The opinion
Filed 10/4/21 Dept. of Corrections and Rehabilitation v. Public Employment Relations Board CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
----
(Sacramento)
DEPARTMENT OF CORRECTIONS AND C088562
REHABILITATION,
(PERB No. SA-CE-2047-S)
Petitioner,
v.
PUBLIC EMPLOYMENT RELATIONS BOARD,
Respondent;
CALIFORNIA ASSOCIATION OF PSYCHIATRIC
TECHNICIANS,
Real Party in Interest.
On a tip from an inmate that A.X., an employee of California’s Department of
Corrections and Rehabilitation (CDCR), was planning to smuggle drugs into the prison
where she worked, CDCR’s Office of Internal Affairs (OIA) opened a criminal
investigation, which led to A.X. being strip searched when she reported to work. Before
the search commenced, A.X. requested that a representative be present from her union,
1
the California Association of Psychiatric Technicians (CAPT). OIA agents denied the
request. A.X. was also informed that she had signed an 894-A employment identification
card form (894-A form), which included her acknowledgement that she was subject to
search on prison grounds. The search went forward and no contraband was found.
CAPT filed an unfair labor practice charge with the Public Employment Relations
Board (PERB) alleging that by denying A.X.’s request that a CAPT representative be
present for the search CDCR had violated Government Code section 3519, subdivisions
(a) and (b) of the Ralph C. Dills Act (Dills Act) (Gov. Code, § 3512 et seq.).1 An
administrative law judge and PERB on review found that CDCR had violated the Dills
Act and issued an order that CDCR cease and desist from “interfering with employee’s
right to have a union representative present prior to and during an invasive body search.”
CDCR filed a timely petition for review. We affirm the PERB decision but modify the
order.
FACTUAL AND PROCEDURAL BACKGROUND
A.X. has worked as a psychiatric technician at California state prisons since 2005.
On August 1, 2007, A.X. signed an 894-A form, titled “Employee Identification Card
Information.” The form listed a number of rules, including that “[n]o employee or person
shall take, carry, convey, or make accessible to any inmate within a Department facility
1 The Dills Act states as one of its purposes “to promote the improvement of personnel
management and employer-employee relations within the State of California by
providing a uniform basis for recognizing the right of state employees to join
organizations of their choosing and be represented by those organizations in their
employment relations with the state.” (Gov. Code, § 3512.) Subdivisions (a) and (b) of
Government Code section 3519, provide in relevant part that: “It shall be unlawful for
the state to do any of the following: [¶] (a) . . . to interfere with, restrain, or coerce
employees because of their exercise of rights guaranteed by this chapter . . . ; [¶] (b) Deny
to employee organizations rights guaranteed by this chapter.”
All further undesignated statutory references are to the Government Code.
2
any intoxicant, opiate, narcotic, drug, or any other contraband articles, nor traffic with
any inmate in any matter. Violation of this rule is a felony punishable by imprisonment.”
The form also contained the employee’s acknowledgement that “I have read and
understand the above rules and shall govern myself accordingly while employed at this
facility. I understand that I am subject to search at any time, while on department
grounds.”
On June 26, 2015, the Investigative Services Unit (ISU) at the prison where A.X.
worked received a tip from an inmate that, on July 1, 2015, A.X. was going to bring a
powder narcotic into the prison. ISU forwarded the tip to OIA, which assigned two
special agents to investigate.2 The agents conducted a background check on A.X. and
obtained her signed 894-A form.
The OIA agents arranged with an ISU officer at the prison to stop A.X. at the
entrance gate when she arrived for work. On July 1, 2015, the agents met A.X. as she
entered the prison grounds and introduced themselves as OIA agents who wanted to
speak with her. They escorted A.X. to an ISU interview room. A.X. asked if she needed
an attorney and whether she was going to be “walked off” the prison grounds.3 An OIA
agent responded that they just wanted to speak with her.
Once in the room, an OIA agent told A.X. that they were investigating an
allegation that she was smuggling contraband into the prison and were going to search
2 ISU is in charge of safety and security at the prison. ISU refers cases involving
employee misconduct to OIA, which is the statewide investigative body of CDCR with
authority to conduct criminal and administrative investigations.
