County of Santa Clara (PERB A411M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MELVIN JONES JR.,
Charging Party,
V.
COUNTY OF SANTA CLARA,
Respondent.
Case No. SF-CE-646-M
Administrative Appeal
PERB Order No. Ad-411-M
April 18, 2014
MELVIN JONES JR.,
Charging Party,
V.
COUNTY OF SANTA CLARA,
Respondent.
Case No. SF-CE-988-M
Appearance: Melvin Jones, Jr., on his own behalf.
Before Martinez, Chair; Huguenin and Winslow, Members.
DECISION
HUGUENIN, Member: These cases are before the Public Employment Relations
Board (PERB or Board) on appeals by Melvin Jones, Jr. (Jones) from administrative
determinations by the PERB's Appeals Assistant, denying, respectively, Jones' request for
reconsideration of PERB Order No. Ad-398-M, and Jones' request for reinstatement of an
appeal in Case No. SF-CE-988-M.1 For the reasons stated herein, we affirm each
administrative determination and deny each appeal.
These cases are consolidated for the purpose of efficiency.

PROCEDURAL HISTORY
On March 19, 2013, Jones filed "Request for reconsideration
of
ORDER#
Ad-398-M
due to prejudicial error
of
fact there, AND request that ruling on this motion is done AFTER
the outcome (as to reinstatement
of
appeal case #SF-CE-988-M)." On March 26, 2013,
PERB' s Appeals Assistant issued an administrative determination denying the request. 	On
April 2, 2013, Jones timely appealed the administrative determination to the Board itself.
On March 19, 2013, Jones filed "Notice
of
Reinstatement
of
APPEAL as to case #SF-
CE-988-M (as said appeal was NOT withdrawn with prejudice)." On March 26, 2013, PERB's
Appeals Assistant issued an administrative determination denying the request. On April 2,
2013, Jones timely appealed the administrative determination to the Board itself.
FACTUAL SUMMARY
These cases have their genesis in an unfair practice charge filed by Jones on April 20,
2009, Case No. SF-CE-646-M, in which Jones alleged that the County
of
Santa Clara (County)
violated the Meyers-Milias-Brown Act (MMBA)2 by terininating his probationary employment
in retaliation for having engaged in protected activity.3 The crux
of
Jones's argument was that
he was on an approved leave
of
absence when the County terminated his employment in part
for being absent without leave. This is Jones' fifth attempt to obtain Board review
of
that
employment action. A complete procedural history is set forth in County
of
Santa Clara
(2012) PERB Decision No. 2267b-M (Santa Clara), and summarized in County
of
Santa Clara
(2013) PERB Order No. Ad-398-M (County
of
Santa Clara). Thus, we here reiterate only the
most pertinent procedural and additional facts.
2 The MMBA is codified at Government Code section 3500 et seq.
3 The charge also alleged that the County denied Jones the right to have an employee
representative present during a meeting and interfered with protected rights.
2

In Case No. SF-CE-646-M, PERB's administrative law judge (ALJ) issued a proposed
decision dismissing the complaint and charge for failure to establish a violation of the MMBA.
In rejecting Jones's argument that he had been terminated in retaliation for having engaged in
protected activities, the ALJ found that Jones was unable to establish that he had received
approval for the absences that led to his termination.
On May 12, 2012, the Board adopted the ALJ's decision as its own and dismissed the
complaint and underlying unfair practice charge. (County of Santa Clara (2012) PERB
Decision No. 2267-M.) In its decision, the Board rejected Jones's request to consider
additional evidence in support of his claim that he was not absent without leave and concluded
that, even if such evidence were considered, it would not establish that the absences were
authorized. Thereafter, on August 12, 2012, the Board denied Jones' first request for
reconsideration of that decision. (County of Santa Clara (2012) PERB Decision
No. 2267a-M.) On October 16, 2012, Jones filed a request that the Board grant a new hearing
to consider new evidence. On November 27, 2012, the Board issued a decision denying that
request under the standards applicable to requests for reconsideration.4 (Santa Clara, supra,
PERB Decision No. 2267b-M.) On December 6, 2012, Jones filed a "Motion/Request (3rd) for
Reconsideration [with affidavit filed concurrently]," and a "Request in the alternative" to join
Service Employees International Union, Local 521 (SEIU) to enable Jones to pursue a
unilateral change theory. 	On December 13, 2012, in an administrative determination, PERB's
Appeals Assistant denied the request, finding that, under PERB Regulation 32410,5 a party
cannot repeatedly file requests for reconsideration. On March 8, 2013, the Board issued a
decision denying Jones' requests under standards applicable to requests for reconsideration and
4 In addition, the Board found the request untimely.
5 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
3

