September 2019 Newsletter – School Districts
You Want What When? Disclosing Complaint Documents
In a recent decision, Contra Costa Community College District, June 26, 2019, the Public Employment Relations Board (PERB Decision No. 2652) has definitively established that unions are not entitled to receive copies of complaints relating to misconduct until some point after an initial investigatory interview. In doing so, PERB has affirmed its prior precedent that sought to strike a “careful balance between employer, union, and employee rights prior to and during an investigatory interview.”
Prior to Contra Costa, the scope of the union’s entitlement to information was relatively clear. PERB has long held that an employer’s duty to bargain in good faith with the exclusive representative of its employees includes the obligation to provide “necessary and relevant” information that may be needed by the union for the proper performance of its representational obligations. (Stockton Unified School District (1980) PERB decision No. 143.) Similarly, the well-established rule from the Supreme Court decision in NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251 is that that an employee may request representation at investigatory interviews which the employee “reasonably believes may result in disciplinary action,” including an investigatory interview. In California, this right has been extended to investigatory interviews where “highly unusual circumstances” exist, such as an interactive process meeting. (Redwoods Community College District v. PERB (1984) 159 Cal.App.3d 617, 625.) In order for the union representative to be effective, PERB has held that there must be an adequate opportunity for the employee to confer with the union prior to the interview, and that the employer must generally inform an employee of the nature of any allegations before an investigatory meeting. (Jurupa Unified School District (2012) PERB Decision No. 2283.) Therefore, the scope of the information that a union is entitled to receive prior to an investigatory interview was limited to the general nature of the allegations in the complaint.
In Contra Costa, the faculty union alleged that the district violated the EERA by failing to provide copies of written complaints against two faculty employees to the union in advance of the investigatory interviews. The union’s argument was that in order to adequately represent its members, it was entitled to the full complaint prior to any investigatory interview. PERB uses a liberal discovery-like mechanism to judge requests for information, and the union in Contra Costa was attempting to leverage that mechanism to compel the district to disclose the complaints in order to fully inform the union representatives of the district’s tactics in the interview, despite PERB precedent, indicating that investigatory interviews are not “adversarial proceedings.” (State of California (Department of Corrections) (1998) PERB Decision No. 1297.)
After the initial hearing, the PERB ALJ found that the District’s failure to provide the complaint documents was a violation of the EERA. However, PERB ultimately reversed the ALJ’s decision, finding that “that an employer violates union and employee representational rights when it fails to provide sufficient information regarding alleged wrongdoing to enable a union representative to represent an employee in a meaningful manner during an investigatory interview. This is necessarily a fact-specific inquiry.” (Contra Costa, supra at 30; emphasis added.) However, PERB expressly rejected the union argument that “between the time an employer announces an investigatory interview and the time the interview occurs, a union may request the underlying complaint, and that the employer cannot lawfully go forward with the interview until it has complied with this request.” (Id; emphasis added.)
As we have consistently advised, districts should be cognizant of the information provided to the union prior to an investigatory interview, and should ensure that an adequate level of detail is provided. However, contrary to the theory asserted by the faculty union here, PERB has now definitively indicated that neither an employee nor the exclusive representative is entitled to receive a complaint prior to an investigatory interview.
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