County of Ventura (PERB 2758M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CRIMINAL JUSTICE ATTORNEYS
ASSOCIATION OF VENTURA COUNTY,
Charging Party,
v.
COUNTY OF VENTURA,
Respondent.
Case Nos. LA-CE-1260-M
LA-CE-1268-M
PERB Decision No. 2758-M
March 23, 2021
Appearances: Rains Lucia Stern St. Phalle & Silver, by Richard A. Levine, Attorney,
for Criminal Justice Attorneys Association of Ventura County; Leroy Smith, County
Counsel, and Matthew A. Smith, Assistant County Counsel, for County of Ventura.
Before Banks, Chair; Shiners and Krantz, Members.
DECISION
BANKS, Chair: These consolidated cases are before the Public Employment
Relations Board (PERB or Board) on exceptions by the County of Ventura to a
proposed decision by an administrative law judge (ALJ). The ALJ concluded that the
County violated its duty to meet and confer in good faith by: (1) implementing its
decision to withhold taxes based upon accrued paid leave without affording the
Criminal Justice Attorneys Association of Ventura County (Association) adequate
notice and a meaningful opportunity to bargain over the negotiable effects of that
decision; and (2) bargaining in bad faith over amending the parties’ leave redemption
plan. The proposed decision dismissed the remainder of the Association’s allegations.

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We have reviewed the entire record and considered the parties’ arguments in
light of applicable law. We affirm the proposed decision based upon the following
findings and discussion. We also clarify the ALJ’s remedial order, tailoring it more
closely to the harms caused by the County’s violations.
PROCEDURAL BACKGROUND
On November 20, 2017, the Association filed Unfair Practice Case No. LA-CE-
1260-M, alleging that the County unilaterally characterized accrued leave as taxable
income. On November 30, 2017, the Office of the General Counsel (OGC) issued a
complaint against the County, alleging that the County violated the Meyers-Milias-
Brown Act (MMBA) and its own local rules by deciding to withhold taxes on leave
hours as those hours were accrued, rather than as they were cashed out or used,
without bargaining over the decision or its effects.1
On December 6, 2017, the Association filed Unfair Practice Case No. LA-CE-
1268-M alleging that the County engaged in bad faith bargaining when meeting and
conferring over changes to represented employees’ paid leave plan. OGC issued a
complaint on September 11, 2018. On the parties’ joint motion, the ALJ consolidated
Case Nos. LA-CE-1260-M and LA-CE-1268-M for formal hearing, which took place
over 10 days between January 28 and April 18, 2019.
The ALJ issued a proposed decision on February 28, 2020. The ALJ concluded
that the County violated its duty to bargain in good faith by unilaterally implementing
its decision to withhold taxes based upon what it considered to be constructive receipt
1 The MMBA is codified at Government Code section 3500 et seq. All statutory
references herein are to the Government Code unless otherwise specified.

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income without completing negotiations over the negotiable effects of that decision.
The ALJ also found that the County engaged in bad faith bargaining during its
negotiations with the Association over amending the parties’ leave redemption plan.
Specifically, the ALJ found that the County misrepresented its tax withholding plan and
made an exploding offer without adequate justification.2 The ALJ dismissed the
Association’s remaining allegations, finding that: the County’s duty to bargain was
limited to the effects of its decision to apply the constructive receipt doctrine, as the
decision itself fell outside the scope of bargaining; and the Association had not
established that various other County conduct demonstrated bad faith.
The County filed timely exceptions to the proposed decision. The Association
filed a response but no exceptions.3
FACTUAL BACKGROUND4
The Parties
The County is a “public agency” within the meaning of MMBA section 3501,
subdivision (c), and PERB Regulation 32016, subdivision (a). The Association is an
2 An exploding offer is one that expires on a given date. (City of Arcadia (2019)
PERB Decision No. 2648-M, p. 2, fn. 3 (Arcadia).)
3 The ALJ’s conclusions to which neither party excepted are not before the
Board; they are therefore non-precedential and binding only on the parties. (County of
Santa Clara (2018) PERB Decision No. 2613-M, p. 2, fn. 2; PERB Reg. 32300,
subd. (c) [PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.].)
4 Neither party excepted to the proposed decision’s factual findings. The
following background includes mainly facts drawn from the ALJ’s findings, together
with supplemental facts drawn from the record.

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“exclusive representative” within the meaning of PERB Regulation 32016,
subdivision (b), representing the Criminal Attorney and Criminal Attorney Supervising
bargaining units.
The Memorandum of Agreement
The Association and the County were parties to a Memorandum of Agreement
(MOA) that had an effective term of May 16, 2017, to May 15, 2020. The prior MOA
had an approximate effective period of 2014 through 2017.
Article 12 of the 2014-2017 MOA concerned paid leave. Each represented
employee accrued annual leave on a biweekly basis at a rate that depended on the
length of his/her service. Employees could use annual leave hours for paid time off or
redeem them for cash. Under MOA Section 1208, employees could use annual leave
as paid time off for illnesses or personal reasons, subject to supervisor approval.
Section 1203 provided that employees who use annual leave receive compensation
and benefits at the same rate as if they are on the job. The section further provided
that annual leave benefits would not be forfeited under any circumstances and that no
employee could be ordered to use annual leave or sick leave benefits at a time not of
his or her choosing.
MOA Section 1205 addressed the right to redeem accrued annual leave hours
for cash. Employees who had used at least 80 hours of accrued leave in the prior 12
months could redeem accrued leave hours for payment twice per calendar year. The
maximum amount of accrued leave each employee could redeem ranged from 100 to
200 hours per year, depending on the employee’s length of service. For employees
hired before the effective date of the 2014-2017 MOA, the cash value of redeemed

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leave was at what the parties called the “grossed-up” rate, which included the value of
employer-paid benefits such as health insurance contributions, retirement
contributions, and annual leave accrual.5
Unit members considered the annual leave program to be one of the most
valuable benefits in the MOA. Some members rarely redeemed any leave hours and
instead used the bulk of their accrued hours as time off for medical or other personal
reasons. In other cases, employees retained their accrued hours and redeemed them
closer to retirement to maximize their pensionable income, which was used to
calculate their monthly retirement benefits.
Each of the County’s nine other bargaining units had some form of an annual
leave plan with a cash redemption option. Unrepresented County employees had a
similar benefit as well. Among the County’s employee groups, only the Association
had contractual protection against forfeiting accrued annual leave.
Before August 2016, the County neither reported accrued annual leave hours
as taxable income nor withheld taxes based on such hours until employees either
used them as paid time off or redeemed them.
The County’s 2016 Changes to its Tax Practices
Jeffrey Burgh is the County’s elected Auditor-Controller. His office is
responsible for, among other things, ensuring the accuracy of the County’s payroll and
guaranteeing that the County’s payroll practices comply with state and federal law.
This includes properly reporting employees’ taxable income to the Internal Revenue
5 The cash value of hours redeemed by employees hired on or after the
effective date of the 2014-2017 MOA was calculated using only their base salary rate.

6
Service (IRS) and Franchise Tax Board (FTB), as well as withholding the appropriate
amount in taxes from employee pay.
In the summer of 2016, County Counsel Leroy Smith met with Burgh and
expressed concerns about the tax implications of the redemption option in the
County’s various annual leave plans. Smith informed Burgh that the IRS and FTB may
consider accrued leave as income for tax purposes under the constructive receipt
doctrine, which is defined in U.S. Treasury Department Regulation 1.451-2. (26 C.F.R.
§ 1.451-2.)6 Subdivision (a) of that regulation states, in relevant part:
“Income although not actually reduced to a taxpayer’s
possession is constructively received by him in the taxable
year during which it is credited to his account, set apart for
him, or otherwise made available so that he may draw upon
it at any time, or so that he could have drawn upon it during
the taxable year if notice of intention to withdraw had been
given. However, income is not constructively received if the
taxpayer’s control of its receipt is subject to substantial
limitations or restrictions.”
At the time, the Auditor-Controller’s Office was not applying the constructive receipt
doctrine to any County leave plans.
After hearing Smith’s concerns, Burgh conducted his own investigation,
including reviewing available literature on the subject and speaking with his
counterparts in other counties throughout the state. He became convinced that
constructive receipt was an issue the County had to address. Ultimately, Burgh
concluded that leave hours under the County’s various redemption plans carried the
risk of being considered income under the constructive receipt doctrine.
6 This regulation had not changed at any time in or around 2016.

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On August 12, 2016, Burgh sent a letter to contacts at all County unions,
including Association President Maeve Fox. Burgh wrote that the Association’s annual
leave plan was “not illegal per se,” but that the redemption option in the plan “risks
exposing both [represented employees] and the County to unintentional tax
consequences under a tax principle known as the ‘constructive receipt doctrine.’”
Burgh further wrote that, based upon his understanding of the doctrine, “your existing
leave redemption plan requires that my Office report as taxable income the maximum
amount of leave that an employee is eligible to redeem in a year, regardless of
whether she/he actually elects to cash-out that leave.” (Original italics.) Burgh
suggested that the Association’s annual leave plan could be amended to avoid the
constructive receipt issue, but that:
“[I]n the absence of an agreement between the County and
your union to amend the leave redemption plan in your
current MOA to avoid constructive receipt, I am legally
obligated to fully comply with federal tax laws, and as such
beginning with tax year 2017, I will report as taxable income
all income that employees are eligible to receive in lieu of
leave/vacation under current plans.”
The Initial Meeting Over Constructive Receipt
After Burgh sent his letter, representatives from Human Resources (HR) sought
to meet with each of the County’s 10 unions, including the Association. On or around
August 18, 2016, HR Director Shawn Atin, then-Labor Relations Manager Craig
Leedham, and HR representative Jim Dembowski met with Fox, Association Vice
President Margaret Coyle, and Association Board Member Michael Albers. The
purpose of the meeting was to explain the constructive receipt issue to the Association
and to discuss ways to avoid taxation under that doctrine. The County reiterated its

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position from Burgh’s letter the prior week: absent changes to the redemption plan, the
County intended to start treating accrued leave eligible for redemption as
constructively-received income.
The HR representatives acknowledged that the parties’ MOA was still in effect,
but they suggested reopening negotiations on Article 12. No formal proposals were
exchanged that day, but the County presented three ideas for modifying the
Association’s leave plan. First, the County proposed that each year employees would
irrevocably elect the number of leave hours, if any, they would redeem in the following
year. Second, the County suggested prohibiting employees from redeeming more
hours than they accrued during that calendar year. Finally, the County suggested that
any employees who irrevocably elected to redeem leave hours, but did not use at
least 80 leave hours in the prior 12 months as required under MOA Section 1205,
would forfeit the number of accrued leave hours needed to satisfy the 80-hour
requirement. The County would not provide compensation for the forfeited hours.7
During the meeting, which Coyle testified was “incredibly heated,” Association
representatives expressed concern that the limitations on what accrued leave may be
redeemed for cash would inhibit employees’ ability to maximize their retirement
income. Fox criticized the County’s suggestion that leave be forfeited to satisfy the 80-
hour requirement, calling it “stealing,” illegal, and a violation of the prohibition against
forfeitures under MOA Section 1203. The Association requested any legal authority
the County had showing that the constructive receipt doctrine applied to the County’s
7 Association representatives referred to this idea as the County’s “forfeiture
provision.”

