Decision A475Ea – Bellflower Unified School District

Because of PERB Regulation 32410’s “extraordinary circumstances” requirement, the Board applies the regulatory criteria strictly when reviewing a request for reconsideration. There are only two grounds for reconsideration authorized by PERB Regulations: “(1) the decision of the Board itself contains prejudicial errors of fact, or (2) the party [requesting reconsideration] has newly discovered evidence which was not previously available and could not have been discovered with the exercise of reasonable diligence.” [Citations.] The “extraordinary circumstances” warranting reconsideration are thus limited to asserted errors or omissions of fact. Purported errors of law, including the Board’s alleged improper application of its own Regulations, or a reversal of Board precedent, are not grounds for reconsideration. A party therefore 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.” [Citations.] (pp. 2-3.)

Because “the reconsideration procedure is limited to Board decisions based on a proposed decision and developed factual record following a formal hearing or stipulated record” a party may not seek reconsideration of a decision arising from an administrative appeal. [Citation.] (p. 3.)

PERB precedent requires that, to obtain monetary sanctions, including attorney fees or other reasonable litigation expenses, the moving party must demonstrate that the claim, defense, motion or other action or tactic was “without arguable merit” and pursued in “bad faith.” [Citations.] As interpreted by most appellate courts, the standard for determining whether an action or litigation tactic is “frivolous,” as opposed to merely meritless, is whether the claim, defense, action or tactic is so manifestly erroneous that no prudent attorney would have filed or maintained it. Here, the employer’s request for reconsideration was without arguable merit: it failed to comply with the basic requirements of the reconsideration regulation, ignored recent PERB decisional law directly on point, and included no serious argument for extending, modifying, or reversing existing law or for establishing new law to permit reconsideration of administrative determinations. The Board also found the request was filed in bad faith based on the fact that the employer has engaged in delaying tactics before as well as the fact that in this particular case the District sought reconsideration of a decision that granted it the very relief it requested. The District’s refusal to take yes for an answer, in this context, is clear and convincing evidence that its request for reconsideration was frivolous and “intended to cause unnecessary delay.” [Citations.] Thus, the Board ordered the employer to reimburse the union for reasonable attorney fees for the preparation and filing of its response to the employer’s request for reconsideration. (pp. 4-5.)