Decision 2022M – City of Modesto
Decision Date: May 12, 2009
Decision Type: PERB Decision
Description: The Charging Party alleged that the City violated the MMBA by refusing a union member’s request for representation during two required meetings with his supervisors and by discriminating against him for requesting representation at a third meeting by failing to complete an investigation of a complaint filed by him.
Disposition: The Board held that the City did not unlawfully deny the right to representation during an interview to discuss a complaint filed by the employee and during two coaching sessions to discuss the employee’s work performance, where the employee did not reasonably believe that the meetings would result in discipline against him. The Board also found that the City did not discriminate against the employee by failing to complete its investigation of the complaint after he requested representation, where the employee refused to discuss or provide information without representation.
The Board also held that the ALJ did not improperly deny the union’s request to amend the complaint near the end of the hearing to allege an additional act of discrimination.
Perc Vol: 33
Perc Index: 84
400.01000 – In General; Standards
City did not unlawfully deny right to representation during an interview to discuss complaint filed by employee, where employee did not reasonably believe that interview would result in discipline against him. City also did not deny right to representation during two coaching sessions to discuss employee’s work performance.
503.01000 – In General
Alleged failure to complete an investigation of employee’s complaint did not constitute an adverse action, where employee refused to discuss or provide information concerning the complaint without representation.
1103.04000 – Amendments
Pursuant to PERB Regulation 32648, the charging party may move to amend the complaint by oral motion on the record. In ruling on such a motion, the ALJ should consider prejudice to the respondent, among other factors. Motion to amend complaint at hearing to include new charge of discrimination based on different alleged facts would have been prejudicial to respondent. Given the lateness of the request to amend, respondent would not have had adequate notice or an opportunity to fully defend against the additional discrimination charge.