to applications for joinder of parties. (County of Santa Clara, supra, PERB Order
No. Ad-398-M.) Jones now seeks reconsideration of that decision.
On August 8, 2012, after the Board had issued its decision affirming the ALJ's
dismissal of the complaint in Case No. SF-CE-646-M, Jones filed a second unfair practice
charge over essentially the same set of facts (Case No. SF-CE-988-M).6 In his second charge,
Jones alleged that a statement made by the County in a brief filed before the ALJ in Case
No. SF-CE-646-M, constituted an admission that the County had unilaterally changed a
provision in the memorandum of understanding covering his employment that established that
his absences were authorized. After the Office of the General Counsel informed Jones that he
lacked standing to allege a unilateral change violation, Jones amended the charge to allege that
the County's statement in its brief constituted an admission that the County adopted and
enforced an unreasonable local rule. On October 12, 2012, the Office of the General Counsel
dismissed that charge for failure to state a prima facie violation of the MMBA. Jones filed a
timely appeal from that dismissal, but, on October 19, 2012, filed a request to withdraw that
appeal. 	On November 27, 2012, the Board granted Jones's request to withdraw his appeal in
Case No. SF-CE-988-M. (County of Santa Clara (2012) PERB Decision No. 2292-M.) Jones
now seeks to reinstate that previously withdrawn appeal.
DISCUSSION
We consider first Jones' appeal from the administrative determination denying his
request for reconsideration of County of Santa Clara, supra, PERB Order No. Ad-398-M, and
then address Jones' appeal from the administrative determination denying his request for
reinstatement of his appeal in Case No. SF-CE-988-M.
6 The Board takes official notice of the case file in Case No. SF-CE-988-M.
4

Standard
of
Review
In an appeal from an administrative determination, the moving party must demonstrate
how and why the administrative decision being challenged departs from the Board's precedents
or regulations. Here the governing PERB Regulations are 32410 (request for reconsideration);
32164 (application for joinder
of
parties), and 32136 (late filing). 	We review the challenged
administrative determinations in light
of
these regulations and our precedents thereunder.
Request for Reconsideration
of
County o(Santa Clara, supra, PERB Order No. Ad-398-M
In County
of
Santa Clara, supra, PERB Order No. Ad-398-M, the Board considered
and rejected Jones' request for reconsideration and his application for joinder
of
parties.
	We
review each issue once more.
Request for Reconsideration
In County
of
Santa Clara, supra, PERB Order No. Ad-398-M, the Board reviewed its
regulation concerning requests for reconsideration (PERB Reg. 32410),7 and reaffirmed its
7 PERB Regulation 32410 provides:
(a) Any party to a decision
of
the Board itself may, because
of
extraordinary circumstances, file a request to reconsider the
decision within 20 days following the date
of
service
of
the
decision. An original and five copies
of
the request for
reconsideration shall be filed with the Board itself in the
headquarters office and shall state with specificity the grounds
claimed and, where applicable, shall specify the page
of
the
record relied on. Service and proof
of
service
of
the request
pursuant to Section 32140 are required. The grounds for
requesting reconsideration are limited to claims that: 	(1) the
decision
of
the Board itself contains prejudicial errors
of
fact, or
(2) the party has newly discovered evidence which was not
previously available and could not have been discovered with the
exercise
of
reasonable diligence. A request for reconsideration
based upon the discovery of new evidence must be supported by a
declaration under the penalty of perjury which establishes that the
evidence: (1) was not previously available; (2) could not have
been discovered prior to the hearing with the exercise of
reasonable diligence; (3) was submitted within a reasonable time
5

