Capistrano Unified School District (PERB 2440E)

ST ATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CAPISTRANO
CHAPTER 224,
Charging Party,
v.
CAPISTRANO UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-5621-E
PERB Decision No. 2440
June 30, 2015
Appearances: Nathan Banditelli, Labor Relations Representative, for California School
Employees Association & its Capistrano Chapter 224; Atkinson, Adelson, Loya, Ruud &
Romo by Anthony P. De Marco and Amy W. Estrada, Attorneys, for Capistrano Unified
School District.
Before Huguenin, Winslow, and Banks, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions by the Capistrano Unified School District (District) to the proposed
decision (attached) of an administrative law judge (ALJ). The ALJ ruled that the District
interfered with the right of Teresa Hause (Hause) to be represented by the California School
Employees Association & its Capistrano Chapter 224 (collectively, CSEA) and with CSEA's
right to represent Hause during a June 2, 2011 meeting with her supervisor, in violation of
Educational Employment Relations Act (EERA) section 3543.5, subdivisions (a) and (b). 1
As a remedy, the ALJ ordered that the District's written reprimand be rescinded and expunged
from Hause's personnel file in accordance with Lake Elsinore Unified School District (2004)
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein shall be to the Government Code.

PERB Decision No. 1648 (Lake Elsinore) and Redwoods Community College District (1983)
PERB Decision No. 293 (Redwoods). Although the
AIJ
acknowledged that the reprimand
referenced some conduct that was unrelated to the June 2, 2011 meeting, he concluded that it
was nonetheless appropriate to rescind and expunge the entire document, because it was based,
at least in part, on an investigatory interview at which Hause was denied the right to
representation.
The District denies any wrongdoing and asserts various grounds for reversing the
proposed decision. It also excepts to the remedy as improper and excessive. CSEA contends
that each
of
the District's arguments is without merit and urges the Boara to affirm the
proposed decision.
We have reviewed the entire record in this matter, including the charge, the complaint,
the District's answer, the transcript
of
the hearing before the ALJ and exhibits thereto, the
ALJ's proposed decision, the District's exceptions to the proposed decision, and CSEA's
response to the District's exceptions. Based on this review, we conclude that the ALJ's
findings
of
fact are supported by the record, and we adopt them as the findings
of
the Board
itself, as supplemented below. The ALJ's legal conclusions are generally well-reasoned and in
accordance with applicable law and, except as noted below, and we affirm the proposed
decision, subject to the following discussion
of
the District's exceptions.
PROCEDURAL HISTORY
On November 7, 2011, CSEA filed an unfair practice charge alleging that the District
violated EERA section 3543.5, subdivisions (a) and (b), by interfering with Hause's right to
union representation, retaliating against Hause for engaging in protected activities, and denying
CSEA its right to represent Hause in employment related matters. On January 20, 2012,
PERB' s Office of the General Counsel issued a complaint alleging that the District interfered
2

with Hause's right to representation and with CSEA's right to represent Hause, in violation
of
EERA section 3543.5, subdivisions (a) and (b). 	On the same day, CSEA withdrew all other
;illegations from its charge.
On February 16, 2012, the District answered the complaint by denying any wrongdoing
and asserting various affirmative defenses.
After an informal settlement conference on March 14, 2012, failed to resolve the
dispute, a formal hearing was held on June 13 and 14, 2012 before a PERB
AU.	
On
August 24; 2012, the parties filed closing briefs and the matter was fully submitted.
On October 10, 2012, the
AU
issued his proposed decision, which concluded that the
District had violated EERA section 3543.5, subdivisions (a) and (b).
On November 5, 2012, the District filed a statement
of
exceptions and brief in support
thereof. After being granted an extension
of
time in which to respond, on December 17, 2012,
CSEA filed its response to the District's exceptions.
FINDINGS OF FACT
CSEA is the exclusive representative
of
the District's classified employees, including
its food service staff. 	CSEA's chief steward is Ken Jensen (Jensen), whose duties include
representing the District's food service workers in investigatory and other meetings with
management. Jensen testified that CSEA has a good working relationship with the District and
that, other than the present dispute, he knew of no instance in which the District had denied a
food service worker's request for representation at an investigative meeting with District
management.
The District's Food and Nutrition Director is Dawn Davey (Davey). Davey testified, in
general agreement with Jensen, that the District has "a good relationship with the Union," and
3

that it has generally permitted a CSEA representative to attend meetings with management,
including non-disciplinary meetings, "[i]f it's convenient and it works out for everyone."
At all times relevant, Hause has worked as a Food Service Lead II at the District's
Niguel Hills Middle School (Niguel Hills). Her duties include ordering and preparing food,
directing other food service workers, and serving food to students, either from one of six food
service terminals or "windows," which connect the kitchen to the school's courtyard, or from a
separate cart located outside the kitchen. Pursuant to her job description, Hause is also
responsible for analyzing operations and making recommendations to her supervisors on ways
to cut costs and improve service.
Hause's immediate supervisor is Food and Nutrition Supervisor IV John Chamberlin
(Chamberlin) who, in turn, reports to Davey. Chamberlin oversees approximately 55 food and
nutrition department employees at twelve middle school sites, one of which is Niguel Hills.
Chamberlin is in regular telephone and email contact with the lead food service workers under
his supervision. Although he visits the school sites "on a daily basis" to check operations and
to ensure compliance with procedures, because of the District's size, he considers himself
"lucky" if he can visit two or three schools per day. The record does not indicate whether
Chamberlin's visits follow a regular schedule or whether he typically advises food service
leads in advance of his plans to visit a particular site.
By all accounts, Hause and Chamberlin have a "strained" working relationship. In or
about March 2011, Chamberlin counseled Hause regarding her failure to follow a department
policy of providing student helpers with only one meal and one snack per shift. In an April 21,
2011 email message, Hause advised Chamberlin that she disagreed with this policy and was
not following it. It is undisputed that Chamberlin did not counsel Hause or otherwise inform
4

-----
her that he regarded her email message as insubordinate. It is also undisputed that the District
took no disciplinary action against Hause regarding this message until September 1, 2011.
The present dispute is not the first instance in which Hause has requested CSEA's
assistance at a meeting with Chamberlin or other District managers. There was undisputed
evidence that, at CSEA's request, in March of 2009, the District's Deputy Superintendent of
Personnel Services, Suzette Lovely, agreed to "[p]rovide at least 24 hours['] notice to
Ms. Hause and CSEA before a meeting, memo, evaluation or conversation occurs that could
lead to discipline." Jensen also testified that, at Hause's request and with Davey's approval, he
had attended a meeting on or about November 8, 2010, at which Chamberlin and Davey had
instructed Hause on "the day-to-day workings of food service."
In or about April 2011, the District began converting the food services department's
accounting software program, known as "Lunch Box," to a new program known as "Meals
Plus." The new program is designed to track inventory, compliance with federal regulations
and overall transaction activity at the various sites throughout the District. The change in
software also entailed certain operational changes. Under the previous system, each employee
was responsible for sales at only one window at a time. The enhanced Meals Plus software,
however, would allow each employee to work two "points-of-sale" or "windows" .
simultaneously. Additionally, only snacks and other non-meal items, referred to as a la carte
items, would be sold from the outside carts following the change to Meals Plus, because the
carts were not compatible with the program's meal tracking software.
The Meals Plus program was implemented in phases throughout the District. Its
implementation at Niguel Hills was scheduled for May 26, 2011. During a May 20, 2011
telephone conversation with Hause on an unrelated matter, Chamberlin raised the topic of
Meals Plus. According to Chamberlin, Hause became ;'argumentative" and "bellig~!~nt'_'___cS'----h=e_
----- ____ _
5