3 The term “walked off” refers to employees being escorted to the front gate and their
identification card taken so they cannot reenter. An employee who signed an 894-A form
and refuses to be searched can be held insubordinate and “walked off” the prison
grounds.
3
her bags and her car. A.X. consented to the search, placing her bags on the table and
providing the keys to her car.
An OIA agent told A.X. that two female officers would search her person. The
female officers entered the room. One officer put on examination gloves and told A.X. to
take off her clothes for a body search. A.X. stood up, pointed her finger to the ground,
and demanded the presence of a union representative, supervisor, or peer support
counselor. The female officer halted the search and informed the ISU officer outside the
door of the interview room that A.X. had requested a union representative. The ISU
officer relayed the request to an OIA agent.
The OIA agent told the ISU officer that A.X. was not entitled to a union
representative because she was being searched, not interviewed. The ISU officer entered
the interview room and conveyed this message to A.X. The OIA agent also entered the
room and told A.X. she was not entitled to a union representative. A.X. was also
informed that, because she had signed the 894-A form when she was employed at the
prison, she had consented to being searched.
After being told she was not entitled to a union representative and had signed a
form consenting to the search, A.X. said, “let’s just get this over with.” A.X. testified she
began taking off her clothes, “only because they had already said no to my request, my
demand. And I was in fear of disciplinary action. I didn’t want to get walked off. I felt
. . . like that would be an admission of guilt of some kind.” A.X. testified she felt her job
was in jeopardy and she “had no way out.”
A female officer stopped A.X. from removing her clothes until the male agent left
the room. The female officer completed the search without touching A.X., but required
her to remove her clothes, bend over, spread her buttocks, and cough. The search lasted
about four minutes. During the search A.X. was emotional and crying. The female
officer informed an OIA agent that the results of the search were negative.
4
An OIA agent came in the room and spoke with A.X. A.X. demanded to know
why she had been searched. The agent asked her who would want to hurt her. A.X. said
that there was bickering among her coworkers about unfair workloads. The agent asked
A.X. to think of something that had occurred recently involving inmates. A.X. named
three or four inmates. A.X. was crying and the ISU officer offered to call someone to
walk her to her work location.
On July 21, 2015, CAPT filed an unfair practice charge with PERB alleging that
CDCR violated the Dills Act by denying A.X. union representation during the search.
On September 25, 2015, PERB’s Office of the General Counsel issued a complaint
alleging CDCR violated the Dills Act, section 3519, subdivisions (a) and (b), by denying
A.X. the right to union representation in the encounter with CDCR agents and adopting a
strip search policy without meeting and conferring in good faith with CAPT.
On February 22 and 23, 2016, an administrative law judge (ALJ) conducted a
formal hearing on the complaint. On June 28, 2016, the ALJ issued a proposed decision.
As an initial matter, the ALJ noted CAPT’s motion to amend the complaint to allege a
change in CDCR policy to strip search employees without reasonable suspicion had been
denied, based on the ALJ’s finding that the alleged change was an isolated breach of
policy. In the remainder of the decision, the ALJ found that CDCR violated the Dills
Act, section 3519, subdivisions (a) and (b), by interfering with A.X.’s right to
representation by CAPT during the unclothed body search on July 1, 2015, and
concomitantly denying CAPT the right to represent its members.
On August 15, 2016, CDCR appealed the ALJ’s decision to PERB, contending
that the right to representation does not apply to “pure searches” without an investigatory
interview, or to a criminal investigation, and that A.X. waived the right to representation
when she agreed to continue the search after being reminded that she had consented to
search as a condition of employment.
5
On November 27, 2018, PERB issued its decision. PERB found that CDCR
violated the Dills Act, section 3519, subdivisions (a) and (b), by denying A.X.’s request
for a CAPT representative when she was subjected to an invasive body search, which
conduct also violated CAPT’s right to represent her. PERB concluded that A.X. was
entitled to union representation prior to and during an invasive body search, rejecting
CDCR’s “pure search” distinction. PERB stated “that the right to union representation
attaches whenever an employer demands that an employee submit to an invasive body
search, or subjects an employee to such search.” PERB also rejected CDCR’s argument
that A.X. waived her right to representation by signing the 894-A form or by voluntarily
agreeing to continue with the search after her request for representation was denied.
