Decision 2598S – State of California (Department of Corrections and Rehabilitation) * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S

* * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S. * * *

An investigatory or disciplinary interview falls within the broad definition of “all matters of employer-employee relations,” and section 3515 therefore guarantees state employees representational rights that are at least as broad as those afforded private-sector employees under NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251 (Weingarten) and other federal authorities interpreting section 7 of the National Labor Relations Act (NLRA). Not all meetings with management must conform to the requirements of Weingarten before the right to representation attaches. (pp. 7-8.)

* * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S. * * *

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. (Capistrano Unified School District (2015) PERB Decision No. 2440, p. 20 [citing County of Santa Clara, supra, PERB Decision No. 2267-M, adopting proposed decision at pp. 19-20].) (p. 11.)

* * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S, where, on remand from the Court of Appeal, the Board modified its remedial order to clarify that it applies only in circumstances in which CDCR and its representatives either constitute the appointing authority or are acting as an employer and the employee reasonably fears discipline. * * *

An invasive search of an employee’s person, including an unclothed body search, is the type of investigatory meeting which gives rise to the right of union representation. The right to union representation attaches whenever an employer demands that an employee submit to an invasive body search, or subjects an employee to such a search. (p. 14.) An invasive body search is fundamentally confrontational. (p. 12.) As in a drug testing situation, an invasive body search is such an unusual and stressful situation that an employee is likely to volunteer information in an effort at self-defense, and therefore has a right to union representation even if the employer does not intend to ask questions. The right to union representation therefore attaches before an employee is invasively searched, just as it attaches before an employee takes a drug or alcohol test. (p. 11.)

* * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S. * * *

If an employer rejects an employee’s request for representation, she cannot be found to have voluntarily waived her right to representation. (p. 15.) Employer which continued the interrogation after employee requested representation, effectively denied the request, thereby committing an unfair practice. (p. 16.)

* * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S, where, on remand from the Court of Appeal, the Board modified its remedial order to clarify that it applies only in circumstances in which CDCR and its representatives either constitute the appointing authority or are acting as an employer and the employee reasonably fears discipline. * * *

An invasive search of an employee’s person, including an unclothed body search, is the type of investigatory meeting which gives rise to the right of union representation. The right to union representation attaches whenever an employer demands that an employee submit to an invasive body search, or subjects an employee to such a search. (p. 14.) An invasive body search is fundamentally confrontational. (p. 12.) As in a drug testing situation, an invasive body search is such an unusual and stressful situation that an employee is likely to volunteer information in an effort at self-defense, and therefore has a right to union representation even if the employer does not intend to ask questions. The right to union representation therefore attaches before an employee is invasively searched, just as it attaches before an employee takes a drug or alcohol test. (p. 11.)

* * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S, where, on remand from the Court of Appeal, the Board modified its remedial order to clarify that it applies only in circumstances in which CDCR and its representatives either constitute the appointing authority or are acting as an employer and the employee reasonably fears discipline. * * *

An invasive search of an employee’s person, including an unclothed body search, is the type of investigatory meeting which gives rise to the right of union representation. The right to union representation attaches whenever an employer demands that an employee submit to an invasive body search, or subjects an employee to such a search. (p. 14.) An invasive body search is fundamentally confrontational. (p. 12.) As in a drug testing situation, an invasive body search is such an unusual and stressful situation that an employee is likely to volunteer information in an effort at self-defense, and therefore has a right to union representation even if the employer does not intend to ask questions. The right to union representation therefore attaches before an employee is invasively searched, just as it attaches before an employee takes a drug or alcohol test. (p. 11.)

* * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S. * * *

If an employer rejects an employee’s request for representation, she cannot be found to have voluntarily waived her right to representation. (p. 15.)

* * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S. * * *

An employer rule purporting to waive an employee’s Weingarten rights with respect to searches conducted on the employer’s premises would be ineffective and would constitute an unfair practice. (p. 14, fn. 12.)

* * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S. * * *

An employee does not waive her right to union representation by signing an acknowledgement of the employer’s rule that she is subject to search at any time while on the employer’s grounds. (p. 14.)