State of California (Department of California Highway Patrol) (PERB 1210S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF CALIFORNIA HIGHWAY PATROL),
Respondent.
)
)
)
) 	Case No. 	LA-CE-331-S
PERB Decision No. 	1210-S
June 23, 	1997
)
))
)
)
)
)
Appearances: 	Ebernezer Stamps, 	Labor Relations Representative,
for California State 	Employees Association; 	State 	of 	California
(Department 	of Personnel Administration) 	by Marguerite D. 	Shea,
Labor Relations 	Counsel, 	for State of California 	(Department 	of
California Highway Patrol).
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on exceptions 	filed
by the California State 	Employees Association 	(CSEA) 	to a 	PERB
administrative law judge's 	(ALJ) 	proposed decision 	(attached).
In the proposed decision, 	the ALJ dismissed 	the unfair practice
charge 	and 	complaint 	which alleged that 	the 	State 	of 	California
(Department of 	California Highway Patrol) 	(Department) 	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. 	Dills Act 	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

denying 	an employee 	the 	right 	to 	CSEA representation 	in meetings
with Department 	officials.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the 	original 	and amended unfair practice 	charge, 	the
ALJ's proposed decision, 	CSEA's appeal and the Department's
response 	thereto. 	The Board 	finds 	the proposed decision2 to be
free 	of prejudicial 	error and hereby adopts 	it as 	the 	decision
of 	the Board 	itself.
The unfair practice 	charge 	and 	complaint 	in Case
No. 	LA-CE-331-S 	are hereby DISMISSED WITHOUT LEAVE TO AMEND.
Members 	Johnson and Dyer 	joined 	in 	this 	Decision.
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.
2State 	of 	California 	(Department 	of 	Parks and Recreation)
(1990) 	PERB Decision No. 	810-S 	cites Rio Hondo Community College
District 	(1982) 	PERB Decision No. 	272, 	not Rio Hondo Community
College District 	(1983) 	PERB Decision No. 	292. 	In addition,
Rio Hondo Community College District 	(1982) 	PERB Decision No. 	260
states 	that 	no 	right 	to 	representation attaches 	to a meeting held
merely to 	inform an 	employee 	of 	previously predetermined
discipline.
22

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE OF 	CALIFORNIA 	(DEPARTMENT
OF CALIFORNIA HIGHWAY PATROL),
Respondent.
)
)
)
) 	Unfair 	Practice
Case No. 	LA-CE-331-S
PROPOSED DECISION
(2/7/97)
)
)
)
)
)
)
Appearances: 	Ebernezer Stamps, 	Labor Relations Representative,
for California 	State 	Employees Association; 	State 	of 	California
(Department 	of 	Personnel Administration) 	by Marguerite 	Shea,
Attorney, 	for State 	of 	California 	(Department 	of 	California
Highway Patrol).
Before Gary M. 	Gallery, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	case 	involves 	the 	alleged denial 	of union
representation 	for 	a 	clerical 	employee 	at 	meetings 	called by
department managers. 	The proposed decision 	follows 	an unfair
practice 	charge 	filed on January 23, 	1996, 	by the California
State 	Employees Association 	(CSEA) 	against 	the 	State of
California 	(Department 	of 	California 	Highway Patrol)
(Department) . 	An amended charge was 	filed on March 6, 	1996.1
After investigation, 	and on June 20, 	1996, 	the Office of the
General 	Counsel 	of 	the 	Public 	Employment 	Relations 	Board 	(Board
or PERB) 	issued a complaint 	against 	the Department. 	The
1On June 14, 	1996, 	CSEA withdrew portions of 	its unfair
practice 	charge 	relating to 	alleged denial 	of 	representation at
meetings on August 17, 	1995, 	and February 9, 	1996, 	and an alleged
reprisal 	on February 9, 	1996, 	relating to notice 	that
disciplinary action was 	being 	considered 	against 	Connie 	Armstead.
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.

complaint 	alleged 	that 	Connie Armstead 	(Armstead) 	is 	an employee
of 	the 	Department 	and a 	CSEA job 	steward. 	It 	alleged that 	on
three separate occasions, 	August 8, 	15, 	and November 22, 	1995,
Armstead was 	required 	to 	meet 	with 	Department 	officials 	during
which 	she 	had 	reasonable 	belief 	that 	the 	interview would 	result
in disciplinary action, 	or in the alternative, 	posed highly
unusual 	circumstances. 	On 	each occasion, 	Armstead requested 	the
presence 	of 	a 	CSEA representative, 	and on each occasion, 	the
request 	was 	denied. 	Each 	denial 	of 	request 	for
representation was 	alleged 	to violate 	the 	Ralph C. 	Dills Act
(Dills Act) 	section 3519(a) 	and 	(b) .2
The Department's answer, 	filed July 11, 	1996, 	made 	factual
admissions 	and denials, 	denied any violation of 	the 	Dills Act 	and
raised affirmative 	defenses 	that 	will 	be 	set 	forth 	in other parts
of 	this 	decision.
A settlement 	conference 	did not 	resolve 	the 	dispute. 	Formal
hearing was 	held before 	the 	undersigned on November 	13, 	1996, 	in
2The 	Dills 	Act 	is 	codified 	at 	Government 	Code 	section 	3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are 	to 	the 	Government 	Code. 	In relevant part, 	section
3519 provides 	that 	it 	is 	unlawful 	for the 	state 	to:
(a) 	Impose 	or threaten to 	impose 	reprisals
on employees, 	to discriminate 	or threaten 	to
discriminate 	against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of 	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

