All notes for Subtopic 408.03000 – Investigatory Interviews
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2830Sa | State of California (State Water Resources Control Board) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews If an employer’s unfair practice during an investigatory interview is one material cause of eventual discipline, the proper remedy is to rescind the discipline, purge related records, and make the employee whole, typically while leaving open whether the employer may lawfully re-investigate any alleged misconduct or issue lesser discipline. (County of San Joaquin (Sheriff’s Department) (2018) PERB Decision No. 2619-M, p. 13 & fn. 13; Capistrano Unified School District (2015) PERB Decision No. 2440, pp. 45 & 47-53 (Capistrano).) The primary basis for proving that unfair practices in an investigatory interview materially caused discipline is to show that the discipline was based, at least in part, on information or admissions obtained in the interview, or on employee conduct during the interview. (Capistrano, supra, PERB Decision No. 2440, p. 47.) (p. 5.) more or view all topics or full text. | 47 | 160 | 05/02/23 |
| 2830S | State of California (State Water Resources Control Board) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews In Contra Costa Community College District (2019) PERB Decision No. 2652 (Contra Costa), the union did not allege that the employer interfered with representational rights by refusing to provide sufficient information about the accusations to allow meaningful representation. (Id. at p. 30.) Rather, its only claim was for failure to meet and confer in good faith based on the employer’s refusal to provide copies of written complaints against two accused employees. (Ibid.) The Board found no right to obtain such complaints at the investigatory interview stage, though it noted that after the investigatory interview stage and in advance of any pre-deprivation hearing pursuant to Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, the employer must normally work with the union on any necessary redactions or other privacy accommodations and normally must provide such records. (Contra Costa, supra, pp. 9, 17 & 25.) (p. 11.) more or view all topics or full text. | 47 | 42 | 08/10/22 |
| 2830S | State of California (State Water Resources Control Board) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews Where the union requests sufficient information to allow meaningful representation at an investigatory interview, bad faith bargaining and interference can be alleged as independent claims, because proving one does not necessarily prove the other. For instance, because an investigatory interview can occur with minimal lead time (Contra Costa Community College District (2019) PERB Decision No. 2652, p. 31, fn. 19), there may be no information request until just before or even after the interview begins, and such a request may be in the form of an employee’s question, e.g., “what are the accusations against me?” Failing to answer that question sufficiently can interfere with protected rights without violating the obligation to bargain in good faith. In other cases, an employer may schedule an investigatory interview on a slower track. In such an instance, an employer may violate its duty to meet and confer in good faith if it refuses, without an adequate basis, a union’s information request. And while failure to provide information always constitutes at least derivative interference with protected rights, it can also constitute an independent interference violation, for instance if it leaves a union and employee without sufficient information to allow meaningful representation at an investigatory interview. (p. 10.) more or view all topics or full text. | 47 | 42 | 08/10/22 |
| 2830S | State of California (State Water Resources Control Board) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews If a charge or complaint alleges interference based upon the same conduct giving rise to another claim, the interference claim is independent if it can be established without the other claim being established. (County of San Joaquin (2021) PERB Decision No. 2761-M, p. 18 [judicial appeal pending].) In contrast, if it is impossible to establish interference without establishing the other claim, then the interference claim is a derivative one. (Ibid.; County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 9.) In cases in which a charging party accuses an employer of providing too little information to allow meaningful representation, interference with representational rights is independent, as it can be established even in the absence of bad faith bargaining or any other violation. (p. 10.) more or view all topics or full text. | 47 | 42 | 08/10/22 |
| 2830S | State of California (State Water Resources Control Board) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews In Contra Costa Community College District (2019) PERB Decision No. 2652, the Board specifically noted that PERB precedent protects representational rights to a greater extent than National Labor Relations Board precedent, and that it disagrees with Pacific Telephone and Telegraph Co. (1982) 262 NLRB 1048 to the extent it arguably allows an employer to provide very general notice of alleged misconduct. (Id., p. 27.) Instead, “[PERB’s] touchstone is what is necessary to allow meaningful representation.” (Ibid.) (p. 9.) more or view all topics or full text. | 47 | 42 | 08/10/22 |