criticized Meals Plus as unworkable and a misguided attempt to replace employees with
computers. Chamberlin testified that Hause's position was, "essentially, that she was not
going to do this" and that he regarded Hause's comments as an "attack" on the integrity of
·management. 	However, before Chamberlin could defend himself or expound on the benefits
of Meals Plus at other sites where it had already been implemented, Hause hung up.
Chamberlin immediately tried to call Hause back, but another employee informed him
that Hause was in the front office. Chamberlin left a message that it was "important" that
. Hause call him back the same day. At the hearing, he explained that he wanted to "finish
summarizing the points to make clear what the plan was and to not have this attack on me."
There was no testimony regarding whether Hause received Chamberlin's message. However,
she did not return Chamberlin's call. Chamberlin tried calling Hause again later the same day
but did not reach her. The record does not indicate whether Chamberlin left a voicemail
message, or, if so, whether Hause received any such message.
On May 23, 2011, Chamberlin expressed concern to Davey about Hause and suggested
that, if she was unable or unwilling to implement Meals Plus, she be temporarily transferred to
another school where Meals Plus was already operational. On the same day, Chamberlin met
with Hause to discuss the possibility of transferring her to another school site. According to
Chamberlin, the proposed transfer arose out of his conversation with Davey and his concern that
the Meals Plus roll-out would "be too much" for Hause because she was "under a lot of stress."
According to Hause, Chamberlin "threatened" to transfer her involuntarily, if he suspected that
she was "sabotaging" the Meals Plus program.
On May 26, 2011, the first day of the Meals Plus program at Niguel Hills, Hause did not
comply with Chamberlin's directives. Contrary to his instructions that Hause work inside and
6

oversee operations, she instead worked outside at the food cart. While at the cart, Hause served
both meals and a la carte items, which was also contrary to Chamberlain's instructions.
On June 1, 2011, Chamberlin telephoned Hause to discuss the proper protocol for
Meals Plus. Chamberlin again directed Hause to work "inside," at the food service windows,
rather than at the cart. He also instructed her that only a la carte items should be sold from the
cart. After some discussion, in which Hause again questioned the wisdom and practicality of
the program, she ended the conversation by hanging up the telephone on Chamberlin.
On June 2, the last day of the school year before the summer break, Chamberlin paid an
unannounced visit to Niguel Hills to discuss the Meals Plus roll ~out with Hause and to
determine whether Hause understood and intended to comply with his directives. Chamberlin
testified that he did not intend to discipline Hause, even if he learned that she had deliberately
sabotaged implementation of the Meals Plus plan at Niguel Hills. When asked whether Hause's
apparent defiance was a cause for concern, Chamberlin testified that his focus was on getting
Meals Plus operational, and that he could deal with "other things" later.
Shortly before 9:00 am, Chamberlin entered the kitchen area, which was unoccupied,
except for Hause, who was busy setting up for breakfast. Chamberlin greeted Hause, who did
not acknowledge Chamberlin's greeting.2 Chamberlin again greeted Hause and stated that he
was there to talk with her about his directives regarding Meals Plus. According to Chamberlin,
Hause "yelled at" him to "get out of [her] kitchen" and to stop harassing her and the other food
service workers at Niguel Hills. Chamberlin responded in what he described as his own
"elevated voice," by informing Hause that, as her supervisor, he had every right to be there,
2 Chamberlin testified that, because of fans placed over the ovens, "[i]t's loud [in the
kitchen] so that you [must] elevate your voice ... to be heard." It is thus unclear from the
record whether Hause heard Chamberlin's initial greeting.
7

and that he intended to have a conversation with her about whether she understood and was
following his directives. Chamberlin testified that Hause walked away from him and into her
office, and that, after he stood there for a moment, he followed her into the office and sat
down. However, he also admitted that it was "possible," that he had directed her to go into the
office but did not remember doing so.
Once in the office, Chamberlin repeated the purpose of his visit. Hause responded by
saying that, if this meeting was going to be disciplinary, then she wanted to have a union
representative present. Chamberlin stated that he "came here with no intention" of the meeting
resulting in disciplinary action, but that he had no objection to the presence of a representative,
even if he did not personally see the need for it. Chamberlin also testified that he would have
"welcomed" the presence of a CSEA representative at the June 2, 2011 meeting.
After Hause stated that she wanted representation, if the meeting was going to be
disciplinary, Chamberlin did not expressly grant her request or permit her to contact Jensen or
another CSEA representative. Nor did Chamberlin end the meeting or advise Hause that she
could continue the meeting without representation or skip the meeting altogether. Instead,
Chamberlin asked Hause, once again, to repeat his directives from the previous day and to
indicate whether she understood, and was following those directives. Hause initially refused to
answer, but after being asked "possibly three times," she accurately restated Chamberlin's
directives and confirmed that she was following them.
Hause then stood up and paced the room while stating her view that the Meals Plus
plan "sucks," is unworkable and "ridiculous." In particular, she criticized the program as
potentially destructive of food service jobs with no corresponding improvement in service.
According to Chamberlin, she asserted that her "ladies" were not going to work that hard.
ethen~attempted-unsuccessfully~t<:H;ontact-Jensen~onher~eellular~telephon~Mter~leav	-----Haus 	ing~-----
8

a message for Jensen that Chamberlin was harassing her and would not leave her office, Hause
again yelled that she wanted Chamberlin out of her kitchen immediately.
Once Hause had repeated his directives and confirmed her compliance, Chamberlin
said, "great, that's all I needed to know," and "[t]hat's all I came here to find out." However,
Chamberlin remained seated for some time, even after Hause had repeated his directives,
because, "as her supervisor," he did not appreciate being told by a subordinate to leave "her"
office. Chamberlin also testified that, after ensuring that his directives were being followed, if
"there was some discussion [of those directives]," then he "would listen to her." At no point
during the June 2, 2011 conversation did Chamberlin advise Hause that the meeting was
"over" or that she should return to her duties in the kitchen.
After finishing her denunciation of the Meals Plus program, Hause left the food service
area and told Niguel Hills Vice Principal Al Rios (Rios) that she was being "harassed" and felt
ill. Rios then went to the kitchen, where he informed Chamberlin that Hause was leaving
work. Chamberlin contacted Davey to report what had just happened with Hause. After the
brief telephone conversation, Chamberlin pulled himself together and ~ook over Hause's
serving duties for the remainder of her shift.
Later that day, Jensen returned Hause's voice mail message and obtained Hause's
account of the meeting. Jensen then sent an email message to Chamberlin, Davey, and the
local president of CSEA, in which he requested, among other things, that when employees
request union representation, District managers consider such requests, if they later plan to
bring forward issues that allegedly took place during the conversation.
Davey replied to Jensen's message the same day. Her response did not specifically
address Jensen's request regarding future meetings. It did, however, assert Davey's view that,
9

