Decision 2888S – State of California (California Correctional Health Care Services)

An exclusive representative has the right to represent a bargaining unit employee, and the employee has a corresponding right to union representation, during an investigatory meeting that the employee reasonably believes might result in discipline, as well as in non-investigatory meetings held under other “highly unusual circumstances.” (Capistrano Unified School District (2015) PERB Decision No. 2440, pp. 10-16.) Applying this rule, the Board has held that representational rights arise at meetings that may significantly impact the employer-employee relationship, such as an interactive process meeting about accommodating an employee’s disability or a meeting about an employee’s request for job audit forms that could lead to a reclassification or salary adjustment. (Sonoma County Superior Court (2015) PERB Decision No. 2409-C, pp. 12 & 20-24; Regents of the University of California (1984) PERB Decision No. 403-H, p. 10.) (pp. 17-18.)

Representational rights normally do not arise during a routine conversation in which a supervisor corrects work technique or gives instruction, assignment, direction, or training. (Capistrano Unified School District (2015) PERB Decision No. 2440, p. 19.) “Even though such meetings may involve some amount of ‘questioning’ in the course of providing instructions or guidance to an employee, such interactions typically do not give rise to a right to representation,” because the employee usually has no reasonable basis to fear that discipline will flow from answering standard work-related questions. (Ibid.) What may begin as a “routine” interaction can transform into an “investigatory” or “disciplinary” interview, even where no such purpose was intended by the employer. (Id. at p. 20.) Thus, “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.’” (Ibid.) (pp. 18-19.)

An exclusive representative has the right to represent a bargaining unit employee, and the employee has a corresponding right to union representation, during an investigatory meeting that the employee reasonably believes might result in discipline, as well as in non-investigatory meetings held under other “highly unusual circumstances.” (Capistrano Unified School District (2015) PERB Decision No. 2440, pp. 10-16.) Applying this rule, the Board has held that representational rights arise at meetings that may significantly impact the employer-employee relationship, such as an interactive process meeting about accommodating an employee’s disability or a meeting about an employee’s request for job audit forms that could lead to a reclassification or salary adjustment. (Sonoma County Superior Court (2015) PERB Decision No. 2409-C, pp. 12 & 20-24; Regents of the University of California (1984) PERB Decision No. 403-H, p. 10.) (pp. 17-18.)

An exclusive representative has the right to represent a bargaining unit employee, and the employee has a corresponding right to union representation, during an investigatory meeting that the employee reasonably believes might result in discipline, as well as in non-investigatory meetings held under other “highly unusual circumstances.” (Capistrano Unified School District (2015) PERB Decision No. 2440, pp. 10-16.) Applying this rule, the Board has held that representational rights arise at meetings that may significantly impact the employer-employee relationship, such as an interactive process meeting about accommodating an employee’s disability or a meeting about an employee’s request for job audit forms that could lead to a reclassification or salary adjustment. (Sonoma County Superior Court (2015) PERB Decision No. 2409-C, pp. 12 & 20-24; Regents of the University of California (1984) PERB Decision No. 403-H, p. 10.) Employee reasonably feared discipline once his supervisor mentioned insubordination, and had they continued to debate whether employee was insubordinate, that would have veered into the territory of “highly unusual circumstances” triggering representational rights. Instead, the meeting ended without any investigative questions or further mention of insubordination. Accordingly, representational rights were not triggered. (pp. 17-20.)

To establish a prima facie case of retaliation, a charging party must prove, by a preponderance of the evidence, that: (1) an employee engaged in activity protected by the Dills Act; (2) the employer had knowledge of such protected activity; (3) the employer took adverse action against the employee; and (4) the employer took adverse action “because of” the protected activity, which PERB interprets to mean that the protected activity was a substantial or motivating cause of the adverse action. (State of California (Correctional Health Care Services) (2021) PERB Decision No. 2760-S, pp. 20-21.) If these elements are present, but the evidence also reveals a non-discriminatory reason for the adverse action, the burden shifts to the employer to prove, by a preponderance of the evidence as an affirmative defense, that it would have taken the exact same action even absent protected activity. (Id. at p. 21.) In such “mixed motive” cases, the employer must show both that it had an alternative, non-discriminatory reason for the adverse action and that its justification was in fact the but-for cause of the adverse action. (Id., adopting proposed decision at p. 30; Palo Verde Unified School District (2013) PERB Decision No. 2337, pp. 12-13, 31.) (pp. 28-29.)

For an employer to prove its affirmative defense, it must demonstrate it had both an alternative, non-discriminatory reason for taking the adverse action and that it, in fact, exercised its discretion to act because of this alternative, non-discriminatory reason, and not because of the employee’s protected activity. (Palo Verde Unified School District (2013) PERB Decision No. 2337, pp. 31-32 [an employer defending against a prima facie case of retaliation cannot simply present a legitimate reason for its action but must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected conduct].) (pp. 31-32.)

