concurring.
I agree that the state was obliged to bargain impacts of the intergovernmental transfer and that its refusal to do so was an unfair labor practice. However, I do not agree with the majority’s implication that, on remand, ERB can somehow order the parties to “come together in good faith and acknowledge the legitimate interests of the other.” 132 Or App at 412. Instead, ERB’s authority on remand is limited to *413assessing representation costs and attorney fees. ORS 243.676(2)(d), (e).
The state no longer employs the transferred officers; Multnomah County does. FOPPO no longer represents those officers; AFSCME does. Thus, the majority would have ERB require a party that no longer employs the affected workers to bargain with a union that no longer represents them. PECBA does not permit, much less compel, such an anomalous result.
ERB cannot restore the pre-transfer status quo ante and order the state to bargain with FOPPO from that position. To do so would roll back and invalidate an intergovernmental agreement expressly authorized under ORS 423.550.1 Nor may ERB order the state to bargain about the transfer’s impacts with FOPPO from the parties’ present positions. This is so for two reasons. First, the state’s duty is to bargain with the exclusive representative of the affected employees, ORS 243.672(l)(e), and AFSCME has replaced FOPPO in that role. Second, bargaining would be meaningless; the state has nothingto gain from the affected employees, because they now work for Multnomah County.2
In theory, ERB could fashion some remedy pursuant to ORS 243.676(2)(c) that would not require the state and FOPPO to bargain:
‘ ‘ (2) Where * * * the board finds that any person named in the complaint has engaged in or is engaging in any unfair labor practice charged in the complaint, the board shall:
*414* * * *
“(c) [t]ake such affirmative action, including but not limited to the reinstatement of employees with or without back pay, as necessary to effectuate the purposes of [PECBA.F
However, that grant of authority, although broad, is not unlimited. Any remedy crafted under that provision must “reasonably effectuate the purposes of’ PECBA. OSEA v. Lake County School District, 93 Or App 481, 486, 763 P2d 160 (1988). Those purposes are, primarily, to obligate public employers and employees to resolve their differences in collective negotiations, and to promote the improvement of labor relations within the public sector by providing a uniform basis for recognizing public employees’ rights to join and be represented by labor organizations. ORS 243.656(5).
In this case, I am unable to conceive of any ERB order that would reasonably effectuate the purposes of PECBA and at the same time provide substantive relief to FOPPO. Although in the past we have approved “make whole” and restitution remedies crafted by ERB as effectuating those purposes,3 that option is not available to ERB in this case because it is impossible to determine whether the affected employees suffered any restitutory loss, much less the extent of any such loss.
FOPPO can, of course, identify precise differences between the salaries and benefits the affected group received as state employees and the salaries and benefits they now receive as county employees. However, there is no way to tell whether, or to what extent, the state would have acceded to FOPPO’s demands to adjust salaries and benefits to mitigate those differences if the parties had engaged in contemporaneous impact bargaining. Under those circumstances, a restitutory remedy would be impermissibly speculative and would effectively impose contract terms in violation of ORS *415243.650(4).4 Accord Gresham Tchrs. v. Gresham Gr. Sch., supra n 3, 52 Or App at 894-95 n 19.5
Nonetheless, the case is not moot. Our decision that the state committed an unfair labor practice has “a practical effect on * * * the rights of the parties” in that ERB can assess representation costs and attorney fees against the state pursuant to ORS 243.676(2)(d), (e).6 See Brumnett v. PSRB, 315 Or 402, 406, 848 P2d 1194 (1993); Federation of Oregon Parole v. Dept. of Corrections, 119 Or App 355, 358, 850 P2d 1154 (1993). ERB’s writ on remand should run no further.
ORS 423.550(1) provides, in part:
“When a county pursuant to ORS 423.500 to 423.600 assumes responsibility for any portion of correctional services previously provided by the Department of Corrections, the county and the department shall enter into an intergovernmental agreement that includes an approved local community corrections plan, program descriptions, budget allocation, performance objectives and method of evaluation for each correctional service to be provided by either the county or the department.”
ORS 423.550(2)(b) provides, in part:
“In any county having a population of 200,000 persons or more, at the discretion of the county, all state correctional field officers, immediate supervisors of such correctional officers and any supporting clerical personnel whose jobs involve rendering services assumed by the county shall transfer to county employment.”
That does not mean that the affected employees have no ability to bargain over transfer related impacts. I am unaware of any limitation on AFSCME’s ability to bargain over such impacts with the county, which, after all, initiated the transfer.
See, e.g., Elvin v. OPEU, 102 Or App 159, 793 P2d 338 (1990), aff'd 313 Or 165, 832 P2d 36 (1992) (orderingunion to return fair share payments collected under procedure that violated federal law); OSEA v. Lake County School District, 93 Or App 481, 763 P2d 160 (1988) (ordering employer to reinstate unfairly discharged employees); Gresham Tchrs. v. Gresham Gr. Sch., 52 Or App 881, 630 P2d 1304 (1981) (ordering employer to pay back wages).
ORS 243.650(4) provides:
“ ‘Collective bargaining’ means the performance of the mutual obligation of a public employer and the representative of its employees to meet at reasonable times and confer in good faith with respect to employment relations, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party. However, this obligation does not compel either party to agree to a proposal or require the making of a concession.” (Emphasis supplied.)
At oral argument, FOPPO’s counsel forthrightly acknowledged that, in these unusual circumstances, “the remedy is somewhat ethereal.”
Those subsections of ORS 243.676(2) provide:
“Where * * * the board finds that any person named in the complaint has engaged in or is engaging in an unfair labor practice charged in the complaint, the board shall:
* * * *
“(d) Designate the amount and award representation costs, if any, to the prevailing party; and
“(e) Designate the amount and award attorney fees, if any, to the prevailing party on appeal * *