PERB: Reconsideration Only Available in Limited Circumstances

Lake Elsinore USD (2018) PERB Decision No. A446-Ea (Issued on 5/15/18)

This case provided PERB the opportunity to emphasize the limited nature of reconsideration. Under PERB Regulation 32410, a “request for reconsideration” is warranted only in “extraordinary circumstances.” PERB affirmed that, “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.”

Moreover, although the language of PERB Regulation 32410 is not clear on this point, PERB emphasized that a request for reconsideration is only appropriate where there has been a developed factual record. Accordingly, PERB has held that a request for reconsideration will not be considered from a Board decision granting or denying injunctive relief, from a Board decision dismissing or refusal to issue a complaint on an unfair practice charge, or from a Board decision on an administrative appeal.

Comments:

  1. Given PERB’s workload, it is not surprising that the Board wants avoid a party using the reconsideration process as a second bite of the apple. Because seeking reconsideration is not necessary to filing a writ in the court of appeal, there really is no reason to spend the time and resources to seek reconsideration unless you truly have new facts (that couldn’t be presented earlier) or there is a change in the law. So my advice is to skip reconsideration unless you clearly have one of those grounds.
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