San Diego, 	California. 	At the conclusion of CSEA's case-in-
chief, 	the Department moved 	for dismissal 	of 	the 	complaint 	on the
grounds 	that 	CSEA had failed 	to prove 	a prima 	facie 	violation of
the Dills Act. 	The motion was 	taken under consideration to be
addressed 	in this 	decision. 	The parties waived transcript
preparation and the 	filing of post-hearing briefs. 	The matter
was 	deemed 	submitted 	for proposed decision 	at 	the 	conclusion of
the 	formal 	hearing.
FINDINGS 	OF 	FACT
CSEA is 	a 	recognized employee 	organization of 	an 	appropriate
unit 	of 	employees 	and the Department 	is 	an employer, 	both with
the meaning of 	the Dills Act. 	Armstead is 	an employee 	and a
member of 	the 	bargaining unit 	represented by CSEA. 	She 	also
serves 	as 	a 	job 	steward 	for CSEA.
Prior to July 1, 	1995, 	Armstead was an office assistant 	II
for the California State 	Police Department. 	On that date, 	all
employees 	of 	the 	California 	State 	Police 	Department 	became
employees of 	the 	California Highway Patrol 	(CHP) 	by state,
legislation merging 	the 	former 	into 	the 	latter.
The 	San Diego 	area office 	of 	the 	CHP 	is 	a para-military
setting, 	with an area commander, 	lieutenants, 	sergeants and
supporting clerical 	staff.
In August 	19953 Frank Kramer 	(Kramer) 	was 	acting commander,
the 	highest 	ranking officer 	in the 	office. 	Vince 	Calderon
3All date references hereafter, 	unless otherwise noted, 	are
to 	calendar year 	1995.
33

(Calderon) 	was 	the 	executive 	officer while 	Larry Duncan 	(Duncan)
was absent. 	The executive officer is 	in charge 	of 	clerical
personnel 	and reports 	to 	the 	commander.
In early August, 	the clerical 	supervisor, 	Camille Morgan
(Morgan), 	went on vacation for three weeks. 	Ericha Cook 	(Cook),
an office assistant 	II, 	was designated acting supervisor in
Morgan's 	absence.
There 	was 	a meeting on August 	8.4 Armstead did not 	ask 	for
representation at this meeting. 	Calderon, 	Donna Blum 	(Blum),
Cook and Kramer were present. 	Armstead did not 	know Kramer, 	she
said.
Armstead's version 	is 	in conflict 	with 	the 	other persons
present.
Armstead 	testified 	that 	her 	insubordination 	to 	Cook 	was
discussed. 	She 	further 	testified 	that 	Kramer tried 	to grab 	her
because 	the meeting had got 	so 	"riled up." 	Everybody was
yelling, 	she 	said, 	and she was going to walk out. 	Kramer told
her 	she was not 	to 	leave 	the meeting until 	the 	issue was
resolved.
Kramer 	testified that 	he 	and Calderon were meeting in 	the
latter's 	office with Cook 	and Blum. 	Armstead knocked on 	the 	door
and announced 	she was 	ill 	and going home. 	Calderon told her he
wanted to 	resolve 	the 	issue 	of 	her 	failure 	to 	follow Cook's
direction. 	Kramer testified 	that 	as 	Calderon commenced that
4As noted, 	the complaint 	alleged an August 	8 meeting, 	but
CSEA requested amendment 	of 	the 	complaint 	to 	substitute August 	10
for August 	8. 	That 	request was granted.
44

discussion, 	he 	reached around Armstead and closed 	the 	office
door.
Cook said there was no physical 	contact. 	Cook 	said that
Armstead 	said 	she was 	ill 	and wanted to go home. 	Kramer closed
the 	door 	and 	said 	they needed to 	resolve 	the 	issue.
While 	the August 	8 meeting is not 	a part 	of 	this 	complaint 	I
make 	a 	credibility 	finding 	against 	Armstead 	regarding 	Kramer's
alleged effort 	to 	"grab" 	her based upon the 	overall 	record,
Armstead's 	demeanor 	at 	hearing 	and the 	testimony of 	the 	other
parties.
Most 	of 	the 	evidence 	regarding Armstead's 	experience with
the office came 	from leading questions. 	Most 	importantly, 	memos
Armstead 	subsequently wrote 	to 	her 	superiors 	reflected 	a 	highly
focused viewpoint 	at 	odds 	with management 	about 	Cook's 	authority
and the 	chain of 	command. 	On August 	15, 	Armstead wrote 	to Kramer
complaining of 	his 	treatment 	of 	her. 	She 	stated his 	first 	action
against her was on August 	10. 	Given her apparent propensity for
taking umbrage 	at 	every event, 	her failure 	to mention Kramer's
alleged 	"grab" 	of August 	8 	renders 	the assertion unbelievable.
In addition, 	Cook, 	at 	the time of 	the hearing was no longer
an office 	assistant 	in the 	CHP office. 	She 	had no 	interest 	in
the 	case. 	This 	lack of 	interest 	rendered her testimony that
there was 	no effort 	to 	"grab" 	Armstead during the meeting more
believable.
Finally, 	Kramer's description of the events, 	including his
denial 	of Armstead's 	assertion was 	consistent with Cook's, 	and is
5

