All notes for Subtopic 1205.04000 – Attorneys Fees and Costs

DecisionDescriptionPERC Vol.PERC IndexDate
2895M Palomar Health
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
The Board affirmed the ALJ’s conclusion that a make-whole award for the unions must include legal expenses because the unions would not have incurred the costs of defending against the lawsuit absent the employer’s unlawful conduct, viz. interfering with protected rights by pursuing a lawsuit seeking to ban union representatives from various non-work areas of its property. Calculating such expense based on the lodestar rate is consistent with Board precedent. The unions were to have an opportunity to establish in compliance proceedings that they suffered losses from the employer’s various proven unlawful conduct. The Board denied the unions’ request for legal fees and costs as sanctions. (pp. 63-67.) more or view all topics or full text.
03/15/24
2858M City and County of San Francisco
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Bargaining costs were proper make-whole relief where a preponderance of the evidence showed that the City’s MMBA violations illegally frustrated negotiations for more than three months, thereby imposing extra bargaining costs on the union. That portion of union negotiator’s salary attributable to time spent on the negotiations during that period may be compensable, as determined in compliance proceedings. Indeed, in City and County of San Francisco (2020) PERB Decision No. 2691-M, when the Board rejected the charging party’s claim that Charter section A8.409-4(k) is facially invalid, the Board noted that if the City did not interpret its Charter lawfully in the future, a charging party could obtain “reimbursement of costs, including but not limited to costs of bargaining, mediation, or interest arbitration.” (Id. at p. 51, fn. 32.) Accordingly, PERB ordered reimbursement of the union’s bargaining costs. (p. 17.) more or view all topics or full text.
4715604/26/23
2858M City and County of San Francisco
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Just as an award of attorney fees and costs should not lose significant value because of extended litigation over the precise amount owed under the award (Bellflower Unified School District (2022) PERB Decision No. 2544a, pp. 56-57), the same is true for an award of bargaining costs. Therefore, after PERB awards bargaining costs, if subsequent disputes over the award’s value extend to such a degree that counsel for the prevailing party must perform work beyond drafting a first set of declarations and supporting briefing, then any further, reasonable time spent effectuating the award of fees and costs may be compensable irrespective of whether the opposing party acts frivolously in litigating the award’s value. (See Sacramento City Unified School District (2020) PERB Decision No. 2749, pp. 19-20.) more or view all topics or full text.
4715604/26/23
2858M City and County of San Francisco
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
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.) more or view all topics or full text.
4715604/26/23
2858M City and County of San Francisco
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
A party seeking an award of attorney fees or other litigation expenses based on legal work performed in that case normally must meet a standard akin to that under Rule 11 of the Federal Rules of Civil Procedure, showing that its opponent pursued a frivolous argument in bad faith. (Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 11 (Sacramento City USD).) In contrast, for a charging party to obtain an award based on some or all of the cost of bargaining or otherwise representing employees, it need only show by a preponderance of the evidence that the offending party’s conduct caused a harm and that it is reasonably feasible to estimate the financial impact. (City of Palo Alto (2019) PERB Decision No. 2664-M, p. 8, fn. 6; see also Alliance Judy Ivie Burton Technology Academy High et al. (2022) PERB Decision No. 2809, pp. 14, 31-32 [judicial appeal pending]; Oxnard Union High School District (2022) PERB Decision No. 2803, p. 3; County of Santa Clara (2021) PERB Decision No. 2799-M, p. 28, fn. 14; Sacramento City USD, supra, p. 2749, p. 15; City and County of San Francisco (2020) PERB Decision No. 2691-M, p. 51, fn. 32.) (p. 15.) more or view all topics or full text.
4715604/26/23
2830Sa State of California (State Water Resources Control Board)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
The union sought an award of litigation sanctions based on legal work performed in this case. A party seeking such relief normally must meet a standard akin to that under Rule 11 of the Federal Rules of Civil Procedure, showing that its opponent pursued a frivolous argument in bad faith. (Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 11.) Because the state employer raised non-frivolous arguments in this case, the union could not meet this standard. In contrast, for a charging party to obtain an award based on litigation fees or costs in a separate proceeding, or based on salaries or other costs of representation or bargaining, it need only show by a preponderance of the evidence that the offending party’s conduct caused a harm and that it is reasonably feasible to estimate the financial impact. (City and County of San Francisco (2023) PERB Decision No. 2858, p. 15.) The Board noted that, although the state employer’s unfair practice may have increased the union’s costs of representation in a separate proceeding before the SPB, the union did not pursue and neither party litigated this potential make-whole theory. (p. 6 & fn. 4.) more or view all topics or full text.