"anytime an employee has requested CSEA representation[,] we have welcomed you to be a
part
of
that process."
When Hause returned
to
work on September 7, 2011, the District issued a written
reprimand for failure
to
follow directives, unprofessionalism, and insubordination. The
reprimand states that the purpose
of
the June 2, 2011 meeting was to "monitor the
implementation
of
the directives given the day before." Among the instances
of
"unprofessional, disrespectful, insubordinate and willfully disobedient" behavior for which
Hause was reprimanded were Hause's assertion that "this is my operation," and her "yelling"
at Chamberlin to "get out
of
my kitchen," after she had expressed her desire for representation
and attempted to contact Jensen.
The written reprimand also references several prior events, some
of ~hich were not
discussed at the June 2, 2011 meeting. Among these prior instances
of
unacceptable conduct
referenced in the written reprimand was the April 21, 2011 email message from Hause referred
to above, in which she stated her disagreement with, and refusal to follow, the policy of
providing only one meal and one snack to student helpers.
On September 21, 2011, Hause submitted a written response to the reprimand in which
she disputed some
of
the document's contents. In or about October 2011, Hause also filed a
hostile work environment complaint against Chamberlin and Davey.
DISCUSSION
Before considering the District's exceptions, we review the statutory and decisional law
governing the representational rights of employees and employee organizations. The
representational rights of employees and employee organizations in meetings with management
derive from EERA section 3543's guarantee of employee rights to "participate in the activities of
employee organizations of their own choosing for the purpose of repre~ntation_on-allmatters_of
10

------------------------------------
employer-employee relations," and from section 3543. l's guarantee of the exclusive
representative's right to represent unit employees in their relations with the public school
employer. (EERA §§ 3543, subd. (a), 3543.1, subd. (a);3 Sonoma County Superior Court (2015)
PERB Decision No. 2409-C (ponoma), p. 14.4) PERB has held that an investigatory or
disciplinary interview with the employer falls within the broad definition of "all matters of
employer-employee relations," and that EERA section 3543, subdivision (a), therefore
guarantees public school employees representational rights that are at least as broad as those
afforded private-sector employees under NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251
(Weingarten) and other federal authorities interpreting section 7 of the National Labor Relations
Act (NLRA).5 (Marin Community College District (1980) PERB Decision No. 145 (Marin),
pp. 13-14.)6
3 See also EERA section 3540, which states that EERA's purposes include "providing a
uniform basis for recognizing the right of public school employees ... to be represented by
[employee] organizations in their professional and employment relationships with public
school employers." As discussed in Trustees of the California State University (2014) PERB
Decision No. 2384-H, pages 24-25, California courts have repeatedly held that EERA
section 3540 is not merely hortatory, but a source of enforceable rights.
4 Although Sonoma is currently under superior court review pursuant to a Petition for
Writ ofMandate under California Code of Civil Procedure, section 1085, the Board is unaware
of any authority prohibiting it from citing to a Board decision pending review by a superior
court.
5 The NLRA is codified at 29 U.S.C., § 151 et seq.
6 In Weingarten, the Supreme Court affirmed a decision by the National Labor
Relations Board (NLRB) that an employer's failure to grant an employee's request to have a
union representative at an investigative interview unlawfully interfered with the employee's
section 7 right to engage in concerted activities for mutual aid or protection. (Weingarten,
supra, at p. 256.) Section 7 of the NLRA provides, in pertinent part, that employees "shall
have the right to self-organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protection." (29 U.S.C.,
§ 157.)
11

Under Weingarten, the employee has a right to the advice and active assistance of the
union representative in investigative or disciplinary meetings. (Id. at p. 263; Civil Service
Assn. v. City and County of San Francisco (1978) 22 Cal.3d 552, 567-568.) The employer
must inform the employee of the nature of any charge of impropriety before the meeting and, if
the employee has no opportunity to confer with the representative on the employee's own time
before the interview, allow the employee and the representative an opportunity to confer
privately about the subject of the impending interview, so that the representative can provide
meaningful representation. (Jurupa Unified School District (2012) PERB Decision No. 2283
(Jurupa), p. 30; United States Postal Serv. (2005) 345 NLRB 426, 436-437; Barnard College
(2003) 340 NLRB 934, 935; United States Nuclear Regulatory Commission (2010) 65 FLRA 79,
84-85.) Once an employee has requested representation, it makes no difference whether the
request for prior consultation comes from the employee or the representative. (United States
Postal Serv. (1991) 303 NLRB 463,467, enforced (D.C. Cir. 1992) 969 F.2d 1064; see also
Fremont Union High School District (1983) PERB Decision No. 301 (Fremont), pp. 7-10.)
While the representative cannot tum the interview into an adversarial proceeding (State
of California (Department of Corrections) (1998) PERB Decision No. 1297-S, adopting
proposed dee. at pp. 16-18), neither may the employer insist that the representative remain silent
or take no active role in the meeting. (Id. at p. 12; Southwestern Bell Telephone Co. (1980)
251 NLRB 612, enforcement den. (5th Cir. 1982) 667 F.2d 470; United States Postal Serv.
(2007) 351 NLRB 1226, 1226-1227; Redwoods, supra, PERB Decision No. 293, p. 9,
affd. Redwoods Community College Dist. v. Public Employment Relations Bd. (1984)
159 Cal.App.3d 617 (Redwoods v. PERB).) Employees may refuse to attend investigatory or
disciplinary interviews where their representational rights are denied without fear of discipline
_ Q.r re2risal from the emi:iloyer. (International Ladies' Garm~J1.LW.ar1r.e.rs'IJnian,~Ilpp.eLSauth ___	···- _ 	__ _
12

Department, AFL-CIO v. Quality Manufacturing Co. (1975) 420 U.S. 276, 279-281 (Quality
Manufacturing); Marin, supra, PERB Decision No. 145, p. 13; see also Social Workers' Union,
Local 535 v. Alameda County Welfare Department (1974) 11 Cal.3d 382 (Social Workers'
Union).)
In addition to these so-called Weingarten rights, PERB and California courts have
recognized that, in at least two respects, the language of BERA is "considerably broader"
than the federal law on which Weingarten rests. (Redwoods v. PE'RB, supra,
159 Cal.App.3d 617,623; Placer Hills, supra, PERB Decision No. 377, p. 40.) Because EERA
guarantees employees a right to representation "in all matters of employee-employer relations,"
not all meetings with management must conform to the requirements of Weingarten before the
right to representation attaches. (Sonoma, supra, PERB Decision No. 2409-C, p. 8.) California
law extends the right of representation to employer-initiated meetings held under "highly unusual
circumstances," i.e., meetings that are not "investigative" or "disciplinary" per se. (Redwoods v.
PERE, supra, 159 Cal.App.3d 617; Placer Hills, supra, at pp. 39-40; Regents of the University
of California (1984) PERB Decision No. 403-H (Regents), pp. 9-10; Regents of the University
of California (1984) PERB Decision No. 449-H, adopting proposed dee. at pp. 133-134;
San Diego Unified School District (1991) PERB Decision No. 885 (San Diego), pp. 66-67.)
Also unlike the federal law on which Weingarten is based, EERA provides an
independent right to employee organizations "to represent their members in their employment
relations with public school employers." (EERA, § 3543.1, subd. (b); Rio Hondo Community
College District (1982) PERB Decision No. 260 (Rio Hondo), pp. 3-4.) Once an employee
orga:q.ization has been recognized or certified as the exclusive representative of a bargaining unit,
EERA further provides that "only that employee organization may represent that unit [of
,-mployees]-in-th@ir-empl0yment-relati0ns-with-the-publicsch00l-empl0yer;"'-(EERA;-§-354-3;-l-,--	-----------L 	----
13

