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

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Where an employer does not fulfill its decision bargaining obligation, PERB’s standard remedy includes rescission and make whole relief. (Lodi Unified School District (2020) PERB Decision No. 2723, p. 20; see also County of Kern & Kern County Hospital Authority (2019) PERB Decision No. 2659-M, pp. 16-19 & 26-27.) For instance, where the employer has a decision bargaining obligation because layoffs were inextricably intertwined with a decision to assign non-unit employees or subcontractors work that was substantially similar to work that bargaining unit employees traditionally performed, the standard remedy includes recission and make whole relief. (See, e.g., Regents of the University of California (Berkeley) (2018) PERB Decision No. 2610-H, pp. 35 & 94-96 [reinstating laid off youth music instructors where program continued via grant to a non-University entity that amounted to subcontracting, and holding that even a decision affecting “the merits, necessity or organization” of a service is subject to decision bargaining if it is “intertwined with a negotiable decision”]; City of Sacramento (2013) PERB Decision No. 2351-M, pp. 19-20 & 49 [ordering reinstatement where all that changed as a result of city’s decision to transfer work was the identity of the employees assigned to perform the duties, in contrast to cases in which an employer lays off employees because it is changing its level of services].) (p. 18.)