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

Single Topic for Decision 2879E

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Different considerations apply when an employer’s technical refusal is based on good faith allegations of conduct that prevented a fair election and was sufficiently serious to “have affected the outcome of the election.” (J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 40.) Because we encourage judicial review of allegations concerning an election’s fairness, make-whole relief for a technical refusal to bargain raising such issues is appropriate only in the absence of any good faith allegation of conduct or circumstances impacting election integrity to a degree that could have been dispositive in the outcome. (Ibid.) These considerations do not apply where, as here, a respondent merely disputes PERB’s exercise of discretion in determining whether a union has petitioned for an allowable unit structure. (p. 18, fn. 12.)