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existing leave redemption plans. The County representatives promised to respond.
The meeting ended without any agreement.
On August 24, 2016, Leedham e-mailed union representatives, including Fox
and Coyle, IRS Private Letter Rulings (PLRs)8 discussing the constructive receipt
doctrine and its relation to paid leave cash-out plans. These PLRs all predated the
2014-2017 MOA between the County and the Association. As part of the same e-mail,
Leedham also produced a memo that Smith had drafted, which concluded that the
constructive receipt doctrine applied to accrued leave under each of the County’s
existing leave redemption plans.
The County’s Requests to Commence Bargaining
The County designated Leedham as its primary contact person for any
negotiations with the Association over the constructive receipt issue. On
September 13, 2016, Leedham e-mailed Fox requesting to meet and confer over
changes to the leave redemption language in the MOA. He offered several dates in
September for commencing negotiations and expressed the desire to move quickly to
implement any needed changes before the start of 2017. To that end, Leedham’s
e-mail included a suggested negotiation timeline stating the County’s desire to start
negotiations with all unions in September, to reach tentative agreements with all
unions by October 21, and to ratify those agreements by November 1. The timeline
8 A PLR is written guidance from the IRS about how tax laws apply to a set of
presented facts. PLRs are not considered precedential, but are generally relied upon
as guidance for how the IRS would handle situations similar to what was assessed in
the letter. (Airline Pilots Assn. Internat. v. United Airlines, Inc. (2014) 223 Cal.App.4th
706, 722, fn. 5.)

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included enough time for the County to create and send irrevocable election forms to
employees and to have employees complete and return those forms before the end of
2016. Leedham did not state that unions were required to follow the timeline or specify
that there would be any consequences if a union did not adhere to it.
Fox responded to Leedham the following day, stating that in order to bargain in
an informed manner the Association needed time to consult with an attorney, and it
had therefore hired Robert Wood to provide advice regarding the constructive receipt
doctrine and its potential application. Leedham responded to Fox the same day, again
asserting the County’s desire to complete negotiations promptly, so the County could
implement the changes and notify employees before the start of 2017.
On September 30, 2016, the County submitted its first written proposal seeking
changes to the MOA’s annual leave plan. The proposal included the three elements
discussed at the August 18, 2016 meeting: (1) the irrevocable election form and
process; (2) a rule restricting employees’ ability to redeem leave to only those hours
accrued in the calendar year of the request; and (3) the “forfeiture provision.” Though
the County did not normally send proposals before scheduling any negotiation
sessions, Leedham did so here to facilitate negotiations before the end of the year.
Fox replied that the Association would respond after consulting with Wood.
Leedham’s October 2016 Correspondence with Rick Shimmel
In early October 2016, Rick Shimmel, Executive Director of the Ventura County
Deputy Sheriffs’ Association, representing the County’s deputy sheriffs’ unit, e-mailed
Leedham questions about how the County intended to implement the constructive
receipt doctrine with respect to its paid leave redemption plan. Leedham responded on

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October 11, 2016, sending a copy of his response to Burgh, among others. In his
response, Leedham wrote that constructive receipt income would be reported as
regular earnings on employee W-2 forms. He also wrote that, with one minor
exception not at issue, leave hours that had previously been reported as constructively
received income would not be reported as income again when those hours are used or
redeemed in the future.
Leedham’s e-mail also included the following response to Shimmel’s question:
“[Question:] If you begin reporting the value of
constructively received earnings on the W-2, will any payroll
taxes be paid or withheld on those earnings? If so, which
taxes?
“[Answer:] The County will pay its portion; there will be no
withholdings of employee constructively received earnings.”
(Original italics.)
Neither Shimmel’s e-mail nor Leedham’s response was addressed to anyone at
the Association. However, later in the day on October 11, 2016, Shimmel forwarded a
copy of Leedham’s response e-mail to Fox and Coyle.
Letter from the Association’s Tax Counsel
On October 20, 2016, Wood sent a letter to the County asserting that its leave
plans did not trigger the constructive receipt doctrine because they already included
substantial limitations on employees’ ability to redeem leave hours.
On November 9, 2016, Leedham e-mailed Fox again, acknowledging receipt of
Wood’s letter and again requesting to meet over changing the Association’s leave
plan. He informed Fox that the Auditor-Controller’s Office was beginning its process to
account for constructively received income. Leedham said the County was willing to

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temporarily modify its proposal to allow employees who have announced their intent to
retire to redeem leave hours accrued in prior years. At this time, the County was
actively negotiating changes to the various leave plans with all 10 of its unions. The
County communicated to the unions that, if it reached an agreement with one union
containing more favorable terms than what was being offered to others, it would
include the better terms in subsequent offers to the other unions.
The Association’s Initial Successor MOA Proposal
On December 2, 2016, the Association sent the County its initial proposal for a
successor MOA. The proposal was a comprehensive list of all MOA sections the
Association sought to change in the upcoming negotiations. The proposal included
enhancements to the leave redemption option in Section 1205, but it did not include
any language intended to address the constructive receipt issue.
The County’s Amended Proposal Regarding Constructive Receipt
On December 8, 2016, Leedham e-mailed Fox a revised version of the
County’s constructive receipt proposal. The essential components of the County’s
proposal remained the same, but it added a provision that would allow employees to
void their irrevocable elections if they could not meet the 80-hour usage prerequisite
because their vacation request was denied.
On December 12, 2016, Association counsel Richard Levine e-mailed Leedham
rejecting the County’s December 8 proposal. He asserted the Association’s position
that the constructive receipt doctrine did not apply to the paid leave plan and that it
would be improper for the County to start reporting accrued leave hours as taxable
income.

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The Auditor-Controller’s Constructive Receipt Presentations
Starting in December 2016, the Auditor-Controller’s Office began hosting
informational presentations about how it intended to apply the constructive receipt
doctrine to the redemption options in various negotiated MOAs and the resolution for
unrepresented employees. All employees were invited.
The written presentation materials described the constructive receipt doctrine
and listed the penalties that the IRS or FTB could assess for failing to properly collect
or pay income and employment taxes or submitting false tax documents. The
materials then described the County’s proposed plan for modifying employees’ leave
redemption policies to avoid the risk of tax consequences. The proposed plan was
largely identical to the most recent proposal the County had already sent to the
Association, including the use of an irrevocable election form and the restriction that
employees could only cash out leave that was accrued in the current calendar year.
The materials noted that the proposed changes would not apply to employees
represented by a union unless the union agreed to the modifications.
The presentation also described what would happen for employees whose
leave redemption plans were not modified to adjust for the constructive receipt
doctrine. Specifically, the materials stated that the County would not honor irrevocable
election forms from those employees, and they would continue to be able to redeem
leave for cash consistent with the existing terms of their MOAs. The presentation
materials also stated that the Auditor-Controller’s Office would “withhold and report all
employee and employer applicable taxes and retirement contributions, potentially
resulting in a ‘Net Pay Distribution’ balance of -0- on the final pay check received for

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calendar year 2017.” A copy of the Auditor-Controller’s presentation materials was
posted on the Auditor-Controller’s Office website.
Represented Employees’ Irrevocable Election Submissions
Around the time the Auditor-Controller’s Office was hosting the constructive
receipt presentations, Association unit members began approaching Association
Board members with questions. Association representatives advised the employees
that they should submit irrevocable election forms to the County even though the
parties had not reached any agreement on the constructive receipt issue. An unknown
number of employees submitted forms, but the County did not accept any of them. On
December 16, 2016, Fox e-mailed Leedham asking if the County would accept
irrevocable election forms submitted by Association-represented employees. She
further asked, if the County rejected the irrevocable election forms from Association
members, whether those members could still submit leave redemption requests.
Leedham responded to Fox the same day stating that, because the parties had
not reached any agreement for using irrevocable election forms, the County
considered any irrevocable election forms from Association members to be
unenforceable and any such forms would therefore not be accepted. He also stated
that Association unit members would still be able to redeem leave consistent with the
existing terms in MOA Section 1205.
Before the end of 2016, the County reached agreements with four unions to
amend their paid leave redemption plans to avoid the constructive receipt issue.

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The 2017 Successor MOA Negotiations
Successor MOA negotiations started on January 23, 2017. Leedham was the
County’s chief negotiator and spokesperson. Attorney Steven Silver was the
Association’s chief negotiator and spokesperson.
The County’s initial proposal for a successor MOA stated, “The County desires
to modify leave redemption procedures to avoid constructively received income
resulting from current MOA provisions.” Leedham explained that the County was
proposing the same changes to the leave redemption plan that it had sent to the
Association in 2016. Neither party sought to discuss the leave redemption plan or the
constructive receipt issue during the bargaining sessions that occurred on January 23
and 30, and February 6 and 16, 2017.
The Association raised the constructive receipt issue as negotiations
progressed further into February 2017. The Association’s team expressed willingness
to modify the redemption language in their annual leave plan even though they still
disagreed that the constructive receipt doctrine applied to the plan as it was then
structured. However, the Association rejected the County’s proposal that restricted
employees to only redeeming those leave hours that were accrued during the calendar
year of the redemption request. The Association also adamantly opposed the County’s
“forfeiture provision.”
The Association’s negotiators stated that the irrevocable election form was fully
sufficient to address the County’s concern about constructive receipt risks. They
further expressed that the County’s proposal would reduce employees’ ability to
maximize their retirement income. The Association proposed using the irrevocable

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election process and eliminating the 80-hour usage requirement from MOA Section
1205.
Leedham stated that he had received different tax advice: to avoid the
constructive receipt risk, the parties needed to implement both the irrevocable election
and the restriction on which accrued leave hours could be redeemed. He also said
that the “forfeiture provision” was necessary to make the irrevocable election binding
on employees. Otherwise, according to Leedham, employees could effectively rescind
their irrevocable elections by declining to use 80 hours of leave. The County rejected
the Association’s proposal to eliminate the 80-hour usage requirement altogether,
claiming that doing so would increase retirement costs for the County and that the
County was not interested in enhancing leave redemption benefits.
The parties had a lengthy discussion about constructive receipt at their
March 2, 2017 bargaining session. The Association again proposed modifying the
leave redemption plan to include irrevocable elections while eliminating the 80-hour
usage requirement. The County again rejected the Association’s proposal.
The Association then suggested that the parties seek an IRS PLR opinion to
determine whether the existing leave redemption plan triggered the constructive
receipt doctrine. Leedham declined, asserting that the County was confident in its
interpretation of the doctrine and that the County did not want to invite the IRS to
scrutinize its tax practices. Leedham noted that the IRS could audit up to three
previous tax years and seek payment for any taxes in arrears. Coyle and Association
Board Member Paul Feldman said that the Association would accept that risk in order
to be forthright with the IRS. Leedham expressed his belief that other unions with

