Berkeley Federation of Teachers, Local 1078 (Crowell) (PERB 2405EA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
BRIAN CROWELL,
Charging Party,
v.
BERKELEY FEDERATION OF TEACHERS,
LOCAL 1078,
Respondent.
Case No. SF-CO-789-E
Request for Reconsideration
PERB Decision No. 2405
PERB Decision No. 2405a
April 29, 2015 ·
Appearance: Brian Crowell, on his own behalf.
Before Martinez, Chair; Winslow and Banks, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on a request for reconsideration by Charging Party Brian Crowell (Crowell)
of a decision of the Board itself in Berkeley Federation of Teachers, Local 1078 (Crowell)
(2015) PERB Decision No. 2405. The unfair practice charge alleged that the Berkeley
Federation of Teachers, Local 1078 (Federation) breached its duty of fair representation in
violation of the Educational Employment Relations Act (EERA).1 The Office of the General
Counsel dismissed the charge for failure to state a prima facie case. On appeal, the Board
affirmed the dismissal of Crowell's unfair practice charge, adopting the warning and dismissal
letters of the Office of the General Counsel as the decision of the Board itself.
Having given due consideration to this matter, the Board has decided that it need not
determine whether Crowell has met the grounds for requesting reconsideration, let alone
1 EERA is codified at Government Code section 3540 et seq.

decide the merits of the issues raised in Crowell's request, because, as a threshold matter, the
Board is without the requisite jurisdiction to entertain Crowell's request. The Board therefore
denies Crowell's request for reconsideration, as further explained below.
DISCUSSION
The issue raised by Crowell' s request is whether the request for reconsideration
procedure under PERB Regulation 324102 is available to challenge a decision of the Board
itself affirming the Office of the General Counsel's dismissal of an unfair practice charge.
While the Board has issued decisions in this procedural context before, none have grappl(?d
with the threshold issue of the Board's authority to do so. Although the Federation did not file
an opposition to the request for reconsideration, the Board may take up and decide an issue
sua sponte if necessary to correct a serious mistake of law or procedure. (California State
Employees Association (Hard, et al.) (2002) PERB Decision No. 1479a-S.) That is the case
here.'
PERB' s Regulatory Scheme: Exceptions and Review of Dismissals
Exceptions to proposed decisions and review of dismissals arise from two procedurally
distinct regulatory tracks. The regulations on exceptions to a proposed decision fall under
Article 2 of Subchapter 4 governing "Decisions of the Board Itself." After a formal hearing,
the administrative law judge (ALJ) issues a proposed decision. A proposed decision has no
effect upon issuance. A proposed decision takes effect and becomes final only if exceptions
are not filed within the prescribed time period. (PERB Reg. 32305.) If exceptions are taken,
the proposed decision never takes effect. Instead, the Board decides the matter under a
"de novo" standard of review in a final PERB decision. The Board may adopt the proposed
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
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decision in whole or in part, or not at all, but it is the Board's decision, and not the proposed
dedsion, which becomes final and takes effect. The only administrative procedure available to
challenge the Board's decision is a request for reconsideration. The request for reconsideration
regulation is contained in the same subchapter as the regulations on exceptions. (PERB
Reg. 32410.)
By contrast, the regulations on dismissals fall under a different subchapter,
Subchapter 5 governing "Unfair Practice Proceedings." If the Office of the General Counsel
concludes that the unfair practice charge does not state a prima facie case, the Board agent
refuses to issue a complaint, in whole or in part. The written refusal constitutes a dismissal of
the charge. (PERB Reg. 32630.) The dismissal .is issued not as a proposed refusal/dismissal of
the Office of the General Counsel, but as a final PERB decision that takes effect immediately
upon issuance.
The procedure governing "Review of Dismissals" is contained in PERB
Regulation 32635. It allows the charging party to appeal the dismissal of an unfair practice
charge by the Office of the General Counselto the Board itself. No administrative procedures
are provided for in Subchapter 5 to challenge a decision by the Board itself arising from a
dismissal of an unfair practice charge by the Office of the General Counsel.
