Redwoods Community College District (PERB 0293E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES 	ASSOCIATION,
Charging 	Party,
v.
REDWOODS 	COMMUNITY 	COLLEGE 	DISTRICT,
Respondent.
Case No. 	SF-CE-516
PERB Decision No. 	293
March 	15, 	1983
Appearances; 	Christian M. 	Keiner, Attorney 	(Biddle, Walters &
Bukey) 	for 	Redwoods Community College District; 	E. 	Luis Saenz,
Attorney 	for 	California 	School 	Employees 	Association.
Before Gluck, Chairperson; 	Jaeger 	and Burt, Members.
DECISION
GLUCK, 	Chairperson: 	The Redwoods Community College
District 	(District) 	excepts 	to a 	finding 	that 	it 	violated 	the
Educational Employment Relations Act 	(EERA) 	sections
3543.5(a) 	and 	(b)1 by 	refusing 	to 	allow 	its 	employee,
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	references 	hereafter 	will 	be 	to 	the Government
Code 	unless 	otherwise 	indicated. 	Sections 	3543.5(a) 	and 	(b)
state:
It 	shall 	be 	unlawful 	for 	a public 	school
employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate or 	threaten to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere with, 	restrain, or coerce
employees 	because 	of 	their 	exercise 	of
*
)
)
)
)
)
)
)
)
)
________________ )

Doris Hughey, 	to have 	"meaningful" 	union 	representation during
a 	performance 	review 	meeting.
FACTS
In August 	1980, 	Doris 	Hughey was 	evaluated 	by her 	immediate
supervisor, 	Howard Wycoff. 	This 	evaluation was 	lower 	than 	it
had 	been 	in previous years. 	Thirty-three 	items 	were 	marked
"fair" 	and 	twenty-six were 	marked 	"good." 	The 	overall 	rating
was 	"needs 	improvement" 	and 	included 	the 	comment 	that 	Hughey
needed 	to 	"change 	her 	attitude."
In response, Hughey wrote 	a memo to Gil Saunders, 	Vice
President 	for 	Business Affairs, 	requesting 	that 	the 	evaluation
be 	reviewed 	by 	an 	impartial person 	in 	the 	presence 	of 	a
California School Employee Association 	(CSEA) 	representative.
Before Saunders 	received 	this 	request, 	he 	reviewed 	the
evaluation 	and 	met 	with Hughey, 	suggesting 	to 	her 	that 	she 	meet
with Wycoff 	to work out 	their 	differences. 	When Saunders 	did
receive Hughey's 	request 	for 	an 	impartial 	reviewer, 	he
appointed Thomas Hanna, 	Dean of Administrative Services, 	to
conduct 	the 	review.
In 	the meantime, 	on August 29, 	Hughey met with Wycoff 	and
CSEA representatives, 	pursuant 	to which Wycoff 	agreed 	to write
a 	new 	evaluation. 	Saunders 	and 	Hanna 	were 	informed 	of 	this
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny to 	employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
22

development, 	and 	that 	Hughey 	considered 	the 	problem at 	least
temporarily 	resolved.
Nevertheless, 	Hanna 	insisted 	on continuing with 	an
independent 	review, 	feeling 	he 	had 	been 	appointed 	to 	resolve
what 	he 	considered 	a challenge 	to 	the 	evaluation process
itself. 	Hanna 	scheduled 	a meeting 	with Hughey 	for 	October 	30.
Hughey 	requested 	that 	her 	shop steward 	be present, 	to which
Hanna consented, 	explaining, 	however, 	that there was no right
to 	representation 	under 	these 	circumstances.
Hanna 	began 	the meeting 	by explaining 	that 	its 	purpose was
purely a 	factfinding mission 	to 	allow Hughey 	to 	state 	her
concerns 	about 	the 	evaluation, 	and 	that no discipline was
contemplated. 	According 	to Hughey, 	Hanna 	informed Bill 	Rumley,
the CSEA representative, 	that 	he was 	to refrain 	from entering
into 	the 	conversation.2 He 	then 	engaged Hughey 	in 	an
item-by-item 	discussion 	of 	the 	evaluation.
When 	the 	subject of Hughey's 	cooperation arose, 	Rumley
interjected a 	comment 	about Wycoff 	as 	a supervisor, 	to 	the
effect, 	"you know how Howard is 	. 	. 	. 	." 	Before he could
finish his 	thought, 	Hanna cut him off, 	stating 	that 	such
comments 	were 	inappropriate, 	that 	Rumley 	should 	restrain
himself, 	and 	that 	if he 	had problems with Wycoff, 	he should
2TWo other 	witnesses 	testified 	that 	Hanna 	told 	Rumley 	to
"refrain 	from making 	comments" 	and 	that 	the meeting was 	not 	a
hearing 	but was 	for 	informational purposes.
w	3
2 TWO

