Decision 2440E – Capistrano Unified School District

The federal Weingarten doctrine and other non-California authorities must be harmonized with the language and purposes of the PERB administered statutes. Where California statutes provide for broader rights not found in the federal private sector law, the Board must follow the intent of the Legislature to effectuate the purposes of the statute. Where PERB chooses to follow federal authority on an issue, it is not automatically bound by subsequent developments in federal law on that point. The touchstone for whether private-sector decisional law or any other authority is applicable to the PERB-administered statutes is whether the underlying reasoning is consistent with the language and policies of the California statutes. It was not reversible error for the ALJ to rely on federal authority that is no longer controlling federal law because the underlying reasoning was consistent with the language and purposes of EERA and because the ALJ also relied on controlling PERB authority for the same point of law. Although California has generally imbibed the federal policy, as it applies to the scope of representation under the Weingarten decision, the representational rights of public-sector employees in California, and of employee organizations to represent them, have statutory bases and judicial approval which are independent from, and broader than, the "mutual aid or protection" language of section 7 of the NLRA on which Weingarten was decided. It was not reversible error for ALJ to rely on some federal authorities which have since been disavowed, because the underlying reasoning of those authorities was consistent with the language, policies and purposes of EERA and because the ALJ also relied on controlling PERB authority for the same point of law.

EERA section 3543, subdivision (a), guarantees public school employees representational rights that are at the least as broad as those afforded private sector employees under NLRB v Weingarten, Inc. (1975) 420 U.S. 251. Because supervisor questioned employee about her whether she understood his instructions and intended to follow them, where employee had previously refused to do so, meeting was “investigative” within the meaning of Weingarten and federal authorities and it was unnecessary for PERB to determine whether meeting constituted “highly unusual circumstances” within the meaning of broader California law.

The language of EERA is considerably broader than the federal law on which Weingarten rests. It guarantees employees a right to representation in all matters of employee-employer relations and not all meetings with management must conform to the strictures of Weingarten before the right attach. Where PERB chooses to follow federal authority on an issue, it is not automatically bound by subsequent developments in federal law on that point. The touchstone for whether private-sector decisional law or any other authority is applicable to the PERB-administered statutes is whether the underlying reasoning is consistent with the language and policies of the California statutes.

EERA section 3543.1, subdivision (b), provides an independent right to employee organizations, not found in the federal law, to represent their members in their employment relations with the public school employer. When applying the Weingarten decision and other non-California authorities, they must be harmonized with the language and purposes of the PERB administered statutes. Where California statutes provide for broader rights not found in the federal law, the Board must follow the intent of the Legislature to effectuate the purposes of the statute. While an employee must make an affirmative request for representation, it does not need to be made directly to the employer or to be phrased in a particular form. No magic words or specific conduct is required so long as the employer has reasonable notice of the employee’s desire for representation. Employee, who stated that, “If this [meeting] is going to be disciplinary,” she wanted representation, effectively communicated her desire for representation. To insist that employees refrain from using grammatically conditional language when communicating their right for representation seems unnecessarily formulaic and contrary to the purpose EERA. Employees may refuse to attend investigatory or disciplinary interviews or refuse to respond to questions without fear of discipline or reprisal from the employer, if their representational rights are denied. Where employee effectively communicated her desire for representation to supervisor, in the absence of evidence that she had reconsidered or waived her right to representation, her subsequent refusal to respond to supervisor’s questioning was protected and not a proper basis for discipline. Where an employer bases disciplinary action in part on protected conduct, rather than determine what portion is not in violation of the statute, Board ordered rescission and expungement of the entire penalty. Notwithstanding supervisor’s assurance that he did not intend for unannounced meeting with employee to result in discipline, because his questioning was designed to determine whether employee understood his instructions, and whether she intended to comply with them, after she had previously informed supervisor that she “was not going to do this," employee’s request for representation was based on reasonable belief that discipline might ensue. Regardless of how a meeting may be characterized or envisioned by management, if it serves to elicit incriminating evidence with the potential to impact the employment relationship, then it is "investigatory" for the purposes of the representational rights guaranteed by the PERB-administered statutes. The reasonableness of an employee’s belief that discipline might ensue, and thus of whether the employee was entitled to representation, will turn on the totality of circumstances present at the time, which may include the employee's history and previous communications with management on matters related to the subject of the interview. Where employee had history of acrimonious relationship with supervisor and recent disagreements over the wisdom and practicality of supervisor’s instructions, she could reasonably anticipate that an unannounced meeting called by the supervisor would result in discipline and that representation was necessary. The right to representation is designed to protect employees not only from unwitting admissions or information they may disclose during an investigation, but also from employee conduct in circumstances where a representative might have prevented the employee from losing his or her temper, becoming insubordinate, lying, or engaging in other misconduct in the course of an investigation, and thereby giving the employer additional or alternative grounds for discipline. The right to representation protects employees from not only their admissions as a result of an unlawful interview but also from their conduct, including misconduct, occurring as the result of an unlawful interview. Employee whose misconduct was in part a result of an interview held under unlawful conditions may be entitled to make-whole relief. Because employer’s written reprimand referenced both protected and unprotected conduct, rather than re-write the employer’s reprimand, the Board ordered rescission and expungement of the entire document. The right to representation is not dependent on whether an employer’s questions or the employee’s responses are related to the employer’s reasons for calling a meeting or to the grounds provided for subsequent disciplinary action. History of acrimonious relations, recent disagreements and other circumstances caused employee reasonably to fear discipline, regardless of whether supervisor subjectively intended for meeting to result in or justify disciplinary action. An employer’s assurance that discipline is not contemplated is not determinative of whether a meeting is “investigative” or “disciplinary” and thus whether a right to representation attaches.

