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

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A properly designed remedial order seeks a restoration of the situation as nearly as possible to that which would have obtained but for the unfair labor practice. PERB’s standard remedy for an employer’s unlawful unilateral change therefore restores the prior status quo and provides make-whole relief—including back pay, lost benefits, and interest—to the extent necessary to remedy the respondent’s unlawful conduct. Restoring the parties and affected employees to their respective positions before the unlawful conduct occurred is critical to remedying unilateral change violations, because it prevents the employer from gaining a one-sided and unfair advantage in negotiations. The Board crafts make-whole remedies, including “back pay, front pay or other forms of compensation,” as necessary “to make injured parties and/or affected employees whole.” (Sonoma County Superior Court (2017) PERB Decision No. 2532-C, p. 40; see, e.g., Mt. San Antonio Community College Dist. v. PERB (1989) 210 Cal.App.3d 178, 184, fn. 3 [where respondent unilaterally changed employment terms, respondent ordered to pay “to the affected employees the difference in wages between that which they earned and that which they should have earned in the absence of the employer’s unilateral action, minus any mitigation”].)

To remedy a unilateral subcontracting violation, the Board ordered employer to cease and desist from unilaterally subcontracting bargaining unit work at newly-opened medical clinics and to rescind the unilaterally adopted subcontract for medical assistant services at those clinics. Because it can take time to rescind a contract, the Board looks for a reasonable deadline, and in the interim, extends make-whole relief, with interest, until employees cease accruing harm. Taking the contract’s provisions into account, the Board required termination of the contract within 30 days after Board’s decision no longer subject to appeal.