subd. (b); Mount Diablo Unified School District, et al. (1977) EERB7 Decision No. 44
(Mount Diablo), pp. 8-9.)
Thus, unlike the Weingarten doctrine, which derives solely from employees' section 7
rights to engage in concerted activities "for mutual aid or protection," under California law,
employee organizations possess a separate, statutorily-guaranteed right to represent employees
in their employment relations. (Rio Hondo, supra PERB Decision No. 260, pp. 16-19;
Rio Hondo Community College District (1982) PERB Decision No. 272, pp. 6-11.)8 The
representational rights of employees and employee organizations under EERA are "distinct and
separate," i.e., concurrent, rather than derivative. (fltate of California (Department of
Corrections) (1995) PERB Decision No. 1104-S, adopting proposed dee. at p. 12, disapproved
on other grounds, as recognized in Claremont Unified School District (2014) PERB Decision
No. 2357, p. 17, fn. 14; Redwoods v. PERB, supra, 159 Cal.App.3d 617, 622.) They exist
independently of one another, even when analyzed under the same test or are alleged to have
been violated by the same conduct. (State of California (Department of Parks and Recreation)
(1990) PERB Decision No. 810-S, pp. 6-7; see also County of Riverside (2010) PERB Decision
No. 2119-M, p. 19; Newark Unified School District (1991) PERB Decision No. 864, p. 18;
Clovis Unified School District (1978) PERB Decision No. 61, p. 3.)
7 Before January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
8 Unlike EERA section 3 54 3 's guarantee of employee rights to representation in "all"
matters of employer-employee relations, EERA section 3543.1 does not use the word "all" when
referring to the rights of employee organizations to represent employees. Nevertheless, we
assign no significance to this distinction, as it would seem to contradict the declared purpose of
the statute, as set forth in section 3540, and would lead to the anomalous conclusion that
exclusively-represented employees have a right to representation in contexts where their
designated representative has no parallel right to represent them. (See State of California
(Department of Consumer Affairs)(2005) PERB Decision No. 1762-S, p. 9.)
14

When interpreting the California labor relations statutes, PERB may take guidance, as
appropriate, from administrative and judicial authorities interpreting analogous provisions of
federal labor law. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 616-617 (City of
Vallejo).) However, to the extent PERB follows Weingarten and other non-California
authorities, it must harmonize them with the language and purposes of the PERB-administered
statutes. Indeed, where the California statutes were clearly intended to serve a similar purpose as
their federal counterparts, we may follow federal precedent, even in the absence of directly
analogous language. (Ibid.)9
However, where the statutory language is dissimilar, or where the California and federal
statutes serve dissimilar purposes, PERB is not constrained by federal precedent. (Mt. Diablo,
supra, EERB Decision No. 44, pp. 8-9.) Just as PERB is not authorized to re-write statutory
language to include rights deliberately omitted by the Legislature (Regents v. PERB, supra,
168 Cal.App.3d 937, 944-945), neither may we adopt a statutory construction that disregards
express statutory rights as mere surplusage and thereby "ascribes to the Legislature ... the
9 See also Redlands Teachers Association (Faeth & McCarty) (1978) PERB Decision
No. 72, adopting proposed dee. at p. 4 (federal duty of fair representation (DFR) cases
persuasive, despite absence in federal statute ·of EERA's express DFR language); McPherson v.
Public Employment Relations Bd. (1987) 189 Cal.App.3d 293,311 (McPherson) (absent
justification, PERB must follow reasoned private-sector authorities defining scope of protected
employee conduct); City of Oakland (Lewis) (2014) PERB Decision No. 2387-M, pp. 25-26
(absence ofNLRA's employer "free speech" provision in MMBA does not preclude
interpretation of MMBA to include such right); Rio Hondo Community College District (1980)
PERB Decision No. 128, pp. 18-20 (recognizing same employer "free speech" rights under
EERA, despite absence of statutory language); Modesto City Schools (1983) PERB Decision
No. 291, pp. 60-61 (absence ofNLRA language regarding employees' "right to engage in
concerted activities" does not preclude interpretation that strikes and strike-related conduct are
statutorily-protected by EERA); but cf. Regents of University of California v.Public Employment
Relations Bd. (1985) 168 Cal.App.3d 937, 944-945 (Regents v. PERB) (absence in HEERA of
right to represent employees not due to legislative oversight). (The Meyers-Milias-Brown Act
(MMBA) and the Higher Education Employer-Employee Relations Act (HEERA) are codified at
§§ 3500 and 3560, respectively.)
15

commission
of
a meaningless act." (Santa Clara Valley Water District (2013) PERE Decision
No. 2349-M, p. 16, citing Peralta Community College District (1978) PERE Decision No. 77,
p. 8.) Although PERE has followed Weingarten and other federal authorities regarding the right
of
representation (Redwoods
v.
PERE, supra, 159 Cal.App.3d 617, 622), where the California
statutes provide for broader or additional rights not found in the federal private-sector law,
PERE
must follow the intent
of
the Legislature to effectuate the purpose
of
the statute.
Having reviewed the relevant statutory and decisional law, we turn to the test for proving
a violation
of
the right to representation in an investigatory or disciplinary meeting and to the
issues raised by the District's exceptions.
Legal Standard and the District's Exceptions
To establish a violation
of
the right to representation in an investigatory or disciplinary
interview, the charging party must demonstrate: (1) the employee or the representative invoked
the right to representation on behalf
of
the employee; (2) for an investigatory meeting; (3) which
the employee reasonably believed might result in disciplinary action; and (4) the employer
denied that request. (!,ake Elsinore, supra, PERB Decision No. 1648, p. 5; Social Workers'
Union, supra,
11
Cal.3d 382, 386-388.)
1.	
Whether Hause Effectively Requested Representation.
The District first excepts to the ALJ's finding that, when Chamberlin arrived at Hause's
worksite on June 2, 2011, Hause "immediately expressed fear
of
being disciplined and
requested CSEA representation." It is undisputed that, shortly after Chamberlin arrived, Hause
said words to the effect
of "if
this is going to be disciplinary," that she wished to have
representation. The District contends that, because Hause's statement's was prefaced by words
"If
this is going to be disciplinary," that it was "equivocal and conditional" and therefore
_
1_·n_sufficient to invoke the right t!l repres_e_ntation.~We_disagree.	
____ 
16