Because supervisor questioned employee about her whether she understood his instructions and intended to follow them, where employee had previously refused to do so, meeting was “investigative” within the meaning of Weingarten and federal authorities and it was unnecessary for PERB to determine whether meeting constituted “highly unusual circumstances” within the meaning of broader California law.

The protections afforded by EERA should extend to circumstances in which a representative could have prevented an employee from losing his or her temper, becoming insubordinate, lying, or engaging in other misconduct in the course of the employer’s investigation, and thereby giving the employer additional or alternative grounds for discipline. The right to representation protects employees from not only their admissions as a result of an unlawful interview but from their conduct, including misconduct, occurring as a result of an unlawful interview. Employer who refuses employee’s request for representation with assurance that no discipline will ensue may not then impose discipline as a result of the interview. Protected conduct does not cease to be protected simply because the employer regards the employee as insubordinate. Where employee effectively communicated her desire for representation to supervisor, in the absence of evidence that she had reconsidered or waived her right to representation, her subsequent refusal to respond to supervisor’s questioning was protected and not a proper basis for discipline.

The representational rights of employees and employee organizations under EERA are concurrent, rather than derivative. They exist independently of one another, even when analyzed under the same test or are alleged to have been violated by the same conduct.

Employer’s statement in written reprimand to employee that supervisor had convened meeting, in part, to “monitor the implementation of the directives given the day before,” does not serve as probative evidence of whether employee reasonably believed discipline might ensue, but may be considered as evidence of what employer had intended to accomplish by its agent's unannounced meeting with employee, and thus as an admission that the meeting was "investigative" in nature. (Evid. Code, §§ 1221, 1222, 1271, 1280.)

Make-whole relief, including expungement of discipline, may be appropriate for an employee who has been disciplined for misconduct occurring as a result of an unlawful investigatory interview, where a representative may have prevented or at least mitigated the employee’s misconduct.

Make-whole relief, including expungement of discipline, may be appropriate for an employee who has been disciplined for misconduct occurring as a result of an unlawful investigatory interview, where a representative may have prevented or at least mitigated the employee’s misconduct.

Make-whole relief, including expungement of discipline, may be appropriate for an employee who has been disciplined for misconduct occurring as a result of an unlawful investigatory interview, where a representative may have prevented or at least mitigated the employee’s misconduct. Because employer’s written reprimand referenced both protected and unprotected conduct, rather than re-write the employer’s reprimand, the Board ordered rescission and expungement of the entire document.

EERA section 3543.1, subdivision (b), provides an independent right to employee organizations, not found in the federal law, to represent their members in their employment relations with the public school employer. When applying the Weingarten decision and other non-California authorities, they must be harmonized with the language and purposes of the PERB administered statutes. Where California statutes provide for broader rights not found in the federal law, the Board must follow the intent of the Legislature to effectuate the purposes of the statute.