the more probable 	fact. 	Asserting that 	an area commander tried
to 	"grab" 	an employee 	is a serious 	charge. 	The 	fact 	that
Armstead did not 	allude 	to 	this 	charge 	in 	later memos 	leads me 	to
conclude 	Kramer made 	no 	effort 	to 	grab Armstead.
The August 	10 Meeting
On August 10, 	Calderon, 	serving as the executive officer,
issued a memorandum, 	styled 	"Assignment Memorandum" 	to Armstead
which noted her assignment 	to 	the 	San Diego 	CHP 	office 	and gave
instructions 	on her position at 	that 	office.
The 	memo 	stated:
Your assignment 	to 	the 	San Diego Area will
require 	training 	in 	the 	various 	work 	stations
within the Area's 	Clerical 	section. 	Training
at 	different 	desks 	is necessary in order that
a back up 	is 	readily available 	whenever 	the
individual 	assigned to 	a particular desk 	is
absent 	for whatever reason. 	Your 	immediate
supervisor is Ms. 	Camille Morgan, 	OSS II;
when she 	is absent, 	her back up is Ms. 	Ericha
Cook, 	or Ms. 	Donna Blum, 	both OA U s , 	they
will 	assist 	you 	in 	successfully completing
your 	training period.
The memo described Armstead's hours 	of work and then, 	in
some detail, 	specific duty instructions, 	including training at
the 	clerical work stations, 	and three 	hours daily training at 	the
telephone 	reception 	desk.
Under 	the 	heading 	"interpersonal 	skills" 	Calderon noted 	the
office had a 	large 	number of visiting citizens 	and that 	it 	was
important 	for Armstead to perform her work 	in a professional 	and
friendly manner 	and with 	teamwork. 	The memo 	noted 	that 	on
August 	8, 	she 	had been directed to work 	the 	telephone 	reception
desk 	and was 	overheard using 	curt 	and 	abrasive 	language 	with
6

callers. 	After one 	hour she 	told Cook 	that 	she 	could not 	handle
the 	telephone, 	and refused to return to 	the 	telephone when Cook
ordered her to. 	She was 	advised that 	"insubordination and
discourteous 	behavior would not 	be 	tolerated."
The 	memo 	directed Armstead 	to 	become 	familiar with 	the 	chain
of 	command and to abide by it. 	If 	she had a problem she was
directed 	to 	first 	contact 	her 	immediate 	supervisor 	to 	attempt 	to
resolve 	the matter. 	If 	the matter could not be 	resolved,
Armstead was 	to 	request 	permission to go 	to 	the next 	level 	of
command. 	She was 	directed not 	to 	contact 	any higher 	level 	of
command without 	first 	obtaining permission 	from her 	supervisor.
The 	memo 	then noted the 	aged condition of 	the 	facility and
likelihood that 	things might 	go wrong 	and 	the 	difficulty the
Department 	had 	in keeping the 	facility maintained. 	If Armstead
discovered a deficiency or hazard she was 	to 	report 	the 	matter 	to
her 	immediate 	supervisor. 	On August 	8, 	Armstead had contacted
the Department 	of General 	Services about 	a condition in the
women's 	restroom without 	notifying her 	supervisor. 	She 	had
erroneously 	stated 	that 	the 	janitor 	had not 	worked 	the 	previous
day. 	She 	was 	directed to 	refrain 	from 	contacting outside
agencies 	to 	request 	services 	unless 	directed 	to do 	so by her
supervisor.
The memo 	closed with the 	following:
As 	I previously stated, 	you will be 	subject
to 	an extensive 	learning experience. 	You
will 	also 	experience 	a new way of 	doing
things. 	I 	urge you to accept 	constructive
criticism well 	and utilize 	it 	to 	learn and
make 	this 	time a positive 	one. 	Please do not
77

hesitate 	to 	seek 	assistance 	from your
supervisor 	in 	answering 	any questions 	you
may have 	regarding the 	above 	assignments/
procedures.
This 	memo was presented 	to Armstead at 	a meeting that 	same
day that 	had been requested by Calderon. 	Present 	at 	the 	meeting
was Calderon, 	Kramer, 	Cook and Armstead. 	Kramer said there was
no 	intent 	to discipline Armstead at 	this meeting.
Calderon 	testified 	that 	he 	wanted Armstead 	to 	understand her
responsibilities. 	He went 	through the points of 	the memo. 	He
did not 	ask Armstead any questions.
Armstead 	said 	the 	word 	"insubordination" 	was 	used 	several
times, 	although she was not 	asked her version of the events.
Calderon 	read 	the memo 	to her 	and 	stated 	that 	he 	had 	reviewed her
personnel 	file 	and 	stated that 	she 	had no 	"bad history here, 	and
I 	would hate 	to have 	something happen to you." 	Armstead's
request 	for 	representation was 	denied.
Armstead wrote 	to 	Calderon on August 	11 	responding 	to 	the
memo. 	She styled it as a 	"rebuttal" 	to the memo. 	She 	stated
that 	Cook was 	a 	rank 	and 	file 	employee 	and 	"therefore 	cannot 	give
me direct 	orders." 	She noted that 	fact 	did not preclude 	Cook
from assisting her 	in 	the 	prescribed 	training or making
appropriate suggestions. 	The same was true, 	she stated, 	for Blum
or any other 	rank 	and 	file person 	in 	the 	office.
Armstead took umbrage 	at 	the 	three-hour 	telephone 	assignment
when others 	were 	only assigned one 	hour to 	that 	task.
She 	asked when 	the 	telephone 	training would end and why was 	she
being treated differently. 	She requested, 	"as 	soon as possible",
8

