County of Riverside (PERB 2591MA)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 721,
Charging Party,
v.
COUNTY OF RIVERSIDE,
Respondent.
Case No. LA-CE-787-M
Request for Reconsideration
PERB Decision No. 2591
PERB Decision No. 2591a
December 18, 2018
Appearance: Rothner, Segall & Greenstone by Glenn Rothner and Jonathan Cohen, Attorneys,
for Service Employees International Union Local 721.
Before Winslow, Shiners, and Krantz, Members.
DECISION
KRANTZ, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on a request by Charging Party Service Employees International Union Local
721 (SEIU) for the Board to reconsider its decision in County of Riverside (2018) PERB
Decision No. 2591-M (Riverside). Specifically, SEIU asks us to modify one aspect of our
remedial order.
In Riverside, we found that Respondent County of Riverside (County) violated the
Meyers-Milias Brown Act (MMBA)1 and PERB Regulations2 by taking various adverse
1 The MMBA is codified at Government Code section 3500 et seq.
2 PERB’s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

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actions against County employee Wendy Thomas (Thomas), including placing her on
administrative leave and then terminating her employment, based upon her exercise of
protected rights. We ordered the County to take certain affirmative actions designed to
effectuate the policies of the MMBA, including: (1) to offer Thomas reinstatement to her
former position or, if that position no longer exists, then to a substantially similar position; and
(2) to make Thomas whole for lost benefits, monetary and otherwise, which she suffered as a
result of the County’s conduct, including back pay, plus interest at the rate of 7 percent per
annum, from the date of her discharge, January 10, 2013, to the date she is reinstated or
declines the offer of reinstatement. (Riverside, supra, PERB Decision No. 2591-M, pp. 18-19,
emphasis added.) SEIU argues that the Board’s decision contains a prejudicial error of fact by
calculating Thomas’s back pay entitlement from the date of her discharge, January 10, 2013,
rather than from six months earlier, July 21, 2012, when the County placed her on
administrative leave. Although Thomas was on paid administrative leave, SEIU contends that
Thomas lost additional earnings, including overtime pay, shift differentials, and holiday pay,
during the administrative leave period, and that it will establish the extent of such losses in
compliance proceedings, as necessary. (See PERB Reg. 32980.) Citing South Bay Union
School District (1982) PERB Decision No. 207a, SEIU requests that we grant reconsideration
and amend our remedial order.
The Board has reviewed the record in this matter, including SEIU’s request for
reconsideration, in light of applicable law.3 Based on that review, we grant SEIU’s request and
issue a revised order.
3 The County did not file an opposition to the request.
2

DISCUSSION
Under PERB Regulations, the grounds for requesting reconsideration of a final Board
decision 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.”
(PERB Regulation 32410, subd. (a); Regents of the University of California (Davis) (2011)
PERB Decision No. 2101a-H, p. 3 (Regents).) A party may not use the reconsideration process
to register its disagreement with the Board’s legal analysis, to re-litigate issues that have
already been decided, or simply to ask the Board to “try again.” (Chula Vista Elementary
School District (2004) PERB Decision No. 1557a, p. 2; see also Redwoods Community College
District (1994) PERB Decision No. 1047a, pp. 2-3.)
The Board has consistently viewed an error in its remedial order as a proper subject of
reconsideration. For instance, in Desert Sands Unified School District (2004) PERB Decision
No. 1682 (Desert Sands), the Board found that reconsideration was warranted under the newly
discovered evidence standard, because the erroneous remedial order did not exist and could not
have been discovered until the Board issued its decision. (Id. at p. 4-5.) The Board applied the
same reasoning in Regents, supra, PERB Decision No. 2101a-H, and thereby granted
reconsideration where the Board’s decision evidenced an intent to award a full make-whole
remedy, but the Board had neglected to include one element of such a remedy in its order.
(Id. at p. 5.) Other precedent is in accord. (See, e.g., San Mateo City School District (1984)
PERB Decision No. 375a, p. 3 [granting reconsideration to revise initial order to include a
back pay remedy]; South Bay Union School District, supra, PERB Decision No. 207a, p. 2
[upon reconsideration, amending back pay portion of the order to conform remedy to unfair
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practice committed]; see also Compton Community College District (1989) PERB Decision
No. 720a, pp. 1, 3 [granting reconsideration to modify date used to compute employer’s back
pay liability when date was not known until after case was before the Board].)
Here, the record supports amending the back pay remedy to calculate it from the date
the County placed Thomas on administrative leave. The operative complaint alleges that the
County took adverse action against Thomas on or about July 21, 2012, when it placed her on
administrative leave pending an investigation. In the proposed decision, the ALJ described the
events of July 21, 2012 and concluded that the County took adverse action against Thomas by
placing her on involuntary paid administrative leave. The County did not except to the ALJ’s
findings regarding adverse action, and we found that the MMBA protected Thomas’s conduct
which led the County to take such adverse action.4 (Riverside, supra, PERB Decision
No. 2591-M, p. 8.) Reconsideration is appropriate where, as here, we mistakenly failed to take
into account the earliest date of adverse action. (See Oakland Unified School District (1984)
PERB Decision No. 275b, p. 5 [reconsideration appropriate to amend Board order, where order
had mistakenly failed to account for a violation found in the proposed decision but to which no
party excepted].)
Furthermore, only by amending our remedial order can we restore the economic status
quo that would have obtained but for the County’s violation. (City of Pasadena (2014) PERB
4 The County admitted that it took each of the adverse actions, including placing
Thomas on involuntary paid administrative leave, “because of eight assertions that SEIU and
Thomas made in the District Court litigation.” (Riverside, supra, PERB Decision No. 2591-M,
p. 8.) The ALJ did not find that the placement of Thomas on administrative leave was
unlawfully motivated, because she deemed four of Thomas’s eight statements to have been
unprotected. Contrary to the ALJ, we determined that the MMBA protected all eight of the
challenged assertions. (Id. at p. 18.) Accordingly, Thomas’s involuntary administrative leave,
like her termination, was unlawfully motivated.
4