PERB ordered CDCR to cease and desist from “[i]nterfering with employees’ right to
have a union representative present prior to and during an invasive body search.” PERB
further ordered CDCR to post a notice at all Sacramento state prison work locations to
that effect.
DISCUSSION
Standard of Review
PERB is empowered to adjudicate unfair labor practices claims under six
employment relations statutes, including the Dills Act. (Boling v. Public Employment
Relations Bd. (2018) 5 Cal.5th 898, 911 (Boling).) “It is settled that ‘[c]ourts generally
defer to PERB’s construction of labor law provisions within its jurisdiction.
[Citations.]’ ” (Ibid.) “ ‘We follow PERB’s interpretation unless it is clearly
erroneous.’ ” (Id. at p. 912; County of Los Angeles v. Los Angeles County Employee
Relations Com. (2013) 56 Cal.4th 905, 922.) “[W]ithin PERB’s area of expertise, the
deferential standard . . . applies to [PERB’s] legal determinations even if based on
undisputed facts.” (Boling, supra, at p. 913.) “Even so, courts retain final authority to
‘ “state the true meaning of the statute.” ’ [Citation.]” (Id. at p. 912.)
6
Under section 3509.5, “[t]he findings of [PERB] with respect to questions of fact,
including ultimate facts, if supported by substantial evidence on the record considered as
a whole, shall be conclusive.” (§ 3509.5, subd. (b).) “Accordingly, in reviewing PERB’s
findings ‘ “we do not reweigh the evidence. If there is a plausible basis for [PERB’s]
factual decisions, we are not concerned that contrary findings may seem to us equally
reasonable, or even more so. [Citations.] We will uphold [PERB’s] decision if it is
supported by substantial evidence on the whole record.” ’ [Citations.]” (Boling, supra,
5 Cal.5th at p. 912.)
CDCR was acting as an employer in the search.
CDCR contends that “PERB’s decision is clearly erroneous because CDCR was
not acting as an ‘employer’ for the purposes of the Dills Act. Rather, CDCR was acting
as a regulatory agency, performing a criminal law enforcement function.”
PERB argues that CDCR cannot raise this argument on appeal because it pursued
a different theory in the proceedings before the ALJ and PERB—i.e., that A.X. was not
entitled to a union representative because it was a “pure search,” not an interview.4
However, PERB acknowledges that CDCR did argue in its briefs that A.X. had no right
to representation because CDCR was not acting as her employer when it searched her,
but as a law enforcement agency.
We would reject PERB’s forfeiture argument even if it were raised for the first
time on appeal. We agree with CDCR that “[t]he facts of this case are largely
undisputed.” “ ‘[A]n appellate court may allow an appellant to assert a new theory of the
case on appeal where the facts were clearly put at issue at trial and are undisputed on
4 CDCR does not pursue the “pure search” argument on appeal. Nor does CDCR
continue to contend that A.X. waived the right to representation by voluntarily consenting
to the search. CDCR still maintains the search was voluntary but now declares that this
issue is “irrelevant to the question of CDCR’s status as an employer under the Dills Act.”
7
appeal. [Citation.]’ ” (Woodland Joint Unified School Dist. v. Commission on
Professional Competence (1992) 2 Cal.App.4th 1429, 1449; see California Horse Racing
Bd. v. Workers’ Comp. Appeals Bd. (2007) 153 Cal.App.4th 1169, 1173-1174.)
Moreover, PERB addressed this theory in rejecting CDCR’s argument “that the
right to a union representative does not arise in criminal investigations.” PERB observed
that “in other public sector forums, the right to a union representative has been found in
employer-initiated criminal investigations,” citing U.S. Department of Justice v. Federal
Labor Relations Authority (D.C. Cir. 2001) 266 F.3d 1228 (Department of Justice).
Turning to the merits, we disagree the Dills Act is inapplicable. We find
instructive a recent PERB decision, State of California (Office of the Inspector General)
(2019) PERB Dec. No. 2660-S [44 PERC ¶ 48] (Office of Inspector General). In Office
of Inspector General, PERB rejected the contention of the State of California (Office of
the Inspector General) (OIG) that it did not act as an employer during interviews of
correctional officers conducted pursuant to a review of safety practices at a prison.
