San Bernardino County Public Defender (PERB 2058M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
WANDA
R.
SHELTON,
Charging Party,
V.
SAN BERNARDINO COUNTY PUBLIC
DEFENDER,
Respondent.
Case No. LA-CE-390-M
PERB Decision No. 	2058-M
September 3, 2009
Appearance: Wanda
R.
Shelton, on her own behalf.
Before McKeag, Neuwald and Wesley, Members.
DECISION
McKEAG, Member: This case comes before the Public Employment Relations
Board
(PERB or Board) on appeal by Wanda
R.
Shelton (Shelton)
of
a proposed decision (attached)
by an administrative law judge (ALJ). The unfair practice charge alleged that the San
Bernardino County Public Defender (County) violated the Meyers-Milias-Brown Act
(MMBA) 1 by denying her the right to union representation and retaliated against her
by
placing
her on administrative leave. 	Shelton alleged that this conduct constituted a violation
of
MMBA sections 3502, 3503 and 3506. The ALJ found that Shelton failed to satisfy
her burden
of proof and consequently dismissed the complaint and underlying unfair practice charge.
1MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

The Board has reviewed the entire record in this case, including but not limited to, the
unfair practice charge, the complaint and answer, the hearing transcripts and exhibits,
the
ALJ's proposed decision, and Shelton's exceptions and supporting brief. Based on this review,
we find the proposed decision was well-reasoned, adequately supported by the record
and in
accordance with applicable law. Accordingly, the Board hereby adopts the proposed decision
as a decision
of
the Board itself, subject to the following discussion regarding the right
to
union representation.
DISCUSSION
As indicated in the proposed decision, Shelton was called into a meeting with
County
Supervising Deputy Public Defender Jennifer Cannady (Cannady) and Chief Deputy
Public
Defender Christopher Gardner (Gardner) on April 18, 2007. 	Shelton claims she was
wrongfully denied representation at this meeting.
The Board has held that an employee who is required to attend an investigatory
interview with the employer is entitled to union representation
if
the employee has a
reasonable basis to believe discipline may result from the meeting. PERB adopted the
Weingarten2 rule in Rio Hondo Community College District (1982) PERB Decision No. 260.
In order to establish a violation
of
this right, the charging party must demonstrate: (a)
the
employee requested representation; (b) for an investigatory meeting; (c) which the
employee
reasonably believed might result in disciplinary action; and (d) the employer denied the
request. 	(See Redwoods Community College Dist.
v.
Public Employment Relations Bd. (1984)
2In National Labor Relations Board
v.
J Weingarten, Inc. (1975) 420 U.S. 251
(Weingarten), the U.S. Supreme Court granted employees the right to representation during
disciplinary interviews.
2

159
Cal.App.3d 617; Fremont Union High School District (1983) PERB Decision No. 301;
see also, Social Workers' Union, Local 535
v.
Alameda County Welfare Dept. (1974)
11
Cal.3d 382.)
A.
	Shelton Requested Union Representation
With regard to the first element
of
the representation test, the ALJ found that Shelton
satisfied her burden
of
proof noting that "[i]t thus appears that Shelton at least expressed
her
reluctance to attend the meeting without union representation." We find this statement is
inconsistent with long-standing PERB precedent that requires employees to affirmatively
request union representation in order to invoke their rights to representation at an investigatory
interview. (Regents
of
the University
of
California (2006) PERB Decision No. 1843-H;
Bay Area Air Quality Management ( 2006) PERB Decision No. 1807-M.) Accordingly,
we
find
that expressing reluctance to attend an investigatory interview without union representation is
insufficient, standing alone, to invoke the right to union representation.
Notwithstanding this ruling, we agree with the ALJ that the first element
of
the
representation test was satisfied. In the instant case, Shelton testified that she requested
representation at the time she was ordered by Cannady to attend the meeting, but Cannady
denied her request. We find this testimony credible and, therefore, conclude Shelton
requested
representation for the April 18, 2007 meeting.
B. 	The April 18, 2007 Meeting Was Not Investigatory
With regard to the second element of the representation test, the ALJ concluded
that
the
April 18, 2007, meeting with Cannady and Gardner was not an investigatory interview.
Accordingly, the ALJ found that Shelton failed to establish all of the elements of the
representation test and dismissed the allegation that Shelton was wrongfully denied union
3