PERB's Regulatory Scheme: Request for Reconsideration
There are only two grounds upon which a request for reconsideration may be granted
under PERB Regulation 32410: (1) prejudicial errors of fact in the Board's decision; and
(2) newly discovered evidence. Under the first ground, the party requesting reconsideration
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"shall specify the page of the record relied on. "3 The charge investigation process does not
result in a page-numbered record. Under the second ground, the party requesting
reconsideration must establish that the evidence "could not have been discovered prior to the
hearing with the exercise of reasonable diligence." The charge investigation process does not
entail an evidentiary hearing, i.e., a formal hearing.
Thus, the text of the reconsideration regulation supports an interpretation that limits its
applicability to Board decisions arising out of exceptions to a proposed decision. Such cases
generate a page-numbered record and entail an evidentiary hearing. The request for
reconsideration procedure is designed to allow the Board to reconsider a Board decision that is
based on a hearing record. Under the first ground for reconsideration, the reconsideration
procedure allows the Board to consider whether the hearing record supports a party's assertion
that the Board has made, and prejudicially relied on, a factual error in arriving at its
conclusions. Under the second ground for reconsideration, the reconsideration procedure
allows the Board to consider new evidence that was not previously available and could not
have been discovered with the exercise of reasonable diligence prior to the formal hearing
before the AU.
By contrast, a Board decision arising out of the dismissal of an unfair practice charge
by the Office of the General Counsel emanates from a determination that the charge fails to
state a prima facie case as a matter of law and therefore a complaint should not issue. Such a
decision does not adjudicate facts based on an evidentiary hearing record. Such a Board
3 Although this language referring to a page-numbered record precedes the enumeration
of the two grounds for reconsideration, it necessarily only applies to the prejudicial error of
fact ground, and not to the newly discovered evidence ground. Newly discovered evidence, by
definition, is not contained in a page-numbered record.
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decision is not "a decision of the Board itself' of the type that lends itself to the
reconsideration process provided for in PERB Regulation 32410.
Board Precedent
Historically, the Board accepted for review requests for reconsideration of Board
decisions arising out of the dismissal of an unfair practice charge by the Office of the General
Counsel. It is worth noting, however, that prior Board decisions have hinted at the problem we
are highlighting here. State of California, Department of Developmental Services (1987)
PERB Decision No. 551a-S is a good example. The California Union of Safety Employees
(CAUSE) requested that the Board reconsider a partial dismissal based on "newly discovered
evidence." The Board stated:
PERB' s standard for "newly discovered evidence" was created
for the situation where a hearing on the merits has been held.
(San Joaquin Delta Community College District (1983) PERB
Decision No. 26lb.) Several inherent problems inhibit any
attempt to adapt the "newly discovered evidence" standard of
Regulation 32410 to a prehearing setting. At the prehearing stage
of this Board's proceedings, the regional attorney's task is to
discern whether allegations in a charge constitute a prima facie
violation of the statutes we administer. (Regs. 32615, 32620,
32630.) In connection tJ:}erewith, the regional attorney performs
an investigatory function entailing the solicitation of facts from
the parties for the limited purpose of determining if a prima facie
case has been alleged. The regional attorney, however, does not
perform an adjudicatory role of making evidentiary
determinations with respect to credibility, hearsay, or disputed
issues of fact, nor does he otherwise weigh the evidence. The
"newly discovered evidence" standard of Regulation 32410
appears to contemplate, however, the proffering of evidence, or
more precisely, the failure to proffer evidence despite the exercise
of reasonable diligence, within an adjudicatory setting.
(San Joaquin Delta Community College District, supra; see also
CCP secs. 657(4), 1008.) Thus, we do not consider the "newly
discovered evidence" standard to be an appropriate grounds for
reconsideration of this case.
5

The Board went on to analyze CAUSE's argument by "assuming" for argument's sake that the
Board was authorized to entertain a request for reconsideration within a "prehearing context."
