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

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1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.04000 – Attorneys Fees and Costs

A party to a PERB matter seeking litigation expenses based upon its attorney fees and costs in that matter must normally prove that its opponent maintained a claim, defense, or motion, or engaged in another action or tactic, that was without arguable merit and pursued in bad faith. (Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 11.) However, PERB applies a different standard when deciding if a respondent found to have committed an unfair practice must pay attorney fees and costs related to a separate proceeding—whether the proceeding is in court, in arbitration, or in another PERB matter outside of the unfair practice charge itself. A charging party can obtain such a remedy if it (or a party in privity with it) has engaged in the separate proceeding in material part to remedy, lessen, make up for, or stave off the impacts of the unfair practice. (Victor Valley Union High School District (2022) PERB Decision No. 2822, pp. 23-24; Sacramento City Unified School District (2018) PERB Decision No. 2749, pp. 11-12; City of San Diego (2019) PERB Decision No. 2464a-M, p. 4; Omnitrans (2009) PERB Decision No. 2030-M, p. 30; County of San Joaquin (Health Care Services) (2003) PERB Decision No. 1524-M, p. 3.) Similarly, PERB directs payment of a charging party’s salaries or other bargaining and/or representation costs incurred in material part due to an unfair practice, even absent a separate proceeding. (City and County of San Francisco (2023) PERB Decision No. 2858-M, pp. 15-17; Alliance Judy Ivie Burton Technology Academy High et al. (2022) PERB Decision No. 2809, pp. 14, 31-32, 34.) In either of those contexts, make-whole relief is proper if the charging party proves that the respondent’s unlawful conduct caused harm and it is reasonably feasible to estimate the impact thereof. (City and County of San Francisco, supra, PERB Decision No. 2858-M, p. 15.) (pp. 24-25.)