Decision 2855E – The Accelerated Schools
LA-CE-6431-E, LA-CE-6473-E, LA-CE-6505-E and LA-CE-6515-E
Decision Date: March 17, 2023
Decision Type: PERB Decision
Description: An administrative law judge considered whether The Accelerated Schools (TAS) violated EERA when it eliminated a union steward’s Health Services Coordinator position, laid her off, and created an unrepresented Registered Nurse position to provide higher-level health care services. The ALJ concluded that these actions were not retaliation for protected activity. But the ALJ found TAS liable for not affording the steward’s union adequate notice and an opportunity to meet and negotiate before the layoff, and the ALJ ordered back pay without reinstatement. Only the union excepted, claiming primarily that the ALJ should have upheld its retaliation claim and, in the alternative, that the ALJ should have ordered reinstatement to remedy the bargaining violation.
Disposition: The Board did not sustain the exceptions. The Board clarified that an employer that fails to bargain effects must generally 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. 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. The Board overruled, in part, eight older decisions that had extended Transmarine beyond this scope.
Decision Headnotes