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

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If an employer has no decision bargaining obligation but violates its duty to bargain effects, PERB does not necessarily direct the employer to rescind its underlying decision. (County of Santa Clara (2021) PERB Decision No. 2799-M, pp. 28-29.) If PERB does not order reinstatement or other forms of rescission for an effects bargaining violation, full retroactive back pay may be necessary to provide adequate compensation, deterrence, and a level field for fair effects negotiations. (p. 19.) Thus, PERB adopted a middle-ground rule: while an effects remedy need not include reinstatement, it should at least include retroactive back pay in those circumstances where the employer has violated its bargaining duty but has neither closed a facility nor ceased offering a service. (p. 28.)