REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS – Attorneys Fees and Costs

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The union sought an award of litigation sanctions based on legal work performed in this case. A party seeking such relief normally must meet a standard akin to that under Rule 11 of the Federal Rules of Civil Procedure, showing that its opponent pursued a frivolous argument in bad faith. (Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 11.) Because the state employer raised non-frivolous arguments in this case, the union could not meet this standard. In contrast, for a charging party to obtain an award based on litigation fees or costs in a separate proceeding, or based on salaries or other costs of representation or bargaining, it need only show by a preponderance of the evidence that the offending party’s conduct caused a harm and that it is reasonably feasible to estimate the financial impact. (City and County of San Francisco (2023) PERB Decision No. 2858, p. 15.) The Board noted that, although the state employer’s unfair practice may have increased the union’s costs of representation in a separate proceeding before the SPB, the union did not pursue and neither party litigated this potential make-whole theory. (p. 6 & fn. 4.)