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similar leave redemption benefits would not likely be as willing. Leedham also said the
County would not impose any changes to the leave redemption plan on the
Association. He said that, if the Association was unwilling to modify the leave
redemption plan, the Auditor-Controller’s Office would begin applying its interpretation
of the constructive receipt doctrine to the Association’s plan starting that year.
During other negotiation sessions, the Association proposed temporarily
accepting the County’s proposed changes to the leave redemption plan, if the County
would agree to revert to the prior plan terms if the IRS issued an opinion that the
constructive receipt doctrine did not apply. The Association alternatively proposed
accepting the County’s limitations on redeeming only those hours accrued during the
calendar year, with the exception that employees who declare their intent to retire that
year could redeem hours accrued in prior years as well. This last proposal was, in
essence, making the one-time exception the County proposed earlier into a
permanent, ongoing option available to Association members each year. The County
rejected each of these proposals.
The County’s Misstatements at the Bargaining Table
By the April 4, 2017 bargaining session, the parties were close to agreement on
most terms for a successor MOA but remained at odds on the constructive receipt
issue. Around this time, the parties began discussing the possibility of setting aside
the constructive receipt negotiations and finalizing all other MOA terms.
Because it was starting to appear that the parties would not reach agreement
over how to address the problem with the 80-hour usage requirement for redemptions,
the Association’s team sought to learn more about the County’s constructive receipt

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taxation implementation plan. The Association’s negotiating team asked to meet with
Burgh to discuss how represented employees’ leave hours would be taxed, but the
County declined to make Burgh available.9
The Association therefore directed its questions to Leedham. Silver asked
Leedham whether the County would merely report accrued leave hours as
constructively received income, or whether the County would also withhold taxes for
constructive receipt income from employees’ paychecks. Leedham responded that,
except for a few minor exceptions, the County would only be reporting accrued leave
hours as taxable constructive receipt income and that, for the most part, there would
be no tax withholding. Leedham thereby repeated the same information he had told
Shimmel in October 2016, which Shimmel had shared with Fox and Coyle. The record
reflects that Leedham had made similar statements across the bargaining table
throughout March and April, though the record does not include details as to these
other statements.
Leedham testified his responses were based on conversations he had with
Burgh or others in the Auditor-Controller’s Office. He also testified that he always used
“qualifying words” before answering the Association’s tax questions, such as that his
responses were “based on the information he had at the time” or that it was not his
role to interpret the tax code. During Coyle’s testimony, she denied that Leedham ever
used qualifying language before answering the Association’s tax questions.10
9 Two Association witnesses testified to this fact. When Leedham testified, he
did not dispute their account.
10 Although the ALJ did not make a credibility finding to resolve this testimonial
conflict, we have no need to do so here given that such a determination would not

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The County’s Exploding Offer
At the April 4, 2017 session, the County submitted a new proposal containing
most of the same amendments to the leave redemption plan, with two notable
differences. First, the County would allow employees, as a one-time exception, to
submit their 2017 irrevocable election forms by May 5, 2017, to assist the transition to
the new procedures.11 Second, the County proposed an optional re-opener to discuss
restoring the terms of the prior leave redemption plan in the event that the IRS, a
court, or another governing authority determined that the then-existing plan language
did not trigger the constructive receipt doctrine. The County’s proposal contained the
following note:
“(April 4, 2017, note: since the proposed revision to Section
1205 below contains time-sensitive changes to the leave
redemption election process, if a complete tentative
agreement for a successor MOA is not reached by the
close of business on April 7, 2017, this proposed revision to
Section 1205 shall be withdrawn in its entirety.)”
There was some confusion as to which elements of the County’s proposal
would expire after April 7, 2017. Leedham testified that the County had meant it would
only withdraw its proposal to temporarily allow employees to submit same-year
irrevocable election forms. Fox testified that she thought that the County would
withdraw all pending proposals for a successor MOA. Coyle testified that she believed
affect the outcome of the case. (City of San Ramon (2018) PERB Decision
No. 2571-M, p. 5 (San Ramon).) We do, however, discuss the import of Leedham’s
statements post at pp. 34-35 and pp. 37-38.
11 Going forward, employees would be required to submit their irrevocable
election forms before the start of the year in which they planned to take the leave.

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the County was withdrawing all its proposals pertaining to the constructive receipt
issue. Feldman testified that while he felt the deadline was arbitrary and too short, he
understood the County to mean that it would be withdrawing only the temporary
exception allowing for same-year irrevocable election forms. Leedham admitted at
hearing that the County could have been clearer about which parts of its proposal
would expire at the deadline.
The Association did not accept the County’s April 4, 2017 proposal, and the
County withdrew it after April 7, 2017. Leedham said that the County’s earlier
constructive receipt proposal was still acceptable, but only for the 2018 tax year and
future years. The County did not withdraw its proposals for other MOA sections under
discussion.
The parties met again on April 19, 2017. Leedham again said the County would
only report constructive receipt income and not withhold taxes on it. The parties
discussed the other remaining unresolved issues in negotiations and ultimately
reached a tentative agreement for a three-year successor MOA. The tentative
agreement included no changes to Section 1205 and contained no provisions
designed to address the constructive receipt issue.
Leedham informed the Association’s negotiators that the County would not
accept irrevocable election forms from Association unit members since no agreement
was reached on that issue. He also confirmed that, because there were no changes to
the leave redemption plan in the successor MOA, the leave redemption option would
not change, and the County would continue to honor leave redemption requests
properly submitted under Section 1205. He said that the “door was always open” to

21
continuing discussions and resolving their differences on the constructive receipt
issue.
Ratification of the MOA
The tentative agreement for the successor MOA was subject to ratification by
the Association’s unit members. The Association recommended that unit members
vote to approve the tentative agreement. Although employees reported concerns
about being taxed for their accrued leave under the constructive receipt doctrine,
Association representatives repeated Leedham’s statements that the County intended
to report constructive receipt income but not use such income as a basis for tax
withholding. Unit members voted to ratify the MOA in May 2017. The Association
heard nothing further from the County about the constructive receipt issue until
September 2017.
The County’s September 22, 2017 Letter
On September 22, 2017, Amy Herron, Chief Deputy Auditor-Controller, General
Accounting, sent a letter to all employees whose unions had not agreed to modify their
leave redemption plans. Herron wrote that, for employees who chose not to redeem
accrued leave hours or to redeem fewer hours than the maximum allowed, the County
would nonetheless treat “the value of that accrued vacation eligible for cash out” as
constructively received income. Herron further wrote:
“In other words, the IRS treats this as income even though
you did not actually receive it, because it was available to
you to be drawn upon at your request. The constructively
received income will be included in your taxable wages,
and taxes will be calculated and withheld on that amount.”

22
(Italics added.) She did not explain whether the withholding would apply only to leave
accrued in 2017, or to all accrued leave. Herron recommended that employees
consider cashing out the maximum amount of leave they were eligible to redeem
before the end of the year to avoid constructive receipt taxation. Herron sent a
template version of the letter to Coyle, in her capacity as Association Vice President,
one day before she sent the letter to Association members.
At Coyle’s request, Fox, Coyle, and Feldman met with Burgh and Herron on
October 11, 2017, to discuss Herron’s letter. Burgh and Herron confirmed that the
Auditor-Controller’s Office would be both reporting constructively received income and
withholding taxes on that income from employees’ paychecks. Based on concerns
raised by Association members, Association representatives asked numerous
questions about how the County would be taxing employees under various scenarios.
Herron answered the questions that she could and said she would attempt to find
answers to the remaining questions.
On October 12, 2017, Fox e-mailed Leedham, Burgh, Herron, and others
complaining that the County had provided information during negotiations that was
contradicted by information the Association received the previous day from the
Auditor-Controller’s Office. Specifically, the County previously informed the
Association’s negotiators that it would only be reporting accrued leave hours as
constructively received income, not withholding taxes from employees’ paychecks.
Fox stated that the tax withholding plan would result in employees receiving zero or
close to zero net pay at the end of the year. She asserted that the Association had
detrimentally relied on the County’s earlier, contrary representations. She requested

23
copies of the County’s bargaining notes to assist the Association in deciding how to
proceed.
On October 26, 2017, Fox e-mailed Leedham and other HR representatives,
again complaining that the County’s taxation plan could result in employees with zero
net pay at the end of the year, which contradicted earlier representations from the
County. Leedham responded on October 31, 2017, directing her to send further
inquiries to County Counsel Smith.
The County’s November 6, 2017 Letter
Initially, the Auditor-Controller’s Office planned to withhold constructive receipt
taxes only during the final pay period of 2017. However, the Auditor-Controller’s Office
later determined that some employees’ 2017 withholdings were greater than their
earnings in a single pay period. The Auditor-Controller’s Office concluded that it would
implement 2017 withholdings over three pay periods: the second bi-monthly pay
period in November 2017 and both pay periods in December 2017.
On November 6, 2017, Herron issued another letter to employees whose
unions had not reached agreements to avoid constructive receipt taxation. Herron
restated that the County would report income and withhold taxes on the maximum
amount of annual leave allowed for redemption, even if an employee did not exercise
his/her option to cash out any leave.
Herron also explained that the Auditor-Controller would be withholding taxes for
constructively received income during the last three paychecks of the year, and that
constructive receipt income would be reported on employees’ W-2 forms for 2017.
Herron wrote that the Auditor-Controller’s Office would track the hours already taxed

24
as constructive receipt income and treat them as a post-tax benefit when employees
used or redeemed them in the future. Finally, Herron advised employees who wanted
to avoid constructive receipt on any of their last three paychecks of the year to submit
their cash-out requests by November 16, 2017. The final deadline for cash-out
requests was December 8, 2017.
The Irell & Manella Letter
The Association hired the law firm of Irell & Manella to explore litigation options
regarding the constructive receipt dispute. On November 8, 2017, attorney David
Schwarz sent a letter to Smith and Burgh requesting that the County “immediately
suspend its planned withholdings and maintain the status quo pending good faith
discussions.” Schwarz disagreed with the County’s interpretation of the constructive
receipt doctrine and its decision not to honor irrevocable election forms sent by
Association unit members. He also accused the County of bad faith bargaining by
taking inconsistent positions, withholding critical information from the Association’s
negotiators, and enacting pre-impasse unilateral policy changes. Schwarz said that
the County’s unilaterally planned withholding created the “threat of year-end ‘holiday’
garnishments.” The letter concluded:
“Given the immediate need to resolve this issue, whether
by negotiation or litigation, CJAAVC requests that the
County advise us no later than by November 13, 2017, at
10 a.m. PST, whether it will (a) forbear from proceeding
with any payroll deductions for at least thirty (30) days and
(b) agree to immediately engage in good faith bargaining to
resolve this issue.”
The County did not respond directly to the letter. But Leedham sent Fox a letter on
November 16, 2017, stating that the County was still willing to amend the leave

