County of Riverside (PERB 2336M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JOHN BREWINGTON,
.Charging Party,
v.
COUNTY OF RIVERSIDE,
Res ondent.
Case No. LA-CE-261-M
PERB Decision No. 2336-M
October 18, 2013
Appearances: The Leahy Law Firm by Alan J. Leahy, Attorney, for John Brewington;
The Zappia Law Firm by Edward P. Zappia and Brett M. Ehman, Attorneys, for County
of
Riverside.
Before Martinez, Chair; Winslow and Banks, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the County
of
Riverside (County) to the proposed
decision (attached)
of
a PERB administrative law judge (ALJ 2) arising out
of
a compliance
proceeding. The ALJ found that the County failed to comply with the Board's reinstatement
order in County
of
Riverside (2009) PERB Decision No. 2090-M. In that case, the Board held
that the County committed an unfair practice under the Meyers-Milias-Brown Act (MMBA)1
by retaliating against John Brewington (Brewington) for engaging in protected activities.
Thus, the Board ordered the County to, among other things, offer Brewington immediate
reinstatement to his former position or,
if
that position no longer existed, then to a substantially
similar position. The ALJ ordered that the County take several affirmative actions, including
1 The MMBA is codified at Government Code section 3500 et seq. All further section
references are to the Government Code.

paying Brewington his salary and benefits at the Associate Civil Engineer classification level
from December 31, 2009, forward.
The County filed timely exceptions to the proposed decision, and Brewington filed a
timely response. The Board has reviewed the entire record in this matter, including the hearing
record, the ALJ 2's findings of fact, conclusions of law and proposed order, the County's
exceptions and Brewington's response thereto. Based on this review, we conclude that the
ALJ 2' s findings of fact are supported by the record and therefore adopt them as the findings of
the Board itself, as supplemented herein. We also conclude that the ALJ 2' s conclusions of
law are well-reasoned and in accordance with applicable law and therefore adopt them as the
conclusions of law of the Board itself. Last, we adopt the ALJ 2's proposed order, except as
modified to require that the County pay Brewington his salary and restore his benefits from
May 20, 2008, forward rather than from December 31, 2009, forward. The latter date
corresponds to the date of the Board's decision in County of Riverside, supra, PERB Decision
No. 2090-M. The former corresponds to the date that the ALJ 1's April 25, 2008, proposed
decision in County of Riverside, supra, PERB Decision No. 2090-M would have become final
had the County not pursued an unsuccessful appeal.2 For reasons explained below, we
conclude that fixing the County's liability at this earlier date more effectively fulfills the
Board's responsibility in enforcing the MMBA.
2 As noted below, the proposed decision issued on April 25, 2008. Under PERB
Regulation 32300, subdivision (a), a party may file with the Board itself a statement of
exceptions to a proposed decision within 20 days following the date of service. Under PERB
Regulation 32130, subdivision (c), a five day extension of time shall apply to any filing in
response to documents served by mail. (PERB Regs. are codified at Cal. Code Regs., tit. 8,
sec. 31001 et seq.)
2

PROCEDURAL BACKGROUND
Official notice is taken of the contents of the case file. 3 On December 31, 2009, the
Board itself issued County of Riverside, supra, PERB Decision No. 2090-M. The case arose
out of an unfair practice charge alleging a series of adverse actions taken by the County against
Brewington because of his protected activities, the final adverse action being the termination of
his employment on August 23, 2006, after approximately 22 years of continuous employment.
After a five-day formal hearing and submission of post-hearing briefs, the ALJ 1 issued a
proposed decision on April 25, 2008, which ordered the County to, among other things, make
Brewington an offer of immediate reinstatement "to his former position of employment or, if
that position no longer exists, then to a substantially similar position." The County filed
exceptions challenging both the ALJ 1 's proposed decision and order and PERB' s authority to
adjudicate the matter.
In County of Riverside, supra, PERB Decision No. 2090-M, the Board concluded that
the County had taken four retaliatory adverse actions4 against Brewington, including
terminating his employment, in violation of MMBA section 3506, and thereby committed
unfair practices under section 3509, subdivision (b). 5 In responding to the County's
constitutional challenge to PERB's authority, the Board itself held:
3 The information contained in the Procedural Background section of the decision is for
background purposes only. It is not evidence and was not considered as such in the resolution
of the disputed legal issues on appeal.
4 Other adverse actions alleged in the amended complaint were dismissed.
5 MMBA section 3506 states: "Public agencies and employee organizations shall not
interfere with, intimidate, restrain, coerce or discriminate against public employees because of
their exercise of their rights under Section 3502." Section 3509, subdivision (b), declares such
conduct an unfair practice.
3

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 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.
(County of Riverside, supra, at pp. 41-42, emphasis added.)
The Board included in its order against the County the following four affirmative
actions, in addition to the standard posting and reporting provisions:
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[.]
4

On January 28, 2010, the County filed a petition for writ of extraordinary relief seeking
review of the Board's decision, and a request for a stay, in the Court of Appeal, Fourth
Appellate District. The County's petition urged the court to take review on the following
grounds: (1) PERB's statutory authority to issue a back pay and reinstatement award conflicts
with the County's authority to manage its affairs under the California Constitution; (2) PERB' s
award of back pay and reinstatement exceeds PERB's authority; (3) PERB's award of back pay
and reinstatement conflicts with the County's management rights; and (4) the County
determined that Brewington was not fit to be employed with the County.
On February 24, 2011, the Court issued an order summarily denying the County's
petition. On March 29, 2011, the County filed a petition for rehearing, which the court denied
on March 30, 2011.
Meanwhile, on March 9, 2011, PERB sent a letter requesting that the County file an
initial statement of compliance outlining the steps the County had taken towards compliance
with the Board's order in County of Riverside, supra, PERB Decision No. 2090-M. The
County was given a deadline of March 25, 2011. The County failed to comply with PERB' s
request. 	On April 4, 2011, PERB sent a letter noting the County's failure to comply and giving
the County a new deadline of April 11, 2011. On April 21, 2011, the County responded by
letter informing PERB that "[t]his letter is to notify you of the County's intent to comply with
PERB' s decision" and outlining the steps the County intended to take. The County asserted
that its obligations toward Brewington were cut off on February 13, 2008, "the date he would
have been laid off with the other Civil Engineers, had he not been previously terminated."
5

On May 4, 2011, PERB sent a letter requesting information from both the County and
Brewington. The County was asked to provide information concerning the County's layoff,
the use of the civil engineer classification in the County and the existence of substantially
similar positions for which Brewington was qualified. Brewington was asked to provide
information concerning mitigation of his damages. Responses were received from both parties.
On May 4, 2011, PERB also served the parties with notice of a compliance status
conference scheduled for June 3, 2011. At the status conference, the County maintained its
position that compliance with the Board's back pay and reinstatement award only required that
the County pay Brewington what he would have earned had he not been unlawfully terminated,
i.e., from August 23, 2006, the date of termination, to February 13, 2008, the date of the
layoff. PERB requested that the County provide information about engineers in the County's
Building and Safety Department that continued to work for the County in some capacity after
the layoff and other engineer positions that still existed in the County. The County was given a
deadline of June 10, 2011. Brewington was given a deadline of July 1, 2011, by which to file
objections to the steps taken by the County towards compliance.
The County did not comply with PERB's request for information. On June 13, 2011,
PERB contacted the County. The County thereupon requested a new deadline of June 17,
2011, which was granted. Having received no response, PERB contacted the County again on
June 22, 2011. The County confirmed that it had not undertaken any steps towards compliance
with PERB's _information request or towards compliance with the Board's order. The County
stated that it was in the final preparations to doing so. 	On June 29, 2011, PERB contacted
Brewington. Brewington informed PERB that he had not received a check from the County
and was not aware that the County had complied with any other item included in the Board's
order.
6