4716005/02/23
2835H Regents of the University of California
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
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.) more or view all topics or full text.
476910/07/22
2544Ea Bellflower Unified School District
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Union awarded reimbursement of legal expenses it incurred in opposing employer’s frivolous reconsideration request was not entitled to an award of “fees on fees,” viz. reimbursement for time union spent on its attorney fee motion, where union had not yet had to perform work beyond drafting an initial set of declarations and supporting brief. (Sacramento City Unified School District (2020) PERB Decision No. 2749, pp. 19-20.) Additional sanctions may become appropriate if union is required to expend additional attorney time and resources to recover its attorneys’ fees awarded pursuant to Board order to prevent dissipation of value of award. (Id. at p. 19, citing Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 580.) more or view all topics or full text.
4614303/24/22
2544Ea Bellflower Unified School District
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
In cases where PERB awards legal expenses, either as make-whole relief or as a litigation sanction, the appropriate method for determining professional fees is generally the lodestar method, which involves multiplying a reasonable number of hours spent on a matter by a reasonable hourly rate for private legal professionals with similar experience. (Sacramento City Unified School District (2020) PERB Decision No. 2749, pp. 15-16 (Sacramento).) Reviewing attorney time records, verified by declaration, is an accepted method for assessing the reasonableness of the number of hours spent litigating a matter. (See Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396-397.) The goal is to ensure that the award is consistent with the prevailing market rate for professionals at a private law firm with a similar degree of experience. (Sacramento, supra, PERB Decision No. 2749, p. 16.) This also provides an orderly system for resolving fee disputes that does not require protracted litigation into the appropriateness of a fee demand. (Id. at p. 20, citing Serrano v. Unruh (1982) 32 Cal.3d 621, 642.) PERB may adjust the resulting fee calculation upward or downward, thereby allowing some flexibility in assessing the market value of the legal services performed. (Id. at pp. 15-16.) It is not appropriate to reduce a lodestar award merely because some or all the legal professionals work for a nonprofit, government agency, or in-house legal department, or otherwise are paid a flat salary and do not bill clients for their time. (Id. at pp. 16-19 & fn. 10.) more or view all topics or full text.
4614303/24/22
2544Ea Bellflower Unified School District
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
In assessing whether to award legal expenses for sanctionable litigation conduct, PERB applies a standard akin to Rule 11 of the Federal Rules of Civil Procedure. (Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 11.) Separately, standard make-whole principles warrant awarding a charging party reasonable legal expenses it incurred in a separate proceeding to “remedy, lessen or stave off the impacts of the other party’s unfair practice.” (Id. at p. 11.) In that instance, the charging party need not establish the Rule 11-type factors. (Ibid.) When PERB awards legal expenses, either as make-whole relief or as a litigation sanction, a party may seek reimbursement for “virtually any item for which a law firm customarily bills a client, including, inter alia, billable professional services (meaning attorney and law clerk services and certain ‘paralegal’ services that may be performed by legal assistants with or without a paralegal license), as well as incidental costs such as filing fees, electronic research fees, or fees for service of process.” (Id. at pp. 14-15.) PERB also awards pre-judgment and post-judgment interest on legal expenses. (Id. at p. 19.) more or view all topics or full text.
4614303/24/22
2809E Alliance Judy Ivie Burton Technology Academy High School et al.
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
In a technical refusal to bargain case, attorneys fees were not awarded because the employer engaged in the technical refusal to bargain to obtain judicial review of PERB’s unit determination and argued in favor of changing existing law in a manner that did not violate PERB’s litigation sanctions standard. (p. 31.) more or view all topics or full text.
4613102/28/22
2749E Sacramento City Unified School District
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
The Board reaffirmed that its litigation sanction standard does not apply to a make-whole award of litigation expenses incurred in an ancillary proceeding to remedy, lessen, or stave off the impacts of unfair practices. PERB orders make-whole relief irrespective of whether the harm at issue involves legal professionals who spent time and resources in ancillary litigation or non-legal staff who spent extra time or resources in bargaining, communicating with members, or other functions. (See City of Palo Alto (2019) PERB Decision No. 2664, p. 8, fn. 6 [litigation sanctions are conceptually different from reimbursement of legal expenses reasonably incurred in an ancillary proceeding as a result of an employer’s underlying conduct].) more or view all topics or full text.