While the burden of proving an affirmative defense falls on the respondent, evidence regarding management’s response to similar misconduct was equally relevant to charging party’s prima facie case. (Cf. San Diego Unified School District (2019) PERB Decision No. 2634, p. 13, fn. 7 [interplay between the charging party’s burden to establish nexus and the respondent’s burden to prove an affirmative defense is not formulaic].) (p. 34.)

Even when an employer has a managerial, statutory, or contractual right to take an employment action, it violates the law if its actual decision to use that right is based on an unlawful motive, intent, or purpose. (State of California (Correctional Health Care Services) (2021) PERB Decision No. 2760-S, p. 27; City of San Diego (2020) PERB Decision No. 2747-M, p. 29; County of Santa Clara (2019) PERB Decision No. 2629-M, p. 13; County of Lassen (2018) PERB Decision No. 2612-M, p. 6; Berkeley Unified School District (2003) PERB Decision No. 1538, pp. 4-5.) (p. 32, fn. 13.)

The Dills Act vests PERB with the authority to determine “what remedy is necessary to effectuate the purposes of this chapter.” (§ 3514.5, 1st par.) In a separate subdivision, the Dills Act notes that this authority includes directing “an offending party to cease and desist from the unfair practice and to take such affirmative action, including, but not limited to, the reinstatement of employees with or without back pay, as will effectuate the policies of this chapter.” (§ 3514.5, subd. (c).) Identical language appears in other statutes under PERB’s jurisdiction, and courts have uniformly found it to grant PERB broad remedial power. (See, e.g., Mt. San Antonio Community College Dist. v. Public Employment Relations Bd. (1989) 210 Cal.App.3d 178, 189-190.) An appropriate remedy must fully compensate affected employees for harm caused by an unfair practice and serve as a deterrent to future misconduct, so long as the order is not a patent attempt to achieve ends beyond the law’s purposes. (State of California (Correctional Health Care Services) (2021) PERB Decision No. 2760-S, p. 35.) (p. 35.)

It does not infringe on SPB’s jurisdiction for PERB to issue a remedy based upon proof by a preponderance of the evidence establishing what level of discipline the state would have issued absent protected activities. First, SPB’s jurisdiction to review disciplinary actions taken against state civil service employees is consistent with the concurrent jurisdiction of PERB---a “watchdog” agency---to provide a full remedy if such employees establish that the state discriminated against them in issuing discipline. (State Personnel Bd. v. Fair Employment and Housing Com. (1985) 39 Cal.3d 422, 437-440 [the Legislature has designated “watchdog agencies” like PERB to remedy discrimination and therefore reinforce the constitutional merit principle] (FEHC).) Supreme Court precedent further instructs that where SPB jurisdiction overlaps with that of another watchdog agency, “such as where a disciplinary action is alleged to have been motivated by antiunion animus,” the proper approach is to “harmonize the disparate procedures rather than simply invalidate one or the other.” (FEHC, supra, 39 Cal.3d at p. 438, citing Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 197.) One means of harmonizing is to take a standard approach to collateral estoppel, in which granting collateral estoppel to another agency’s findings may or may not be dispositive in a separate claim, depending on the circumstances. In this way, PERB’s jurisdiction to enforce the Dills Act does “not supplant” SPB jurisdiction, nor is it “supplanted by” SPB’s jurisdiction. (FEHC, supra, 39 Cal.3d at pp. 431; see also State of California (Correctional Health Care Services) (2021) PERB Decision No. 2760-S, pp. 36-41 [PERB may remedy discriminatory conduct against a state civil service employee despite a contrary order of the SPB]; State of California (Department of Transportation) (1984) PERB Decision No. 459-S, pp. 8-9 [“SPB has been granted the authority to review disciplinary actions,” but PERB is “charged with reviewing those same disciplinary actions when the charge involves a claim that the exercise of [Dills Act] rights was a motivating factor in the decision to discipline,” meaning that an SPB order “poses no impediment” to PERB directing the state to rescind three discriminatory disciplinary actions].) (pp. 35-36.)

Claim preclusion bars claims that were or should have been advanced in a previous litigation. (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.) Claim preclusion applies in a second action only if it involves: (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first action. (Ibid.) (p. 21.)