| 2830S | State of California (State Water Resources Control Board) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews As part of protected representation rights, the union and the represented employee have the right to receive information about the nature of any alleged wrongdoing sufficiently in advance of the investigative interview to allow for consultation before, and thus meaningful representation during, the interview. (Contra Costa Community College District (2019) PERB Decision No. 2652, pp. 26-30.) The employer must provide more than merely a vague summary such as “a vehicle accident you were involved in on [a specific date],” or “insubordination and/or sabotaging of the [employer’s] mission.” (Id. at p. 27.) After receiving sufficient information, the union and employee have the right to consult for an amount of time that is reasonable given the nature of the allegations and the information provided. (Id. at pp. 29-30.) Assessing such issues is typically fact intensive. (Id. at p. 30.) (pp. 8-9.) more or view all topics or full text. | 47 | 42 | 08/10/22 |
| 2830S | State of California (State Water Resources Control Board) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews A union has the right to represent an employee it exclusively represents in an investigatory interview, and the employee has a corresponding right to union representation. (Contra Costa Community College District (2019) PERB Decision No. 2652, p. 7 (Contra Costa); Capistrano Unified School District (2015) PERB Decision No. 2440, pp. 10-14; Sonoma County Superior Court (2015) PERB Decision No. 2409-C, pp. 13-14.) Under the Dills Act and the other labor relations statutes PERB enforces, an employer interferes with union and employee representational rights if it does not allow meaningful representation during an investigative interview. (Gov. Code, § 3519, subds. (a) & (b); Contra Costa, supra, PERB Decision No. 2652, p. 26, citing State of California (Department of Corrections) (1998) PERB Decision No. 1297-S, adopting proposed decision at p. 12.) (p. 8.) more or view all topics or full text. | 47 | 42 | 08/10/22 |
| 2660S | State of California (Office of the Inspector General) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews The following facts demonstrated the investigatory nature of the Office of the Inspector General’s (OIG) interviews of correctional officers: OIG coordinated with local prison management to have the officers made available for the interviews, usually through issuance of direct orders for the officers to report at a specified time and place. OIG went so far as to ask local wardens to direct officers to attend and participate in the interviews. It held the interviews at the officers’ job sites, in office spaces that it arranged for with management, rather than at a neutral or offsite location. OIG gave the officers little to no advance notice of the interviews or their subject matter, and while the deputy inspector generals told the officers the interviews were voluntary, the subpoenas clearly indicated otherwise. Nor did the officers have time to object to the subpoenas since the deputy inspector general proceeded with the interviews on the spot. Contrary to OIG’s assertion, not all of the officers interviewed understood the different functions of the Department of Corrections and Rehabilitation (CDCR) and OIG, or even that OIG was distinct from CDCR. Given OIG and the union’s acrimonious history, as evidenced by some of OIG’s statements from the 2015 Special Review Report, the officers had particular reason to be vigilant when confronted with a deputy inspector general with only a minimum of notice and no background information whatsoever. In this context, the officers could have reasonably feared that they or their colleagues faced punitive action as a result of the interviews, particularly because the interviews covered topics which exposed officers to potential for discipline for failure to report their own or others’ misconduct. The Board found a reasonable basis for such a belief notwithstanding the deputy inspector generals’ caveats that the interviews were part of a review as opposed to an investigation and therefore would not serve as the basis for any discipline. (p. 26.) more or view all topics or full text. | 44 | 48 | 08/15/19 |
| 2660S | State of California (Office of the Inspector General) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews An investigatory or disciplinary interview falls within the broad definition of “all matters of employer-employee relations” and Dills Act section 3515 therefore grants state employees representational rights that are at least as broad as those afforded private sector employees under NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251 and other federal authorities interpreting section 7 of the National Labor Relations Act. (pp. 24-25.) more or view all topics or full text. | 44 | 48 | 08/15/19 |
| 2660S | State of California (Office of the Inspector General) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews Based on the facts of this case, the Office of the Inspector General (OIG) had a duty not to interfere with the protected rights of correctional officers or their exclusive representative. The subject-matter of the interviews—the officers’ observations during their work at the prison—were work-related. Although OIG did not conduct the interviews at the request of the Department of Corrections and Rehabilitation (CDCR), CDCR management cooperated with and supported the interviews. OIG coordinated with local prison management to have the officers made available for the interviews, and directed officers to report at a specified time and place for the interviews. OIG held the interviews at the officers’ job sites, before or during the officers’ on-duty time. Moreover, some OIG agents apparently recognized the validity of the officers’ requests for representation and permitted their union representatives to participate in and record the interviews. (p. 20.) more or view all topics or full text. | 44 | 48 | 08/15/19 |