discuss 	them with 	the 	supervisor 	in person. 	According 	to
Rumley's 	uncontroverted 	testimony, 	Hanna 	added 	that 	Rumley
should 	not 	have 	a 	part 	in 	this meeting. 	Neither 	Rumley or
Hughey 	protested 	this 	silencing 	and 	the 	meeting 	proceeded
without 	further 	incident.
After 	the meeting, 	Hanna 	prepared 	a 	report 	which 	he 	placed
in Hughey's personnel 	file. 	While 	the 	report 	did 	not 	lead 	to
any 	discipline, 	it 	included 	some 	negative 	statements 	about
Hughey's 	behavior.3
CSEA 	filed 	the 	instant 	charge 	alleging 	that 	Hughey 	had 	been
denied 	both 	her 	right 	to 	be 	represented 	by 	the 	organization of
her 	own 	choosing 	and 	that 	CSEA had 	been 	denied 	its 	right 	to
represent. 	The 	administrative 	law 	judge 	ruled 	that NLRB 	v.
Weingarten 	(1975) 	420 U.S.25 	[88 LRRM 2689], 	strictly applied,
would 	not 	afford 	Hughey 	the 	right 	to 	representation 	in 	this
situation 	because 	she 	could 	not 	reasonably 	expect 	discipline 	to
result 	from 	the 	interview;4 however, 	under 	EERA's more
3For 	example, 	Hanna wrote:
It would 	appear 	that Mrs. 	Hughey had 	the
opinion 	that 	her 	authority 	exceeded 	that 	of
her supervisor. 	. 	. 	. 	Mrs. Hughey's
comments 	to others 	about 	her 	supervisor
should 	not 	have 	been made 	and 	no 	excuse 	can
be made 	to 	justify the 	occurrence.
4Weingarten and 	its 	progeny 	hold 	that 	employee 	insistence
on 	union 	representation 	at 	an 	investigatory 	interview 	which 	the
employee 	reasonably 	believes 	will 	lead 	to 	discipline 	is
protected 	concerted 	activity.
44

expansive 	representational 	rights 	for 	both 	employees 	and 	their
organizations, 	Hughey was 	entitled 	to 	representation 	under 	the
circumstances.
The 	District argues 	on exception 	that Weingarten, 	with 	its
limitations, 	should 	be 	applied 	to all public 	employees 	inasmuch
as 	California courts 	have 	already 	so 	limited 	representational
rights 	under 	the 	Meyers-Milias-Brown5 and 	Brown Acts.6
Even 	if 	Hughey were 	entitled 	to a 	representative 	for 	this
meeting, 	the District claims, 	there was no violation because
the 	steward's 	comment was 	an 	inappropriate 	personal 	remark
which 	is 	unprotected.
DISCUSSION
The 	U.S. 	Supreme Court 	based 	its 	decision 	in Weingarten,7
supra, 	on 	section 7 of 	the National Labor Relations Act, which
ensures 	employees 	the 	right:
5Government Code section 3515, 	et seq., 	applicable 	to
county, 	city 	and 	special 	district 	employees.
6Government 	Code 	section 	3500 	et 	seq., 	predecessor 	to
Meyers-Milias-Brown 	and 	still 	applicable 	to 	certain 	employees
excluded 	from 	coverage 	of other 	acts.
7The 	Weingarten 	doctrine 	has 	not 	been 	expanded 	by 	the
NLRB or 	the 	federal courts. 	For 	example, 	the NLRB has 	found
there 	is 	no 	right 	to 	representation 	at 	counseling 	sessions 	on
excessive 	absenteeism where 	the 	employer 	gave 	assurances 	that
no discipline would result. 	Amoco Chemicals Corp. 	(1978) 	237
NLRB 	394. 	Nor 	is 	representation 	required at an 	interview whose
purpose 	is merely 	to 	inform 	an 	employee 	of 	the 	decision 	to
impose 	discipline. 	NLRB v. 	Certified Grocers 	of California
(9th Cir. 	1978) 	100 LRRM 3029; Baton Rouge Water Works Co.
(1979) 	246 NLRB 995.
55

