UNFAIR PRACTICE PROCEDURES; COMPLIANCE – In General

Single Topic for Decision A518E

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Faculty association sought damages for District’s unilateral change replacing the winter intersession with a second summer intersession. However, the faculty association proposed a methodology to estimate damages based on a change the complaint did not challenge: the District offering fewer total intersession work hours in the damages years than it did in the status quo year. The Board agent nonetheless adopted the faculty association’s methodology, and noted its approach sought to estimate “the amount of backpay compensation owed because of the reduction of hours.” This was an error given that the final decision did not find a duty to bargain over a reduction in intersession hours. The Board remanded to the Office of General Counsel to make reasonable efforts to more narrowly tailor its damages order to the District’s violations, excluding to the extent feasible those resulting from the lower number of intersession classes offered, while recognizing that PERB resolves uncertainties against the wrongdoer. (See City of Glendale (2020) PERB Decision No. 2694-M, pp. 74-75 [where decision to eliminate mechanic classification was based upon both a lawful decision to reduce the amount of overall construction and an unlawful decision to subcontract and transfer remaining work, Board directed compliance officer to estimate harms caused by unlawful conduct].) The Board instructed that on remand, the Board agent’s task is to arrive at a rationally supported methodology that, on average, estimates harm resulting from unlawful conduct rather than from the lower number of intersession classes in the damages years. (pp. 15-17.)