Decision 2423M – County of San Bernardino (Office of the Public Defender)

Publically employed attorneys have rights under the MMBA. PERB’s assertion of jurisdiction does not interfere with the ability of the Supreme Court of California or the State Bar of California to regulate the practice of law under the State Bar Act (Bus. & Prof. Code, § 6000 et seq.), the Rules of Professional Conduct or the California Rules of Court, because resolution of this dispute does not regulate the practice of law. Under the constitutional doctrine of separation of powers, the courts have inherent and primary regulatory power over the practice of law. PERB has no power to regulate the practice of law.

While the Board does not presume to rule on the scope of the Rules of Professional Conduct, the Business and Professions Code or other regulations concerning the practice of law, neither will the fact that attorneys have obligations under those rules defeat PERB’s jurisdiction to resolve alleged violations of the statutes which PERB administers, including the MMBA. Publically employed attorneys have rights under the MMBA. PERB’s assertion of jurisdiction does not interfere with the ability of the Supreme Court of California or the State Bar of California to regulate the practice of law under the State Bar Act (Bus. & Prof. Code, § 6000 et seq.), the Rules of Professional Conduct or the California Rules of Court, because resolution of this dispute does not regulate the practice of law. Under the constitutional doctrine of separation of powers, the courts have inherent and primary regulatory power over the practice of law. PERB has no power to regulate the practice of law.

PERB has exclusive jurisdiction over activities arguably protected or prohibited by EERA and MMBA. The Public Defender’s denial of employees’ request for union representation, its attempts to restrict the Association’s ability to designate representatives for its bargaining unit members, and its threats of discipline against employees who requested union representation at investigatory meetings, all fall within the “arguably prohibited” prong of the San Jose test. Employees’ requests for union representation at investigatory interviews and the Association’s designation of representatives for such interviews are rights arguably protected by the MMBA. Moreover, PERB has initial exclusive jurisdiction to determine whether alleged conduct such as refusing to provide information relevant to the Association’s representation duties and unilaterally changing policies within the scope of bargaining violates the duty to bargain in good faith. While the Board does not presume to rule on the scope of the Rules of Professional Conduct, the Business and Professions Code or other regulations concerning the practice of law, neither will the fact that attorneys have obligations under those rules defeat PERB’s jurisdiction to resolve alleged violations of the statutes which PERB administers, including the MMBA. PERB’s assertion of jurisdiction does not interfere with the ability of the Supreme Court of California or the State Bar of California to regulate the practice of law under the State Bar Act (Bus. & Prof. Code, § 6000 et seq.), the Rules of Professional Conduct or the California Rules of Court, because resolution of this dispute does not regulate the practice of law. Under the constitutional doctrine of separation of powers, the courts have inherent and primary regulatory power over the practice of law. PERB has no power to regulate the practice of law.

While the Board does not presume to rule on the scope of the Rules of Professional Conduct, the Business and Professions Code or other regulations concerning the practice of law, neither will the fact that attorneys have obligations under those rules defeat PERB’s jurisdiction to resolve alleged violations of the statutes which PERB administers, including the MMBA. PERB’s assertion of jurisdiction does not interfere with the ability of the Supreme Court of California or the State Bar of California to regulate the practice of law under the State Bar Act (Bus. & Prof. Code, § 6000 et seq.), the Rules of Professional Conduct or the California Rules of Court, because resolution of this dispute does not regulate the practice of law. Under the constitutional doctrine of separation of powers, the courts have inherent and primary regulatory power over the practice of law. PERB has no power to regulate the practice of law.

Publically employed attorneys have rights under the MMBA.

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.

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.

Publically employed attorneys have rights under the MMBA.

A Public Defender may not implement changes in a CBA provision that grants a union the right to choose its representatives without first obtaining the consent of the union, whether the parties have agreed to a “zipper clause” or not. When parties’ past practice conflicts with the wording of their CBA, each party still maintains the right to adhere to and enforce the contractual language of the CBA.

An employer’s refusal to provide a union upon request a physical document relevant to the union’s role as collective bargaining representative is not excused by the employer’s assertion that the information is on the internet, when the employer presents no evidence of what may or may not have been “on the internet” at the time of the request, whether it was responsive to the union’s request, whether it was up to date, or whether it conveyed what the employer intended to convey to the union.

Under exceptionally limited circumstances, an employer may be excused from negotiating on the basis of true emergency that provides a basis for claiming that a business necessity excused a unilateral change. However, to establish “operational necessity” or “business necessity” as a defense to a unilateral change, the employer must establish an actual financial or other emergency that leaves no alternative to the action taken and allows no time for meaningful negotiations before taking action. The alleged necessity must be the unavoidable result of a sudden change in circumstance beyond the employer’s control. The Public Defender’s alleged “legitimate business reasons” for unilaterally constraining a union’s authority to choose its representatives for investigatory interviews do not rise to the required level of an unforeseen and unavoidable result due to a sudden change in circumstance beyond the employer’s control. The Public Defender knew of the relevant circumstances two years before it unilaterally implemented its new and expanded policy, and the Public Defender cites no evidence of any exigent circumstances that could justify its unilateral action.

When parties’ past practice conflicts with the wording of their CBA, each party still maintains the right to adhere to and enforce the contractual language of the CBA.