This case involved an appeal of two unfair practices charges that were dismissed in 1987. That’s not a typo. Not surprisingly, the Board noted that the appeal was untimely “by more than a quarter century” and affirmed the dismissal.
The Board then addressed a request for sanctions against the charging party. The Board acknowledged that the charging party “has a lengthy history of filing repetitive unfair practice charges seeking to relitigate issues that have already been resolved against her, and the Board has previously threatened to impose sanctions for further filings.” However, the Board affirmed that under PERB precedent, to obtain monetary sanctions, including attorneys’ fees, against another party there must be a showing that a claim or other action or tactic was: 1) without arguable merit, and 2) pursued in bad faith. (City of Alhambra (2009) PERB Decision No. 2036-M, p. 19.) Here, because charging party still had charges pending before the Office of the General Counsel, the Board held that an award of sanctions was premature.
Nevertheless, the Board held that in the “furtherance of the interests of administrative economy and conservation of the parties’ resources” it was proper to impose a litigation sanction. Specifically, the Board directed that in all future proceedings filed by charging party, all other parties may refrain from any and all responsive filings unless and until PERB directs otherwise.
Comments:
- I’ve been asked several times if PERB has a vexatious litigant statute similar to Code of Civil Procedure (CCP) section 391 et. seq. It does not. However, this order by PERB comes pretty close.
- The primary difference is that someone found to be a vexatious litigant under CCP section 391 et. seq. usually must “prefile” any pleading to obtain permission to file it. Here, charging party presumably any continue filing charges but respondents do not have to respond unless ordered to do so by PERB. That’s better than nothing. But for a respondent in this situation, I imagine a prefiling order is preferable.
- I know that PERB is in the process of examining its regulations as part of its efficiency initiative. Perhaps PERB will consider promulgating a regulation on vexatious litigants…
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