Following federal precedent, PERB has held that, while an affirmative request for
representation must be made (Elk Grove Unified School District (1997) PERB Decision
No. 1190), it need not be made directly to the employer or phrased in any particular
grammatical form. No magic words or specific conduct is required, so long as the employer
has reasonable notice under the circumstances of the employee's desire for representation.
(United States Postal Serv. (2010) 355 NLRB 368, 405, fn. 13; Climax Molybdenum, supra,
227 NLRB 1189, enforcement den. (10th Cir.1978) 584 F.2d 360.) There is authority that an
employee need not even mention the union and that a request to "have someone there that could
explain to me what was happenini' may be sufficient to place the employer on notice of the
employee's desire for representation. (Southwestern Bell Tel. Co. (1977) 227 NLRB 1223;
New Jersey Bell Tel. Co. (1990) 300 NLRB 42, 49, enforced (3d Cir. 1991) 936 F.2d 144, and
cases cited therein.)
Mammoth Unified School District (1983) PERB Decision No. 371 (Mammoth) is
directly on point. There, an employee made a similarly conditional statement that, "if the
meeting related to [a] coaching assignment" (which the employee had recently refused to carry
out), then the employee wished to have a union representative at the meeting. The Board
considered this grammatically conditional statement an effective request for representation.
(Id., adopting proposed dee. at p. 6, emphasis added.)
The reasons for regarding such grammatically "conditional" or even "interrogative"
statements as sufficiently "affirmative" requests for representation should be readily apparent
under the circumstances. When an employer convenes an investigatory interview or other
meeting occurring under highly unusual circumstances, the employer, rather than the
employee, is typically in a better position to know the purpose of the meeting. To insist that
ee-s,with-incomplete-informat-i0n-about-thepurpose-of-a-meeting,refrain-from-using-a	-----employ
17

grammatically conditional form when communicating their desire for representation seems
unnecessarily formalistic and ultimately contrary to the statute's purpose. (Lake Elsinore,
supra,
PERB
Decision No. 1648, pp. 8-9.) Even where an employee has sole possession
of
the
sought-after information, such as knowledge
of
his or her wrongdoing, we fail to see how
prefacing a request for representation with the words
"if
this is going to be disciplinary" would
confuse the employer as to the employee's intentions, or otherwise render the request for
representation ineffective.
We therefore reject the District's contention that the grammatically "conditional"
nature
of
Hause' s statement rendered her request for representation ineffective. So long as the
employer is reasonably placed on notice
of
the employee's desire for representation,
grammatical hair-splitting over the "conditional" nature
of
the request, may not be used to
:frustrate the purpose
of
the statutory right to representation.
2. 	Whether the June 2, 2011 Meeting was "Disciplinary" or "Investigatory."
The District next excepts to the ALJ's finding that the June 2, 2011 meeting was an
"investigatory interview" within the meaning of Weingarten and applicable California law.
It
contends that no right to representation arose at the June 2, 2011 meeting, because its purpose
was to review operational procedures, and not to investigate wrongdoing or justify possible
disciplinary action.
It
notes that, after Hause raised the topic
of
representation, Chamberlin
expressly assured her that no discipline was contemplated. According to the District, the
meeting thus constitutes the kind of "run-of-the-mill shop-floor conversation," involving "the
18

giving
of
instructions or training or needed corrections
of
work techniques," for which the
Weingarten doctrine is inapplicable. We disagree with each
of
these contentions.10
2.a. 	Whether the Employer's Stated Purpose Determines the Nature of the Meeting.
The District accurately states the federal rule, which has been endorsed by PERB, that the
right to representation does not usually apply for "the giving
of
instructions or training or needed
corrections
of
work techniques." (Quality Mfg. Co. (1972) 195 NLRB 197,199; Weingarten,
supra, 420 U.S. 251, 257-258; Redwoods, supra, PERB Decision No. 293.) Nor do
representational rights attach to meetings where the employee is simply presented with "routine"
or "perfunctory documents." (Placer Hills, supra,
PERB
Decision No. 377.) Even though such
meetings may involve some amount
of
"questioning" in the course
of
providing instructions or
guidance to an employee, such interactions typically do not give rise to a right to representation,
because, under such circumstances, "there cannot normally be any reasonable basis for an
employee to fear that any adverse impact may result from tμe interview ... " and, consequently,
there exists "no reasonable basis for [seeking] the assistance
of
[a] representative." (Quality
Mfg. Co., supra, at p. 199; see also Los Angeles County Office
of
Education (1999) PERB
rn
The ALJ considered Hause' s right to representation solely as a function
of
whether
the June 2, 2011 meeting was "investigatory" or "disciplinary," within the meaning
of
Weingarten and similar PERB authority. The parties did not raise and the proposed decision
did
n:ot
considerwheth-er;-irrthe-absen"Ceufareasunable-threatofdiscipltne;the-June-2;2011
meeting might constitute "highly unusual circumstances" within the meaning of Redwoods
v.
PERB, supra, 159 Cal.App.3d 617. Because we agree with the ALJ that the June 2, 2011 .
meeting was "investigatory," we need not and do not decide whether the agreement between
CSEA and the District regarding Hause's and CSEA's rights to notice and representation in
meetings with management constituted "highly unusual circumstances." And, while the right
of the exclusive representative to represent unit members in grievances or other meetings
initiated by the representative or the employee is well-settled (Sonoma, supra, PERB Decision
No. 2409-C, pp. 14; 15, 16), neither do we decide here whether PERB has jurisdiction to
enforce a collective bargaining agreement purporting to clarify, expand, modify or waive the
statutory rights to representation in employer-initiated investigations guaranteed by EERA
sections 3540, 3543 and 3543.1.
19

Decision No. 1360; State of California (Board of Equalization) (2012) PERB Decision
No. 2237-S (Board of Equalization).)
However, like the federal authorities, PERB and California's courts have also recognized
that not every meeting serves a single, uniform purpose. What may begin as a "routine"
interaction can transform into an "investigatory" or "disciplinary" interview, even where no such
purpose was intended by the employer. In such circumstances, the meeting need not be
exclusively "investigative" in nature, nor designated as such, so long as it "concerns a subject
matter related to disciplinary offenses" (Quality Mfg. Co., supra, 195 NLRB 197, 199) and is not
"held solely for the purpose of informing the employee of, and acting upon, a previously made
disciplinary decision." (Baton Rouge Water Works Co. (1979) 246 NLRB 995,997, cited with
approval by PERB in Rio Hondo, supra, PERB Decision No. 260, pp. 17-19; see also Regents of
the University of California (Los Alamos National Laboratory) (2003) PERB Decision
No. 1519-H, adopting warning letter at p. 4.)
A conversation between a supervisor and employee aimed merely at correcting technique,
increasing production, or improving workplace communication may thus trigger the right to
representation, if sufficiently linked to a realistic prospect of discipline stemming from the
employee's poor production or history of conflict. (Lake Elsinore, supra, PERB Decision
.-No.1648;.Quazite Cor-p.(-19-94)-315-NI,RB-1063,-1Q69, rnview-den. andremanded on
other grounds (D.C. Cir. 1996) 87 F.3d 493,494; see also Columbia Portland Cement
Co. (1989) 294 NLRB 410, 413.) As explained in County of Santa Clara (2012) PERB Decision
No. 2267-M, regardless of how a meeting may be characterized or envisioned by management, if
it serves to elicit incriminating evidence with the potential to impact the employment
relationship, then it is "investigatory" for the purposes of the representational rights guaranteed
~·bythePBRB-administered-statutes~(Jd-;-adopti11g-proposeddec~at-pp~19;;;20;-see-also-ealifornia
___ - 	-
--·······----
20