On June 29, 2011, based upon the above-description of events, PERB issued an order to
show cause why PERB should not "proceed immediately to seek court enforcement of the
Board's order, pursuant to its authority under PERB Regulation 32980(a)." Responses were
received from both parties.
On November 2, 2011, the parties were informed that the matter had been transferred
from the Office of the General Counsel to the Division of Administrative Law for purposes of
conducting a compliance hearing. A formal hearing was conducted on February 7, 2012, by
the ALJ 2. The matter was submitted for proposed decision upon the receipt of reply briefs on
April 20, 2012, and the ALJ 2's proposed decision issued on January 30, 2013.
PROPOSED DECISION
The ALJ 2 noted that, of the four items in the Board's order, those that remained at
issue were items three and four of the Board's order: reinstatement and back pay. Regarding
item 4, the back pay award, the ALJ 2 agreed with the County that its liability for back pay
terminated with the layoff of February 13, 2008. Regarding item 3, the reinstatement award,
the ALJ 2 determined that the County had failed to comply. In addition, the ALJ 2 determined
that Brewington had satisfied his duty to mitigate damages by going into business for himself,
and that the County could offset from its liability $20,400 earned by Brewington in the 2006
and 2007 tax years.
To remedy the County's failure to comply with the Board's reinstatement order, the
ALJ 2 ordered the County to take following affirmative actions:
1. 	Pay Brewington his salary and restore his benefits at the
Associate Civil Engineer classification level from
December 31, 2009 forward until he is offered immediate
reinstatement to his former position of employment or, if that
position no longer exists, then to a substantially similar
position. Such payment and restoration shall include an
augmentation at the rate of 7 percent per annum.
7

2. 	Such payment of salary and restoration of benefits set forth in
paragraph 1 may be offset by $20,400.00 as the amounts of
income earned by Brewington in calendar years 2006 and
2007.
3. 	Offer Brewington immediate reinstatement to his former
position of employment, or if that position no longer exists,
then to a substantially similar position.
4. 	Written notification of the actions taken to comply with this
Order shall be made to the General Counsel of the Public
Employment Relations Board (PERB or Board), or the
General Counsel's designee. Respondent 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 Mr. Brewington or his
representative.
DISCUSSION
As the ALJ 2 appropriately noted, the purpose of the compliance proceeding was to
determine whether, or to what extent, the County had complied with the Board's order. The
purpose was not to provide the County with yet another opportunity to challenge that order or
the Board's remedial authority. The County availed itself of that opportunity in County of
Riverside, supra, PERB Decision No. 2090-M, but failed to persuade the Board, or the Court
of Appeal, of its position.
In the Board's decision of December 31, 2009, the Board adopted the ALJ 1's proposed
order of April 25, 2008, which required the County to offer Brewington immediate
reinstatement to his former position of employment, or, if that position no longer existed, then
to a substantially similar position. Over five years since the ALJ l's proposed order and after
all possible avenues for appeal have been exhausted, the County remains locked into the same
unlawful position it has maintained all along. The County has had the option to relieve itself
8

of any further liability by making Brewington a valid offer of reinstatement. 6 Instead, the
County has chosen to allow its liability to grow with each passing day. (See Davis v.
Los Angeles Unified School Dist. Personnel Com. (2007) 152 Cal.App.4 th 1122, 1132 ["The
intended effect of reinstatement is to reduce or eliminate an employer's liability for monetary
damages by returning the employee to the workplace and compensating him or her for actual
work."].)
The County's Arguments
The County argued in the compliance hearing that it complied with the Board's order
by retroactively reinstating Brewington in the County's human resources computer system,
PeopleSoft, in order to calculate the initial back pay award. County Human Resources
employee, Jennifer Moquin (Moquin), was called as a witness at the compliance hearing to
support the County's argument that the County had complied with the Board's reinstatement
order. She testified that Brewington had in fact been reinstated when he was reinstated "in the
system." Another Human Resources employee, Tiffany Bates, testified in the same vein:
Q 	For purposes of complying with this order, in your
interactions with Ms. Moquin and employee relations, was Mr.
Brewington immediately reinstated to his former position as of
August 23, 2006?
A 	He was, yes. For the purposes of back pay, he was
placed back into the PeopleSoft system and reinstated into that
position, yes.
The County's argument is absurd on its face. To reinstate is to return an employee to
the workforce, not to restore an employee's employment status in a computer system for purely
administrative or fiscal purposes. The former promotes the policies of the MMBA. The latter
6 An employer's liability for back pay is terminated by an employee's rejection of a
valid offer of reinstatement. (Otay Water District (2004) PERB Decision No. 1634-M.)
9

is a fictional event, the masquerading of which as "reinstatement" offends the policies of the
MMBA.
The County's exceptions can be distilled down to one main argument. The County
argues that Brewington would have been laid off on February 13, 2008, and that the County's
liability for both back pay and reinstatement under the Board's order was effectively cutoff as
of that date.
At the outset, we distinguish between the initial back pay award under item four of the
Board's order requiring the County to "[m]ake Brewington whole for financial losses which he
suffered as a direct result of his termination" and the additional back pay award under item one
of the ALJ 2's order. The ALJ 2 deemed the County's back pay obligation under item four of
the Board's order was satisfied by a payment made by the County to Brewington covering
August 23, 2006, the date of Brewington's unlawful termination, through February 13, 2008,
the date of the layoff. We do not take issue with that determination. The County's back pay
obligation under item one of the ALJ 2's order, however, is a separate issue. Even if the
County's initial back pay liability terminated at the time of layoff, additional back pay liability
began to accrue with, and flows directly from, the County's failure to comply with the Board's
reinstatement order.
The County's argument, that its liability under the Board's reinstatement order
terminated with the layoff, is undermined by a single indisputable fact. The Board's
reinstatement order was not limited to Brewington's former position, a position that was
subject to the layoff and subsequently abolished in a departmental reorganization. The Board's
order recognized that Brewington's position might no longer exist. The Board addressed that
10

contingency by allowing the County to reinstate Brewington, in the alternative, "to a
substantially similar position." This clause alone defeats the County's argument.7
None of the witnesses called by the County at the compliance hearing testified that the
County made any attempt to comply with the Board's reinstatement order other than to
reinstate him "on the books" in order to calculate the initial back pay award. Most of the
testimony demonstrated that the County functioned under a misunderstanding of its
obligations. It was the County's responsibility to actively search for a position and make
Brewington a valid job offer. Brewington was under no obligation to reapply for employment
with the County and go through a competitive hiring process as though he were seeking
employment with the County for the first time. SEIU worksite organizer, Nick Martinez,
should not have had to file, on behalf of Brewington, multiple requests under the California
Public Records Act, section 6250 et seq., attempting to elicit from the County information
about open positions. Brewington had been unlawfully terminated and it was the County's
7 From the beginning, the County has been operating as though there is no difference
between "former position" and "substantially similar position" in the Board's reinstatement
order.
Q 	So, at the time you reviewed PERB' s decision
ordering immediate reinstatement to Mr. Brewington, it's fair to
say you didn't review whether or not the classification of
associate civil engineer existed at the County?
A 	That's correct. I didn't review to see if there was
any other incumbents filling that classification elsewhere.
(Testimony of Moquin at the compliance hearing.)
11

responsibility to rectify the wrong, not Brewington's.8 As important, the burden of proving
compliance with the Board's reinstatement order rested with the County. On this point, we
find the following unrebutted testimony of Brewington to be relevant and inherently credible
given the County's recalcitrance on the reinstatement issue:
Q 	... My first question to you is, has anybody at the
County, following PERB's decision, ever offered immediate
reinstatement to your former position of employment?
A 	No, they have not.
8 The court in NLRB v. Cowell Portland Cement Co. (9 th Cir. 1945) 148 F.2d 237
rejected the same argument in a case challenging a reinstatement order. The court stated:
Another objection is that some of the employees mentioned in
these paragraphs - employees whom respondent discriminatorily
discharged - have not applied for reinstatement. This is not a
valid objection.
Another objection is that the former positions of some of the
employees mentioned in these paragraphs have been abolished.
This is not a valid objection. Employees whose former positions
have been abolished can be offered 'substantially equivalent
positions,' as provided in paragraph 2(a).
(Id. at p. 245, fns. omitted.)
See also Idaho Potato Growers, Inc. v. NLRB (9 th Cir. 1944) 144 F.2d 295. The court
stated:
Where there has been a discriminating discharge, we do not
understand that the 'order to make whole' is dependent upon the
discharged employee's application for re-employment. There is
nothing in the record which indicates in the slightest that either
Moore or Rash would not at any time have accepted
reinstatement.
(Id. at pp. 304-305.)
When interpreting the MMBA, it is appropriate to take guidance from cases interpreting
the National Labor Relations Act and California labor relations statutes with parallel
provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
12

