Tahoe-Truckee Sanitation Agency (PERB 2826M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
PHILIP STEPHEN FAY,
Charging Party,
v.
TAHOE-TRUCKEE SANITATION AGENCY,
Respondent.
Case No. SA-CE-1090-M
PERB Decision No. 2826-M
July 7, 2022
Appearances: Law Offices of Dean Royer by Dean Royer, Attorney, for Philip Stephen
Fay; Aleshire & Wynder by Monna Radulovich and Joseph E. Wiley, Attorneys, for
Tahoe-Truckee Sanitation Agency.
Before Shiners, Krantz, and Paulson, Members.
DECISION
PAULSON, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions by the Tahoe-Truckee Sanitation Agency and
cross-exceptions by Philip Stephen Fay to the proposed decision of an administrative
law judge (ALJ). The ALJ concluded that the Agency violated the Meyers-Milias-Brown
Act (MMBA) when it issued Fay a disciplinary memorandum and terminated his
employment in retaliation for his protected activities.1 The Agency excepted to the
ALJ’s conclusions on several bases, including that the ALJ improperly rejected its
affirmative defenses that Fay failed to exhaust judicial remedies, his claims were
1 The MMBA is codified at Government Code section 3500 et seq. All statutory
references herein are to the Government Code. PERB Regulations are codified at
California Code of Regulations, title 8, section 31001 et seq.

2
barred by collateral estoppel, and the Agency terminated Fay for legitimate business
reasons. Fay urged the Board to affirm the ALJ’s legal conclusions. Fay also sought
additional remedies not ordered by the ALJ, including daily compound interest on
monetary damages consistent with the National Labor Relations Board (NLRB)
practice adopted in Kentucky River Medical Center (2010) 356 NLRB 6 (Kentucky
River).
On June 24, 2022, while the matter was pending before the Board on the
Agency’s exceptions and Fay’s cross-exceptions, the parties notified PERB that they
settled this matter. Based on the agreement, the parties jointly requested that PERB:
“(1) grant their request to withdraw the parties’ respective exceptions and cross-
exceptions with prejudice, (2) grant Charging Party Fay’s dismissal of the PERB
charge (including amendments) and the complaint in PERB Case No. SA-CE-1090[-M]
with prejudice; and (3) dismiss the entire case with prejudice.”
The Board has discretion to grant or deny requests to withdraw and dismiss
cases pending before the Board itself. (§§ 3509, subd. (a), 3541.3, subds. (i) and (n);
PERB Reg. 32320, subd. (a)(2) [“The Board itself may . . . [¶] . . . take such other
action as it considers proper.”]; County of Riverside (2020) PERB Decision No. 2707-
M, p. 2; Sanitation Districts of Los Angeles County (2019) PERB Decision No. 2656-M,
p. 2 (Sanitation Districts); City of Santa Rosa (Fire Department) (2019) PERB Decision
No. 2653-M, p. 2 (Santa Rosa); State of California (Department of Personnel
Administration) (2010) PERB Decision No. 2152-S, p. 5 (State of California);
Grossmont-Cuyamaca Community College District (2009) PERB Order No. Ad-380,
p. 2 (Grossmont); Oakland Unified School District (1988) PERB Order No. Ad-171a,

3
p. 1.) The Board has a longstanding policy favoring voluntary settlement of disputes.
(Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81a.) The
Board generally grants such requests where it finds the request to be in the best
interest of the parties and consistent with the purposes of the applicable Act. (See,
e.g., County of Riverside, supra, PERB Decision No. 2707-M, p. 3; Sanitation Districts,
supra, PERB Decision No. 2656-M, p. 2; Santa Rosa, supra, PERB Decision
No. 2653-M, p. 2.) However, the Board has on occasion denied a request to withdraw
an unfair practice charge, e.g., in order to avoid infringing on statutory rights (Lake
Elsinore Unified School District (2019) PERB Decision No. 2633, p. 1, fn. 1), or when
an appeal involves a matter of continuing public interest and a precedential ruling on
the matter will be instructive to all parties similarly situated (Oakland Unified School
District, supra, PERB Order No. Ad-171a, p. 1). The Board, for example, has denied
requests to withdraw in the interest of justice in representation matters involving large
bargaining units (id. at p. 2; Grossmont, supra, PERB Order No. Ad-380, p. 2), and to
address allegations that the State of California unlawfully implemented furloughs
(State of California, supra, PERB Decision No. 2152-S, p. 5).
None of the issues raised by the parties’ exceptions or cross-exceptions
constitute a matter of continuing public interest sufficient to require a decision on the
merits. We therefore express no opinion on the merits of any of the parties’
exceptions. We note, however, that Fay’s cross-exceptions raised the issue of
whether PERB should adopt the practice of augmenting monetary damages by
compound, rather than by simple, interest. PERB recently observed that in 2010 the
NLRB began including daily compound interest in all monetary relief. (Bellflower

4
Unified School District (2022) PERB Decision No. 2544a, p. 41, fn. 23 [judicial appeal
pending] (Bellflower), citing Kentucky River, supra, 356 NLRB 6, 6.) The Board declined
to reach that issue in Bellflower due to an agreement between the parties to apply
simple annual interest. (Ibid.) Although we similarly do not reach the issue here in light
of the parties’ request to withdraw, we do not foreclose the possibility of considering
whether PERB should adopt that method of calculating interest in a future case.
Based on the Board’s review of the parties’ settlement agreement, and the
entire record in this matter, the Board finds granting the parties’ requests to be in the
parties’ best interest and consistent with the purposes of the MMBA to promote
harmonious labor relations. (County of Riverside, supra, PERB Decision No. 2707-M,
p. 3; Sanitation Districts, supra, PERB Decision No. 2656-M, p. 2.) For these reasons,
we grant the parties’ joint requests to withdraw their respective exceptions and cross-
exceptions, and to dismiss the matter with prejudice.
ORDER
The request by Philip Stephen Fay and the Tahoe-Truckee Sanitation Agency
to withdraw the amended unfair practice charge in Case No. SA-CE-1090-M is hereby
GRANTED. The Agency’s exceptions and Fay’s cross-exceptions to the proposed
decision are deemed withdrawn. The complaint and underlying unfair practice charge
are DISMISSED WITH PREJUDICE. We further direct that this matter is closed and
that no further action be taken in this case.
Members Shiners and Krantz joined in this Decision.