| 2652E | Contra Costa Community College District 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews A union has a right to sufficient information regarding alleged wrongdoing to enable a union representative to represent an employee in a meaningful manner during an investigatory interview, but the union does not obtain the right to an underlying written complaint until after the initial investigatory interview. more or view all topics or full text. | 44 | 18 | 06/26/19 |
| 2598S | State of California (Department of Corrections and Rehabilitation) * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S. * * *An investigatory or disciplinary interview falls within the broad definition of “all matters of employer-employee relations,” and section 3515 therefore guarantees state employees representational rights that are at least as broad as those afforded private-sector employees under NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251 (Weingarten) and other federal authorities interpreting section 7 of the National Labor Relations Act (NLRA). Not all meetings with management must conform to the requirements of Weingarten before the right to representation attaches. (pp. 7-8.) more or view all topics or full text. | 43 | 78 | 11/26/18 |
| 2598S | State of California (Department of Corrections and Rehabilitation) * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S. * * *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. (Capistrano Unified School District (2015) PERB Decision No. 2440, p. 20 [citing County of Santa Clara, supra, PERB Decision No. 2267-M, adopting proposed decision at pp. 19-20].) (p. 11.) more or view all topics or full text. | 43 | 78 | 11/26/18 |
| 2598S | State of California (Department of Corrections and Rehabilitation) * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews * * * 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.) more or view all topics or full text. | 43 | 78 | 11/26/18 |
| 2598S | State of California (Department of Corrections and Rehabilitation) * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S. * * *If an employer rejects an employee’s request for representation, she cannot be found to have voluntarily waived her right to representation. (p. 15.) Employer which continued the interrogation after employee requested representation, effectively denied the request, thereby committing an unfair practice. (p. 16.) more or view all topics or full text. | 43 | 78 | 11/26/18 |
| 2619M | County of San Joaquin (Sheriff's Department) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews PERB will find a violation of the right to representation when (a) the employee or the union representative requested representation before (b) responding to a request to provide written information, (c) which the employee reasonably believed could result in disciplinary action, and (d) the employer denied the request. PERB found a violation even though the employee did not ultimately submit the written statement. more or view all topics or full text. | 43 | 114 | 12/28/18 |
| 2599E | San Bernardino Community College District 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews An employer violates an employee’s right to union representation when it discontinues oral questioning following the employee’s request for representation, but directs the employee to prepare a written statement concerning the matter under investigation. more or view all topics or full text. | 43 | 85 | 12/05/18 |
| 2599E | San Bernardino Community College District 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews Faced with a valid request for representation in an investigatory interview, an employer must accede to the request, give the employee the option of continuing without representation, or discontinue the interview, regardless of whether the employer is seeking new information or merely to confirm information previously provided by the employee. more or view all topics or full text. | 43 | 85 | 12/05/18 |
| 2599E | San Bernardino Community College District 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews In order to challenge denial of Weingarten rights, employee was not required to disobey an unlawful directive to proceed without representation. more or view all topics or full text. | 43 | 85 | 12/05/18 |
| 2567E | Hartnell Community College District 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews Having attempted for more than two weeks to schedule the investigative meeting with Charging Party and his preferred representative, the ALJ appropriately concluded that the employer was not obligated to further delay the meeting, and that a message from its human resources official lawfully deferred to the exclusive representative to determine which of its agents would be available to represent the Charging Party in the investigative meeting. The employer’s message did not interfere with the protected right to choose a representative because, under the circumstances, any choice of a representative was for the exclusive representative and not for the Charging Party to make. (p.8.) To prevail in a case alleging interference, the charging party must show that the employer engaged in conduct that tends to or does result in at least slight harm to rights guaranteed by EERA and that, on balance, the resulting harm to protected rights outweighs any legitimate business justification asserted by the employer. An interference violation may only be found where the pertinent statute provides the rights claimed by the charging party. (pp. 4-5.) more or view all topics or full text. | 43 | 2 | 06/12/18 |