4
representation. Based on our review, we find the ALI' s analysis and conclusion regarding this
element well-reasoned and adequately supported by the record. We, therefore, conclude
the
ALI' s dismissal
of
this allegation was appropriate.
ORDER
The complaint and unfair practice charge in Case No. LA-CE-390-M are hereby
DISMISSED.
Member Wesley joined in this Decision.
Member Neuwald's dissent begins on page
5.
4

NEUW ALD, Member, dissent: 	Unlike my colleagues, I find that the San Bernardino
County Public Defender (County) violated the Meyers-Milias-Brown-Act (MMBA)
when
it
denied Wanda
R.
Shelton (Shelton) union representation. As the majority correctly notes, to
establish a violation
of
this right, the charging party must demonstrate: (a) the employee
requested representation; (b) for an investigatory meeting; (
c)
which the employee reasonably
believed might result in disciplinary action; and ( d) the employer denied the request. 	In
regards to the first element, I agree with the majority that Shelton requested representation.
I, however, respectfully disagree with the majority as to whether the meeting
was
investigatory. The Public Employment Relations Board (PERB) has found a right to
representation where: (1) the employee is expected to respond to questions concerning
her
work performance (Redwoods Community College Dist.
v.
Public Employment Relations Bd.
(1984) 159 Cal.App.3d 617; State
of
California (Department
of
Highway Patrol) (1997) PERB
Decision No. 1210-S); (2) the employer clearly goes beyond merely informing the
employee of
the imposition
of
discipline (Rio Hondo Community College District (1982) PERB
Decision
No. 260); (3) the statements were not declaratory (State
of
California (Department
of
Corrections) (1998) PERB Decision No. 1245-S); and (4) disciplinary action is contemplated
and occurs (Regents
of
the University
of
California (1984) PERB Decision No. 449-H).
Within this framework, I believe that the meeting was investigatory. Shelton was
required
to
provide information about whether she was going to move. 	Chief Deputy Public
Defender
Christopher Gardner's (Gardner) statement was not rhetorical. Further, the purpose
of the
meeting was not simply to deliver a predetermined disciplinary action, such as a letter
of
written reprimand. Last, the meeting did ultimately result in discipline.
5

In regards to the final two elements, Shelton had a reasonable belief
of
impending
disciplinary action at the meeting because she refused to move her desk. Gardner and
Supervising Deputy Public Defender Jennifer Cannady (Cannady) denied the request.
	As
such,
I find that Gardner's and Cannady's refusal was a denial
of
Shelton's right to representation
and was therefore in violation
of
MMBA sections 3501, 3503, and 3506. 1
1Because I found that the County denied Shelton representation, it is unnecessary for
me to further analyze and determine whether the meeting presented the type of "highly
unusual circumstances."
6

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
WANDA
R.
SHELTON,
Charging Party,
V.
SAN BERNARDINO COUNTY PUBLIC
DEFENDER,
Res ondent.
UNFAIR PRACTICE
CASE NO. LA-CE-390-M
PROPOSED DECISION
(5/12/2008)
Appearances: 	Wanda
R.
Shelton, on her own behalf; Kenneth C. Hardy, Deputy County
Counsel, for San Bernardino County Public Defender.
Before Thomas J. Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a public employee alleges that a public agency denied her the right
to union
representation and retaliated against her, in violation
of
the Meyers-Milias-Brown Act
(MMBA). 1 The agency denies any violation.
Wanda
R.
Shelton (Shelton) filed an unfair practice charge against the San
Bernardino
County Public Defender (County) on July 31, 2007. The General Counsel
of
the Public
Employment Relations Board (PERB) issued a complaint against the County on October 31,
2007. The County filed an answer to the complaint on November 29, 2007.
PERB held an informal settlement conference on December 18, 2007, but the
case
was
not resolved. PERB held a formal hearing on March 11-12, 2008. At the conclusion
of the
hearing, the case was submitted for decision on the basis
of
oral argument, without the
preparation of transcripts.
1 MMBA is codified at Government Code section 3500 and following.

