State of California (Department of Corrections) (International Union of Operating Engineers) (PERB 1245S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
INTERNATIONAL UNION OF OPERATING
ENGINEERS, 	CRAFT-MAINTENANCE
DIVISION, 	UNIT 12,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
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) 	Case No. 	SA-CE-1033-S
PERB Decision No. 	1245-S
January 28, 	1998
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Appearances: 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by
William A. 	Sokol, 	Attorney, 	for International Union of Operating
Engineers, 	Craft-Maintenance Division, 	Unit 12; 	State of
California 	(Department 	of 	Personnel 	Administration) 	by Timothy G.
Yeung, 	Legal 	Counsel, 	for State of California 	(Department of
Corrections).
Before Caffrey, 	Chairman; 	Dyer and Jackson, 	Members.
DECISION AND 	ORDER
DYER, 	Member: 	This 	case 	is before the 	Public Employment
Relations 	Board 	(Board) 	on appeal 	by the 	International 	Union of
Operating Engineers, 	Craft-Maintenance Division, 	Unit 	12 	(IUOE)
of a Board agent's 	dismissal 	(attached) 	of 	its unfair practice
charge. 	IUOE 	filed a 	charge alleging that 	the State 	of
California 	(Department 	of 	Corrections) 	(State) 	violated section
3519(a) 	and 	(b) 	of the Ralph C. 	Dills Act 	(Dills Act)1 by denying
1The Dills Act 	is 	codified at Government 	Code 	section 	3512
et 	seq. 	Section 3519 	states, 	in pertinent part:
It 	shall be unlawful 	for the 	state 	to do any
of 	the 	following:
(a) 	Impose or threaten to 	impose 	reprisals
(
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an 	employee 	union 	representation at 	a meeting with management.
After 	investigation, 	the Board agent 	dismissed the 	charge 	for
failure 	to 	establish a prima 	facie 	case 	of 	a violation of 	the
Dills Act.
The 	Board has 	reviewed 	the 	entire 	record 	in this 	case,
including 	IUOE's unfair practice 	charge, 	the warning and
dismissal 	letters, 	IUOE's appeal, 	and the State's 	response. 	The
Board 	finds 	the warning and dismissal 	letters 	to be 	free 	of
prejudicial 	error and adopts 	them as 	the 	decision of 	the 	Board
itself.
The unfair practice 	charge 	in Case No. 	SA-CE-1033-S 	is
hereby DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Jackson 	joined 	in 	this 	Decision.
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
November 19, 	1997
William A. Sokol, 	Esq.
Van Bourg, Weinberg, 	Roger & Rosenfeld
180 Grand Avenue, 	Suite 1400
Oakland,CA 	95814
Re: 	International Union of Operating Engineers v. 	State of
California 	(Department 	of 	Corrections)
Unfair Practice 	Charge No.SA-CE-1033-S
DISMISSAL 	LETTER
Dear Mr. Sokol:
This charge, 	filed on October 6, 	1997, 	on behalf of the
International Union of Operating 	Engineers 	(IUOE), 	alleges that
the State of California, 	Department of Corrections 	(State or CDC)
violated the Ralph C. 	Dills Act, 	specifically Government Code
sections 3519(a), 	(b) 	and (c), by denying CDC employee and IUOE
member Stacy Esau union representation at a meeting with
management.
I 	indicated to you, 	in my attached letter dated November 4, 	1997,
that the above-referenced charge did not 	state a prima facie case.
You were advised that, 	if there were any factual inaccuracies or
additional 	facts which would correct 	the deficiencies explained in
that letter, 	you should amend the charge. 	You were further advised
that, 	unless you amended the charge to state a prima facie case or
withdrew it prior to November 12, 	1997, 	the charge would be
dismissed.