25
redemption language in the MOA to avoid constructive receipt taxation. He stated that
the County’s most recent offer remained available for the Association to accept for
2018. Furthermore, to mitigate the effects of constructive receipt for 2017, the County
was willing to waive the current limitation on the number of leave redemption requests
each unit member could make. This would allow unit members who had already made
two redemption requests, but who had not yet cashed out the maximum possible
number of hours, to avoid constructive receipt taxation. Leedham offered dates to
resume negotiations.
Fox responded to Leedham’s letter on November 17, 2017, expressing the
Association’s willingness to meet on the issue. She asked whether the County was
willing to negotiate all aspects of the constructive receipt issue, including ways to
avoid such tax withholding for the 2017 tax year.
Implementation of the Tax Withholding Decision
Pursuant to the plan Herron described in her November 6, 2017 letter, the
County withheld taxes on constructively received income beginning with employees’
November 24, 2017 paycheck. The County’s tax withholding lowered the net
paychecks that many Association bargaining unit members received. Some unit
members experienced tax withholdings so substantial that one or more of their final
three 2017 paychecks netted out to near zero.
Moreover, the County created a double taxation problem by taxing the same
hours twice. This problem was exacerbated by the fact that the County pays the
grossed-up rate when an employee cashes out leave hours, and the regular rate when
an employee uses leave hours. Thus, in some cases, employees used leave hours,

26
received the base salary rate for those hours and paid taxes on that salary, and then
near the close of 2017 had the same hours taxed as constructively received at the
higher grossed-up rate.
For example, as of November 18, 2017, Senior Deputy District Attorney Melissa
Suttner had used 248 hours of her annual leave during the calendar year, paid taxes
on those hours as she used them, and had only 67 hours left in her bank. Prior to the
County’s implementation of the constructive receipt rule, Suttner’s regular net wages
exceeded $3,000 each bimonthly pay period. Beginning with the payroll ending
November 18, 2017, the County taxed her on 200 hours of leave as constructive
receipt income—the maximum number of hours she could have cashed out based on
her years of service—yielding a grossed-up constructive income of $21,862.84. The
resulting additional tax (mainly levied on hours she had already used and for which
she had already paid taxes at the regular rate) resulted in net wages of $7.04 for
Suttner’s November 24, 2017 paycheck. Suttner then increased her allowances from
three to 99 to allow her to increase her take-home pay for the remaining pay periods
that year. Suttner asked the County to reimburse her for the difference between the
grossed-up rate that it used for tax withholding and the regular rate that it applied
when she used her leave time, without success. She paid $75 out of pocket to
Certified Public Accountant Richard Womack to file amended tax returns with the IRS
and FTB. As of the hearing she had not yet received a response from either agency.
Similarly, Senior Deputy District Attorney Lisa Lyytikainen had used 268 hours
of her annual leave during the calendar year, paid taxes on those hours as she used
them, and had 136 hours left in her leave bank. Beginning with the payroll date ending

27
November 18, 2017, the County taxed her on 200 hours of leave, her maximum
redemption allowable under the MOA, equating to a grossed-up value of $20,869.72.
Once she learned that the County would withhold taxes on 200 hours of her annual
leave, Lyytikainen increased her allowances to 99 before the pay period ending
November 18, 2017 because she “didn’t want to risk getting a zero paycheck for the
last three pay periods of the year.” Lyytikainen asked the County to reimburse her the
difference between the grossed-up rate that it used for tax withholding and the regular
rate that applied when she used her leave, but the County refused. The Association
presented evidence of other unit members who had been affected in substantially
similar ways.
The Parties’ Subsequent Negotiations on the Constructive Receipt Issue
On November 28, 2017, the Association submitted a written offer on the
constructive receipt issue. The Association proposed accepting the use of irrevocable
election forms, the limitation that employees could only redeem leave hours that were
accrued that year, and retention of the 80-hour redemption prerequisite. However, the
Association rejected the “forfeiture provision” from the County’s proposal. Instead, the
Association proposed that employees who submitted an irrevocable election form but
failed to use 80 hours of leave would have their irrevocable elections declared void,
rendering them unable to redeem leave that year. Finally, the Association called for
the County to permanently allow employees who were imminently retiring to redeem
leave hours accrued in prior years, which the County had previously proposed only as
a one-time exception.

28
The Association submitted an alternative proposal the next day. Under this
proposal, unit members could request to “front-load” the accrual of their annual leave
hours to the beginning of each year. Normally unit members accrued annual leave
hours throughout the year and did not earn their full allotment of hours until the last
pay period of the year.
Around this time, the Association also made a “tax-as-you-go” proposal
whereby the County would report and collect taxes on constructive receipt income as
leave accrued throughout each tax year, rather than during the last three pay periods
of the year.
The County rejected the Association’s proposals in a December 1, 2017 letter
from Atin, opining that the Association’s proposals did not avoid the risk of
constructive receipt taxation. Atin explained that the County was still willing to accept
the terms of its own prior proposal, including the offer to waive the current limitation on
the number of leave redemption requests each unit member could make in 2017, in
order to allow employees the opportunity to cash out as many hours as possible that
year.
On December 7, 2017, Atin e-mailed Fox, Coyle, and other Association
representatives, inquiring whether the Association would accept the County’s offer to
amend the annual leave plan for 2018, in which case the County would temporarily
waive the requirement that employees use 80 hours of leave before requesting
redemptions for 2017. The County was also still willing to allow unit members who had
already exceeded the number of leave requests that year, but who had not yet cashed

29
out the maximum possible number of hours, to submit one additional redemption
request.
On December 20, 2017, Leedham informed Fox and Coyle, via e-mail, that the
County had reached a constructive receipt agreement with the deputy sheriffs’
bargaining unit. That agreement did not include the County’s “forfeiture provision” that
the Association had consistently opposed. Instead, employees who submitted
irrevocable elections, but failed to use enough leave to request a redemption, would
be ineligible to redeem leave and would still be considered to have constructively
received the income designated on their irrevocable election forms. Leedham said that
the County was willing to offer the same terms to the Association. On December 21,
2017, Fox proposed eliminating the 80-hour redemption prerequisite and capping, for
pension purposes, the number of leave hours that would be considered compensable
pay. She suggested that the County retirement board could pass a resolution to
effectuate the latter change.
On December 22, 2017, Atin responded, stating that the County was unable to
verify the legality of the Association’s proposal. He suggested that the parties enter
into a one-year agreement on the constructive receipt issue while they explored the
legal and other implications of the Association’s proposals.
On December 28 and 29, 2017, Fox and Coyle e-mailed a series of questions
about the County’s pending proposal. Atin answered some questions while stating that
the County had already answered others and had not changed its position. Atin
suggested that the Association either submit a written counteroffer that would address
any concerns it had about the County’s proposal or that the parties meet to discuss

30
the matter in person. At the same time, however, Atin noted that it was the last
business day of the year and that if the Association wanted to reach an agreement
that year, the parties would have to do so by 5:00 p.m. that day. Otherwise, Atin
offered to continue discussing the matter in 2018. He said that the pending proposal
was not the County’s last, best, and final offer, and that the County was willing to
continue the discussion. No agreement was reached addressing the constructive
receipt issue in 2017. The County continued to report accrued leave hours as
constructively received income and withhold taxes on that income in the 2018 tax
year.
The Parties’ Tax Experts
At the hearing, the ALJ allowed the County to designate Judith Boyette, an
attorney with several years’ experience advising employers about the tax implications
of leave cash-out plans and other tax matters, as an expert witness on tax law. The
ALJ allowed the Association to designate Womack as its expert on tax preparation,
though not specifically on constructive receipt application.12
Boyette testified that, if an employer concludes its employees are in
constructive receipt of income, it must both report all taxable income and withhold the
appropriate amount in taxes from employees’ paychecks. Merely reporting taxable
income but not withholding taxes creates the risk of incurring tax penalties, according
to Boyette.
12 Neither party filed exceptions to the ALJ’s expert witness rulings and
therefore they are non-precedential. (County of Santa Clara, supra, PERB Decision
No. 2613-M, p. 2, fn. 2.) We accordingly express no opinion on those rulings.

31
Boyette also testified that employers are not required to withhold income taxes
at any particular point in the year because each employer’s operations are different.
She said that employers should withhold taxes at the earliest reasonable time within
the tax year.
Boyette avoided any prediction as to whether the IRS would find that a
particular leave cash-out plan triggered the constructive receipt doctrine. Rather, she
labeled various components of cash-out plans as positive or negative factors that the
IRS would weigh in its determination. Boyette acknowledged that one could seek an
IRS PLR about whether a leave cash-out plan triggered the constructive receipt
doctrine, but she said that doing so came with certain risks. First, she testified that if a
reviewing IRS agent finds a problem with the plan under review, that agent may refer
the matter to the local IRS office, which may elect to audit the program. Second,
Boyette said that seeking a PLR would not fully resolve the tax questions surrounding
the leave plan since there was no mechanism for obtaining an IRS opinion on whether
it would consider a leave cash-out plan to be operating as a deferred compensation
plan.
Womack testified that a group of 10 Association members retained him to file
amended returns seeking refunds from doubly taxed income or other potential over-
withholding, as well as to provide related advice. He filed 20 amended returns in total,
one to the IRS and one to the FTB for each individual. As of the hearing date, he was
aware of 16 refunds resulting from the amended returns: eight from the IRS and eight
from the FTB.

