State of California (Department of Corrections) (PERB 1297S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
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)
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) 	Case No. 	SA-CE-1065-S
PERB Decision No. 	1297-S
October 	22, 	1998
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Appearances: 	Anna Kammerer, 	Labor Relations Representative, 	for
California State Employees Association; 	State 	of 	California
(Department 	of 	Personnel Administration) 	by Timothy G. 	Yeung,
Labor Relations 	Counsel, 	for State of 	California 	(Department 	of
Corrections).
Before Johnson, 	Dyer and Amador, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case comes before the Public
Employment 	Relations 	Board 	(Board) 	on appeal by the California
State 	Employees Association 	(CSEA) 	to a Board administrative 	law
judge's 	(ALJ) 	proposed decision 	(attached). 	The ALJ dismissed
the 	charge and complaint, 	which alleged 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
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
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce

interfering with protected 	rights 	when a 	State manager 	refused 	to
allow a 	CSEA representative 	to 	ask a 	question 	regarding 	the 	new
sick 	leave policy or otherwise participate 	in a meeting.
The Board has 	reviewed the 	entire 	record, 	including
the proposed decision, 	the hearing transcript, 	CSEA's exceptions
and the State's 	response. 	The Board finds 	the ALJ's 	findings 	of
fact 	and 	conclusions 	of 	law to be 	free 	of prejudicial 	error and
adopts 	them as 	the 	decision of 	the Board 	itself.
ORDER
The unfair practice 	charge and 	complaint 	in Case
No. 	SA-CE-1065-S 	are hereby DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Dyer and Amador 	joined 	in 	this 	Decision.
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.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT OF
CORRECTIONS),
Respondent.
)
)
)
) 	Unfair 	Practice
Case No. 	SA-CE-1065-S
PROPOSED 	DECISION
(6/29/98)
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)
)
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Appearances: 	Anna Kammerer and Jeffrey Young, 	Labor Relations
Representatives, 	for California State Employees Association;
Timothy G. 	Yeung, 	Labor Relations Counsel, 	and Kim M. 	Smith,
Graduate 	Legal Assistant, 	for State of 	California 	(Department 	of
Corrections).
Before Ronald E. 	Blubaugh, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
At 	issue here 	is 	the 	question of 	whether an employee's 	right
to union 	representation was 	denied when 	a manager 	refused 	to
answer 	a 	union 	representative's 	question 	at 	a meeting between 	the
employee 	and the manager. 	The union argues 	that 	the meeting was
an 	investigatory 	interview 	regarding 	the 	employee's 	sick 	leave
record and her use 	of 	a State of 	California 	(State) 	telephone 	for
personal 	business. 	By denying the 	representative 	the 	ability to
ask a question, 	the union asserts, 	the State 	interfered with both
the 	employee's 	and the union's protected rights.
The 	State 	asserts 	that 	the 	meeting was 	not 	an 	investigatory
interview 	and presented 	no 	possibility 	of 	disciplinary 	action
against 	the employee. 	As such, 	the State contends, 	the employee
did not 	have 	a right 	to 	the presence 	of 	a union representative,

although the 	State manager permitted one 	to attend. 	Moreover,
the 	State argues, 	the representative 	did not 	attempt 	to ask 	a
question until 	after the meeting was 	over and then, 	sought 	to
inquire 	about 	a 	subject 	not 	discussed at 	the meeting.
The 	California State Employees Association 	(CSEA or Union),
filed the unfair practice 	charge at 	issue on December 22, 	1997.
The 	Union 	followed with a 	first 	amended 	charge 	on 	February 	11,
1998. 	Both unfair practice 	charges were 	filed by Anna 	Kammerer,
the 	CSEA 	labor 	relations 	representative 	who 	accompanied 	the
complaining employee 	to the meeting on November 11, 	1997.
As 	filed on December 22, 	the 	charge 	set out 	two causes 	of
action: 	(1) 	that 	the State was attempting to unilaterally
implement 	a 	new 	sick 	leave 	policy at 	Folsom 	Prison 	for 	employees
in State bargaining unit 	4, 	and 	(2) 	that 	the State 	interfered
with protected rights 	when 	the 	State 	manager 	refused 	to 	allow
Ms. 	Kammerer to ask 	"a question regarding the new sick 	leave
policy." 	The 	first 	amended 	charge 	provided elaboration on 	the
allegation 	that 	the 	State 	had unilaterally changed the 	sick 	leave
policy 	for unit 	4 	employees working at 	Folsom Prison.
On February 13, 	1998, 	the Sacramento director of the 	Public
Employment Relations Board 	(PERB), 	acting on behalf of 	the Office
of 	the General 	Counsel, 	issued a partial dismissal of 	the 	charge.
Dismissed was 	the portion of 	the 	charge 	that 	alleged a 	change 	in
the 	sick 	leave policy at 	Folsom Prison. 	On the 	same date, 	the
regional 	director on behalf 	of 	the Office 	of 	the 	General 	Counsel
issued a 	complaint 	against 	the 	State. 	The 	complaint 	alleges 	that
2
2