written 	instructions 	on 	answering the 	telephone 	to prevent 	any
confusion 	in the 	event 	she was 	accused of 	doing the 	chore
improperly.
With regard to 	interpersonal 	skills, 	she 	asked to be
consulted 	in the 	future 	to allow her 	side 	of 	the 	story to be
presented, 	and 	stated 	she 	was 	offended by the 	"fabricated"
statement 	that 	she was 	curt with callers. 	She 	asked why she was
not 	consulted before 	he wrote 	the memorandum. 	Armstead
reiterated her denial 	that 	she 	refused 	to 	return 	to 	the 	telephone
duty. 	She then wrote:
. 	. 	. 	Regarding the issue of insubordination,
I 	cannot be 	insubordinate 	to Ms. 	Cook or to
Ms. 	Blum. 	At no time have I been
discourteous 	to 	any 	staff 	member 	in this
office.[5]
Regarding 	"chain 	of 	command," 	Armstead 	stated her preference
for following chain of command in solving problems, 	but, 	she
wrote:
. 	. 	. 	However, 	when the chain of command is
the problem 	I 	have 	every right 	to proceed to
whatever level 	of 	this Department 	I 	think
that 	is 	appropriate 	to address my concerns.
I 	have 	no 	intentions 	of 	being 	insubordinate
to you or anyone 	in the 	California Highway
Patrol. 	However, 	you cannot deny me my right
to go directly to your superiors.
5At 	hearing Armstead 	testified 	that 	she 	could not 	be
insubordinate 	to 	Cook or Blum, 	and that 	she was 	not 	discourteous
to any staff member. 	The 	reason that 	she 	could not 	be
insubordinate, 	according to her memos 	to management, 	was 	that
Cook 	and Blum were 	rank 	and 	file 	employees. 	Her 	contention 	that
she was 	not 	discourteous 	is 	disingenuous 	in 	light 	of 	her very
hard position on 	their 	standing 	to 	supervise.
9

Regarding 	the 	facility 	incident 	referenced 	in 	the 	memo,
Armstead 	complained 	that 	she 	had not 	been 	asked 	about 	the
incident 	and explained her version of 	the 	incident.
Armstead 	closed with 	the 	following:
Finally, 	I 	think that 	it was highly
inappropriate 	for you 	to have 	two 	rank 	and
file 	individuals 	in a meeting with me when
discussing my performance. 	I 	am requesting
that 	information or 	letters 	to you be 	held 	in
the 	strictest 	of 	confidence 	and not 	be 	shared
with any rank 	and 	file 	individual.
Armstead 	testified 	that 	she 	told 	Calderon 	that 	she 	wanted 	to
go up 	the 	chain of 	command because 	she 	thought 	his memo was
unfair.
The August 	15 Meeting
Armstead was 	called to 	a meeting on August 	15 	at 	which
Kramer presided. 	Armstead 	said that 	Kramer 	said he 	was 	the 	next
in 	command and 	"wanted to hear my 	side 	of 	the 	story." 	She
arrived at his office at 	the appointed time, 	she 	said, 	expecting
a one-on-one 	meeting.6 Instead, 	Kramer 	told her 	that 	Cook 	and
Duncan, 	who had returned by this 	time 	and replaced Calderon,
would be 	there.
Kramer verbally reviewed 	the 	letter Armstead 	had written 	and
told her 	she 	had some misconceptions 	he wanted to 	clear up. 	He
6I 	do not 	accept Armstead's version of 	the purpose 	of 	the
meeting. 	Her letter to Kramer of 	the 	same date, 	after the
meeting, 	makes no reference 	to such a purpose. 	Kramer wrote 	to
Armstead on August 	16 	noting the meeting of August 	15 	was 	to
"address misconceptions" 	in her letter to Calderon. 	Armstead
responded to this memo on August 	18, 	discussed below. 	Again, 	she
said nothing of 	the purpose 	of 	the meeting, 	nor did she 	take
issue with Kramer's 	description of 	the meeting's purpose.
10