In another case, San Francisco Unified School District and City and County of
San Francisco (2005) PERB Decision No. 1721a (City and County of San Francisco), the
Board reviewed a request for reconsideration of a Board decision reversing a dismissal by the
Office of the General Counsel and remanding the matter for issuance of a complaint. The
respondent advanced several arguments, one of which was laches. The Board held:
This argument must also be rejected. As the Board's decision
noted, invoking laches at this stage is generally inappropriate
since a factual finding of prejudice must first be made. Such a
factual finding is more appropriate at a hearing before an
administrative law judge.
As City and County of San Francisco illustrated, by its text, PERB's reconsideration
procedure is available to "any party" including a respondent. The availability of the
reconsideration procedure in cases arising out of a dismissal of a charge by the Office of the
General Counsel becomes more problematic where the Board reverses a dismissal, and the
respondent seeks to challenge the Board's reversal. Even in the absence of a reconsideration
option, a Board decision reversing a dismissal may not issue until long after the charge is filed,
investigated and dismissed. The inherent delay involved in the Board's review of a dismissal
already poses many challenges for a charging party, i.e., the difficulty in preserving evidence
and ensuring the availability of witnesses, the unreliability of fading memories, the
diminishing relevance of the dispute and opportunity for a meaningful informal resolution, etc.
This delay would be further compounded by a respondent availing itself of the reconsideration
procedure. It could be years before the matter is finally back before the Office of the General
Counsel for re-initiation of the charge investigation and/or issuance of a complaint.
6

It is easy to understand why prior Boards were confused by the regulations and
therefore only hinted at the problem highlighted in this decision. Despite its references to
"record" and "hearing," PERB Regulation 32410 starts off broadly in providing that "[a]ny
party to a decision of the Board itself may, ... file a request to reconsider the decision."
In Trustees of the California State University (East Bay) (Liu) (2013) PERB Order
No. IR-56a-H, the Board began to chip away at the notion that PERB Regulation 32410 has
unlimited scope. The Board held that, notwithstanding the broad language at the outset of the
regulation, the request for reconsideration procedure is not available to challenge a Board
decision granting or denying a request for injunctive relief. The Board stated:
Given the unique nature of proceedings for seeking injunctive
relief, which require expeditious investigation by the Office of
the General Counsel (see PERB Regs. 32455 and 32460), we
conclude that the reconsideration procedure was neither intended
nor designed to permit review of Board decisions granting or
denying a request for injunctive relief. Subsection (c) in
particular supports our conclusion. It provides for an automatic
stay of Board orders in unfair practice cases upon the filing of a
request for reconsideration.
If PERB Regulation 32410 applied to injunctive relief requests,
PERB's authority to seek injunctive relief would be effectively
nullified. All requests for injunctive relief must be accompanied
by an unfair practice charge, and therefore any order issued by
the Board on a request for injunctive relief is an "order in an
unfair practice case." (PERB Reg. 32450(a)(2).) If PERB
Regulation 32410 applied to requests for injunctive relief; a party
opposing such a request could easily thwart a Board
determination to seek injunctive relief simply by filing a request
for reconsideration. The Board's decision to seek injunctive
relief would then be stayed automatically, pursuant to PERB
Regulation 32410(c).
In cases where the Board decision reverses the dismissal of an unfair practice charge by
the Office of the General Counsel and the matter is remanded for further investigation and/or
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issuance of a complaint, a problem similar to the problem in Trustees of the California State
University (East Bay) (Liu), supra, PERB Order No. IR-56a-H exists. The Board's processes
for investigating an unfair practice charge and determining whether a prima fade case exists
could be thwarted by the filing of a request for reconsideration pursuant to a procedure that
was meant to apply only in cases where the Office of the General Counsel initially issued a
complaint.4 · And in cases where the Board decision affirms the dismissal of an unfair practice
charge, the charge investigation process and review of dismissal procedure afford a charging
party an adequate and fair opportunity to make a case.