Q 	Okay. Has anybody at the County ever contacted
you or communicated to you that your former positionof
employment no longer existed?
A 	No, they have not.
Q 	Has anybody at the County ever communicated
with you as to whether or not he or she felt a substantially similar
position at the County existed?
A 	No, they have not.
And, when asked whether he was able to return to work with the County, Brewington
testified: "I would certainly hope so. I'm ready."
The evidence produced by the County at the compliance hearing fails to establish that
there were no "substantially similar positions" anywhere in the County for which Brewington
was qualified. Because the associate civil engineer classification was abolished in the
Department of Building and Safety where Brewington last worked, the County argues that this
further supports the County's position that it has fully complied with the Board's order. The
Board's reinstatement order, however, is not limited to the Department of Building and Safety.
Greg Neal, a deputy director in the County's planning department, testified at the compliance
hearing as follows:
Q 	Okay. But you do know that other departments
employ civil engineers, correct?
A 	Yes.
Q 	And isn't it true, in fact, that the transportation
department for the County of Riverside employs engineers?
A 	Yes.
Q 	Okay, and isn't it true, in fact, that the facilities
management department for the County of Riverside employs
civil engineers?
13

A 	I believe they do.
Q 	Okay, and isn't it true, in fact, that the waste
management department for the County of Riverside employs
civil engineers?
A 	I believe they do.
As the ALJ 2 points out, the County has had open associate civil engineer positions in
the Flood Control Department where Brewington had prior experience. Moreover, although
the civil engineer classification series was eliminated in the Department of Building and
Safety, a new plans examiner classification series had been created for that department. As the
ALJ 2 also notes, the salary range for the associate civil engineer classification was equivalent
to a plans examiner V. Brewington remained in the associate civil engineer classification at
the time of his termination, but his last assignment was as a grading plans examiner. The
County had assigned him a business card that identified his title as grading plans examiner.
Brewington's performance evaluation of December 22, 2003, showed that he had been cross-
trained to perform a wide variety of work. As the ALJ 2 concluded:
Clearly, Brewington should have been able to qualify for one of
the five levels in the Plans Examiner series, especially since one
of the levels was a trainee/entry level.
Even had the County been able to prove at the compliance hearing that it had no
positions available when the County first came under the reinstatement order, the County
would still have been required to comply with the reinstatement order with the next available
substantially equivalent opening, such as the newly created plans examiner classification
series. (Santa Clara Unified School District (1985) PERB Decision No. 500, proposed
decision, p. 44.) The problem, however, is not that the County has lacked the opportunity to
comply with the Board's order to reinstate Brewington. Instead, the County decided from the
start that the layoff of February 13, 2008, relieved the County of its legal obligation to do so.
14

In sum, the County has shown insufficient understanding of the seriousness of its unfair
practice violation and the consequences of its failure to comply with the Board's reinstatement
order. Termination of employment is the most severe form of adverse action an employer can
take against an employee. When a termination is found to have been unlawfully motivated, as
it was here, a reinstatement order serves an important public policy purpose. As the court
stated in NLRB v. Mall Tool Co. (7th Cir. 1941) 119 F.2d 700:
We recognize that a reinstatement order is not merely a means of
vindication or of restitution of private rights and that the policy of
the act, in behalf of the public welfare, requires that coercive
effects of discrimination upon all employees be dissipated by
means of reinstatement, where the act so authorizes.
(Id. at p. 703.)
Not once did the County contact Brewington to discuss the reinstatement order, to
assist him in determining his options or to negotiate a fair resolution of the issue, let alone to
make him a valid offer of reinstatement. The County could have offered Brewington a
substantially equivalent job anywhere in the many departments and agencies within County
government. Instead, the County did nothing. In conclusion, we agree with the ALJ 2 that the
County has failed to comply with the Board's reinstatement order and none of the County's
arguments are of any avail.
The County's Legal Authorities
None of the cases cited by the County stands for the proposition that the County's
layoff of February 13, 2008, cancels out the reinstatement order.9 The County quotes the
following passage from Ackerman v. Western Electric Company, Inc. (N.D. Cal. 1986)
643 F.Supp. 836: "A wrongfully terminated employee is not entitled to back pay for a period
9 The County's cases on the issue of speculative damages in breach of contract matters
are inapposite to the issue before us and will not be discussed.
15

when he or she would not have been on the job in any event for a reason unrelated to the
unlawful conduct of the employer." (Id. at p. 854.) That quote is taken from a section of the
court's opinion on back pay. Reinstatement and front pay were addressed by the court in a
different section of the opinion. According to the court in Ackerman, where reinstatement is
not "feasible," front pay may be awarded. The court awarded plaintiff front pay for a periodof
three years, computed at the rate of net back pay payable under the back pay order, in lieuof
reinstatement. As the Ackerman case demonstrates, back pay and reinstatement are two
separate remedies. While the ALJ 2 found that the County complied with its initial back pay
obligation under item four of the Board's order by paying Brewington through the date of the
layoff, he properly recognized reinstatement under item three of the Board's order as a distinct
and separate issue with its own additional back pay consequences for failure to comply. Also,
Ackerman serves to remind us of the proper focus in these proceedings, the County's unlawful
conduct. 	As the court held:
Finally, since the Company's unlawful conduct has created the
necessity for this back pay judgment, any uncertainties in
determining what an employee would have earned but for the
discrimination should be resolved against the discriminating
party.
(Ibid., internal citations and quotation marks omitted.)
The County's reliance on Blackburn v. Martin (4 th Cir. 1992) 982 F.2d 125 is equally
misplaced. The court's statement that the plaintiff "should not recover damages for the time
after which his employment would have ended for a nondiscriminatory reason" was made in
the context of back pay liability, not reinstatement. The issue in NLRB v. Master Slack and/or
Master Trousers Corp (6 th Cir. 1985) 773 F.2d 77, also concerned back pay awards, not
reinstatement, and therefore the County's reliance on this case is similarly misplaced. Again,
the problem here is not the initial back pay award, which the County has satisfied; it is the
16

additional back pay award arising out of the County's failure to comply with the Board's
reinstatement order. In discussing the remedial authority of the National Labor Relations
Board, the equivalent of PERB for the private sector, the court stated:
The Board's discretion to fashion appropriate remedies for
violations of the Act is quite broad and its choice of remedies
should be set aside only if "it can be shown that the order is a
patent attempt to achieve ends other than those which can be
fairly said to effectuate the policies of the Act."
(Id at p. 83.)
The County relies on the following statement in Rivcom Corporation v. Agricultural
Labor Relations Bd (1983) 34 Cal.3d 743: "Under the circumstances, we construe the order as
self-limited to losses directly arising.from the unlawful conduct. That interpretation excludes
those former employees who would not have been rehired even under a legitimate hiring
policy." (Id at p. 773, italics in the original.) The Agricultural Labor Relations Board's
(ALRB) order, however, specifically recognized that the company's needs might not
accommodate all the former workers. The ALRB' s order therefore "directed that those who
could not be reinstated immediately be placed on a nondiscriminatory preferential-hiring list
approved by the regional director."10 Similarly here, too, the Board in County of Riverside,
supra, PERB Decision No. 2090-M recognized that Brewington's former position might no
longer exist, and planned for that contingency by allowing the County to comply with its order
by offering Brewington a "substantially similar position."
10 See also Quick Shop Markets, Inc. (1967) 168 NLRB 180, a case involving a store
reorganization resulting in the elimination of positions. The NLRB found that although
immediate reinstatement was not possible, the affected employees "shall be offered
employment before any new employees are hired." (Id. at p. 190.)
17

The County also relies on Davis v. Los Angeles Unified School Dist. Personnel Com.,
supra, 152 Cal.App.4th 1122. In Davis, plaintiff was demoted, but before learning of his
demotion, commenced disability leave and remained unavailable for work. The Personnel
Commission found the demotion to be wrongful and ordered reinstatement to plaintiffs prior
position effective as of the date of the demotion. The issue was whether plaintiff was entitled
to full back pay for a period when he was not available for work due to a nonindustrial illness.
The court concluded that an employee is not entitled to earnings he or she would not have
received in any event and that the plaintiff was not entitled to immediate reinstatement given
that he was medically unable to return to work. The facts in Davis are distinguishable from the
facts here.
Given the court's definition of reinstatement as "synonymous with returning to work,"
Davis v. Los Angeles Unified School Dist. Personnel Com., supra, 152 Cal.App.4 th 1122, 1131,
it is unclear why the County cites this case in support of its position. The court in Davis would
not agree with the County here that "reinstating" Brewington in the County's computer system
for purposes of calculating its initial back pay liability qualifies as reinstatement in the true
sense of the word. The County's reinstatement obligation under item three of the Board's
order, as distinct from its back pay obligation under item four of the Board's order, will be
satisfied only when the County returns Brewington to the workplace and compensates him for
his actual work or Brewington rejects a valid offer of reinstatement. This is the meaning the
Davis court ascribed to the word "reinstatement."
18

