Decision 1648E – Lake Elsinore Unified School District

LA-CE-4545-E

Decision Date: June 23, 2004

Decision Type: PERB Decision

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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.