All notes for Subtopic 1201.01000 – In General

DecisionDescriptionPERC Vol.PERC IndexDate
2674Mb Orange County Employees Association (Hamilton)
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
PERB declined to award attorney fees as damages in a breach of representation case because the employee’s civil complaint involved (1) the same discrimination claims in a grievance that her union failed to file, and (2) additional retaliation claims. (pp. 4-5.) Because both claims were based on the same core set of facts, they were inextricably intertwined and it was impractical or impossible to apportion the attorney’s time spent on each claim. Under these circumstances, the Board ruled it did not further the purposes of the MMBA to require the union to pay the employee’s attorney fees as damages for breaching its duty of fair representation. (pp. 5-6.) more or view all topics or full text.
05/28/20
2674Ma Orange County Employees Association (Hamilton)
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
In duty of fair representation cases, employees are only entitled to an award of back pay or other damages where they can show that the union’s breach was the actual or proximate cause of their injuries. It is incumbent upon the charging party to put evidence of causation into the record during PERB’s hearing process. (p. 4.) more or view all topics or full text.
12/11/19
2659M * * * JUDICIAL APPEAL PENDING * * * County of Kern and Kern County Hospital Authority
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
A properly designed remedial order seeks a restoration of the situation as nearly as possible to that which would have obtained but for the unfair labor practice. PERB’s standard remedy for an employer’s unlawful unilateral change therefore restores the prior status quo and provides make-whole relief—including back pay, lost benefits, and interest—to the extent necessary to remedy the respondent’s unlawful conduct. Restoring the parties and affected employees to their respective positions before the unlawful conduct occurred is critical to remedying unilateral change violations, because it prevents the employer from gaining a one-sided and unfair advantage in negotiations. The Board crafts make-whole remedies, including “back pay, front pay or other forms of compensation,” as necessary “to make injured parties and/or affected employees whole.” (Sonoma County Superior Court (2017) PERB Decision No. 2532-C, p. 40; see, e.g., Mt. San Antonio Community College Dist. v. PERB (1989) 210 Cal.App.3d 178, 184, fn. 3 [where respondent unilaterally changed employment terms, respondent ordered to pay “to the affected employees the difference in wages between that which they earned and that which they should have earned in the absence of the employer’s unilateral action, minus any mitigation”].)To remedy a unilateral subcontracting violation, the Board ordered employer to cease and desist from unilaterally subcontracting bargaining unit work at newly-opened medical clinics and to rescind the unilaterally adopted subcontract for medical assistant services at those clinics. Because it can take time to rescind a contract, the Board looks for a reasonable deadline, and in the interim, extends make-whole relief, with interest, until employees cease accruing harm. Taking the contract’s provisions into account, the Board required termination of the contract within 30 days after Board’s decision no longer subject to appeal. more or view all topics or full text.
08/06/19
2643E California School Employees Association (Williams)
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
When a union fails to fairly represent an employee in grievance processing, the employee is not entitled to make whole relief unless he or she would have prevailed had the union properly processed the grievance. (p. 8.) In such case, the typical remedy is an order that the union process the grievance or make the employee whole if that process is not available or would be ineffectual. The latter remedy requires the employee prove in compliance proceedings that he or she would have prevailed on a properly process grievance. (p. 8, fn. 5.) Charging Party was bound by the ALJ’s conclusion that her requested grievance lacked merit because she did not except to it. With no basis for the Board to conclude that she would have prevailed on her requested grievance, she was not allowed monetary relief. (p. 8) more or view all topics or full text.
4318505/17/19
2643E California School Employees Association (Williams)
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
When a union fails to fairly represent an employee in grievance processing, the employee is not entitled to make whole relief unless he or she would have prevailed had the union properly processed the grievance. (p. 8.) In such case, the typical remedy is an order that the union process the grievance or make whole relief if that process is not available or would be ineffectual. The latter remedy requires the employee prove in compliance proceedings that he or she would have prevailed on a properly process grievance. (p. 8, fn. 5.) Charging Party is bound by the ALJ’s conclusion that her requested grievance lacked merit because she did not except to it. With no basis for the Board to conclude that she would have prevailed on her requested grievance, she is not allowed monetary relief. (p. 8) more or view all topics or full text.
4318505/17/19
2643E California School Employees Association (Williams)
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
EERA section 3541.5(c) grants PERB “broad remedial powers to effectuate the purposes of the EERA,” including an award of monetary damages when such relief is necessary to place the injured party in the position it would have been in had the wrongful conduct not occurred, i.e., to make the injured party “whole.” But PERB does not presume damages on the part of employees, even where the representative has failed to adequately represent them. (p. 7.) more or view all topics or full text.