testified the meeting was 	instructional. 	There was 	no 	intent 	to
impose 	discipline 	on Armstead.
Kramer asked Armstead if 	she had any questions, 	but 	he 	did
not pose 	any questions 	to her about 	the 	issues 	involved.
Armstead wrote 	to 	Kramer on August 	15 	regarding 	the 	meeting.
She 	professed her disturbance 	by his 	conduct 	at 	the 	meeting
stating:
. 	. 	. 	As oppose to you addressing me in a
professional 	and courteous 	tone, 	you have
continued 	to 	try and 	intimidate 	and 	demean me
in your conversations. 	The 	first 	incident
occurred on Aug. 	10. 	I am respectfully
asking that 	this 	type 	of 	conduct 	towards me
stop 	immediately.
Someone 	told her at 	the meeting that 	Cook was 	her
supervisor. 	She wrote:
. 	. 	. 	May I reiterate that I don't believe
that 	another rank 	and 	file person 	can be my
supervisor. 	However, 	I am sure that 	this
issue will 	be 	resolved in the 	coming weeks.
Armstead 	confirmed 	that 	at 	the 	meeting 	Kramer 	stated 	that
she 	was 	to 	initiate 	problems 	to be 	addressed with her 	"alleged
'supervisor' 	Ms. 	Cook another rank and file person." 	Once again,
she wrote, 	"I will 	reiterate that your directions constitute a
breach of 	confidentiality, 	and a denial 	of my personal 	rights 	as
a 	California 	State 	employee."
The 	response 	continued:
Finally, 	you have 	denied me my right 	to go
beyond your 	acting 	command 	to 	have 	my
problems 	addressed by 	someone 	other 	than
yourself. 	As 	I 	stated in the meeting with
you, 	I 	don't 	feel 	comfortably discussing my
problems with you because 	they are 	personal
and confidential. 	Additionally, 	there 	is no
11

written 	rule 	with 	the 	California Highway
Patrol 	that 	says 	I 	cannot 	address my problems
directly to the 	Commissioner or to the
Governor of 	California 	for 	that matter.
Armstead 	stated 	that 	since 	she 	had been 	charged with
insubordination at 	the meeting, 	she was 	requesting that 	she be
allowed a CSEA representative 	in all 	future meetings. 	She noted
that 	she 	had asked 	for representation 	in 	the 	last 	meeting but 	he
had denied the 	request.
On August 	16, 	1995, 	Armstead was given a 	"memorandum of
direction," 	from Kramer. 	This memo 	reiterated 	initial 	directions
that 	Morgan 	had 	designated 	Cook 	or Blum as 	acting 	office
supervisors. 	Kramer cited the 	incident with Cook on August 	8
outlined in the August 	10 memo, 	and reiterated Armstead's
contentions 	in her August 	11 memo.
Kramer 	noted 	that Armstead had 	asked 	for 	representation 	at
the August 	15 	meeting and that 	it was 	explained that 	the purpose
of 	the meeting 	"was 	not 	disciplinary," 	but 	"only to 	correct 	some
misconceptions" 	in her letter to Calderon. 	She had been advised
at 	the meeting that 	the 	acting supervisors had all 	the 	authority
of 	supervisors, 	and that 	she 	stated she had been confused and now
understood.
Kramer discussed the 	chain 	of 	command 	rule 	and 	that 	the
grievance/complaint 	procedure 	had been explained 	to 	her. 	She 	was
instructed 	that 	she 	could not 	personally contact 	Department
personnel 	above 	the 	level 	of 	her area 	commander.
Kramer then reviewed Armstead's 	contentions 	in her August 	16
memo 	and 	stated:
12

First, 	whether you wish to accept 	it 	or not,
Management 	does 	have 	the 	right 	to designate 	a
rank and file 	employee 	as 	an Acting
Supervisor. 	While 	acting as 	a 	Supervisor
this 	employee 	has 	the 	same 	authority as 	any
other supervisor, 	and will be 	treated
accordingly.
Secondly, 	when addressing employment 	or job
related 	issues 	within 	the 	Chain-of-Command,
and 	including 	the 	Business 	and 	Transportation
Agency and the 	State 	Personal 	Board, 	you do
not 	have 	the right 	to make personal 	contact
with 	individuals 	above your 	local 	level.
This 	does 	not 	prohibit 	you 	from contacting
anyone 	outside 	these 	agencies 	if you 	so
desire.
Thirdly, 	in regard to your request 	to have 	a
CSEA representative 	present 	at 	meetings
between us. 	You have 	the 	right 	to have 	a
representative 	present 	only 	if 	the meeting
may lead to Adverse Action, 	or you wish to
discuss 	a matter 	concerning a grievance 	or
complaint.
Kramer 	then 	referred 	to 	the manner of 	her presenting her
memos by placing them 	in envelopes 	and taped to his 	desk. 	On the
Monday 	she 	had 	left 	a message 	informing 	Calderon 	that 	she 	had
been unable 	to have her photograph taken. 	Kramer wrote:
. 	. 	. 	This is an unacceptable practice. 	In
the 	future you will 	either deal 	with your
immediate 	supervisor, 	whomever that my 	[sic]
be, 	or make 	a request 	through your supervisor
to 	see your Lieutenant.
Armstead was 	advised 	that 	she 	had a 	right 	to 	file 	a written
response 	to 	the memo 	that 	would accompany the memo 	to her
personnel 	file.
There was 	another meeting on August 	17 	about 	which there 	is
no evidence.
13

