Los Angeles County Metropolitan Transportation Authority (PERB 2916TA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LOS ANGELES COUNTY METROPOLITAN
TRANSPORTATION AUTHORITY,
Employer,
and
AMERICAN FEDERATION OF STATE,
COUNTY & MUNICIPAL EMPLOYEES,
LOCAL 3634,
Exclusive Representative.
Case No. LA-UM-1025-T
Request for Reconsideration
PERB Decision No. 2916-T
PERB Decision No. 2916a-T
November 15, 2024
Appearances: Liebert Cassidy Whitmore by Adrianna Guzman and Kelsey Ridenhour,
Attorneys, and Joanne Nielsen, Principal Deputy County Counsel, for Los Angeles
County Metropolitan Transportation Authority; Bush Gottlieb by Dana S. Martinez and
Adrian R. Butler, Attorneys, for American Federation of State, County & Municipal
Employees, Local 3634.
Before Banks, Chair; Krantz and Paulson, Members.
DECISION
PAULSON, Member: This case is before the Public Employment Relations
Board (PERB or Board) on a request by Los Angeles Metropolitan Transportation
Authority (Metro) to reconsider our decision in Los Angeles Metropolitan
Transportation Authority (2024) PERB Decision No. 2916-T (LA Metro). There, we
affirmed the administrative determination of PERB’s Office of the General Counsel
(OGC) granting a unit modification petition filed by American Federation of State,
County & Municipal Employees, Local 3634 (AFSCME) to add Accounting Supervisors
employed by Metro to its supervisory employee bargaining unit. As part of that

2
decision, we held that OGC did not err in declining to make findings related to the
community of interest factors enumerated at section 99565 of the Los Angeles County
Metropolitan Transportation Authority Transit Employer-Employee Relations Act
(TEERA).1 (LA Metro, supra, pp. 23-24.) Metro’s request for reconsideration asserts
that PERB erred in reaching this conclusion. AFSCME opposed Metro’s request for
reconsideration and requested attorney fees as a litigation sanction.
A party may ask the Board to reconsider a final decision only if the party:
(1) asserts that the decision includes prejudicial errors of fact; or (2) presents 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);
County of Riverside (2018) PERB Decision No. 2591a-M, p. 3.) 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.) “Because reconsideration may only be granted under the ‘extraordinary
circumstances’ specified above, the Board [strictly] applies the regulation’s criteria.”
(Id. at p. 2.) Furthermore, reconsideration is available only where the underlying Board
decision reviewed a proposed decision based on a developed factual record.
(Berkeley Federation of Teachers, Local 1078 (Crowell) (2015) PERB Decision
No. 2405a, p. 14 (Crowell).) Reconsideration is therefore not permitted when the
1 TEERA is codified at Public Utilities Code section 99560 et seq. PERB
regulations are codified at California Code of Regulations, title 8, section 31001 et
seq.

3
Board reviews an administrative determination which involves no evidentiary hearing
or factual record. (Regents of the University of California and Teamsters Clerical Local
2010 (Polk) (2016) PERB Order No. Ad-437a-H, p. 4 (Polk).)
We deny Metro’s request for reconsideration for two reasons. First, LA Metro,
supra, PERB Decision No. 2916-T, involved no evidentiary hearing or factual record
and therefore reconsideration is not available. (Polk, supra, PERB Order
No. Ad-437a-H, p. 4.) Second, Metro’s request for reconsideration objects to the
Board’s legal analysis and not an assertedly prejudicial mistake of fact or newly
discovered, outcome-determinative evidence. (PERB Reg. 32410, subd. (a); County of
Riverside, supra, PERB Decision No. 2591a-M, p. 3.) We also deny AFSCME’s
request for attorney fees as unwarranted here.
DISCUSSION
I. 	Metro’s Request for Reconsideration
Requests for reconsideration are subject to PERB Regulation 32410, which
provides:
“Any party to a decision of the Board itself may, because of
extraordinary circumstances, file a request to reconsider
the decision within 20 days following the date of service of
the decision. The request for reconsideration shall be filed
with the Board itself in the headquarters office and shall
state with specificity the grounds claimed and, where
applicable, shall specify the page of the record relied on.
Service and proof of service of the request pursuant to
Section 32140 are required. The grounds for requesting
reconsideration are limited to claims that: (1) the decision of
the Board itself contains prejudicial errors of fact, or (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