455811/02/20
2749E Sacramento City Unified School District
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
PERB employs two alternate standards for determining whether to award legal expenses. One standard applies when PERB must determine whether to award a party legal expenses because of the opposing party’s sanctionable conduct in litigating the same case before PERB. That standard, which is akin to Rule 11 of the Federal Rules of Civil Procedure, provides that PERB should make such an award if the offending party maintained a claim, defense or motion, or engaged in another action or tactic, that was without arguable merit and pursued in bad faith. (Bellflower Unified School District (2019) PERB Order No. Ad-475a, p. 4; City of Palo Alto (2019) PERB Decision No. 2664-M, p. 7; Lake Elsinore Unified School District (2018) PERB Order No. Ad-446a, p. 5; City of Alhambra (2009) PERB Decision No. 2036-M, p. 19; City of Alhambra (2009) PERB Decision No. 2037-M, p. 2.) A different standard applies when a party seeks to be made whole for legal expenses it reasonably incurred in a separate proceeding to remedy, lessen, or stave off the impacts of the other party’s unfair practice. The Board has not required a Rule 11-type showing in such cases and has instead treated legal expenses the same as medical expenses, lost pay, lost staff time, or any other loss. (See, e.g., Omnitrans (2009) PERB Decision No. 2030-M, p. 30; see also Palo Alto, supra, PERB Decision No. 2664-M, p. 8, fn. 6.) PERB has followed the same principles irrespective of whether the ancillary proceeding is civil or criminal. (See County of San Joaquin (Health Care Services) (2003) PERB Decision No. 1524-M, p. 3; City of San Diego (2015) PERB Decision No. 2464-M, pp. 46-47, affirmed sub nom. Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898.) more or view all topics or full text.
455811/02/20
2671E Lake Elsinore Unified School District
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
PERB will award attorneys’ fees only if the charge is without arguable merit and pursued in bad faith. Bad faith includes conduct that is dilatory, vexatious, or otherwise an abuse of process. Here, the employer requested that charging party be ordered to pay its reasonable attorneys’ fees and costs incurred in this matter because she engaged in dilatory tactics. Specifically, that her slow pace in putting on evidence extended the length of the hearing for an additional two days. While charging party’s pace was deliberate, that had more to do with her inexperience as an advocate than bad faith. Nothing suggests her conduct was intended to delay or otherwise frustrate the proceedings. To the contrary, charging party arrived at each day of hearing prepared to prosecute her case. Accordingly, the employer’s request for reasonable attorneys’ fees and costs was denied. (Adopting proposed decision at p. 27.) more or view all topics or full text.
447209/27/19
A475Ea Bellflower Unified School District
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
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.) more or view all topics or full text.
449811/12/19
2674Mb Orange County Employees Association (Hamilton)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
PERB declined to award attorney fees as damages in a breach of representation case because the employee’s civil complaint involved (1) the same discrimination claims in a grievance that her union failed to file, and (2) additional retaliation claims. (pp. 4-5.) Because both claims were based on the same core set of facts, they were inextricably intertwined and it was impractical or impossible to apportion the attorney’s time spent on each claim. Under these circumstances, the Board ruled it did not further the purposes of the MMBA to require the union to pay the employee’s attorney fees as damages for breaching its duty of fair representation. (pp. 5-6.) more or view all topics or full text.
4410805/28/20
2674Ma Orange County Employees Association (Hamilton)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
In duty of fair representation cases, employees are only entitled to an award of back pay or other damages where they can show that the union’s breach was the actual or proximate cause of their injuries. It is incumbent upon the charging party to put evidence of causation into the record during PERB’s hearing process. (p. 4.) more or view all topics or full text.
