Lake Elsinore Unified School District (PERB A446EA)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD THE ONE
LORI E. EDWARDS et al.,
Charging Parties,
v.
LAKE ELSINORE UNIFIED SCHOOL
DISTRICT,
Respondent.
Case No. LA-CE-6082-E
Request for Reconsideration
PERB Order No. Ad-446
PERB Order No. Ad-446a
May 15, 2018
Appearances: Lori E. Edwards, Representative, for Lori E. Edwards et al.; Atkinson,
Andelson, Loya, Ruud & Romo by Todd M. Robbins, Attorney, for Lake Elsinore Unified
School District.
Before Gregersen, Chair; Banks and Winslow, Members.
DECISION
BANKS, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on a request by the Lake Elsinore Unified School District (District) for
reconsideration of the Board’s decision in Lake Elsinore Unified School District (2017) PERB
Order No. Ad-446 (PERB Order No. Ad-446), and on a motion for sanctions by Lori E.
Edwards, David Pickett, Victoria Pickett and Kimberly A. Rosales, who are the Charging
Parties in the underlying unfair practice case against the District.1 In PERB Order No. Ad-446,
1 The unfair practice complaint in this case alleges that the District violated the
Educational Employment Relations Act (EERA) by discriminating against Charging Parties for
their protected activities. (EERA is codified at Gov. Code, § 3540 et seq.) The District denies
any violation. On November 29, 2016, a PERB Administrative Law Judge dismissed all
allegations in the complaint. Charging Parties filed a statement of exceptions, which they later
attempted to amend, and the District eventually filed a response thereto. Charging Parties’
statement of exceptions is currently pending before the Board, while their amendment to the
statement of exceptions and the District’s response were both rejected by PERB’s Appeals
Office as untimely. Following administrative appeals, we upheld the Appeals Office’s

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the Board denied the District’s appeal from an administrative determination, in which
PERB’s Appeals Office had rejected as untimely the District’s response to Charging Parties’
statement of exceptions. As grounds for reconsideration, the District asserts that PERB Order
No. Ad-446 contains prejudicial errors of fact.
Charging Parties oppose the District’s request as an improper attempt to use the
reconsideration process to re-litigate issues that have already been decided. They argue that
because the District’s request lacks even arguable merit and was brought in bad faith, the
Board should sanction the District by ordering it to compensate Charging Parties for their lost
vacation time and other expenses incurred in responding to the District’s request.
We have reviewed the District’s request for reconsideration, Charging Parties’ motion
for sanctions and the entire case file in light of applicable law. Based on this review, and for
the reasons set forth below, we deny the District’s request for reconsideration as contrary to the
language and purpose of PERB’s Regulation2 governing reconsideration and Board
precedent. We also deny Charging Parties’ request for sanctions.
DISCUSSION
1. 	The District’s Request for Reconsideration is Procedurally Defective
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
determinations that both filings were untimely and had failed to show good cause to excuse the
untimeliness. In addition to PERB Order No. Ad-446, which is the subject of the District’s
request for reconsideration, see Lake Elsinore Unified School District (2017) PERB Order
No. Ad-449 (rejecting Charging Parties’ administrative appeal).
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
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and could not have been discovered with the exercise of reasonable diligence. (PERB
Reg. 32410, subd. (a); City of Palmdale (2011) PERB Decision No. 2203a-M, pp. 9-11;
California State Employees Association (Hard, et al.) (2002) PERB Decision No. 1479a-S,
pp. 10-11, fn. 11.) The “extraordinary circumstances” warranting reconsideration are thus
limited to asserted errors or omissions of fact. (National Union of Healthcare Workers (2012)
PERB Decision No. 2249a-M (NUHW), p. 8.) Purported errors of law, including the Board’s
application of its own Regulations, or a reversal of Board precedent, are not grounds for
reconsideration. (City of Palmdale, supra, at p. 11, CSEA (Hard, et al.), supra, at pp. 6, 10-11,
fn. 11; see also County of Tulare (2016) PERB Decision No. 2461a-M, pp. 3-4.)
Because of the “extraordinary circumstances” requirement, the Board applies the
regulatory criteria strictly when reviewing a request for reconsideration. (Regents of the
University of California (2000) PERB Decision No. 1354a-H, p. 5; King City Joint Union
High School District (2007) PERB Decision No. 1777a, pp. 3-4.) 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.”
(Redwoods Community College District (1994) PERB Decision No. 1047a, pp. 2-3;
Chula Vista Elementary School District (2004) PERB Decision No. 1557a, p. 2.)
