EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS – Highly Unusual Circumstances

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* * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S, where, on remand from the Court of Appeal, the Board modified its remedial order to clarify that it applies only in circumstances in which CDCR and its representatives either constitute the appointing authority or are acting as an employer and the employee reasonably fears discipline. * * *

An invasive search of an employee’s person, including an unclothed body search, is the type of investigatory meeting which gives rise to the right of union representation. The right to union representation attaches whenever an employer demands that an employee submit to an invasive body search, or subjects an employee to such a search. (p. 14.) An invasive body search is fundamentally confrontational. (p. 12.) As in a drug testing situation, an invasive body search is such an unusual and stressful situation that an employee is likely to volunteer information in an effort at self-defense, and therefore has a right to union representation even if the employer does not intend to ask questions. The right to union representation therefore attaches before an employee is invasively searched, just as it attaches before an employee takes a drug or alcohol test. (p. 11.)