The National Labor Relations Board's Regulatory Scheme
In comparing PERB's regulatory scheme to the National Labor Relations Board's
(NLRB) regulatory scheme, it is apparent that PERB borrowed heavily from the NLRB in
setting up shop.5 The NLRB has a set of rules for exceptions to ALT decisions and a separate
set of rules for review of refusals to issue a complaint. The NLRB has two different
reconsideration procedures, one for each set of rules.
Section 102.48 of the NLRB Rules and Regulations-governs exceptions to ALT
decisions. (29 C.F.R. § 102.48.) In the event no timely or proper exceptions are filed to an
ALJ' s decision, that decision automatically becomes the decision arid order of the NLRB and
all objections and exceptions are deemed waived. Upon the filing of exceptions, the NLRB
4 A decision by the Office of the General Counsel to issue a complaint where it
determines that the charge is sufficient to establish a prima fade case is generally not
appealable to the Board itself. (PERB Reg. 32640, subd. (c).)
5 California's public sector collective bargaining statutes are largely modeled after the
federal National Labor Relations Act (29 U.S.C. § 151, et seq.). (City of San Jose (2010)
PERB Decision No. 2141-M; Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608,
615-617.)
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may decide the matter on the record or after oral argument, or may reopen the record or make
another disposition of the case.
The reconsideration procedure for decisions from exceptions is contained in
subdivision (d)(l), which states:
A party to a proceeding before the Board may, because of
extraordinary circumstances, move for reconsideration, rehearing,
or reopening of the record after the Board decision or order. A
motion for reconsideration shall state with particularity the
material error claimed and with respect to any finding of material
fact shall specify the page of the record relied on. A motion for
rehearing shall specify the error alleged to require a hearing
de novo and the prejudice to the movant alleged to result from
such error. A motion to reopen the record shall state briefly the
additional evidence sought to be adduced, why it was not
presented previously, and that, if adduced and credited, it would
require a different result. Only newly discovered evidence,
evidence which has become available only since the close of the
hearing, or evidence which the Board believes should have been
taken at the hearing will be taken at any further hearing.
Subdivision (d)(3) states:
The filing and pendency of a motion under this provision shall
not operate to stay the effectiveness of the action of the Board
unless so ordered. A motion for reconsideration or rehearing
need not be filed to exhaust administrative remedies.
Section 102.19 of the NLRB' s Rules and Regulations ,governs appeals from refusals to
issue a complaint. (29 C.F .R. § 102.19.) If after the charge has been filed, the Regional
Director declines to issue a complaint, the parties are notified in writing and provided the
procedural or other grounds for the action. The charging party may obtain review of such
action by filing the "Appeal Form" with the General Counsel and a copy with the Regional
Director. The charging party may also file a statement setting forth the facts and reasons upon
which the appeal is based.
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The reconsideration procedure for refusals to issue a complaint is contained in
subdivision (c), which states:
The general counsel may sustain the regional director's refusal to
issue or reissue a complaint, stating the grounds of his
affirmance, or may direct the regional director to take further
action; the general counsel's decision shall be served on all the
parties. A motion for reconsideration or the decision must be
filed within 14 days of service of the decision, except as
hereinafter provided, and shall state with particularity the error
requiring reconsideration. A motion for reconsideration based
upon newly discovered evidence which has become available
only since the decision on appeal shall be filed promptly on
discovery of such evidence. Motions for reconsideration of a
decision previously reconsidered will not be entertained, except
in unusual situations where the moving party can establish that
new evidence has been discovered which could not have been
discovered by diligent inquiry prior to the first reconsideration.
Like the NLRB, PERE has a set of rules for exceptions to ALl decisions, which is
contained in Subchapter 4, and a separate set of rules for review of dismissals, which is
contained in Subchapter 5. But there is one notable difference between the two sets of rules.