the 	State 	interfered 	with 	the 	right 	of 	employee 	Gina 	Garcia 	to 	be
represented 	by 	an 	employee 	organization 	when 	the 	State 	permitted
the 	representative 	to 	be 	present 	at 	an 	interview 	but 	refused 	to
permit 	the 	representative 	to 	ask 	questions 	or 	otherwise
participate. 	The 	complaint 	alleges 	that 	M s . 	Garcia 	had 	a
reasonable 	belief 	that 	the 	interview 	would 	result 	in 	disciplinary
action 	or, 	in 	the 	alternative, 	posed 	highly unusual
circumstances.
By this 	conduct, 	the 	complaint 	alleges, 	the 	State 	violated
section 3519(a) 	and 	(b) 	of 	the Ralph C. 	Dills Act 	(Dills A c t ) . 1
The 	State 	answered 	the 	complaint 	on March 	4, 	1998, 	admitting 	the
jurisdictional 	facts 	but 	denying 	any violation 	of 	the 	Dills 	Act.
A hearing was 	conducted 	in 	Sacramento 	on 	June 	23, 	1998. 	The
parties 	elected 	to 	argue 	the 	matter 	orally 	at 	the 	conclusion 	of
the 	presentation 	of 	evidence 	whereupon 	the 	case 	was 	submitted 	for
decision. 	No 	written 	briefs 	were 	filed.
1 Unless 	otherwise 	indicated, 	all 	statutory 	references 	are 	to
the 	Government 	Code. 	The 	Dills 	Act 	is 	codified 	at 	section 	3512
et 	seq. 	In 	relevant 	part, 	section 	3519 	provides 	as 	follows:
It 	shall 	be 	unlawful 	for 	the 	state 	to 	do 	any
of 	the 	following:
(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 	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.
33

FINDINGS OF 	FACT2
The 	respondent 	is 	the 	State 	employer within 	the 	meaning
of 	the Dills Act. 	The Department 	of 	Corrections 	is 	an appointing
authority of 	the 	State 	employer. 	At 	all 	times 	relevant 	CSEA has
been 	the 	exclusive 	representative 	of 	nine 	State 	employee
bargaining units, 	including unit 4 	(office and allied) 	where
Ms. 	Garcia, 	the complaining witness, 	is employed. 	The collective
bargaining agreement 	covering unit 	4 	expired on June 	30, 	1995.
Although 	the 	parties 	have 	been 	in negotiations 	continuously 	since
that 	date, 	they had not 	entered a 	successor agreement 	as 	of 	the
completion of 	the 	hearing.
At 	all 	times 	relevant Ms. 	Garcia has been employed by the
State 	as 	an office 	technician at 	Folsom State 	Prison. 	Beginning
on or about 	September 8 	or 9, 	1997,3 Associate Warden Karim E.
Noujaim commenced a 	series 	of meetings with Ms. 	Garcia 	regarding
what 	he 	considered to be 	certain deficiencies 	in her 	job
performance. 	The 	subject 	of 	the 	September meeting 	is 	not
revealed in the 	record but 	it was 	followed on October 	15, 	by a
counseling meeting 	regarding Ms. 	Garcia's 	use 	of 	sick 	leave 	and
her use 	of 	the 	State 	telephone.
The 	day after the October meeting, 	Mr. 	Noujaim sent
Ms. 	Garcia a memo that 	summarized his 	concerns. 	In the memo,
2These 	findings 	of 	fact 	were written on 	the basis 	of 	notes
taken at 	the 	hearing by the 	undersigned, 	the written exhibits
introduced by 	the 	charging party 	and 	a 	review 	of 	certain portions
of 	the 	tape 	recording made 	at 	the 	hearing.
3Unless otherwise indicated, 	all 	references to dates 	are 	for
the year 1997.
4