| 2440E | Capistrano Unified School District 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; 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. more or view all topics or full text. | 40 | 24 | 06/30/15 |
| 2423M | County of San Bernardino (Office of the Public Defender) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews When an employee requests representation in an investigatory interview, the employer may exercise one of three options: (1) it may grant the employee’s request for representation; or (2) it may discontinue the interview; or (3) offer the employee the choice of proceeding with the interview without union representation or having no interview. Where the Association has appointed no DPDs as labor representatives, the Public Defender’s across-the-board prohibition of cross-representation between DPDs and DDAs in any investigatory meetings prevents attorneys in the Office of the Public Defender from ever being represented by Association representatives in investigatory interviews or other disciplinary proceedings. Such action is inherently destructive of both employees’ right to be represented and the Association’s right to represent unit members. A Public Defender has a legitimate reason to exclude DDAs from investigatory meetings, at least where the Public Defender’s client confidential information or Public Defender work product is likely to be revealed. It may also be justified in preventing such cross-representation where the representing DDA is the opposing counsel to the DPD in a criminal case, or in other situations in which the rules of professional responsibility or rules of court require that the representation be disclosed to the Public Defender’s client, and/or that either attorney would be forced to disqualify himself or herself from further representation in the criminal case. Internal office procedures for documenting attorney work do not fall within the definition of attorney “work product.” Although the Public Defender had no power over whom the Association appointed as stewards or representatives, or over the fact that the Association had not appointed any DPDs as labor representatives, and although the cross-representation ban was occasioned by circumstances beyond the employer’s control, the Public Defender had the alternative of declining to proceed with the interview and continue its investigation by other means, or redacting sensitive information from materials involved in the investigatory interview. A Public Defender may not seek to secure for itself the benefits of an investigatory interview with an employee suspected of wrongdoing by compelling the employee’s attendance at the interview, while it denies the employee and the Association their respective representation rights, including the employee’s right to decline to be interviewed without threat of insubordination. When confronted with a DPD’s request for Association representation in an investigatory interview, the Public Defender could either grant the request, or inform the employee that it will not permit the representative to be present, and the employee has the option of attending the interview without a representative or decline to be interviewed. Or the employer may dispense with the interview entirely. The employer may not persist in proceeding with the interview without the employee’s representative present. Nor may the employer threaten the employee with additional discipline for declining to attend the interview without representation. Regardless of whether the Public Defender’s prohibition on cross-representation was justified, the DPD ultimately had the right to decline to be interviewed or to submit to the interview unrepresented. The Public Defender was never privileged to threaten the DPD with insubordination after failing to give him those options. A union representative’s physical presence made her “available” to represent a DPD, and therefore the County (under the Weingarten/Rio Hondo framework) was obligated to give the DPD the choice of proceeding without representation or foregoing the interview, and to refrain from threatening the DPD with discipline for failure to attend the interview. The fact that an employee and his or her union ultimately withdraw their request for representation at an investigatory meeting does not shield the employer from liability for threatening an employee with discipline for insubordination. Advanced notice from an employer that it will ignore the Weingarten/Rio Hondo representation framework is no defense to an actual violation of the law and does not obligate either the union or employee under investigation to accommodate that violation of the employee’s and the union’s rights. A Public Defender is not legally obligated to interview an employee as part of its disciplinary investigation, thus excusing its threat to discipline him for insubordination if he failed to attend the interview. The Weingarten/Rio Hondo framework applies to DPDs and DDAs under the MMBA. Regardless of any alleged past practice between the parties, the Association was within its rights to insist that its statutory right to represent the members of the bargaining unit be honored. more or view all topics or full text. | 39 | 165 | 05/15/15 |
