County of Santa Clara (PERB A398M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MELVIN JONES JR.,
Charging Party,
V.
COUNTY OF SANTA CLARA,
Respondent.
Case No. SF-CE-646-M
Administrative Appeal
PERB Order No. Ad-398-M
March
8,
2013
Appearance: Melvin Jones, Jr., on his own behalf.
Before Martinez, Chair; Huguenin and Winslow, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal from an administrative determination denying the third request for
reconsideration filed by Melvin Jones, Jr. (Jones) in this case. For the reasons set forth herein,
we affirm the administrative determination and dismiss the request for reconsideration.
FACTUAL SUMMARY
This case has as its genesis an unfair practice charge filed by Jones on April 20, 2009,
Case No. SF-CE-646-M, in which Jones alleged that the County
of
Santa Clara (County)
violated the Meyers-Milias-Brown Act (MMBA) 1 by terminating his probationary employment
in retaliation for having engaged in protected activity.2 The crux of Jones's argument is that he
was on an approved leave of absence when the County terminated his employment in part for
being absent without leave. This is at least Jones's fourth attempt to obtain Board review of
1 The MMBA is codified at Government Code section 3500 et seq.
2 The charge also alleged that the County denied Jones the right to have an employee
representative present during a meeting and interfered with protected rights.

that employment action. Because a complete procedural history is set forth in County of
Santa Clara (2012) PERB Decision No. 2267b-M (Santa Clara), we summarize only the most
pertinent procedural and additional facts here.
Following issuance of a complaint by the Office of the General Counsel and the
conduct of an evidentiary hearing, a PERB administrative law judge (ALJ) issued a proposed
decision dismissing the complaint and charge for failure to establish a violation of the MMBA.
In rejecting Jones's argument that he had been terminated in retaliation for having engaged in
protected activities, the ALJ found that Jones was unable to establish that he had received
approval for the absences that led to his termination.
On May 12, 2012, the Board adopted the ALJ's decision as its own and dismissed the
complaint and underlying unfair practice charge. (County of Santa Clara (2012) PERB
Decision No. 2267-M.) In its decision, the Board rejected Jones's request to consider
additional evidence in support of his claim that he was not absent without leave and concluded
that, even if such evidence were considered, it would not establish that the absences were
authorized. On August 12, 2012, the Board denied Jones's first request for reconsideration of
that decision. (County of Santa Clara (2012) PERB Decision No. 2267a-M.) On October 16,
2012, Jones filed a request that the Board grant a new hearing to consider new evidence. 	On
November 27, 2012, the Board issued a decision denying that request under the standards
applicable to requests for reconsideration.3 (Santa Clara, supra, PERB Decision
No. 2267b-M.)
After the Board issued its decision affirming the ALJ' s dismissal of the complaint in
Case No. SF-CE-646-M, on August 8, 2012, Jones filed a second unfair practice charge over
3 In addition, the Board found the request untimely.
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essentially the same set of facts (Case No. SF-CE-988-M).4 In that charge, Jones alleged that a
statement made by the County in a brief filed before the ALJ in Case No. SF-CE-646-M
constituted an admission that the County had unilaterally changed a provision in the
memorandum of understanding covering his employment that established that his absences
were authorized. After the Office of the General Counsel informed Jones that he lacked
standing to allege a unilateral change violation, Jones amended the charge to allege that the
County's statement in its brief constituted an admission that the County adopted and enforced
an unreasonable local rule. On October 12, 2012, the Office of the General Counsel dismissed
that charge for failure to state a prima facie violation of the MMBA. Jones filed a timely
appeal from that dismissal, but, on October 19, 2012, filed a request to withdraw that appeal.
On November 27, 2012, the Board granted Jones's request to withdraw his appeal in Case
No. SF-CE-988-M. (County of Santa Clara (2012) PERB Decision No. 2292-M.)
