent per annum;
5.	
Within 10 workdays
of
the service
of
a final decision in this matter, post
at all work locations where notices to County employees customarily are posted, copies
of
the
Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent
of
the County, indicating that it will comply with the terms
of
this Order. Such posting shall be
maintained for a period of 30 consecutive workdays. Reasonable steps shall be taken to ensure
that the Notice is not reduced in size, altered, defaced or covered with any other material;
6. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of PERB, or the General Counsel's designee. The County
43

shall provide reports, in writing, as directed by the General Counsel or his/her designee. 	All
reports regarding compliance with this Order shall be concurrently served on John Brewington.
Acting Chair Dowdin Calvillo and Member McKeag joined in this Decision.
44

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. LA-CE-261-M, John Brewington
v.
County
of
Riverside, in which all parties had the right to participate, it has been found that the County
of
Riverside violated the ~.1eyers-~.1ilias-Brown Act (MMBA), Government Code section 3500
et seq., by retaliating against John Brewington (Brewington) in retaliation for his protected
activities.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
Issuing to employees disciplinary memoranda, placing them under investigation,
ordering them on administrative leave, and terminating their employment, in retaliation for
their protected activities;
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1.	
Rescind Brewington's termination;
2. 	Expunge from its records, including Brewington's personnel file: 	(1) the
June 6 Directive Memorandum; (2) the June 7 Administrative Investigation memo; (3) the
July 10 letter
of
Administrative Leave; (4) the August 9 Notice
of
Proposed Termination and
the July
31
Investigative Report on which it was based; (5) the August 23 Notice
of
Termination; and (6) all references to those documents and to the allegations contained therein;
3. 	Offer Brewington immediate reinstatement to his former position
of
employment or,
if
that position no longer exists, then to a substantially similar position, and
restore to him all earned benefits as
of
August 23, 2006;
4. 	Make Brewington whole for financial losses which he suffered as a
direct result
of
his termination, including paying him back pay augmented at the rate
of
seven percent per annum.
Dated: 	COUNTY OF RIVERSIDE
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.