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

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1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.01000 – In General

To serve the dual purposes of compensating for the harm a violation causes and deterring further violations, PERB must expunge the consequences of an unfair practice and restore “the economic status quo that would have obtained but for the respondent’s wrongful act.” (County of Kern & Kern County Hospital Authority (2019) PERB Decision No. 2659-M, p. 26; City of Pasadena (2014) PERB Order No. Ad-406-M, p. 13 (Pasadena). cf. Local Joint Executive Bd. of Las Vegas v. NLRB (9th Cir. 2018) 883 F.3d 1129, 1139-1140 [failure to afford full make-whole relief was abuse of discretion].) PERB therefore attempts to “recreate the conditions and relationships that would have been had there been no unfair labor practice, even when doing so necessarily entails some degree of uncertainty as to the precise relationships.” (Pasadena, supra, PERB Order No. Ad-406-M, p. 13.) While make-whole relief therefore must typically rely on estimates, such estimates are preferable to allowing uncertainty—caused by unlawful conduct—to leave an unfair practice without a fully effective remedy. (City and County of San Francisco (2023) PERB Decision No. 2858-M, pp. 14-15.) For all categories of make-whole relief, a charging party normally has the burden to establish in compliance proceedings the nature and extent of compensable harms that resulted in material part from the respondent’s violations. (Id. at p. 15; Antelope Valley Community College District (2023) PERB Decision No, 2854, p. 7; Regents of the University of California (2021) PERB Decision No. 2783-H, p. 32.) (pp. 27-28.)