State University, Long Beach (1991)
PERB
Decision No. 893-H (CSU Long Beach);
San Diego, supra, PERB Decision No. 885; Regents, supra,
PERB
Decision No. 403-H.) ·
Similarly, the right to representation does not apply when the sole function
of
a meeting
is to impose a predetermined disciplinary action. (Placer Hills, supra, PERB Decision No. 377;
Texaco, Inc. (1980) 251 NLRB 633, 635-636, enforced (9th Cir. 1981) 659 F.2d 124.) However,
unless an employer's questioning is "merely rhetorical," or only serves as "one last chance to
comply" with a previously-issued directive, the right to representation attaches whenever the
employer goes beyond merely informing the employee
of
a previously-made disciplinary
decision. (Rio Hondo, supra, PERB Decision No. 260; Titanium Metals Corp. (2003)
340 NLRB 766, enforced in pertinent part (D.C. Cir. 2004) 392 F.3d 439; General Die Ca.,·ters,
Inc. (2012) 358 NLRB No. 85; cf. San Bernardino County Public Defender (2009) PERB
Decision No. 2058-M (San Bernardino).) Thus, where an employer informs an employee
of
a
disciplinary action, but then seeks additional information in support
of
discipline; attempts to
induce an admission
of
wrongdoing; or asks the employee to sign a statement whose meaning is
incriminating
or
unclear under the circumstances, the full panoply
of
representational rights
apply. (Rio Hondo, supra, PERB Decision No. 260; Trustees
of
the California State University
(2006) PERB Decision No. 1853-H; University
of
California (Lawrence Berkeley Laboratory)
(1993) PERB Decision No. 998-H; Los Banos Unified School District (2007) PERB Decision
No. 1935.)
11
in light
of
the above precedent, we think the District focuses too narrowly on
Chamberlin' s testimony that he did not regard the June 2, 2011 meeting as having an
investigatory or disciplinary purpose, rather than on the overall context in which the meeting
11
See also General Die Casters, supra, 358 NLRB No. 85, pp. 1, 11-13; Becker Group,
Inc. (1999) 329 NLRB 103, 107; Texaco, Inc., supra, 251 NLRB 633, 636.
21

occurred. Crucial to that context are Hause's ongoing criticism of Meals Plus as a misguided
threat to the job security of food service workers, the resulting "strained" relationship between
Chamberlin and Hause after her previous "argumentative" and "belligerent" comments, and her
apparent refusal to follow Chamberlin's directives on the first day of Meals Plus at Niguel Hills.
Chamberlin testified that, even by the end of the June 1, 2011 telephone conversation, Hause still
had not demonstrated to his satisfaction that she understood and would follow his directives. In
fact, Chamberlin's testimony was that Hause "never acknowledged that there was an acceptance
of [his directives] or that they were being put in place or in practice." Instead, Hause again
launched into "another brutal attack" about "how horrible the program was."
By June 2, 2011, it was thus already apparent that Chamberlin and Hause disagreed
sharply over the wisdom and practicality of the Meals Plus program. In this context, the subject
of Hause's understanding of, and cooperation with, the Meals Plus roll-out was not simply a
"run-of-the-mill" shop floor issue to be solved with additional "training" or friendly suggestions
for improving her work technique. At stake was whether Hause would put aside her frequently
expressed opposition to the program and follow the instructions of her immediate supervisor, or
whether she would defy those instructions and face disciplinary action.
There is no dispute that, during the June 2, 2011 meeting, Chamberlin asked Hause,
repeatedly, whether she understood and could repeat his directives regarding Meals Plus.
Chamberlin also asked Hause whether she was following those directives. Regardless of
whether Chamberlin considered disciplinary action imminent or even likely at this point, the
purpose of his questioning was obviously to determine whether Hause understood his directives,
and whether she intended to comply with those directives, particularly in light of her previous
statements that she "essentially ... was not going to do this." The District's written reprimand
22

admits that the purpose of the June 2, 2011 meeting was to "monitor the implementation of the
directives given the day before."12
In this context, Chamberlin's assurance to Hause that he did not intend to discipline her
does not fundamentally alter the significance of Chamberlin' s questioning or the circumstances
surrounding the meeting. Even accepting Chamberlin's testimony that he did not plan to take
disciplinary action when he convened the meeting, 13 he clearly viewed the meeting as an
opportunity for Hause to provide some possible explanation for not following his directives on
the first day of the Meals Plus roll-out. More importantly, it was an opportunity for her to
indicate that she understood and intended to carry out those directives.
Hause also testified that, at the June 2, 2011 meeting, Chamberlin repeatedly asked
whether she even knew what a directive is and then, mockingly, asked her to explain her
understanding of the term. For the reasons set forth in the proposed decision, we generally credit
Chamberlin's account of the June 2, 2011 meeting as more consistent, complete and credible
than Hause's. However, it seems likely that Chamberlin did ask Hause at least some version of
this question since, by his own account, he was unsure whether Hause appreciated the distinction
12 While the District's characterization of the meeting has no probative value as to what
Hause reasonably believed at the time she requested representation (see discussion below of
"after the fact reasoning"), it may serve as reliable evidence of what the District intended to
accomplish by its agent's unannounced visit to Hause's worksite, and thus as an admission that
the meeting was "investigative" in nature. (See Evid. Code, §§ 1221, 1222, 1271, 1280;
O'Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 572; Jazayeri v.
Mao (2009) 174 Cal.App.4th 301, 315-327.)
13 Under the federal decisional law relied on by the District, a manager's stated purpose
for calling a meeting, even when credited, is not dispositive of whether the meeting is, in fact,
"investigatory" in nature. For example, in Good Hope Refineries, Inc. (1979) 245 NLRB 380,
the employer's personnel manager began a meeting by stating: "[W]ell, you're not here for a
reprimand, I just want to know why you were off those 3 days." Because the employer was
effectively asking the employee for his explanation of possible wrongdoing, the NLRB
concluded that the meeting was "investigatory'' within the meaning of Weingarten. (Good Hope,
supra, at p. 385, fn. 1.)
23

between a directive and a mere suggestion. However characterized, Chamberlin's questioning
was designed to get Hause's "side
of
the story" as to whether she would comply with
Chamberlin' s instructions, and it thus had an undeniably "investigatory" element under PERB
and federal precedent. (CSU Long Beach, supra, PERB Decision No. 893-H, citing with
approval, Baton Rouge Water Works, supra, 246 NLRB 995; see also
El
Paso Elec. Co. (2010)
355 NLRB 428, 441.)
This case is thus distinguishable from San Bernardino, supra, PERB Decision No. 2058,
where the point
of
the employer's question was not "fact-finding," but to provide one last chance
to comply with a previously-issued directive before facing disciplinary action for
insubordination. Here, by contrast, Chamberlin testified that he genuinely did not know whether
Hause fully understood, and intended to comply with, his directives, and that he planned to meet
with Hause in person to find out. When viewed in the overall context ofHause's ongoing
criticism
of
Meals Plus and her apparent defiance
of
Chamberlin' s directives for implementing
the program, his questions about whether Hause understood the directives and whether she
intended to comply with them were aimed at eliciting information that could impact the
employment relationship. (County
of
Santa Clara, supra, PERB Decision No. 2267-M;
CSU Long Beach, supra, PERB Decision No. 893-H.) We therefore agree with the
AlJ
that the
June 2, 2011 meeting was "investigatory."
2.b. 	Whether the Subject of the Interview and the Resulting Discipline Must be
Related.
As an additional or alternative argument, the District also contends that the right to
representation does not arise when the subject of the interview is "completely unrelated" to the
reason(s) ultimately relied on for issuing discipline. Again, we disagree. As illustrated by the
Weingarten decision itself, whether an employer's disciplinary action is related to the subject
24