32
DISCUSSION
The Board reviews exceptions to a proposed decision using a de novo standard
of review. (Sacramento City Unified School District (2020) PERB Decision No. 2749,
p. 6 (Sacramento City).) Under this standard, we review the entire record and are free
to make different factual findings and reach different legal conclusions than those in
the proposed decision. (City & County of San Francisco (2021) PERB Decision
No. 2757-M, p. 8.)
A. Bad Faith Bargaining – Case No. LA-CE-1268-M
The complaint in Case No. LA-CE-1268-M alleged that the County engaged in
bad faith bargaining during its negotiations with the Association over amending the
parties’ leave redemption plan. In determining whether a party has violated its duty to
meet and confer in good faith, PERB uses a “per se” test or a “totality of conduct”
analysis, depending on the specific conduct involved. (Arcadia, supra, PERB Decision
No. 2648-M, p. 34.) Per se violations generally involve conduct that violates statutory
rights or procedural bargaining norms. (Id. at pp. 34-35.) In contrast, the totality of
conduct test applies to allegations of bad faith bargaining conduct that does not
constitute a per se refusal to bargain. (Id. at p. 35.)13 Under the totality of conduct test,
the ultimate question is whether the respondent’s conduct, when viewed in its totality,
was sufficiently egregious to frustrate negotiations. (San Ramon, supra, PERB
13 The phrases “totality of circumstances” and “totality of conduct” are
interchangeable, and either phrase describes the operative test. (County of
Sacramento (2020) PERB Decision No. 2745-M, p. 9, fn. 8.) While PERB frequently
refers to bad faith bargaining under this test as “surface bargaining,” that label does
not limit the scope of the relevant factors to only those involving superficial bargaining
conduct. (Ibid.)

33
Decision No. 2571-M, p. 7.) A single indicator of bad faith, if egregious, can be a
sufficient basis for finding that a party has failed to bargain in good faith. (City of San
Jose (2013) PERB Decision No. 2341-M, pp. 18-19 (San Jose).)
The County contends the ALJ erred in finding a bad faith bargaining violation
for two reasons. First, the County argues that both acts the ALJ found were bad faith
indicia—its misrepresentations at the bargaining table and unjustified exploding
offer—occurred outside of the statute of limitations period. Second, the County
challenges the ALJ’s conclusion that its April 4, 2017 exploding offer indicated bad
faith. We find no merit in either exception.
1. 	Statute of Limitations
Absent a recognized exception, PERB is prohibited from issuing a complaint
with respect to any charge based upon an alleged unfair practice occurring more than
six months prior to the filing of the charge. (Coachella Valley Mosquito & Vector
Control Dist. v. Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1077.) The
limitations period begins to run once the charging party knows, or should have known,
of the conduct underlying the charge. (Gavilan Joint Community College District
(1996) PERB Decision No. 1177, p. 4.) Before a complaint issues, the charging party
must allege facts that would, if proven, establish timeliness. (Los Angeles Unified
School District (2014) PERB Decision No. 2359, pp. 3 & 30.) After a complaint issues,
the respondent must plead untimeliness as an affirmative defense (or the defense is
waived), and the respondent bears the burden of proving that the statute of limitations
bars the charge. (Id. at p. 30.)

34
The County does not except to the ALJ’s ruling that, during negotiations in
March and April 2017, Leedham repeatedly misrepresented that the County would
only report income and not withhold taxes based on employees’ accrued leave hours.
Instead, it argues the ALJ improperly relied on that conduct to find the County
bargained in bad faith because it occurred more than six months before the charge
was filed on December 6, 2017. We disagree.
“In order to toll the statute of limitations based on lack of notice or discovery,
[the Association must] show that it did not have ‘clear and unequivocal notice’ of the
alleged misconduct.” (Trustees of the California State University (San Marcos) (2020)
PERB Decision No. 2738-H, p. 12.) Nothing in the record shows that the Association
knew or should have known prior to September 22, 2017, that Leedham had made
material misrepresentations at the bargaining table.
As discussed further below, Leedham repeatedly represented at the
negotiations table throughout March and April 2017 that the County would only report
as income and not withhold taxes on employees’ accrued leave hours. Association
representatives took Leedham’s statements at face value and communicated them to
their membership, recommending that unit members ratify the tentative agreement
precisely because of the reassurances the bargaining team had received that the
County would only report constructive receipt income. Based on Leedham’s
assurances, the Association membership ratified the MOA in May 2017. The
Association’s reasonable reliance was reinforced when the County did not
communicate anything further about the issue for over four months. It was only upon
receipt of the Auditor-Controller’s September 22, 2017 letter directly contradicting

35
Leedham’s March and April 2017 statements that the Association first learned of the
County’s misrepresentations. Even then, it took some work for the Association to
figure out which representation was correct. Because the Association could not have
discovered that Leedham’s statements were inaccurate until after September 22,
2017, the statute of limitations could not have begun to run prior to that date, and the
misrepresentations therefore fall within the limitations period. (Trustees of the
California State University (San Marcos), supra, PERB Decision No. 2738-H, p. 12;
Gavilan Joint Community College District, supra, PERB Decision No. 1177, p. 4.)
In contrast, the Association clearly knew of the County’s April 4, 2017 exploding
offer at the time it was made, more than six months before the charge was filed. This
case thus presents a common scenario in which certain indicia of bad faith fall outside
the limitations period while others fall inside the limitations period. However, PERB
considers bargaining conduct that occurs outside the statute of limitations period if
there is also challenged conduct occurring within the limitations period. (Anaheim
Union High School District (2015) PERB Decision No. 2434, adopting proposed
decision at pp. 57-58 (Anaheim).) Such an approach is necessary because
“[a]rtificially removing from consideration any bargaining conduct older than six
months for any purpose is antithetical to the ‘totality of the bargaining conduct’
analysis.” (County of San Diego (2020) PERB Decision No. 2721-M, p. 9, fn. 5,
quoting Anaheim, supra, PERB Decision No. 2434, adopting proposed decision at
p. 58.) However, when none of the respondent’s conduct during the limitations period
evinces bad faith, evidence from outside the limitations period cannot be used to

36
“reviv[e] a legally defunct unfair practice charge.” (Anaheim, supra, PERB Decision
No. 2434, adopting proposed decision at p. 56.)14
Here, Leedham’s misrepresentations are deemed timely because the
Association did not actually discover and confirm they were inaccurate until several
weeks after it received the County’s September 22, 2017 letter. Because there is
timely evidence of the County’s bad faith, we consider the County’s April 4, 2017
exploding offer as a further indicator of bad faith. (Anaheim, supra, PERB Decision
No. 2434, adopting proposed decision at pp. 57-58.) The ALJ therefore did not err by
finding bad faith based on both the misrepresentations and the exploding offer.
2. Indicia of Bad Faith
Under the totality of conduct test, bad faith indicia relevant here include:
misrepresenting facts (Rio School District (2008) PERB Decision No. 1986, p. 12);
failing to explain a bargaining position in sufficient detail or to provide requested
information supporting a bargaining position, without an adequate reason for such
failure (City of Davis (2018) PERB Decision No. 2582-M, pp. 19-20, citing NLRB v.
Truitt Mfg. Co. (1956) 351 U.S. 149, 152-153; San Jose, supra, PERB Decision
No. 2341-M, p. 42); engaging in dilatory or evasive tactics, failing to prepare
14 The Board has typically not framed this analysis as falling under the new
wrongful act doctrine, an exception to the statute of limitations that applies if, during
the limitations period, the respondent committed a new wrongful act that goes beyond
merely reiterating a prior policy. (County of San Diego, supra, PERB Decision
No. 2721-M, p. 14, citing City & County of San Francisco (2017) PERB Decision
No. 2536-M, p. 15.) However, the Board’s traditional approach in bad faith bargaining
cases mirrors the new wrongful act doctrine in holding that the Board will consider
bargaining conduct outside the statute of limitations period if there is also challenged
conduct occurring within the limitations period.

37
adequately for negotiations, or failing to take one’s bargaining obligation seriously
(Children of Promise Preparatory Academy (2018) PERB Decision No. 2558, p. 26;
Oakland Unified School District (1983) PERB Decision No. 326, pp. 33-34); and
making a time-limited, i.e., “exploding,” offer without a legitimate basis (Arcadia, supra,
PERB Decision No. 2648-M, p. 43.)
Notably, the County does not dispute that Leedham misrepresented the true
facts when he repeatedly claimed that the County would not withhold taxes based on
the constructive receipt doctrine. These misrepresentations, while indicators of bad
faith in their own right, also prove a failure on the County’s part to provide requested
information, fully prepare for bargaining, and treat negotiations with adequate care and
seriousness. It would have required little effort on Leedham’s part to confirm his
statements with Burgh’s office, for instance. Adding to this bad faith conduct, the
Association asked Leedham to make Burgh available and Leedham denied the
request, also failing to make someone else from the Auditor-Controller’s Office
available to answer the Association’s questions. Even if Leedham qualified his
statements as being “based on the information he had at the time,” they were no less
misleading. Likewise, Leedham’s claim that it was not his role to interpret the tax code
is unavailing as the Association never asked him to do so; rather, the Association
asked him a factual query, i.e., how the County was planning to implement tax
withholding. The County thus failed to exhibit the central aspects of good faith
bargaining, including honesty, preparation, thoroughness, seriousness, and
reasonable attempts to answer the other side’s questions. Moreover, as discussed
above, the record shows that this conduct frustrated negotiations by leading the

38
Association to rely on the fact its members would not experience increased tax
withholding.
Finally, we turn to the County’s exceptions as to another indicator. Specifically,
the County argues that the ALJ incorrectly found that it failed to provide an adequate
explanation for making an exploding offer. We find no merit to this exception.
While an exploding offer is not a per se violation, a bargaining party evidences
bad faith under the totality of conduct test if it does not adequately justify a threatened
change in position that is inherent in an exploding offer. (Arcadia, supra, PERB
Decision No. 2648-M, p. 43.) This is because an exploding offer, like regressive
bargaining—making proposals that are overall less generous to the other party than
prior offers—manifestly moves parties further away from agreement and thus, without
an adequate explanation, indicates bad faith. (Id. at p. 39.)
In Arcadia, at the employer’s behest, the employer and union began successor
contract negotiations ten months prior to the expiration of the parties’ existing contract,
far earlier than the few months the parties had historically devoted to negotiations.
After the union had formed its negotiations team, but prior to the first formal bargaining
session, the employer made a comprehensive offer to the union with the caveat that it
would expire in 22 days (at the end of November). The employer’s stated reason for
establishing a deadline for acceptance was that the City would be holding a City
Council election the following spring, potentially changing the composition of the
Council. We found the employer’s explanation inadequate to justify the exploding offer
given the significant time lag between the employer’s unilaterally imposed deadline

39
and the City Council election. Without a legitimate basis, the exploding offer evidenced
bad faith.
Here, the County made an offer with an expiration date only three days later, at
which point the County did, in fact, withdraw its offer. As the County saw it, its risk of
exposure to tax liability would increase as the year progressed. On this point,
Leedham testified that “[i]f bargaining was to continue for months and months, we
didn’t believe that we could continue to offer something like this deep into a calendar
year.” Thus, the potential tax liability gave the County a reasonable basis for not
leaving its offer on the table throughout 2017.
While we credit the County’s argument that the tax liability issue gave it a
reasonable basis for not leaving its offer on the table throughout 2017, the County
gave neither the Association nor PERB a clear, supportable reason for its exceedingly
short, three-day deadline. Nor did it give any reason why it could not have provided a
longer, more reasonable period of time for the Association to respond to its offer
without materially increasing its potential tax liability. We infer from the County’s
inability to justify the tight timeline that the three days was intended at least in part to
pressure the Association into reaching agreement on a successor MOA, which is not a
legally sufficient explanation to make an exploding offer. (See Arcadia, supra, PERB
Decision No. 2648-M, p. 39 [“If a party was free to make an exploding offer at any time
and offer no justification for threatened or actual regressive bargaining other than the
other side’s failure to accept the proposal by a given deadline, then exploding offers
would amount to an exception that swallows the regressive bargaining rule”].)
Although we do not preclude the possibility of circumstances under which such a short

