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408.03000 – Investigatory Interviews

EERA section 3543.1, subdivision (b), provides an independent right to employee organizations, not found in the federal law, to represent their members in their employment relations with the public school employer. When applying the Weingarten decision and other non-California authorities, they must be harmonized with the language and purposes of the PERB administered statutes. Where California statutes provide for broader rights not found in the federal law, the Board must follow the intent of the Legislature to effectuate the purposes of the statute. While an employee must make an affirmative request for representation, it does not need to be made directly to the employer or to be phrased in a particular form. No magic words or specific conduct is required so long as the employer has reasonable notice of the employee’s desire for representation. Employee, who stated that, “If this [meeting] is going to be disciplinary,” she wanted representation, effectively communicated her desire for representation. To insist that employees refrain from using grammatically conditional language when communicating their right for representation seems unnecessarily formulaic and contrary to the purpose EERA. Employees may refuse to attend investigatory or disciplinary interviews or refuse to respond to questions without fear of discipline or reprisal from the employer, if their representational rights are denied. Where employee effectively communicated her desire for representation to supervisor, in the absence of evidence that she had reconsidered or waived her right to representation, her subsequent refusal to respond to supervisor’s questioning was protected and not a proper basis for discipline. Where an employer bases disciplinary action in part on protected conduct, rather than determine what portion is not in violation of the statute, Board ordered rescission and expungement of the entire penalty. Notwithstanding supervisor’s assurance that he did not intend for unannounced meeting with employee to result in discipline, because his questioning was designed to determine whether employee understood his instructions, and whether she intended to comply with them, after she had previously informed supervisor that she “was not going to do this," employee’s request for representation was based on reasonable belief that discipline might ensue. Regardless of how a meeting may be characterized or envisioned by management, if it serves to elicit incriminating evidence with the potential to impact the employment relationship, then it is "investigatory" for the purposes of the representational rights guaranteed by the PERB-administered statutes. The reasonableness of an employee’s belief that discipline might ensue, and thus of whether the employee was entitled to representation, will turn on the totality of circumstances present at the time, which may include the employee's history and previous communications with management on matters related to the subject of the interview. Where employee had history of acrimonious relationship with supervisor and recent disagreements over the wisdom and practicality of supervisor’s instructions, she could reasonably anticipate that an unannounced meeting called by the supervisor would result in discipline and that representation was necessary. The right to representation is designed to protect employees not only from unwitting admissions or information they may disclose during an investigation, but also from employee conduct in circumstances where a representative might have prevented the employee from losing his or her temper, becoming insubordinate, lying, or engaging in other misconduct in the course of an investigation, and thereby giving the employer additional or alternative grounds for discipline. The right to representation protects employees from not only their admissions as a result of an unlawful interview but also from their conduct, including misconduct, occurring as the result of an unlawful interview. Employee whose misconduct was in part a result of an interview held under unlawful conditions may be entitled to make-whole relief. Because employer’s written reprimand referenced both protected and unprotected conduct, rather than re-write the employer’s reprimand, the Board ordered rescission and expungement of the entire document. The right to representation is not dependent on whether an employer’s questions or the employee’s responses are related to the employer’s reasons for calling a meeting or to the grounds provided for subsequent disciplinary action. History of acrimonious relations, recent disagreements and other circumstances caused employee reasonably to fear discipline, regardless of whether supervisor subjectively intended for meeting to result in or justify disciplinary action. An employer’s assurance that discipline is not contemplated is not determinative of whether a meeting is “investigative” or “disciplinary” and thus whether a right to representation attaches.