REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY – In General

Single Topic for Decision 2855E

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It is proper to have a different rule for effects bargaining violations involving a facility closure or decision to cease offering a public service, since contemporaneous negotiations in those instances have the least likelihood of altering a planned layoff. In contrast, when an employer’s effects bargaining obligation does not arise from a decision to close a facility or cease offering a service, contemporaneous good faith negotiations have a higher likelihood of effecting change in the employer’s plan, particularly because a union can offer meaningful concessions and compromises that it cannot offer years after the fact in the wake of a PERB remedial order. When an employer has neither closed a facility nor ceased offering a service, a Transmarine-type remedy does not adequately deter violations, improperly saddles innocent employees with the downside risk of uncertainty, and insufficiently compensates them for having lost the opportunity to bargain at a meaningful time. (pp. 25-31.)