FINDINGS OF FACT
Shelton is a public employee under MMBA, and the County is a public agency
under
MMBA. 	Prior to April 6, 2007, Shelton was regarded as a good employee. Events beginning
on that day, however, led to Shelton being placed on administrative leave on April 18,
2007,
and later terminated.
On
April
6,
2007, Chief Deputy Public Defender Christopher Gardner (Gardner)
decided that Shelton, an Office Assistant III, should move over one workstation, so that
she
would be at a reception window. 	Gardner told Supervising Deputy Public Defender
Jennifer
Cannady (Cannady), Shelton's direct supervisor, to have Shelton move, and Cannady
orally
ordered Shelton to move. For reasons that are not entirely clear, Shelton resisted the order.
On April 12, 2007, Cannady gave Shelton a memo stating in part:
As
of
today's date, you have failed to move. You are ordered to
relocate to the adjacent workstation at the reception window.
Your workstation will be at the desk at the reception window
effective Monday April 16, 2007 at 8am [sic]. Failure to relocate
to the adjacent workstation at the reception window is
insubordination and will subject you to discipline.
Despite several opportunities to comply, Shelton continued to resist the order, until she
was
placed on administrative leave on April 18, 2007.
During Shelton's administrative leave, the County investigated her conduct.
	On
May 11, 2007, the County gave her a notice
of
proposed dismissal for insubordination,
and
on
May 23, 2007, it gave her a predisciplinary hearing, at which she was represented by
her
union. 	On June 26, 2007, the County issued an order
of
dismissal. 	Shelton appealed to
the
County Civil Service Commission and received a hearing on October 29-30, 2007, at
which
she was again represented by her union. On December 13, 2007, the Civil Service
Commission sustained the order of dismissal. Shelton did not seek judicial review.
2

Shelton's dismissal was not mentioned in the PERB complaint and was not litigated at
the PERB hearing. 	Two other issues were in the complaint and were litigated: whether the
County denied Shelton the right to union representation, and whether the County placed
Shelton on administrative leave in retaliation for protected conduct.
Alleged denial
of
representation
The PERB complaint alleges in part:
3.	
On April 18, 2007, Charging Party [Shelton] was
required to meet with Respondent's [the County's] agents,
Jennifer Cannady and G. Christopher Gardner, to discuss her
failure to relocate her work station. Charging Party had a
reasonable belief that the interview would result in disciplinary
action.
4. 	Charging Party requested that her employee
organization representative be present for the meeting.
Respondent, acting through its agents, Ms. Cannady and Mr.
Garner, refused to permit the representative to attend the meeting.
The County's conduct is alleged to have violated MMBA section 3502.
There is no doubt that in the afternoon
of
April 18, 2007, Shelton was called into a
meeting with Cannady and Gardner, and that she reasonably anticipated discipline.
	Shelton
had been on notice since at least the April 12 memo that her failure to relocate would
subject
her to discipline. In the morning
of
April 18, 2007, Cannady and Gardner had again
ordered
her
to
move, by noon, but Shelton had not moved. According to Shelton's testimony,
she
returned from lunch expecting disciplinary action against her. In the meantime, Cannady had
contacted the County's human resources officer, who had advised Cannady and Gardner
to
give Shelton one more chance to comply with the order.
There is a question whether Shelton requested union representation at the April 1 8
meeting. 	At the PERB hearing, she testified that she did, while Cannady and Gardner testified
that she did not. At Shelton's civil service hearing, however, Cannady testified:
3

