All notes for Subtopic 1202.01000 – In General
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2855E | The Accelerated Schools 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General It is proper to have a different rule for effects bargaining violations involving a facility closure or decision to cease offering a public service, since contemporaneous negotiations in those instances have the least likelihood of altering a planned layoff. In contrast, when an employer’s effects bargaining obligation does not arise from a decision to close a facility or cease offering a service, contemporaneous good faith negotiations have a higher likelihood of effecting change in the employer’s plan, particularly because a union can offer meaningful concessions and compromises that it cannot offer years after the fact in the wake of a PERB remedial order. When an employer has neither closed a facility nor ceased offering a service, a Transmarine-type remedy does not adequately deter violations, improperly saddles innocent employees with the downside risk of uncertainty, and insufficiently compensates them for having lost the opportunity to bargain at a meaningful time. (pp. 25-31.) more or view all topics or full text. | 47 | 139 | 03/17/23 |
| 2855E | The Accelerated Schools 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General PERB need not remedy all effects bargaining violations in the same manner. Reinstatement and retroactive back pay need not go hand in hand. (Bellflower Unified School District (2022) PERB Decision No. 2544a, p. 33, fn. 16 [reinstatement and back pay are separate remedies]; County of Riverside (2013) PERB Decision No. 2336-M, p. 16 [same].) While an effects remedy need not include reinstatement, it should at least include retroactive back pay in those circumstances where the employer has violated its bargaining duty but has neither closed a facility nor ceased offering a service. Thus, PERB endorses Transmarine-type remedies (no reinstatement and back pay begins when the parties start effects negotiations and continues for the length of those negotiations or for two weeks, whichever is greater) when the employer’s violation arose from closing a facility or ceasing a service, but not otherwise. (Transmarine Navigation Corp. (1968) 170 NLRB 389 (Transmarine). PERB orders full back pay, typically without reinstatement in those instances where Transmarine does not effectuate the law’s purposes, i.e., in instances other than closing a facility or ceasing a service. Full back pay is the minimum necessary to deter effects bargaining violations and compensate for the loss of a chance to bargain at a meaningful time, which is exceedingly difficult to restore later. Withholding reinstatement, however, eases the employer’s ability to promptly rectify its failure to bargain effects without having to fully restore the status quo. (pp. 28-30.) more or view all topics or full text. | 47 | 139 | 03/17/23 |
| 2855E | The Accelerated Schools 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General To remedy an effects bargaining obligation, PERB generally directs the offending employer to provide back pay from the first date that employees began to experience harm until the earliest of: (1) the date the parties reach an agreement, typically as part of complying with PERB’s effects bargaining order; (2) the date the parties reach a good faith final impasse, including exhaustion of any required or agreed upon post-impasse procedures; or (3) the date the union fails to pursue effects negotiations in good faith. (County of Santa Clara (2021) PERB Decision No. 2799-M, p. 28; County of Ventura (2021) PERB Decision No. 2758-M, pp. 53 & 56; Region 2 Court Interpreter Employment Relations Committee & California Superior Courts of Region 2 (2020) PERB Decision No. 2701-I, p. 58; County of Santa Clara (2019) PERB Decision No. 2680-M, p. 14.) The shorter back pay remedy originating in Transmarine Navigation Corp. (1968) 170 NLRB 389 (where back pay begins when the parties start effects negotiations and continues for the length of those negotiations or for two weeks, whichever is greater) effectuates the purposes of California public sector labor law only if the effects negotiations arose because of a decision to close a facility or cease offering a service. PERB overruled, in part, eight older PERB decisions in which the Board extended Transmarine beyond its proper scope. The eight overruled decisions are: South Bay Union School District Board of Trustees (1982) PERB Decision No. 207a, pp. 3-4; Solano County Community College District (1982) PERB Decision No. 219, pp. 17-18; Oakland Unified School District (1983) PERB Decision No. 326, pp. 46-47; County of Kern (1983) PERB Decision No. 337, p. 14; Mt. Diablo Unified School District (1983) PERB Decision No. 373, pp. 67-71; Mt. Diablo Unified School District (1984) PERB Decision No. 373b, pp. 25-26; Placentia Unified School District (1986) PERB Decision No. 595, p. 11 & adopting proposed decision at pp. 26- 28; and Regents of the University of California (Lawrence Livermore National Laboratory) (1997) PERB Decision No. 1221-H, p. 4 & adopting proposed decision at pp. 32-33. (pp. 19, 20, 24, 30, 31 & fn. 14.) more or view all topics or full text. | 47 | 139 | 03/17/23 |