4410812/11/19
2664M City of Palo Alto
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Reimbursement of costs as make-whole remedy: PERB analyzes request for reimbursement of costs incurred as a result of a respondent’s underlying conduct under traditional make-whole principles. (See Omnitrans (2009) PERB Decision No. 2030-M, p. 30 (Omnitrans) [awarding attorney fees in ancillary case made necessary because of respondent’s violation]; Camelot Terrace, Inc. v. NLRB (D.C. Cir. 2016) 824 F.3d 1085, 1092-1093 (Camelot Terrace, Inc.) [upholding NLRB’s order that employer reimburse union for bargaining costs as a remedy for having engaged in bad faith bargaining, and reasoning that “[a]n award of bargaining expenses remedies an unfair labor practice by ensuring that, upon resolution of the [charge], the injured party can return to negotiations on the same footing it occupied before the violation.”].) While a make-whole remedial order under Omnitrans and Camelot Terrace, Inc. may include, among other items, staff costs or attorney’s fees reasonably incurred as a result of a respondent’s unlawful conduct, any attorney’s fees awarded pursuant to such make-whole principles normally may not include attorney’s fees expended simply to litigate the unfair practice charge at issue—under the American Rule, such an attorney fee award is appropriate only as a litigation sanction, if the charging party demonstrates that the claim, defense, motion, or other action or tactic was “without arguable merit” and pursued in “bad faith.” more or view all topics or full text.
445208/21/19
2664M City of Palo Alto
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Litigation sanctions: To obtain reimbursement of attorney’s fees or other litigation expenses incurred while litigating a matter in front of PERB, the moving party must demonstrate that the claim, defense, motion, or other action or tactic was “without arguable merit” and pursued in “bad faith.” To determine whether a claim, defense, motion, or other action is frivolous, the Board examines whether it is so manifestly erroneous that no prudent representative would have filed or maintained it. Even if a party requesting attorney’s fees can meet the “without arguable merit” prong, it must also show that the opposing party acted in bad faith. For the purposes of this test, the term “bad faith” includes conduct that is dilatory, vexatious, or otherwise an abuse of process. Showing that an action or tactic was undertaken in “bad faith,” does not require showing that the party and/or representative necessarily acted with an evil motive. Prosecution of a frivolous action or defense may itself be evidence supporting a finding of subjective bad faith, as might other conduct which a party or representative knows or reasonably should know will unreasonably or unnecessarily cause delay or harass or injure an opposing party or representative, or impede the tribunal’s own process. However, PERB follows California Code of Civil Procedure section 128.5 in requiring some showing of subjective bad faith, even if it must be inferred from circumstantial evidence. more or view all topics or full text.
445208/21/19
2674M Orange County Employees Association (Hamilton)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
When a union fails to fairly represent an employee in grievance processing, attorney fees may only be awarded when the employee hires private counsel to pursue the claims in the grievance that were impacted by the union’s unlawful conduct. (p. 10.) Employee not entitled to attorney fees because her lawsuit against her employer did not encompass the MOU violation alleged in her grievance. (p. 11.) more or view all topics or full text.
447610/15/19
2614Ea Los Rios Community College District and Los Rios College Federation of Teachers, Local 2279
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Employer renewed request for monetary sanctions against charging party with lengthy history of filing repetitive unfair practice charges that feature frivolous claims and/or which seek to relitigate issues that have already been resolved dismissed without prejudice. Charging party may be subject to monetary sanctions should she continue to abuse PERB processes. more or view all topics or full text.
444108/08/19
A446Ea Lake Elsinore Unified School District
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
The Board found that the District’s request for reconsideration was without even arguable merit, as it failed to comply with the basic requirements of the reconsideration regulation and recent PERB decisional law directly on point, and it included no serious argument for extending, modifying, or reversing existing law or for establishing new law to permit reconsideration of administrative determinations. However, the Board denied Charging Parties’ request for sanctions because there was no evidence the District’s reconsideration motion was brought in bad faith. PERB precedent requires that, to obtain monetary sanctions, including attorney’s 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.” (pp. 5-6.) more or view all topics or full text.
4214805/15/18
2458E Jurupa Unified School District
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
An award of attorneys’ fees is not appropriate when charging party has presented no evidence that the District’s conduct and defense of this case was without arguable merit or that it engaged in frivolous, vexatious, dilatory or bad faith conduct. more or view all topics or full text.
407510/23/15
2464M City of San Diego * * * Affirmed, 5 Cal.5th 898 (2018). Remedy modified by City of San Diego (2019) PERB Decision No. 2464a-M * * *
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Although PERB’s traditional remedy for an employer’s unlawful unilateral change includes restoration of the prior status quo and appropriate make whole relief, including back pay and benefits with interest thereon, for all employees who have suffered loss as a result of the unlawful conduct, the Board does not have jurisdiction to rescind a municipal election to overturn a ballot measure. However, the Board may award attorneys’ fees and other litigation costs to an injured party who must pursue litigation in the courts or before another tribunal to obtain complete relief for an unfair practice. In addition to cease-and-desist order, PERB ordered the City to join in litigation and/or pay attorneys’ fees and court costs to unions as remedy for City’s unilateral change to employee pension benefits enacted through a citizens’ initiative. more or view all topics or full text.