(Ibid.)
PERB explained that the Dills Act recognizes “ ‘the right of state employees to
join organizations of their own choosing and be represented by those organizations in
their employment relations with the state.’ ” (Office of Inspector General, supra, PERB
Dec. No. 2660-S at p. 14, citing § 3512.) The Dills Act also uses other terms—“ ‘state
employer’ ” or “ ‘employer’ ”—to refer to state agencies in the context of bargaining or
meeting and conferring in good faith. (Office of Inspector General, supra, at p. 14, citing
§ 3513, subd. (j).) But these terms are not synonymous with “state.” (Office of Inspector
General, supra, at p. 14, citing State of California (Department of Forestry & Fire
Protection, State Personnel Board) (2014) PERB Dec. No. 2317a-S, p. 7 [39 PERC ¶ 80]
(State Personnel Board).) Section 3915, subdivisions (a) and (b), the statutory provisions
allegedly violated in this case, “makes it unlawful for the ‘state’ to ‘interfere with,
restrain, or coerce employees because of their exercise of rights guaranteed’ ” to them
8
under the Dills Act and “to ‘[d]eny to employee organizations rights guaranteed to
them’ ” under the act. (Office of Inspector General, supra, at p. 15.) “State” used in
section 3519 is broader than “state employer” in section 3513, subdivision (j). (Office of
Inspector General, supra, at p. 15, citing, inter alia, State Personnel Board, supra, PERB
Dec. No. 2317a-S at p. 7.) PERB in Office of Inspector General interpreted the term
“state” to mean “exactly what it says—the state itself.” (Office of Inspector General,
supra, at p. 17, citing State Personnel Board, supra, at p. 8, fn. 6.) Accordingly, CDCR
and OIA come within the meaning of “state” under the Dills Act as used in section 3915,
subdivisions (a) and (b).
However, “[a] state agency . . . is subject to liability under section 3519,
subdivisions (a) and (b) if it is the appointing authority or when it acts as an employer.”
(Office of Inspector General, supra, PERB Dec. No. 2660-S at p. 17, citing Cal Fire
Local 2881 v. Public Employment Relations Bd. (2018) 20 Cal.App.5th 813, 819 (Cal
Fire); State Personnel Board, supra, PERB Dec. No. 2317a-S at p. 8.)5 “[N]ot . . . every
state agency is subject to 3519 liability at all times in any interaction with a state
employee or employee organization.” (Office of Inspector General, supra, at p. 17.)
“[T]he liability of a non-appointing authority [is limited] to instances where an agency is
acting as an employer.” (Ibid.)
CDCR argues that “an agency acts in the capacity of an ‘employer’ for purposes of
the Dills Act only when the agency is functioning as an appointing authority toward its
own employees.” This view if accepted would eliminate the distinction between a state
agency as appointing authority and a non-appointing authority acting as an employer.
5 “Appointing authority” or “appointing power” means a person or group having
authority to make appointments to positions in the state civil service. (§ 18524; Larson v.
State Personnel Bd. (1994) 28 Cal.App.4th 265, 274.)
9
But both are subject to the Dills Act. (Office of Inspector General, supra, PERB Dec.
No. 2660-S at p. 17.)6
Here, CDCR acted as an employer. As discussed in testimony by OIA agents,
OIA is the investigative department of CDCR. OIA has dual authority to conduct
criminal and administrative investigations of CDCR employees. The primary difference
between criminal and administrative investigations is that information from the former
will be sent to a prosecutor and information from the latter will be sent to the hiring
authority. OIA may give advance notice to an employee of the criminal nature of an
investigatory interview, but does not give advance notice of searches.