Mr. 	Noujaim asserted that Ms. 	Garcia was averaging nine hours of
sick 	leave 	a month. 	"This 	is 	a high average 	that 	needs 	to be
decreased," 	he wrote. 	Regarding telephone usage, 	Mr. 	Noujaim's
memo 	states 	that 	a print-out 	of 	telephone 	calls 	made 	to and 	from
Ms. 	Garcia's private 	State 	line 	"reflected substantial phone
activities 	that 	did not 	appear to be work related." 	Mr. 	Noujaim
states 	that 	Ms. 	Garcia had agreed to verify whether 	a 	telephone
call 	to 	Reno was 	charged to 	the 	State 	instead of 	to her personal
calling 	card. 	The memo 	concludes with the 	following 	statement:
For the next three months, 	we will meet 	at
the 	beginning of 	each month 	to 	discuss 	your
progress 	in these two areas. 	I 	expect you to
minimize 	your 	sick 	leave 	usage 	and to 	have
more 	control 	over your private 	telephone
line. 	If you 	suspect 	that 	other staff use
your line, 	I shall discontinue it.
Ms. 	Garcia responded by memo of October 24. 	In her memo,
Ms. 	Garcia acknowledges 	that 	her sick 	leave balance 	"is 	not what
it 	should be" 	and promises 	to be more 	careful 	in the use 	of 	sick
leave. 	However, 	she also asserts 	that 	she does not believe 	her
usage 	of 	sick 	leave 	has been excessive. 	Regarding 	the 	telephone
calls made 	from her private State 	line, 	Ms. 	Garcia states 	that
she 	is not 	the only person who uses 	the phone. 	She 	also 	states
that 	she makes many work-related long-distance 	calls 	each day and
has 	no way to 	identify or 	remember 	those 	telephone 	numbers 	when
they appear on the 	bill. 	She 	said she 	did make 	a 	call 	to Reno
but 	believed 	she 	had 	charged 	it 	to 	her personal 	calling 	card.
Nevertheless, 	she offered to pay for the 	call 	that 	appeared on
55

the 	State bill. 	She 	also 	requested that Mr. 	Noujaim discontinue
her personal phone 	line.
Ms. 	Garcia's memo concludes with the 	following 	statement:
I 	do not 	feel 	that 	a review is warranted of
my progress 	for the 	next 	three months. 	Now
that 	I 	am aware 	of what 	your expectations
are, 	I will make all attempts to meet them.
I 	personally believe 	all 	of 	the meetings 	we
have 	had 	lately and 	issues 	brought 	before 	me
since Monday, 	September 8, 	1997, 	are a
personal 	attack. 	I 	would only hope 	that you
might 	re-evaluate your 	request 	to monitor my
performance, 	due 	to the 	fact 	that 	all
previous 	appraisals within my eight 	(8) 	years
of 	State 	service 	have been 	favorable. 	Also,
in the 	future, 	should you request 	any
additional meetings of this nature with me, 	I
am requesting advance notice, 	so that 	I may
have 	a 	CSEA Union Representative 	and/or EEO
Counselor present. 	That 	is my right 	as a
State 	e m p l o y e e . . . .
On November 8, 	Mr. 	Noujaim told Ms. 	Garcia that he wanted to
conduct 	a 	follow-up meeting on the 	sick 	leave 	and 	telephone 	usage
matters. 	Ms. 	Garcia replied that 	she wished to have a CSEA
representative present 	and Mr. 	Noujaim agreed to 	that 	request.
Ms. 	Garcia contacted Ms. 	Kammerer of 	CSEA who arranged with
Mr. 	Noujaim to 	conduct 	the meeting on November 	11.
There were 	four participants at 	the meeting: 	Ms. 	Garcia,
Ms. 	Kammerer, 	Mr. 	Noujaim and Rose Del Valle, 	the purchasing
officer at 	the prison. 	Ms. 	Del Valle 	is a manager and was
requested to 	attend by Mr. 	Noujaim so 	he would have 	a witness.
The 	four participants 	were 	generally consistent 	in 	their
testimony about what 	transpired at 	the meeting. 	However, 	there
were 	some 	critical 	differences 	as will 	be 	seen 	in the 	following
summary of 	their 	testimony.
6

Ms. 	Garcia testified that prior to the meeting Mr. 	Noujaim
told her 	that 	the purpose 	of 	the meeting was 	to 	follow up 	on her
sick 	leave 	and phone usage. 	Ms. 	Garcia testified that 	she 	feared
the 	meeting 	could 	result 	in discipline 	because 	he 	already had
given her a memo 	about 	those 	subjects 	and wanted to go 	into 	them
again. 	When the meeting began, 	she testified, 	Mr. 	Noujaim told
her 	that 	the 	discussion 	on 	sick 	leave 	would be 	postponed until 	a
later time. 	She 	said he 	then asked her questions 	about 	her use
of 	the 	State 	telephone and whether 	she 	had made personal 	long
distance calls.
Ms. 	Garcia 	testified that 	she 	had anticipated there would be
such 	questions 	and brought 	the 	telephone 	bill 	from her home 	to
show 	she 	had charged calls 	made 	from a 	State phone 	to her
personal 	calling card. 	When asked on 	cross-examination 	if 	she
recalled Mr. 	Noujaim 	stating that 	he 	considered 	the 	telephone
call matter to be closed, 	Ms. 	Garcia stated that 	she 	recalled
no 	such comment. 	When the meeting ended, 	she 	testified,
Ms. 	Kammerer attempted to ask a question. 	However, 	she
testified, 	Mr. 	Noujaim told Ms. 	Kammerer that 	she 	could not 	speak
and that 	the meeting was 	over.
Ms. 	Kammerer testified that 	at 	the November 11 meeting,
Mr. 	Noujaim stated that 	he would reserve 	the 	sick 	leave
discussion until a later date. 	She 	said he asked Ms. 	Garcia
between 	three 	and 	six questions 	about 	her use 	of 	the 	State
telephone, 	including whether she had made 	the 	call 	to Reno.
7
7