Armstead wrote a 	"rebuttal" 	on August 	18, 	regarding the
August 	16 memo and the meeting of August 	17. 	She 	told Kramer
that 	she 	had 	stated 	that 	the 	alleged 	supervisory personnel 	could
give her direction, 	but 	not 	"direct 	orders." 	She expressed
having no control 	over what 	he 	"may perceive 	as 	a direct 	order."
She 	told him that 	this was 	the 	last 	time 	she would address 	that
particular 	issue.
Armstead wrote 	at 	length about 	her problems with Cook and a
confrontation 	she had with 	"Elaine" 	who was 	rude 	to her 	in
training 	sessions. 	She 	closed with the 	notation 	that 	before 	the
meeting of August 	17, 	she had requested union representation but
that 	the 	request was denied.7 At the meeting, 	she 	said, 	he again
threatened 	her 	with 	insubordination.
The November 22 	Meeting
An 	incident 	occurred 	in 	the 	office 	at 	the 	front 	counter
between an Officer Bohm 	(Bohm) 	and a 	female 	citizen. 	The 	citizen
told Sergeant 	Dennis 	Brunette 	(Brunette) 	that 	she wanted to 	file
a 	complaint 	against 	the 	officer. 	Duncan assigned Brunette,
Bohm's 	immediate 	supervisor, 	to investigate the matter. 	Brunette
interviewed 	several 	witnesses.
Armstead was 	requested to meet 	with Brunette 	on November 	22,
1995. 	Brunette wanted to 	interview her about 	the 	incident.
Brunette 	testified 	that 	information 	from 	the 	complainant 	included
Armstead's 	contention 	that 	she 	had 	seen 	the 	incident 	and 	that 	the
7CSEA stated this 	evidence 	was 	for background purposes 	only.
As 	noted, 	before 	hearing CSEA had withdrawn allegations 	of 	denial
of 	representation on August 	17.
14

officer was wrong. 	Because Armstead was 	a potential witness,
Brunette 	testified, 	he needed to 	interview her about 	the
complaint.
Armstead 	told him that 	she 	did not 	want 	to 	talk 	to 	him
without 	a CSEA representative present. 	Brunette 	said 	it 	was 	not
that 	type of 	interview.
Armstead 	said every time 	she 	had a meeting with the 	CHP
there were 	others 	for the 	CHP present 	and she was 	always 	alone.
They met 	in the 	sergeant's 	office which contains 	a number of
desks.
Armstead testified 	"once 	again, 	there was 	someone 	there 	to
listen to me."
A Sergeant 	Langford was 	also 	in 	the 	room. 	He 	did not
participate 	in 	the 	interview.8
Brunette 	asked Armstead what 	she had witnessed. 	Armstead
replied, 	"not very much" 	and then left 	the room, 	because 	she
said, 	she 	saw Langford trying to listen to what 	she had to say.
Then, 	she 	returned and explained what 	she 	had heard 	from the
"heated 	discussion."
Armstead testified that 	during the 	incident, 	Cook gave 	her
some 	tissue which Armstead gave 	to 	the 	citizen.
8Langford was 	actually at 	his 	own desk 	in 	the 	room where
several 	other 	sergeants 	desks 	are 	located. 	Brunette 	thought 	that
Langford was 	talking to 	another officer. 	Armstead 	said Langford
was 	in back of 	her. 	Langford therefore was not 	a part 	of 	the
interview.
15

Armstead was 	asked 	if 	she 	had traded 	telephone 	numbers 	with
the 	citizen. 	Armstead said 	she 	had exchanged numbers 	during her
break when she went outside and the citizen was 	there, 	crying.
Duncan 	later 	interviewed Armstead. 	Armstead 	said 	the
questions at 	this meeting where 	the 	same 	as 	the November 22.
During 	this 	interview Duncan 	observed 	some 	inconsistencies
between Armstead's 	responses 	that 	day and those 	to 	Brunette's
interview.
CSEA introduced evidence of 	a 	interview of December 4, 	1995,
whereat 	Duncan 	questioned Armstead 	about 	her 	responses 	to
Brunette's questioning of Armstead at 	the November 22, 	1995,
meeting.
Later, 	disciplinary action was 	initiated against Armstead
for her 	interaction with the 	citizen.9
Duncan 	testified 	that 	the 	disciplinary proceeding 	related
not 	to the discrepancy in her 	testimony, 	but 	rather to 	the
interaction Armstead had with 	the 	complaining witness.
Government 	Code 	section 19572(e) 	provides 	that
insubordination 	is 	cause 	for discipline.
ISSUES
The 	issues 	in this 	case 	are whether the 	Department violated
the 	Dills Act 	when 	it 	denied Armstead 	CSEA representation 	at 	the
August 10, 	15 or November 22, 	1995, 	meetings?
9As 	noted in 	footnote 	1, 	CSEA withdrew its 	allegation of
reprisal 	on the 	discipline 	issue before 	the hearing.
16

