California State University, Long Beach (California State Employees Association) (PERB 0893H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION,
Charging 	Party,
v.
CALIFORNIA 	STATE 	UNIVERSITY,
LONG 	BEACH,
Respondent.
Case No. 	LA-CE-270-H
PERB Decision No. 	893-H
July 23, 	1991
Appearances: 	Teven C. 	Laxer, 	Representative, 	for California
State Employees' Association; 	William B. 	Haughton, Attorney, 	for
California State University, 	Long Beach.
Before Hesse, 	Chairperson; 	Camilli and Carlyle, 	Members.
DECISION
HESSE, 	Chairperson: 	This case is before the Public
Employment Relations 	Board 	(PERB or Board) 	on appeal 	by the
California State Employees' 	Association 	(CSEA) 	of an
administrative 	law 	judge's 	(ALJ) 	proposed decision 	(attached
hereto) 	which held that the California 	State University, 	Long
Beach 	(CSU) 	violated 	the Higher Education Employer-Employee
Relations Act 	(HEERA) 	section 3571(a) 	and 	(b)1 when it denied an
HEERA 	is 	codified at Government Code 	section 3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are to 	the
Government Code. 	HEERA section 3571(a) 	and 	(b) 	state, 	in
pertinent part:
It 	shall 	be unlawful 	for the higher education
employer 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
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employee 	the 	right 	to be 	represented by her 	employee 	organization
during a meeting on March 28, 	1990 and July 	17, 	1990. 	The Board
has 	reviewed the 	entire record, 	the proposed decision, 	CSEA's
exceptions, 	and CSU's response thereto, 	and finds the ALJ's
findings 	of 	fact and 	conclusions 	of 	law to be 	free 	of prejudicial
error and therefore adopts 	them as 	the decision of 	the 	Board
itself 	consistent with 	the 	following discussion.
In its 	exceptions, 	CSEA only excepts 	to the ALJ's 	remedy.
Specifically, 	CSEA objects 	to the ALJ's 	failure to 	invalidate 	and
purge Thelma Laguana's 	(Laguana) 	notice 	of 	suspension and
subsequent 	suspension. 	CSEA 	contends 	that 	the ALJ had 	authority
to 	nullify 	the 	suspension and 	should have purged 	the 	notice 	of
suspension 	since 	it was prepared after the March 	28, 	1990
meeting.
In response to CSEA's 	exceptions, 	CSU argues that the notice
of 	suspension was 	never 	introduced 	into 	evidence 	by CSEA 	and 	is
not part of the record evidence 	in this 	case. 	Further, 	the
merits 	of 	the 	suspension were 	not 	litigated 	in the 	PERB
proceeding because 	the 	amended 	complaint 	did not 	include 	any
allegations 	of discrimination or reprisal. 	Even assuming the
suspension was part of the record, 	CSU argues 	there is 	no
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.
N	2

evidence 	in the 	record to 	support 	the proposition that 	the 	notice
of 	suspension was 	based 	on 	any 	information obtained 	by CSU 	in the
March 28, 	1990 meeting.
In the discussion regarding the appropriate remedy, 	the ALJ
properly 	concluded 	that 	CSEA's 	requested 	remedies 	were
inappropriate. 	She determined that 	neither the 	letter of
reprimand 	nor 	counseling memoranda were 	a product 	of 	the 	March 	28
and July 	17, 	1990 meetings. 	With regard to the suspension, 	the
ALJ 	stated the 	following 	in a 	footnote:
As stated supra, 	at p. 	6, 	fn. 	3, 	Laguana's- -
suspension is 	not an issue in this 	case. 	At
the time of the hearing, 	both the 	letter of
reprimand issued March 28, 	1990, 	and the
notice of 	suspension issued April 	30, 	1990,
and her 	subsequent 	suspension were being
challenged before 	the 	State 	Personnel 	Board.
(ALJ's proposed decision, p. 	26, 	fn. 	7.)
While 	it may be 	true that 	the 	letter of reprimand and
suspension were 	being 	challenged 	before 	the 	State 	Personnel
Board, 	this 	fact does 	not preclude 	PERB 	from deciding whether
these 	documents 	should be 	invalidated 	and purged 	from 	Laguana's
personnel 	file. 	(See Trustees 	of 	the California 	State University
(SUPA) 	(1990) 	PERB Decision No. 	805b-H, 	app. pending.) 	However,
in the present 	case, 	the notice of 	suspension and 	subsequent
suspension were never entered into evidence. 	Further, 	there 	is
no 	testimony regarding these 	suspensions. 	Without 	any 	evidence
in the record, 	it would be 	impossible to determine whether the
suspension was 	a product of the March 28 	or July 	17, 	1990
meetings, 	and therefore 	subject to a purge order. 	(See Redwoods
Community College District 	(1983) 	PERB Decision No. 	293, 	affirmed
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Redwoods Community College District v. 	PERB 	(1984) 	159 	Cal.App.3d
617 	[205 Cal.Rptr. 	523].)
The ALJ 	correctly 	noted 	that 	the 	allegations 	regarding 	CSU's
discriminatory 	or 	retaliatory 	actions 	against 	Laguana 	were
withdrawn prior to the hearing. 	During the hearing, 	the ALJ
repeatedly 	explained 	to 	the 	charging party 	that 	the
discrimination/reprisal 	allegations 	were 	not part 	of 	the
complaint, 	and that the charging party was 	free to 	file a
separate 	unfair practice 	charge 	alleging 	discrimination 	or
reprisal.
Finally, 	the ALJ 	cited both Redwoods 	Community College
District,'. supra, 	PERB Decision No. 	293 and Taracorp Industries,
(1984) 	2 73 NLRB 221 	[117 LRRM 	1497] 	to support her rejection of
CSEA's 	requested remedies. 	In Taracorp Industries. 	supra. 	the
National 	Labor Relations 	Board 	(NLRB) 	held that 	a make whole
remedy 	(i.e., 	reinstatement and backpay) 	is 	inappropriate in
Weingarten 	cases	2 	. 	As 	the 	suspension is 	not part of 	the record
and there 	is 	no 	evidence 	that 	the 	letter of 	reprimand and/or
counseling memoranda were 	a product 	of 	the March 	28 	and July 	17,
1990 	meetings, 	the Board agrees with the ALJ's 	conclusion that a
purge 	order would be 	inappropriate.
2
2In NLRB v. 	Weingarten 	(1975) 	420 U.S. 	25 	[98 LRRM 2689],
the NLRB held that 	an employee 	is 	entitled to 	a 	representative 	at
an 	investigatory 	interview which 	the 	employee 	reasonably 	believes
will 	lead 	to disciplinary 	action.
A4