| 2283E | Jurupa Unified School District 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews To be effective, the right to union representation in an investigatory interview includes an opportunity for the employee prior to the interview to confer with the union. Where the employer schedules the interview in such fashion that the employee has no opportunity to confer with the union on the employee’s own time prior to the interview, then upon request of either the employee or the union representative the employer must provide a reasonable time for the employee and the union representative to confer, in private, before proceeding with the interview so that the union representative “can provide meaningful representation” not merely be an observer. Under EERA a union designates the union’s agents, including without limitation union agents who will represent employees in investigatory interviews. EERA does not oblige an employer or the union to accommodate an employee’s choice of union representative, either in scheduling or conducting an investigatory interview; provided that, where an employee’s preferred union representative is available, an employer may not insist upon a different representative. (Consolidation Coal Co. (1992) 307 NLRB 976.) Nor does EERA afford an employee the right to be represented by the employee’s own attorney in an investigatory interview conducted by employer officials. (California Teachers Association, Solano Community College Chapter, CTA/NEA (Tsai) (2010) PERB Decision No. 2096.) more or view all topics or full text. | 37 | 58 | 08/21/12 |
| 2285S | State of California (Department of Corrections and Rehabilitation) * * * OVERRULED IN PART by by Trustees of the California State University (Northridge) (2019) PERB Decision No. 2687-H 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews * * * OVERRULED IN PART ON OTHER GROUNDS by Trustees of the California State University (Northridge) (2019) PERB Decision No. 2687-H. * * *Both statement to union steward conducting union investigation into alleged misconduct by a supervisor for a potential grievance that she could find herself under investigation for impeding employer’s investigation and issuance of cease and desist order constituted at least “slight harm” to employee organizational rights. In balancing competing interests, interference with employee organizational rights outweighs business justification proffered by employer for its conduct. more or view all topics or full text. | 37 | 72 | 09/17/12 |
| 2237S | State of California (Board of Equalization) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews Where meeting was 10 to 15 minutes, purpose of meeting was informative and instructional, and charging party was not questioned, meeting was not an “investigatory interview” for purposes of determining whether the respondent violated charging party’s Weingarten rights to union representation during the meeting; in order to establish a Weingarten violation, the nature of the meeting must be investigatory, i.e., a questioning session, interrogation or interview. more or view all topics or full text. | 36 | 121 | 02/07/12 |
| 2267M | County of Santa Clara * * * OVERRULED IN PART by Los Angeles Unified School District (2016) PERB Decision No. 2479 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews * * * OVERRULED IN PART ON OTHER GROUNDS by Los Angeles Unified School District (2016) PERB Decision No. 2479. * * *Employer’s counseling memo instructing employee to follow the chain of command and not to speak to other employees about his “issues and concerns” did not constitute unlawful interference or threat when considered in context. Evidence failed to demonstrate it was reasonably likely statements had a coercive tendency as to protected activity. No Weingarten violation established, where employee failed to establish that he made a request for union representation or that the meeting was investigatory in nature. more or view all topics or full text. | 37 | 6 | 05/25/12 |
| 2058M | San Bernardino County Public Defender 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews In order to establish a violation of a charging party’s right to union representation, the charging party must establish, among other things, that the meeting for which representation was requested was investigatory in nature. more or view all topics or full text. | 33 | 148 | 09/03/09 |
| 2072S | State of California (Department of Social Services) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews During telephone conversation about employee’s behavior, employee’s assertion that he would not answer any questions without a representative, coupled with his attempt to obtain additional information, was sufficiently clear to establish that an investigatory meeting occurred that employee reasonably believed might result in disciplinary action, and employee communicated a request for representation. Employer did not unlawfully deny representation, where, after asking three times if the employee had any information to provide, it ceased questioning and terminated the interview. more or view all topics or full text. | 33 | 177 | 10/27/09 |
| 1935E | Los Banos Unified School District 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews Employees are entitled to union representation for investigatory interviews. In order to establish a violation of the right, the charging party must demonstrate: (a) the employee requested representation; (b) for an investigatory meeting; (c) which the employee reasonably believed might result in disciplinary action; and (d) the employer denied the request. The key inquiry is whether the interview was investigatory and of the type that might lead to disciplinary action. Although an employee is entitled to union representation for investigatory interviews, the employee is not entitled to demand a specific union representative. more or view all topics or full text. | 32 | 17 | 12/21/07 |