Issue preclusion, also known as collateral estoppel, is a discretionary principle that courts and agencies apply to prevent parties from relitigating issues conclusively decided in prior proceedings. (Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, 481.) Collateral estoppel prevents parties from relitigating an issue if: (1) the issue is identical to that decided in a prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the issue was necessarily decided in the prior proceeding; (4) the decision in the prior proceeding is final and on the merits; and (5) preclusion is sought against a party to the prior proceeding or one who was in privity with such a party. (Ibid.)
(p. 24.)

State Personnel Board (SPB) decision reviewing disciplinary action against a state employee did not have a claim preclusion effect on employee’s claim that the state retaliated against him for activity the Dills Act protects for multiple related reasons. First, Dills Act section 3514.5 grants PERB exclusive jurisdiction to adjudicate claims that the state retaliated against an employee for activity the Dills Act protects, and SPB has no such jurisdiction. (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 197-198 (Pacific Legal Foundation).) Second, the court of appeal has repeatedly emphasized the exclusivity of PERB’s jurisdiction. (See McPherson v. Public Employment Relations Bd. (1987) 189 Cal.App.3d 293, 311 [Legislature afforded PERB exclusive initial jurisdiction over all claims of discrimination based on union activity].) Third, the same types of considerations have led the court of appeal to reject claim preclusion arguments in a similar setting. (George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1483-1485 [no claim preclusion where FEHA claim asserted a different primary right from employee’s claim before the SPB].) PERB’s jurisdiction to remedy unfair practice charges is independent of SPB’s jurisdiction. (State Personnel Bd. v. Fair Employment and Housing Com. (1985) 39 Cal.3d 422, 437-440 (FEHC) [citing Pacific Legal Foundation, supra, 29 Cal.3d at p. 197].) Accordingly, claim preclusion does not apply when PERB resolves a Dills Act discrimination charge after SPB has already issued a final decision as to whether the state had adequate cause to issue discipline. (pp. 21-23.)

Collateral estoppel may apply to an administrative agency’s decision only if the agency acted in a neutral, judicial capacity to decide an issue over which it had jurisdiction. (Noble v. Draper (2008) 160 Cal.App.4th 1, 10; see also Healdsburg Union High School District (1997) PERB Decision No. 1185, adopting proposed decision at p. 51 [even assuming a third-party hearing officer was neutral, collateral estoppel cannot apply where hearing officer’s decision is subject to review by non-neutral entity, irrespective of whether that entity adopts the hearing officer’s decision].) Moreover, collateral estoppel is a discretionary doctrine that need not apply where application would fail to promote judicial or administrative economy, protect litigants from vexatious litigation, and/or otherwise preserve fairness and integrity in the administration of justice. (Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, 481 & 483.) (pp. 24-25.)

While employees and unions often have a choice whether to pursue claims in multiple forums, if they choose to do so, collateral estoppel may apply as to subsidiary issues. (p. 25.) Collateral estoppel applied to certain factual findings of the State Personnel Board (SPB) but did not apply to the ultimate questions which SPB did not decide, viz. whether employee’s protected activity was a motivating or substantial factor in the decision to terminate him, or what state employer would have done in the absence of protected activity, which are critical questions in resolving a Dills Act retaliation claim. (Garrett v. City and County of San Francisco (9th Cir. 1987) 818 F.2d 1515, 1520 [even where collateral estoppel applies to prior decision finding employer issued discipline that was proportionate to proven misconduct, such a finding does not determine whether the employer would have exercised discretion in the same manner absent discrimination].) Accordingly, PERB does not presume whether the level of discipline SPB found warranted is the level the state employer would have issued absent the employee’s protected activity. (pp. 27-28.)

PERB found City had an obligation to provide union disaggregated race and ethnicity information. The union needed to receive such individualized information regarding probationary employees to pursue workplace antidiscrimination advances through grievances, bargaining for better assistance for probationary employees, or otherwise representing employees on issues of discrimination, harassment, or any interaction with the employer that can mean the difference between employment and unemployment. (See also Contra Costa Community College District (2019) PERB Decision No. 2652, pp. 15-16.) Federal precedent is in accord. (See, e.g., The Bendix Corp. (1979) 242 NLRB 62, 63, fn. 11 [employees have little, if any, confidentiality right in disaggregated data on their race and sex, and any such privacy right did not outweigh the requesting union’s need for the data]; Strategic Resources, Inc. (2016) 364 NLRB 451, 462 & 467-470 [race, age, and gender of employees is presumptively relevant information that the employer must disclose to the exclusive representative upon request]; see also Garrett v. City and County of San Francisco (9th Cir. 1987) 818 F.2d 1515, 1519, fn. 6 [former city firefighter who sued for race discrimination was entitled to obtain personnel files of colleagues in city’s fire department, despite city’s claim that such discovery infringed on firefighters’ privacy, because of need to assess potential evidence of race-based disparate treatment within the department].) (pp. 11-12.)