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

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1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.01000 – In General

The Board orders its standard remedies to the extent needed to make whole a state employee who has proven discrimination or retaliation. In State of California (Department of Corrections) (2001) PERB Decision No. 1435-S (Department of Corrections), for instance, PERB found that the State retaliated against a union steward for engaging in protected activities when it investigated him, reprimanded him, and rescinded his promotion to chief engineer, a civil service position which he had accepted but not yet assumed. (Id., adopting proposed decision at pp. 26-48.) By the time of the Board’s decision, the State had long since filled the chief engineer position, posing a remedial challenge. The Board concluded that it would not effectuate the purpose of the Dills Act to have the discriminatee displace the ultimately successful applicant. (Id., adopting proposed decision at pp. 48-49.) To effectuate the purposes of the Dills Act and make whole the discriminatee, the Board directed the State to reimburse him for all losses until he was placed in a comparable position “acceptable to him,” which the Board found to be the next available chief engineer position. (Id., adopting proposed decision at pp. 49-50.) The Board disfavors removing an innocent incumbent chosen over a discriminatee. (Department of Corrections, supra, PERB Decision No. 1435-S, pp. 49-50; State of California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S, pp. 18-19, overruled in part on other grounds by County of Santa Clara (2017) PERB Decision No. 2539-M [where State denied promotional opportunity in park ranger training program due to union steward’s protected activities, Board declined to remove incumbent employee awarded the opportunity and instead directed State to offer steward next available comparable opportunity].)