4010812/29/15
2143M Omnitrans
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
PERB will award attorney’s fees only if the charge is both without arguable merit and pursued in bad faith. Union failed to demonstrate that agency’s failure to appear in person for a settlement conference or make a timely request to reschedule was a deliberate attempt to delay the proceedings, or was otherwise indicative of bad faith by the agency. Agency’s attorney was available by telephone, and union acknowledged that it had participated in prior settlement conferences where the agency appeared by telephone. more or view all topics or full text.
3417111/18/10
2052M Nevada Irrigation District
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
PERB has the authority to order attorney fees where the moving party demonstrates that the charge was “without arguable merit” and pursued in “bad faith.” Here, the District failed to demonstrate that the Union pursued the appeal in bad faith and that the appeal was “without arguable merit.” more or view all topics or full text.
3313407/23/09
2036M City of Alhambra
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
PERB will award attorney fees only if the charge is without arguable merit and pursued in bad faith. For purposes of this test, the term “bad faith” includes conduct that is dilatory, vexatious or otherwise an abuse of process. The Board did not award attorney fees because the record lacked evidence that the Union pursued the unfair practice in bad faith. more or view all topics or full text.
3310306/09/09
2037M City of Alhambra
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
PERB will award attorney fees only if the charge is without arguable merit and pursued in bad faith. Attorney fees were awarded because the Union’s witness lied under oath regarding his knowledge of the employer’s policies in order that the charge may survive a timeliness challenge, thereby establishing bad faith in pursuing untimely unfair practice charge alleging unlawful unilateral change. more or view all topics or full text.
3310106/09/09
2030M Omnitrans
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
PERB has the authority to order payment of attorneys’ fees and costs as part of a make-whole remedy. The employer’s enforcement of its unlawful union access policy directly resulted in the arrest of a union officer for criminal trespass. To make the officer whole, the Board ordered the employer to reimburse the union for reasonable attorneys’ fees it incurred defending the officer against the trespassing allegation. more or view all topics or full text.
339105/29/09
1655Ma Marin County Law Library
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Representative for charging party sanctioned for use of derogatory references to Board members and request for reconsideration void of any grounds for filing. representative ordered to pay costs and fees incurred by respondent in preparing response to request for reconsideration and refund fees collected from requesting party. more or view all topics or full text.
2824508/30/04
1472E California School Employees Association, Chapter 258 (Gerber)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Employee's request for attorney's fees and costs denied because PERB awards such costs only after a finding of conduct that is without arguable merit, frivolous, vexatious, dilatory, pursued in bad faith or otherwise an abuse of process. (Hacienda La Puente Unified School District (1998) PERB Decision No. 1280.) Having discovered its error, the union made an attempt to correct it by issuing the employee a refund check. The fact that there was a delay in delivering the check to Gerber does not justify an award of attorney fees or costs under the standards articulated in Hacienda La Puente. more or view all topics or full text.
263302812/12/01
1453E United Teachers of Los Angeles (Valadez, et al.)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Attorneys fees not awarded merely because union illegally failed to process grievance. Attorneys fees not appropriate unless there is a showing that respondent's conduct has been repetitive and that its defenses are without arguable merit. more or view all topics or full text.
253209706/29/01
1412E Alisal Union Elementary School District * * * OVERRULED IN PART by County of Santa Clara (2017) PERB Decision No. 2539-M
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
* * * OVERRULED IN PART ON OTHER GROUNDS by County of Santa Clara (2017) PERB Decision No. 2539-M. * * *No fees where respondent's claims had merit. more or view all topics or full text.
253200710/10/00
1515E Los Rios College Federation of Teachers, Local 2279 (Deglow)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Continual filing of similar charges on the same subject matter may result in the imposition of sanctions. Under EERA §§3541.3(i) and 3541.3(n), and Government Code §11455.30, PERB has jurisdiction to order a party to pay the other party’s reasonable expenses, including attorney’s fees, for the offending party’s bad faith actions or frivolous tactics. more or view all topics or full text.