Order No. Ad-406-M, p. 13; Santa Clara Unified School District (1979) PERB Decision
No. 104, pp. 26-27.) Accordingly, the Board grants SEIU’s request for reconsideration and
modifies the remedial order in this matter.
ORDER
The request for reconsideration of County of Riverside (2018) PERB Decision No. 2591
is GRANTED and the Order is hereby AMENDED to read as follows:
Based on the foregoing findings of fact, conclusions of law, and the entire record in this
case, it is found that the County of Riverside (County) violated the Meyers-Milias-Brown Act
(MMBA), Government Code sections 3506 and 3506.5, subdivisions (a) and (b), and therefore
committed unfair practices under MMBA section 3509, subdivision (b), and PERB Regulation
32603, subdivision (b). Pursuant to MMBA section 3509, subdivision (b), it is hereby
ORDERED that the County, its governing board, administrators, and representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Retaliating against employees for engaging in protected activity;
2. 	Denying employee organizations the right to represent their members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Offer Wendy Thomas (Thomas) reinstatement to her former position, or,
if that position no longer exists, then to a substantially similar position;
2. 	Make Thomas whole for lost benefits, monetary and otherwise, which
she suffered as a result of the County’s conduct, including back pay, plus interest at the rate of
7 percent per annum, from the date she was placed on involuntary administrative leave,
July 21, 2012, to the date she is reinstated or declines the offer of reinstatement;
5

3. 	Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all locations where notices are customarily posted, copies of the
notice attached hereto as an Appendix. The Notice must be signed by an authorized agent of
the County, indicating that it will comply with the terms of this Order. Such posting shall be
maintained for a period of thirty (30) consecutive workdays. In addition to physical posting of
paper notices, the Notice shall be posted by electronic message, intranet, internet site, and
other electronic means customarily used by the County to communicate with its employees.
Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered,
defaced, or covered with any other material;
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, 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 Service Employees International Union Local 721.
Members Winslow and Shiners joined in this Decision.
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APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-787-M, Service Employees
International Union Local 721 v. County of Riverside, in which all parties had the right to
participate, it has been found that the County of Riverside (County or we) violated the Meyers-
Milias-Brown Act (MMBA), Government Code sections 3506 and 3506.5, subdivisions (a) and
(b), and therefore committed unfair practices under MMBA section 3509, subdivision (b), and
PERB Regulation 32603, subdivision (b).
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Retaliating against employees for engaging in protected activity;
2. 	Denying employee organizations the right to represent their members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Offer Wendy Thomas (Thomas) reinstatement to her former position, or,
if that position no longer exists, then to a substantially similar position;
2. 	Make Thomas whole for lost benefits, monetary and otherwise, which
she suffered as a result of the County’s conduct, including back pay, plus interest at the rate of
7 percent per annum, from the date she was placed on involuntary administrative leave,
July 21, 2012, to the date she is reinstated or declines the offer of reinstatement.
Dated: _____________________ 	COUNTY OF RIVERSIDE
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.