County of Santa Clara (PERB 2267MB)

9STATE 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
Request for Reconsideration
PERB Decision No. 2267b-M
November 27, 2012
Appearances: Melvin Jones, Jr., on his own behalf; Cheryl A. Stevens, Deputy County
Counsel, for County of Santa Clara.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on a request for reconsideration filed by Melvin Jones, Jr. (Jones) of
the Board's decision in County of Santa Clara (2012) PERB Decision No. 2267-M. In that
decision, the Board adopted the decision of an administrative law judge (ALJ) dismissing
Jones's unfair practice charge and complaint for failure to state a prima facie case that the
County of Santa Clara (County) violated the Meyers-Milias-Brown Act (MMBA) 1 by:
(1) terminating his employment in retaliation for having engaged in protected activity;
(2) denying 	the rightto have an employee organization representative present at a
meeting; and 	interfering with protected rights. A prior request for reconsideration was
denied by 	Board on August 	20 l 	Decision No. 2267a-M.
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
noted, all statutory references are to the Government Code.

The Board has reviewed the request and supporting documentation, and the response
thereto, in light of the relevant law. Based on this review, the Board denies Jones's second
request for reconsideration for the reasons discussed below.2
PROCEDURAL HISTORY
On April 20, 2009, Jones filed an unfair practice charge alleging, inter alia, that the
County terminated his employment in retaliation for having engaged in protected activity, in
violation of the MMBA. Following issuance of a complaint by the PERB Office of the
General Counsel, a PERB ALJ conducted a two-day hearing on the merits of the complaint,
during which Jones was afforded the opportunity to present evidence in support of his claims.
On February 11, 2011, the ALJ issued a proposed decision recommending that the complaint
and charge be dismissed for failure to establish a violation of the MMBA. Jones appealed
that determination by filing exceptions with the Board pursuant to PERB Regulation 32300.3
On May 25, 2012, the Board adopted the ALJ' s proposed decision as its decision in this case.
In its decision, the Board expressly addressed Jones's request to consider additional evidence,
including an April 24, 2009 pay warrant that Jones contended established that he was
granted 56 hours of leave without pay in April 2009.4 Applying the standard set forth in
PERB Regulation 32410(a) for a request for reconsideration based on the discovery of new
evidence (State of Cal(fornia (Department of Parks and Recreation) (1995) PERB Decision
No. 1125-S), the Board determined that Jones failed to establish proper grounds for
2 On November 17, 2012, Jones submitted a "Reply" to the County's response to the
request for reconsideration and a request for oral argument. PERB regulations do not allow for
the filing of reply briefs or oral argument regarding a request for reconsideration.
Accordingly, the Board has not considered this document.
3 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
4 In the underlying case, Jones contended that the County wrongly terminated his
probationary employment based upon allegations that he was absent without leave.
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consideration of that evidence. On August 2, 2012, the Board considered and denied a request
for reconsideration based, in part, upon the same evidence.
Between April 23, 2012 and October 8, 2012, Jones filed four separate requests for
injunctive relief, pursuant to MMBA section 3541.3G) and PERB Regulation 32450, asking
PERB to go to court to request injunctive relief against the County. The Board denied all of
these requests. 5
On October 16, 2012, Jones filed a request that the Board grant a new hearing to
consider newly discovered evidence. Attached to that request are the following documents:
(1) an April 29, 2009 Notice of Probationary Release; (2) a page from a brief apparently filed
by the County in response to one of Jones's requests for injunctive relief; (3) an excerpt from a
memorandum of understanding; (4) the April 24, 2009 pay warrant; (5) an excerpt from the
ALJ's proposed decision in this case; and (6) an e-mail dated April 10, 2009. Accompanying
the request is a declaration under penalty of perjury signed by Jones stating that, on or about
April 26, 2012, he discovered new evidence in the form of an "admission made in writing" by
the County's attorney in an opposition to one of Jones's requests for injunctive relief (PERB
Injunctive Relief Request No. 618). 	While not entirely clear, it appears that the "newly
discovered" evidence Jones seeks to introduce is the following statement contained in the
County's brief in opposition to the injunctive relief request: "Construed most favorably toward
Jones, the circumstances of his release suggest that Jones was the victim of his own
misunderstanding about his right to be on leave \Vithout a medical release." According to
Jones, this statement constitutes an "admission" by the County that he was granted a leave of
5 In addition, on August 8, 2012, Jones filed a new unfair practice charge alleging that
the County adopted and enforced an unreasonable local rule and made a unilateral change
when it admitted that it had placed Jones on a leave of absence without pay in 2009. (PERB
Case No. SF-CE-998-M.) Following dismissal of that charge by the Office of the General
Counsel, Jones appealed the dismissal to the Board and then requested that it be withdrawn.
That request is addressed in a separate Board decision.
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absence without pay and, therefore, was improperly terminated. On October 19, 2012, Jones
submitted an additional document asserting that his October 16, 2012 filing inadvertently
omitted a document containing the County's leave
of
absence policy.
By letter dated October 25, 2012, the PERB Appeals Assistant notified the parties that
Jones's October 16, 2012, request for a new hearing on the basis
of
newly discovered evidence
would be treated as a request for reconsideration and afforded the County twenty days to file a
response. The County filed a timely response on November 14, 2012.
DISCUSSION
In his request that the Board grant a new hearing, Jones requests reconsideration
on
the
basis
of
newly discovered evidence. Accordingly, we consider his request as a request for
reconsideration pursuant to PERB Regulation 3241 0(a).
As set forth in both the Board's decision on the merits as well as its decision in Jones's
first request for reconsideration, requests for reconsideration
of
a final Board decision are
governed by PERB Regulation 32410(a), which permits a party to a decision by the Board to
file a request for reconsideration within 20 days following the date
of
service
of
the decision.
Regulation 32410(a)(2) further requires a party seeking reconsideration based upon the
discovery
of
new evidence to submit a declaration under penalty
of
perjury establishing 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.
Timeliness
The instant request for reconsideration was filed on October 16, 2012, nearly five
months after the Board issued its final decision on the merits on May 25, 2012, and more than
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two months after it issued its decision denying his first request for reconsideration on
August
2,
2012. Therefore, because it was not filed within 20 days after service
of
either
of
the
Board's
decisions, it is untimely and must be denied on that basis alone.
Grounds for Reconsideration
Even
if
we were to consider the second request for reconsideration as timely filed, we
would find that the request fails to establish grounds for reconsideration based upon the
discovery
of
new evidence. In essence, Jones seeks to revive his claim that he was wrongfully
terminated from his probationary period for having been absent without leave. The purported
"new evidence" is not evidence at all, but simply a statement made in argument. Moreover,
even
if
considered as an evidentiary statement, it does not establish the fact Jones seeks to
prove that the County granted him a leave
of
absence without pay. Even
if
it did, it would not
impact or alter the underlying decision in this case finding that the County did not terminate
Jones's employment in retaliation for having engaged in protected activity. Accordingly, the
Board denies the second request for reconsideration because it fails to establish grounds for
reconsideration pursuant to PERB Regulation 3241 0(a).
ORDER
The request
of
Melvin Jones, Jr., for reconsideration
of
the Public Employment
Relations Board's decision in County
of
Santa Clara (2012) PERB Decision No. 2267-M is
hereby DENIED.
Chair Martinez and Member Huguenin joined in this Decision.
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