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

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City of Palo Alto (2019) PERB Decision No. 2664-M, p. 8, fn. 6 (Palo Alto) noted federal private sector labor law precedent that distinguishes between recovery of litigation costs and bargaining costs. (Id. at p. 8, fn. 6 [the “American Rule”—under which parties bear their own litigation costs absent egregious litigation conduct by the opposing party—is inapplicable to bargaining costs].) To the extent federal precedent requires a prevailing party seeking negotiation costs to show that its counterpart’s violations were particularly egregious, such a rule improvidently imposes a version of the American Rule for recovering negotiation costs. Adopting this approach would contravene the dual make-whole and deterrent functions of PERB remedies. Instead, under the statutes PERB administers, the severity of a respondent’s bargaining violations is relevant in assessing causation and the extent of damages. For instance, an egregious violation is more likely than a minor one to make bargaining unproductive for a longer time, thereby increasing the amount of bargaining costs attributable to the violation. (p. 16, fn. 9.)