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PERB Says Prevailing Party Is Not Entitled To Attorney’s Fees Absent Special Circumstances

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room
CLIENT TYPE: Public Employers, Public Safety
DATE: Jun 05, 2024

SEIU, Local 521 and Santa Clara County were parties to a memorandum of agreement (MOA) regarding physician assistants (PAs).  PAs were required to maintain certain professional certification standards.

In 2019, the County disciplined a PA for allegedly failing to maintain the professional certification that the County bylaws required.  The PA filed a grievance and won.  The County then substantially revised the certification bylaws.

SEIU filed a PERB unfair practice charge.  SEIU claimed that the County unlawfully refused to bargain before its Board of Supervisors (BOS) approved the County’s bylaw revisions.  Those revisions included new certification standards for SEIU-represented employees.  PERB held that that the County violated its bargaining duties both with respect to the BOS’ decision and its effects, because the certification bylaws were within the scope of representation.

But PERB rejected SEIU’s request to include attorney’s fees as a standard, make-whole remedy.  PERB explained that, except in cases in which there is a statutory right to attorney’s fees, a successful party cannot require the other party to pay its fees.  A party in a PERB case seeking fees must normally show that its opponent pursued a claim, defense, or motion, or used a tactic without arguable merit and in bad faith.

PERB rejected the idea that, as a matter of course, a successful charging party should receive reimbursement of litigation expenses.  PERB rejected SEIU’s request for attorney’s fees in this case as the County did not assert a frivolous, or bad faith defense.

County of Santa Clara, PERB Dec. No. 2900-M (April 23, 2024), judicial appeal pending.

Key Takeaway:  The County vigorously argued several points of law and defenses in this case.  PERB responded to each with the result that this case is a primer on many aspects of the duty to bargain.  Note that a judicial appeal is pending.

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