| 2855E | The Accelerated Schools 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General If an employer has no decision bargaining obligation but violates its duty to bargain effects, PERB does not necessarily direct the employer to rescind its underlying decision. (County of Santa Clara (2021) PERB Decision No. 2799-M, pp. 28-29.) If PERB does not order reinstatement or other forms of rescission for an effects bargaining violation, full retroactive back pay may be necessary to provide adequate compensation, deterrence, and a level field for fair effects negotiations. (p. 19.) Thus, PERB adopted a middle-ground rule: while an effects remedy need not include reinstatement, it should at least include retroactive back pay in those circumstances where the employer has violated its bargaining duty but has neither closed a facility nor ceased offering a service. (p. 28.) more or view all topics or full text. | 47 | 139 | 03/17/23 |
| 2799M | County of Santa Clara 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General When an employer’s violation involves a failure to bargain effects, make whole relief runs from the date any impacted employee began to experience harm until the earliest of: (1) the date the parties reach an agreement as part of complying with our effects bargaining order; (2) the date the parties have reached impasse and exhausted any post-impasse procedures that may be required or agreed upon; or (3) failure by the union to bargain in good faith. (County of Ventura (2021) PERB Decision No. 2758-M, p. 53; County of Santa Clara (2019) PERB Decision No. 2680- M, p. 14; Bellflower Unified School District (2014) PERB Decision No. 2385, pp. 13-14.) more or view all topics or full text. | 46 | 94 | 12/20/21 |
| 2745M | County of Sacramento 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General When an employer has implemented terms and conditions of employment without reaching a bond fide impasse, PERB typically orders an employer to restore the status quo and rescind the implemented changes. However, where rescission may be contrary to the bargaining unit’s best interest or may disrupt the employer’s operations, it has allowed the charging party an opportunity to decline all or part of that relief and stayed rescission orders for a period of time to allow the parties an opportunity to bargain over alternative remedies. (pp. 27-28.) more or view all topics or full text. | 45 | 39 | 09/18/20 |
| 2694M | City of Glendale 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General A City’s decision to eliminate all positions in a classification was based upon both a non-bargainable decision to reduce the amount of that classification’s work being performed on behalf of the City, at least temporarily, and a bargainable decision to subcontract and to use non-bargaining unit City employees to perform the classification’s remaining and future work. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 621.) The Board was careful to remedy only those layoffs and involuntary demotions resulting from bargainable decisions. The Board adjusted the proposed remedial order to ensure it did not provide a remedy for any layoffs or demotions that would have occurred solely based on the non-bargainable decision to reduce (at least temporarily) the amount of work performed by the classification. more or view all topics or full text. | 44 | 135 | 02/03/20 |
| 2674M | Orange County Employees Association (Hamilton) 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General When a union fails to fairly represent an employee in grievance processing, attorney fees may only be awarded when the employee hires private counsel to pursue the claims in the grievance that were impacted by the union’s unlawful conduct. (p. 10.) Employee not entitled to attorney fees because her lawsuit against her employer did not encompass the MOU violation alleged in her grievance. (p. 11.) more or view all topics or full text. | 44 | 76 | 10/15/19 |
| 2643E | California School Employees Association (Williams) 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; 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. | 43 | 185 | 05/17/19 |
| A406M | City of Pasadena 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General 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. more or view all topics or full text. | 38 | 122 | 01/28/14 |
| 2094H | Regents of the University of California * * * OVERRULED IN PART by amendment to HEERA section 3563.3, Stats. 2011, Ch. 539 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General * * * OVERRULED IN PART by Stats. 2011, ch. 539 (S.B. 857), § 4, which provides that PERB may not award damages for an unlawful strike. * * *Damages for unlawful strike activity will not be awarded unless the employer first seeks to stop the strike or mitigate its losses by seeking injunctive relief through PERB. more or view all topics or full text. | 34 | 41 | 02/02/10 |
| 1547E | Ventura County Community College District 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General To avoid disruption of the operation of the academy and education of its students, the Board does not order an immediate return to the status quo ante in a transfer of work case. The parties have 120 days to negotiate a resolution. more or view all topics or full text. | 27 | 133 | 09/24/03 |
| A162E | Los Angeles Unified School District (Watts) 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General Board dismissed public notice complaint based on District's willingness to voluntarily comply. Such compliance eliminated delay and minimized any consequence of the District's earlier failure to comply with EERA section 3547; p. 6. Pursuant to Regulation 32920(b)(5) and (b)(7), District's voluntary compliance with a cease and desist order and an order to post is a sufficient remedy; p. 4. more or view all topics or full text. | 11 | 18047 | 02/05/87 |
