PERB Orders Reimbursement of Attorneys’ Fees as Make Whole Remedy for Unilateral Change

March 12, 2021 by Tony Rice

In an unusual case, PERB has awarded attorneys fee to a union as part of the remedy for an unlawful unilateral change. The case involved a collective bargaining agreement between the Sacramento City Teachers Association and Sacramento City Unified School District. The CBA provides that the parties’ selected arbitrator has jurisdiction to determine arbitrability disputes arising out of grievances.

When the Union sought to arbitrate a grievance alleging a violation of a sideletter to the CBA, the District refused to arbitrate, thus denying an arbitrator the opportunity to determine arbitrability. The Union filed a motion to compel arbitration in state court and was successful on the motion.

The Union also filed an unfair practice charge with PERB alleging the District’s refusal to arbitrate the grievance constituted an unlawful unilateral change to that portion of the CBA grievance procedure that authorizes an arbitrator to determine arbitrability. PERB agreed that the District’s refusal constituted an unlawful unilateral change.

An order undoing a unilateral change along with “make whole” relief is commonplace under PERB’s jurisdiction. But here, importantly, PERB included within the “make whole” order a requirement that the District reimburse the Union for the attorneys’ fees it spent litigating the motion to compel arbitration in state court.

PERB explained that the award of attorneys’ fees here did not represent a litigation sanction, and fees were not awarded for the costs of litigation before PERB (where parties still bear their own costs of litigation). Rather, the attorneys’ fees were awarded here as part of a standard make whole remedy.

The case illustrates the willingness of the current Board to fashion creative remedies in appropriate circumstances.

Here is the PERB Decision.

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