| 1908E | Delano Union Elementary School District 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews The District interfered with the Association’s rights when Principal Bans admonished Kotch both verbally and in writing for interviewing another employee off school grounds and before contract hours. more or view all topics or full text. | 31 | 111 | 06/06/07 |
| 1853H | Trustees of the California State University * * * OVERRULED by Sonoma County Superior Court (2015) PERB Decision No. 2409-C 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews * * * OVERRULED ON OTHER GROUNDS by Sonoma County Superior Court (2015) PERB Decision No. 2409-C. * * *An employee required to attend an investigatory interview with the employer is entitled to union representation where the employee has a reasonable basis to believe discipline may result from the meeting. If the sole purpose of a meeting is to present a final disciplinary memo, the employee has no right to union representation. more or view all topics or full text. | 30 | 155 | 08/29/06 |
| 1648E | Lake Elsinore Unified School District 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews Given the highly charged atmosphere surrounding the victimization of another teacher and the formal nature of the investigation, it was reasonable for Ausman to believe that discipline could result from the interview notwithstanding the District’s assurance that the interview would not lead to discipline. The belief was compounded by the alleged hostile demeanor displayed by the District’s attorney during the interview and validated by the resulting discipline imposed upon Ausman. The right to representation attaches in investigatory interviews whether or not the interview is labeled as such. The circumstances in this case are similar to those in Redwoods Community College Dist. v. Public Employment Relations Bd. (1984) 159 Cal. App. 3d 617 [205 Cal. Rptr. 523]. Regardless of whether the discipline element existed at the onset of the meeting the District may not discipline Ausman after assuring her that no discipline would result from the interview. While it is true that an employer is not required to inform an employee of her Weingarten rights, once the employee has made a request for representation during an interview and the employer refuses the request, stating that no discipline would ensue, then the employer may not impose discipline as a result of the interview. Otherwise an employee must repeatedly ask for representation or place herself in a difficult situation in which the union’s ability to represent her is weakened. Such a consequence does not serve the Supreme Court’s purpose in Weingarten. more or view all topics or full text. | 28 | 185 | 06/23/04 |
| 1628M | City of Santa Barbara 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews No Weingarten violation where employer never refused to allow employee representative during meetings. more or view all topics or full text. | 28 | 150 | 05/14/04 |
| 1360E | Los Angeles County Office of Education (Burton) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews A Weingarten violation occurs when an employee requests union representation during a meeting with management and the request is denied. The charging party must demonstrate: (a) the employee requested representation, (b) for an investigatory meeting, (c) which the employee reasonably believed might result in disciplinary action, and (d) the employer denied the request. No violation where Charging Party did not participate in an investigatory or disciplinary meeting. The officials of the District simply attempted to informed Charging Party of their decision to remove her from the classroom, and did not intend to engage in any meeting or investigation. more or view all topics or full text. | 24 | 31016 | 11/03/99 |
| 1297S | State of California (Department of Corrections) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews Although representation is denied if a union representative present at a meeting is prohibited from speaking, representative was not attempting to represent employee while attempting to ask questions. The main focus of the questions was a potential unilateral change, not the issue raised by the employer during the meeting. more or view all topics or full text. | 23 | 30010 | 10/22/98 |
| 1270E | San Bernardino City Unified School District * * * OVERRULED IN PART by Contra Costa Community College District (2019) PERB Decision No. 2652 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews * * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *An employee has a right to union representation at an investigatory interview the employee reasonably believes may result in disciplinary action. In Redwoods Community College Dist. v. Public Employment Relations Bd. (1984) 159 Cal.App.3d 617 [205 Cal.Rptr. 523], the court extended the Weingarten right of representation under EERA to an interview with "highly unusual circumstances" even if the element of discipline is absent; p. 62, proposed dec. Faced with an assertion of the Weingarten right, the employer may (as one option) dispense with or discontinue the interview. The Weingarten rule requiring representation is in applicable if no meeting or interview takes place; p. 63, proposed decsion. more or view all topics or full text. | 22 | 29113 | 06/22/98 |
| 1190E | Elk Grove Unified School District 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews To exercise the right to representation, the employee must request representation; p. 2, warning letter. more or view all topics or full text. | 21 | 28070 | 03/25/97 |
