Bellflower Unified School District (2019) PERB Decision No. A475-Ea (Issued on November 12, 2019)
In this case the Bellflower Unified School District sought reconsideration of an administrative decision. The Board wasted no time in holding that, “even the most cursory review of Board precedent would have revealed that our Regulations do not permit reconsideration of decisions resolving administrative appeals.” Indeed, I wrote a blog post in 2018 discussing the Board’s decision in Lake Elsinore USD (2018) PERB Dec. No. A446-Ea, in which the Board emphasized that reconsideration is not available for decisions involving an administrative appeal.
After rejecting the district’s appeal, the Board went on to consider the union’s request for attorneys’ fees for having to respond to the request for reconsideration. The Board affirmed that an award of attorneys’ fees requires a showing that the action was “without arguable merit” and pursued in “bad faith.” Here, the Board found that the action was without arguable merit based on the district’s failure to comply with the Board’s regulations. Next, the Board found that the district’s “refusal to take yes for an answer” (i.e. it sought reconsideration of a decision in which its appeal was granted) was evidence of bad faith. As a result, the Board granted the union’s request for attorneys’ fees.
In City of Alhambra (2009) PERB Dec. No. 2037-M, the seminal case on this issue, the Board awarded attorneys’ fees against a union in favor of the employer. However, to my knowledge, this is the first instance where the Board has awarded attorneys’ fees against an employer.