Decision 1648E – Lake Elsinore Unified School District

LA-CE-4545-E

Decision Date: June 23, 2004

Decision Type: PERB Decision

Description:  The Association alleged that the District denied teacher Ausman rights to union representation.  Ausman was asked to attend an investigatory meeting with the District’s attorney regarding a coworker’s claim of harassment by another teacher.  Ausman asked for union representation but the request was denied on the basis that she was a witness and that it was not a disciplinary investigation of Ausman.  At some point in the meeting, the investigation turned to Ausman’s conduct and following the meeting, Ausman received a disciplinary memo.  Ausman claims that at that time the District did not offer her the right to representation.  Ausman did not again ask for representation.

Disposition:  The majority found that Ausman was denied her right to representation and disagreed with the District’s argument that Ausman could not have believed she was not subject to discipline when she asked for representation.  The nature of the interview was highly charged and formal.  The alleged demeanor of the District’s attorney toward Ausman was hostile.  The Board also found the circumstances similar to the Redwoods case.  Most importantly, the majority found that whether or not the discipline element existed at the outset, the District may not discipline Ausman after assuring her that no discipline would result from the interview.  Once the employee has made a request for representation and the request was denied stating that no discipline would result from the interview, then the employer may not impose discipline as a result.  Otherwise, the employee must repeated ask for representation or weaken the union’s ability to represent her.  Such a requirement does not serve the Supreme Court’s intent in Weingarten.

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Perc Vol: 28
Perc Index: 185

Decision Headnotes

408.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS
408.01000 – In General

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.) (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.

408.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS
408.03000 – 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.