Finally, the County relies on Beverly Hills Unified School District (1990) PERB
Decision No. 789 (Beverly Hills) because the Board found reinstatement to be an inappropriate
remedy in that case. As Brewington points out in his response to the exceptions, Beverly Hills
involved a temporary employee on an emergency credential who was lawfully terminated prior
to any unlawful act on the part of the school district. In contrast, Brewington' s termination
itself was the unlawful act. As the Board stated in Beverly Hills:
The District relies primarily on San Diego Community College
District (1988) PERB Decision No. 662 (appeal pending, Civ.
No. D009278), in which the Board declined to order
reinstatement or back pay where the illegal contracting out had
been preceded by an independent and lawful decision to lay
off....
We believe that the District's arguments with regard to San Diego
have merit. As in San Diego, in the present case, there was a
lawful decision to eliminate ... the affected teachers. The later
decision to review the OP by unilaterally contracting out ... is
much like the contracting out of certain foreign language courses
in San Diego that occurred after an earlier decision to stop
offering those courses ....
(Id. at p. 18, emphasis added.)
The County cites another series of cases for the proposition that the Board's
reinstatement order violates "basic requirements of the civil service process." A compliance
proceeding may not be used as an opportunity to re-litigate the underlying decision and order.
The sole question presented is whether the County complied with the Board's reinstatement
order. Whether the County agrees with the order is no longer of moment. The County availed
itself of the opportunity to challenge the Board's decision, and lost. The Board's decision and,
19

specifically as relevant to this discussion, the Board's reinstatement order in County of
Riverside, supra, PERB Decision No. 2090-M is final and subject to enforcement. 11
Modification of the ALJ' s Proposed Order
To remedy the County's failure to comply with the Board's reinstatement order, the
ALJ 2 proposed that the County be ordered to pay Brewington additional back pay from
December 31, 2009 forward, take as an offset $20,400, offer Brewington immediate
reinstatement to his former position or to a substantially similar position, and provide written
notification of the actions taken to comply with the ALJ 2' s order to the PERB General
Counsel. We adopt the ALJ 2' s order with one exception. The County's liability for
additional back pay shall be fixed as of the date the proposed decision in County of Riverside
(2009) PERB Decision No. 2090-M would have become final in the absence of the County's
unsuccessful appeal, which is May 20, 2008.
11 If there was ever a doubt as to PERB' s power to remedy an unfair practice with a
reinstatement order, it was resolved in McFarland Unified School Dist. v. Public Employment
Relations Bd. (1991) 228 Cal.App.3d 166. Similar to the County's civil service argument in
this case, the school district in McFarland argued that PERB's reinstatement order
impermissibly interfered with the school district's authority to decide whether to grant tenure
to a probationary teacher. The court held that PERB, pursuant to its statutory authority to
order reinstatement as a remedy for an unfair practice, may order a probationary teacher's
reinstatement to a tenured position upon its determination that an unfair practice resulted in
nonreelection. As the court held:
The initial determination regarding whether there has been an
unfair labor practice and what shall be the remedy is within the
exclusive jurisdiction of the PERB. (Gov. Code,§ 3541.5.) In
fashioning a remedy, the PERB has the express authority to order
reinstatement. (Ibid.) The fact that Stephens-Weaver will
automatically obtain tenure as a result of reinstatement does not
mean that the PERB is interfering with the District's authority to
establish and regulate tenure. It merely gives effect to the
determination that Stephens-Weaver would not have been denied
tenure but for her exercise of protected rights. The reinstatement
order was not in excess of the PERB' s authority.
20
(Id. at p. 169.)

The Board in County of Riverside, supra, PERB Decision No. 2090-M adopted
verbatim the ALJ 1's proposed order of April 25, 2008. The ALJ 1's proposed order included
"immediate reinstatement." In adopting that same language in its decision of December 31,
2009, the Board could only have meant for the word "immediate" to refer to that point in time
in which the ALJ 1 intended for it to apply, i.e., the date of issuance of the ALJ 1's proposed
decision.
The Board has held that where a respondent elects to go to hearing and file exceptions
to a proposed decision, the respondent runs the risk that exhaustion of the Board's
administrative procedures will increase its liability for back pay in the event its appeal is
unsuccessful. (Chula Vista Elementary School District (2011) PERB Decision No. 2221.)
Such is the case here. The County has been on notice of the potential consequences of its
conduct since receipt of the ALJ 1's proposed decision of April 25, 2008. By choosing to
appeal rather than offer Brewington "immediate reinstatement," the County ran the risk that its
liability would grow.
It is the Board's responsibility to enforce the labor laws of the State of California and to
protect employees in the exercise of rights guaranteed to them under these laws. If we were to
fix liability based on the Board's decision of December 31, 2009, rather than the ALJ 1's
proposed decision, we would in effect be requiring Brewington to bear the consequences of the
County's unsuccessful appeal. These consequences are the County's, and the County's alone.
CONCLUSION
In sum, we agree with the ALJ 2 that the County failed to comply with the Board's
reinstatement order in County of Riverside, supra, PERB Decision No. 2090-M. To comply
with the Board's order, the County is required to reinstate Brewington to his former position of
employment or, if that position no longer exists, then to a substantially similar position. An
21

immediate, full and unconditional offer of reinstatement by the County will cap its liability for
the additional back pay award, a back pay award that we emphasize was not inevitable but only
made necessary by the County's ongoing failure to comply in full with the Board's order. 12
ORDER
Upon the findings of fact and conclusions of law in this case, and the entire record, it is
found that the County of Riverside (County) failed to comply with the order in County of
Riverside (2009) PERB Decision No. 2090-M, by failing to offer John Brewington
(Brewington) immediate reinstatement to his former position of employment or, if that position
no longer existed, then to a substantially similar position. Additionally, it is found that
Brewington satisfied his duty to mitigate damages, but that the County may offset $20,400
from the amount owed to Brewington.
Pursuant to the Meyers-Milias-Brown Act (MMBA), section 3509(a) and
section 3541.3(i) and (n) of the Government Code,it hereby is ORDERED that the County, its
governing board and its representatives shall:
A. 	TAK.ETHE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA AND THE BOARD'S
PRIOR ORDER IN COUNTY OF RIVERSIDE (2009) PERB DECISION
NO. 2090-M:
1. 	Pay Brewington his salary and restore his benefits at the Associate Civil
Engineer classification level from May 20, 2008, forward until he is offered immediate
reinstatement to his former position of employment or, if that position no longer exists, then to
12 The County's request for oral argument is denied. The Board historically denies
requests for oral argument when an adequate record has been prepared, the parties had ample
opportunity to present briefs and have availed themselves of that opportunity, and the issues
before the Board are sufficiently clear to make oral argument unnecessary. (Antelope Valley
Health Care District (2006) PERB Decision No. 1816-M; Monterey County Office of Education
(1991) PERB Decision No. 913.)
22

a substantially similar position. Pay interest on such payments at the rate of 7 percent per
annum.
2. 	Such payment of salary and restoration of benefits set forth in
paragraph 1 may be offset by $20,400 as the amount of income earned by Brewington in
calendar years 2006 and 2007.
3. 	Offer Brewington immediate reinstatement to his former position of
employment or, if that position no longer exists, then to a substantially similar position.
4. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or her designee. All reports regarding compliance with this Order shall be
concurrently served on Mr. Brewington or his representative.
Members Winslow and Banks joined in this Decision.
23