When we first got into Mr. Gardner's office, Ms. Shelton, while
starting to close the door, said at that time she had called the
union and she was waiting to hear back from them, [and]
everyone was telling her she shouldn't be meeting with us.
It thus appears that Shelton at least expressed her reluctance to attend the meeting without
union representation. Although Cannady and Gardner did not tell Shelton she could not
have
representation, they proceeded with the meeting despite her expressed reluctance.
At
the PERB hearing, Shelton testified that in the meeting Gardner stated to her,
"You
didn't move," and ordered her to move "right now." Cannady and Gardner testified that
Gardner asked Shelton one question: whether she would comply with the order. Shelton
herself did not testify that she was asked any questions at all.
There is some question as to whether Shelton actually refused to move, but she
did
not
initially say she would move, and Gardner explained that he would place her on administrative
leave
if
she did not comply with the order. 	When Shelton complained that she did not
know
what to move, or could not move it herself, Cannady and Gardner accompanied her to
her
workstation to show her and to help her. While they were there, Shelton finally made
telephone contact with a union representative, and Gardner and Cannady gave her
privacy to
talk to him. When they returned a few minutes later, Shelton was getting ready to leave
the
office to go see a doctor. Gardner told her that he would deem her departure a failure to
comply and would place her on administrative leave. 	When she chose to depart anyway,
he
did in fact place her on administrative leave.
Alleged retaliation
The PERB complaint alleges in part:
6. 	During the period from approximately April 6,
2007 to April 18, 2007, Charging Party [Shelton] exercised rights
guaranteed by the Meyers-Milias-Brown Act by engaging in the
following protected conduct: discussing with Ms. Cannady and
Mr. Gardner her concerns about her new workstation assignment;
4

requesting the ability to contact her union representative; and
attempting to and subsequently speaking with her union
representative.
7.	
On or about April 18, 2007, Respondent [the
County], acting through its agents, took adverse action against
Charging Party by placing her on Administrative Leave.
The County's conduct is alleged to have violated MMBA section 3506.
There is no doubt that Shelton did engage in protected conduct, and there is no
doubt
that the County, through Gardner, placed her on administrative leave.2 The question is
whether
Gardner placed Shelton on administrative leave because
of
her protected conduct.
Almost all
of
the evidence in this case, including Gardner's own credible testimony on
this point, indicates that Shelton was placed on administrative leave not because
of
her
protected conduct but because she repeatedly failed to comply with the order to move
her
workstation. 	The only real evidence to the contrary was Shelton's testimony that at a
meeting
on April 12, 2007, with Shelton, Cannady and two other employees present, Gardner
said, "I
don't want to get the union involved."
Gardner testified to the contrary. He testified that in the meeting he said he did
not
care
if
Shelton's reception window duties
Were
shared among other employees, but Cannady
said
other employees were covered by different union contracts, and Gardner then said he
did not
want to get into that. 	Gardner testified similarly at Shelton's civil service hearing.
At the PERB hearing, Cannady credibly testified to the same effect. At Shelton's civil
service hearing, she similarly testified:
Mr. Gardner said somebody needs to sit at that reception window.
I don't care who sits there. 	Somebody needs to sit there. 	At that
point I responded with, well, we need to -- you need to be aware
that not just anyone can sit at the window, that there are job
descriptions and the union could get involved if we have people
There is also no doubt that involuntary administrative leave is a form of adverse
action. 	(Oakland Unified School District (2003) PERB Decision No. 1529, and cases cited.)
5

