“Make Whole” May No Longer Be Enough

Unions have long complained that PERB’s remedial orders are insufficient. For example, the remedy for an unlawful unilateral change is to return the parties to their prior positions (i.e. status quo ante). However, the unions often argue that merely returning to the status quo ante isn’t sufficient to remedy the harm that has occurred or to serve as a deterrent in the future. Judging from several cases issued in the last year, it appears that the Board is starting to agree. Here are several cases dealing with remedies that practitioners should take note of….

County of Kern & Kern County Hospital Authority (2019) PERB Dec. No. 2659-M (Issued on 8/6/19) (On Appeal)

In this case the Board held that the county engaged in unlawful subcontracting. No county employees were harmed. However, the Board held that, “when a public employer subcontracts operations in violation of a statute we enforce, and the record shows that private sector subcontracted employees are harmed, PERB should order reasonably requested economic remedies tailored to make such employees whole.” Thus, if private subcontractors are paid less than unionized employees, they may be entitled to the difference in salary/benefits. Here, the Board did not order this relief because it was not requested by the union. This case is on appeal.

Salinas Valley Memorial Hospital District (2020) PERB Dec. No. 2689-M (issued on 1/13/20) (On Appeal)

This case involved a petition for recognition filed before a local agency. Generally, where a local agency has its own local rules, PERB will defer to those rules as long as they are reasonable. Here, the same petition was denied and found its way before a PERB ALJ three times. The Board held that, “… where, as here, the employer has over the course of five years repeatedly refused to reasonably apply its own rules in order to deny a group of employees representation and an opportunity to bargain, it is well within PERB’s broad jurisdiction to consider the specific circumstances and to order a conclusive resolution.” Accordingly, instead of ordering the local agency to process the petition properly, the Board ordered the local agency to grant the petition for recognition and begin meeting and conferring with the union. This case is on appeal.

Lodi Unified School District (2020) PERB Dec. No. 2723-E (Issued on 5/26/20) (On Appeal)

In this case an employer began enforcing a vacation accrual cap/cash-out policy. The Board found an unlawful unilateral change. One effect of the policy was that some employees took vacation time when they would have otherwise allowed the time to continue accruing. The Board held that:

A make-whole award must be tailored ‘to expunge the actual consequences’ of an unfair practice, including restoration of ‘the economic status quo that would have obtained but for the respondent’s wrongful act.’

Here, the Board held that employees were “harmed” by being forced to take vacation when they didn’t want to. To make these employees whole, the Board held that the employer must pay the employees for the vacation hours they were forced to take. This case is on appeal.

City of Culver City (2020) PERB Dec. No. 2731-M (Issued on 6/10/20)

In this case an employer began requiring employees to take an unpaid lunch hour during the day. Even though employees were otherwise paid for all hours worked, and paid for two 15-minute rest periods, the Board held that “harm” may be quantified in a number of ways, not only increased workload of reduced pay. Here, the “harm” was that employees had their workday extended by one hour. Had the union filed exceptions on the remedy, the Board would have awarded an hour of pay for each day an employee had to take an unpaid lunch hour.

Comments:

As these cases illustrate, the Board is moving beyond the traditional notion of “harm” being measured by lost wages or increased workload/hours. In two of the cases above, the Board commented on remedies even though the unions did not file exceptions on that issue. This clearly shows that the Board is sending a signal to practitioners. In response, we can expect unions to be even more aggressive in seeking extraordinary and make-whole plus type remedies. For employers, it further highlights the dangers of litigating cases before PERB.