REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS – Other Affirmative Relief

Single Topic for Decision 2809E

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In a technical refusal to bargain case, even when there is no cause for litigation sanctions, if an employer pursues an unsuccessful technical refusal over a unit determination, the charging party union may be entitled to reimbursement of its increased costs outside of litigating the technical refusal charge, which may include increased costs for organizing, bargaining, lost dues, or legal costs beyond litigating the charge itself. A charging party is more likely to obtain such relief when a technical refusal to bargain is based on a unit determination issue rather than an election integrity issue. Even when the underlying issue involves a unit determination, PERB has no blanket rule requiring make whole relief in a technical-refusal-to-bargain case. Rather, we consider whether the totality of the respondent’s conduct has disadvantaged the charging party to such a degree that make-whole relief is necessary to effectuate the governing statute’s purposes, such as allowing fair representation and balanced collective bargaining. (See J.R. Norton v. Agricultural Labor Relations Bd., 26 Cal.3d at pp. 39-40 [because remedies must “effectuate the policies of the Act,” make-whole relief in a technical-refusal-to-bargain case turns, most fundamentally, on “factors peculiar to labor relations”].)