CONCLUSIONS 	OF 	LAW
PERB has 	held that 	the 	right 	to 	representation attaches 	at
an 	employer-conducted 	investigatory 	interview where 	an 	employee
reasonably believes 	that 	discipline 	may occur or 	in 	other highly
unusual 	circumstances. 	(State 	of 	California 	(Department 	of 	Parks
and Recreation) 	(1990) 	PERB Decision No. 	810-S, 	citing Rio Hondo
Community College District 	(1983) 	PERB Decision No. 	292
(Rio Hondo).)
The 	right 	to 	representation arises 	out 	of 	employee 	rights
protected by section 3515 	of 	the 	Dills Act. 	That 	section
provides 	in pertinent part:
Except 	as 	otherwise provided by the
Legislature, 	state employees 	shall have the
right 	to form, 	join, 	and participate 	in the
activities 	of 	employee 	organizations 	of
their own 	choosing 	for 	the 	purpose 	of
representation on all 	matters 	of 	employer-
employee relations. 	. 	. 	.
PERB has 	further ruled that, 	"an employee organization has 	a
concurrent 	right 	to 	represent 	employees 	at 	such 	investigations."
(State of California 	(Department of Parks and Recreation). 	supra,
PERB Decision No. 	810-S.)
Where, 	however, 	a meeting is held merely to inform the
employee 	of previously pre-determined discipline, 	no 	right 	of
representation exists. 	(Rio Hondo; 	State of California
(Department of Transportation) 	(1994) 	PERB Decision No. 	1049-S.)
In the 	latter case, 	an employee was 	called to a meeting to notify
the 	employee 	of 	a previously determined discipline. 	(See 	also
17

Baton Rouge Water Works 	Company 	(1979) 	246 NLRB 	995 	[103 	LRRM
1056].)
In NLRB v. 	Weingarten, 	Inc. 	(1975) 	420 U.S. 	251 	[88 LRRM
2689] 	(Weingarten), 	the court stated:
[NLRB] 	would not 	apply the rule 	[of
representation at 	individual 	employee-
management 	interviews] 	to such run-of-the-
mill shop-floor conversations as, 	for
example, 	the giving of 	instructions or
training or needed corrections 	of 	work
techniques. 	In such cases 	there 	cannot be
any reasonable 	basis 	for an employee 	to 	fear
that 	an adverse 	impact 	may result 	from the
interview, 	and thus we would then see no
reasonable basis 	for him to 	seek 	the
assistance of his representative. 	. 	. 	.
In Redwoods 	Community College District 	v. 	Public 	Employment
Relations Board 	(1984) 	159 	Cal.App.3d 617 	[205 	Cal.Rptr. 	523]
(Redwoods), 	the court of appeal 	reviewed PERB's decision
regarding 	the 	right 	to representation 	in 	an 	interview on 	the
employee's performance review. 	PERB held that, 	even where 	the
employee 	could not 	anticipate discipline, 	representation was
warranted 	in an 	interview on 	the 	employee's performance. 	The
court 	disagreed 	and 	stated:
. 	. 	. 	Regardless of their importance, 	such
interviews 	are 	an accepted part 	of personnel
management 	in any well-run operation, 	and
bear 	no 	significant 	threatening 	or 	derogatory
connotation. 	Nor is 	it wholly satisfactory
to make 	the 	right 	of 	representation 	in an
employee-management 	conversation 	turn 	on
whether 	the 	conversation might 	in 	some
abstract 	sense 	be 	deemed 	"investigatory," 	or
on 	the 	degree 	of 	formality attending 	the
interview, 	or on a perceived similarity to a
grievance or appeal procedure, 	without more.
Even in combination these elements might, 	in
a given case, 	suggest no more 	than routine
business 	communication. 	On the 	other hand,
-
18

in most 	if not 	all 	cases 	the discipline
element 	will 	have 	a 	direct 	and 	rational
tendency 	to 	narrow 	the 	inquiry 	to manageable
dimensions. 	Although the precedents 	do not
compel 	a 	conclusion that 	the 	discipline
element 	is 	invariably essential 	to a 	right 	of
representation, 	under EERA and other
California 	labor 	statutes 	representation
should be granted, 	absent 	the discipline
element, 	only in highly unusual
circumstances.
The August 	10 Meeting
Presumably, 	CSEA argues 	that 	since 	reference 	to Armstead's
alleged 	"insubordination" 	was made at 	the August 	10 meeting, 	and
"insubordination" 	is 	cause 	for the 	imposition of 	discipline under
the Government 	Code, 	she was 	entitled to representation at 	the
August 	10 meeting.
The 	record shows 	the August 	10 	meeting was not 	investigatory
nor did the 	employer make 	a determination, 	as a result 	of 	the
meeting, 	that Armstead had been insubordinate. 	Rather, 	the
meeting was 	a presentation of 	a memo 	directed at 	Armstead and
giving her 	instructions 	regarding her work assignment. 	Her work-
time 	and duties were 	described as well 	as 	the 	line 	of 	authority
of Morgan, 	Cook and Blum.
In addition, 	the 	employer cited what 	it determined to be
unacceptable behavior, 	and that 	curt 	and abrasive 	language would
not 	be 	tolerated. 	Refusal 	to heed to 	Cook's orders 	regarding
work 	assignments 	would be 	considered 	"insubordination."
The 	memo 	outlined 	the 	chain 	of 	command 	and directed Armstead
to abide by it, 	along with the 	requirement 	that 	she 	report
conditions 	of 	the 	facility to her 	supervisor.
19

