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

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PERB precedent requires that, to obtain monetary sanctions, including attorney fees or other reasonable litigation expenses, the moving party must demonstrate that the claim, defense, motion or other action or tactic was “without arguable merit” and pursued in “bad faith.” [Citations.] As interpreted by most appellate courts, the standard for determining whether an action or litigation tactic is “frivolous,” as opposed to merely meritless, is whether the claim, defense, action or tactic is so manifestly erroneous that no prudent attorney would have filed or maintained it. Here, the employer’s request for reconsideration was without arguable merit: it failed to comply with the basic requirements of the reconsideration regulation, ignored recent PERB decisional law directly on point, and included no serious argument for extending, modifying, or reversing existing law or for establishing new law to permit reconsideration of administrative determinations. The Board also found the request was filed in bad faith based on the fact that the employer has engaged in delaying tactics before as well as the fact that in this particular case the District sought reconsideration of a decision that granted it the very relief it requested. The District’s refusal to take yes for an answer, in this context, is clear and convincing evidence that its request for reconsideration was frivolous and “intended to cause unnecessary delay.” [Citations.] Thus, the Board ordered the employer to reimburse the union for reasonable attorney fees for the preparation and filing of its response to the employer’s request for reconsideration. (pp. 4-5.)