If an employee refuses to consent to a search, OIA would give the employee a
direct order to comply with the search. OIA would remind the employee that CDCR
requires that an employee submit to search as a condition of employment and that the
employee signed an 894-A form acknowledging that the employee is subject to search. If
the employee continues to refuse, the employee would be told that OIA would inform the
6 CDCR cites California State Employees Association (Gonzalez-Coke et al.) (2000)
PERB Dec. No. 1411-S [25 PERC ¶ 32006] (Gonzalez-Coke) and State Board of
Personnel, supra, PERB Dec. No. 2317a-S, as support for its contention that OIA was
acting only as a regulatory, law enforcement agency. In Office of Inspector General,
PERB distinguished both decisions in a footnote: “In Gonzalez-Coke, at pp. 17-18, the
Board noted that PERB itself is not the ‘state’ for the purposes of section 3519,
subdivision (d) when it adjudicates a case. In [State Personnel Board] at p. 9, the Board
found that when a non-appointing authority makes a broadly applicable quasi-legislative
decision—in that case adopting regulations for disciplinary hearing procedures—it is also
not the ‘state employer’ for the purposes of determining a bargaining obligation under the
Dills Act.” (Office of Inspector General, supra, PERB Dec. No. 2660-S at p. 17, fn. 10;
see also Cal Fire, supra, 20 Cal.App.5th at p. 819 [rejecting unfair labor practice charge,
because, as in Gonzalez-Coke, “[t]he State Personnel Board is similarly acting in its
adjudicatory function in modifying the rules of procedure that apply uniformly to it
disciplinary hearings and appeals”].) In the present case, as in Office of Inspector
General, OIA “was not performing a quasi-judicial or quasi-legislative act and no one
contends it had a duty to bargain.” (Office of Inspector General, supra, at p. 17, fn. 10.)
10
hiring authority of the employee’s insubordination, which could result in adverse
employment action.
As this testimony discloses, while OIA conducts criminal and administrative
investigations, regarding searches which can lead to employee discipline, the process
followed is administrative. The employee is informed that compliance with a search is
compulsory as a condition of employment and confirmed by the 894-A form signed by
the employee. A.X. was so informed. Refusal to consent to search leads to discipline.
Had A.X. refused, she would have been subject to adverse employment action for
insubordination and “walked off” the prison grounds, as she feared. A.X. was never told
that the investigation was criminal in nature. Thus, OIA was acting as an employer
enforcing a condition of employment in conducting a strip search of A.X.
In Office of Inspector General, PERB observed, “[a]n investigation or review of
an employee’s conduct at work . . . is the act of an employer. . . . The state may not
evade responsibility for providing representation rights to an employee by outsourcing a
review or investigation to a different arm of the state.” (Office of Inspector General,
supra, PERB Dec. No. 2660-S at p. 18.)
A.X. was entitled to union representation in an investigation that could lead to discipline.
CDCR contends that the PERB’s decision that CDCR acted as an employer was
based on findings that “(1) CDCR compelled A.X. to submit to the unclothed body search
against her will; and (2) CDCR could have used the information acquired from the
criminal investigation for disciplinary purposes. [Fn. omitted.]” CDCR claims these
facts “are irrelevant to establishing an employment relationship.”
We disagree. As we have just explained, CDCR through OIA was acting as an
employer in compelling A.X. to comply with a search condition of employment where
refusal could result in discipline for insubordination. Whether CDCR could have used
information obtained during a criminal investigation for disciplinary purposes is an
11
equally key consideration. In Office of Inspector General, PERB cited Department of
Justice, where this specific issue was before the federal court.7 (Office of Inspector
General, supra, PERB Dec. No. 2660-S at p. 20.) CDCR concedes that the facts of this
case are similar to Department of Justice. In Department of Justice, the Office of the
Inspector General (DOJ-OIG) denied a prison employee’s request for union
representation during an investigation into whether the employee had smuggled drugs
into the prison. (Department of Justice, supra, 266 F.3d at p. 1229.) The Federal Service
Labor-Management Relations Statute (FSLMRS) includes a provision that an agency
must provide union representation to an employee during an investigation, if “a
representative of the agency” conducts the examination, and the employee reasonably
believes the examination may result in disciplinary action. (5 U.S.C. § 7114(a)(2)(B).)
On appeal, the employer argued the employee was not entitled to representation because
DOJ-OIG was conducting a criminal investigation, as opposed to an administrative
investigation. The court, however, held that DOJ-OIG agents were required to provide
the prison employee with union representation, observing that the “difference between
administrative and criminal investigations in this respect is one of investigative strategy,
not one of law. In either case, both OIG and agency management can benefit by mutual
cooperation.” (Department of Justice, supra, at p. 1231; Office of Inspector General,
supra, at p. 21.)