Ms. 	Kammerer testified that 	during the 	discussion 	she 	took notes
but 	did not 	attempt 	to ask 	any questions.
Ms. 	Kammerer testified that when Mr. 	Noujaim was 	finished
he asked Ms. 	Garcia if she had any questions. 	Ms. 	Garcia replied
that 	she did not. 	Ms. 	Kammerer testified that 	she 	(Ms. 	Kammerer)
then 	stated that 	she had 	"a couple of 	questions" 	but was
immediately cut 	off by Mr. 	Noujaim. 	She 	said that Mr. 	Noujaim
stated that 	it 	was 	his meeting and that 	he would accept 	no
questions 	from Ms. 	Kammerer. 	Ms. 	Kammerer testified that 	she
was 	cut 	off before 	she was 	able 	to voice 	the 	subject 	of 	her
questions. 	She made no further comment. 	Ms. 	Kammerer testified
that 	it was 	her 	intent 	to ask 	for clarification of 	the 	status 	of
the 	sick 	leave 	issue 	and whether the 	telephone 	issue was 	closed.
Mr. 	Noujaim testified that 	he 	considered the November 	11
meeting to be 	a 	follow-up to his 	earlier discussion with
Ms. 	Garcia and that 	it presented no potential 	for discipline.
Nevertheless, 	he 	said, 	he agreed she could bring a union
representative because his 	relationship with Ms. 	Garcia was
strained and he wanted her to be 	comfortable. 	He 	said he
commenced 	the 	meeting by stating that 	he 	had not 	seen 	any further
evidence 	of 	telephone 	abuse 	and that 	he 	had removed Ms. 	Garcia's
personal 	phone 	line 	in any event. 	He 	said he did not 	ask any
questions about Ms. 	Garcia's use of 	the 	State telephone.
Mr. 	Noujaim testified that 	he 	then addressed the 	issue 	of
sick 	leave 	by 	stating that 	not 	enough 	time 	had passed 	since 	the
October meeting to 	show a pattern of 	improvement. 	He 	said he
8

would postpone 	the 	discussion 	about 	that 	subject 	until 	a 	future
meeting. 	Mr. 	Noujaim testified that he asked Ms. 	Garcia 	if 	she
had any questions and she 	said, 	no. 	Mr. 	Noujaim said that
Ms. 	Kammerer then stated that 	she 	had a question about 	sick
leave. 	Mr. 	Noujaim testified that 	he 	replied that 	the meeting
was 	over and he would accept 	no questions. 	He 	said Ms. 	Kammerer
had not 	attempted 	to 	speak 	any time 	during 	the 	meeting and did
not 	attempt 	to 	speak after he 	refused her question. 	Mr. 	Noujaim
said the 	meeting 	lasted about 	10 	minutes.
Ms. 	Del Valle testified that 	the November 11 meeting
commenced with a 	statement 	by Mr. 	Noujaim that 	he wanted to
discuss 	a couple of 	issues 	regarding Ms. 	Garcia's work
performance. 	She 	said he 	addressed the 	subject 	of personal
telephone 	calls 	and 	stated 	that 	he 	would 	request 	another
print-out of her phone bills. 	Ms. 	Del Valle said that
Mr. 	Noujaim did not 	ask any questions, 	that 	she 	could remember,
regarding the 	telephone. 	She 	said that Mr. 	Noujaim addressed
the 	subject 	of 	sick 	leave 	by 	stating 	that 	he 	would wait 	another
30 days to see 	if there was a decrease 	in Ms. 	Garcia's 	sick
leave usage. 	Ms. 	Del Valle 	said that Ms. 	Kammerer had not 	spoken
to that point 	of 	the meeting.
Mr. 	Noujaim then closed the meeting by asking Ms. 	Garcia 	if
she had any questions. 	Ms. 	Del Valle quoted Ms. 	Garcia as
replying, 	"no." 	However, 	Ms. 	Del Valle testified, 	Ms. 	Kammerer
then 	stated 	that 	she 	had 	a 	question 	regarding the 	"sick 	leave
policy." 	Ms. 	Del Valle 	testified that Mr. 	Noujaim responded that
9
9