| 1164E | Barstow Unified School District 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews No reasonable perception of investigatory interview leading to discipline or highly unusual circumstances where meeting was called without warning to employee, employer remarks that conference concerned a student problem, remarks were confrontational, no comments hinted at possible discipline and no discipline followed. more or view all topics or full text. | 20 | 27125 | 08/07/96 |
| 1049S | State of California (Department of Transportation) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews The right to representation attaches at an employer-conducted interview where an employee reasonably anticipates and fears that the interview may lead to disciplinary action; p. 1, warning letter. An employer is not required to postpone an interview because a specific union representative the employee requested is absent, so long as another union representative is available at the time set for the interview. Nor is the employer obliged to suggest or secure alternative representation for the employee; p. 2, warning letter, fn. 1. more or view all topics or full text. | 18 | 25099 | 06/02/94 |
| 0893H | California State University, Long Beach (California State Employees Association) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews Employee has right of representation, upon request, at any employer's investigatory interview if the employee reasonably believes that the interview might result in disciplinary action; p. 19, proposed dec. As meeting was an investigatory interview, the employer was required to refrain from further interview of the employee until the requested representative was present. Since the questioning continued, the employee was denied her valid right to representation; p. 25, proposed dec. more or view all topics or full text. | 15 | 22123 | 07/23/91 |
| 0810S | State of California (Department of Parks and Recreation) * * * OVERRULED by State of California (Department of Corrections) (1995) PERB Decision No. 1100-S 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews * * * OVERRULED by State of California (Department of Corrections) (1995) PERB Decision No. 1100-S, where the Board held that pre-arbitration deferral is based on the conduct underlying the unfair practice charge, not the particular code sections alleged to have been violated. * * *Denial of "Weingarten rights" constitutes interference with protected rights and, therefore, violates 3519(a); since contract provision mirrors language of 3519(a), claim of denial of "Weingarten rights" deferred to arbitration, but concurrent claim of denial of employee organization rights not covered by contract is not deferred; pp. 4-6. more or view all topics or full text. | 14 | 21114 | 06/04/90 |
| 0810Sa | State of California (Department of Parks and Recreation) * * * OVERRULED by State of California (Department of Corrections) (1995) PERB Decision No. 1100-S 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews * * * OVERRULED ON OTHER GROUNDS by State of California (Department of Corrections) (1995) PERB Decision No. 1100-S. * *Prima facie violation stated where, assuming facts alleged are true, employee could reasonably have believed that discipline might occur; p. 4, fn. 3. more or view all topics or full text. | 14 | 21154 | 08/01/90 |
| 1210S | State of California (Department of California Highway Patrol) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews The right to representation does not apply to run of the mill shop conversations such as giving instructions or correcting work techniques; p. 18, proposed dec. When the employee was not asked any questions, and the meeting did not result in a finding of insubordination, the presentation of a memo giving the employee work instructions was not investigatory and the right of representation did not attach; pp. 19 and 21, proposed dec. The right to representation does not attach in an investigatory meeting regarding another employee's conduct; p. 22, proposed dec. more or view all topics or full text. | 21 | 28120 | 06/23/97 |
| 0449H | Regents of the University of California (California State Employees Association) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews Violation found where employee denied right to union representation during an audit of duties conducted as a result of reclassification request. more or view all topics or full text. | 9 | 16014 | 12/04/84 |
| 0310H | Regents of the University of California (California State Employees Association) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews No violation where University stopped and rescheduled disciplinary meeting once employee made request for union representation; pp. 29-30, proposed dec. more or view all topics or full text. | 7 | 14156 | 05/19/83 |
| 0260E | Rio Hondo Community College District 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews Investigatory Interviews (Rt. to union representation applies to a disciplinary interview, whether labeled investigatory or not, so long as the interview is not merely for the purpose of informing the employee that he or she is being discipline; p. 17. more or view all topics or full text. | 7 | 14010 | 11/30/82 |
| 0145E | Marin Community College District 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews Employer interfered with protected rights by reprimanding employee who refused to attend investigatory interview without union representative. more or view all topics or full text. | 4 | 11198 | 11/19/80 |
| 0047E | Pittsburg Unified School District 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews No denial of rep. where rep. chosen by employees unavailable. more or view all topics or full text. | 2 | 2051 | 02/10/78 |