Decision 2598S – * * * JUDICIAL APPEAL PENDING * * * State of California (Department of Corrections and Rehabilitation)

SA-CE-2047-S

Decision Date: November 26, 2018

Decision Type: PERB Decision

Description:  State of California (Department of Corrections & Rehabilitation) (CDCR) appealed from an ALJ’s proposed decision finding that CDCR violated the Ralph C. Dills Act (Dills Act), sections 3519 (a) and (b), by interfering with the right of an employee to be represented during an unclothed body search, and with the California Association of Psychiatric Technicians’ (CAPT) right to represent its member during the search.

Disposition:  The Board affirmed the ALJ’s conclusion that an invasive search of an employee’s person, including an unclothed body search, gives rise to the right to union representation.  The Board further held that if an employer rejects an employee’s request for representation, the employee cannot be found to have voluntarily waived his/her right to representation.

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Perc Vol: 43
Perc Index: 78

Decision Headnotes

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

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.)

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

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.)

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

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.)

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

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.)

408.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS
408.04000 – Highly Unusual Circumstances

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.)

408.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS
408.05000 – Other Circumstances

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.)

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.01000 – In General

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

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.02000 – Union’s Waiver of Employee or Organizational Rights

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.)

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.04000 – By Acquiescence/Conduct

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.)