CDCR attempts to distinguish Department of Justice, arguing that 5 United States
Code section 7114(a)(2)(B) of the FSLMRS codifies the right to representation, while the
right under the Dills Act has been developed through judicial and administrative
7 PERB noted that it is guided but not bound by precedent interpreting federal collective
bargaining statutes. (Office of Inspector General, supra, PERB Dec. No. 2660-S at p. 20,
fn. 12, citing Capistrano Unified School District (2015) PERB Dec. No. 2440, pp. 28-29
[40 PERC ¶ 24] (Capistrano).)
12
decisions. CDCR cites as support for this distinction, Redwoods Community College
Dist. v. Public Employment Relations Bd. (1984) 159 Cal.App.3d 617 (Redwoods), which
in fact highlights the importance of decisional law. Redwoods observed that “[n]o court
appears to have set a firm outer limit to this right of representation [during interviews],
although the facts that the employee requested representation, that the interview was
investigatory, and that the employee reasonably believed that the interview might result
in disciplinary action against him or her (the discipline element), have been deemed
significant.” (Id. at pp. 618-169, citing NLRB v. Weingarten, Inc. (1975) 420 U.S. 251,
256, 260-261 [43 L.Ed.2d 171] (Weingarten) [recognizing an employee’s right to have a
union representative present at an investigatory meeting that the employee reasonably
believes could lead to discipline]; Robinson v. State Personnel Bd. (1979) 97 Cal.App.3d
994, 1000-1003 (Robinson) [Weingarten and its progeny are persuasive in interpreting
the Meyers-Milias-Brown Act (§ 3500 et seq.) regarding public employee representation
in cities and counties]; see also Evid. Code, § 160 [“ ‘Law’ includes constitutional,
statutory, and decisional law”].)
Indeed, the Weingarten decision cited by Redwoods is the seminal case on the
representational rights of employees during investigations. 5 United States Code section
7114(a)(2)(B) of the FSLMRS provides to federal employees the rights afforded
employees of private parties in Weingarten. (Baldwin, Weingarten and the Taylor Law—
A Claimed Difference without Distinction (1989) Hofstra Lab. & Emp. L.J. 123, 165
[“Section 7114(a)(2)(B) is a literal codification of Weingarten for federal
employees . . .”].)
CDCR also quotes NASA v. FLRA (1999) 527 U.S. 229, 246 [144 L.Ed.2d. 258]
(NASA), in which the United States Supreme Court noted that “Congress’ specific
endorsement of a government employee’s right to union representation by incorporating
it in the text of the FSLMRS gives that right a different foundation than if it were merely
the product of an agency’s attempt to elaborate on a more general provision in light of
13
broad statutory purposes.” (Id. at p. 237.) To the extent CDCR suggests that California
decisional law interpreting California statutes is less protective of representational rights
than the FSLMRS, “both PERB and California courts recognize that, in several respects,
the language of our public sector bargaining laws is ‘considerably broader’ than the
federal law on which Weingarten rests.” (Office of Inspector General, supra, PERB Dec.
No. 2660-S at pp. 24-25, citing, inter alia, Capistrano, supra, PERB Dec. No. 2440 at
p. 13.)
Further, CDCR omits that NASA held that an employee was entitled to union
representation in an investigatory interview conducted by NASA’s Office of Inspector
General (NASA-OIG). (NASA, supra, 527 U.S. at p. 246; Office of Inspector General,
supra, PERB Dec. No. 2660-S at p. 21.) In Office of Inspector General, PERB noted that
the court in Department of Justice relied on NASA. (Office of Inspector General, supra,
at p. 21.) As described by PERB, in NASA the Supreme Court found that “the overlap
between management activities and the NASA-OIG’s duties would often generate
cooperation between agency managers and the NASA-OIG. [Citation.] The Court also
observed that ‘the interest in fair treatment for employees under investigation is equally
strong whether they are being questioned by employees in NASA’s OIG or by other
representatives of the agency.’ ” (Office of Inspector General, supra, at pp. 21-22, citing
NASA, supra, at pp. 244-245.)
Additionally, in State of California (Department of Forestry) (1988) PERB Dec.