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
R
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 (County) failed to comply with the order in County of Riverside (2009) PERB
Decision No. 2090-M, by failing to offer John Brewington (Brewington) immediate
reinstatement to his former position of employment or, if that position no longer existed, then
to a substantially similar position. Additionally, it is found that Brewington satisfied his duty
to mitigate damages, but that the County may offset $20,400 from the amount owed to
Brewington.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MEYERS-MILIAS-BROWN ACT
AND THE BOARD'S PRIOR ORDER IN COUNTY OF RIVERSIDE (2009)
PERB DECISION NO. 2090-M:
1. 	Pay Brewington his salary and restore his benefits at the Associate Civil
Engineer classification level from May 20, 2008 forward until he is offered immediate
reinstatement to his former position of employment or, if that position no longer exists, then to
a substantially similar position. Pay interest on such payments at the rate of 7 percent per
annum.
2. 	Such payment of salary and restoration of benefits set forth in
paragraph 1 may be offset by $20,400 as the amount of income earned by Brewington in
calendar years 2006 and 2007.
3. 	Offer Brewington immediate reinstatement to his former position of
employment or, if that position no longer exists, then to a substantially similar position.
Dated: --------- COUNTY OF RIVERSIDE
By: ------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORK.DAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
JOHN BREWINGTON,
Charging Party,
V.
COUNTY OF RNERSIDE,
Res ondent.
UNFAIR PRACTICE
CASE NO. LA-CE-261-M
PROPOSED DECISION
(January 30, 2013)
COMPLIANCE
Appearances: The Leahy Law Firm, by Alan J. Leahy and Brent L. Valdez, Attorneys, for
John Brewington; The Zappia Law Firm, by Edward P. Zappia, Attorney, for County of
Riverside.
Before Shawn P. Cloughesy, Chief Administrative Law Judge.
PROCEDURAL HISTORY
On December 31, 2009, the Public Employment Relations Board (PERB or Board)
issued County of Riverside (2009) PERB Decision No. 2090-M (Riverside). The County
appealed the matter. The case had a lengthy appellate history, but on March 30, 2011, PERB's
decision became final.
In Riverside, the Board held that the County of Riverside (County) unlawfully
terminated John Brewington (Brewington) for alleged dishonesty and threats of workplace
violence, as well as taking other actions against him, because of his exercise of protected
activities and thereby violated the Meyers-Milias-Brown Act (MMBA).1 In part, the Board's
decision ordered the County to take the following affirmative actions to effectuate the policies
oftheMMBA:
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

1. 	Rescind Brewington' s termination;
2. 	Expunge from its records, ...
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 him to 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.
In short, the parties contest whether the County owed any obligation (or further
obligation) of reinstatement to Brewington pursuant to the December 31, 2009 Riverside -Order
after the February 13, 2008 layoffs of all Associate Civil Engineers in the County's
Transportation and Land Management Agency (TLMA), Division of Building and Safety
(DBS),2 and whether Brewington satisfied his duty to mitigate damages.
Complaint and Proposed Decision
On August 21, 2006 and November 28, 2006, the Acting General Counsel issued a
complaint/amended complaint, alleging, inter alia, that Brewington was terminated for his
exercise of protected activities. Formal hearings were held between October 22 and December
6, 2007 and briefs were filed by February 22, 2008. The administrative law judge (ALJ)
assigned to the case issue~ her proposed decision on April 25, 2008. The proposed order
directed the County to perform the same affirmative acts as later set forth in Riverside.
2 The_ALJ agrees with the County that its backpay (versus reinstatement) obligation
pursuant to paragraphs 1 and 4 were cut off by the February 13, 2008 layoffs. The backpay
obligation does not have the same or si_milar contingency language as the reinstatement order
of"[ o]ffer Brewington immediate reinstatement to his former position of employment or, if
that position no longer exists, then to a substantially similar position ... " (Emphasis added.)
2

Board Decision and Appellate History
A Statement of Exceptions was filed on June 11, 2008.3 The Board issued its decision
on December 31, 2009. On January 28, 2010, the County filed a Verified Petition for Writ of
Extraordinary Relief and Request for Immediate Stay with the California Court of Appeal,
Fourth Appellate District, seeking review of PERB 's decision. 4 The court assigned the matter
case number E050056. On February 24, 2011, the Court of Appeal issued an order summarily
denying the petition. A petition for rehearing was filed and later denied on March 30, 2011.
Compliance History
On March 9, 2011, the PERB Office of the General Counsel requested that the County
file an initial statement of compliance. On April 27, 2011, the County responded stating it
would comply with the Riverside Order and noted some issues were still outstanding. A
Compliance Status Conference was set for June 3, 2011. After this conference, the parties
disputed whether paragraphs 3 and 4 of the Riverside Order had been satisfied. On
November 2, 2011, the PERB Office of the General Counsel transferred the compliance matter
to the PERB Division of Administrative Law in order that a hearing be conducted on the
outstanding compliance issues.
A formal hearing was conducted on February 7, 2012. At the hearing, both parties
agreed that the remaining issues centered on whether the County complied with paragraphs 3
3 One of the exceptions, Exception 15, challenges the ALJ's order for reinstatement as
Brewington stated that he was going to voluntarily leave his County job and had no interest in
returning to th~ County. The ALJ takes official notice of the County's Statement of
Exceptions filed in this matter. By the time the exceptions were filed, the February 13, 2008
layoffs had occurred.
4 The appellate court docket did not reflect that the Request for Immediate Stay was
ever granted.
3

and 4 of the Riverside Order. The matter was submitted for proposed decision upon the receipt
of reply briefs on April 20, 2012.
FINDINGS OF FACT
Brewington's Employment History
Brewington was hired by the County on June 7, 1984, as a Junior Civil Engineer
working for the Flood Control Department. On November 21, 1985, Brewington was
appointed as an Assistant Civil Engineer with the DBS.5 Since January 1986, Brewington
performed the duties of a soil grading engineer in the DBS. On April 23, 1998, Brewington
promoted to an Associate Civil Engineer position. Brewington transferred to the DBS Indio
office on October 13, 2005. Although his civil service classification remained as an Associate
Civil Engineer, his functional assignment was a soil grading plans examiner. Brewington was
terminated from his position as an Associate Civil Engineer on August 23, 2006.
The County offered Brewington's evaluations from May 5, 1987 to December 22, 2003
to establish that Brewington would not have been hired ifhe applied and competed for
vacancies as they came open with the County after the February 13, 2008 layoffs of Associate
Civil Engineers within DBS.6 These evaluations were kept by the County in Brewington's
personnel file.
On May 5, 1987, Brewington received a performance report criticizing how he belittled
and berated other staff, verbalized constantly, and created problems instead of solving them.
On October 10, 1987, Brewington received a performance review informing him that he had
5 The TLMA is an umbrella agency over five departments: DBS, Transportation,
Environmental Programs, and Code Enforcement and Planning.
6 The County also submitted documents which supported the termination action against
Brewington. As those charges were deemed to be retaliatory under the MMBA and were
supposed to be expunged, they will not be considered for purposes of the County's argument
that he would be less competitive, if he applied for other positions with the County.
4

improved his ability to get along with others. On October 26, 1995, Brewington received a
performance appraisal that he could be harsh when explaining what was required of staff and
the public. On July 2, 1996, Brewington received a performance review which criticized him
about the amount of work produced, not being a team player, being insensitive to his
subordinate staff's needs and not accepting his supervisor's decisions. On July 18, 1996,
Brewington received a performance evaluation which was critical of his criticisms of his
supervisor. On October 30, 2000, Brewington received a performance review which was
critical of his ability to be sensitive of other staff's point of view.
On December 22, 2003, Brewington received an annual performance review with
ratings from meeting expectations to exceeding expectations. The Senior Civil Engineer
evaluations included the following comments:
J ohri has· a friendly disposition with most staff as well as the public. He is also
familiar with many staff members at Flood Control, Transportation, Planning
and Survey. This familiarity is often helpful in the determination of certain
aspects of project status. His relationship with the private sector professionals,
developers and other owners seem to vaty with the degree of insistence on
proper documentation and the completion of technical analysis and stated
corrections pertaining to the development proposals. Nonetheless, some
consulting engineers actually appreciate his ability to focus on the major plan
check issues and other evaluation situations and his willingness to discuss.
With his cross training background in Flood Control, Transportation, Building
& Safety and knowledge of Planning (Land Use) requirements, he is well
qualified and has proved to be excellent at training other staff - most recently:
engineering technicians, junior engineer[ s] and engineering interns.
(Emphasis added.)
Pertinent Memorandum of Understanding Sections
The Memorandum of Understanding (MOU) between the Service Employees
International Union (SEIU) Local 1997 and the County for the Professional Unit between 2006
and 2009, Article XVI "Layoff and Reinstatement," provides in pertinent part:
5