274204/03/03
1343E United Faculty Association of North Orange County (Kiszely)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
The Board denied the respondent's request for sanctions against charging party. more or view all topics or full text.
233015308/19/99
1280E Hacienda La Puente Unified School District
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Case law and EERA section 3541.3(h) permit the Board to award attorney's fees and costs where a case is without arguable merit, frivolous, vexatious, dilatory, pursued in bad faith or otherwise an abuse of process; p. 4. An absolute refusal to comply with a Board order is sufficient to justify an award of attorney's fees and costs to the charging party. more or view all topics or full text.
222914908/27/98
1274E Los Rios Community College District (Deglow)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
The charging party had not engaged in the kind of "repeated presentation of charges" which are "virtually identical in content" to issues previously raised by her before the Board. Thus, the charging party has not engaged in conduct which is "without arguable merit, frivolous, vexatious, dilatory, pursued in bad faith or otherwise an abuse of process." The request for sanctions in this case is denied. more or view all topics or full text.
222912407/20/98
1275E Los Rios College Federation of Teachers (Deglow)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
The charging party had not engaged in the kind of "repeated presentation of charges" which are "virtually identical in content" to issues previously raised by her before the Board. Thus, charging party has not engaged in conduct which is "without arguable merit, frivolous, vexatious, dilatory, pursued in bad faith or otherwise an abuse of process." The request for sanctions in this case is denied. more or view all topics or full text.
222912507/20/98
1238E Los Rios College Federation of Teachers (Deglow)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Board reverses agent's finding of litigation costs because it is inappropriate. more or view all topics or full text.
222902112/02/97
1140E Los Rios College Federation of Teachers (Deglow)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
No sanctions primarily because warnings in previous PERB decisions were recently issued, after present charges had been filed. However, frequency and number of unsuccessful charges filed by this employee indicate she is approaching standard where sanctions are appropriate. more or view all topics or full text.
202704702/27/96
1137E Los Rios College Federation of Teachers (Deglow)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
The repeated pursuit of similar charges based on essentially the same circumstances may constitute an abuse of process; p. 2. more or view all topics or full text.
202704202/01/96
1133E Los Rios College Federation of Teachers (Deglow)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
The Board will award attorneys fees and costs where a case is without arguable merit, frivolous, vexatious, dilatory, pursued in bad faith or is otherwise an abuse of process. Attorney fees will be denied if the issues are debatable and brought in good faith; p. 7. The Board is reluctant to order the payment of litigation expenses by employees who are representing themselves in PERB proceedings, because to do so might tend to discourage the legitimate pursuit of unfair practice charges; p. 7. The repeated representation of charges based on circumstances which have been considered by the Board in related cases previously suggests an abuse of process; p. 7. more or view all topics or full text.
202702901/19/96
1133Ea Los Rios College Federation of Teachers (Deglow)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
The Board only awards costs if the case is without arguable merit, frivolous, vexatious, dilatory, pursued in bad faith or otherwise an abuse of process; not where issues are debatable and the case is brought in good faith; p. 6. more or view all topics or full text.
212809705/14/97
1126S California State Employees Association (Hackett, et al.) * * * OVERRULED IN PART by California State Employees Association (Hard, et al.) (1999) PERB Decision No. 1368-S
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
* * * OVERRULED IN PART ON OTHER GROUNDS by California State Employees Association (Hard et al.) (1999) PERB Decision No. 1368-S, p. 28. * * *Posting is sufficient remedy; p. 33, proposed decision; Attorney's fees and costs of litigation, including lost time and wages, were not awarded because PERB has held that such remedies are not appropriate unless there is a showing that the respondent's unlawul conduct has been repetitive and that its defenses are without arguable merit. (Modesto City Schools and High School District (1985) PERB Decision No. 518.); pp. 34-35, proposed decision. more or view all topics or full text.
202701412/06/95
1018E United Teachers of Los Angeles (Watts)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
The Board reversed the assessment of litigation expenses and attorney fees against Watts because complaint did not meet the frivolous vexatious standard; p. 2. more or view all topics or full text.
172416910/20/93
1013E Los Angeles Unified School District (Watts)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
The Board will award attorneys' fees and costs where a case is without arguable merit, frivolous, vexatious, dilatory, pursued in bad faith, or otherwise an abuse of process; p. 2. The Board reversed the Board agent's awarding of attorney fees and other costs against charging party, finding that the issues raised have not been the subject of Board decisions in the recent past; pp. 2-3. The Board indicated that a balancing of all factors on future complaints involving the same issues already decided by this Board may result in the awarding of attorney fees and costs in the future; p. 3. more or view all topics or full text.