As explained in Berkeley Federation of Teachers, Local 1078 (Crowell) (2015) PERB
Decision No. 2405a (Crowell), reconsideration is also limited by the procedural posture of the
case. The Regulation’s focus on prejudicial error of fact or newly-discovered evidence
indicates that the reconsideration procedure is limited to Board decisions based on a proposed
decision and developed factual record following a formal hearing or stipulated record. (Id. at
p. 13.) Because the Regulation is concerned solely with errors or omissions in a developed
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factual record, in Trustees of the California State University (East Bay) (Liu) (2013) PERB
Order No. IR-56a-H, the Board held that reconsideration is not available for a Board decision
granting or denying a request for injunctive relief, where the moving party’s factual allegations
are presumed true, and resolution of factual disputes is reserved for a formal hearing. In
Crowell, the Board similarly reasoned that a dismissal/refusal to issue a complaint on an unfair
practice charge is also not the type of Board decision that lends itself to the reconsideration
process, because, during the initial investigation of an unfair practice charge, the charging
party’s factual allegations must be accepted as true and, again, resolution of factual disputes is
deferred to a formal hearing. (Id. at pp. 4-5; see also NUHW, supra, PERB Decision
No. 2249a-M, p. 6.) More recently, in Regents of the University of California and Teamsters
Clerical Local 2010 (Polk) (2016) PERB Order No. Ad-437a-H (Regents (Polk)), we applied
the same reasoning to administrative appeals, which, by definition, do not entail a proposed
decision or developed factual record following a formal evidentiary hearing or stipulated
record. (Id. at p. 4; see also PERB Reg. 32350; City of Pasadena (2014) PERB Order
No. Ad-406-M, p. 11.)3 We concluded that the limited scope of PERB’s reconsideration
regulation deprived the Board of jurisdiction to reconsider its prior decision in an administrative
appeal. (Regents (Polk), supra, at p. 4.)
The District’s request for reconsideration arises from a Board decision denying an
administrative appeal. As in Regents (Polk), supra, PERB Order No. Ad-437a-H, the
administrative determination that is the subject of the District’s request for reconsideration
was not a proposed decision and it involved no developed factual record resulting from a
3 The definition of an “administrative decision” expressly excludes “a decision which
results from the conduct of a formal hearing or from an investigation which results in the
submission of a stipulated record and a proposed decision written pursuant to Section 32215.”
(PERB Reg. 32350, subd. (a)(3).)
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formal evidentiary hearing or stipulated record. The District’s request for reconsideration is
thus not the kind of Board decision that is subject to reconsideration under PERB
Regulation 32410. The District’s request does not acknowledge or attempt to distinguish
Regents (Polk), or make any argument for extending, modifying, or reversing existing Board law
or for establishing new law. It is therefore unnecessary to consider the grounds asserted by the
District for reconsideration, and its request is summarily denied.
2. 	Charging Parties’ Motion for Sanctions is Denied
PERB precedent requires that, to obtain monetary sanctions, including attorney’s 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.” (City of Alhambra (2009) PERB Decision No. 2036-M (City of Alhambra I), p. 19; City
of Alhambra (2009) PERB Decision No. 2037-M (City of Alhambra II), p. 2.) 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. (Levy v.
Blum (2001) 92 Cal.App.4th 625, 635; see also In re Marriage of Flaherty (1982) 31 Cal.3d 637,
648-649 [interpreting Code Civ. Proc. § 907 authorizing reviewing courts to award such
damages “as may be just” for appeals that are “frivolous or taken solely for delay”].)
We agree with Charging Parties that the District’s request for reconsideration was
without even arguable merit. It failed to comply with the basic requirements of the
reconsideration regulation and recent PERB decisional law directly on point, and it included no
serious argument for extending, modifying, or reversing existing law or for establishing new law
to permit reconsideration of administrative determinations.
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However, while no reasonable attorney would have filed the request for reconsideration
under the circumstances, PERB will award attorney fees only if the charge is both without
arguable merit and pursued in bad faith. For the purposes of this test, the term “bad faith”
includes conduct that is dilatory, vexatious or otherwise an abuse of process. (City of
Alhambra I, supra, PERB Decision No. 2036-M, p. 19.)
Showing that an action or tactic was undertaken in “bad faith,” does not require showing
that the party and/or attorney necessarily acted with an evil motive. (West Coast Development v.
Reed (1992) 2 Cal.App.4th 693, 702.) Prosecution of a patently frivolous action may itself be
evidence supporting a finding of subjective bad faith, as might other forms of “‘discourteous’”
or “unprofessional” conduct which a party or attorney knows or reasonably should know will
unreasonably or unnecessarily cause delay or harass or injure an opposing party or
representative, or impede the tribunal’s own process. (Id. at pp. 702-703, quoting In re
Marriage of Gumabao (1984) 150 Cal.App.3d 572; see also City of Alhambra II, supra,
PERB Decision No. 2037-M, adopting proposed decision at p. 17.) Nevertheless, under
Code of Civil Procedure section 128.5, which is the standard followed by PERB, some
showing of subjective bad faith is required, even if it must be inferred from circumstantial
evidence viewed over the course of the litigation. (West Coast Development v. Reed, supra,
2 Cal.App.4th at pp. 704-705; Levy v. Blum, supra, 92 Cal.App.4th at pp. 635-636.) Because
Charging Parties have pointed to no evidence that the District or its representative acted with
subjective bad faith when filing the District’s request for reconsideration, we deny the motion for
sanctions.
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ORDER
The Public Employment Relations Board (Board) hereby DENIES the request by the
Lake Elsinore Unified School District (District) for reconsideration of the Board’s decision in
Lake Elsinore Unified School District (2017) PERB Order No. Ad-446 and DENIES the
motion for sanctions filed by Lori E. Edwards et al. in opposition to the District’s request for
reconsideration in Case No. LA-CE-6082-E.
Chair Gregersen and Member Winslow joined in this Decision.
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