PERB Orders Alternative Remedy In Layoff Case

Bellflower Unified School District (2014) PERB Decision No. 2385-E (Issued on 6/30/14)

This case involved a school closure and related layoffs. In February 2010, the school district notified the union that it is was considering a school closure which would result in layoffs. The union responded that it wanted to bargain over the potential effects. The district did not respond. In May 2010, the school board voted to abolish 20 positions at the affected school. The union again requested to bargain over the effects. While the parties attempted to schedule a bargaining session, one never occurred (it’s not clear from the decision why).

Based on the totality of the circumstances, the administrative law judge (ALJ) held that the district violated its duty to bargain over the effects of the closure and layoffs. However, the ALJ found insufficient evidence that any layoffs actually occurred. Therefore the ALJ did not order a traditional make-whole remedy. Instead, the ALJ ordered the district to bargain with the union over the effects of the proposed layoffs if requested.

Both parties filed exceptions. The Board rejected the district’s argument that there was no duty to bargain. The Board held that, “Even if the District disagreed or was unclear as to whether some proposed subjects for bargaining were within the scope of representation, it still had a duty to meet with [the union] to clarify the matter. This is so regardless of whether the District ever actually closed [the school] or implemented the layoffs.” Nevertheless, the Board agreed with the ALJ that the union failed to prove that any layoffs actually occurred.

The Board then considered the appropriate remedy in this case. The Board concluded that a traditional make-whole remedy consisting of reinstatement and back-pay is inappropriate because it would “effectively negate the principle that the layoff decision is one reserved for the employer.” The Board further noted that, “reinstatement of laid-off employees ‘would accomplish more than the District was ever required to do’ because reinstatement would rescind a decision the District was entitled to make.” However, the Board still felt that some remedy was required. Accordingly, the Board crafted a “limited back-pay remedy.” Specifically, the Board held that if after this decision the union submits a proposal to bargain over the effects of the layoffs, back-pay shall be ordered until the earliest of either: (1) the date the parties reach an agreement; (2) the parties exhaust the negotiating and impasse procedures prescribed by EERA; or (3) the subsequent failure by CSEA to bargain in good faith.

Comments:

There is one important aspect of the remedial order that is not clear to me: from when does the back-pay obligation run? Is it from when the district closed the school in the summer of 2010? Or is it from when the union submits its request to bargain in response to this decision? I think the Board’s intent is to run the back-pay from the actual closure of the school back in the summer of 2010. If so, the back-pay order is only “limited” in the sense that there is no obligation to reinstate anyone or to undo the school closure. It can still be a significant amount of money.
Readers of my blog know that I have been critical of the Board’s application of factfinding to effects bargaining situations because the traditional remedy for failing to engage in bargaining is to return to the status quo ante. In the effects bargaining context, that can mean undoing a managerial decision that was not subject to bargaining in the first place. This decision recognizes this issue and tries to resolve it by giving some teeth to the remedy while allowing the employer’s managerial decision to stand.
I certainly appreciate the Board’s recognition in this case that reinstatement would be inappropriate. While I believe that the ALJ’s cease and desist order is a sufficient remedy for the violation, I acknowledge that there is some PERB precedent for the Board’s remedy. (See Oakland Unified School (1983) PERB Decision No. 326.) There is also precedent in other contexts for the Board’s remedial order. For example, in public employee discipline cases, there are sometimes violations of the employee’s Skelly rights. In termination cases, a Skelly violation typically does not invalidate the termination, but rather the employee is entitled to back-pay until the Skelly violation is cured. What the Board has imposed here is a similar remedy. Again, while the actual back-pay order here may be large, this is a decision that is helpful to employers because it protects an employer’s right to make managerial decisions.