The NLRB has two reconsideration procedures, one in the section on exceptions and another in
the section on review of refusals to issue a complaint. PERB, however, has only one
reconsideration procedure. PERB borrowed from the NLRB' s reconsideration procedure for
exceptions in promulgating PERB Regulation 32410. PERE did not borrow from the NLRB's
reconsideration procedure for review of refusals to issue a complaint.
PERB Regulation 32410, containing the reconsideration procedure, mirrors NLRB
Rule 102.48, subdivision (d)(l), not Rule 102.19, subdivision (c), in all material respects, as
illuminated by the following table:
10

"A party to a proceeding before the Board
may"
"Any party to a decision of the Board itself
may"
"because of extraordin 	circumstances" 	"because of extraordinary circumstances"
"shall state with particularity the material
error claimed"
"shall state with specificity the grounds
claimed"
"with respect to any finding of material fact
shall s ecif the pa e of the record relied on"
"where applicable, shall specify the page of
the record relied on"
"shall specify the error alleged ... and the
prejudice to the movant alleged to result from
such error"
"[t]he grounds for requesting reconsideration
are limited to claims that: (1) the decision of
the Board itself contains prejudicial errors of
fact, or"
"shall state briefly the additional evidence
sought to be adduced, why it was not
presented previously, and that, if adduced and
credited, it would require a different result.
Only newly discovered evidence, evidence
which has become available only since the
close of the hearing, or evidence which the
Board believes should have been taken at the
hearing will be taken at any further hearing"
"(2) the party has newly discovered evidence
which was not previously available and could
not have been discovered with the exercise of
reasonable diligence. A request for
reconsideration based upon the discovery of
new evidence must be supported by ...
(1) was not previously available; (2) could not
have been discovered prior to the hearing ... ;
(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"
"The filing and pendency of a motion ... shall
not operate to stay the effectiveness of the
action of the Board unless so ordered"
subdivision 	d 	3
"Unless otherwise ordered by the Board, the
filing of a Request for Reconsideration shall
not stay the effectiveness of a decision of the
Board itself except that the Board's order in
an unfair practice case shall automatically be
stayed upon filing of a Request for
Reconsideration."
subdivision c
11
"A motion for reconsideration or for rehearing
need not be filed to exhaust administrative
remedies."
subdivision d 	3
"A motion for reconsideration need not be
filed to exhaust administrative remedies."
PERB Regulation 32400
6 Except where otherwise indicated.
7 Except where otherwise indicated.

By contrast, PERB does not have a reconsideration procedure that mirrors the NLRB's
procedure under Rule 102.19 for reconsideration of a refusal to issue a complaint. Also, the
NLRB' s procedure under Rule 102.19 for reconsideration of a refusal to issue a complaint is
dissimilar in the same material aspects to both the PERB reconsideration procedure under
PERB Regulation 32410 and the NLRB reconsideration procedure under Rule 102.48. The
NLRB' s reconsideration procedure under Rule 102.19 for reconsideration of a refusal to issue
a complaint does not refer to "extraordinary circumstances" or to a page-numbered record or to
prejudicial errors. Rule 102.19 simply requires that the error requiring reconsideration be
described with particularity and that a motion for reconsideration based upon newly discovered
evidence that has become available only since the decision on appeal be filed promptly on
discovery of such evidence.
For all the reasons described above, we conclude that the PERB reconsideration
procedure was never intended to apply to a Board decision arising out of a dismissal of an
unfair practice charge. The language of the PERB reconsideration procedure was borrowed
from the NLRB reconsideration procedure for exceptions, and not from the NLRB
reconsideration procedure for review of refusals to issue a complaint. PERB's reconsideration
procedure is found in Subchapter 4, the same subchapter that contains the procedure for filing
exceptions. There is only one reconsideration procedure found in PERB' s regulations, not two,
as is true in the NLRB system. Subchapter 5 contains the regulation governing review of
dismissals. Subchapter 5 does not include a reconsideration procedure, nor is there any cross-
reference to the reconsideration procedure in Subchapter 4.. PERB could have adopted a
reconsideration procedure similar to the NLRB's reconsideration procedure applicable to
NLRB decisions refusing to issue complaints, but it did not. Instead, PERB elected to have
12

one reconsideration procedure for exceptions and to forego having a reconsideration procedure
for review of dismissals ..