he would not 	take 	any questions. 	Ms. 	Del Valle 	estimated the
length of the meeting at 	15 	to 20 minutes.
LEGAL 	ISSUES
1. 	Was the meeting between Mr. 	Noujaim and Ms. 	Garcia
an 	investigatory 	interview 	that 	reasonably might 	have 	led 	to
discipline 	and/or was 	conducted 	in 	highly unusual 	circumstances?
2. 	If 	so, 	did the State 	interfere with the 	rights of
Ms. 	Garcia and CSEA when Mr. 	Noujaim denied Ms. 	Kammerer the
right 	to 	ask questions 	at 	the 	conclusion of 	the meeting?
CONCLUSIONS 	OF 	LAW
State 	employees 	have 	the 	right under the Dills Act 	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."4 Under 	section
3519(a), 	it 	is unlawful 	for the State employer 	"to interfere
with, 	restrain, 	or coerce employees because of 	their exercise of"
protected rights. 	In an unfair practice 	case 	involving an
allegation of 	interference, 	a violation will be 	found where 	the
employer's 	acts 	interfere 	or 	tend to 	interfere 	with 	the 	exercise
of protected rights 	and the 	employer 	is unable 	to 	justify its
actions 	by proving operational 	necessity. 	(Carlsbad Unified
School District 	(1979) 	PERB Decision No. 	89.)5 In an
4Section 3515.
5The 	Carlsbad test 	for 	interference provides, 	in relevant
part, 	as follows:
2. 	Where 	the 	charging party establishes
that 	the 	employer's 	conduct 	tends 	to or does
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interference 	case, 	it 	is not necessary for the 	charging party to
show 	that 	the 	respondent 	acted with 	an unlawful 	motivation.
(Regents 	of 	the University of 	California 	(1983) 	PERB Decision
No. 	305-H.)
It 	is well-settled that 	one way an employee may exercise
protected rights 	is 	to 	request 	union representation at 	any
investigatory 	interview 	the 	employee 	reasonably believes 	might
result 	in discipline. 	This 	rule 	has 	been adopted 	in both the
private 	sector6 and 	the public 	sector7 and 	is 	known generally as
the Weingarten rule. 	The 	PERB 	has 	adopted the Weingarten 	rule
result 	in 	some 	harm to 	employee 	rights
granted under the EERA, 	a prima 	facie 	case
shall 	be deemed to exist;
3. 	Where the harm to the employees' 	rights
is 	slight, 	and the employer offers
justification based 	on operational 	necessity,
the 	competing 	interest 	of 	the 	employer 	and
the 	rights 	of 	the 	employees will 	be balanced
and 	the 	charge 	resolved 	accordingly;
4. 	Where 	the 	harm 	is 	inherently destructive
of employee rights, 	the employer's conduct
will 	be 	excused only on proof 	that 	it 	was
occasioned 	by 	circumstances 	beyond 	the
employer's 	control 	and that 	no 	alternative
course 	of 	action was 	available;
5. 	Irrespective of 	the 	foregoing, 	a charge
will 	be 	sustained where 	it 	is 	shown that 	the
employer would not 	have 	engaged 	in 	the
complained-of 	conduct 	but 	for 	an unlawful
motivation, 	purpose or intent.
6NLRB v. 	J. 	Weingarten, 	Inc. 	(1975) 	420 U.S. 	251 	[88 LRRM
2689] 	(Weingarten).
7Civil 	Service Assn. 	v. 	City and County of 	San Francisco
(1978) 	22 Cal.3d 552 	[150 Cal.Rptr. 	129]; 	Robinson v. 	State
Personnel Board 	(1979) 	97 Cal.App.3d 994 	[159 Cal.Rptr. 	222];
Marin Community College District 	(1980) 	PERB Decision No. 	145.
11

