REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS – Back Pay; Interest

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As part of a standard unilateral change remedy, make whole relief is warranted if it is more likely than not that employees suffered a harm. Make whole relief compensates employees for the difference between what they actually earned and what they would have earned, but for the employer’s unlawful conduct. [Citation.] Beyond the practical value of such monetary relief, make whole relief also serves an important policy purpose in ensuring that employees are not punished for vindicating their rights, while also acting as a deterrent against future unlawful conduct. [Citation.] As the ALJ observed, PERB may order backpay even though its measure is imprecise. [Citations.] That was arguably the case here. The employer paid employees for all hours worked at appropriate rates. Nevertheless, harm may be quantified in a number of ways, not only increased workload or reduced pay. Here, the schedule changes resulted in employees’ workdays being extended by one hour. While the employer was authorized to implement the schedule changes during the life of the prior memorandum of understanding (MOU) and after the successor MOU took effect, for the period from November 13, 2017, when the employer implemented the schedule change, to November 27, 2017, when the City Council adopted the successor MOU, the changes were unlawful. The best measure of the value of this time would be an hour’s pay per day. However, the Board did not order such a make whole remedy as the ALJ declined to order back pay and the union did not except to the ALJ’s remedial order. (pp. 26-27.)