40
deadline may be legitimately justified, the facts here do not present us with such a
situation.
The County contends, however, that its exploding offer did not have the effect
of frustrating negotiations because the parties ultimately agreed to a successor MOA.
This argument overlooks the critical fact that the parties did not reach an agreement
on amendments to the leave redemption plan that would have addressed the
constructive receipt issue. As the ALJ noted, one result of the County’s exploding offer
was to rush the Association’s negotiators and curtail the Association’s opportunity to
meaningfully consider and discuss the offer’s implications. And because the
Association did not know at the time that the County planned to withhold taxes based
on constructive receipt income, the Association was unable to appreciate that the
County’s exploding offer would have allowed unit members to avoid constructive
receipt tax withholdings that year. The exploding offer and misrepresentations thus
combined to frustrate good faith negotiations.
Likewise, we do not share the County’s perspective that the exploding offer was
essentially harmless because “there is no evidence in the record that the Association
. . . would have entertained the proposal if the deadline was longer.” The County
appears to claim that its proposal was absolved of wrongfulness because the parties
were never able to resolve the constructive receipt issue before the Association ratified
the MOA. We cannot ignore, however, that this result may have been attributable, at
least in part, to the rush and confusion generated by the exploding offer and
misrepresentations, which prevented the Association from appreciating the full import of
not reaching a resolution. And in any event, we generally do not look favorably upon a

41
party’s rationalizations of an unlawful act by a claim of futility. (See, e.g., Lucia Mar
Unified School District (2001) PERB Decision No. 1440, adopting proposed decision at
p. 45 [“The law does not mandate success, but only requires a ‘good faith’ effort by the
parties to reach agreement”]; cf. Calexico Unified School District (1983) PERB Decision
No. 357, adopting proposed decision at pp. 20-23.) The ALJ thus correctly found that
the County’s exploding offer was an indicator of bad faith.
In sum, the Association’s bad faith bargaining allegations are timely. The
Association did not actually discover Leedham’s misrepresentations until
September 22, 2017, and it filed its unfair practice charge on December 6, 2017, well
within the six-month statute of limitations. Because we were presented with timely
evidence of the County’s bad faith, we considered the County’s April 4, 2017
exploding offer as a further indicator of bad faith, despite that conduct falling outside
the statute of limitations period. Based on the County’s misrepresentations and
exploding offer, among other bad faith indicia, the ALJ properly found that the County
violated its duty to bargain in good faith.
B. Bargaining the Effects of the County’s Decision – Case No. LA-CE-1260-M
1. 	Waiver by the Association
The County argues the ALJ erred by failing to find that the Association had
waived its right to bargain the effects of the County’s decision to withhold taxes on
constructively received income.15 According to the County, the ALJ’s erroneous
15 The Association has not excepted to the ALJ’s conclusion that the County
had no duty to bargain over its decision to withhold taxes and instead had only a duty
to bargain over foreseeable effects. The ALJ’s conclusion is therefore not before us
and is non-precedential. (County of Santa Clara, supra, PERB Decision No. 2613-M,
p. 2, fn. 2.) We accordingly express no opinion as to whether the County had decision

42
conclusion stems from his finding that the County did not give the Association
sufficient notice of its decision to withhold taxes on constructively received income
until November 6, 2017, rather than on September 22, 2017. We do not find the
County’s arguments persuasive.
The duty to bargain in good faith extends to the implementation and effects of a
decision that has a foreseeable effect on matters within the scope of representation,
even where the decision itself falls outside the scope of representation. (County of
Santa Clara (2019) PERB Decision No. 2680-M, pp. 11-12.) An employer must
provide notice and a meaningful opportunity to bargain over the reasonably
foreseeable effects of its decision before implementation, just as it would for a
decision involving a mandatory subject of bargaining. (Id. at p. 12; City of Sacramento
(2013) PERB Decision No. 2351-M, p. 17.) Once the union receives proper advance
notice, it must demand to bargain effects or risk waiving its right to do so. (County of
Santa Clara (2013) PERB Decision No. 2321-M, p. 30.) The union’s demand must
clearly communicate its desire to bargain over the effects of the decision, as opposed
to the decision itself, and identify the matters within the scope of representation that it
proposes to bargain. (Ibid.) However, a union is not required to demand to bargain
effects where an employer fails to provide notice prior to implementing the change. (Id.
at p. 31; Bellflower Unified School District (2017) PERB Decision No. 2544, adopting
proposed decision at p. 22.)
bargaining duties in addition to effects bargaining duties. Instead, our discussion
focuses on the County’s waiver argument and whether the County was entitled to
implement its decision without completing effects bargaining.

43
On the other hand, a union may waive its right to bargain the reasonably
foreseeable effects of an employer’s decision if it fails to demand to bargain such
effects. (County of Santa Clara, supra, PERB Decision No. 2321-M, pp. 30-31.) “An
employer raising a waiver defense must establish that: (1) it provided the employee
organization clear and unequivocal notice that it would act on a matter, and (2) the
employee organization clearly, unmistakably and intentionally relinquished its right to
meet and confer in good faith.” (City of Palo Alto (2017) PERB Decision No. 2388a-M,
p. 38, original underline.) To establish that a union waived its right to bargain by
inaction, “the evidence must demonstrate an intentional relinquishment of the union’s
right to bargain.” (Santee Elementary School District (2006) PERB Decision No. 1822,
p. 3 (Santee), citing San Francisco Community College District (1979) PERB Decision
No. 105.)
To trigger a union’s obligation to demand bargaining, notice of a proposed
change must “clearly inform[] the employee organization of the nature and scope of
the proposed change.” (County of Santa Clara, supra, PERB Decision No. 2321-M,
p. 30, citing Santee, supra, PERB Decision No. 1822.) In Lost Hills Union Elementary
School District (2004) PERB Decision No. 1652 (Lost Hills), following contract
negotiations and the union’s ratification of a successor collective bargaining
agreement, the district unilaterally implemented a new wage formula that was not itself
contained in the contract. The new formula decreased pay for certain job
classifications. During bargaining, the district’s negotiator described the wage formula
as, “If you are driving a bus, you get bus pay. If you are a custodian, you get custodian
pay. If you’re grounds, you get grounds pay.” (Id., adopting proposed decision at p. 4.)

44
Later, the district’s director of business services told the union president “there was
going to need to be some adjustments made to the salary schedule,” and the union
president only asked in response whether the change would happen immediately.
(Ibid.) The Board found that the district bargaining representative’s statement was
“hardly clear or unambiguous, one which could inform [the union] of [the district’s]
intent to change the wage formula.” (Id., adopting proposed decision at p. 6.) Neither
“could the District’s meaning have been reasonably understood” from the district’s
statement that some “adjustments” would be made to the salary schedule. (Ibid.) As a
result, the Board concluded that the district had not provided the union with notice or
an opportunity to bargain prior to implementation of the change. (Ibid.; see, e.g.,
Santee, supra, PERB Decision No. 1822, pp. 7-8.)
Applying these standards, we conclude that the County did not provide the
Association with clear notice of its decision to implement tax withholding based upon
constructively received income until November 6, 2017. Although the County’s
September 22, 2017 letter announced that “the constructively received income will be
included in your taxable wages, and taxes will be calculated and withheld,” it lacked
critical details that would have put the Association on notice of the County’s intended
change, much like the employer’s statement in Lost Hills. The letter did not advise the
Association of when the County planned to implement the tax withholding; which unit
members would be subject to withholding; how the County would calculate the
withholding to avoid double taxation and which pay rates it would use to determine
employees’ tax liability under the constructive receipt rule; and whether the County
would withhold taxes on leave accrued in 2017, on all accrued leave (including that

45
from previous years), or on leave accrued going forward after a certain date.16 Most
importantly, the letter contravened what Leedham had represented to the Association
during negotiations in March and April 2017, thereby requiring the Association to
figure out which set of representations were correct. Thus, the September 22 letter did
not, by itself, clearly inform the Association of the County’s planned change. The
requisite notice came instead from the County’s November 6 letter, which contained
the specifics of how the County intended to implement its tax plan.
The County argues that the key details missing from its September 22, 2017
letter were those which would have been subject to effects bargaining, implicitly
arguing that the letter provided the Association with notice sufficient to obligate it to
demand effects bargaining. But the foreseeable effects of the County’s decision to
begin withholding taxes based on constructive receipt income were not apparent from
the September 22 letter. The Association needed more information, as described ante,
before it could make a viable demand to bargain the effects of the decision. (See
Santee, supra, PERB Decision No. 1822, p. 8 [new policy providing that
consequences of violating the policy were to be delineated in a separate regulation did
not allow the employee organization to determine the foreseeable effects of the policy
change on bargaining unit members].) Under these circumstances, the September 22,
2017 letter did not provide sufficiently clear notice of the proposed changes.
16 While some of this information may arguably relate to portions of the decision
that the ALJ found to fall outside the scope of representation, the information was still
necessary to allow the Association to assess potential effects in a meaningful manner.
Moreover, other parts undisputedly fall within the scope of representation. For
instance, the parties could have bargained the timing of the withholding—specifically,
the pay periods in which the County intended to implement them.

46
Even if we were to regard the County’s September 22, 2017 letter as adequate
notice of the County’s decision to withhold taxes on constructively received income,
the record is replete with evidence that the Association did not at any point clearly and
unmistakably waive its right to bargain.17 The Association repeatedly indicated its
interest in bargaining over the impacts of the County’s decision following the issuance
of the September 22 letter.
First, after receiving the letter, Coyle requested a meeting with the Auditor-
Controller’s Office. On October 11, 2017, Burgh and Herron met with Coyle, Fox, and
Feldman to discuss the County’s planned implementation of the constructive receipt
rule. The Association representatives presented a number of hypotheticals to Burgh
and Herron in an attempt to address various members’ concerns about how the
County intended to withhold taxes. It was during this meeting that Burgh and Herron
confirmed that the Auditor-Controller’s Office would be both reporting as constructively
received income the leave hours that employees were eligible to redeem and
withholding taxes on that income from employees’ paychecks.
17 The County’s misrepresentations about its tax withholding plan also undercut
the County’s waiver argument. There can be no intentional relinquishment of an
interest where such relinquishment was induced by the employer’s misstatement. (See
San Bernardino Community College District (2018) PERB Decision No. 2599, p. 14,
citing Placentia Unified School District (1986) PERB Decision No. 595, p. 4 [“evidence
must ‘reflect[ ] a conscious abandonment of the right to bargain over a particular
subject’” (emphasis added)].) Though the September 22 letter started to backtrack
from the misrepresentations, the County is not entitled to presume that a union must
turn on a dime and suddenly assume that prior employer representations were false,
and a later representation is true. The Association began investigating which set of
facts were true, which was what a reasonable organization would have done.