for cases 	involving the 	State. 	(See 	State 	of 	California
(Department of Forestry) 	(1988) 	PERB Decision No. 	690-S.) 	Thus,
the 	State will violate 	section 3519(a) 	if 	it 	interferes with an
employee's 	protected 	right 	to union 	representation 	at 	an
investigatory 	interview which 	reasonably might 	lead 	to
discipline.
In Weingarten situations, 	the 	key inquiry is whether the
interview was 	investigatory and of 	the 	type 	that 	might 	lead 	to
disciplinary action. 	This 	"is 	an objective 	inquiry based upon a
reasonable 	evaluation of 	all 	the 	circumstances, 	not upon the
subjective reaction of the employee." 	(Alfred M. 	Lewis, 	Inc. 	v.
NLRB 	(9th Cir. 	1978) 	587 F.2d 403 	[99 LRRM 2841, 	2845].) 	In
situations 	where 	the 	employee 	faces 	an 	investigatory 	interview,
the 	employer must 	inform the 	employee 	of 	the nature 	of 	any charge
of 	impropriety before 	the meeting. 	This 	is 	so the 	employee 	can
meaningfully exercise 	the 	right 	to 	representation.8
There 	is 	no 	right 	to 	representation where 	the purpose 	of
the meeting 	is 	simply to 	deliver notice 	of 	the 	discipline 	and not
to 	"elicit 	damaging 	facts" 	or possibly modify the 	discipline.9
(See 	State 	of 	California 	(Department 	of 	California 	Highway 	Patrol
(1997) 	PERB Decision No. 	1210-S adopting decision of
administrative 	law judge.) 	However, 	where 	the 	employer comes 	to
8Pacific Telephone and Telegraph Co. 	v. 	NLRB 	(9th Cir. 	1983)
711 F.2d 134 	[113 LRRM 3529] .
9Rio Hondo 	Community College District 	(1982) 	PERB Decision
No. 	260. 	See also, 	NLRB v. 	Certified Grocers of California, 	Ltd.
(9th Cir. 	1978) 	587 F.2d 449 	[100 LRRM 3029]; 	Baton Rouge Water
Works Co. 	(1979) 	246 NLRB 995 	[103 LRRM 1056].
12

the meeting prepared to 	discuss 	modification of 	the 	discipline
the 	right 	to 	representation re-attaches.10
An 	employee 	also a 	right 	to 	representation 	in
nondisciplinary 	situations 	presenting 	"highly 	unusual
circumstances." 	(Redwoods 	Community College District v. 	PERB
(1984) 	159 Cal.App.3d 617 	[205 Cal.Rptr. 	523] 	(Redwoods).) 	In
Redwoods 	highly unusual 	circumstances 	were 	found where 	an
evaluation 	review meeting 	was 	"investigatory 	and 	relatively
formal" 	in an 	"atmosphere 	[that] 	was 	intimidating." 	It made no
difference 	that 	an 	administrator 	had 	assured 	the 	participating
employee 	that 	the meeting had 	"no 	aspect 	or overtones 	for
discipline." 	(Id. 	at 625.)
CSEA argues 	that 	the November 	11 meeting was 	an
investigatory 	interview 	conducted 	in 	an 	atmosphere 	that 	was
intimidating. 	CSEA points 	out 	that 	there was 	a previous 	meeting
where 	the 	issues 	were 	fully discussed 	and 	a 	subsequent 	exchange
of memoranda that 	further clarified matters. 	If, 	as Mr. 	Noujaim
testified, 	the 	issue 	of 	telephone usage 	had been 	fully resolved
previously why, 	CSEA asks, 	was 	the 	follow-up meeting conducted at
all? 	CSEA challenges Mr. 	Noujaim's 	testimony that 	all 	he 	said
about 	telephone 	usage 	on November 	11 was 	that 	the 	issue was
resolved. 	If that 	is all he said, 	CSEA asks, 	how could have the
meeting 	lasted as 	long as 	10 	minutes, 	a time 	calculation to which
Mr. 	Noujaim himself 	testified?
10Rio Hondo Community College District, 	supra, 	PERB Decision
No. 260.
13

What actually happened, 	CSEA argues, 	is that Mr. 	Noujaim
asked questions 	about 	the 	telephone usage, 	which is what
Ms. 	Garcia 	had 	anticipated would happen 	and why 	she 	asked 	for
a representative. 	When Ms. 	Kammerer 	was 	denied the 	right 	to ask
questions, 	CSEA concludes, 	Ms. 	Garcia was denied the right to
representation.
The 	State 	rejects 	the 	contention that 	the meeting was 	an
investigatory 	interview 	that 	had 	the 	possibility of 	discipline.
There was no possibility of discipline, 	the State argues, 	and at
most 	the meeting was 	to be 	a discussion. 	The 	State 	accuses 	CSEA
of 	attempting to 	advance 	the position 	that 	an employee 	has 	a
right 	to 	representation 	at 	every meeting with a 	supervisor,
something the 	Dills Act 	plainly does 	not 	contemplate. 	Moreover,
the State continues, 	even if 	it be assumed that Ms. 	Garcia had
the 	right 	to a union representative 	she 	in 	fact 	had one. 	The
State points 	out 	that Ms. 	Kammerer sat 	silently through the
entire meeting 	and did not 	ask 	a 	question until 	the 	meeting was
over. 	Moreover, 	the State argues, 	the question posed by
Ms. 	Kammerer involved sick leave, 	a subject not 	covered at 	the
meeting. 	Since 	the 	question did not 	involve 	any subject
discussed, 	the State concludes, 	Mr. 	Noujaim's refusal to permit
it 	could not 	have 	interfered with protected rights.
The 	first 	question presented by these 	facts 	is 	whether
Ms. 	Garcia had a 	right 	to representation at 	the November 	11
meeting. 	Phrased another way, 	was 	the meeting either an
investigatory 	interview 	that 	reasonably 	could 	have 	resulted
14