4318505/17/19
2615M County of Kern
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
Charging party union may elect to decline restoration of the status quo in any division of employer, particularly where employees in certain divisions may be harmed by rescission of changes. (Denver Post Corp. (1999) 328 NLRB 118, 126, cited with approval in City of Riverside (2009) PERB Decision No. 2027-M, p. 15.) PERB leaves it to charging party union to make this decision because “[w]hether a change is beneficial or detrimental to the employees is a decision reserved to the employees as represented by their union.” (Solano County Employees’ Assn. v. County of Solano (1982) 136 Cal.App.3d 256, 262.) more or view all topics or full text.
4310912/21/18
2629M County of Santa Clara (Reese)
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
Board ordered reinstatement of all duties and responsibilities transferred from medical division chief because of his protected activities. (p. 13) more or view all topics or full text.
4314502/27/19
2612M County of Lassen
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
MMBA section 3509, subdivision (b), grants PERB wide discretion to determine the appropriate remedy necessary to effectuate the purposes of the Act. The ordinary remedy in a discharge case includes both reinstatement and back pay. Employee should be offered reinstatement to position from which she was terminated; although position required a bachelor’s degree, which employee did not have at time of hire, employee subsequently received her degree prior to reinstatement order. more or view all topics or full text.
4310212/19/18
2619M County of San Joaquin (Sheriff's Department)
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
A purge order with make whole relief was the appropriate remedy for a violation of an employee’s right to representation where employee’s request for a representative triggered the disciplinary process even though employee was disciplined in part for other conduct. more or view all topics or full text.
4311412/28/18
2544E Bellflower Unified School District
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
The Board rejected a school district’s exception that a Board-ordered remedy including restoration of the status quo and make-whole relief conflicted with federal law governing special education. The district’s statement of exceptions and supporting brief included no citation to any provision of the federal statute or decisional law interpreting it, and the district failed to explain how PERB’s customary remedy for a unilateral change would conflict with federal law. The district’s filing both failed to comply with the requirements of PERB Regulation 32300 governing exceptions, and, even if considered, had no merit. Unless a remedial measure positively conflicts with “inflexible standard[s]” or “immutable provisions” set by external law, the fact that it affects matters normally within the jurisdiction of another tribunal does not, by itself, make PERB’s remedy improper. (pp. 10-11.) more or view all topics or full text.
427012/15/17
2518E Los Angeles Unified School District
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
A request for a monetary remedy need not be pleaded in the complaint. more or view all topics or full text.
4114603/06/17
2518E Los Angeles Unified School District
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
Evidence of financial losses need not be introduced at hearing. Issues of financial harm may be raised in compliance proceedings before the Office of the General Counsel. more or view all topics or full text.
4114603/06/17
2536M City and County of San Francisco
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
The appropriate remedy for conduct that interferes with protected rights is to order the employer to cease and desist from such conduct and to make whole any employees adversely affected by the action. more or view all topics or full text.
421406/30/17
2464M City of San Diego * * * Decision upheld on appeal to the California Supreme Court (8/2/2018); limited review of remedial order on remand. * * *
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
Although PERB’s traditional remedy for an employer's unlawful unilateral change includes restoration of the prior status quo and appropriate make whole relief, including back pay and benefits with interest thereon, for all employees who have suffered loss as a result of the unlawful conduct, the Board does not have jurisdiction to rescind a municipal election to overturn a ballot measure. Where City’s unilateral change to employee pension benefits was enacted through citizen’s initiative, PERB lacked jurisdiction to order the election results rescinded but ordered the City to pay affected employees the difference for the resulting change in pension benefits, plus interest at seven percent per annum. Restoring injured parties and affected employees to their respective positions before an unfair practice occurred is critical to an effective Board-ordered remedy because it prevents the employer from gaining a one-sided and unfair advantage in negotiations and thereby forcing the employees’ representative to talk the employer back to terms previously agreed to. Where the Board lacks jurisdiction to order an unfair practice reversed, it may award compensatory damages, including attorneys’ fees and costs for separate litigation that is necessary to obtain complete relief from the unfair practice. more or view all topics or full text.
4010812/29/15
2440E Capistrano Unified School District
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
Make-whole relief, including expungement of discipline, may be appropriate for an employee who has been disciplined for misconduct occurring as a result of an unlawful investigatory interview, where a representative may have prevented or at least mitigated the employee’s misconduct. more or view all topics or full text.
402406/30/15
2385E Bellflower Unified School District
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
The union failed to establish a unilateral reduction of work hours and therefore a traditional make-whole remedy—including reinstatement and back-pay for the classified employees who suffered loss of work—is inappropriate in this matter. more or view all topics or full text.
391706/30/14
A406M City of Pasadena
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
Board-ordered remedies for unfair practices, including back pay awards, may appropriately serve both compensatory and deterrent functions, so long as they are not punitive. more or view all topics or full text.