ORDER
For the reasons 	stated above, 	the Board hereby AFFIRMS 	the
ALJ's 	proposed decision 	and order.
Member Carlyle 	joined in this 	Decision.
Member Camilli ; s 	concurrence begins 	on page 	6.
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Camilli, 	Member, 	concurring: 	In accord with my dissent in
Trustees 	of the California State University 	(SUPA) 	(1990) 	PERB
Decision No. 	805b-H, 	appeal pending, 	I do not subscribe to the
portion 	of 	the majority 	decision which 	cites 	that 	case 	for 	the
proposition that 	PERB 	is 	not precluded 	from determining matters
which are 	currently before 	the 	State 	Personnel 	Board. 	Because 	I
find that portion of the decision to be 	inessential, 	I
respectfully 	concur.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES
A S S O C I A T I O N ,
Charging 	Party,
v.
CALIFORNIA 	STATE 	UNIVERSITY,
(LONG 	B E A C H ) ,
Respondent.
Unfair 	Practice
Case 	No. 	LA-CE-270-H
PROPOSED 	DECISION
(3/7/91)
A p p e a r a n c e s : 	Richard 	G. 	Funderburg, 	Senior Employee 	Relations
R e p r e s e n t a t i v e , 	for California 	State 	Employees' 	A s s o c i a t i o n ;
William B. 	Haughton, 	Senior 	Labor 	Relations 	C o u n s e l , 	for
California 	State 	University 	(Long 	B e a c h ) .
Before 	W. 	Jean 	T h o m a s , 	Administrative 	Law Judge
PROCEDURAL 	HISTORY
On A p r i l 	10, 	1990, 	the California 	State 	E m p l o y e e s '
A s s o c i a t i o n 	(hereafter 	CSEA 	or 	Charging 	Party) 	filed 	an 	u n f a i r
p r a c t i c e 	charge 	with 	the 	Public 	Employment 	Relations 	Board
(hereafter 	PERB 	or 	Board) 	against 	the 	California 	State 	University
(Long 	Beach) 	(hereafter CSU 	or 	R e s p o n d e n t ) . 	The 	charge 	alleged
violations of 	sections 	3 5 7 1 ( a ) , 	( b ) , 	and 	(d) 	of the Higher
E d u c a t i o n 	Employer-Employee 	Relations 	A c t 	(hereafter 	HEERA 	or
A c t ) . 1 The 	charge w a s 	amended on June 	11, 	1990, 	to 	add
1 The 	HEERA 	is 	codified 	at 	Government 	Code 	section 	3 5 6 0 , 	et
seq. 	A l l 	section references, 	unless 	otherwise 	indicated, 	are 	to
the 	Government 	Code.
3571. 	UNLAWFUL 	EMPLOYER PRACTICES
It 	shall 	be 	unlawful 	for 	the 	higher 	education
employer 	to 	do 	any 	of 	the 	following:
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
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allegations 	of 	additional 	unfair 	conduct by 	the 	employer.
On June 29, 	1990, 	the Office of the General Counsel of PERB,
after an 	investigation of 	the 	charge,2 issued a 	complaint.
The 	complaint 	alleged 	that 	the 	Respondent 	violated 	sections
3571(a) 	and 	(b) 	when it denied an employee the right to be
represented 	by 	her 	employee 	organization during 	a 	meeting 	on
March 28, 	1990, 	that resulted in disciplinary action against the
employee.
(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.
(d) 	Dominate or 	interfere with the 	formation
or administration of 	any 	employee
organization, 	or contribute financial or
other 	support to 	it, 	or 	in any way 	encourage
employees 	to 	join any organization 	in
preference to another. 	However, 	subject to
rules 	and 	regulations 	adopted by 	the 	board
pursuant to Section 3563, 	an employer shall
not 	be 	prohibited 	from permitting 	employees
to 	engage 	in meeting 	and 	conferring or
consulting during working 	hours 	without 	loss
of pay or benefits.
2On June 	25, 	1990, 	the Charging Party withdrew certain
allegations 	contained 	in both 	the 	original 	and 	the 	amended
charges.
N	2