172415209/09/93
0967S California Union of Safety Employees (Baima)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Reinbursement of attorney fees denied as requests appear to be for the covering of costs incurred outside the present PERB hearing; p. 15, proposed dec. Where union has shown bad faith in the processing of grievances it is appropriate to require the union to hire outside counsel to do it. Reasonable attorneys fees granted; p. 3; pp. 16-17, proposed dec. more or view all topics or full text.
172402901/19/93
0896E Los Rios College Federation of Teachers, California Federation of Teachers/American Federation of Teachers, Local 2279 (Deglow)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
No attorneys fees awarded where factual allegations alleged type of conduct in prior PERB decision and, therefore, were not without arguable merit; p. 2. more or view all topics or full text.
152213308/14/91
0834E Chula Vista City School District
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Attorneys' and related cost are awarded only if party's case is without any arguable merit, frivolous, dilatory or pursued in bad faith. Mere fact that association belatedly withdrew or amended charges is insufficient to meet the standard; pp. 73-74. more or view all topics or full text.
142116208/16/90
0601S State of California (Department of Personnel Administration, Developmental Services, and Mental Health); State of California (Department of Personnel Administration) (Communications Workers of America/California Association of Psychiatric Technicians)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Incumbent union's charges are not frivolous and dilatory where some have been dismissed and some sustained; p. 111, proposed dec. more or view all topics or full text.
111802012/30/86
0566E Modesto City and High School Districts
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Attorneys fees denied because no showing that employer's conduct was repetitious or that employer's defenses were without arguable merit. more or view all topics or full text.
101708004/10/86
1208E Los Rios College Federation of Teachers (Bernath)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Board declines to award attorney's fees where pro per charging party had filed two previous unfair practice charges alleging similar, but not identical, facts to those alleged in the instant charge; p. 4, dismissal letter. more or view all topics or full text.
212812106/23/97
0495E El Dorado Union High School District
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Proper remedy for frivolous filing or abuse of process is to seek attorney's fees, not to file bad faith bargaining charge. more or view all topics or full text.
91609903/14/85
0398H United Professors of California (Watts)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Attorney's fees awarded for vexatious and frivolous complaints and appeals that the abuse the administrative processes of the PERB. more or view all topics or full text.
81514808/16/84
0331E Los Angeles Community College District (Watts) * * * OVERRULED IN PART by Santa Ana Unified School District (2017) PERB Decision No. 2514
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
* * * OVERRULED IN PART ON OTHER GROUNDS by Santa Ana Unified School District (2017) PERB Decision No. 2514. * * * Where Board ordered complainant to cease and desist in filing charges where issues earlier resolved, attorneys fees will not be provided where charge was filed before such order was issued, or where the Office of the General Counsel has determined that complainant stated a prima facie case. more or view all topics or full text.
71422308/15/83
0324E Central Union High School District
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Request for attorney fees denied where charge not without arguable merit. Charging party was aware of other actions, unaware of business justification, therefore, not unreasonable for charging party to believe respondent possessed unlawful motivation; p. 7. more or view all topics or full text.
71418906/30/83
0278E San Francisco Community College District
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
No attorney's fees awarded where argument regarding unenforceability of grievance procedure was not frivolous; p. 5. more or view all topics or full text.
71403512/31/82
0256E Chula Vista City School District
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Attorneys fees awarded only where there is a showing of frivolous or dilatory litigation; fees denied if issues are debatable and brought in good faith; p. 8. more or view all topics or full text.
61325411/08/82
0208E Fresno Unified School District
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
No costs awarded where respondent did not engage in repeated and flagrant violations of the law nor was its defense frivolous and unwarranted. more or view all topics or full text.
61311004/30/82
0920S State of California (Office of Lieutenant Governor)
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Board denies DPA's request for attorneys' fees in defending dismissal of charge because, although Board affirmed dismissal, the Board finds there is insufficient grounds to award attorneys' fees where the State failed to allege the case was frivolous, vexatious, dilatory, pursued in bad faith, or otherwise an abuse of process. more or view all topics or full text.
162302701/14/92
0912E Willits Unified School District
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
District's request for attorneys' fees denied as amended charge states same central allegations as original charge. more or view all topics or full text.
162300212/05/91