Bellflower Unified School District (PERB A475EA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, CHAPTER 32,
Charging Party, 	Case No. LA-CE-5955-E
v. 	Request for Reconsideration
PERB Order No. Ad-475
PERB Order No. Ad-475a
November 12, 2019
BELLFLOWER UNIFIED SCHOOL DISTRICT,
Respondent.
Appearances: Law Offices of Eric Bathen by Eric Bathen, Attorney, for Bellflower Unified
School District; Andrew J. Kahn and Sonja J. Woodward, Attorneys, for California School
Employees Association, Chapter 32.
Before Banks, Shiners, and Paulson, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) again on Bellflower Unified School District’s (District) request that we reconsider
our decision in Bellflower Unified School District (2019) PERB Order No. Ad-475. In that
decision, we granted the District’s appeal from an administrative determination finding it had
failed to comply with our decision in Bellflower Unified School District (2017) PERB Decision
No. 2544, and remanded the matter to the Office of the General Counsel for an expedited
compliance hearing. As grounds for reconsideration, the District contends that Order No. Ad-
475 contained “prejudicial errors of fact.” (PERB Reg. 32410.)1
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1 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

2
Under PERB’s Regulations, a request for reconsideration requires the existence of
“extraordinary circumstances.” (PERB Reg. 32410.) But even the most cursory review of
Board precedent would have revealed that our Regulations do not permit reconsideration of
decisions resolving administrative appeals. Therefore, we are persuaded that the District filed
its reconsideration request for the purposes of delaying compliance and evading its obligations
under the Educational Employment Relations Act (EERA).2 For these reasons, we deny the
District’s request for reconsideration and grant the request of California School Employees
Association, Chapter 32 (CSEA) for reasonable attorney fees for the time spent preparing a
response to the District’s bad faith request.
DISCUSSION
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.) 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.” (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
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2 EERA is codified at Gov. Code, § 3540 et seq. Unless otherwise indicated, all
statutory references herein are to the Government Code.

3
circumstances” warranting reconsideration are thus limited to asserted errors or omissions of
fact. (National Union of Healthcare Workers (2012) PERB Decision No. 2249a-M, p. 8.)
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. (City of
Palmdale, supra, PERB Decision No. 2203a-M, p. 11; CSEA (Hard, et al.), supra, PERB
Decision No. 1479a-S, pp. 6, 10-11, fn. 11; see also County of Tulare (2016) PERB Decision
No. 2461a-M, pp. 3-4.) 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.” (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.)3
As we explained in Lake Elsinore Unified School District (2018) PERB Order No. Ad-
446a, pp. 2-5 (Lake Elsinore USD), 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. (Id. at p. 3, italics original, citing Berkeley Federation of Teachers,
Local 1078 (Crowell) (2015) PERB Decision No. 2405a.) Here, as in Lake Elsinore USD,
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3 The District complains that we shifted onto its shoulders the entire burden of
production to establish its compliance with PERB Decision No. 2544. But the burden to prove
that the affected employees did not mitigate their losses always belonged to the District as a
matter of law. (County of Lassen (2018) PERB Decision No. 2612-M, p. 8.) Nevertheless, under
PERB Regulations, the hearing officer possesses considerable authority to structure the
presentation of evidence to suit the circumstances of this case. Among the available options,
the hearing officer could, for the sake of efficiency, require CSEA to submit its evidence of
interim earnings first, either through sworn declarations or live testimony, in order to set the
stage for the District’s responses.

4
supra, PERB Order No. Ad-446a, the underlying decision resolving the District’s
administrative appeal “involved no developed factual record resulting from a formal
evidentiary hearing or stipulated record.” (Id. at p. 4.) And in reaching the conclusion that a
hearing was necessary to determine the facts of compliance, the Board itself made no factual
findings.4 In any event, the District’s request does not cite to Lake Elsinore USD or any of the
other cases on point, nor does it “make any argument for extending, modifying, or reversing
existing Board law or for establishing new law.” (Id. at p. 5.) “It is therefore unnecessary to
consider the grounds asserted by the District for reconsideration, and its request is summarily
denied.” (Ibid.)
This conclusion does not end the inquiry, however, as CSEA requests that we award it
attorney fees for the time spent on its response to the request. 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.” (City of Alhambra (2009) PERB
Decision No. 2036-M, p. 19; City of Alhambra (2009) PERB Decision No. 2037-M, 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
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4 We did, however, make certain legal conclusions that circumscribe the universe of
relevant evidence for consideration on remand. Among these was our conclusion that the
District could not rely on the availability of school bus driver jobs created by its unlawful
subcontract with Hemet Unified School District to challenge affected employees’ mitigation
efforts. (See Bellflower USD, supra, PERB Order No. Ad-475, p. 11.) As Lake Elsinore USD
and many other cases make clear, it is inappropriate to challenge such legal conclusions
through a request for reconsideration.

5
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 CSEA that the District’s request for reconsideration was without even
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. We also find the request was filed in
bad faith based on the fact that the District has engaged in delaying tactics before (see
generally Public Employment Relations Board v. Bellflower Unified School District (2018)
29 Cal.App.5th 927), 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.” (EERA, § 3541.3,
subds. (h) and (n); Gov. Code, § 11455.30; see Hacienda La Puente Unified School District
(1998) PERB Decision No. 1280.) Finding that the District filed its request “for no discernible
purpose other than to delay” compliance in this case (Bellflower Unified School District, supra,
29 Cal.App.5th at p. 941), we order the District to reimburse CSEA for reasonable attorney
fees for the preparation and filing of its response to the request for reconsideration, the amount

6
to be determined on remand along with all other outstanding compliance matters, as noted in
PERB Order No. Ad-475.5
ORDER
Bellflower Unified School District’s (District) request for reconsideration of PERB
Order No. Ad-475 is DENIED. The District is ORDERED to pay all reasonable attorney fees
incurred by the California School Employees Association, Chapter 32 (CSEA) related to the
preparation and filing of its response to the request for reconsideration. CSEA is to prepare
and submit fee amounts to the assigned hearing officer. After the conclusion of the hearing,
the hearing officer shall prepare a written order specifying the reasonable attorney fees and
shall serve that order on the parties, together with all other proposed findings and conclusions
necessary to determine the District’s compliance in this matter, as described in PERB
Order No. Ad-475.
Members Shiners and Paulson joined in this Decision.
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5 As that Decision also notes, the hearing officer retains the authority to award
additional attorney fees if the District engages in other bad faith conduct warranting further
sanction. (Bellflower USD, supra, PERB Order No. Ad-475, p. 14.)