in discipline 	(Weingarten) , 	or a meeting conducted under highly-
unusual 	circumstances 	(Redwoods)?
The 	State 	takes 	a 	rather benign view of 	the November 	11
meeting. 	All 	that happened, 	according to the State, 	is that
the 	discussion of 	sick 	leave 	usage was postponed and Ms. 	Garcia
was 	told that 	the 	question of misuse 	of 	the 	State 	telephone 	had
been permanently put 	to rest. 	I 	share 	CSEA's view that 	this
account 	of 	the meeting seems 	highly unlikely. 	One wonders, 	why
would Mr. 	Noujaim call 	the meeting at 	all 	if 	that 	is 	all 	he had
planned 	for November 	11?
I 	conclude 	that 	the 	issue 	regarding 	the 	alleged misuse
of 	the 	State 	telephone was 	unresolved prior to 	the meeting.
Ms. 	Garcia came 	to 	the November 11 meeting expecting to be 	asked
more questions 	about her use of 	the 	telephone. 	Indeed, 	she
brought 	with her a 	copy of 	her home 	telephone bill 	in order 	to
prove 	her 	contention 	that 	she 	had used her personal 	calling 	card
to make 	calls 	from her State 	telephone 	line. 	Misuse of 	a State
telephone 	is 	conduct 	which 	could 	indeed 	lead to 	discipline.
What 	actually occurred at 	the meeting bore 	out Ms. 	Garcia's
pre-meeting concerns. 	Both Ms. 	Garcia and Ms. 	Kammerer testified
that Ms. 	Garcia was 	asked questions about her telephone usage. 	I
credit 	their testimony and reject Mr. 	Noujaim's 	testimony that
all 	he 	said regarding the 	telephone 	usage was 	that 	he 	considered
the matter to be 	closed. 	He may have 	said this 	at 	the 	end of 	the
meeting but 	this was 	not 	his position at 	the beginning.
15

I 	find 	it 	far more 	likely that Ms. 	Garcia was 	asked
questions 	than that 	she was not. 	Mr. 	Noujaim testified that
the meeting lasted 10 	minutes. 	The 	other witness 	for the 	State,
Ms. 	Del Valle, 	estimated the length of the meeting at 	15 	to 20
minutes. 	It 	could not possibly have 	taken 10 	to 20 	minutes 	for
Mr. 	Noujaim to 	simply advise Ms. 	Garcia that 	the phone 	issue was
closed and that 	he was not 	going to discuss 	the 	sick 	leave
question that 	day. 	Something else occupied that 	time. 	I
conclude 	that 	what 	occupied 	the 	time 	were 	questions 	by
Mr. 	Noujaim to Ms. 	Garcia regarding her use of 	the State
telephone 	and her response 	to 	those 	questions.
For this 	reason, 	I 	conclude that 	the meeting of November 11
was 	indeed investigatory in nature. 	I 	further conclude 	that
Ms. 	Garcia 	reasonably anticipated 	that 	the meeting would 	include
investigatory questions 	about 	her use 	of 	the 	State 	telephone.
Thus, 	Ms. 	Garcia 	reasonably could have 	inferred the possibility
that 	discipline 	could 	result 	from her 	answers 	to 	questions
about the use of the State telephone. 	I 	conclude, 	therefore,
that Ms. 	Garcia had the 	right 	to union representation at 	the
meeting of November 	11.
This conclusion leads 	to the 	final 	question, 	whether
Ms. 	Garcia was 	denied the 	right 	to 	representation when
Ms. 	Kammerer was barred from asking a question. 	Representation
is 	denied if 	a union representative present 	at 	a meeting 	is
prohibited from speaking. 	(Redwoods.) 	The question here,
however, 	is whether Ms. 	Kammerer's attempt to ask a question at
16

