Decision 2599E – San Bernardino Community College District
LA-CE-6037-E
Decision Date: December 5, 2018
Decision Type: PERB Decision
Description: The ALJ found that the employer violated EERA by: (1) denying an employee’s request for union representation in an investigatory interview; and (2) unilaterally implementing a policy of using data collected by GPS devices to assess employee misconduct. The employer filed exceptions.
Disposition: The Board affirmed the proposed decision. It held that the employer continued the investigatory interview after the request for representation by demanding that the employer complete a written statement regarding the matter under investigation. It also held that the use of GPS to monitor employees is within the scope of representation.
Perc Vol: 43
Perc Index: 85
Decision Headnotes
300.01000 – In General
The refusal to obey a rule or directive that unlawfully infringes on employee or union rights is generally protected.
408.01000 – In General
An employer violates an employee’s right to union representation when it discontinues oral questioning following the employee’s request for representation, but directs the employee to prepare a written statement concerning the matter under investigation.
408.01000 – In General
Faced with a valid request for representation in an investigatory interview, an employer must accede to the request, give the employee the option of continuing without representation, or discontinue the interview, regardless of whether the employer is seeking new information or merely to confirm information previously provided by the employee.
408.01000 – In General
In order to challenge denial of Weingarten rights, employee was not required to disobey an unlawful directive to proceed without representation.
408.03000 – Investigatory Interviews
An employer violates an employee’s right to union representation when it discontinues oral questioning following the employee’s request for representation, but directs the employee to prepare a written statement concerning the matter under investigation.
408.03000 – Investigatory Interviews
Faced with a valid request for representation in an investigatory interview, an employer must accede to the request, give the employee the option of continuing without representation, or discontinue the interview, regardless of whether the employer is seeking new information or merely to confirm information previously provided by the employee.
408.03000 – Investigatory Interviews
In order to challenge denial of Weingarten rights, employee was not required to disobey an unlawful directive to proceed without representation.
602.05000 – Impact and Extent
By defending its conduct as authorized by the management rights clause of the collective bargaining agreement, employer demonstrates a sufficiently generalized effect or continuing impact to qualify as a unilateral change.
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
Evidence failed to establish a contractual waiver of the right to bargain where it was not established that the management rights clause was in effect at the time of the unilateral change.
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
Contractual waiver of the right to bargain must be clear and unmistakable and reflect a conscious abandonment of the right to bargain; a generally worded management rights clause does not suffice.
1000.01000 – In General; Test for Subjects Not Specifically Enumerated
Anaheim Union High School District (1981) PERB Decision No. 177, not Claremont Police Officers Association v. City of Claremont (2006) 39 Cal.4th 623, supplies the test for subjects not specifically enumerated as within scope under EERA.
1000.02045 – Evaluations
GPS surveillance of employees is within the scope of representation, as it is a type of information that may be utilized in evaluating and disciplining employees.