On December 6, 2012, Jones filed a "Motion/Request (3rd) for Reconsideration [with
affidavit filed concurrently], and Jones' Request in the alternative" in the instant case. In that
request, Jones asserts that the Board's November 27, 2012, decision granting his request to
withdraw his appeal in Case No. SF-CE-988-M constitutes "newly discovered evidence"
warranting reconsideration of the Board's decision in this case. In the alternative, Jones
requested that the Board allow him to file a motion for joinder of "SEIU 521" (presumably, his
collective bargaining representative) so that he can proceed with a charge of unilateral change
or pursue such a charge at a new hearing. On December 13, 2012, in an administrative
determination, PERB' s Appeals Assistant denied the request, finding that, under PERB
4 The Board takes official notice of its record in Case No. SF-CE-988-M.
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Regulation 32410, 5 a party cannot repeatedly file requests for reconsideration. Jones appeals
from that administrative determination.
DISCUSSION
Multiple Requests for Reconsideration
PERB Regulation 32410 provides:
Request for Reconsideration.
(a) Any party to a decision
of
the Board itself may, because
of
extraordinary circumstances, file a request to reconsider the
decision within 20 days following the date
of
service
of
the
decision. An original and five copies
of
the request for
reconsideration shall be filed with the Board itself in the
headquarters office and shall state with specificity the grounds
claimed and, where applicable, shall specify the page
of
the
record relied on. Service and proof
of
service
of
the request
pursuant to Section 32140 are required. The grounds for
requesting reconsideration are limited to claims that: (1) the
decision
of
the Board itself contains prejudicial errors
of
fact, or
(2) the party has newly discovered evidence which was not
previously available and could not have been discovered with the
exercise
of
reasonable diligence. A request for reconsideration
based upon the discovery
of
new evidence must be supported by a
declaration under the penalty
of
perjury which establishes that the
evidence: (1) was not previously available; (2) could not have
been discovered prior to the hearing with the exercise
of
reasonable diligence; (3) was submitted within a reasonable time
of
its discovery; (4) is relevant to the issues sought to be
reconsidered; and (5) impacts or alters the decision
of
the
previously decided case.
(b) Any party shall have 20 days from service to file a response
to the request for reconsideration. An original and five copies
of
the response shall be filed with the Board itself in the
headquarters office. Service and proof
of
service
of
the response
pursuant to Section 32140 are required.
(c) Unless otherwise ordered by the Board, the filing of a
Request for Reconsideration shall not stay the effectiveness of a
decision
of
the Board itself except that the Board's order in an
5 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
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unfair practice case shall automatically be stayed upon filing of a
Request for Reconsideration.
PERB Regulation 32410 does not expressly address multiple requests for
reconsideration of a Board decision. In Bassett Unified School District (1979) PERB Order
No. Ad-67 (Bassett), the Board granted a second request for reconsideration in a case where a
prior grant of reconsideration had resulted in the Board vacating its prior decision and issuing a
completely new and different decision. Recognizing the unique facts of that case, however, the
Board stated:
As we interpret our rule, the same party cannot repeatedly
file requests for reconsideration. If the Board had rejected
[the party's] request for reconsideration of [its prior decision], for
example, [the party] would have had no right to file another
request for reconsideration of the same decision. Such a right
would waste the time and resources of the Board and the parties.
(Ibid.)
We reaffirm the rule set forth in Bassett, supra, PERB Order No. Ad-67, that a party
may file only one request for reconsideration of a Board decision, except in those cases where
a prior request for reconsideration has resulted in the issuance of a completely revised decision.
This rule preserves the right of parties to obtain reconsideration of a Board decision while
avoiding an undue waste of the resources of both the Board and the parties. 6
In this case, the Board has twice denied requests to reconsider the same decision on
substantially the same grounds presented here. In essence, Jones seeks either to use this case
as a means of reviving the charges in a case that he voluntarily withdrew or to use his
voluntary withdrawal of that case to revive the underlying charges in this case. In either
instance, the aim is the same: to relitigate the issue of whether the County violated the MMBA
In reaching this conclusion, we do not intend to suggest that the filing of a second
request for reconsideration styled as a "request for a new hearing" in this case was proper.