3812201/28/14
A379E Long Beach Community College District
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
The Board upheld the administrative law judge’s finding that the Long Beach Community College District complied with the Board’s Order in Long Beach Community College District (2008) PERB Decision No. 1941. Specifically, that the Board did not order a traditional back pay remedy, but rather order a limited Transmarine Navigation Corporation (1968) 170 NLRB 389, enf’d NLRB v. Transmarine Navigation Corporation (9th Cir. 1967) 380 F.2d 933 style remedy, requiring the payment of wages and benefits, at pre-layoff rates, starting on March 10, 2008 and continuing until one of its stated conditions was met. more or view all topics or full text.
3311206/22/09
1577Ma County of Riverside
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
Board finds that employees retirement does not so impact the decision and order that the case is rendered moot because the central issue was the charging party’s right to grieve over promotions, not whether the individual employee could currently pursue her own grievance. more or view all topics or full text.
2811803/18/04
1548E Mark Twain Union Elementary School District
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
Board found that District violated EERA by unilaterally increasing the hours of work. As a remedy, the Board ordered the District to make the teachers whole by providing compensatory time off. The Board further ordered the parties to negotiate over the manner in which the compensatory time off would be granted. In the absence of agreement between the parties, the Board authorized the award of backpay with interest. more or view all topics or full text.
2713409/26/03
1469E Los Angeles Unified School District
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
Board's statutory authority includes the authority to award front pay - a monetary award for loss of anticipated future earnings had the employee not been subject to unlawful discrimination - when an order of reinstatement is not appropriate. Award of front pay includes a duty to mitigate damages. more or view all topics or full text.
263302311/29/01
1171E Fresno County Office of Education
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
In a compliance case the burden of proof is on the respondent. Under NLRB precedent, in order to receive any offset against the amount of back pay due, the employer has the burden of establishing that employees failed to mitigate their damages; pp. 3 et seq., proposed dec.; any uncertainty is resolved against the employer. In establishing a failure to mitigate, the employer must demonstrate that the claimant failed to make efforts consistent with the inclination to work and to be self-supporting; Claimants are not expected to seek a job more onerous than the one from which they were removed, but rather are expected to seek a substantially equivalent job. The claimant can still prevail if the record shows reasonable efforts to obtain interim employment; pp. 3-5. proposed dec. more or view all topics or full text.
212800109/30/96
1121E California School Employees Association (Rodriquez)
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
Because University had managerial prerogative to change staffing levels, full backpay award to affected employees is inappropriate; special backpay award for those employees whose hours changed as an effect of the University's decision to transfer; pp. 32-33, proposed dec. more or view all topics or full text.
202700411/07/95
1092E Marin Community College District
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
The Board affirmed ALJ's conclusion that repayment of salaries earned by managers or reduction in salaries would not effectuate the purposes of EERA; p. 10. more or view all topics or full text.
192607003/21/95
1033E Healdsburg Union Elementary School District
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
To remedy unilateral lengthening of workday, employer must provide affected employees with a corresponding amount of time off or pay them for the extra time plus 7 percent interest. more or view all topics or full text.
182503001/06/94
0973E West Covina Unified School District
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
Make whole obligation where employer discontinued employee use of employer's vehicles does not include compensation for purchase of new car used in his commute to work. more or view all topics or full text.
172404202/09/93
1006E Gonzales Union High School District
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
No reimbursement to employees or cease and desist order where employer was not obligated to pay premium increase but unilaterally implemented new policy of payroll deduction. more or view all topics or full text.
172411906/25/93
0907H Regents of the University of California (University of California-American Federation of Teachers)
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
Absent exigent circumstances, a remedy should not order something that is in contravention of the contract in a unilateral change case. more or view all topics or full text.
152216610/01/91
0864E Newark Unified School District
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
Under section 3541.5(c) PERB is given power to issue decision and order directing offending party to take such action as will effectuate the policies of EERA; p. 20. more or view all topics or full text.
152202301/14/91
0826H Regents of the University of California (University of California-American Federation of Teachers) * * * OVERRULED by Long Beach Community College District (2003) PERB Decision No. 1564 and Los Angeles Unified School District (2014) PERB Decision No. 2359
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
Absent exigent circumstances, a remedy should not order something that is in contravention of the contract in a unilateral change case. more or view all topics or full text.
142114207/03/90
0691E Mt. San Antonio Community College District
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
Back Pay Liability for an unfair practice may be cut off by a collective bargaining agreement if the subject matter is raised in the CBA. Interest tolled where Association failed to exercise due diligence. Board does not adopt equitable statute of limitations to preclude enforcement because only showing of prejudice is the running of interest. more or view all topics or full text.
121912306/30/88
0360E Arcohe Union School District
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
Where board orders recision of subcontract, it does not order reinstatement of terminated employees. more or view all topics or full text.
71429411/23/83
0337E Kern Community College District
1201.1000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
Full restoration of the status quo inappropriate where unilateral act was layoff and employer has right to make decision to layoff but failed to negotiate effects of such decision. more or view all topics or full text.
71422908/19/83