prior holding in Bassett Unified School District (1979) PERB Order No. Ad-67, limiting
parties to one request for reconsideration of a Board decision. The Board stated:
We reaffirm the rule set forth in Bassett, supra, PERB Order
No. Ad-67, that a party may file only one request for
reconsideration of a Board decision, except in those cases where
a prior request for reconsideration has resulted in the issuance of
a completely revised decision. This rule preserves the right of
parties to obtain reconsideration of a Board decision while
avoiding an undue waste of the resources of both the Board and
the parties.
(County of Santa Clara, supra, PERB Order No. Ad-398-M, p. 5.)
In this case, the Board has three times denied requests to reconsider the same decision,
to wit, Santa Clara, supra, PERB Decision No. 2267b-M. Jones had a full opportunity to
litigate his case before the ALJ in that case and a full appeal thereof to the Board, which
sustained the ALJ. He also had a full opportunity to present a related case (Case
No. SF-CE-988-M) to the Office of the General Counsel and to appeal to the Board from the
General Counsel's dismissal of that case. Instead he withdrew his appeal. Having withdrawn
his appeal, he cannot use this proceeding to reopen that case.
of its discovery; ( 4) is relevant to the issues sought to be
reconsidered; and (5) impacts or alters the decision of the
previously decided case.
(b) Any party shall have 20 days from service to file a response
to the request for reconsideration. An original and five copies of
the response shall be filed with the Board itself in the
headquarters office. Service and proof of service of the response
pursuant to Section 32140 are required.
(c) Unless otherwise ordered by the Board, the filing of a
Request for Reconsideration shall not stay the effectiveness of a
decision of the Board itself except that the Board's order in an
unfair practice case shall automatically be stayed upon filing of a
Request for Reconsideration.
6

2. 	Application for Joinder of Parties
In County of Santa Clara, supra, PERB Order No. Ad-398-M, the Board reviewed its
regulation concerning applications for joinder of parties (PERB Reg. 32164),8 stating:
PERB Regulation 3 2164( d) authorizes PERB to order j oinder of a
party if the party has an interest in the subject matter of the
proceeding. (Bay Area Air Quality Management District (2007)
PERB Decision No. 1927-M.)
8 PERB Regulation 32164 provides:
(a) Any employee, employee organization or employer may file
with the Board agent an application for joinder as a party in a
case. Service and proof of service of the application pursuant to
Section 32140 are required.
(b) The application for joinder shall be in writing, signed by the
representative filing it and contain a statement of the extent to
whichjoinder is sought and a statement of all the facts upon
which the application is based. The Board shall allow each party
an opportunity to oppose the application.
(c) The Board may allow j oinder if it determines that the party
has a substantial interest in the case or will contribute
substantially to a just resolution of the case and will not unduly
impede the proceeding.
(d) The Board may order joinder of an employer, employee
organization or individual, subject to its jurisdiction, on
application of any party or its own motion if it determines that:
(1) In the absence of the employer, employee organization or
individual, as a party, complete relief cannot be accorded; or
(2) The employer, employee organization or individual has an
interest relating to the subject of the action and is so situated that
the disposition of the action in their absence may:
(A) As a practical matter impair or impede their ability to protect
that interest; or
(B) Leave any of the parties subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent obligations
by reason of said interest.
7