47
Second, on October 12, 2017, Fox e-mailed Leedham, Burgh, Herron, and
other County representatives to complain that Leedham’s representations during
negotiations directly contradicted the information that Burgh and Herron had given the
Association the previous day. Fox requested copies of bargaining notes to help the
Association Board decide what actions it needed to take.
Later, on October 26, 2017, Fox e-mailed Leedham and other HR
representatives about the County’s taxation plan, again complaining that the County’s
tax plan could result in employees with zero net pay on end of the year paychecks,
which contradicted earlier representations from the County. None of these actions are
consistent with an intentional relinquishment of the Association’s right to bargain over
the effects of the County’s tax withholding decision.18
Two days after it finally learned the truth about the County’s tax withholding
plan, the Association, through its counsel, made a valid demand to bargain effects via
its November 8, 2017 letter.19 Among other references to the impacts of the County’s
18 Indeed, the Association’s interest in negotiating the tax withholding decision
after September 22, 2017 is even more apparent when considered in the context of
the multiple attempts the Association made to discuss the County’s constructive
receipt taxation plans between October 2016 and April 2017.
19 Despite the ALJ’s finding that the November 8, 2017 letter “did not specify
that the Association was seeking to bargain over the effects of the withholdings
decision,” he nevertheless properly concluded that the Association timely signaled its
interest in bargaining over the negotiable effects of the County’s tax withholding
decision. (See County of Sacramento (2013) PERB Decision No. 2315-M, p. 5 [“In
order to perfect a valid demand to bargain, the exclusive representative is not required
to recite a formulaic phrase, but may express its request in any form that conveys its
desire to meet and confer or negotiate about a matter within the scope of
representation”].)

48
decision, the letter stated, “We believe there are a number of options that might
mitigate or avoid these [potentially negative] outcomes. CJAAVC remains willing to
find that solution.” The Association demanded that the County not implement its tax
withholding decision before completing good faith negotiations with the Association.
Both parties subsequently exchanged proposals designed to minimize or avoid the
adverse consequences of the County’s decision, including proposals to “tax-as-you-
go” and to eliminate the limit on leave redemption requests. None of the proposals
discussed at the time required the County to rescind its decision to withhold taxes on
constructively received income. As the ALJ also pointed out, because the County
ultimately engaged with the Association in bargaining over the effects of the tax
withholding decision, the County could not then maintain that the Association had
waived its right to demand effects bargaining.
Since the party asserting waiver bears the burden of proving it as an affirmative
defense, we resolve any doubts against that party. (County of Merced (2020) PERB
Decision No. 2740-M, p. 19; Regents of the University of California (2004) PERB
Decision No. 1689-H, adopting proposed decision at pp. 44-45.) It is clear from the
record that the Association did not clearly and unmistakably waive its right to bargain.
Thus, we reject the County’s waiver argument.
2. 	The County’s Unilateral Implementation
The County challenges the ALJ’s finding that it was not entitled to implement its
tax withholding decision before completing bargaining over the effects of that decision,
arguing that it satisfied the test set forth in Compton Community College District
(1989) PERB Decision No. 720 (Compton CCD). In that case, the Board identified the

49
limited circumstances under which an employer may implement a decision on a non-
mandatory topic prior to exhausting its effects bargaining obligation. (Id. at pp. 14-15.)
An employer is privileged to implement such a decision where: (1) the implementation
date is based on an immutable deadline or an important managerial interest, such that
a delay in implementation beyond the date chosen would effectively undermine the
employer’s right to make the decision; (2) it gives sufficient advance notice of the
decision and implementation date to allow for meaningful negotiations prior to
implementation; and (3) it negotiates in good faith prior to implementation and
continues to negotiate afterwards as to the subjects that were not resolved by virtue of
implementation. (Ibid.) As to the first element, it is difficult to find support for an
“immutable” deadline here, given that there was no change in tax law giving rise to the
City’s decision to look into and begin applying the constructive receipt doctrine. The
City had already incurred the same risk of tax liability for years, and the City did not
articulate any reason why 2017 was so different that it created an immutable deadline.
As already found ante, the County did not give the Association sufficient notice
of its decision to implement the tax withholding such that the parties could
meaningfully exchange and consider the other’s proposals beforehand. The
September 22 letter did not put the Association on immediate notice of the County’s
tax decision not only because it lacked key information as to when the withholding
would take place, to whom the withholdings would apply, and how they would be
enacted, but also because the letter was irreconcilably inconsistent with what
Leedham had represented to the Association during negotiations five months earlier.
The Association spent the ensuing weeks trying to uncover the truth about the

50
County’s plan. By November 6, when the Association finally learned the details of the
County’s plan to withhold taxes, only 10 days remained until the County would begin
implementation, as the cutoff date for processing the November 24 paychecks was
November 16. Thus, the County did not give sufficient advance notice of its decision to
allow for meaningful negotiations before implementation.
As to the third element, the County claims the ALJ erred by finding that the
County bargained in bad faith prior to implementing its withholding decision. According
to the County, an employer’s “obligation to bargain over the effects of such a non-
negotiable decision would not arise until after notice of the decision is given and a
bargaining demand is made.” The gravamen of the County’s argument is that we
should disregard its earlier misrepresentations and exploding offer—neither of which it
disputes it made—because it did not give notice of its decision to implement the tax
withholdings until months later. We reject the County’s invitation to apply Compton
CCD in such a mechanistic way.
We do not read Compton CCD as being so limited as to require PERB to
consider only an employer’s post-notice bargaining conduct. The third element of the
test broadly requires that “the employer negotiates in good faith prior to
implementation.” While the facts in Compton CCD did not involve a finding of earlier
bad faith conduct, there is likewise no qualifying language stating that the employer’s
obligation to bargain in good faith is circumscribed to the period between notice and
implementation. Indeed, such a limitation would run counter to the MMBA’s unqualified
requirement that employers and employee organizations meet and confer in good
faith. (§ 3505.)

51
Moreover, we cannot set aside the County’s misrepresentations and exploding
offer in analyzing the third element of Compton CCD because they are inextricably
tied to the later effects bargaining. By erroneously informing the Association that the
County only intended to report and not withhold taxes, Leedham misled the
Association’s negotiators on a critical effect. The County compounded the problem by
refusing to bring Burgh or anyone else from the Auditor-Controller’s Office to the
bargaining table, or to at least have a reasonable alternative for the Association to get
reliable answers and engage in interactive dialogue. The consequences of these
actions carried into the fall as the Association scrambled to discern the truth about the
County’s plan following the September 22 letter. The net effect of the exploding offer
was to cut short negotiations on the constructive receipt issue, making it even less
likely the Association would learn that the County had misled it. With more time to
discuss the County’s tax plan, the Association may have been able to learn the truth
and thus had ample time to negotiate the effects of the County’s decision, instead of
the 10 days it was ultimately left with in November 2017.
Accordingly, we find that the County did not negotiate in good faith prior to
implementation of its tax withholding decision. Because the County did not meet the
Compton CCD test, it was not privileged to implement that decision when it did.
C. Remedy
The ALJ’s proposed remedial order required the County to “compensate
Association unit members for financial losses, if any, arising directly from its failure to
provide the Association with adequate notice and the opportunity to fully bargain over
the effects of its decision to withhold taxes from paid leave hours taxed as

52
constructively received income.” The County excepts to the ALJ’s proposed make-
whole order, contending that the only “financial losses” employees could have suffered
were the withholding of constructive receipt taxes, which the County was required to
withhold by state and federal law. The Association urges us to uphold the proposed
make-whole relief and points to several categories of “damages and/or impairment of
benefits to Association unit members.”
The Legislature has granted PERB broad authority to investigate and remedy
violations of the MMBA and to take any action the Board deems necessary to
effectuate the Act’s purposes. (§ 3509, subd. (b); City of Palo Alto (2019) PERB
Decision No. 2664-M, p. 2.) A “properly designed remedial order seeks a restoration of
the situation as nearly as possible to that which would have obtained but for the unfair
labor practice.” (City of Culver City (2020) PERB Decision No. 2731-M, adopting
proposed decision at p. 50, citing Modesto City Schools (1983) PERB Decision
No. 291, pp. 67-68.) An appropriate remedy therefore should make whole all injured
persons or organizations for the full amount of their losses and should withhold from
the wrongdoer the fruits of its violation. (Sacramento City, supra, PERB Decision
No. 2749, p. 10; City of Pasadena (2014) PERB Order No. Ad-406-M, p. 13.)
The standard remedy for an employer’s unlawful unilateral change usually
consists of a cease-and-desist order, make-whole relief for employees injured by the
change, rescission of the change, and a bargaining order. (County of Santa Clara,
supra, PERB Decision No. 2680-M, p. 14; Pasadena Area Community College District
(2015) PERB Decision No. 2444, pp. 23-24.) Similarly, when an employer
implemented changes to terms and conditions of employment without first reaching a

53
bona fide impasse in negotiations due to its surface bargaining conduct, the typical
remedy for a bad faith bargaining violation includes an order to cease and desist from
the unlawful bargaining conduct and restore the status quo. (San Ramon, supra,
PERB Decision No. 2571-M, p. 17; City of Selma (2014) PERB Decision No. 2380-M,
p. 25.)
When an employer’s violation involved a failure to bargain effects, make-whole
relief runs from the date any impacted employee began to experience harm until the
earliest of: (1) the date the parties reach an agreement as part of complying with our
effects bargaining order; (2) the date the parties have reached impasse and
exhausted any post-impasse procedures that may be required or agreed upon; or
(3) failure by the union to bargain in good faith. (County of Santa Clara, supra, PERB
Decision No. 2680-M, p. 14.)
Here, the ALJ’s proposed make-whole remedy directed the County to
“compensate Association unit members for any financial losses incurred as a direct
result [of] its decision to implement its constructive receipt income tax withholdings
decision before completing negotiations over the negotiable effects of that decision.”
While this proposed remedy would be appropriate in many cases, particularly where
further litigation is needed to determine both the nature and amount of losses resulting
from a violation, the unique circumstances of this case warrant a different approach.
Over the course of a 10-day hearing, the parties created an extensive record that allows
us to define the nature of appropriate make-whole relief more specifically than the ALJ
did in the proposed decision. In the interest of administrative economy, we will do so to
avoid protracted compliance proceedings.

