Orange County Employees Association (Hamilton) (PERB 2674MA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
VANESSA K. HAMILTON,
Charging Party, 	Case No. LA-CO-215-M
v. 	Request for Reconsideration
PERB Decision No. 2674-M
PERB Decision No. 2674a-M
December 11, 2019
ORANGE COUNTY EMPLOYEES
ASSOCIATION,
Respondent.
Appearances: Vanessa K. Hamilton, on her own behalf; Bridgette Washington, Chief
Operations Officer, for Orange County Employees Association.
Before Banks, Shiners, and Krantz, Members.
DECISION
SHINERS, Member: This case is before the Public Employment Relations
Board (PERB or Board) on Vanessa K. Hamilton’s (Hamilton) request for
reconsideration of the Board’s decision in Orange County Employees Association
(2019) PERB Decision No. 2674-M.1 In that decision, we affirmed an administrative
law judge’s (ALJ) conclusion that the Orange County Employees Association (OCEA)
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1 Hamilton’s filing cites PERB Regulation 32360, which governs appeals of
administrative determinations issued by Board agents. (PERB Regulations are
codified at California Code of Regulations, title 8, section 31001 et seq.) The only
applicable basis in PERB Regulations for challenging the Board’s decision in this case
is via a request for reconsideration pursuant to PERB Regulation 32410. Accordingly,
we treat Hamilton’s filing as a request for reconsideration.

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breached its duty of fair representation under the Meyer-Milias-Brown Act (MMBA)2 by
failing to file a grievance signed and approved by Hamilton that included race and
gender discrimination and retaliation claims, and instead, without informing Hamilton,
filing a different grievance on her behalf that omitted the discrimination and retaliation
claims. We disagreed, however, with the portion of the ALJ’s proposed remedy
ordering OCEA to pay reasonable attorney fees Hamilton incurred pursuing a lawsuit
over the termination of her employment. Hamilton now asks us to reconsider our
decision not to order OCEA to pay her attorney fees.
We have reviewed Hamilton’s request for reconsideration and supporting
documentation, and OCEA’s response. Based on this review, we deny Hamilton’s
request.
DISCUSSION
Under PERB Regulation 32410, subdivision (a), the grounds for requesting
reconsideration of a final Board decision are limited to claims that: “(1) the decision of
the Board itself contains prejudicial errors of fact, or (2) the party has newly
discovered evidence which was not previously available and could not have been
discovered with the exercise of reasonable diligence.” “Because reconsideration may
only be granted under the ‘extraordinary circumstances’ specified above, the Board
applies the regulation’s criteria strictly in reviewing requests for reconsideration.”
(Jurupa Unified School District (2015) PERB Decision No. 2450a, p. 2.)
In the underlying decision, we concluded Hamilton failed to demonstrate harm
that would justify ordering payment of attorney fees as damages for OCEA’s violation.
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2 The MMBA is codified at Government Code section 3500 et seq.

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(Orange County Employees Association, supra, PERB Decision No. 2674-M, p. 11.)
Our conclusion was based on the factual finding that Hamilton’s lawsuit against her
former employer, the County of Orange (County), did not involve the same breaches
of the OCEA-County memorandum of understanding alleged in her original grievance
but instead challenged her subsequent termination, which was the subject of a
different grievance OCEA filed on her behalf. (Ibid.) This finding was legally
significant because, under applicable case law, “attorney fees may be awarded only
when the employee hires private counsel to pursue the claims in the grievance
impacted by the union’s unlawful conduct.” (Id. at p. 10, citing Dutrisac v. Caterpillar
Tractor Co. (9th Cir. 1983) 749 F.2d 1270, 1275-1276 (Dutrisac).) Because it would
preclude the Board from considering a potentially available remedy, an incorrect
factual finding on this point could be prejudicial to Hamilton.3
Hamilton contends our finding as to the substance of her lawsuit against the
County was speculative because “particulars pertaining to Hamilton’s lawsuit were not
a part of the record” before PERB. As indicated in the underlying decision, our finding
was based on e-mail communications between Hamilton and OCEA representative
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3 As we noted in the underlying decision, because Hamilton did not meet the
“threshold requirement” for her damages claim—that her lawsuit covered the same
topics as the grievance that OCEA failed to file—we had no cause to consider certain
other issues relevant to her claim. (Orange County Employees Association, supra,
PERB Decision No. 2674-M, p. 10, fn. 8.) Further, we note that PERB “has discretion
to withhold various remedies at its disposal when doing so effectuates the purpose of
the labor relations statute.” (Sonoma County Superior Court (2017) PERB Decision
No. 2532-C, p. 30, citing San Diego Teachers Assn. v. Superior Court (1979) 24
Cal.3d 1, 13.) Thus, PERB’s authority to award damages “does not mean that PERB
must or will award damages in every case.” (Regents of the University of California
(2010) PERB Decision No. 2094-H, p. 48.)