whose job description doesn't cover this sitting at the window
doing someone else's job.
Earlier, in a memo to Gardner dated April 12, 2007 (signed on May 10, 2007), Cannady
recorded that when Gardner said he did not care who sat at the window, she had "pointed
out
that there were differences between assignments and job descriptions."
At the PERB hearing, Shelton offered in evidence the transcripts
of
investigatory
interviews with the two other employees present at the April
12
meeting. In those interviews,
neither employee mentioned Gardner talking about union involvement, but one mentioned
Cannady raising issues about job descriptions and union contracts.
In light
of
all the evidence, I credit the testimony
of
Gardner and Cannady on
this
point.
The evidence does not show that Gardner expressed animosity towards union involvement. 	At
most, it appears that Gardner and Cannady expressed concern about possibly violating
union
contracts by asking other employees to share Shelton's reception window duties.
ISSUE
I. 	Was Shelton denied the right to union representation?
2. 	Was Shelton placed on administrative leave for retaliatory reasons?
CONCLUSIONS OF LAW
Alleged denial
of
representation
An employee required to attend an investigatory interview with the employer is
entitled
to union representation where the employee has a reasonable basis to believe discipline
may
result from the meeting. (Social Workers' Union, Local 535
v.
Alameda County Welfare
Department (1974)
11
Cal.3d 382 (Social Workers' Union, Local 535).) In order to
establish
a
violation of this right, the charging party must demonstrate: 	(a) the employee requested
representation, (b) for an investigatory meeting, (c) which the employee reasonably believed
might result in disciplinary action, and (d) the employer denied the request. (Id.; Civil Service
6

Assn., Local 400
v.
City and County
of
San Francisco (1978) 22 Cal.3d 552 (Civil Service
Assn.).)
In Social Workers' Union, Local 535, supra, at page 391, the Court noted the
importance
of
using federal decisions to guide interpretation
of
state labor provisions the
language
of
which parallels that
of
federal statutes. 	California courts have taken notice
of
such
federal precedent in representation matters, citing with favor the U.S. Supreme Court's
ruling
in NLRB
v.
Weingarten (1975) 420 U.S. 251 (Weingarten). (Civil Service Assn., supra,
at
556.) In approving the Weingarten rule, the U.S. Supreme Court noted with approval
that the
National Labor Relations Board would not apply it to "such run-of-the-mill shop-floor
conversations as, for example, the giving
of
instructions or training or needed corrections
of
work techniques." (Weingarten, supra, quoting Quality Manufacturing Co. (1972) 195
NLRB
197, 199 [79 LRRM 1269, 1271].)
In the present case, as previously noted, there is no doubt that on April 18, 2007,
Shelton was called into a meeting with Cannady and Gardner, and that she reasonably
anticipated discipline. There is a question whether Shelton requested union representation at
the April
18
meeting. 	Based on the evidence, I would resolve that question in Shelton's favor.
It appears that Shelton at least expressed her reluctance to attend the meeting without
union
representation. Under those circumstances, I would say that Cannady and Gardner
proceeded
with the meeting at their peril. Had they conducted an investigatory interview, I would
further
conclude that they denied Shelton the right to union representation.
The evidence shows, however, that Cannady and Gardner did not conduct an
investigatory interview. According to Cannady and Gardner, Shelton was asked one question:
whether she would comply with the order to move that they had already given her. 	Shelton
herself did not testify that she was asked any questions at all. 	Whatever the precise details, I
7

believe that Shelton correctly understood what was happening: 	she was not being questioned,
she was being ordered. Cannady and Gardner were giving her one more opportunity to
comply, as the County's human resources officer had advised.
Cannady and Gardner did not initiate the sort
of
inquiry or discussion for which
union
representation has been found to be a right. Unlike the meeting in Redwoods Community
College Dist.
v.
Public Employment Relations Bd. (1984) 159 Cal.App.3d 617, the
meeting
in
this case was neither investigatory nor formal, and it was conducted by Shelton's supervisors,
not by high-level management. Unlike the meetings in Rio Hondo Community College
District (1982) PERB Decision No. 260, the meeting here did not involve give and take
concerning the possible consequences
of
Shelton's conduct. The meeting here was
more
comparable to the one in State
of
California (Department
of
Highway Patrol) (1997)
PERB
Decision No. 1210-S, in which an employee was given work performance direction,
and
for
which no right to union representation was found.
The order for Shelton to move her workstation was the kind
of
"giving
of instructions"
that Weingarten excluded from the right to union representation. It was not "run-of-the-mill"
in this case only because Shelton resisted the order. Her resistance forced Cannady
and
Gardner to repeat the order, but it did not thus create a right to representation where
none
would otherwise exist. I conclude that Shelton has not met her burden
of
proving that
the
County denied her the right to union representation where she had such a right.
Alleged retaliation
To establish a prima facie case of retaliation in violation of Government Code
section
3506 and PERB Regulation 326O3(a), the charging party must show that: (1) the
employee
exercised rights under MMBA; (2) the employer had knowledge of the exercise of those rights;
and (3) the employer imposed or threatened to impose reprisals, discriminated or threatened to
8