Respondent 	filed 	its 	answer to the 	complaint on July 	17,
1990, 	admitting certain factual allegations but denying all
allegations 	of unlawful practices.
On July 24, 	1990, 	an informal conference was held to explore
voluntary 	settlement possibilities. 	No 	settlement was 	reached.
On August 	6, 	1990, 	Charging Party filed a request to amend
the 	complaint 	and 	a 	second 	amended 	charge 	to 	add new allegations
of 	unfair 	conduct that occurred after the 	complaint was 	issued.
Respondent did not 	oppose this 	request.
A 	formal 	hearing was 	held by 	the 	undersigned on 	September
25, 	1990. 	At the beginning of the hearing, 	Charging Party's
request 	to amend the 	complaint was 	granted. 	A written order
granting the request was 	issued September 26, 	1990. 	The
complaint was 	amended 	to 	add 	the 	allegation that 	the 	Respondent
denied the 	same 	employee 	the 	right 	to be 	represented by her
employee organization during a meeting held July 	17, 	1990. 	Post-
hearing briefs were filed November 26, 	1990, 	and the case was
thereafter 	submitted 	for proposed decision.
FINDINGS OF 	FACT
The parties 	stipulated, 	and it 	is 	therefore 	found, 	that the
Charging 	Party 	is 	a 	certified 	employee 	organization and 	the
Respondent 	is 	a higher education employer within the meaning of
section 	3562. 	Charging Party 	is 	the 	exclusive representative 	for
bargaining unit 	5 which consists 	of operations-support 	services
employees.
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Thelma 	Laguana 	is 	employed by CSU as 	a 	custodian and 	is 	a
member of unit 	5. 	Laguana has worked for CSU for nine years, 	and
has 	been assigned 	for 	the 	last 	seven years 	to the physical
education building. 	Her 	immediate 	supervisor as 	of March 	1,
1990, 	was 	lead custodian Olga Anderson. 	Prior to March 	1,
Laguana 	and Anderson worked on the 	same 	custodial 	crew 	for 	almost
one 	year under 	the 	immediate 	supervision of 	lead 	custodian Galo
Laguana. 	Galo Laguana is the husband of Thelma Laguana. 	Mrs.
Laguana 	felt 	that 	she 	and Anderson had 	a 	good working
relationship during the 	time that they were 	coworkers. 	Laguana's
regular working hours were 	from 	4:00 	a.m. 	to 	12:30 	p.m.
On March 27, 	1990, 	Anderson had a meeting with the
custodians 	to 	inform them of 	a 	new procedure 	that 	they were 	to
follow to order 	custodial 	supplies. 	The procedure 	involved
completing 	and 	submitting 	a written request 	to Anderson 	for 	the
supplies 	needed. 	Laguana did not attend the meeting because
Anderson did 	not 	inform her 	about 	it.
Within the first two hours of her shift on March 28, 	1990,
Laguana 	approached Anderson 	and 	asked 	for various 	custodial
supplies. 	Anderson 	informed Laguana 	that a 	new procedure had
been 	initiated 	for 	requesting 	and 	obtaining 	supplies 	and 	that
Laguana would 	have 	to 	follow the 	new procedure 	to 	get 	the
supplies 	that 	she wanted.
Laguana 	replied that 	she was 	unaware 	of a 	new procedure 	and
objected to having to abide by it. 	During this 	exchange, 	a brief
but 	heated 	verbal 	confrontation 	ensued between 	Laguana 	and
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Anderson over Laguana's 	objections. 	The 	exchange 	involved
Anderson waving her 	finger 	close 	to 	Laguana's 	nose 	and both women
yelling 	at 	each other. 	The 	confrontation ended with Anderson
threatening 	to 	have 	Laguana 	terminated by 	reporting 	her 	conduct
to Acey Sykes, 	the chief of custodial 	services.
Anderson then called 	Sykes 	and 	asked him to 	come 	to
Laguana's 	work 	area 	and 	speak with her 	about 	their 	confrontation.
When Sykes 	arrived, 	Anderson went 	into 	the 	locker room where
Laguana was working to 	summon her. 	The 	two 	employees 	had another
verbal 	dispute 	that 	included more yelling 	and 	finger waving.
Sykes 	intervened, 	told Laguana 	she was 	being 	insubordinate 	and
directed 	her to 	follow Anderson's 	instructions.
Later that morning, 	Sykes 	escorted Laguana to the office of
Bill Peters, 	director of plant operations, 	for a meeting
regarding 	her 	confrontations 	with Anderson.
The March 28. 	1990 Meeting
When Sykes 	and Laguana arrived at Peters' 	office, 	Anderson
was waiting 	in the outer office. 	Sykes 	left and Peters,
Anderson, 	and Laguana met together. 	At the formal hearing,
Peters 	and 	Laguana 	presented 	conflicting 	testimony 	about 	the
course of 	events 	during the meeting as 	it pertains 	to Laguana's
request 	for 	union representation.
According to Laguana, 	Peters 	never 	stated the purpose of 	the
meeting when 	it began. 	Peters 	initiated the discussion by asking
her 	several 	times why 	she 	struck Anderson. 	Laguana 	testified
that 	she 	denied 	striking Anderson 	each 	time 	she was 	asked 	and
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stated 	to 	Peters 	that Anderson had 	"lied." 	Laguana 	testified
that when these questions 	started, 	she asked for union
representation and Peters 	said, 	"No."
Sometime during this 	exchange, 	Peters 	handed Laguana a
letter of 	reprimand and 	asked her to 	sign 	it. 	The 	letter of
reprimand 	charged Laguana with 	insubordination, 	striking her
supervisor, 	and refusing to perform her 	job duties. 	The 	letter
further 	indicated 	that 	a 	recommendation 	for 	disciplinary 	action
would be made.3
Laguana 	further 	testified 	that 	she 	told 	Peters 	she would
have to 	first read the document. 	After reading it, 	she again
asked 	for 	representation and 	said that 	she would 	not 	sign the
letter. 	Peters 	responded by demanding 	several 	times 	that 	she
sign 	it. 	He 	finally 	stood up 	and yelled at Laguana that 	if 	she
did not 	sign the 	letter he would 	call 	the 	campus 	police. 	Laguana
then 	asked 	again 	for representation but 	signed 	the 	letter 	anyway
because 	she believed 	she would be arrested 	if 	she 	failed to do
so.
This 	meeting 	lasted 	for 	approximately 	one 	and 	one-half
hours. 	Anderson was present during the entire course of the
3Mrs. 	Laguana received a notice of 	10-day 	suspension on
April 	30, 	1990, 	and was 	subsequently suspended. 	Charging Party
contends 	that 	this 	disciplinary 	action was 	based 	on the
questioning of Mrs. 	Laguana during the March 28 meeting.
Respondent 	contends 	that 	one of 	the bases 	for the 	suspension was
the 	reprimand.
At the time of 	the hearing, 	the merits 	of 	the reprimand and
the 	suspension were 	being 	challenged 	in a proceeding before 	the
State 	Personnel 	Board and were 	not 	litigated 	in this 	case.
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meeting. 	However, 	she was 	not 	called to testify about her recall
of what happened.
Peters 	testified 	that 	the 	meeting was 	held 	for 	the 	express
purpose 	of 	issuing 	the 	letter 	of 	reprimand 	to 	Laguana 	and 	that
the 	letter was 	given to 	Laguana within five minutes 	after the
meeting 	started. 	He denies 	asking Laguana 	any questions 	about
her 	confrontations 	with Anderson before 	he 	issued 	the 	letter.
According to Peters' 	testimony, 	he began the meeting by
expressing 	concern to 	Laguana 	about 	her 	need 	to 	better 	control
her 	"temper." 	His 	frame of 	reference 	for these 	comments 	stemmed
from his 	knowledge 	that 	Laguana 	had 	received 	two 	traffic
citations 	from 	the 	campus 	police 	and 	an 	incident 	that 	occurred
between her and 	a 	student 	in the 	shower room of 	the women's
gymnasium. 	Before 	this discussion, 	Laguana had never been
counseled by 	any of 	her 	supervisors 	about perceived problems 	with
her 	"temper."
Peters 	admitted 	that 	both 	he 	and Anderson discussed 	the
substance of 	the 	letter of 	reprimand with Laguana. 	Even 	so,
Laguana persistently denied all 	the 	charges 	of 	misconduct.
Peters maintained, 	however, 	that Laguana never requested the
presence 	of 	a union representative 	at any time during the
meeting. 	Peters 	recalled that toward the 	end of the meeting,
Laguana did 	say 	that 	she wanted 	to 	discuss 	something but 	decided
she would discuss 	it 	instead with her union representative. 	That
is 	his 	only 	recollection of 	Laguana 	ever mentioning union
representation 	at 	the meeting.
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Peters 	admitted 	telling 	Laguana 	that 	he would 	call 	the
campus police. 	During this 	testimony he 	explained that he 	only
intended 	to have 	the police present 	to 	serve 	as 	a 	"credible
witness" 	to her receiving the 	letter. 	According to Peters, 	he
explained this 	to 	Laguana when he made the 	statement.
Prior to the March 2 8 meeting, 	Laguana was aware of her
right 	to 	representation at 	certain kinds 	of meetings with 	the
employer because 	she 	had 	seen 	a 	CSEA 	flyer regarding 	the
"Weingarten Rule"4 that was 	distributed on the campus. 	Peters
testified 	that he was 	familiar with 	"Weingarten Rights" 	and the
practice 	at 	the 	campus 	regarding 	these 	rights 	through 	training
that he 	received about administration of 	the union 	contracts. 	He
testified 	further 	that his 	longstanding practice was 	to 	allow
representation when 	an employee 	requested 	it.
Weighing the 	credibility 	of 	these 	two witnesses 	and 	their
testimony, 	the balance 	is 	tipped 	in favor of 	Laguana's 	account of
the meeting. 	Her recall 	of 	the 	events were more 	forthright and
exact than Peters', 	even under cross-examination. 	Peters was
less 	than candid about his 	knowledge 	of 	the 	content 	of 	the
discussion that 	occurred prior to the 	issuance of 	the 	letter of
reprimand. 	He 	also admitted that he 	stated he would 	call 	the
campus 	police 	after 	Laguana 	refused 	several 	times 	to 	sign the
letter of 	reprimand. 	On cross-examination, 	Peters 	testified that
he 	frequently used 	the campus 	police 	to witness 	his 	issuance 	of
4The Weingarten rule/rights will be discussed, 	infra.
8

disciplinary notices to employees. 	In this 	case, 	his 	testimony
about 	this practice 	is 	not believable.
The July 	17. 	1990 Meeting
On the morning of July 	16, 	1990, 	Anderson approached Laguana
in a hallway and gave her a 	counseling memorandum dated July 	12,
1990, 	and asked her to 	sign it. 	The memorandum stated that on
the morning of July 	12, 	Anderson had 	found Laguana 	in a
conference 	room and 	observed 	that 	she 	appeared 	to be 	"dozing 	or
sleeping" 	at 	a time when she 	should have been working. 	Laguana
told Anderson that 	she wanted to read the memo 	first. 	Anderson
said, 	"O.K.," 	and turned to 	leave. 	As Laguana read the
memorandum, 	she became angry, 	stating to Anderson that she would ...
not 	sign it. 	She also stated to Anderson, 	who was approximately
20 	feet 	away 	from Laguana, 	that Anderson had 	"better be 	careful
about what 	she writes." 	Laguana denied to Anderson that 	she was
in the 	conference room at the time 	stated 	in the memo. 	She
stated that 	she was working 	in another area 	(Locker Room C) 	at
the 	time 	and had a witness 	to that 	fact. 	Laguana 	then refused to
sign the 	memorandum.
.. .
The 	next 	morning Anderson told 	Laguana 	that 	Peters 	wanted 	to
see her. 	On her way to Peters' 	office, 	Laguana telephoned CSEA
shop 	steward 	Eugene 	Prince 	and 	told him that 	she was 	afraid 	she
was 	going to be 	questioned about 	"sleeping on the 	job." 	Prince
told Laguana 	to 	go meet with Peters 	and 	if 	certain questions 	were
asked, 	request the presence of a union representative.
9