No. 690-S [12 PERC ¶ 19122] (Forestry), which some 30 years ago adopted Weingarten
as guiding interpretation of section 3519, subdivisions (a) and (b) of the Dills Act, PERB
recognized the overlap between a criminal and disciplinary investigation with regard to
the right to representation. (Forestry, supra, at pp. 7-9; Rio Hondo Community College
District (1982) PERB Dec. No. 260, p. 17 [7 PERC ¶ 14010].) In Forestry, PERB noted
that the Supreme Court in Weingarten “upheld the right of an employee to have a union
representative present at an investigatory interview with the employer which the
14
employee reasonably believes may result in discipline.” (Forestry, supra, at p. 7.)
Albeit, “[t]he employer’s obligation to honor this representational right must be triggered
by an employee request for union representation.” (Forestry, supra, at p. 8, citing
Weingarten, supra, 420 U.S. at pp. 256-257.)
In Forestry, an employer conducted an investigatory interview of a state employee
to determine if the employer would pursue criminal charges for personal use of state
postage. (Forestry, supra, PERB Dec. No. 690-S at p. 3.) PERB stated that a criminal
investigation of an employee “is the type of investigatory interview contemplated by
Weingarten.” (Id. at pp. 8-9.) The employee was given Miranda warnings at the start of
the interview and the first series of questions informed her that the purpose of the
investigation concerned the illegal use of state postage. (Ibid.) PERB reasoned that if an
employee “was put on notice . . . that she was being investigated regarding a criminal
matter, it follows she was aware that the investigation might lead to disciplinary action.”
(Ibid.) The only question left to be answered under Weingarten and the Dills Act is
whether the employee requested union representation. (Forestry, supra, at pp 8-9.) If so,
she was entitled to a union representative at the investigatory interview. (Ibid.)
We note that in Weingarten the court explained the value to an employee (and an
employer) of the assistance of union representative in an investigatory encounter. “A
single employee confronted by an employer investigating whether certain conduct
deserves discipline may be too fearful or inarticulate to relate accurately the incident
being investigated, or too ignorant to raise extenuating factors. A knowledgeable union
representative could assist the employer by eliciting favorable facts, and save the
employer production time by getting to the bottom of the incident occasioning the
interview. Certainly his presence need not transform the interview into an adversary
contest.” (Weingarten, supra, 420 U.S. at pp. 262-263.) The California Supreme Court
has adopted this reasoning. (Civil Service Assn. v. City and County of San Francisco
(1978) 22 Cal.3d 552, 567; see also Robinson, supra, 97 Cal.App.3d at p. 1000.) In this
15
instance, a union representative could have urged a pre-search inquiry that the OIA agent
in fact engaged in post-search, i.e., whether there was an inmate who might have been
motivated to make a false report against A.X., and thereby avoid proceeding with a
search that the ALJ found to be a breach of CDCR policy.
Under Department of Justice, Weingarten, Forestry and the other authority
discussed above, A.X. was entitled to the union representation she requested even though
CDCR maintains it was conducting a criminal investigation. The search was clearly
investigatory. CDCR does not dispute that A.X. reasonably believed that the search of
bags, car and person could lead to discipline. She immediately questioned whether she
was going to be “walked off” the prison grounds, a step that accompanies discipline. She
testified to her fear that her job was in jeopardy. Unlike the employee in Forestry, A.X.
was not informed of the criminal nature of the investigation. OIA’s use of A.X.’s signed
894-A form to compel compliance with search definitively confirmed a reasonable belief
on her part that the investigation could lead discipline.
Lacking any PERB or court decisions supporting its position that a criminal
investigation is not subject to the Dills Act, CDCR relies on a trio of ALJ decisions that
were not appealed and therefore finalized by PERB but designated as non-precedential
and binding only on the parties to the case. (State of California (Department of
Developmental Services) (2018) No. SA-CE-2111-S [43 PERC ¶ 25], finalized in PERB
No. HO-U-1597-S [43 PERC ¶ 37]; State of California (California Highway Patrol)
(2016) No. SA-CE-2050-S [41 PERC ¶ 90], finalized in PERB No. HO-U-1334-S
[41 PERC ¶ 103]; State of California (Department of Developmental Services) (2018)
No. SA-CE-2112-S [42 PERC ¶ 152], finalized in PERB No. HO-U-1592-S [43 PERC
¶ 9].) CDCR argues that these ALJ decisions have persuasive value.8
8 CDCR cites San Diego Community College District (2001) PERB Dec. No. 1467,
pp. 2-3 [26 PERC ¶ 33014], as authority that a non-precedential ALJ decision is
16
We decline to consider these ALJ decisions. In California Teachers Assn. v.
