County of Ventura (PERB 2758MA)

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
Request for Reconsideration
PERB Decision No. 2758-M
PERB Decision No. 2758a-M
July 20, 2021
Appearances: Rains Lucia Stern St. Phalle & Silver by Richard A. Levine, Attorney, for
Criminal Justice Attorneys Association of Ventura County; Tiffany N. North, 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 a request by Criminal Justice Attorneys
Association of Ventura County (Association) that the Board reconsider its decision in
County of Ventura (2021) PERB Decision No. 2758-M. In that decision, we found the
County of Ventura violated the Meyers-Milias-Brown Act (MMBA) and PERB
Regulations by implementing constructive receipt taxation of accrued leave without
affording the Association adequate notice and a meaningful opportunity to bargain
over the negotiable effects of that decision; and by bargaining in bad faith over

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amending the parties’ leave redemption plan.1 We determined that the extensive
record developed over 10 days of hearing warranted tailoring the make-whole remedy
to specify the nature of appropriate relief. We thus refined the remedial order to match
the harms caused by the County’s violations. The Association now asks us to grant
reconsideration and broaden the scope of the make-whole order.
The Board has reviewed the record in this matter, including the Association’s
request for reconsideration and the County’s opposition, in light of the applicable law.
Based on that review, we deny the Association’s request for the reasons explained
below.
DISCUSSION
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.’” (Alliance
Judy Ivie Burton Technology Academy High, et al. (2020) PERB Decision No. 2719a
(Alliance), p. 3, quoting PERB Reg. 32410, subd. (a).) An error or omission in a
remedial order is a proper subject of reconsideration under the newly discovered
evidence standard. (County of Riverside (2018) PERB Decision No. 2591a-M, p. 3;
Regents of the University of California (Davis) (2011) PERB Decision No. 2101a-H,
p. 5.) However, this is a narrow avenue that does not allow parties to reassert remedy
1 The MMBA is codified at Government Code section 3500 et seq. PERB
Regulations are codified at California Code of Regulations, title 8, section 31001 et
seq.

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arguments that we have already considered and rejected.2 (See, e.g., Alliance, supra,
PERB Decision No. 2719a, p. 6 [the reconsideration process may not be used by a
party “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’”], citing
Jurupa Unified School District (2015) PERB 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.)
In the underlying decision, we ordered make-whole relief, among other
remedies. We discussed at length what harms directly flowed from the County’s
violations, partially granted a County exception to the proposed decision’s remedial
order, and tailored the make-whole remedy to address the harms supported by the
record. The make-whole order requires the County to:
“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
augmented by interest at a rate of seven percent per
2 PERB precedent demonstrates the limited types of errors that are appropriate
subjects for reconsideration. In County of Riverside, supra, PERB Decision
No. 2591a-M, the Board initially ordered an employee to be reinstated on the date she
was terminated, rather than the date she was placed on administrative leave. (Id. at
p. 2.) The Board found that reconsideration was warranted in order to modify the order
to require reinstatement to the day she was placed on administrative leave, as that
would track the complaint allegations and restore all lost earnings. (Id. at pp. 4-5.) In
Desert Sands Unified School District (2004) PERB Decision No. 1682a, the District
was found to have unlawfully transferred work, but the remedial order erroneously
omitted an order to return the work to the employees pending bargaining. (Id. at
pp. 4-5.) On reconsideration the Board corrected the omission in order to restore the
status quo ante. (Ibid.) In Alliance, supra, PERB Decision No. 2719a, the certification
of a bargaining unit was corrected by deleting a classification that was not included in
the petition for recognition. (Id. at p. 6.)

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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.”
(County of Ventura, supra, PERB Decision No. 2758-M, pp. 57-58.)
In its request for reconsideration, the Association asks the Board to replace the
first sentence of the above remedial paragraph with the following substantially broader
language from the administrative law judge’s proposed order:
“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.”
(Emphasis removed.)
The Association contends it should have the opportunity, in compliance
proceedings, to establish multiple categories of damages beyond reimbursement of
professional fees. But the Association argued for these same damages in its response
to the County’s exceptions, and the Board declined to award them. Because these
arguments do not point out an error in the remedial order, but instead ask the Board to
try again, they are not appropriate grounds for reconsideration. (Alliance, supra, PERB
Decision No. 2719a, pp. 5-6; Jurupa Unified School District, supra, PERB Decision
No. 2450a, p. 3; Chula Vista Elementary School District, supra, PERB Decision
No. 1557a, p. 2; Redwoods Community College District, supra, PERB Decision
No. 1047a, pp. 2-3.)

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Moreover, as we explained in our underlying decision, the Association seeks
reimbursement of losses that were not caused by the narrow violations found, or
which the taxing authorities have already reimbursed when unit members have hired
tax professionals to file amended tax returns.3 (County of Ventura, supra, PERB
Decision No. 2758-M, pp. 54-56.) For this reason, we ordered the reimbursement of
accountancy and/or related professional fees, whose services were obtained in
relation to the County’s implementation of constructive receipt taxation. (Id. at
pp. 57-58.) The remedial order’s reimbursement for these services adequately
addresses the harms. To the extent the Association takes issue with the Board’s
exercise of its discretion in fashioning this remedy, that is not an appropriate subject
for reconsideration.
ORDER
The Criminal Justice Attorneys Association of Ventura County’s request for
reconsideration of the Public Employment Relations Board’s decision in County of
Ventura (2021) PERB Decision No. 2758-M is DENIED.
Members Shiners and Krantz joined in this Decision.
3 As explained in the decision, the only claim before us was the County’s failure
to bargain the effects of implementing constructive receipt taxation, so we had neither
cause to determine whether the County failed to provide notice and an opportunity to
bargain over its decision, nor reason to determine if the County was correct in its
application of the constructive receipt doctrine. (County of Ventura, supra, PERB
Decision No. 2758-M, p. 54.)