When Laguana arrived at Peters' 	office, 	Peters and Leslie
Nix-Baker were present. 	Nix-Baker 	serves 	as 	the personnel
officer 	and 	employee 	relations 	adviser 	for plant 	operations.
There 	is 	conflicting 	testimony 	about what 	actually 	occurred
next 	at 	the meeting. 	Four witnesses 	testified about 	the 	events
that 	took place during the meeting, 	and this 	testimony contains
numerous 	discrepancies. 	Laguana 	and Prince 	testified 	for the
Charging Party. 	Besides 	his 	role as CSEA 	shop 	steward, 	Prince
was, 	at that time, 	also president of the local CSEA chapter.
Peters 	and Nix-Baker testified 	for the Respondent. 	Additionally,
Nix-Baker 	took notes 	during 	the meeting which were 	received 	as 	a
Respondent 	exhibit.
Charging 	Party's 	Witnesses
Laguana 	testified that 	she was 	not told the purpose of 	the
meeting 	at 	the 	beginning 	of 	the 	session although 	she 	suspected
that 	it was 	about the 	"sleeping on the 	job" 	allegation.
According to her account, 	the 	meeting began with Nix-Baker
questioning her about the 	"sleeping on the 	job" 	charge. 	Laguana
denied the 	charge 	and 	asked 	Peters 	and Nix-Baker 	if 	they believed
Anderson. 	When they 	said, 	"Yes," 	she asked for the presence of
her union representative. 	At Peters' 	request, 	Laguana told
Peters 	Prince's 	telephone 	extension number, 	and Peters 	then
appeared to call Prince. 	Laguana, 	who was 	sitting just a 	few
feet from Peters, 	heard him say, 	"Gene, 	this is Bill Peters.
Thelma Laguana 	is 	in my office and 	she wants 	a union
representative." 	Then he 	said, 	"Fine, 	O.K.," 	hung up the
10

telephone, 	and. returned to the table where the three were
sitting. 	Peters 	told Laguana 	that 	Prince would be 	there 	shortly.
Laguana 	estimated 	that 	the 	telephone 	conversation 	lasted 	about 	20
seconds. 	She denies 	being tearful 	or crying at the time of the
telephone call.
Laguana 	further 	testified 	that 	Peters 	and 	Nix-Baker 	resumed
questioning her 	about 	sleeping 	on the 	job 	and verbally
threatening Anderson. 	Laguana 	stated that 	she did not 	answer
their questions. 	Instead 	she 	started to cry and 	shake. 	At that
point 	Nix-Baker asked her 	if 	she wanted to 	go to 	the 	restroom to
try to compose herself. 	Laguana 	left Peters' 	office and remained
outside until 	Prince 	arrived approximately 	15 	minutes 	later.
Prince 	testified that he 	received a 	telephone 	call 	from
Peters 	sometime 	between 	8:00 	and 	9:00 	a.m., 	telling him 	that
Laguana was 	in Peters' 	office and had asked 	for a representative.
Prince 	responded 	that 	he would 	have 	to 	obtain release 	time 	from
his 	supervisor and call Peters 	back. 	According to Prince, 	he
asked 	Peters where 	Laguana was, 	and Peters 	told him that 	Laguana
had 	"broken down" 	and 	left 	the 	office 	and Peters 	thought 	that 	she
had gone 	to 	the women's 	restroom. 	Prince obtained Peters'
telephone 	extension number 	and 	told him that 	he would 	call 	him
back as 	soon as 	he 	obtained release 	time. 	Approximately 	five
minutes 	later, 	Prince 	called Peters 	and told him that he was 	on
his way to Peters' 	office. 	Prince arrived approximately 	15
minutes 	after he 	received the 	telephone 	call 	from Peters. 	During
the 	second telephone 	conversation, 	Peters 	asked Prince 	if he
11

would 	support him 	in obtaining 	a 	transfer of Laguana. 	Prince did
not 	respond 	to 	this 	question.
Prince 	further testified that when he 	arrived 	at 	Peters'
office, 	he 	saw Laguana 	standing nearby in the hallway. 	He 	could
tell 	from her appearance that 	she had been crying and was 	upset.
He 	notified Peters 	and Nix-Baker that he was 	present 	in the
building 	and 	asked 	for a 	few minutes 	alone with Laguana 	because
he wanted 	to try to 	calm her down.
After Prince and Laguana entered Peters' 	office, 	the meeting
resumed and 	lasted approximately 45 	to 	60 	minutes. 	The 	latter
part 	of 	the 	meeting began with Nix-Baker 	explaining 	to 	Prince 	the
purpose 	of 	the 	meeting and what 	had 	transpired before his
arrival. 	Among other things, 	the parties discussed the
"sleeping" 	allegation and 	the verbal 	threat that Laguana had made
to Anderson. 	Laguana 	continued to deny any 	culpability
concerning both matters. 	Peters 	and Nix-Baker both 	indicated
that 	they believed Anderson's 	version of 	these 	incidents 	rather
than Laguana's. 	The parties 	also discussed the possibility of
transferring 	Laguana 	to 	another work area 	but were 	unable 	to
reach agreement on a 	solution.
During this meeting, 	Prince raised the 	issue of 	"Weingarten
rights" 	with Peters 	because Laguana had told him that 	Peters 	and
Nix-Baker had 	continued to question her after Peters' 	telephone
call 	to Prince. 	As 	the meeting was 	concluding and Prince and
Laguana prepared to 	leave, 	Nix-Baker handed Laguana 	a 	counseling
memorandum from Bill Peters dated July 	16, 	1990. 	This memo
12

stated 	that 	Laguana 	had 	verbally 	threatened Anderson 	on July 	16,
1990, 	when Anderson delivered the July 	12, 	1990 counseling
memorandum to her about 	"sleeping on the 	job." 	The memo 	said
that Laguana's 	threatening 	statement was, 	"You better be
careful," 	which Laguana made 	to Anderson as 	she turned to walk
away. 	The memo went on to 	state that 	"threatening 	the 	supervisor
or anyone while 	on the 	job was 	unacceptable behavior" 	and 	that
Laguana was 	expected 	to 	maintain her 	temper and 	control
"verbal and physical threats" 	to her supervisor, 	coworkers, 	or
anyone 	else 	she 	encountered on the 	campus. 	The memo 	ended by
stating that 	the 	"unacceptable behavior" 	might 	lead to
disciplinary 	action.
Respondent's 	Witnesses
Peters 	testified that 	the purpose 	of 	the July 	17 	meeting was
to 	issue 	the 	counseling memorandum 	to 	Laguana 	regarding 	the 	July
16 	incident 	and discuss 	an earlier 	incident 	involving Laguana's
alleged kicking of another employee. 	According to Peters, 	Nix-
Baker 	initiated 	the 	discussion by 	questioning 	Laguana 	about 	the
"sleeping" 	incident 	and her threatening 	comment 	to Anderson.
Laguana denied both 	actions. 	She 	asked Peters 	and Nix-Baker 	if
they believed Anderson, 	and they both said, 	"Yes." 	Nix-Baker
also 	told 	Laguana 	that management would 	not 	tolerate 	her 	behavior
any 	longer. 	At 	that point 	Laguana 	started 	to 	"lose her
composure" 	and asked 	for union representation.
Immediately thereafter, 	Peters 	testified that he 	obtained
Prince's 	telephone 	extension 	number 	from 	Laguana 	and 	called 	him.
13