Under the rule we reaffirm today, that request would have been subject to dismissal on that
basis as well.
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in terminating his employment. Jones had a full opportunity to litigate his case before the ALJ
in Case No. SF-CE-646-M. He also had a full opportunity to present his case to the Office of
the General Counsel in Case No. SF-CE-988-M, and to appeal the General Counsel's
determination to the Board. Having withdrawn his appeal, he cannot use this proceeding to
reopen that case. We find no useful purpose would be served by permitting a third request for
reconsideration to be filed in this case. Accordingly, we affirm the administrative
determination of the Appeals Assistant.
Grounds for Reconsideration
Even if we were to consider the request for reconsideration to have been properly filed,
we would still deny it on the ground that the Board's decision granting Jones's request to
withdraw his appeal from dismissal in Case No. SF-CE-988-M does not constitute "new
evidence" warranting reconsideration in this case. Jones asserts that the withdrawal of his
appeal "restores" the findings and decision of the General Counsel that his charge failed to
state a prima facie case. While it is true that the decision of the General Counsel in that case is
now final, that fact has no bearing on the issue of whether the Board should grant
reconsideration in this case. Nothing in the Board's decision in Case No. SF-CE-988-M
provides any new support for Jones's position that the County violated the MMBA in
terminating his employment. Moreover, as indicated above, we cannot review the merits of
that case in this proceeding. Therefore, we find no basis to reopen this case.
Request for Joinder
The Board has the discretion under PERB Regulation 32164 to order joinder of a party
under specified circumstances, as follows:
Application for Joinder of Parties.
(a) Any employee, employee organization or employer may file
with the Board agent an application for joinder as a party in a
6

case. Service and proof of service of the application pursuant to
Section 32140 are required.
(b) The application for joinder shall be in writing, signed by the
representative filing it and contain a statement of the extent to
which joinder is sought and a statement of all the facts upon
which the application is based. The Board shall allow each party
an opportunity to oppose the application.
(c) The Board may allow joinder if it determines that the party
has a substantial interest in the case or will contribute
substantially to a just resolution of the case and will not unduly
impede the proceeding.
( d) The Board may order j oinder of an employer, employee
organization or individual, subject to its jurisdiction, on
application of any party or its own motion if it determines that:
(1) In the absence of the employer, employee organization or
individual, as a party, complete relief cannot be accorded; or
(2) The employer, employee organization or individual has an
interest relating to the subject of the action and is so situated that
the disposition of the action in their absence may:
(A) As a practical matter impair or impede their ability to protect
that interest; or
(B) Leave any of the parties subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent obligations
by reason of said interest.
PERB Regulation 32164( d) authorizes PERB to order joinder of a party if the party has
an interest in the subject matter of the proceeding. (Bay Area Air Quality Management District
(2007) PERB Decision No. 1927-M.) There is no showing that the employee organization has
any substantial interest that would be impaired if it is not joined in this case. Instead, Jones
seeks to join the employee organization in order to revive his unilateral change charge set forth
in Case No. SF-CE-988-M, which was dismissed based upon the Board agent's determination
that Jones lacked standing to file such a charge. Jones voluntarily dismissed his appeal from
that determination, and it is now final. 	Thus, there is no pending matter before the Board for
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which joinder would be necessary or appropriate. Moreover, there is no basis for ordering
joinder of the employee organization at this late stage in Case No. SF-CE-646-M.
Accordingly, Jones's request for joinder is denied.
ORDER
The administrative appeal of Melvin Jones, Jr. from denial of his third request for
reconsideration in Case No. SF-CE-646-M is hereby DENIED.
Chair Martinez and Member Winslow joined in this Decision.
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