Public Employment Relations Bd. (2009) 169 Cal.App.4th 1076, the court rejected a
request for judicial notice of “two decisions issued by ALJ’s in cases brought under
PERB’s jurisdiction . . . .” (Id. at p. 1079, fn. 2.) The court said, “we note that California
Code of Regulations, title 8, section 32320, subdivision (c) provides only that ‘[a]ll
decisions and orders issued by the Board itself are precedential and may be cited in any
matter pending before a Board agent or the Board itself.’ (Italics added.) It does not
include ALJ decisions as among those with precedential value, and [California Teachers
Association] has not otherwise explained how those ALJ decisions might be entitled to
our consideration in evaluating the Board’s decision herein.” (Ibid.)
CDCR has not requested judicial notice of the ALJ decisions and its contention
that they are of persuasive value is questionable, in light of PERB’s decision in Forestry
that a criminal investigatory interview was subject to the Dills Act and PERB’s decision
in Office of Inspector General citing with approval the federal court’s opinion in
Department of Justice, which also held that an employee has representational rights in a
criminal investigation. In fact, these PERB decisions stand as contravening case law to
the ALJ decisions on which CDCR relies, which CDCR acknowledges eliminates any
persuasive value they might have.
PERB’s order is an overbroad restraint on criminal investigations.
Lastly CDCR lays out a parade of “absurd results” if union employees may
request union representation in a criminal investigatory search: giving state employees
an absolute right to union representation in encounters with law enforcement agencies;
giving city and county employees the same rights under the Meyers-Milias-Brown Act
persuasive authority in the absence of contravening case law. San Diego does not so
hold. PERB noted in the fact section of that decision that a PERB agent found an ALJ
decision persuasive in dismissing an unfair labor practice charge. (Ibid.) PERB,
however, reviewed the dismissal without reference to the ALJ decision.
17
(§ 3500 et seq.); delaying or impeding criminal investigations; giving state employees an
unfair advantage not afforded the general public in criminal investigations; and
undermining the uniformity of criminal investigation procedures by subjecting them to
collective bargaining.
CDCR does not take into account that where a non-appointing agency is
conducting a criminal investigation, the Dills Act only applies where the agency is acting
as an employer. Only where, as in Forestry, the employer itself conducts the criminal
investigation will an employee have right to representation on request. In this instance,
OIA, a non-appointing authority, was acting as an employer, among other things, in
failing to inform A.X. of the criminal nature of the investigation and using the 894-A
form to compel her to submit to a strip search.
We conclude, however, that the order is overbroad insofar as it does not reflect the
principles limiting representational rights under the Dills Act. Under section 3520,
subdivision (c), we have jurisdiction to modify PERB’s order.
Accordingly, we modify PERB’s decision to limit an employee’s right to have a
union representative present prior to and during an invasive body search to circumstances
where CDCR and its representatives constitute the appointing authority or are acting as
an employer and the employee reasonably fears discipline.9
9 “In California, a public employee is entitled to representational rights not only when an
employee reasonably fears discipline, but also in other ‘highly unusual’ circumstances
that are not necessarily disciplinary.” (Office of Inspector General, supra, PERB Dec.
No. 2660-S at p. 27, citing Capistrano, supra, PERB Dec. No. 2440 at p. 13; Redwoods,
supra, 159 Cal.App.3d at p. 625.) Contrary to PERB’s contention on appeal, PERB did
not make a finding that the search constituted “highly unusual” circumstances. We limit
our modified order to the issues raised in this case.
18
DISPOSITION
PERB Decision No. 2598-S is modified as stated above. The decision is otherwise
affirmed. Respondent shall recover its costs.
/s/
RAYE, P.J.
We concur:
/s/
HULL, J.
/s/
RENNER, J.
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