Peters 	told 	Prince 	that 	they were 	meeting 	about 	an 	incident
between 	Laguana 	and Anderson 	and 	that 	Laguana 	had 	requested 	his
presence. 	During this 	conversation, 	Prince told Peters 	that he
would have 	to 	obtain release 	time 	and call 	Peters 	back.
According to Peters, 	he gave Prince his 	extension number and
later, 	after Laguana 	left the room, 	Prince called back and
indicated 	that 	he would be 	arriving within a 	short 	time.
Peters 	further 	testified 	that during 	his 	first 	telephone
conversation with Prince, 	Laguana had 	lost her composure 	and was
crying, 	so was 	allowed to 	leave the room after Peters 	terminated
the conversation. 	According to Peters, 	Laguana 	left the room
approximately 	15 minutes 	after the meeting began. 	Peters denies
that 	he 	continued 	to 	question Laguana 	after the 	telephone 	call 	to
Prince. 	According to him, 	the discussion resumed only after
Prince arrived. 	He admits 	that Laguana received the July 	16
counseling memorandum at 	the 	end of 	the 	meeting.
Nix-Baker 	also 	testified 	that 	the purpose 	of 	the 	meeting was
to discuss 	"performance problems" 	with Laguana 	and to 	issue 	the
July 	16 	counseling memorandum regarding the July 	16 	incident with
Anderson. 	In particular, 	management had concerns 	about verbal
and physical 	threats 	that 	Laguana had made 	to her 	supervisor.
Also, 	Laguana 	allegedly had 	struck at her 	supervisor during 	their
March 	28 	confrontation, 	had made a verbal 	threat to Anderson on
July 	16, 	and been involved 	in a kicking incident with a 	coworker
prior to the 	"sleeping" 	incident. 	The 	"sleeping" 	incident,
according to Nix-Baker, 	however, 	was 	not the 	focal point of the
14

meeting. 	Nix-Baker testified that 	she 	started the meeting by-
explaining to 	Laguana 	the reason for 	summoning her to Peters'
office. 	According to her, 	approximately two minutes 	into the
discussion about the July 	16 	incident, 	Laguana became tearful
when they 	said that 	they believed Anderson's 	version of 	the 	July
16 	incident and asked 	for union representation.
Nix-Baker recalls 	that 	Peters went to his 	desk and 	called
Prince. 	Following his 	conversation with Prince, 	he returned to
the 	table where they were 	sitting. 	Neither Peters 	nor 	she
questioned 	Laguana 	any 	further 	nor 	engaged 	in more 	discussion
with her. 	Since Laguana was 	crying, 	Nix-Baker recalls 	that there
was 	an 	"awkward 	silence" 	for a 	few minutes 	before Nix-Baker
suggested 	that 	Laguana 	go 	to 	the women's 	restroom.
According to Nix-Baker's 	notes, 	the meeting began at
8:38 	a.m. 	and Prince arrived at Peters' 	office at approximately
8:50 	a.m. 	The 	meeting resumed by Nix-Baker giving 	Prince 	a
briefing 	about what had transpired during 	the 	first part 	of 	the
meeting. 	During the 	ensuing discussion about the 	sleeping
incident, 	Peters 	and Nix-Baker indicated that one of 	Laguana's
coworkers 	had witnessed Anderson 	finding 	Laguana 	asleep 	on 	the
job.
According to Nix-Baker, 	she presented the counseling
memorandum to 	Laguana 	as 	the meeting was 	about to 	end. 	Although
Nix-Baker regarded 	Laguana's 	alleged 	kicking of 	the 	coworker 	as
15

a 	serious matter, 	she decided not to 	include any reference to 	it
in the July 	16 	counseling memorandum.5
Credibility 	Resolutions
The 	credibility of 	each witness' 	account of the 	chronology
of the meeting, 	prior to Prince's arrival, 	has been carefully
evaluated.
Neither 	Peters 	nor Nix-Baker 	refuted 	Laguana's 	testimony
that 	she was 	not 	specifically 	informed at 	the 	start 	of 	the 	July
17 	meeting that 	she was 	summoned to receive a counseling
memorandum regarding 	the 	July 	16 	incident with Anderson.
Additionally, 	neither witness 	refuted Laguana's 	recitation about
the 	content of 	Peters' 	telephone conversation with Prince 	that
she heard while 	she was 	in Peters' 	office. 	Peters never directly
contradicted 	Laguana's 	statement 	that he 	did 	not 	actually
complete 	the telephone call 	to Prince while 	she was 	in the room.
Also 	neither 	Peters 	nor 	Nix-Baker 	contradicted 	Prince's 	testimony
about 	the 	substance 	of his 	two 	telephone 	conversations with
Peters.
The weight given Peters' 	testimony about the 	first part of
the 	meeting was 	undermined by 	the 	fact 	that his 	representative
16
5Galo 	Laguana 	testified 	that 	he witnessed the 	alleged
"kicking" 	incident. 	It occurred 	shortly after the March 	28
meeting between Peters 	and Thelma 	Laguana. 	The 	incident 	involved
a part-time 	custodial 	employee 	named 	"Maria." 	As 	Thelma 	Laguana
walked by Maria, 	who was 	sitting on a bench 	in the work area,
Maria 	stuck her 	foot 	in Thelma 	Laguana's 	path and kicked 	at her.
His wife was 	not the 	instigator of this 	encounter. 	Mr. 	Laguana
told his wife 	to 	"forget 	it" 	and get back to work 	since 	she was
already having problems with Anderson. 	According to Mr. 	Laguana,
no 	supervisor 	ever 	questioned him about 	the 	incident.

asked 	leading 	questions 	during 	direct 	examination 	about 	certain
critical 	facts. 	This, 	coupled with his 	general demeanor and
evasiveness 	on 	cross-examination, 	detracted 	from the
believability of his version of 	the 	facts. 	His 	estimate of the
time 	that 	elapsed between 	the 	beginning 	of 	the 	meeting 	and 	the
time when Laguana 	left his 	office 	conflicts with the 	times 	Nix-
Baker 	stated 	in her testimony and 	in her notes 	of 	the meeting.
Yet this 	contradiction was not accounted for. 	Peters' 	recall of
certain key facts was 	less precise and, 	hence, 	less 	reliable than
would be 	expected of 	one 	in his position of 	authority and
responsibility. 	Overall, 	Peters' 	testimony was not persuasive
where 	it 	conflicted with the other witnesses' 	testimony.
Nix-Baker's 	recall 	of 	the 	chronology of 	events 	during the
first part of 	the meeting was 	more detailed than Peters'.
Although her 	contemporaneous 	notes 	of 	the 	meeting provide 	some
substantiation of her testimony, 	her testimony about the 	length
of 	the 	meeting 	and 	the 	subjects 	covered 	conflicted with 	the
testimony of Laguana, 	Prince and Peters. 	Given the 	fact that
Nix-Baker 	initiated 	the 	opening 	discussion 	and 	conducted 	most 	of
the questioning of 	Laguana, 	her account of what occurred 	seemed
somewhat 	self-serving 	and 	detracted 	from 	her 	credibility.
For these reasons, 	the Charging Party's 	version of the 	facts
about the 	first part of the meeting 	is 	credited, 	to the 	extent
that material disputes have been identified. 	Specifically, 	it 	is
found that: 	(1) 	Laguana was 	not 	informed at the beginning of 	the
July 	17 	meeting that the purpose of 	the meeting was 	to 	issue 	a
17