I have not received either an amended charge or a request 	for
withdrawal. 	Therefore, 	I am dismissing the charge based on the
facts and reasons contained in my November 4, 	1997 letter.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, 	you may
obtain a review of this dismissal of the charge by filing
an appeal to the Board itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original and five copies
of 	such appeal must be actually received by the Board itself before
the close of business 	(5 p.m.) 	or sent by telegraph, 	certified or
Express United States mail postmarked no later
than the last date set for filing. 	(Cal. 	Code of Regs.,tit. 	8,
sec. 	32135.) 	Code of Civil Procedure section 1013 shall apply.
The Board's address is:
.\ 	',,
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SA-CE-1033-S
Dismissal Letter
November 19, 	1997
Page 2
Public Employment Relations Board
1031 	18th Street
Sacramento, 	CA 95814
If you file a timely appeal of the refusal to issue a complaint,
any other party may file with the Board an original 	and five copies
of a statement 	in opposition within twenty 	(20) 	calendar days
following the date of service of the appeal. 	(Cal. 	Code of Regs.,
tit. 8, sec. 32635(b).)
Service
All documents authorized to be 	filed herein must also be 	"served"
upon all parties to the proceeding, 	and a 	"proof of service"
must accompany each copy of a document 	served upon a party or filed
with the Board itself. 	(See Cal. Code of Regs., 	tit. 	8, 	sec. 	32140
for the required contents and a sample form.) 	The document will be
considered properly 	"served" 	when personally delivered or deposited
in the first-class mail, 	postage paid and properly addressed.
Extension of Time
A request for an extension of time, 	in which to file a document
with the Board itself, 	must be in writing and filed with the Board
at the previously noted address. 	A request 	for an extension must
be filed at least three 	(3) 	calendar days before the expiration of
the time required for filing the document.
The request must indicate good cause for and, 	if known, 	the
position of each other party regarding the extension, 	and shall be
accompanied by proof of 	service of the request upon each party.
(Cal. Code of Regs., tit. 8, sec. 32132.)
Final Date
If no appeal is filed within the specified time limits, 	the
dismissal will become 	final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By RICK C. 	KIGER
Board Agent
Attachment
cc: 	Timothy G. Yeung, 	DPA Legal Counsel

STATE OF CALIFORNIA 	( 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916)322-3198
November 4, 	1997
William A. Sokol, Esq.
Van Bourg, 	Weinberg, 	Roger & Rosenfeld
180 Grand Avenue, 	Suite 1400
Oakland, 	California 	95612
Re: 	International Union of Operating Engineers v. 	State of
California 	(Department of 	Corrections)
Unfair Practice Charge No. 	SA-CE-1033-S
WARNING 	LETTER
Dear Mr. Sokol:
This charge, 	filed on October 6, 	1997, 	on behalf of the
International Union of Operating 	Engineers 	(IUOE), 	alleges that
the State of California, 	Department of Corrections 	(State or CDC)
violated the Ralph C. 	Dills Act, 	specifically Government Code
sections 3519(a), 	(b) 	and (c), by denying CDC employee and IUOE
member Stacy Esau union representation at 	a meeting with
management.
My investigation of 	these charges revealed the 	following
information. 	IUOE alleges that:
On or about September 4, 	1997 at 1:15 p.m., 	Ms. 	Esau was called
into a meeting with Supervisor Gary Lewis. 	Per Ms. 	Esau's
statement, Mr. Lewis "began to holler" at Ms. Esau, stating in
effect that Ms. 	Esau had left her work area for too long a
period, 	he had looked everywhere for her, 	that she did not follow
instructions, 	that she was not to leave the reception area, 	and
that he had told her repeatedly that 	she was not to leave the
reception area. 	Mr. 	Lewis then informed Ms. 	Esau that she should
finish cleaning up her job and return to his office. 	He then
stated that 	they were going to meet with Brian Lauthe on Tuesday
and "this was going to come out."
At 2:30 p.m. 	that day, 	Ms. 	Esau returned to Mr. Lewis's office.
According to Ms. 	Esau's statement, Mr. 	Lewis was still agitated
and proceeded to castigate her over her work performance, 	and
stated that she was gone too long from her work area, 	that she
left her workers unsupervised, 	that was exactly the type of thing
she had been written up for in the past, 	and that he was going to
write her up for this.
