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

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Uncertainty as to the appropriate remedy for an unfair practice must be resolved against the respondent whose unlawful conduct made such doubts possible. Absolute certainty is not required when calculating the back pay necessary to remedy an unfair practice. Because there is inevitable uncertainty as to what would have occurred absent unlawful conduct, make-whole relief typically relies on estimates—which are a better option than allowing unfair practices to go without a fully effective remedy. (City and County of San Francisco (2023) PERB Decision No. 2858-M, pp. 14-15.) Provided that an estimate has a rational basis and is not so excessive as to be punitive, it appropriately serves both a compensatory and deterrent function. (Pasadena Area Community College District (2024) PERB Order No. Ad-518, p. 14.)