counseling memorandum 	and 	to 	discuss 	other 	management 	concerns
about her overall performance; 	(2) 	the questioning of Laguana
regarding 	her 	conduct 	on the 	job 	lasted 	longer 	than two 	minutes
before Laguana asked 	for union representation; 	(3) 	after Laguana
requested the presence of her union representative, 	Peters 	did
appear to make a telephone call to Prince, 	however, 	the call was
not completed at that time; 	(4) 	after Peters 	completed the
purported telephone 	call, 	Nix-Baker and Peters 	resumed 	some
questioning 	of 	Laguana 	and 	stopped when 	she 	lost her 	composure
and began to 	cry; 	and 	(5) 	Peters 	actually called Prince 	for the
first 	time after Laguana 	left his 	office 	to 	compose herself.
ISSUE
Whether 	CSU 	interfered with 	and 	denied 	Laguana 	the 	right 	to
union representation during the meetings 	on March 	28 	and July 	17,
1990, 	in violation of sections 	3571(a) 	and 	(b)?
DISCUSSION
CSEA 	charges 	that both 	Laguana 	and CSEA 	itself were denied
rights 	provided 	by 	HEERA when CSU 	agent 	Peters 	denied 	Laguana's
request 	for union representation during 	the 	meetings 	on March 	28
and July 	17, 	1990. 	CSU maintains that Laguana's Weingarten6
- -
rights were not violated at 	either meeting because 	(1) 	she did
not 	request 	union representation at 	any time during 	the 	March 	28
meeting, 	and 	(2) 	no questions were asked of Laguana at the July
6NLRB v. 	Weingarten 	(1975) 	420 U.S. 	25 	[98 LRRM 2689] 	holds
that 	an employee 	is 	entitled 	to a 	representative 	at an
investigatory 	interview which 	the 	employee 	reasonably 	believes
will 	lead 	to 	disciplinary 	action.
18

17 	meeting between the time 	she 	requested union representation
and the time that 	she 	left Peters' 	office prior to Prince's
arrival.
Section 3565 provides, 	among other things, 	that higher
education employees have a right to 	". 	. 	. 	participate in the
activities 	of 	employee 	organizations 	of 	their own choosing 	for
the purpose 	of 	representation on all 	matters 	of 	employer-employee
relations . . . ."
The 	term 	"matters 	of 	employer-employee relations" 	has 	been
held 	to 	specifically 	include 	the right of 	representation, 	upon
request, 	at any employer's 	investigatory 	interview if 	the
employee 	reasonably believes 	that 	the 	interview might 	result 	in
disciplinary 	action. 	Rio 	Hondo 	Community 	College 	District 	(1982)
PERB Decision No. 2 60, adopting the rule of NLRB v. Weingarten.
Inc.f 	supra.
In Baton Rouge Waterworks Co. 	(1979) 	246 NLRB 995 	[103 	LRRM
1056], 	the NLRB concluded that an employee has no right to union
representation at meetings 	with 	the 	employer 	that 	are 	held 	solely
for the purpose of 	informing the employee of, 	or acting upon, 	a
previously made disciplinary decision. 	However, 	the right to
representation attaches where 	the 	employer's 	conduct 	goes 	beyond
this purpose, 	and either 	(1) 	seeks 	facts or evidence in support
of the disciplinary action, 	(2) 	attempts 	to have the employee
"admit his 	alleged wrongdoing or to 	sign a 	statement 	to 	that
effect," 	or 	(3) 	seeks to have the employee 	"sign statements
relating to 	such 	[other] 	matters 	as workmen's 	compensation
19

. 	. 	. 	." 	See Morris, 	The Developing Labor Law. 	2d Ed.,
pp. 	152-153.
In Roadway Express. 	Inc. 	(1979) 	246 NLRB 	1127 	[103 LRRM
1050], 	the NLRB observed that once an employee makes a valid
request 	for union representation, 	the 	employer has 	a choice of
one of three options: 	(1) 	grant the request; 	(2) 	dispense with
or discontinue the interview; 	or 	(3) 	offer the employee the
choice 	of 	continuing the 	interview unaccompanied by 	a union
representative 	or of having no 	interview at all, 	and thereby
dispensing with 	any 	benefits 	which 	the 	interview might 	have
conferred on the employee. 	The employer, 	however, 	may not
continue 	the 	interview without 	granting 	the 	requested 	union
representation unless 	the 	employee 	"voluntarily agrees 	to 	remain
unrepresented 	after 	having 	been presented 	by 	the 	employer with
the 	choices" 	described above or 	"is 	otherwise made aware of these
choices." 	U.S. 	Postal Service 	(1979) 	241 NLRB 	141 	[100 LRRM
1520]
In Regents 	of 	the University of California 	(1983) 	PERB
Decision No. 	310-H, 	the Board concluded that an employee's 	right
to 	union 	representation 	at 	disciplinary 	and 	investigatory
meetings 	as 	set 	forth 	in Weingarten and 	its 	progeny 	is 	applicable
to HEERA cases.
Thus, 	under the Weingarten rule as 	interpreted by related
cases, 	several 	questions 	must be resolved 	in the 	instant 	case to
determine whether 	Laguana's 	representational 	rights 	were
interfered with or denied. 	First, 	were the meetings 	for an
20

investigatory 	(as well as disciplinary) 	purpose which the
employee 	reasonably perceived as 	a possible pre-disciplinary
inquiry? 	Second, 	did the 	employee 	request union representation
during the March 	28 	meeting? 	And third, 	if 	such request was
made, 	did the 	employer persist 	in conducting the meeting without
representation or 	otherwise 	infringe 	on the 	employee's 	right 	to
representation? 	This 	analytical 	approach will 	be 	applied 	to 	the
facts 	of 	each allegation of 	this 	case.
The March 2 8 Meeting
At the March 	28 	meeting, 	the employer clearly went beyond
merely 	informing 	the 	employee 	of 	the 	imposition of 	discipline.
Although 	Peters 	could have 	satisfied his 	obligation by 	allowing
Laguana 	to review the 	letter of 	reprimand, 	comment on it 	if 	she
so desired, 	and sign it or refuse to 	sign it, 	he went much
further. 	Peters began the meeting, 	not by informing the 	employee
that 	she was 	going 	to 	receive 	a previously-determined 	reprimand,
but 	rather by 	questioning 	Laguana 	about 	her 	alleged misconduct.
This 	action was 	no doubt an attempt 	to have her admit 	that 	she
"struck" 	Anderson as 	stated 	in the disciplinary 	letter. 	Even
though the 	Respondent 	characterizes 	the meeting as 	a 	disciplinary
interview, 	Peters' 	conduct converted the meeting to one to which
the Weingarten protections became 	applicable.
Since 	Peters 	did not 	inform Laguana 	at 	the beginning 	of 	the
meeting that 	its 	purpose was 	to present her with a 	letter of
reprimand, 	the general questions 	that he propounded to her about
her 	"temper" 	and her March 	28 	confrontation with Anderson 	led
21

