Decision 2285S – State of California (Department of Corrections and Rehabilitation)

SA-CE-1694-S

Decision Date: September 17, 2012

Decision Type: PERB Decision

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Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.01000 – In General

An employee organization’s ability to independently investigate a potential grievance is an essential tool for determining whether the grievance has merit and, if it does, for providing effective representation in grievance proceedings. Therefore, the investigation of grievances is protected organizational activity.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.05000 – Grievances

An employee organization’s ability to independently investigate a potential grievance is an essential tool for determining whether the grievance has merit and, if it does, for providing effective representation in grievance proceedings. Therefore, the investigation of grievances is protected organizational activity.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.17000 – Other

An employee organization’s ability to independently investigate a potential grievance is an essential tool for determining whether the grievance has merit and, if it does, for providing effective representation in grievance proceedings. Therefore, the investigation of grievances is protected organizational activity.

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.01000 – In General; Standards

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.

402.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; QUESTIONING/INTERROGATING EMPLOYEES
402.03000 – Union Activities or Membership

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.

405.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; THREATS OR PROMISES
405.02000 – Express or Implied Threats

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.

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

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.

408.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS
408.02000 – Grievances/Grievance Procedure

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.

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

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.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

Issuance of cease and desist order against union steward conducting union investigation into alleged misconduct by a supervisor for a potential grievance was not justified by legitimate business reason related to maintaining integrity of employer’s investigation, where there is no evidence steward’s conduct interfered with, delayed, distorted or unduly influenced employer’s investigation. Legitimacy of employer’s justification for interfering with employee organizational rights is undermined by: inaccurate way in which information was reported up the chain of command and acted upon without verification; employer’s reliance on a policy manual section that does not appear to support action taken; employer’s proffering of a false equivalency between cease and desist orders given to job steward and supervisor under investigation; and inconsistent understanding among witnesses regarding scope and effect of order. In balancing the competing interests of the parties, interference with employee organizational rights outweighs business justification proffered by employer for its conduct.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions

ALJ’s credibility determination based upon opinion that “gratuitous comments would not be volunteered by an experienced investigator” and that an experienced law enforcement officer would not make the statement attributed to her are more in the nature of speculative generalizations about the character of law enforcement than they are a product of firsthand observations by the ALJ of the witness’s testimony. Accordingly, the Board accords the ALJ’s credibility determination no particular deference.