| 1259E | Fall River Joint Unified School District 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General To avoid disruption, the status quo is not restored (teachers transferred back to old spots) until beginning of new school year. more or view all topics or full text. | 22 | 29082 | 04/08/98 |
| 1078E | San Jacinto Unified School District 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General No back pay for employees who accepted jobs in positions which had previously had hours reduced because individual had no vested interest in previous staffing levels; pp. 37-38, proposed dec. more or view all topics or full text. | 19 | 26036 | 12/22/94 |
| 0842H | Regents of the University of California (Davis, Los Angeles, Santa Barbara and San Diego) 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General Where University breached its obligation to give notice of proposed split payment to nonexclusive represented employees, no backpay award was appropriate since the meet and discuss obligation requires neither agreement or impasse, the outcome of any meetings and the University's ability to fund the entire increase at one time is speculative. While ordinary remedy and unilateral change case is restoration of status quo ante, including backpay and interest, the Board has denied backpay where entitlement thereto is speculative; p. 17. more or view all topics or full text. | 14 | 21189 | 09/27/90 |
| 0840S | State of California (Department of Mental Health) 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General Although a cease and desist order was held not to apply on a systemwide basis, the notice was required to be posted statewide because the unilateral change concerned contract language applicable to a statewide unit. more or view all topics or full text. | 14 | 21183 | 09/18/90 |
| 0375Ea | San Mateo City School District 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General If subsequent to employer's unlawful unilateral change, parties reach agreement or negotiate through completion of the statutory impasse procedure concerning the subject matter of the unilateral change, it would not effectuate purposes of Act to restore status quo ante or to continue liability for back-pay beyond that point. more or view all topics or full text. | 8 | 15114 | 06/20/84 |
| 0343E | South San Francisco Unified School District 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General Limitations on backpay ordered. Backpay remedy modified where employer free to change hours at beginning of school year. more or view all topics or full text. | 7 | 14243 | 09/02/83 |
| 0337E | Kern Community College District * * * OVERRULED IN PART by The Accelerated Schools (2023) PERB Decision No. 2855 * * * 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General * * * OVERRULED IN PART by The Accelerated Schools (2023) PERB Decision No. 2855, where the Board clarified the shorter back pay remedy originating in Transmarine Navigation Corp. (1968) 170 NLRB 389 (where back pay begins when the parties start effects negotiations and continues for the length of those negotiations or for two weeks, whichever is greater) effectuates the purposes of California public sector labor law only if the effects negotiations arose because of a decision to close a facility or cease offering a service. * * *Full restoration of the status quo inappropriate where unilateral act was lay off and employer has right to make decision to lay off but failed to negotiate effects of such decision. more or view all topics or full text. | 7 | 14229 | 08/19/83 |
| 0322E | Alum Rock Union Elementary School District 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General Remedy limited because exclusive representatives of the unit has changed since the charge was filed. more or view all topics or full text. | 7 | 14184 | 06/27/83 |
| 0318Ea | Pittsburg Unified School District 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General Delay in PERB procedures does not justify denying employees a remedy. more or view all topics or full text. | 8 | 15067 | 04/02/84 |
| 0231H | California State University, Hayward 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General Selection of exclusive representative other than Charging Party may constitute changed circumstances which can affect the remedy. more or view all topics or full text. | 6 | 13185 | 08/10/82 |
| 0208E | Fresno Unified School District 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General Failure to request that PERB seek an injunction against a strike in order to terminate the strike or otherwise reduce the expense of the strike requires that no make-whole remedy be awarded to the district; pp. 24-25. Affiliate of exclusive rep. had no obligation to negotiate with the District, nor could it request or participate in the statutory impasse procedures. Therefore, it cannot be held liable for violation of subsections 3543.5(c) or (d); pp. 23-24. more or view all topics or full text. | 6 | 13110 | 04/30/82 |
| 1006E | Gonzales Union High School District 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General No reinbursement 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. | 17 | 24119 | 06/25/93 |
| 0038E | Azusa Unified School District 1202.01000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; In General Election of assisted union as exclusive representative does not moot out need for remedy. Remedy is proper to prevent repetition of unlawful conduct in future. more or view all topics or full text. | 1 | 587 | 11/23/77 |