Charging parties have every opportunity during the charge investigation and processing
stage to provide the Board agent with evidence to support their prima facie case. Board agents
work closely with the parties to elicit the necessary information. Charging parties whose
charges are likely to be dismissed are given a warning letter describing the deficiencies of the
charge and are provided an opportunity to amend their charge. PERB regulations place no
limit on the number of times a charge may be amended.8 Once the investigation closes, the
Office of the General Counsel has gathered as much information as possible and is called upon
to make a judgment as to whether the charging party has satisfied their burden to establish a
prima facie unfair practice violation.
If the charging party disagrees with the dismissal, the charging party is entitled to
Board review. The Board's review is limited to the allegations of the charge and, where
appropriate, the position statement of the respondent. A second Board review of the same
allegations of the charge and, where appropriate, the same position statement of the
respondent, serves no statutory or regulatory purpose. PERB's reconsideration procedure
limits the scope of review to factual issues, not errors of law, and the "extraordinary
circumstances" standard of review is extremely narrow. Allowing a second Board review
under the reconsideration procedure in PERB Regulation 32410 in cases arising out of
Although an unfair practice charge may not be amended once a charge has been
dismissed, a new charge may be filed if newly discovered evidence shows that an unfair
practice has been committed within the applicable limitations period.
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dismissals of charges by the Office of the General Counsel9 delays finality as evidenced in
prior Board decisions, 10 is of no measurable benefit to the parties as also evidenced in prior
Board decisions, and diverts Board resources away from cases where a prima facie unfair
practice case has been stated.
And if a respondent disagrees with a Board decision on review of a dismissal that
reverses the dismissal and remands the matter for further investigation and/or issuance of a
· complaint, PERB's processes are far from over. The respondent has multiple opportunities to
make its case in defense of the charge, to the Office of the General Counsel before the
complaint issues and to the ALJ at the formal hearing. If the respondent disagrees with the
ALJ's proposed decision, the respondent may file exceptions; and, after that, a request for
reconsideration.
Accordingly, we hold that the reconsideration procedure set forth in PERB
Regulation 32410 applies only to Board decisions arising out of exceptions to a proposed
decision by an ALJ after a formal hearing. Henceforth, the Board will no longer entertain
9 A second review by the Board itself in a dismissal case, procedurally speaking, results
in a third final agency decision: the Office of the General Counsel determination, the Board
decision on review of dismissal and the Board decision on request for reconsideration. By
contrast, a second review by the Board itself in an exceptions case results in only a second
final agency decision because the proposed decision never takes effect.
10 Six decisions on request for reconsideration of a Board decision arising out of a
dismissal of a charge by the Office of the General Counsel have been issued in the past four
years alone. All were denied. (California Nurses Association (Rosa) (2011) PERB Decision
No. 2182a-M; Stanislaus Consolidated Fire Protection District (2012) PERB Decision
No. 2231a-M; Office of Professional Employees International Union, Local 29, AFL-C/O &
CLC (Fowles) (2012) PERB Decision No. 2236a-M; National Union of Healthcare Workers
(2012) PERB Decision No. 2249a-M; State of California (Department of Mental Health,
Department of Developmental Services) (2013) PERB Decision No. 2305a-S; Service
Employees International Union, Local 1021 (Kaboo) (2014) PERB Decision No. 2322a [non-
precedential].)
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requests for reconsideration of a Board decision arising out of a dismissal of a charge by the
Office of the General Counsel. Crowell's request for reconsideration is summarily rejected for
lack of jurisdiction for the reasons given herein.
ORDER
Brian Crowell's request for reconsideration of the Public Employment Relations
Board's decision in Berkeley Federation of Teachers, Local 1078 (Crowell) (2015) PERB
Decision No. 2405 is hereby DENIED.
Members Winslow and Banks joined in this Decision.
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