Section 2. 	Reduction in Force
A. 	When it becomes necessary to reduce the work force in a department, the
department head shall designate the job classification(s) to be affected, and
the number of employees to be eliminated within the department. ...
B. 	Layoffs of employees within each classification shall be based primarily on
date of hire with the least senior employees being laid off first. ...
[,r ... ,0
Section 5. 	Departmental Reinstatement List
A. 	The name of every regular employee who is laid off for longer than one (1)
pay period due to a reduction in force, ... shall be placed on Departmental
Reinstatement Lists for all classifications of a currently equal or lower
salary range in which the employee ever held regular status, provided the
department is allocated any positions of such classification.
B. 	Any vacancy to be filled within a department shall be offered first, in order
of greatest seniority, to individuals on the Departmental Reinstatement List
for the classification of the position to be filled.
C. 	An employee's name shall be removed from Departmental Reinstatement
Lists, for specific classifications for any of the following reasons:
1. 	The expiration of two (2) years from the date of placement on the li~t.
Departmental Layoffs and Reorganization
On January 23, 2008, DBS sent a "Notification of Layoff' to lay off two Subdivision
Engineers, 7 two Senior Engineers, seven Associate Civil Engineers, one Assistant Engineer,
and two Junior Engineers due to decreased workloads and departmental revenues. The layoffs
were supposed to be effective the close of business on February 13, 2008. The notification
listing the names of the least senior employees stated they would be placed on a departmental
reinstatement list and that any position vacancies within the department would be offered first
to persons on this list in order of seniority. All seven Associate Civil Engineers scheduled for
7 The Subdivision Engineer is the supervisorial series for the Associate Civil Engineer.
6

layoffs were laid off 	Brewington was more senior than all seven Associate Civil Engineers
laid off. The only engineer in DBS not -placed on the layoff list was Subdivision Engineer
Kack Sung (Sung) who was hired with the County on November 1, 1983 and was more senior
than Brewington. After the layoffs, the Associate Civil Engineer position was eliminated from
DBS.
Based upon a reorganization within DBS, the DBS decided to create a new
classification series: the Plans Examiner series. On January 29, 2009, the County established
the series specification of Plans Examiner (I through V), which provided in pertinent part:
PLANS EXAMINER I
CLASS CONCEPT
Under close supervision, to perform the most routine phases of technical and
analytical plans examiner work in the receipt and review of plans for buildings
and structures, to assist the public counter in issuing permits, to check plans for
conformity to uniform building codes, ordinances, and administrative orders, to
participate in training in order to learn more responsible work; and to do other
work as required.
This class is the trainee/entry level in the Plans Examiner series.
PLANS EXAMINER II
CLASS CONCEPT
Under general supervision of a licensed engineer, to continue learning plans
examiner practices, procedures, and methodologies in the plans examiner series.
To assist the public counter in issuing permits, to inspect the more complex
projects, review water quality plans and permit requirements, and to participate
in training in order to continue to learn more responsible work; and to do other
work as required.
This is the intermediate working level class of the Plan[s] Check Engineering
senes ....
PLANS EXAMINER III
CLASS CONCEPT
Under direction, to perform difficult and complex plans examiner practices,
procedures and methodologies in the plans examiner series. To examine
residential, commercial, industrial building and grading plans, to assist the
7

public counter with code questions, review water quality plans, and permit
requirements, and to do other work as required.
The Plans Examiner III class is the fully-qualified working level in the
professional Plans Check Engineering series and is characterized by a variety of
regular and unusual assignments, following standard staff procedures without
instruction ....
PLANS EXAMINER IV
CLASS CONCEPT
.Under direction, to perform the most difficult and complex plans examiner
practices, procedures and methodologies in the plans examiner series. To
examine professional structural or grading engineering work; makes structural
engineering analysis of proposed commercial, industrial, and a variety of
buildings and structures. This work is characterized by the requirement for
independently performing the full scope of building code and engineering
review, with full responsibility for any combination ofbuilding code review,
planning, specification writing, engineering plan review, or inspection necessary
for the completion of projects.
This i's the advanced working and lead level in the Plans Examiner series ....
PLANS EXAMINER V
CLASS CONCEPT
Under direction, to assist in planning, organizing and managing a group of
professional and support plans examiner personnel or perform difficult and
varied professional civil engineering work in the review of building or grading
plans; and to do other work as required.
Positions in this class are characterized by their responsibility for managing and
coordinating the activities of a major section within the plans examiner division,
or a district office or performing at the fully qualified professional and civil 	·
engineering review work.
(Emphasis added.)
DBS Director Mike Lara (Lara) stated that the new classification series was created so
that the Plans Examiner's duties included soil grading plan review, as well as building code
and structural review. The Plans Examiners would replace the Associate Civil Engineers who
exclusively reviewed soil grading plans or exclusively reviewed building codes and structural
plans. In a sense, two assignments were combined into one to better cross-train those
8

employees. The salary range for an Associate Civil Engineer was equivalent to a Plans
Examiner V.
The 2009-2010 County Budget report reflected that DBS had authorization to hire three
Plans Examiner IV's and two Plans Examiner V's. Of the seven Associate Civil Engineers
who were laid off only two were rehired/hired back by DBS: Chandras Desai (Desai) was
hired as a Plans Examiner Von May 7, 2009 and Hua-Hsing Wu (Wu) was rehired in the
County's Temporary Assignment Program (TAP)8 as an Associate Civil Engineer on
February 28, 2008, and then hired as a Plans Examiner V on March 26, 2009. When Desai and
Wu were hired, they were not hired as a part of the layoff reemployment process because the
Plans Examiner series were new positions for which employees had to apply and compete.9
When Lara evaluated candidates during the competitive hiring process, he reviewed the
resumes of the candidates. Lara did not believe that Brewington possessed the needed
experience of building code and structural plan review for the Plans Examiner position.
Fiscal State of the County
The County's budget reports from the midyear 2008-2009 through 2010-2011 all reflect
that the County was facing cost overruns and declining revenues. Planned cuts in the County's
budget included staff reductions and possible layoffs, if staff attrition had not already reduced
personnel costs. Additionally, individual departments experienced across the board cuts of
5 percent and 10 percent. By the 2010-2011 fiscal year, the County's long-term outlook for
8 The TAP is a personnel staffing agency operated by the County where the County can
hir e a temporary employee through the TAP program for a period of up to six months.
9 The merit system competitive hiring process begins when the County Human
Resources Department performs a recruitment based upon current resumes in the County's
Resull1:ix system, of which the most qualified applicants are placed. on a certified list which are
then referred to the hiring department for interviews. The resumes are screened to determine
whether the candidate meets the qualifications of the position. To comply with the County's
Civil Service System, all appointments must be based on merit and ability~
9

discretionary revenue improved from the prior two fiscal years, but the structural deficit was
expected to top $130 million and further layoffs were anticipated.
As of August 8, 2011, there were 30 filled Associate Civil Engineer positions with the
County. Nine of those positions were vacant, but the County was not recruiting and hiring for
those positions at the time. The decision whether to fill a vacant position or leave it unfunded
was a budgetary decision made at the departmental level as each .department determined its
own budget. The TLMA's Transportation Department, and the Facilities Management
Department and the Waste Management Department all employed civil engineers.
Mitigation and Offset
The County contracts with a vendor, "The Work Number," to provide a service to
potential employers so they may obtain the dates of employment of former or current County
employees seeking employment from them. The Work Number does not provide information
as to how a County employee was separated or performed while at work.
Since Brewington' s termination in August 2006, he did not send out any resumes to
other public or private sector employers. Brewington explained that he did not do so as private
sector employers were aware of his termination and told him not to apply as they would not
hire him and jeopardize their relationship with the County. Brewington contemplated applying
with the federal government, but did not think he could pass the backgrounds check. In 2005
and 2006, residential and commercial development in Riverside County was active.
On September 8, 2006, Brewington started Brewington Group Incorporated, an
engineering company, and rented an office in Corona. He believed engineering firms would
not hire him and it was best that he obtain his own contracts for work. He tried to get work by
procuring contracts with firms that had projects with different counties. During tax year 2006,
Brewington received a W-2 reporting $6,970.00 in income and during tax year 2007,
10