4
reconsideration based upon the discovery of new evidence
must be supported by a declaration under the penalty of
perjury which establishes that the evidence: (1) was not
previously available; (2) could not have been discovered
prior to the hearing with the exercise of reasonable
diligence; (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.”
(Id., subd. (a).)
In Crowell, supra, PERB Decision No. 2405a, the Board observed that despite
the broad language at the outset of this regulation, its references to “record” and
“hearing” limit its application. (Id. at pp. 4, 7.) We held that reconsideration was not
available for Board decisions upholding OGC’s dismissal of an unfair practice charge,
because such a decision concerns whether the allegations in the charge state a prima
facie case as a matter of law. (Ibid.) In Polk, supra, PERB Order No. 437a-H, a party
sought reconsideration of a Board decision affirming an administrative determination
by PERB’s Appeals Assistant denying an extension of time. (Id. at pp. 1-2.) The Board
held that because the underlying administrative determination involved no evidentiary
hearing or factual record, the rule from Crowell applied, and reconsideration was not
available. (Id. at p. 4.)
Metro acknowledges this authority and its applicability to its own request for
reconsideration in this case. However, Metro asks us to revisit our precedents,
contending that the “broad” language of Regulation 32410 should be interpreted to
permit reconsideration of administrative determinations. In making this request,
although Metro cites Bellflower Unified School District (2019) PERB Order
No. Ad-475a, it ignores its teaching that “[p]urported errors of law, including the

5
Board’s alleged improper application of its own Regulations, or a reversal of Board
precedent, are not grounds for reconsideration.” (Id. at p. 3.)
We decline to overrule Crowell, supra, PERB Decision No. 2405a, Polk, supra,
PERB Order No. 437a-H, and other cases holding that reconsideration is only
available for Board decisions where there has been an evidentiary hearing or factual
record. We also hold that, consistent with these cases, reconsideration is not available
for a Board decision reviewing an administrative determination to grant or deny a
petition for unit modification, as by definition, an administrative determination is not
based on a formal hearing or a stipulated record, and no proposed decision is issued.
(Grossmont Union High School District (2018) PERB Order No. Ad-466, pp. 4-5.)
First, we reaffirm that limitations on reconsideration requests derive from the
text of Regulation 32410, subdivision (a) itself. In Crowell, supra, PERB Decision
No. 2405a, the Board observed that the Regulation expressly permits only two
grounds for reconsideration “because of extraordinary circumstances”: 1) prejudicial
errors of fact in the Board’s decision; and 2) discovery of new, outcome-determinative
evidence that could not have been discovered and/or presented earlier with
reasonable diligence. (PERB Reg. 32410, subd. (a).) Because decisions to affirm the
dismissal of an unfair practice charge do not contain factual findings or the weighing of
evidence, neither ground for reconsideration can be established. (Crowell, supra, at
pp. 4-5.) Reconsideration is therefore not available unless the decision is based on
findings from an evidentiary hearing or stipulated factual record. (Lake Elsinore Unified
School District (2018) PERB Order No. Ad-446a, p. 4; Polk, supra, PERB Order
No. Ad-437a-H, p. 4.)

6
A Board agent’s administrative determination to grant or deny a request for unit
modification by definition is not based on an evidentiary hearing or stipulated factual
record. (PERB Reg. 32350, subd. (a)(3).) Board agents investigating representation
petitions have broad discretion to determine what procedures they deem necessary
and efficient to decide the questions raised by the petition. (PERB Reg. 32786,
subd. (a).) Board agents need not conduct a formal evidentiary hearing to resolve unit
appropriateness disputes if, based on the parties’ submissions, no material dispute of
fact exists. (Children of Promise Preparatory Academy (2013) PERB Order
No. Ad-402, p. 17 (Children of Promise).) The Board agent may employ an order to
show cause to solicit argument and verified factual allegations to determine whether a
material factual dispute exists in a case. (Id. at pp. 17-18.) If a party is unable to
submit verified factual information that would be sufficient to support its position, the
Board agent may properly resolve the dispute without a formal hearing. (Ibid.)
An administrative determination to grant or deny a representation petition is in
some respects akin to a decision to dismiss an unfair practice charge for failure to
state a prima facie case. Unfair practice charge investigations entail a similar level of
complexity as unit determination investigations. Both consider the sufficiency of factual
allegations as they relate to any number of legal questions. But, as the Board noted in
Crowell, supra, PERB Decision No. 2405a, OGC’s dismissal of an unfair practice
charge is based on a determination that the factual allegations fail to state a prima
facie case as a matter of law. Similarly, when a Board agent grants or denies a
representation petition based on the parties’ submissions, it is because a party has
failed to submit sufficient information to warrant a formal hearing, or at least has not