During 	the 	meeting no 	questions 	were 	directed 	at 	Armstead.
Management's 	determinations 	about 	the 	propriety of 	her 	conduct
with regard to her behavior on the 	telephone, 	an order 	from Cook
to 	return to 	the phone duty, 	and her conduct 	regarding the 	report
on 	the 	facility had 	already been 	determined.
Thus, 	the meeting was not 	investigatory. 	It was a meeting
at 	which Armstead was 	given work performance 	direction.
CSEA presented no evidence 	or argument 	on how 	this 	meeting
presented 	"highly unusual 	circumstances" 	as used 	in
Redwoods. 	Under the 	authority of Weingarten and Redwoods, 	the
meeting was 	not 	investigative, 	but 	rather an instructive 	session
to 	clarify Armstead's 	reporting responsibilities. 	In this
setting 	it 	is 	found 	that Armstead had no 	right 	to 	representation.
The August 	15 Meeting
The August 	15 	meeting was 	called by management 	to 	clarify
"misconceptions" 	reflected in Armstead's August 	11 	"rebuttal"
memo to 	Calderon.
Armstead's 	memo 	challenged 	Cook's 	authority by 	flatly
stating 	that 	Cook was 	a 	rank 	and 	file 	employee 	and could not 	give
Armstead direct 	orders. 	This was 	a direct 	challenge 	to
Calderon's August 	10 	order that 	Cook was 	her supervisor 	in
Morgan's 	absence. 	That 	order was put 	in writing and given to
Armstead orally. 	Yet, 	she was 	telling CHP that 	Cook could not
give 	her orders.
It 	is 	clear that Armstead's perceived limitation on Cook's
authority was 	a 	threat 	to 	the 	chain of 	command operation within
20

the office. 	It 	is 	also clear that 	the August 	15 meeting was
designed by CHP 	to 	clarify that 	Cook was Armstead's 	supervisor
and that 	she was 	to 	abide by the 	chain of 	command system of
reporting.
Again, 	at 	this meeting, 	no questions were asked of Armstead.
No determination was made by management 	that, 	as 	a result 	of 	this
meeting, 	Armstead had been insubordinate. 	The meeting was not 	an
investigatory meeting, 	but 	rather a 	setting where Armstead was
directed 	to 	report 	to 	Cook 	and to 	abide 	by the 	chain of 	command.
Again, 	there 	is no evidence 	that presented 	"highly unusual
circumstances" 	to which, 	under Redwoods, 	representation rights
might 	have 	attached.
The November 22 	Meeting
The 	November 	22 	meeting was 	totally unrelated 	to Armstead's
work performance. 	An 	incident 	at 	the 	front 	counter had occurred
between Officer Bowen and a 	female 	citizen, 	resulting 	in a
complaint 	against 	Bowen. 	Armstead had 	spoken to 	the 	complainant
after 	the 	incident, 	and the 	complainant 	thereafter told CHP 	that
Armstead was 	to be 	a witness.
In response 	to the 	complaint, 	Duncan directed Bowen's
supervisor, 	Brunette 	to 	investigate 	the matter. 	Armstead was 	one
of 	several 	office 	employees 	interviewed about 	the 	incident.
While 	the meeting was 	investigatory, 	the 	investigation was
unrelated 	to Armstead's 	work performance. 	The 	investigation was
focused upon 	the 	incident 	between Bohm and 	the 	complaining party,
to which Armstead was 	a witness. 	CSEA advances no 	argument 	that
21

suggests 	that 	representation 	rights 	should attach when 	an
employee 	is 	being 	interviewed for this 	type 	of 	investigation.
Nor 	is 	there 	anything 	"highly unusual" 	about 	the 	interview.
That 	Armstead was 	later 	subjected to possible 	discipline 	for
her 	interaction with the 	citizen does 	not 	relate 	back 	to 	her
meeting with Brunette. 	CSEA presented no 	evidence 	that 	questions
to Armstead at 	the 	Brunette 	interview related 	to 	her 	interaction
with the 	citizen. 	Accordingly, 	no right 	of 	representation arose
at the 	interview.
It 	has 	been concluded that Armstead had no 	right 	of
representation at any of the meetings, 	therefore, 	the
Department's 	motion at 	hearing 	should be 	granted and those
portions 	of 	the 	complaint 	should be 	dismissed.
Since 	in all 	three 	settings, 	it 	has been found that Armstead
had no right 	to representation, 	there 	can be no violation of
CSEA's 	right 	to represent Armstead. 	Accordingly, 	the
Department's 	motion 	to dismiss 	should be 	granted and 	that 	part 	of
the 	complaint 	should also 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
LA-CE-331-S, 	California State Employees Association v. 	State of
California 	(Department 	of Highway Patrol) 	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
22

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
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 of 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 20 	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 of Regs., 	tit. 	8, 	sec. 	323 00.) 	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 	. . . " 	(Cal. 	Code 	of
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
23

served on a party or filed with the Board 	itself. 	(Cal. 	Code 	of
Regs., tit. 	8, 	secs. 32300, 	32305 and 32140.) 	'.
Gary M. Gallery
Administrative Law Judge
24