(County of Santa Clara, p. 6.) The Board then assessed Jones' request for j oinder of SEIU m
Case No. SF-CE-988-M, determining thatjoinder was not appropriate.
Nothing has changed. Jones has made no showing that the employee organization has
any substantial interest that would be impaired if it is not joined in this case. As before, Jones
seeks joinder in order to revive his unilateral change allegation in Case No. SF-CE-988-M.
That allegation was dismissed by the Office of the General Counsel, because Jones lacked
standing to make the allegation. Following the dismissal, Jones appealed the dismissal to the
Board, and voluntarily withdrew his appeal. The Board approved the withdrawal. Thus, the
withdrawal is now final and binding on Jones.
Jones urged below that he intended the withdrawal of his appeal to be "without
prejudice." However, this claim is unavailing. The Board has no procedure under which an
appeal, once withdrawn, may be later reasserted at the discretion of the appellant. Moreover, if
such a procedure existed, which it does not, the original time line for the appeal would apply,
to wit, 20 days from the date of issuance of the dismissal of the charge. The charge was
dismissed on October 12, 2012, thus placing the due date for a timely appeal in November
2012, which is long past. Currently, there is no pending matter before the Board for which
joinder would be necessary or appropriate. Moreover, there is no basis for ordering joinder of
the employee organization at this late stage in Case No. SF-CE-646-M.
In sum, we affirm. the administrative determination of the Appeals Assistant to deny
Jones' request for reconsideration of County of Santa Clara, supra, PERB Order
No. Ad-398-M. We turn now to Jones' other request, namely, for reinstatement of his appeal
in Case No. SF-CE-988-M.
8

Request for Reinstatement of Appeal in Case No. SF-CE-988-M
In County of Santa Clara (2012) PERB Decision No. 2292-M, the Board approved
Jones' request to withdraw his appeal from the dismissal by the Office of the General Counsel
of his unfair practice charge in Case No. SF-CE-988-M. Jones seeks to reinstate his previously
withdrawn appeal on the ground that the withdrawal was not "with prejudice."
This matter was addressed in County of Santa Clara, supra, PERB Order
No. Ad-398-M, and is discussed above. As there indicated, PERB has no procedure for a party
to withdraw an appeal "without prejudice," and then to reinstate or reassert the appeal at a later
time. Moreover, even if such a procedure did exist, which it does not, appeals are governed by
time lines. Where a party fails to file a timely appeal, the appeal is barred unless the Board
finds good cause to excuse the failure. Jones proffers as good cause his belief that his
withdrawal of his appeal was without prejudice and that withdrawal would not bar later
reinstatement. We are not persuaded.
PERB Regulation 32136 provides that the Board may excuse a late filing for good
cause. The Board has found good cause when the explanation for the late filing was
"reasonable and credible" and the delay did not cause prejudice to any party. (Barstow Unified
School District (1996) PERB Order No. Ad-277.)9 The Board, however, has ruled that
ignorance of the law is no excuse and, therefore, insufficient to warrant a finding of good
cause. (United Faculty ofGrossmont-Cuyamaca Community College District (Tarvin) (2010)
9 The Board has historically excused late filings caused by "honest mistakes" such as
mailing or clerical errors. (See, e.g., Kern Community College District (2008) PERB Order
No. Ad-372 [clerical employee served appeal on respondent but did not file appeal with
PERB]; Trustees of the California State University (1989) PERB Order No. Ad-192-H
[mailroom employees incorrectly set postage meter causing exceptions to be filed late];
San Francisco Unified School District (2009) PERB Decision No. 2048 [late filing excused as
a result of clerical error in counsel's office].)
9

PERB Decision No. 2133 (Grossmont-Cuyamaca); citing Public Employees Union Local 1
(Coleman) (2005) PERB Decision No. 1780-M (Coleman).)
Here, having voluntarily abandoned his appeal in Case No. SF-CE-988-M, Jones urges
that his erroneous impression of PERB's procedures should operate as good cause to excuse
his compliance with PERB's appeal procedures. We decline to extend the concept of good
cause that far. (Grossmont-Cuyamaca, supra, PERB Decision No. 2133; Coleman, supra,
PERB Decision 1780-M.)
In sum, we affirm the administrative determination of the Appeals Assistant to deny
Jones' request for reinstatement of his appeal in Case No. SF-CE-988-M.
ORDER
The administrative appeal of Melvin Jones, Jr. to the Appeals Assistant's denial of his
request for reconsideration of County ofSanta Clara (2013) PERB Order No. Ad-398-M is
hereby DENIED.
The administrative appeal of Melvin Jones, Jr. to the Appeals Assistant's denial of his
request for reinstatement of his appeal in Case No. SF-CE-998-M is hereby DENIED.
Chair Martinez and Member Winslow joined in this Decision.