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Bridgette Washington. Those e-mails were entered into evidence by Hamilton, who
could have testified as to what she intended by them. Absent such explanation, we
drew from the language in the e-mails a reasonable inference that Hamilton intended
to sue the County over her termination, not over the discrimination and retaliation
allegations in the original, unfiled grievance. (See, e.g., County of Siskiyou (2007)
PERB Decision No. 1894-M, p. 13 [PERB may draw reasonable inferences from the
language of documents in the record].) Because our factual finding was supported by
the evidence in the record, it did not constitute a prejudicial error. (See The California
State University, Chico (1989) PERB Decision No. 729a-H, p. 3 [reversing on
reconsideration a previously found violation that was not supported by the evidence].)
Moreover, in a duty of fair representation case “PERB does not presume
damages on the part of employees, even where the representative has failed to
adequately represent them.” (United Teachers Los Angeles (Raines, et al.) (2016)
PERB Decision No. 2475, p. 91.) Accordingly, “employees are only entitled to an
award of back pay or other damages where they can show that the union’s breach
was the actual or proximate cause of their injuries.” (Ibid.) Here, in order to show
OCEA’s breach of its duty of fair representation caused her to incur attorney fees,
Hamilton had to prove her lawsuit against the County was based on the same claims
that were in her original, unfiled grievance, i.e., her race and gender discrimination
and retaliation claims. (Dutrisac, supra, 749 F.2d at pp. 1275-1276.) If Hamilton had
evidence that the original grievance and her subsequent lawsuit involved the same
claims, it was incumbent on Hamilton to put that evidence into the record during
PERB’s hearing process. (United Teachers Los Angeles (Raines, et al.), supra, PERB

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Decision No. 2475, p. 92.) Her failure to do so does not constitute grounds for
reconsideration.
Attempting to fill this evidentiary gap after the fact, Hamilton attaches to her
request the amended complaint she filed with the California Department of Fair
Employment and Housing (DFEH) on July 17, 2017. Under PERB Regulation 32410,
subdivision (a), a request to consider new evidence:
“must be supported by a declaration under the penalty of
perjury which establishes that the evidence: (1) was not
previously available; (2) could not have been discovered
prior to the hearing with the exercise of reasonable
diligence; (3) was submitted within a reasonable time of its
discovery; (4) is relevant to the issues sought to be
reconsidered; and (5) impacts or alters the decision of the
previously decided case.”
Hamilton’s request is not accompanied by such a declaration. Furthermore, it is
beyond dispute that the July 17, 2017 DFEH complaint was available to Hamilton at
the time of the November 28, 2017 hearing in this case. We therefore cannot consider
this new evidence.
The remainder of Hamilton’s request consists of attempts to convince us that
our legal conclusions regarding the appropriateness of an attorney fee order were
wrong. A party may not use the reconsideration process to register its disagreement
with the Board’s legal analysis, to re-litigate issues that have already been decided, or
simply to ask the Board to “try again.” (Jurupa Unified School District, supra, PERB

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Decision No. 2450a, p. 3; Chula Vista Elementary School District (2004) PERB
Decision No. 1557a, p. 2; Redwoods Community College District (1994) PERB
Decision No. 1047a, pp. 2-3.) We thus decline to consider Hamilton’s legal
arguments.
In sum, we find no prejudicial error of fact in the underlying Board decision, and
we cannot consider Hamilton’s newly presented evidence because she has not met
the requirements in PERB Regulation 32410, subdivision (a) for us to do so. Because
Hamilton has not established a basis for reconsideration under PERB
Regulation 32410, her request must be denied.
ORDER
Vanessa K. Hamilton’s request for reconsideration of the Public Employment
Relations Board’s decision in Orange County Employees Association (2019) PERB
Decision No. 2674-M is DENIED.
Members Banks and Krantz joined in this Decision.