Laguana 	to 	reasonably 	believe 	that 	the 	interview would 	lead 	to
discipline. 	Once Laguana made her 	first request 	for
representation during this 	exchange, 	Peters was 	not 	free to
continue with 	the 	questionin	
• g unless 	he 	offered 	Laguana 	the
option of 	continuing the 	interview unaccompanied by 	a 	union
representative or having no 	interview at all. 	There 	is 	no
evidence 	that 	Peters 	explained 	these 	options 	to 	Laguana 	and 	that
she waived her right 	to 	representation after making the 	initial
request. 	However, 	Peters 	continued with the interview,
eventually 	issued the reprimand to 	Laguana, 	and demanded 	that 	she
sign it.
Although CSU had the right 	to require 	Laguana 	to 	give
written acknowledgment of 	receipt of 	the reprimand, 	it 	is
concluded that, 	under this 	circumstance, 	she was 	entitled to
representation before being 	forced to 	sign the document 	on March
28. 	Respondent 	failed to 	establish that Peters 	advised Laguana,
before requesting her 	signature, 	that 	signing for receipt of 	the
document 	did 	not 	signify her 	approval 	or agreement with 	the
contents 	of the reprimand. 	The document 	itself 	contains 	no 	such
indication of that 	fact. 	Furthermore, 	Peters offered no valid
justification 	for 	insisting 	that 	Laguana 	sign and 	then
threatening to 	call 	the campus police when 	she hesitated 	to 	act
unadvised about the 	significance of her 	signature. 	Finally, 	it
is 	noted 	that Anderson was 	present during the 	entire meeting.
Thus, 	even if 	Laguana had refused to give written acknowledgment
22

that 	she 	received the 	reprimand, 	Anderson witnessed that 	the
disciplinary 	action was 	acted upon.
Given the 	intimidating 	atmosphere 	created by 	Peters'
actions, 	as well 	as 	Laguana's 	uncertainty about what 	signing the
document 	signified, 	it was 	not unreasonable 	for Laguana to
believe 	that 	she 	needed the 	assistance 	of 	her union
representative to provide 	advice 	and direction. 	Adding 	to the
employee's 	existing apprehension, 	the 	reprimand 	stated that
Peters 	was 	recommending 	further disciplinary 	action. 	Based 	on
these 	facts, 	Laguana arguably had a 	right under HEERA to be
represented by CSEA before being 	required 	to 	sign the 	letter 	of
reprimand, 	and CSEA arguably had a 	right 	to 	represent her.
California State Employees' 	Association v. 	Regents 	of the
University of California 	(1984) 	PERB Decision No. 	449-H.
.. .
Since 	it 	is 	clear that 	these rights were not 	accorded 	to
Laguana, 	it 	is 	concluded that CSU's 	failure to grant Laguana's
repeated requests 	for representation during the March 28, 	1990
meeting violated 	section 	3571(a) 	by 	interfering with 	Laguana's
statutory 	right to 	representation. 	The 	same 	conduct 	also
violated 	section 	3571(b) 	by denying CSEA the 	ability to
effectively 	give 	the 	aid 	and protection 	sought 	by 	a 	unit 	member.
The July 	17 Meeting
Obviously the July 	17, 	1990 meeting with Laguana was 	not
solely 	for the purpose 	of 	issuing 	the 	counseling memorandum to
her. 	While the 	Respondent 	contends 	that 	the meeting was
primarily a disciplinary 	interview, 	it concedes 	that Peters 	and
23

Nix-Baker also wanted to discuss 	other 	job performance 	"problems"
with Laguana. 	In fact, 	the 	interview started without any mention
that 	the 	employer was 	going to 	take 	corrective 	action against
Laguana during the meeting. 	The memorandum was 	not addressed
until 	it was 	issued to Laguana 	at the 	end of 	the meeting after
lengthy discussion had occurred. 	Instead the July 	17 	meeting
began with Laguana 	being 	required 	to participate 	in a 	discussion
with 	two 	high-level 	department 	administrators 	and respond 	to
questions 	about 	her work performance 	and 	a 	dispute with her
supervisor.
Faced with this 	situation, 	Laguana's 	reasonable belief 	that
disciplinary 	action would 	result 	from 	the 	interview was 	implicit
in her request 	for union representation. 	Unquestionably, 	this
part of 	the meeting was 	more akin to 	an 	investigatory 	interview
than it was disciplinary. 	This 	conclusion is 	supported by Nix-
Baker's 	testimony 	that Peters 	and 	she wanted 	to hear 	"Thelma's
side of 	the 	story" 	before 	issuing the memorandum. 	Following
,Laguana's 	request 	for representation, 	the 	employer 	should have
ceased 	all 	questioning of 	the 	employee until 	her requested
representative 	arrived or 	Laguana 	expressed willingness 	to
continue with 	the 	meeting 	unaccompanied by her 	representative.
However, 	after Peters' 	purported telephone call to Prince,
the 	questioning was 	resumed without 	any 	objective 	evidence 	that
Laguana 	agreed 	to 	remain unrepresented during this 	interim. 	The
atmosphere 	created 	by 	the 	continued 	questioning was 	apparently 	so
overpowering to 	Laguana that 	she became 	emotionally upset, 	began
24

to 	cry, 	and 	eventually had to 	leave 	the room to regain her
composure. 	It's difficult to otherwise 	conceive of how just two
minutes 	of questioning, 	as Nix-Baker claims, 	would have produced
such a 	reaction by the affected 	employee.
Respondent 	failed 	to present 	any 	convincing 	evidence 	to
rebut the 	conclusion that the 	first part of the July 	17 	meeting
was 	other than an 	investigatory 	interview. 	Given this 	finding,
it 	is 	determined that the 	employer was 	required to refrain 	from
further 	interview of 	the 	employee until 	the requested
representative was 	present. 	However 	since 	the 	questioning
continued, 	Laguana was denied her valid right to representation.
It 	is 	thus 	concluded that CSU's 	failure 	to grant 	Laguana's
request 	for union representation during 	the 	first part 	of 	the
July 	17, 	1990 meeting violated section 3571(a) 	by interfering
with Laguana's 	statutory right 	to 	representation. 	This 	conduct
also denied CSEA the right to 	represent 	its 	unit member 	in
violation of section 3571(b).
REMEDY
Section 	3563.3 	gives 	PERB the power to:
. 	. 	. 	issue a decision and order directing an
offending party 	to 	cease 	and desist 	from the
unfair practice 	and 	to 	take 	such 	affirmative
action 	. . . 	as 	will 	effectuate 	the policies
of this 	chapter.
In this 	case, 	it has 	been found that CSU violated 	section
3571(a) 	by denying a bargaining unit employee the right to be
represented by her 	exclusive 	representative 	at 	two 	meetings
during which 	the 	employer's 	conduct went 	beyond 	the 	mere
25

imposition of 	disciplinary action. 	CSU's 	conduct 	also violated
section 	357l(b) 	in that 	it denied the exclusive representative
the 	right to represent a unit member during 	such meetings, 	under
the 	circumstances 	described herein.
CSEA argues 	for a remedy that 	(1) 	invalidates 	the April 	30,
1990 	notice 	of 	suspension which 	it 	alleges 	resulted 	from the
questioning of Laguana during the course of the March 	28, 	1990
meeting, 	(2) 	directs 	the Respondent to purge Laguana's personnel
file of 	all 	adversarial documents 	related to the March 	28 	and
July 	17, 	1990 meetings, 	including the 	letter of reprimand and the
two counseling memoranda, 	and 	(3) 	directs 	the Respondent to cease
and 	desist 	from 	taking 	further 	retaliatory 	actions 	against
Laguana.
There 	is 	no basis 	to award 	such a remedy in this 	case. 	The
letter 	of 	reprimand 	and 	the 	counseling memoranda 	that 	the
Charging 	Party 	seeks 	to 	have 	expunged were both prepared prior 	to
the 	respective meetings 	held with Laguana. 	Neither was 	based 	in
whole, 	or in any part, 	on any information or other evidence
acquired by the Respondent as 	a result of 	the meetings. 	Unlike
Redwoodsr 	where a memorandum prepared after a meeting was 	ordered
purged, 	here there 	is 	no product of 	either meeting which can be
the 	subject of 	a purge order.7 Redwoods 	Community College
District 	(1983) 	PERB Decision No. 	293, 	affd. 	sub nom. 	Redwoods
7As 	stated supra. 	at p. 	6, 	fn. 	3, 	Laguana's suspension is
not an issue 	in this 	case. 	At the time of the hearing, 	both the
letter of reprimand issued March 28, 	1990, 	and the notice of
suspension issued April 	30, 	1990, 	and her subsequent 	suspension
were 	being 	challenged before 	the 	State 	Personnel 	Board.
26