of the investigation, or whether, in fact, any disciplinary action even results from the
investigation, is not determinative of an employee's right to representation during the
interview.
In Weingarten, a retail store chain offering various food services, instructed its loss
prevention officials to question a salesperson, Leura Collins (Collins), after receiving a report
from another employee that Collins had purchased a box of chicken that sold for $2.98, but had
placed only $1 in the cash register. Collins, whose repeated request for union representation
were denied, admitted that she had purchased four pieces of chicken, for which the price was $1,
but that, because the store was out of the small boxes typically used for such purchases, she put
the chicken into a larger-sized box used for packaging greater quantities. After confirming
Collins' account with the informant, the employer apologized to Collins for any inconvenience
and informed her that the matter was closed. (Weingarten, supra, 420 U.S. 251, 254-255.)
Overcome with relief, Collins burst into tears and blurted out that the only thing she had
ever taken from the store without paying for was the free lunch the employer offered to its
employees. Because the store at which Collins worked had no formal "free lunch" policy for
employees, the employer resumed its interrogation of Collins, again without regard to her request
for representation, but on the now entirely separate subject of whether she had taken "free"
lunches without authorization. During the course of this second interrogation, the employer
prepared a written statement for Collins to sign, admitting that she owed the store approximately
$160 for unauthorized "free" lunches. (Weingarten, supra, 420 U.S. 251, 255-256.)
Upon further investigation, it emerged that Collins had transferred from another store
where the employer did indeed offer a "free lunch" to employees, and that, in the absence of any
clear policy on the subject at her current worksite, Collins, and virtually every other employee in
her-depar-tment,ineluding-supervisors,routinely-tooklunches---without-compensation;~As-with
25

the previous matter of suspected cash register irregularities, the employer terminated its
investigation of Collins for theft of food, without taking disciplinary action.
The Supreme Court held that the employer committed an unfair labor practice by
persisting with its investigation after Collins had requested the assistance of a union steward.
The Court reasoned that an individual employee without representation "may be too fearful or
inarticulate to relate accurately the incident being investigated, or too ignorant to raise
extenuating factors," whereas 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." (Weingarten, supra, 420 U.S. 251, 263.) Thus, the
Court recognized the possibility that an unrepresented employee, through inadvertent
admissions, incomplete answers, or other "suspicious" behavior might widen or change the scope
of an employer's investigation into matters entirely unrelated to the subject that had prompted
the interview in the first place.
Yet, just as clearly, the Weingarten Court did not intend to make the right to
representation depend on whether the employer ultimately takes disciplinary action, or, if so,
whether such action is directly related to the subject of the investigation. In fact, in Weingarten,
Collins was never disciplined at all, yet the Court affirmed the NLRB's decision that the
employer had unlawfully denied her repeated requests for representation. (Weingarten, supra,
420 U.S. 251, 255-256; see also General Die Casters, supra, 358 NLRB No. 85, p. l.) We
likewise reject the Distriet's contention that the right to representation under EERA cannot
apply, simply because the employer's questions, or the employee's responses, are "completely
unrelated" to the reasons cited for subsequent disciplinary action.
26

3. 	Whether Hause Reasonably Feared Discipline on June 2, 2011.
The District offers several arguments against the
ALJ's
determination that
Hause's
"strained relationship" and "acrimonious discussions" with Chamberlin provided a reasonable
basis for her to believe that his unannounced visit to her worksite on June 2, 2011 might result
in
discipline. 	Primarily, the District contends that Hause could not reasonably have believed
discipline would ensue from this meeting, because Chamberlin assured her that he did not
intend to take disciplinary action. It also argues that the proposed decision applies "flawed,
after-the-fact reasoning" by considering the fact that Hause ultimately was issued a written
reprimand for her "failure to follow directives and insubordination," as support for the
reasonableness
of
her belief at
the time
of
the June 2, 2011 meeting that discipline may ensue.
Additionally, the District objects to the
ALJ's
reliance oti two NLRB decisions,
Northwest Engineering Co. (1982) 265 NLRB 190 (Northwest) and AAA Equipment Serv.
Co.
(1978) 238 NLRB 390 (AAA). The District contends that these decisions either do not support
the propositions
of
law for which they were cited in the proposed decision, and/or that they are
no longer good law in the private sector.14 Specifically, the District argues that the ALJ has
misstated the Weingarten rule by relying on the intermediate decision
of
an NLRB ALJ in
Northwest, rather than on the NLRB's subsequent majority opinion, which reached a different
result. The District also contends that any reliance on AAA is improper, because, on review
of
14
Although much
of
the District's argument against the proposed decision's reliance on
Northwest and AAA appears in its discussion
of
whether the June 2, 2011 meeting was
investigatory in nature, the District also argues that "the proposed decision relies on an erroneous
(and overturned) legal proposition that a history
of
contentious interactions between an employee
and a supervisor may provide the basis for finding there is a reasonable belief [that] a meeting
between the two is disciplinary in nature." While we address the ALJ's reliance on overturned
federal authority in this section of the decision, it should be apparent from the discussion that
follows that we find the District's argument on this point equally unpersuasive with respect to
whether the ALJ appropriately found the June 2, 2011 meeting to be "investigatory" in nature.
27

the
NLRB's
decision in that case, the United States Court
of
Appeal for the Eighth Circuit
disagreed with the NLRB's application
of
Weingarten and denied enforcement. The District
therefore urges PERB to adopt the view
of
the United States Courts
of
Appeal for the Eighth
and Ninth Circuits that discipline must be "probable" or "seriously considered" by the
employer before an employee may reasonably beliyve that it may result from the interview.
We address each of these arguments.
3.a. 	Whether the
AL.T's
Reliance on Rejected Federal Authority is Reversible Error.
We first consider the District's argument that the ALJ committed reversible error by
relying on the NLRB' s decision in AAA, supra, 238
NLRB
390, because that decision was later
reversed and denied enforcement by the United States Court of Appeals for the Eighth Circuit.
We reject this argument, because it relies on a misunderstanding
of
the relationship
of
California
statutory and decisional law to federal private-sector authority. Although California has
generally "imbibed the federal policy, as it applies to the scope
of
representation".(Redwoods
v.
PERE, supra, 159 Cal.App.3d
6+
7, 624), the representational rights of public-sector employees
in California, and of employee organizations to represent them, have statutory bases and judicial
approval which are independent from, and broader than, the "mutual aid or protection" language
of section 7 of the NLRA on which Weingarten was decided. (Social Workers' Union, supra, 11
Cal.3d 382, 384; Redwoods, supra, PERB Decision No. 293, p. 6; Redwoods
v.
PERE, supra,
159 Cal.App.3d 617,623; Placer Hills, supra, PERB Decision No. 377, p. 40.) By choosing to
follow federal authority on a particular issue, PERB is not automatically bound by subsequent
developments in federal law on that point. Thus, the determinative issue is not whether federal
28