Brewington received a W-2 reporting $13,430.00 in income. He always worked more than
40 hours a week.
Brewington received no taxable wages in 2008 and 2009. By 2009, Brewington was
trying to salvage the contracts that he had and the business ran into serious debt. By
February 2010, he could not afford to continue to accumulate debt. Brewington continued to
try to find work with other firms through his personal contacts, but the finns would not hire
him.
Order for Reinstatement and Current Engineer Openings
When the County processed Brewington' s backpay check pursuant to the
December 31, 2009 Riverside Order, the human resources office "reinstated" Brewington to his
former position, Associate Civil Engineer, back to August 23, 2006 and p~id him back salary
and back benefits from that date until February 13, 2008, as the County had laid off all
Associate Civil Engineers within DBS on that day. This "reinstatement" was not offering
Brewington employment/reemployment, but a personnel transaction made in the County's
human resource management system, PeopleSoft, which allowed the County to process a·back
salary and back benefit award.
Since the issuance of the December 31, 2009 Riverside Decision, Brewington has never
been contacted by the County and offered to return to employment to his former position or a
substantially similar position.
As of the date of the hearing, February 7, 2012, no civil engineering positions were
available in TLMA and DBS, but there were civil engineer openings in the Flood Control
Department. County Human Resources Manager Tiffany Bates (Bates) stated there were not
any comparable positions open or funded in TLMA also. Bates explained that there were three
Associate Civil Engineer or similar openings in the Flood Control Department in 2011. Of the
11

three employment offers that were made for these positions, two candidates declined the offers
and the Flood Control Department offered them to others on the certified list. Interviews were
being conducted with candidates on the certified list for the current civil engineering position
opening in Flood Control Department.
ISSUES
1. Did the County comply with the December 31, 2009 Riverside Order to offer
Brewington immediate reinstatement to his former position of employment or, if that position
no longer existed, to a substantially similar position?
2. Did Brewington satisfy his duty to mitigate damages?
CONCLUSIONS OF LAW
Statutory Authority
Pursuant to MMBA section 3509(a) and Government Code section 3541.3(i) and (n),
PERB is given the authority to:
(i) 	To investigate unfair practice charges or alleged violations of this
chapter, and take any action and make any determinations in respect of
these charges or alleged violations as the board.deems necessary to
effectuate the policies of this chapter, ...
(n) 	To take any other actions as the board deems necessary -to discharge its
powers and duties and otherwise to effectua.te the purposes of this
chapter.
(Emphasis added.)
Additionally, Govem_ment Code section 3541.S(c) provides:
The board shall have the power to issue a decision and order directing the
offending party to cease and desist from the unfair practice and to take such
affirmative action, including but not limited to the reinstatement of employees
with or without backpay, as will effectuate the policies of this-chapter.
(Emphasis added.)
12

Challenges to the Board's Authority to Order Reinstatement
The County raised numerous challenges to the appropriateness of the Riverside Order
that it be compelled to reinstate (make a valid offer of employment/reemployment to)
Brewington after December 31, 2009. Those challenges center on the reinstatement order
being inappropriate as the County's obligation to make an offer of employment/reemployment
was cut off after the February 13, 2008 layoff as it was violative of the County's Civil Service
system to hire employees based upon merit and ability; 10 as violative of the MOU' s
management rights clause in which the County maintains the right to ·determine the methods,
means and personnel by which County government operations are to be conducted and
administer the Local Merit System; 11 as violative of California Constitution Article XI sections
10 According to the County, the Riverside County Code 440~ section 6(a), which was
relevant to the time in question, provided in pertinent part:
Section 6. Employment Procedures
a. 	The personnel administration under this ordinance is designated a merit
system. Appointments and promotions shall be made on the basis of
merit and ability. Each officer shall appoint all necessary employees
allowed for his or her department by this ordinance only from a~ong
persons certified to him by the Human Resources Director as eligible for
the respective positions ....
c. Officers shall appoint only persons certified to them by the Human Resources
Director as eligible for the particular position ....
11 MOU Article III, section E provides in pertinent part:
The County retains, among other management rights, the exclusive right to
determine the methods, means, and personnel by which County government
operations are to be conducted, ...
It also retains the sole right to administer the Local Merit System, to classify or
reclassify positions, add or delete positions or classes; to establish standards for
employment, promotion, and transfer of employees; ... to establish work
schedules and work assignments, ... and to relieve its employees from duty for
lack of work or other legitimate reasons.
13

l(b) and l l(a); 12 as violative of Riverside County Code 5.A.;13 and, as violative of Riverside
County Code Section 6. 14 All of these arguments were either raised in the appellate court
12 California Constitution Article XI, sections l(b) and l l(a) provided in pertinent part:
1(b) . . . The governing body shall provide for the number, compensation, tenure,
and appointment of employees.
11 (a) The Legislature may not delegate to a private person or body power to
make, control, appropriate, supervise, or interfere with county or municipal
corporation improvements, money, or property, or to levy taxes or assessments, or
perform municipal functions.
13 According to the County, the RCC section 440, Section 5.A., which was relevant to
the time in question, provided in pertinent part:
Section 5. POSITIONS ALLOWED
5.A. · AUTHORIZED POSITIONS
(1) Position Control. 	No person shall be appointed to a position in any
department until the position has been allowed. The number of positions
allowed to be filled in each department shall be allocated by job class and
employment type (e.g., regular, seasonal, temporary, or Per Diem) in the
approved department budget. ...
(2) Change in Allocated Positions. 	The Human Resources Director, with the
approval of the County Executive Officer, may adjust the number of positio~s
allocated to a department, without Board of Supervisors action, when no
additional funding is required. . . . Other changes in the number of positi9ns,
those requiring additional funding, may be requested by department heads via
Form 11 submitted to the Board of Supervisors ....
14 According to the County, the County's Employee Relations Resolution relevant to
the time in question, provided in part:
Section 6. COUNTY RIGHTS
a. 	The following rights and functions are vested exclusively in the County:
3. 	To exercise control and discretion over its own organization and
operations.
14

proceedings or should have been raised in the appellate court proceedings15 challenging the
December 31, 2009 Riverside Decision. 16 Additionally, the County challenged the ALJ's
reinstatement order in its Statement of Exceptions, but the Board did not change the order.
When the petition for rehearing was denied on March 30, 2011, the Riverside Order
became final and the County will not therefore be allowed to bring these arguments forward to
collaterally attack the Riverside Order again. T_he purpose of the compliance procedures is to
determine whether the County has· complied with the final orders of the Board (PERB
Regulation 32980), not whether the Board had the authority to issue the order 1n the first place.
For these reasons, these collateral attacks on the Riverside Order are rejected and will not be
considered.
Reinstatement to Former or Substantially Similar Position
The standard remedy for a discriminatory discharge is reinstatement as it best
effectuates the purposes and policies of the Act because it restores the status quo prior to the
5. 	To relieve its employees from duty because oflack of work or for other
legitimate reasons.
6. 	To determine the methods, means and personnel by which its operations
are to be conducted, including the performance thereof by contract, and
to determine workloads and staffing patterns.
7. 	To prescribe the qualifications for employment and determine whether
they are met.
8. 	To take all other action except as clearly and expressly otherwise
provided for by or pursuant to this Resolution.
15 In its Verified Petition for Writ of Extraordinary Relief, the County alleged that
PERB' s award of reinstatement conflicted with the County's authority to manage its financial
and management affairs granted by the California Constitution and conflicted with the
County's management rights as set forth in its MOU and Employee Relations Resolution. The
County had every opportunity to challenge PERB' s reinstatement order on other grounds, but
did not do so.
16 Official notice was taken of PERB' s hearing file and appellate litigation file.
15