.2 .
Community College District v. 	PERB 	(1984) 	159 Cal.App.3d 	617 	[205
Cal.Rptr. 	5231: 	Taracorp Industries 	(1984) 	273 NLRB 221 	[117 LRRM
1497]. 	Charging Party's 	allegations 	regarding Respondent's
retaliatory 	actions 	against 	Laguana were withdrawn prior 	to 	the
hearing 	and thus 	not 	litigated 	in this 	proceeding.
In order 	to 	remedy the unfair practice 	committed by the
Respondent 	and 	to prevent 	it 	from benefiting 	from 	its 	unfair
conduct, 	it 	is 	appropriate to order the Respondent to cease and
desist 	from 	interviewing Thelma Laguana, 	under the 	circumstances
set 	forth herein, 	after 	she has 	specifically requested the
presence 	of 	a union representative at 	such interview, 	unless 	such
representative is present.
It 	is 	also appropriate that 	the Respondent be 	required 	to
post a notice 	incorporating the terms 	of this order. 	The Notice
should be 	subscribed by 	an authorized agent 	of 	the California
State 	University 	(Long Beach) 	indicating that 	it will 	comply with
the terms 	thereof. 	The Notice 	shall 	not be reduced 	in 	size,
.defaced, 	altered or covered by any other material. 	Posting 	such
a 	notice will 	provide 	employees with 	notice 	that 	Respondent 	has
acted 	in 	an unlawful 	manner and 	is 	being 	required to 	cease 	and
desist 	from this 	activity. 	It 	effectuates 	the purposes 	of 	the
Act 	that 	employees 	be 	informed of 	the resolution of 	the
controversy 	and will 	announce 	the 	Respondent's 	readiness 	to
comply with 	the 	ordered remedy. 	See 	Davis 	Unified 	School
District, 	et al. 	(1980) 	PERB Decision No. 	116 and Placerville
Union School District 	(1978) 	PERB Decision No. 	69.
27

PROPOSED 	ORDER
Based upon the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	and the entire record of this 	case, 	it 	is 	found that the
California 	State 	University 	(Long 	Beach) 	violated 	sections
3571(a) 	and 	(b) 	of the Higher Education Employer-Employee
Relations Act. 	Pursuant to Government Code 	section 3563.3, 	it 	is
hereby 	ORDERED 	that 	the 	California 	State 	University 	(Long 	Beach)
and 	its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Interviewing Thelma Laguana, 	under the
circumstances 	set 	forth herein, 	after 	she has 	specifically
requested the presence of 	a union representative, 	unless 	such
representative 	is present.
2. 	Denying to the California State Employees'
Association rights 	guaranteed 	to 	it 	by 	the 	Higher 	Education
Employer-Employee 	Relations 	Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	HIGHER EDUCATION
EMPLOYER-EMPLOYEES 	RELATIONS ACT.
1. 	Within ten 	(10) 	workdays of 	service of a final
decision in this matter, 	post at all 	locations where notices 	to
employees 	are 	customarily posted, 	copies 	of the Notice attached
hereto 	as 	an appendix. 	The Notice must be 	signed by an
authorized agent 	for the California 	State 	University 	(Long
Beach), 	indicating that the University will comply with the terms
of 	this 	Order. 	Such posting 	shall be maintained 	for a period of
thirty 	(30) 	consecutive 	calendar days. 	Reasonable 	steps 	shall be
28
•

taken to 	insure that the Notice 	is 	not reduced 	in size, 	altered,
defaced 	or 	covered by 	any other material.
2. 	Within thirty 	(30) 	workdays of 	service of a final
decision 	in this 	matter, 	notify the Los Angeles 	Regional 	Director
of the Public 	Employment Relations 	Board, 	in writing, 	of the
steps 	the 	employer has 	taken to 	comply with the terms 	of 	this
Order. 	Continue to report 	in writing to the Regional 	Director
periodically thereafter as 	directed. 	All 	reports 	to 	the 	Regional
Director 	shall 	be 	serve	
• 	d 	concurrently on the 	Charging 	Party.
Pursuant to California Code of Regulations, 	title 	8,
section 32305, 	this 	Proposed Decision and Order 	shall become
final unless 	a party 	files 	a 	statement of 	exceptions with the
Board 	itself 	at the headquarters 	office 	in Sacramento within 	20
days 	of 	service of this 	Decision. 	In accordance with PERB
Regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit number the portions 	of the record, 	if 	any,
relied upon 	for 	such 	exceptions. 	See California Code 	of
Regulations, 	title 8, 	section 32300. 	A document is considered
"filed" 	when actually 	received before 	the 	close 	of 	business
(5:00 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 	. 	. 	. 	." 	See
California Code of Regulations, 	title 8, 	section 32135. 	Code of
Civil 	Procedure 	section 	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
29

shall 	accompany 	each 	copy 	served 	on a party 	or 	filed with 	the
Board itself. 	See California Code of Regulations, 	title 	8,
sections 	32300, 	32305 and 32140.
Dated: 	March 7, 	1991
W. 	JEAN 	THOMAS 	n
Administrative 	Law Judge
30

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. 	LA-CE-270-H,
California State Employees' 	Association v. 	California State
University 	(Long Beach). 	in which all parties had the right to
participate, 	it has 	been found that the California State
University 	(Long Beach) 	violated 	sections 	3571(a) 	and 	(b) 	of the
Higher 	Education Employer-Employee 	Relations 	Act.
As 	a result of 	this 	conduct, 	we have been ordered to post
this 	Notice and we will:
A. 	CEASE AND 	DESIST FROM:
1. 	Interviewing Thelma Laguana, 	under the circumstances
set 	forth herein, 	after 	she has 	specifically requested the
presence 	of 	a union representative, 	unless 	such representative 	is
present.
2. 	Denying to the California State Employees'
Association rights 	guaranteed 	to 	it by 	the 	Higher Education
Employer-Employees 	Relations Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
Within ten 	(10) 	workdays 	of 	service of a final decision
in this matter, 	post at all 	locations where notices to employees
are 	customarily posted, 	copies 	of 	the Notice attached hereto 	as
an appendix. 	The Notice must be 	signed by an authorized 	agent
for the California State University 	(Long Beach), 	indicating that
the 	University will 	comply with the terms 	of this Order. 	Such
posting 	shall 	be 	maintained 	for 	a period 	of 	thirty 	(30)
consecutive 	calendar days. 	Reasonable 	steps 	shall be taken to
insure that the Notice is 	not reduced in size, 	altered, 	defaced
or 	covered by 	any other material.
Date:
By: Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND
MUST NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED, 	OR COVERED WITH
ANY 	OTHER MATERIAL.
e