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

The Board declined to amend its established make-whole standards to award a successful charging party in a PERB proceeding attorney fees in that case without showing that its opponent maintained a litigation stance that was without arguable merit and pursued in bad faith. The Board found a decision of the National Labor Relations Board (NLRB): Thryv, Inc. (2022) 372 NLRB No. 22 (Thryv), persuasive. Thryv clarified that make-whole relief includes both “direct or foreseeable” economic harms resulting from a violation. However, the NLRB noted that it does not apply the “direct or foreseeable” standard to cover a successful party’s claim for automatic fee shifting. (Id. at p. 12, fn. 13.) The Board also considered a second NLRB decision, Grill Concepts Services (2022) 372 NLRB No. 30. There, the NLRB ordered an employer to reimburse bargaining costs to both the charging party union and its employee negotiators. (Id. at pp. 2-3.) The Board noted that PERB’s remedial standards already cover most direct or foreseeable harms resulting in material part from a violation, and that the American Rule on fee shifting is an exception to this principle. While at times broader remedies are available under California public sector labor relations law, compared to the federal framework governing the private sector, there is no blanket rule that all California public sector remedial standards are necessarily broader than their federal counterparts. The Board found no cause to deviate from the American Rule on fee shifting. (pp. 30-31, 33-34.)