Decision 2830S – State of California (State Water Resources Control Board)

LA-CE-740-S

Decision Date: August 10, 2022

Decision Type: PERB Decision

Description: Professional Engineers in California Government (PECG) asserted that the State of California, State Water Resources Control Board (Water Board) refused to provide PECG with information about alleged wrongdoing by a PECG-represented Water Board employee. PECG claimed that, without this information, it was unable to meaningfully represent the employee in an investigatory interview. The complaint alleged that the Water Board thereby failed to bargain in good faith and interfered with union and employee rights protected under the Dills Act. The ALJ found that the Water Board established a statute of limitations defense to PECG’s bad faith bargaining claim. The ALJ then dismissed the entire complaint, treating the interference claims as purely derivative of the bad faith bargaining claim. PECG excepted to the proposed decision.

Disposition: The Board determined that the ALJ should have analyzed the interference claims as independent unfair practice allegations. In cases in which a charging party accuses an employer of providing too little information to allow meaningful representation, interference with representational rights is independent, as it can be established even in the absence of bad faith bargaining or any other violation. The Board therefore reversed the proposed decision in part and remanded to the ALJ to determine whether the Water Board interfered with protected rights by providing too little information to allow meaningful representation at an investigatory interview.

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Perc Vol: 47
Perc Index: 42

Decision Headnotes

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

A union has the right to represent an employee it exclusively represents in an investigatory interview, and the employee has a corresponding right to union representation. (Contra Costa Community College District (2019) PERB Decision No. 2652, p. 7 (Contra Costa); Capistrano Unified School District (2015) PERB Decision No. 2440, pp. 10-14; Sonoma County Superior Court (2015) PERB Decision No. 2409-C, pp. 13-14.) Under the Dills Act and the other labor relations statutes PERB enforces, an employer interferes with union and employee representational rights if it does not allow meaningful representation during an investigative interview. (Gov. Code, § 3519, subds. (a) & (b); Contra Costa, supra, PERB Decision No. 2652, p. 26, citing State of California (Department of Corrections) (1998) PERB Decision No. 1297-S, adopting proposed decision at p. 12.) (p. 8.)

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

As part of protected representation rights, the union and the represented employee have the right to receive information about the nature of any alleged wrongdoing sufficiently in advance of the investigative interview to allow for consultation before, and thus meaningful representation during, the interview. (Contra Costa Community College District (2019) PERB Decision No. 2652, pp. 26-30.) The employer must provide more than merely a vague summary such as “a vehicle accident you were involved in on [a specific date],” or “insubordination and/or sabotaging of the [employer’s] mission.” (Id. at p. 27.) After receiving sufficient information, the union and employee have the right to consult for an amount of time that is reasonable given the nature of the allegations and the information provided. (Id. at pp. 29-30.) Assessing such issues is typically fact intensive. (Id. at p. 30.) (pp. 8-9.)

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

In Contra Costa Community College District (2019) PERB Decision No. 2652, the Board specifically noted that PERB precedent protects representational rights to a greater extent than National Labor Relations Board precedent, and that it disagrees with Pacific Telephone and Telegraph Co. (1982) 262 NLRB 1048 to the extent it arguably allows an employer to provide very general notice of alleged misconduct. (Id., p. 27.) Instead, “[PERB’s] touchstone is what is necessary to allow meaningful representation.” (Ibid.) (p. 9.)

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

If a charge or complaint alleges interference based upon the same conduct giving rise to another claim, the interference claim is independent if it can be established without the other claim being established. (County of San Joaquin (2021) PERB Decision No. 2761-M, p. 18 [judicial appeal pending].) In contrast, if it is impossible to establish interference without establishing the other claim, then the interference claim is a derivative one. (Ibid.; County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 9.) In cases in which a charging party accuses an employer of providing too little information to allow meaningful representation, interference with representational rights is independent, as it can be established even in the absence of bad faith bargaining or any other violation. (p. 10.)

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

Where the union requests sufficient information to allow meaningful representation at an investigatory interview, bad faith bargaining and interference can be alleged as independent claims, because proving one does not necessarily prove the other. For instance, because an investigatory interview can occur with minimal lead time (Contra Costa Community College District (2019) PERB Decision No. 2652, p. 31, fn. 19), there may be no information request until just before or even after the interview begins, and such a request may be in the form of an employee’s question, e.g., “what are the accusations against me?” Failing to answer that question sufficiently can interfere with protected rights without violating the obligation to bargain in good faith. In other cases, an employer may schedule an investigatory interview on a slower track. In such an instance, an employer may violate its duty to meet and confer in good faith if it refuses, without an adequate basis, a union’s information request. And while failure to provide information always constitutes at least derivative interference with protected rights, it can also constitute an independent interference violation, for instance if it leaves a union and employee without sufficient information to allow meaningful representation at an investigatory interview. (p. 10.)