the 	end of 	the meeting was 	an attempt 	to represent Ms. 	Garcia.
For the reasons that 	follow, 	I 	conclude that 	it was not.
Ms. 	Del Valle testified that what Ms. 	Kammerer attempted to
ask was 	a question about 	the 	"sick leave policy." 	Ms. 	Kammerer
testified that 	she 	did not 	disclose 	the 	subject 	of 	her pending
question because 	she was 	cut 	off by Mr. 	Noujaim as 	soon as 	she
stated she had 	"a couple of questions." 	I 	credit Ms. 	Del Valle's
testimony about what Ms. 	Kammerer attempted to ask.
It 	is 	clear 	from the 	text 	of 	the unfair practice 	charge
filed here by Ms. 	Kammerer that 	her original 	focus 	in these
events 	was 	what 	she 	considered 	to 	be 	a newly 	imposed 	sick 	leave
policy. 	In the text of the unfair practice 	charge, 	which was
signed by Ms. 	Kammerer, 	she 	sets out 	the 	following description of
the 	question she posed to Mr. 	Noujaim at 	the end of November 	11
meeting:
. 	. 	. When Mr. Noujaim asked Ms. 	Garcia if
she had any questions, 	Ms. 	Garcia 	stated she
did not however, 	Ms. 	Kammerer stated that 	she
had a 	question 	regarding 	the 	new 	sick 	leave
policy. 	Mr. 	Noujaim stated to Ms. 	Kammerer,
'I will not allow you 	(Ms. 	Kammerer) 	to ask
any questions 	nor will 	I 	entertain any
comments 	from you.' 	. . . . 	[Emphasis
supplied.]
Ms. 	Kammerer wrote 	this description of 	her question on or
about December 22, 	a date much closer in time to the event 	at
issue than was her testimony of June 23, 	1998. 	It 	is a
description virtually identical 	to the 	testimony of Ms. 	Del
Valle. 	I 	find Ms. 	Kammerer's 	statement 	in the charge to be more
reliable than her testimony. 	I 	conclude, 	therefore, 	that what
17

Ms. 	Kammerer was barred from asking on November 	11 was 	"a
question 	regarding 	the 	new 	sick 	leave 	policy."
Based on this conclusion, 	it 	is apparent that Ms. 	Kammerer
was not 	attempting to 	represent Ms. 	Garcia when she posed a
question to Mr. 	Noujaim at 	the 	conclusion of 	the November 	11
meeting. 	She was, 	instead, 	attempting to engage in a discussion
about 	what 	she 	saw as 	a unilateral 	change 	by the 	State 	in a
negotiable 	subject. 	This was 	an issue 	far afield 	from the use 	of
the 	State telephone, 	the only matter discussed on November 11. 	I
conclude, 	therefore, 	that 	in refusing to permit 	the question
Mr. 	Noujaim did not 	interfere with Ms. 	Garcia's right 	to
representation or with CSEA's 	right 	to 	represent 	its 	member.
Accordingly, 	I 	conclude 	that 	the 	charge 	and complaint must 	be
dismissed.
PROPOSED 	ORDER
Based upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law and the 	entire 	record 	in this matter, 	unfair practice 	charge
SA-CE-1065-S, 	California State Employees Association v. 	State of
California 	(Department 	of 	Corrections) 	and companion PERB
complaint 	are 	hereby DISMISSED.
Pursuant to California Code of Regulations, 	title 	8, 	section
32305, 	this 	Proposed Decision and Order shall become 	final 	unless
a party 	files 	a 	request 	for an extension of 	time 	to 	file
exceptions 	or a 	statement 	of 	exceptions 	with the 	Board 	itself.
This 	Proposed Decision was 	issued without 	the 	production 	of
a written transcript 	of 	the 	formal 	hearing. 	If 	a transcript 	of
18

the hearing 	is 	needed for 	filing exceptions, 	a 	request 	for an
extension of 	time 	to 	file 	exceptions must 	be 	filed with the 	Board
itself 	(Cal. 	Code Regs., 	tit. 	8, 	sec. 	32132). 	The request for an
extension 	of 	time 	must 	be 	accompanied by a 	completed 	transcript
order 	form 	(attached hereto). 	(The 	same 	shall 	apply to any
response 	to 	exceptions.)
In accordance with PERB 	regulations, 	the 	statement 	of
exceptions must be 	filed with the Board 	itself within 2 0 	days 	of
service 	of 	this 	Decision or upon 	service 	of 	the 	transcript 	at 	the
headquarters 	office 	in Sacramento. 	The 	statement 	of 	exceptions
should 	identify by page 	citation 	or 	exhibit 	number 	the 	portions
of the record, 	if any, 	relied upon for such exceptions. 	(Cal.
Code Regs., 	tit. 	8, 	sec. 	32300.) 	A document is considered
"filed" 	when 	actually received before 	the 	close 	of 	business
(5 p.m.) 	on the last day set 	for filing 	". 	. 	. o r when sent by
telegraph or 	certified or Express United States mail, 	postmarked
not later than the last day set for filing 	. 	. 	. 	." 	(Cal. 	Code
Regs., 	tit. 	8, 	sec. 	32135; Cal. 	Code of Civ. P r o c , 	sec. 	1013
shall 	apply.) 	Any statement 	of 	exceptions 	and supporting brief
must 	be 	served 	concurrently with 	its 	filing upon 	each party to
this proceeding. 	Proof 	of 	service 	shall 	accompany each copy
served on a party or 	filed with the Board itself. 	(Cal. 	Code
Regs., 	tit. 	8, 	secs. 	32300, 	32305 and 32140.)
Ronage ?. Plula IRonald E. 	Blubaugh
Administrative 	Law 	Judge
19