REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS – In General

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Observing the fact of Alliance’s unlawful technical refusals to bargain in prior cases, the Board found Alliance’s conduct in this case particularly egregious because its statutory obligation to recognize and bargain with UTLA as the exclusive representative of bargaining units at Burton Tech and Gertz/Merkin had been long settled. Yet, as the tail end of the first round of bargaining ultimately revealed, after the parties painstakingly negotiated terms and settled on TAs, Alliance continued to delay, obfuscate, and engage in gamesmanship. For these reasons, the Board exercised its discretion to craft a remedy appropriate to the harms in this case. Those included customary remedies for bad faith bargaining, namely, an order to: cease and desist the unlawful conduct, post a notice of the violation, bargain with UTLA in accordance with a prescribed schedule, and make employees whole for any losses suffered as a result of the violation. (Imperial Irrigation District (2023) PERB Decision No. 2861-M, pp. 64-68; City of Montebello (2016) PERB Decision No. 2491-M, pp. 8-10; see also Tri-Fanucchi Farms v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1161, 1168 & 1171 [Board’s remedial powers are “necessarily broad” and it holds discretion to impose make-whole relief on a case-by-case basis].)

Make-whole relief included the monetary difference for any harms resulting from amounts bargaining unit employees would have earned or received under the TAs less amounts they earn under the current status quo, in addition to reimbursement for UTLA’s bargaining costs, resource diversion, or waste of resources resulting in material part from Alliance’s violations. (Tri-Fanucchi Farms v. Agricultural Labor Relations Bd., supra, 3 Cal.5th 1161, 1171 [make-whole relief appropriate for employees impacted by bad faith bargaining, based on consideration of “previous interactions between the employer and the union” and harm done to employees].) Backpay (if any) would commence from the date the tentative agreements would have taken effect, January 1, 2025. Appropriate make-whole relief here also included ordering Alliance to restore the status quo by placing Articles 1 through 24 of the Burton Tech TA and Gertz/Merkin TAs back on the table, at UTLA’s request. (City of San Gabriel (2020) PERB Decision No. 2751-M, p. 32; City of Palo Alto (2018) PERB Decision No. 2664-M, p. 5.) These remedies were distinct from imposing contractual terms on parties, or from ordering a bargaining party to make a proposal that it never previously offered. (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1286, fn. 3; City of San Gabriel, supra, pp. 32-33; City of Palo Alto, supra, p. 3.) And these remedies were needed, in combination, to restore UTLA’s bargaining position to where it would have been absent Alliance’s bad faith bargaining violations, return the parties to bargaining from the parity model that was the defining feature of the TAs, and create a level playing field for future bargaining. (pp. 45-48)