Decision 2660S – * * * JUDICIAL APPEAL PENDING * * * State of California (Office of the Inspector General)

SA-CE-2074-S

Decision Date: August 15, 2019

Decision Type: PERB Decision

Description:  Respondent State of California (Office of the Inspector General) (OIG) excepted to a proposed decision finding that it violated the Ralph C. Dills Act when it denied certain Department of Corrections and Rehabilitation employees their right to representation by their exclusive representative, California Correctional Peace Officers Association, during interviews OIG conducted pursuant to a Senate Rules Committee-authorized review of safety practices at a state prison.

Disposition:  The Board affirmed all parts of the proposed decision, except the ALJ’s finding that OIG’s statements in its 2015 Special Review report interfered with employee rights.

 

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Decision Headnotes

201.00000 – PARTIES; DEFINITIONS; WHO IS AN EMPLOYER?
201.01000 – In General

The Dills Act declares as its purpose the improvement of employer-employee relations through recognition of “the right of state employees to join organizations of their own choosing and be represented by those organizations in their employment relations with the state.” However, the Act does not expressly define “state” and indeed it uses three different terms to refer to state management entities: “state employer,” “employer,” and “state.” Although by appearances similar, these terms address separate subjects and are not synonymous. (p. 14.)

201.00000 – PARTIES; DEFINITIONS; WHO IS AN EMPLOYER?
201.01000 – In General

Section 3519 of the Dills Act makes it unlawful for the “state” to “interfere with, restrain, or coerce employees because of their exercise of rights guaranteed” to them under the Act and to “[d]eny to employee organizations rights guaranteed to them” under the Act. Although the Dills Act does not define the term “state” in this context, the Board has noted that “state” as used in section 3519 is broader than “state employer” in section 3513, subdivision (j). (p. 15.)

1407.00000 – GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION
1407.01000 – General Principles

The fundamental task in statutory construction is ascertaining the intent of the Legislature so as to effectuate the purpose of the law. The Board first examines the statutory language, giving words their usual and ordinary meaning. If the terms of the statute are unambiguous, we assume the Legislature meant what it said; the plain meaning of the language controls and there is nothing to interpret or construe. “The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.” [Citation.] If the statutory terms are ambiguous, then we may resort to extrinsic sources, including the purpose of the statute and the legislative history. (pp. 15-16.)

201.00000 – PARTIES; DEFINITIONS; WHO IS AN EMPLOYER?
201.01000 – In General

A broad view of Dills Act section 3519 is consistent with the plain language of the statute. Unlike Dills Act section 3513, subdivision (j), section 3519 refers only to the “state” without either qualifying or defining the term. The Board therefore interprets “state” as meaning exactly what it says—the state itself. (pp. 16-17.)

201.00000 – PARTIES; DEFINITIONS; WHO IS AN EMPLOYER?
201.01000 – In General

A state agency is subject to liability under Dills Act section 3519, subdivisions (a) and (b), if it is the appointing authority or when it acts as an employer. (p. 17.)

201.00000 – PARTIES; DEFINITIONS; WHO IS AN EMPLOYER?
201.01000 – In General

The Board found that the Office of the Inspector General (OIG) was acting as the employer of correctional officers when OIG interviewed them pursuant to a Senate Rules Committee-authorized review of the practices at a state prison. The subject-matter of the interviews—the officers’ observations during their work at the prison—were work-related. Although OIG did not conduct the interviews at the request of the Department of Corrections and Rehabilitation (CDCR), CDCR management cooperated with and supported the interviews. OIG coordinated with local prison management to have the officers made available for the interviews, and directed officers to report at a specified time and place for the interviews. OIG held the interviews at the officers’ job sites, before or during the officers’ on-duty time. Moreover, some OIG agents apparently recognized the validity of the officers’ requests for representation and permitted their union representatives to participate in and record the interviews. (p. 20.)

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

Based on the facts of this case, the Office of the Inspector General (OIG) had a duty not to interfere with the protected rights of correctional officers or their exclusive representative.
The subject-matter of the interviews—the officers’ observations during their work at the prison—were work-related. Although OIG did not conduct the interviews at the request of the Department of Corrections and Rehabilitation (CDCR), CDCR management cooperated with and supported the interviews. OIG coordinated with local prison management to have the officers made available for the interviews, and directed officers to report at a specified time and place for the interviews. OIG held the interviews at the officers’ job sites, before or during the officers’ on-duty time. Moreover, some OIG agents apparently recognized the validity of the officers’ requests for representation and permitted their union representatives to participate in and record the interviews. (p. 20.)

