In these two decisions PERB considered when an award of attorneys’ fees may be awarded against a party in an unfair practice charge action. In City of Alhambra I, PERB clarified that in order to obtain an award of attorneys’ fees the moving party must demonstrate that the charge was ‘without arguable merit’ and pursued in ‘bad faith’. PERB expressly disavowed prior cases which suggested that the standard was a case without merit or brought in bad faith. Also, PERB clarified that there does not need to have been repetitive bad faith behavior; a single instance is sufficient.
In City of Alhambra I, PERB didn’t award attorneys’ fees because while the unfair practice charge was without merit, it wasn’t brought in bad faith. In contrast, in City of Alhambra II, PERB affirmed an award of attorneys’ fees. There, PERB found that the testimony of two of the union’s witnesses was “inherently contradictory, illogical, and unreasonable.” Basically, PERB found that they lied under oath and that lying under oath satisfies both the “without merit” and “bad faith” prongs of the test.
This is a very rare case where attorneys’ fees are awarded against a party. City of Alhambra I does a great job surveying all the PERB cases involving motions for attorneys’ fee and sanctions. Based on that list, it looks like attorneys’ fees have only been awarded one other time this decade. (See Marin County Law Library (2004) PERB Decision No. 1655-M.)
City of Alhambra I makes the point that attorneys’ fees will only be awarded where an action is without merit and brought in bad faith. When I first read that I was scratching my head trying to think of a situation where a charge could be without merit, yet not brought in bad faith. I only had to get to the end of the decision to find an example, since the Board made exactly that finding in this case. In contrast, in City of Alhambra II the Board found that the union’s witnesses lied under oath, which the Board held was sufficient to warrant the imposition of attorneys’ fees.
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