to engage 	in other 	concerted 	activities 	for
the 	purpose 	of 	collective 	bargaining or
other mutual aid or protection. 	. 	. 	.
EERA's language 	is not 	identical. 	It provides 	in 	section 3543:
Public 	school 	employees 	shall 	have 	the 	right
to form, 	join, 	and participate 	in the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose 	of
representation on 	all matters 	of
employer-employee relations. 	(Emphasis
added.)
Likewise 	section 	3543.1(a) 	gives 	the 	employee organizations
"the 	right 	to represent 	their 	members 	in 	their 	employment
relations with public school employers 	. 	. 	. 	." 	(Emphasis
added.)
The 	very purpose of 	the Act, 	articulated 	in section 3540 	is
to:
. 	. 	. promote the improvement of personnel
management 	and 	employer-employee 	relations
within 	the 	public school 	systems 	. . . 	by
providing 	a 	uniform 	basis 	for 	recognizing
the 	right of public school employees 	to 	join
organizations of 	their 	own choice, 	to 	be
represented 	by 	such 	organizations 	in 	their
professional 	and 	employment 	relationships
with public school employers, 	. 	. 	.
(Emphasis 	added.)
This 	language 	provides 	an 	ample 	basis 	for 	departing 	from
the 	strictures 	of Weingarten. 	Evaluations 	are 	of 	crucial
importance 	to employees whose promotions, 	pay raises,
transfers, 	and 	professional 	reputations 	may 	be 	affected.8 An
8 The 	employer 	as well 	certainly has 	a 	strong 	interest 	in
assuring 	that 	evaluations 	are 	accurate.
6

evaluation meeting 	such 	as 	that 	conducted 	by Hanna 	is 	clearly
encompassed 	by 	the 	term, 	"professional 	and 	employment
relationships 	with 	public 	school 	employers," 	in which 	employees
have 	a 	right 	to 	be 	represented 	by 	their 	selected
organizations.
Barring 	a 	union 	representative 	from 	a meeting 	at 	which 	the
evaluation 	is 	being 	"appealed," 	as was 	the 	intent 	of 	the
meeting here, 	is 	a denial of 	rights 	granted 	in section
3543.l(a) .
A 	representative's 	presence 	at 	a meeting 	over 	a disputed
evaluation 	could 	assist 	the 	employee 	in 	presenting 	clear,
cogent 	arguments 	and 	facts 	supporting 	his/her 	point 	of 	view.
The 	representative may also act 	as 	a 	buffer 	in a confrontation
that 	is 	filled with potential 	acrimony, 	a 	function obviously
beneficial 	to 	both sides. 	Also, 	the potential power 	imbalance
between management, 	unfettered 	in 	the 	number 	of 	representatives
it may have, 	and 	the lone 	employee calls 	for 	a representative's
presence.
We 	have 	recently decided 	that 	sections 	3543 	and 	3543.1(a)
guarantee 	a 	grievant's 	right 	to 	have 	union representation
during 	the 	initial 	informal 	step of 	an 	in-house 	grievance
procedure, 	Rio Hondo Community College District 	(12/28/82)
PERB Decision No. 	272.
The 	interview 	here 	was 	very similar 	to 	the 	Rio Hondo
meeting. 	Both meetings 	were 	held 	to 	resolve 	a 	potential
employee 	complaint 	before 	a grievance 	stage. 	Both were
7