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

In Contra Costa Community College District (2019) PERB Decision No. 2652 (Contra Costa), the union did not allege that the employer interfered with representational rights by refusing to provide sufficient information about the accusations to allow meaningful representation. (Id. at p. 30.) Rather, its only claim was for failure to meet and confer in good faith based on the employer’s refusal to provide copies of written complaints against two accused employees. (Ibid.) The Board found no right to obtain such complaints at the investigatory interview stage, though it noted that after the investigatory interview stage and in advance of any pre-deprivation hearing pursuant to Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, the employer must normally work with the union on any necessary redactions or other privacy accommodations and normally must provide such records. (Contra Costa, supra, pp. 9, 17 & 25.) (p. 11.)

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.01000 – In General

In addition to prohibiting interference with protected rights, the Dills Act also prohibits an employer from failing or refusing to meet and confer in good faith. (Gov, Code, § 3519, subd. (c).) Pursuant to this duty, an employer must normally provide an exclusive representative with “all information that is necessary and relevant to its right to represent bargaining unit employees regarding mandatory subjects of bargaining.” (City and County of San Francisco (2020) PERB Decision No. 2698-M, p. 6.) Because discipline is a mandatory subject of bargaining, information pertaining to actual or potential discipline is presumptively relevant, even if the only contemplated disciplinary forum is extra-contractual. (Contra Costa Community College District (2019) PERB Decision No. 2652, p. 9.) Thus, while a charging party can allege a state employer violated Dills Act section 3519, subdivisions (a) and (b) by denying a request for sufficient information to allow meaningful representation at an investigatory interview, a charging party can independently allege the employer violated its duty to meet and confer in good faith. (pp. 9-10.)

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.01000 – In General

In Contra Costa Community College District (2019) PERB Decision No. 2652 (Contra Costa), the union did not allege that the employer interfered with representational rights by refusing to provide sufficient information about the accusations to allow meaningful representation. (Id. at p. 30.) Rather, its only claim was for failure to meet and confer in good faith based on the employer’s refusal to provide copies of written complaints against two accused employees. (Ibid.) The Board found no right to obtain such complaints at the investigatory interview stage, though it noted that after the investigatory interview stage and in advance of any pre-deprivation hearing pursuant to Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, the employer must normally work with the union on any necessary redactions or other privacy accommodations and normally must provide such records. (Contra Costa, supra, pp. 9, 17 & 25.) (p. 11.)

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.12000 – Concurrent or Derivative Violations

If a charge or complaint alleges interference based upon the same conduct giving rise to another claim, the interference claim is independent if it can be established without the other claim being established. (County of San Joaquin (2021) PERB Decision No. 2761-M, p. 18 [judicial appeal pending].) In contrast, if it is impossible to establish interference without establishing the other claim, then the interference claim is a derivative one. (Ibid.; County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 9.) In cases in which a charging party accuses an employer of providing too little information to allow meaningful representation, interference with representational rights is independent, as it can be established even in the absence of bad faith bargaining or any other violation. (p. 10.)

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.12000 – Concurrent or Derivative Violations

Complaint alleges independent interference violation unless liability for interference cannot be established independently of another violation. (p. 13.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

Absent good cause, the Board itself will not consider issues and arguments not raised in the statement of exceptions. (See PERB Reg. 32300, subd. (e).) (p. 2, fn. 2.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

When resolving exceptions to a proposed decision, we apply a de novo standard of review. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 5.) (p. 8.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.03000 – Remand for Further Hearing; Remand to General Counsel

The ALJ found that the state employer established a statute of limitations defense to the union’s bad faith bargaining claim. The ALJ then dismissed the entire complaint, treating the interference claims as purely derivative. PERB reversed and remanded for consideration of the independent interference allegations. On remand, the Board directed the ALJ to consider witness credibility, among other relevant record components, in determining whether the state employer provided the union and employee with the opportunity for meaningful representation during the employee’s investigative interview. (p. 15.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.04000 – Unalleged Violations

It was appropriate to consider independent claims that the state employer interfered with representational rights by failing to allow meaningful representation at an investigatory interview for two reasons. First, the complaint adequately alleged both bad faith bargaining and independent interference claims. In the alternative, PERB would still consider those interference claims under the unalleged violation doctrine given that: (1) the state employer had adequate notice and opportunity to defend against these claims based on the union’s opening statement; (2) the acts or omissions at issue were intimately related to the subject matter of the complaint and were part of the same course of conduct; (3) the parties fully litigated the allegations; and (4) the parties had the opportunity to examine and cross-examine witnesses regarding the acts or omissions at issue. (County of San Joaquin (2021) PERB Decision No. 2761-M, p. 22 [judicial appeal pending].) (pp. 13-14.)