Ms. 	Esau and Mr. 	Lewis then left for Jerry Pacheco's, 	DVT
Correctional Plant Manager, 	office. 	At this time Ms. Esau
requested and was denied union representation. 	Mr. 	Pacheco
instructed Ms. 	Esau to quit interrupting Mr. 	Lewis until he was
r
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SA-CE-1033-S
Warning Letter
November 4, 	1997
Page 2
finished. 	Mr. 	Lewis then reiterated his previous statements,
concluding with the 	statement 	that he was going to bring this to
Brian's 	(Lauthe) 	attention on Wednesday. 	When Mr. 	Lewis was
finished, 	Mr. 	Pacheco stated that 	"Wednesday would not work, 	as
they had interviews next week. 	We can have this anytime this
month. The disciplinary process has to be done anytime within 3 0
days."
ANALYSIS
Employees have the right to union representation at disciplinary
and investigatory interviews. 	(California Department of 	Forestry
(1988) 	PERB Decision No. 	690-S.) 	The right to representation
does not exist 	for 	"routine or perfunctory conversations,
training, 	or correcting work techniques." 	An employee has the
right 	to union representation at 	an investigatory interview
which the employee reasonably believes would lead to discipline
or an interview in which highly unusual 	circumstances are
present. 	(Redwoods Community College District v. 	PERB 	(Redwoods)
(1984) 	159 Cal.App.3d 617, 	626.) 	Furthermore, 	the Court of
Appeal held that 	"representation should be granted, 	absent the
discipline element, 	only in highly unusual circumstances."
(Redwoods, supra.)
In the instant case, 	the investigatory aspect of Redwoods is not
present. 	All the remarks made by Mr. 	Lewis to Ms. 	Esau were in
the nature of declaratory statements regarding Ms. 	Esau's current
actions and related past behavior. 	The one apparent question,
"Why can't you follow instructions?", 	can be construed as
rhetorical in light of the other statements by Mr. 	Lewis.
Based upon the foregoing, 	the meeting between CDC management and
Ms. 	Esau does not appear to be investigatory in nature. 	Mr.
Lewis's words were 	stated in a emotional way and were accusatory
towards Ms. 	Esau, 	but were not designed to elicit facts from Ms.
Esau. 	Without the investigatory aspect, 	the right to
representation derived from Redwoods 	cannot be 	invoked.
Nor does there appear to be the 	"highly unusual circumstances" 	as
stated in Redwoods. 	In that case, 	the employee was 	"required to
participate in an interview which she no longer sought, 	before a
high-level administrator, 	and to respond to questions concerning
her work performance." 	(Redwoods, 	supra at pg. 	625.) 	In the
instant case, 	Ms. 	Esau was called in to meet with her immediate
supervisor, 	Mr. 	Lewis, 	who criticized her for allegedly leaving
her work area and not 	informing him of that 	fact. 	Mr. 	Pacheco,
Mr. 	Lewis's supervisor, was only minimally involved. 	Ms. 	Esau
was not questioned in regards to her work performance. 	The above
facts do not appear to meet the 	"highly unusual circumstances"
( 	(

SA-CE-1033-S
Warning Letter
November 4, 	1997
Page 3
standard of Redwoods. 	Therefore the right of representation does
not attach in this instance.
For these reasons the charges, 	as presently written, 	does not
state a prima facie case. 	If there are any factual 	inaccuracies
in this letter or additional 	facts which would correct the
deficiencies explained above, 	please amend the charges. 	The
amended charges 	should be prepared on standard PERB unfair
practice charge forms, 	clearly labeled First Amended Charge,
contain all the facts and allegations you wish to make, 	and
be 	signed under penalty of perjury by the charging party. 	The
amended charges must be served on the respondent and the original
proofs of service must be filed with PERB. 	If I do not receive
amended charges or withdrawals from you before November 12, 	1997,
I shall dismiss your charges. 	If you have any questions, 	please
call me at 	(916) 	322-3198, extension 354.
Sincerely,
RICK C. 	KIGER
Board Agent