attended 	by management 	officials 	above 	the 	affected 	employees'
immediate 	supervisor.
However, 	not 	all encounters 	between management 	and 	the
employee 	require 	representation. 	The 	employer 	need 	not 	allow
it 	for 	such 	routine conversations 	as 	giving 	instructions,
training or 	correcting work 	techniques. 	In such a case, 	the
employer's 	interest 	in 	conducting 	its 	mission 	free 	from delay
and 	unnecessary 	formality outweighs 	the 	employee's 	interest 	in
being 	represented.
Nor 	is 	an employee necessarily entitled 	to 	representation 	at
a meeting 	between 	the 	employee 	and 	the 	evaluator 	in 	the 	first
instance. 	However, 	the 	evaluation 	interview 	in this 	instance
was 	more 	than 	such 	a meeting. 	It 	resulted 	from Hughey
protesting 	her 	evaluation 	to 	a level of 	management 	above 	her
immediate 	supervisor. 	It was 	initiated 	by a 	high-level
management 	official 	and 	imbued 	with 	sufficient 	formality 	and
"appellate" 	character 	to 	take on 	the 	quality of a grievance, 	a
proceeding 	for 	which 	the 	right 	of 	representation 	is 	undisputed.
The District 	cites Civil 	Service Association v. 	City 	and
County of San Francisco 	(1978) 	22 Cal.3d 	552; 	Robinson v. 	State
Personnel Board 	(1979) 	97 Cal.App.3d 	994; 	and Marin Community
College District 	(11/19/80) 	PERB Decision No. 	145 	as 	authority
for 	applying Weingarten 	strictly.
None of 	these 	cases 	is persuasive. 	Weingarten was 	intended
only to clarify one 	uncertain 	aspect 	of 	the 	right 	of
88

representation 	which 	has 	been 	established 	under 	the 	language 	of
section 7 of 	the National Labor Relations Act, 	namely, 	the
extent 	of 	that 	right 	during 	a 	preliminary 	investigative
procedure 	conducted 	by 	the 	employer. 	Certainly, 	that 	case need
not 	be 	relied 	upon 	to 	establish 	the 	right 	of 	representation 	in
grievance 	processing or 	arbitration 	of 	disciplinary 	action.
Further, 	none 	of 	the 	court 	cases 	cited 	by 	the District 	arose
under 	EERA and 	the 	specific provisions 	of 	sections 	3540 	and
3543, 	supra.9
In 	sum, 	we 	find 	that 	under 	the 	instant 	circumstances,
Hughey 	had 	a 	right 	to 	be 	represented 	and 	that CSEA enjoyed 	a
concomitant 	right 	to represent 	her 	at 	the 	interview. 	The
District 	denied 	those 	rights 	by 	preventing 	Rumley 	from 	speaking
during 	the meeting. 	The 	evidence 	shows 	that Hanna 	intended
that Rumley 	not speak 	at all, 	regardless 	of 	the 	content 	of 	his
remarks. 	Hughey's 	uncontradicted 	account 	of Hanna's
pre-meeting 	comments 	indicates 	that Hanna 	told 	Rumley 	to
refrain 	from 	entering 	into 	the 	conversation 	which was 	to 	be
between 	"Doris 	and me." 	This, 	coupled with Hanna's
interruption of Rumley's comment 	during 	the meeting, 	is 	a clear
denial 	of 	meaningful representation. 	The District 	has
therefore violated 	sections 	3543.5(a) 	and 	(b).
99we	we 	note 	additionally 	that 	each 	of 	the 	cases 	cited
involved 	actual or 	potential 	disciplinary action; 	none
expressly 	limited 	the 	right 	of 	representation 	only 	to 	such
circumstances.
99
•