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 Dills Act section 3515 therefore grants 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 and other federal authorities interpreting section 7 of the National Labor Relations Act. (pp. 24-25.)

408.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS
408.01000 – In General

Both PERB and California courts recognize that, in several respects, the language of our public sector bargaining laws is “considerably broader” than the federal law on which NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251, 256 rests. (p. 25.)

408.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS
408.01000 – In General

To prove a violation of the right to representation in an investigatory or disciplinary interview, the charging party must establish that: (1) the employee or representative invoked the right to representation on behalf of the employee; (2) for an investigatory meeting; (3) which the employee reasonably believed might result in disciplinary action; and (4) the employer denied the request. Because California law affords employee organizations a statutory right to represent employees in their employment relations, the same elements can be used to demonstrate that an employer violated both an employee’s right to be represented and the union’s right to represent the employee. (p. 25.)

408.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS
408.01000 – In General

Regardless of how an employer characterizes an interview, if an interview serves to elicit incriminating or merely negative evidence with the potential to impact the employment relationship, then it is investigatory for purposes of the Dills Act. Context is the guiding question. (p. 26.)

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

The following facts demonstrated the investigatory nature of the Office of the Inspector General’s (OIG) interviews of correctional officers: OIG coordinated with local prison management to have the officers made available for the interviews, usually through issuance of direct orders for the officers to report at a specified time and place. OIG went so far as to ask local wardens to direct officers to attend and participate in the interviews. It held the interviews at the officers’ job sites, in office spaces that it arranged for with management, rather than at a neutral or offsite location. OIG gave the officers little to no advance notice of the interviews or their subject matter, and while the deputy inspector generals told the officers the interviews were voluntary, the subpoenas clearly indicated otherwise. Nor did the officers have time to object to the subpoenas since the deputy inspector general proceeded with the interviews on the spot. Contrary to OIG’s assertion, not all of the officers interviewed understood the different functions of the Department of Corrections and Rehabilitation (CDCR) and OIG, or even that OIG was distinct from CDCR. Given OIG and the union’s acrimonious history, as evidenced by some of OIG’s statements from the 2015 Special Review Report, the officers had particular reason to be vigilant when confronted with a deputy inspector general with only a minimum of notice and no background information whatsoever. In this context, the officers could have reasonably feared that they or their colleagues faced punitive action as a result of the interviews, particularly because the interviews covered topics which exposed officers to potential for discipline for failure to report their own or others’ misconduct. The Board found a reasonable basis for such a belief notwithstanding the deputy inspector generals’ caveats that the interviews were part of a review as opposed to an investigation and therefore would not serve as the basis for any discipline. (p. 26.)

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

In California, a public employee is entitled to representational rights not only when an employee reasonably fears discipline, but also in other “highly unusual” circumstances that are not necessarily disciplinary. (p. 27.)

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

Correctional officers had a right to representation due to the highly unusual circumstances of the Office of the Inspector General’s (OIG) interviews. Several officers declined to participate voluntarily in the interviews, leading OIG to compel their participation by serving each of them with a subpoena. OIG convened the meetings at officers’ jobsites, but in management or other private offices away from the employees’ ordinary worksites. Although OIG investigators are not in the same chain of command as officers, OIG’s role in the interviews lent them an aura of formality which predictably aroused the officers’ anxieties and suspicions. As one officer testified, formal interviews are a rare occurrence at the Department of Corrections and Rehabilitation. Another officer understood OIG’s function as investigating allegations of wrongdoing—even if his belief was unfounded given OIG’s limited statutory mandate—it informed the officer’s perspective that OIG’s involvement in an interview could portend a finding of misconduct. (pp. 29-30.)

