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

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To obtain reimbursement of attorney fees or other expenses as a litigation sanction, the moving party must demonstrate that the opposing party’s claim, defense, motion, or other action or tactic was “without arguable merit” and pursued in “bad faith.” (City of Palo Alto (2019) PERB Decision No. 2664-M, p. 7.) To determine whether a claim, defense, motion, or other action is frivolous, we examine whether it is so manifestly erroneous that no prudent representative would have filed or maintained it. (Ibid., citing Lake Elsinore Unified School District (2018) PERB Order No. Ad-446a, p. 5, and cases cited therein.) To determine whether a party acted with subjective bad faith, we examine whether the party’s conduct was dilatory, vexatious, or otherwise an abuse of process, and we may infer such intent from circumstantial evidence. (Ibid., citing City of Alhambra (2009) PERB Decision No. 2036-M, p. 19.)

Using this standard, the Board denied Teamsters’ request for attorney fees and costs. Although the Board rejected the University’s argument that section 3553 did not apply to its FAQs, it nonetheless found that the University’s position was not without arguable merit considering the Board had not interpreted section 3553 prior to this decision. Because section 3553 lies at the heart of this case, the Board did not find that the University’s litigation position was so manifestly erroneous that no prudent representative would have maintained it. Nor was the University’s section 3550 affirmative defense clearly foreclosed by existing PERB precedent. Given that the University’s legal arguments did not meet the standard of being without arguable merit, the Board did not separately assess whether such arguments were made in bad faith. (pp. 28-29.)