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Berkeley Federation of Teachers, Local 1078 (2015) PERB Decision No. 2405-Ea (Issued on 4/29/15)

There are two basic ways an unfair practice charge gets before the Board.  First, an unfair practice charge can be dismissed by the Board agent at the initial review stage and then “appealed” to the Board.  Second, an unfair practice charge can result in a complaint which then results in a proposed decision by an administrative law judge.  “Exceptions” can then be taken from the proposed decision to the Board.  So there are basically two types of unfair practice cases before the Board: appeals and exceptions. As the Board notes in this decision, “Exceptions to proposed decisions and review of dismissals arise from two procedurally distinct regulatory tracks.”

The issue here involved a motion for reconsideration under PERB regulation 32410 of a Board decision involving an appeal of a dismissal. In the past, such motions have been considered by the Board. However, here, instead of deciding the case on the merits, the Board dismissed the motion for lack of jurisdiction. The Board held that a motion for reconsideration is not available for an appeal; rather, such a motion is intended for exceptions.

The Board examined the language of PERB regulation 32410 to support its holding that the regulation does not apply to appeals.  For example, PERB regulation 32410 discusses “prejudicial errors of fact” and “newly discovered evidence” as grounds for reconsideration. According to the Board, such considerations only make sense in the context of exceptions to a proposed decision where there have been findings of fact and law, and a record to support the findings.  In contrast, a dismissal results from a finding that there is no prima facie case as a matter of law, and does not involve any actual factual findings. Accordingly, the Board held that:

[T]he reconsideration procedure set forth in PERB Regulation 32410 applies only to Board decisions arising out of exceptions to a proposed decision by an ALJ after a formal hearing.


  1. I think this decision makes sense. As the Board notes, it’s hard to imagine an appeal where there could be prejudicial errors of fact or newly discovered evidence as required by PERB regulation 32410.  So while an argument can be made that a motion for reconsideration of a Board decision of an appeal should be available, I agree that PERB regulation 32410 isn’t it.
  2. However, I do want to note that this decision just further limits the avenues available to a party aggrieved by a Board decision on an appeal. For example, if the Board decision affirms a dismissal, the charging party can only bring a writ of mandate in superior court and argue that the decision violates a constitutional right, exceeds a specific grant of authority, or is based on an erroneous statutory construction. (See International Association of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Board (2011) 51 Cal.4th 259.  If, on the other hand, the Board decision orders the issuance of a complaint, the decision is arguably “interlocutory” and, at most, subject to discretionary writ review. So the fact is that a party aggrieved by a Board decision on an appeal has very few options to challenge the decision.
  3. Because the ability to challenge a Board decision on an appeal is so limited, I think it makes sense as a matter of public policy for the Board to not make such decisions precedential. Under PERB regulation 32320(d), the Board has the discretion to designate a decision on an appeal as precedential. I must admit, in making this argument I am biased because I currently am handling a case involving a challenge to a Board decision on an appeal where the Board ordered the issuance of a complaint. In handling this particular case, it became clear to me that the precedential decision could be in place for years before it could be challenged, since the parties will have to proceed through the formal hearing process.  Although I am a biased advocate, I still believe as a matter of public policy it would be better for the Board not to make such decisions precedential since, in my humble opinion, it isn’t fair to subject other parties to a precedential decision that can’t be effectively challenged.

This entry was posted in PERB Decision, Regulations.

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