Decision 2830Sa – State of California (State Water Resources Control Board)
LA-CE-740-S
Decision Date: May 2, 2023
Decision Type: PERB Decision
Description: In an earlier decision in this case, State of California (State Water Resources Control Board) (2022) PERB Decision No. 2830-S, the Board had partially reversed a proposed decision and remanded to the ALJ to consider an unresolved issue: whether Respondent State of California (State Water Resources Control Board) interfered with rights protected by the Dills Act by failing to provide Professional Engineers in California Government (PECG) with sufficient information for it to meaningfully represent a Water Board employee in an investigatory interview. Following remand, the ALJ issued a second proposed decision and concluded that the Water Board interfered with protected rights in conducting the investigatory interview. The ALJ ordered the Water Board to post a notice and to cease and desist from further interference but rejected PECG’s request for litigation sanctions and rescission of discipline issued against the employee. PECG excepted to the remedy.
Disposition: The Board rejected PECG’s exceptions. The Board found no cause to order the Water Board to rescind the employee’s discipline because the Water Board did not rely on information or admissions obtained during the unlawful interview or employee’s conduct at the interview. The Board did not award litigation sanctions because the Water Board’s position was not frivolous. The Board, however, supplemented the proposed remedial order by directing the Water Board to continue refraining from any reliance on information or admissions obtained during the unlawful interview or employee conduct during the interview.
Perc Vol: 47
Perc Index: 160
Decision Headnotes
408.03000 – Investigatory Interviews
If an employer’s unfair practice during an investigatory interview is one material cause of eventual discipline, the proper remedy is to rescind the discipline, purge related records, and make the employee whole, typically while leaving open whether the employer may lawfully re-investigate any alleged misconduct or issue lesser discipline. (County of San Joaquin (Sheriff’s Department) (2018) PERB Decision No. 2619-M, p. 13 & fn. 13; Capistrano Unified School District (2015) PERB Decision No. 2440, pp. 45 & 47-53 (Capistrano).) The primary basis for proving that unfair practices in an investigatory interview materially caused discipline is to show that the discipline was based, at least in part, on information or admissions obtained in the interview, or on employee conduct during the interview. (Capistrano, supra, PERB Decision No. 2440, p. 47.) (p. 5.)
1200.01000 – In General
Where the state employer failed to provide the union with sufficient information for it to meaningfully represent an employee in an investigatory interview, the Board supplemented the proposed decision’s cease and desist order by directing the state employer to refrain from relying on: (1) any information or admission obtained during the unlawful investigatory interview; or (2) the employee’s conduct during the interview. While the record did not show that the employer had so far relied on any such information, admission, or conduct, to compensate for the harm caused by the unfair practice, the Board found it important to ensure that the Water Board does not do so in the future. (pp. 6-7.)
1205.04000 – Attorneys Fees and Costs
The union sought an award of litigation sanctions based on legal work performed in this case. A party seeking such relief normally must meet a standard akin to that under Rule 11 of the Federal Rules of Civil Procedure, showing that its opponent pursued a frivolous argument in bad faith. (Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 11.) Because the state employer raised non-frivolous arguments in this case, the union could not meet this standard. In contrast, for a charging party to obtain an award based on litigation fees or costs in a separate proceeding, or based on salaries or other costs of representation or bargaining, it need only show by a preponderance of the evidence that the offending party’s conduct caused a harm and that it is reasonably feasible to estimate the financial impact. (City and County of San Francisco (2023) PERB Decision No. 2858, p. 15.) The Board noted that, although the state employer’s unfair practice may have increased the union’s costs of representation in a separate proceeding before the SPB, the union did not pursue and neither party litigated this potential make-whole theory. (p. 6 & fn. 4.)
1205.08000 – Expunging Employee Personnel Files
If an employer’s unfair practice during an investigatory interview is one material cause of eventual discipline, the proper remedy is to rescind the discipline, purge related records, and make the employee whole, typically while leaving open whether the employer may lawfully re-investigate any alleged misconduct or issue lesser discipline. (County of San Joaquin (Sheriff’s Department) (2018) PERB Decision No. 2619-M, p. 13 & fn. 13; Capistrano Unified School District (2015) PERB Decision No. 2440, pp. 45 & 47-53 (Capistrano).) The primary basis for proving that unfair practices in an investigatory interview materially caused discipline is to show that the discipline was based, at least in part, on information or admissions obtained in the interview, or on employee conduct during the interview. (Capistrano, supra, PERB Decision No. 2440, p. 47.) (p. 5.)