discriminate, or otherwise interfered with, restrained, or coerced the employee because
of
the
exercise
of
those rights. (Campbell Municipal Employees Association
v.
City
of
Campbell
(1982) 131 Cal.App.3d 416 (Campbell); San Leandro Police Officers Association
v.
City
of
San Leandro (1976)
55
Cal.App.3d 553 (San Leandro Police Officers Assn.).)
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor, it does not, without more, demonstrate
the necessary connection or "nexus" between the adverse action and the protected conduct.
(Moreland Elementary School District (1982) PERB Decision No. 227.) Facts establishing one
or more
of
the following nexus factors should be present: (1) the employer's disparate
treatment
of
the employee (Campbell, supra); (2) the employer's departure from established
procedures and standards when dealing with the employee (San Leandro Police Officers
Association, supra); (3) the employer's inconsistent or contradictory justifications for its
actions (San Leandro Police Officers Association, supra); (4) the employer's cursory
investigation
of
the employee's misconduct; (5) the employer's failure to offer the
employee
justification at the time it took action or the offering
of
exaggerated, vague, or ambiguous
reasons; or (6) employer animosity towards union activists (San Leandro Police Officers
Association, supra; Los Angeles County Employees Association v. County
of
Los
Angeles
(1985) 168 Cal.App.3d 683).
In the present case, as previously noted, there is no doubt that Shelton engaged
in
protected conduct in the two weeks before the County took action against her by putting
her
on
administrative leave. 	That timing, however, is not enough to prove retaliation. The
only other
evidence of retaliation was Shelton's testimony that at a meeting with Shelton, Cannady
and
two other employees on April 12, 2007, Gardner said, "I don't want to get the union involved."
On this point, however, I have credited the testimony of Gardner and Cannady over that
of
9

Shelton. 	At most, it appears that Gardner and Cannady expressed concern about possibly
violating union contracts by asking other employees to share Shelton's reception window
duties. 	That is hardly the same thing as expressing animosity towards union activists. I
conclude that Shelton has not met her burden
of
proving that the County retaliated against her.
PROPOSED ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law and the entire
record
in this matter, the complaint and the underlying unfair practice charge in Case No.
LA-CE-390-M, Wanda
R.
Shelton
v.
San Bernardino County Public Defender, are hereby
DISMISSED.
Pursuant to California Code
of
Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a request for an extension
of time
to
file exceptions or a statement
of
exceptions with the Public Employment Relations
Board
(PERB or Board) itself. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
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 Regs., tit. 8,
sec. 32132). The request for an extension oftime 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 Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit.
8,
sec. 32135(a); see also Cal. Code Regs., tit.
8,
-sec. 32130 and Government Code section 11020(a).) A document is also considered "filed"
when received by facsimile transmission before the close
of
business together with a Facsimile
Transmission Cover Sheet which meets the requirements
of
California Code
of
Regulations,
title
8,
section 32135(d), provided the filing party also places the original, together with
the
required number
of
copies and proof
of
service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec.
32135(b), (c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently
with
its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy
served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
11
Th;mas
J.
Allen
(/
Administrative Law Judge