54
Because we have no reason to determine whether the County was right or
wrong in its interpretation of the constructive receipt doctrine, and because unit
members were able to obtain at least partial refunds of excess withholdings through
Womack’s efforts, we do not order the County to make employees whole for their
additional tax liability or for harms caused when employees sought to reduce their
taxes by redeeming accrued leave.20 In contrast, however, a preponderance of the
evidence indicates that the County’s MMBA violations are a substantial cause of the
circumstances reasonably leading unit members to retain a tax professional to assist
them with filing amended federal and/or state tax returns (including some employees
who may do so in the near future, either for the first time or on a repeated basis).21
Under salient PERB precedent, these employees are entitled to reimbursement of
20 PERB has made employees whole for taking leave at a time not of their
choosing, when those circumstances resulted from an employer’s decision to change
a policy within the scope of representation without providing notice and an opportunity
to bargain in good faith to impasse or agreement. (Lodi Unified School District (2020)
PERB Decision No. 2723, p. 21.) Here, however, the Association did not except to the
ALJ’s conclusion that the County’s decision to begin applying the constructive receipt
doctrine fell outside the scope of representation, and we decline to consider that issue
sua sponte. Also not before us are any claims that the County bargained in bad faith
by proposing to adopt or adopting an illegal construction of state and federal tax laws.
While such illegality claims occasionally require PERB to interpret state or federal
constitutional rights or statutory schemes that we do not enforce, we have no cause to
do so here. (Cf. San Jose, supra, PERB Decision No. 2341-M, p. 49 [claim involved an
alleged illegal or prohibited subject of bargaining]; City of Pinole (2012) PERB
Decision No. 2288-M, pp. 8-12 [same].)
21 While the Association describes the problem with the County’s tax
withholdings as one of double taxation, testimony from Association witnesses and
other record evidence focuses on the differential in rates at which the County taxed
bargaining unit members. Irrespective of how the problem is characterized, the
remedy is the same, as employees can recoup excess withholding through the
assistance of a tax professional.

55
accountancy and/or related professional fees incurred in relation to the County’s
implementation of its constructive receipt tax withholding decision. (See, e.g.,
Sacramento City, supra, PERB Decision No. 2749, pp. 11-13 [ordering reimbursement
of legal expenses reasonably incurred in a separate proceeding to remedy, lessen, or
stave off the impacts of the other party’s unfair practice]; City of San Diego (2019)
PERB Decision No. 2464a-M, p. 4 [on remand from Court of Appeal’s affirmance of
the Board’s award of legal expenses, ordering reimbursement of reasonable attorneys’
fees and costs for litigation undertaken to remedy unfair practice]; Omnitrans (2009)
PERB Decision No. 2030-M, p. 30 [ordering reimbursement of legal expenses incurred
in ancillary criminal trespassing case resulting from employer’s unfair practice].)22
While it is possible some unit members might have hired tax professionals even
if the County had followed the law, such uncertainty does not bar a make-whole
award. (City of Pasadena, supra, PERB Order No. Ad-406-M, pp. 13-14 [PERB uses a
preponderance of evidence standard to estimate damages even if the exact measure
of damages is uncertain].) Particularly given that the record shows impacted
employees have successfully obtained refunds from the IRS and FTB through filing
amended tax returns to address the double taxation issue and/or other bargainable
impacts, reimbursement of ancillary fees incurred is sufficient to make unit members
22 Because the Association did not file exceptions, there is no request before us
to reverse the ALJ’s denial of an attorneys’ fees award or to order reimbursement of
ancillary attorneys’ fees the Association incurred from retaining tax experts and/or the
attorneys it hired in November 2017 for bargaining over the constructive receipt issue.
(See Sacramento City, supra, PERB Decision No. 2749, pp. 11-13 [explaining
standards PERB applies in two discrete contexts in which a party seeks an award of
legal expenses].)

56
whole.23 The County’s obligation to reimburse these fees will last until: (1) the date the
parties reach an agreement as part of complying with our effects bargaining order;
(2) the date the parties have reached impasse and exhausted any post-impasse
procedures that may be required or agreed upon; or (3) failure by the Association to
bargain in good faith or to request bargaining. (County of Santa Clara, supra, PERB
Decision No. 2680-M, p. 14.).
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire
record in the case, it is found that the County of Ventura violated the Meyers-Milias-
Brown Act (MMBA), Government Code sections 3502, 3503, 3505, 3506, and 3506.5,
subdivision (c), and PERB Regulation 32603, subdivision (c), by implementing its
decision to withhold taxes based upon accrued paid leave without affording the
Criminal Justice Attorneys Association of Ventura County (Association) adequate
notice and a meaningful opportunity to bargain over the negotiable effects of that
23 In certain cases involving back pay awards, an appropriate make-whole
remedy may include an order requiring compensation for increased tax liability
resulting from a lump sum back pay award that covers more than one calendar year.
(See, e.g., Don Chavas, LLC (2014) 361 NLRB 101, 102; Economy v. Sutter East Bay
Hospitals (2019) 31 Cal.App.5th 1147, 1163-1164; Clemens v. CenturyLink, Inc. (9th
Cir. 2017) 874 F.3d 1113, 1117.) Although the case before us does not present facts
implicating so-called “tax neutralization,” we note that PERB’s broad statutory
authority to investigate and remedy violations of the MMBA empowers us to order this
relief where appropriate. (Compare MMBA, § 3509, subd. (b) with Barber v. State
Personnel Bd. (2019) 35 Cal.App.5th 500, 505 [holding that State Personnel Board is
not statutorily authorized to provide compensation for increased tax liability stemming
from a multi-year lump sum backpay award because Gov. Code, § 19584 is limited to
payments of “salary”].)

57
decision; and by bargaining in bad faith over amending the parties’ leave redemption
plan.
Pursuant to MMBA section 3509, it is hereby ORDERED that the County, its
governing board, and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Negotiating with the Association in bad faith.
2. 	Failing to provide the Association notice and the opportunity to
complete bargaining over the negotiable effects of the County’s decision to begin
withholding taxes based upon accrued leave hours that it deemed to be constructively
received income.
3. 	Interfering with the Association’s right to represent its members.
4. 	Interfering with employees’ right to be represented by the
Association.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Meet and confer with the Association, upon demand, over
modifying the parties’ paid leave redemption plan to avoid constructive receipt
taxation.
2. 	Meet and confer with the Association, upon demand, over the
negotiable effects of the County’s decision to begin withholding taxes based upon
accrued leave hours that it deemed to be constructively received income.
3. 	Reimburse Association unit members for any accountancy and/or
related professional fees incurred in relation to the County’s implementation of its
constructive receipt tax withholding decision. Compensation for these fees shall be

58
augmented by interest at a rate of seven percent per annum. The period of
reimbursable fees shall commence on September 22, 2017, and continue until the
earliest of: (1) the date the parties reach an agreement as part of complying with our
effects bargaining order; (2) the date the parties have reached impasse and
exhausted any post-impasse procedures that may be required or agreed upon; or
(3) failure by the Association to request bargaining or to bargain in good faith.
4. 	Within 10 workdays after this decision is no longer subject to
appeal, post at all County locations where notices to employees in the Association’s
bargaining unit are customarily posted, copies of the Notice attached hereto as an
Appendix. In addition to physical posting, the Notice shall be posted by electronic
means customarily used by the County to regularly communicate with employees in
the Association’s bargaining unit. 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 30 consecutive workdays. Reasonable steps shall
be taken to ensure that the Notice is not reduced in size, altered, defaced or covered
with any other material.24
24 In light of the ongoing COVID-19 pandemic, the County shall notify PERB’s
Office of the General Counsel (OGC) in writing if, due to an extraordinary circumstance
such as an emergency declaration or shelter-in-place order, a majority of employees at
one or more work locations are not physically reporting to their work location as of the
time the physical posting would otherwise commence. If the County so notifies OGC, or
if the Association requests in writing that OGC alter or extend the posting period, require
additional notice methods, or otherwise adjust the manner in which employees receive
notice, OGC shall investigate and solicit input from all parties. OGC shall provide
amended instructions to the extent appropriate to ensure adequate publication of the
Notice, such as directing the County to commence posting within 10 workdays after a
majority of employees have resumed physically reporting on a regular basis; directing
the County to mail the Notice to all employees who are not regularly reporting to any

59
5. 	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. The County 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 the Association.
Members Shiners and Krantz joined in this Decision.
work location due to the extraordinary circumstance, including those who are on a short
term or indefinite furlough, are on layoff subject to recall, or are working from home; or
directing the County to mail the Notice to those employees with whom it does not
customarily communicate through electronic means.

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 Nos. LA-CE-1260-M and LA-CE-1268-
M, Criminal Justice Attorneys Association of Ventura County v. County of Ventura, in
which all parties had the right to participate, it has been found that the County of
Ventura (County) violated the Meyers-Milias-Brown Act (MMBA), Government Code
section 3500 et seq. by implementing its decision to withhold taxes based upon
accrued paid leave without affording the Criminal Justice Attorneys Association of
Ventura County (Association) adequate notice and a meaningful opportunity to
bargain over the negotiable effects of that decision; and by its bad faith bargaining
conduct over amending the parties’ leave redemption plan.
As a result of this conduct, we have been ordered to post this Notice and we
will:
A. 	CEASE AND DESIST FROM:
1. 	Negotiating with the Association in bad faith.
2. 	Failing to provide the Association notice and the opportunity to
complete bargaining over the negotiable effects of our decision to begin withholding
taxes based upon accrued leave hours that we deemed to be constructively received
income.
3. 	Interfering with the Association’s right to represent its members.
4. 	Interfering with employees’ right to be represented by the
Association.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Meet and confer with the Association, upon demand, over
modifying the parties’ paid leave redemption plan to avoid constructive receipt
taxation.
2. 	Meet and confer with the Association, upon demand, over the
negotiable effects of our decision to begin withholding taxes based upon accrued
leave hours that we deemed to be constructively received income.

2
3. 	Reimburse Association unit members for any accountancy and/or
related professional fees incurred in relation to implementation of our constructive
receipt tax withholding decision. Compensation for these fees shall be augmented by
interest at a rate of 7 percent per annum. The period of reimbursable fees shall
commence on September 22, 2017, and continue until the earliest of: (1) the date the
parties reach an agreement as part of complying with the effects bargaining order;
(2) the date the parties have reached impasse and exhausted any post-impasse
procedures that may be required or agreed upon; or (3) failure by the Association to
request bargaining or to bargain in good faith.
Dated: _____________________ 	COUNTY OF VENTURA
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.