unlawful action. (Los Angeles Unified School District (2001) PERB Decision No. 1469.) As a
logical extension to PERB' s authority to order reinstatement pursuant to Government Code
section 3 541.5( c) and its authority to "take any other actions as the board deems necessary to
discharge its powers and duties and otherwise to effectuate the purposes of this chapter,"
pursuant to Government Code 3541.3(i) and (n), the Board has express authority to tailor a
reinstatement order to best fit or remedy the violation. In the instant case, the final Board
order directed the County to:
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 him to all earned benefits as of August 23, 2006;
(Emphasis added.)
To order a violating employer to offer employment/reemployment or reinstatement to
one's former position or to a substantially similar position if the former position no longer
exists (or the use of comparable language), has been ordered previously in Fair.field-Suisun
Unified_School District (2012) PERB Decision No. 2262, p. 19 (Fair.field-Suisun) and Rainbow
Municipal Water District (2004) PERB Decision No. 1676-M, p. 2 (Rainbow). 17 This type of
reinstatement order is also not unusual in cases before the National Labor Relations Board
(NLRB), where it is expected that a period of time will pass between the date of termination
and the date of the adjudication of the allegations of retaliatory termination (Starr Group
Home, Inc. (2011) 357 NLRB No. 100, p. 2; Camaco Lorain Mfg. Plant (2011) 356 NLRB No.
143, pp. 4-5; L.B.&B: Associates, Inc., (2006) 346 NLRB No. 92, pp. 1027 and 1032). In this
case, as Brewington was terminated and it took time to adjudicate his complaint, it is
17 In Rainbow, PERB used the language "offering him reinstatement to the position of
Value Maintenance Technician, or if that position no longer exists to an equivalent position
... " (Rainbow, supra, PERB Decision No. 1676-M, p. 2.)
16

understandable why PERB crafted the rei:r;istatement order in the manner which it did, as it had
done so previously in Fairfield-Suisun and Rainbow.
The County argued that it satisfied the reinstatement order when it "reinstated"
Brewington by performing a personnel transaction rescinding its termination of Brewington on
August 23, 2006. Such an interpretation of the term "reinstatement" cannot be the meaning of
reinstatement in the Riverside Order. If this were the case, there would be no need to place in
the order that Brewington be offered reinstatement "to his former position of employment or, if
that position no longer exists, then to a substantially similar position." (Emphasis added.)
Under the County's interpretation of reinstatement, a discriminatee could always be reinstated
to his former position as they would only need to make a personnel transaction in the payroll
database and the "substantially similar position" phrase would be rendered surplusage.
Contrary to the County's assertions, reinstatement means to make a valid offer of
employment/reemployment which occurred after the date of termination. (Fairfield-Suisun
Unified School District, supra, PERB Decision No. 2262, p. 19;18 Los Angeles Unified School
District, supra, PERB Decision No. 1469, pp. 3-5.) It is undisputed that the County never
made a valid offer of employment/reemployment to Brewington and after December 31, 2009,
the County had open Associate Civil Engineer positions. While these open positions were in
departments other than DBS such as the Flood Control Department, Brewington had prior
experience in Flood Control. Additionally, while Lara did not believe Brewington to have the
experience on building code and structural review, his December 22, 2003 evaluation
18 Specifically, in Fairfield-Suisun, p. 19, PERB described in the remedy section of the
decision to "offer Campbell immediate unconditional reinstatement to a position of equivalent
rank and stature as that held by Campbell prior to his termination ... " and to pay him interest
"from the date of his termination on March 25, 2010, until the date the offer of reinstatement is
made to him." (Emphasis added.) Based on this language in Fairfield-Suisun, reinstatement is
not a personnel transaction back to the date of termination, but an offer of
·employment/reemployment after the termination date.
17

mentioned his cross-training in those areas. Clearly, Brewington should have been able to
qualify for one of the five levels in the Plans Examiner series, especially since one of the levels
was a trainee/entry level.
The County also argued that offering Brewington employment/reemployment after the
February 13, 2008 layoff was contrary to PERB precedent in.Beverly Hills Unified School
District (1990) PERB Decision No. 789 (Beverly Hills USD) and San Diego Community
College District (1988) PERB Decision No. 662 (San Diego CCD). In Beverly Hills USD and
San Diego CCD, the Board found a reinstatement remedy of the ALJ to be inappropriate and
modified the remedy to eliminate the reinstatement order due to an intervening event of
subcontracting job duties and a layoff. However, in this case the Riverside Order specifically
used the language to "[ o ]ffer Brewington immediate reinstatement to his former position of
employment or, if that position no longer exists, then to a substantially similar position" which
accounts for an intervening event in which a discriminatee' s former position no longer exists.
To cutoff Brewington' s reinstatement rights as set forth in the Riverside Order by the
February 13, 2008 layoff, would strip the contingency language in the Order. A literal reading
of the Order allows someone who suffered retaliation of termination to maintain some type of
County employment which was at least substantially similar to his former position. Such a
remedy clearly effectuates the policies of the MMBA by making whole the public employee
who was wronged.
It is found that the County failed to comply with its duty to reinstate Brewington or
offer him employment/reemployment to his former position of employment or, if that position
no longer existed, then to a substantially similar position.
18

Duty to Mitigate Damages and Offset
Discriminatees have a·duty to mitigate losses resulting from an adverse employment
action, but the burden of establishing that a discriminatee failed in this duty rests on the
employer who committed the wrongful act. (Fresno County Office of Education (1996) PERB
Decision No. 1171 (Fresno).) As stated in Fresno:
In establishing a failure to mitigate, the employer must demonstrate that the
claimant failed to make efforts "consistent with the inclination to work and to be
self-supporting." [Citations omitted.] Claimants are not expected to seek a job
more onerous than the one from which they were removed but rather are
expected to seek a substantially equivalent job. [Citations omitted.]
(Ibid, adopted ALJ's proposed decision, p. 4.)
Attempting to go into business for oneself can also satisfy the discriminatee' s duty to
mitigate damages. As summarized in Lorge School (2010) 355 NLRB No. 94, p. 5:
It is well settled under Board precedent that self-employment is an adequate and
proper way for a discriminatee to attempt to mitigate loss of wages. [Citations
omitted.] There is no requirement that the self-employment be a financial
success. "The fact that a self-employed discriminatee is not successful in his
business does not demonstrate that he was not engaged in full-t_ime self-
employment because 'the principle of mitigation of damages does not require
success; it only requires an honest good-faith effort.'" [Citations omitted.]
It is understandable why Brewington decided to go into business for himself based
upon what was told him by engineering firms and the serious charges leveled against him by
the County. He worked more than 40 hours a week and made progress in the beginning.
Unfortunately, as time went on he accumulated more debt than profit and the business failed.
The County was not able to demonstrate that Brewington d~d not exert honest good-faith
efforts to mitigate his damages and it is found that he met his duty to mitigate damages.
However, while the County was unable to demonstrate that Brewington failed to meet
his duty to mitigate damages, the County may offset from its backpay liability any amounts the
discriminatee received in mitigation, typically "interim earnings" from other employment
19

between the time of layoff and the time of the offer of reinstatement. (Fresno County Office of
Education ( 1996) PERB Decision No. 1171; California School Employees Association v.
Personnel Commission (1973) 30 Cal.App.3d 241; NLRB v. Brown & Root, Inc. (8th Cir.
1963) 311 F.2d 447.) It is undisputed that Brewington earned $20,400.00 during the 2006 and
2007 tax years which were reported to the Internal Revenue Service. The County is entitled to
set that amount off against monies it owes to Brewington.
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions oflaw, and the entire record in the
case, it is found that the County of Riverside (County) failed to comply with the order in
County of Riverside (2009) PERB Decision No. 2090-M, by failing to offer John Brewington
(Brewington) immediate reinstatement to his former position of employment or, if that position
no longer existed, then to a substantially similar position. Additionally, it is found that
Brewington satisfied his duty to mitigate damages, but that the County may offset $20,400.00
from the amount owed to Brewington.
Pursuant to MMBA sectio~ 3509(a) and Government Code section 3541.3(i) and (n), it
hereby is ORDERED that the County, its governing board and its representatives shall:
A. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT AND THE BOARD'S PRIOR
ORDER IN COUNTY OF RIVERSIDE (2009) PERB DECISION NO. 2090-M:
1. 	Pay Brewington his salary and restore his benefits at·the Associate Civil
Engineer classification level from December 31, 2009 forward until he is offered immediate
reinstatement to his former position of employment or, if that position no longer exists, then to
a substantially similar position. Such payment and restoration shall include an augmentation at
the rate of 7 percent per annum.
20

2. 	Such payment of salary and restoration of benefits set forth in
paragraph 1 may be offset by $20,400.00 as the amounts of income earned by Brewington in
calendar years 2006 and 2007.
3. 	Offer Brewington immediate reinstatement to his former position of
employment or, if that position no longer exists, then to a substantially similar position.
4. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the .Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent 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 Mr. Brewington or his representative.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
21

which meets the requirements of California Code of Regulations, title 8, section 32135,
subdivision (d), provided the filing party also places the original, together with the required
number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135,
subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
22