7
done so “in the manner required,” such as via “declarations on personal knowledge
showing the actual job duties” of the disputed classifications or positions. (Children of
Promise, supra, PERB Order No. Ad-402, pp. 17-18.) The Board agent granting or
denying a representation petition without a formal hearing does not resolve
outcome-determinative conflicts of fact, if each side has adequately supported its
factual contentions. For the same reasons observed by the Board in Crowell, supra,
PERB Decision No. 2405a, administrative determinations granting or denying
representation petitions are not subject to reconsideration under Regulation 32410.
The specific grounds for Metro’s request in this case illustrate why
reconsideration is not available. Metro contends that the Board erred in determining
that the Board agent was not required to conduct a community of interest analysis
based on Metro’s response to the order to show cause. We affirmed the Board agent
because Metro’s response stated, “there is no need to engage in a community of
interest analysis,” and “[t]he only relevant question is whether Accounting Supervisors
must be excluded from AFSCME because the position is confidential or managerial or
professional.” (LA Metro, supra, PERB Decision No. 2916-T, p. 23.) Metro claims that
other language in its response “should have made it clear that [Metro] was arguing a
lack of community interest,” and that PERB thus had an obligation to conduct a formal
hearing to gather facts relating to that issue.
Metro’s argument is based on the language of TEERA section 99565,
subdivision (a), which states, “In each case where the appropriateness of a unit is an
issue, in determining an appropriate unit, the board shall take into consideration all of
the following criteria,” followed by descriptions of unit appropriateness criteria,

8
including the community of interest among employees. (Emphasis added.) The Board
has long interpreted the same language appearing in other statutes under our
jurisdiction to mean that Board agents need not consider unit appropriateness criteria
not put into issue by the objecting party. (Hemet Unified School District (1990) PERB
Decision No. 820, p. 10.) We agreed with the Board agent that Metro had declined to
raise a community of interest dispute, both by expressly stating, “there is no need to
engage in a community of interest analysis,” and also by never citing to TEERA’s
community of interest factors or alleging facts relating to them. (LA Metro, supra,
PERB Decision No. 2916-T, pp. 23-24.) We therefore held that the Board agent did
not err in refraining from making community of interest findings. (Ibid.)
The purported “error” identified by Metro is therefore not a factual error. Rather,
Metro’s failure to present facts or argument relating to community of interest in
response to the OSC, “in the manner required,” with specific arguments and verified
facts, meant that community of interest was not an issue in the investigation. (Children
of Promise, supra, PERB Order No. Ad-402, pp. 17-18.) The Board agent afforded
Metro multiple opportunities to put facts and argument relating to community of
interest into issue, but Metro has consistently stopped short of doing so. Even were
we to find that administrative determinations are subject to reconsideration, as Metro
urges us to do, Metro’s request is based on the Board’s legal conclusion regarding
Metro’s statements concerning the necessity of a community of interest analysis, and
not on a purported factual error. Permitting a second Board review under these
circumstances “delays finality… , is of no measurable benefit to the parties, … and
diverts Board resources away from cases” where fact-intensive hearings are

9
necessitated. (Crowell, supra, PERB Decision No. 2405a, pp. 13-14 [stating reasons
weighing against reconsideration for dismissals of unfair practice charges].)
We therefore deny Metro’s request for reconsideration because it does not and
cannot allege any factual error or newly discovered evidence as required by PERB
Regulation 32410.
II. 	AFSCME’s Request for Attorney Fees
A party to a PERB matter seeking attorney fees and costs as a litigation
sanction for conduct litigating the same case before PERB must normally prove that
its opponent maintained a claim, defense, or motion, or engaged in another action or
tactic, that was without arguable merit and pursued in bad faith. (Sacramento City
Unified School District (2020) PERB Decision No. 2749, p. 11.) Metro’s repeated
attempts to distort its response to the OSC to mean the opposite of what it said (“there
is no need to engage in a community of interest analysis”) are certainly questionable.
However, Metro’s arguments concerning the availability of reconsideration under
these specific procedural circumstances are non-frivolous, though we deny them ante.
Because of this, we do not find Metro’s conduct in requesting reconsideration of our
decision in LA Metro, supra, PERB Decision No. 2916-T meets the sanctions
standard. (See Pasadena Area Community College District (2024) PERB Order
No. Ad-518, pp. 21-22.)
ORDER
The Public Employment Relations Board hereby DENIES the request by Los
Angeles County Metropolitan Transportation Authority for reconsideration of the
Board’s decision in Los Angeles Metropolitan Transportation Authority (2024) PERB

10
Decision No. 2916-T and DENIES the request for sanctions filed by American
Federation of State, County & Municipal Employees, Local 3634 in opposition to
Metro’s request for reconsideration.
Chair Banks and Member Krantz joined in this Decision.