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

Under the circumstances—little to no advance notice of the interviews, no forewarning of the subject matter, and inadequate advisement as to how the Office of the Inspector General (OIG) would use the content of the interviews, all against the background of a historically tense relationship between the union and OIG—it was reasonable for the correctional officers who were summoned to interview to assume that no good could come from being singled out by OIG for a private, compulsory interview that, by all outward indications, was a formal investigation, regardless of OIG’s intention. To the officers, the interviews were indistinguishable from a formal investigation. (p. 30.)

1405.00000 – GENERAL LEGAL PRINCIPLES; COLLATERAL ESTOPPEL; RES JUDICATA
1405.01000 – In General

Res judicata gives conclusive effect to a former judgment in subsequent litigation involving the same controversy where the following elements are met: (1) a claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. (p. 31.)

1405.00000 – GENERAL LEGAL PRINCIPLES; COLLATERAL ESTOPPEL; RES JUDICATA
1405.01000 – In General

Court of Appeal decision did not have preclusive effect because the court analyzed the correctional officers’ right to representation only under NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251, 256; it did not analyze their rights under the Dills Act and the more expansive highly unusual circumstances test articulated in Redwoods College Dist. v. Public Employment Relations Bd. (1984) 159 Cal.App.3d 617. Accordingly, even if res judicata did apply, PERB would still be empowered to determine whether the officers were entitled to a representative under the Redwoods test. (p. 31.)

1405.00000 – GENERAL LEGAL PRINCIPLES; COLLATERAL ESTOPPEL; RES JUDICATA
1405.01000 – In General

Court of Appeal decision involving an anti-SLAPP motion in a related state court action did not collaterally estop the Board from deciding whether correctional officers were entitled to representation under NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251, 256. In anti-SLAPP motions, the factual record is inherently limited because the filing of a notice of motion immediately suspends all discovery in the action, absent a court order. Accordingly, the union could not have fully litigated the Weingarten issue to the extent it did before PERB. (p. 32.)

102.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION
102.01000 – In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts

Section 3514.5 of the Dills Act states that the “initial determination as to whether the charges of unfair practices are justified, and, if so, what remedy is necessary to effectuate the purposes of this chapter, shall be a matter within the exclusive jurisdiction of the board.” The California Supreme Court has interpreted this rule to mean that PERB has “exclusive jurisdiction over activities arguably protected or prohibited by” the Act. [Citation.] Therefore, application of the doctrine of res judicata in this instance would be incongruous with the Legislature’s express intent to commit the questions posed in this unfair practice charge to PERB’s initial and exclusive jurisdiction. (p. 33, fn. 19.)

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.06000 – Free Speech

An employer’s expression of any views, argument, or opinion generally does not constitute or serve as evidence of an unfair labor practice if such expression contains no threat of reprisal or force or promise of benefit. This protection extends to an employer’s interpretation of the law provided that it is not such a misrepresentation of the law so as to constitute an illegal threat. (p. 34.)

1000.00000 – SCOPE OF REPRESENTATION
1000.01000 – In General; Test for Subjects Not Specifically Enumerated 100.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; OPERATION OF EERA, DILLS (SEERA), HEERA
100.01000 – In General

The Dills Act declares as its purpose the improvement of employer-employee relations through recognition of “the right of state employees to join organizations of their own choosing and be represented by those organizations in their employment relations with the state.” However, the Act does not expressly define “state” and indeed it uses three different terms to refer to state management entities: “state employer,” “employer,” and “state.” Although by appearances similar, these terms address separate subjects and are not synonymous. (p. 14.)

100.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; OPERATION OF EERA, DILLS (SEERA), HEERA
100.01000 – In General

Section 3519 of the Dills Act makes it unlawful for the “state” to “interfere with, restrain, or coerce employees because of their exercise of rights guaranteed” to them under the Act and to “[d]eny to employee organizations rights guaranteed to them” under the Act. Although the Dills Act does not define the term “state” in this context, the Board has noted that “state” as used in section 3519 is broader than “state employer” in section 3513, subdivision (j). (p. 15.)

100.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; OPERATION OF EERA, DILLS (SEERA), HEERA
100.01000 – In General

A broad view of Dills Act section 3519 is consistent with the plain language of the statute. Unlike Dills Act section 3513, subdivision (j), section 3519 refers only to the “state” without either qualifying or defining the term. The Board therefore interprets “state” as meaning exactly what it says—the state itself. (pp. 16-17.)