REMEDY
In addition 	to a cease-and-desist order, 	it 	is 	appropriate
in 	this 	case 	to require 	the District 	to 	purge 	any product of
this meeting 	from Doris Hughey's 	personnel 	files.
Specifically, 	Hanna's report should 	be removed. 	Further, 	upon
request, 	Hughey 	should 	be 	granted 	a new opportunity to appeal
her 	evaluation 	and 	to 	be 	represented 	therein 	by a
representative 	of 	her 	choosing.
The District 	shall 	also 	be ordered 	to 	post a 	copy of 	the
attached Notice 	to Employees 	at 	all 	places 	where 	notices 	are
customarily 	posted.
ORDER
Upon the 	foregoing facts, 	conclusions of law, 	and the
entire 	record 	in this case, 	it 	is hereby ORDERED that 	the
Redwoods Community College District 	shall:
A. 	CEASE AND 	DESIST FROM:
1. 	Denying its employee, 	Doris Hughey, 	her 	right 	to
be 	represented 	by 	an organization of 	her 	own 	choosing 	at 	a
meeting 	held pursuant 	to 	her 	appeal of 	an 	evaluation.
2. 	Denying 	the 	employee organization 	the 	right 	to
represent 	its 	members 	by preventing 	the 	CSEA 	job steward 	from
speaking 	at 	a meeting 	held 	pursuant 	to an 	employee's 	appeal 	of
an 	evaluation.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION:
1. 	Remove 	from Doris Hughey's 	personnel 	files 	all
10

management 	reports 	which 	resulted 	from 	the October 	30, 	1980
meeting with 	Thomas 	Hanna.
2. 	Grant 	to Doris Hughey, 	if 	so requested, 	the
opportunity 	to 	protest 	her 	August 	1980 	evaluation 	to 	higher
level of management 	and 	to 	be 	represented 	by a 	representative
of 	her 	choosing.
3. 	Within seven 	(7) 	workdays 	following 	the date of
service of 	this Decision, 	post 	at all work locations where
notices 	to employees 	are 	customarily placed, 	copies 	of 	the
Notice 	attached 	as 	an 	appendix 	signed 	by 	an 	authorized 	agent 	of
the District. 	Such posting 	shall 	be maintained 	for 	a period of
thirty 	(30) 	consecutive workdays. 	Reasonable 	steps 	shall 	be
taken 	to 	insure 	that 	such Notices 	are 	not 	reduced 	in 	size,
defaced, 	altered, 	or 	covered by any material.
4. 	Notify the 	San Francisco 	regional director 	of 	the
Public Employment 	Relations Board 	in writing 	within
forty-five 	(45) 	workdays 	following 	the 	service of 	this Decision
of 	the 	steps 	the District 	has 	taken to comply with 	this Order.
Members Jaeger 	and Burt 	joined 	in 	this Decision.
11

APPENDIX
NOTICE 	TO EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After 	a hearing 	in Unfair 	Practice Case No. 	SF-CE-516,
California 	School 	Employees Association v. 	Redwoods Community
College District, 	in which all parties 	had 	a right 	to
participate, 	it 	has 	been 	found 	that 	the Redwoods Community
College 	District:
Unlawfully denied 	its 	employee Doris 	Hughey 	her 	right 	to 	be
represented 	by 	the 	California School Employees 	Association 	at 	a
meeting 	held 	to 	consider 	her 	protest 	of 	a performance
evaluation 	and 	denied 	the 	California 	School 	Employees
Association 	the 	right 	to 	represent 	Doris 	Hughey 	through 	its 	job
steward 	at 	that meeting.
The 	Redwoods 	Community College 	District 	agrees 	to 	remove
from Doris Highey's 	personnel 	files 	all 	management 	reports
which 	resulted 	from 	her 	meeting 	with 	Thomas 	Hanna 	on
October 	30, 	1980, 	concerning 	her 	performance evaluation; 	and 	if
requested, 	will 	grant 	to Doris Hughey 	the 	opportunity 	to
protest 	her 	August 	1980 	evaluation 	to a 	higher 	level 	of
management 	and 	to 	be 	represented 	at 	such 	time 	by a
representative 	of 	her 	choosing.
Copies 	of 	this Notice 	are 	to 	be posted 	at 	all work
locations 	where 	notices 	to 	employees 	are 	customarily placed 	and
will 	remain 	there 	for 	thirty 	(30) 	consecutive workdays.
REDWOODS 	COMMUNITY 	COLLEGE 	DISTRICT
Dated: 	By:
Authorized Agent 	of 	the 	District
THIS 	IS 	AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF POSTING AND MUST NOT
BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.