cases relied on by the ALJ remain good law in the private sector, but whether they are consistent
with the language and purposes of the PERB-administered statutes. 15
In AAA, an employee who had missed work the previous day was asked by his foreman
about the reason for his absence. Believing he had complied with the collectively-bargained
procedure for calling in sick, and had thus already discharged any duty to explain the absence,
the employee responded that, "It's none of anybody's fucking business what I do when I take
off." The foreman stated that, if asked by a manager, he would have to report what the
employee had said. The employee said, "I don 1
t give a fuck what you does. . . . It's none of
their fucking business or yours either one" and then asserted that, "the next time you talk to
me, I want my shop steward."
The following day, a manager approached the employee to discuss both the reason for
his absence and the disrespectful manner in which he had addressed the foreman. However,
before the manager could state the purpose of the conversation, the employee shouted that he
would not participate in the discussion without a shop steward. The manager repeated several
times that he wanted to talk to the employee, while the employee continued yelling that he
wanted his shop steward. Eventually realizing that the manager would not postpone the
15 We do not adopt the proposed decision to the extent it holds that the right to
representation "is derived from Weingarten." We regard the Weingarten line of cases under
federal law as illustrative, but not exhaustive, of the representational rights of employees under
California statutory and decisional law. (Rio Hondo, supra, PERB Decision No. 260, pp. 16-17.) .
Moreover, the federal private-sector authorities offer no guidance whatsoever regarding the
separate statutory right of employee organizations to represent employees in such proceedings,
which has no counterpart in the NLRA. (Rio Hondo; Redwoods v. PERB, supra,
159 Cal.App.3d 617, 622.) It is therefore not entirely accurate to say that "there is no violation
of [the right to representation] when the employee fails to affirmatively request representation at
the meeting," inasmuch as the employee organization may convey the request on behalf of the
employee (Fremont, supra, at pp. 9-10) and, even under Weingarten, "it makes no difference"
whether the employee or the representative invokes representational rights. (United States
Postal Serv., supra, 303 NLRB 463, 467.)
29

conversation until a steward arrived, the employee turned to walk away. The manager told the
employee, that "if you walk off and leave me here and refuse a direct order, you are terminated."
The employee said, "I'm getting my shop steward, fuck you" and walked away. He was
summarily fired for walking away while his manager was trying to speak to him. (AAA, supra,
238 NLRB 390, 395.)
The NLRB held that the employee's termination was unlawful because he was denied
the right to representation pursuant to Weingarten. The NLRB's decision thus stands for the
proposition that prior events, such as a "heated verbal exchange" with a coworker or supervisor,
may provide a reasonable basis for an employee to believe that discipline or other adverse
consequences may follow, even before the purpose of the interview :has been revealed to the
employee. (AAA, supra, 238 NLRB 390, 390-391; see also Lennox Industries, Inc. (1979)
244 NLRB 607, 607-608 (Lennox), enforced (5th Cir. 1981) 637 F.2d 340; Brown & Connolly,
Inc. (1978) 237 NLRB 271,286, enforced (1st Cir. 1979) 593 F.2d 1373; and State of California
(Department of Social Services) (2009) PERB Decision No. 2072-S (Social Services), p. 30.)
On review by the Eighth Circuit Court of Appeal, the NLRB's decision in AAA was
reversed and enforcement of its order that the terminated employee be reinstated was denied.
In the view of the Eighth Circuit Court of Appeal, the NLRB' s decision improperly expanded
employees' Weingarten rights, because the employee was not terminated for refusing to meet
without representation but because he walked away before the manager could even explain the
purpose of the interview or provide any other grounds on which the employee might
reasonably anticipate that the interview would result in discipline. The Eighth Circuit Court
also agreed with the standard previously announced by the Ninth Circuit Court of Appeal
whereby the prospect of disciplinary action must be "probable" or "seriously considered" by
the employer before an employee's "latent" right to representation "matures." (AAA
30

Equipment Service Co. v. NLRB (8th Cir. 1979) 598 F.2d 1142, 1144-1146; see also Alfred M.
Lewis, Inc. v. NLRB (9th Cir. 1978) 587 F.2d 403, 411.)
The District argues that the ALJ improperly relied on AAA, because that decision was
reversed, and urges PERB to formally adopt the view of the Court of Appeal for the Eighth and
Ninth Circuits, that discipline must be "probable" or "seriously considered" before an
employee may hold a "reasonable belief' that discipline might result from the investigatory
interview. However, we do not regard the ALJ's reliance onAAA in this instance as a
reversible error, solely because that decision was reversed and denied enforcement.
Although not discussed in the District's brief, the view among the federal courts on this
issue is not unanimous. While the Eighth and Ninth Circuits Courts of Appeal have rejected
the NLRB's interpretation, other federal courts of appeal, including those for the Fifth Circuit
and for the District of Columbia Circuit, have endorsed the NLRB's view that the
reasonableness of an employee's belief that discipline might result from an interview may turn
on the employee's history or previous communications with management. (Lennox Industries,
Inc. v. NLRB (5th Cir. 1981) 637 F.2d 340,344 (Lennox); Internal Revenue Serv., Washington,
D. C. v. Federal Labor RelationsAuthority (D.C. Cir. 1982) 671 F.2d 560, 563.)
In Lennox Industries, Inc., supra, 244 NLRB 607, the NLRB held that even when not
accompanied by the threat of discipline, an employer's accusation that an employee has engaged
in misconduct-may be suffici~nt for the employee to invoke his or her right to representation,
because the accusation creates an expectation that the employee will respond, rather than permit
his or her silence to be perceived as an admission of guilt. (Id. at pp. 608-609.) In affirming the
NLRB's interpretation of Weingarten, the Fifth Circuit Court of Appeal observed that one
purpose of the interview may be to decide whether discipline is an option to be seriously
considered. (Lennox, supra, 637 F.2d 340, 344.)
31

Likewise, "an interview in which work-related questions are asked of an employee, but
which the employer does not intend to result in discipline may nevertheless result in discipline if
the employee surprises the employer with an answer which the employer finds unsatisfactory or
threatening." (Ibid.; see also Weingarten, supra, 420 U.S. 260.) Thus, "even if the employer
had previously decided that discipline would definitely not result from the interview in
question, information could be elicited at that interview which might enable the employer to
build a case against the employee, culminating in discipline at some later date." (Lennox,
supra, 637 F.2d 340, 344.) Because the Weingarten rule was specifically fashioned to protect
"fearful'' or "inarticulate" employees during work-related interviews (Weingarten, supra, at
pp. 262-263; see also Penn-Dixie Steel Corp. (1980) 253 NLRB 91, 93-96 (Penn-Dixie)), the
Lennox Court and other authorities have rejected the narrower view adopted by the Eighth and
Ninth Circuits and urged here by the District. (See also Internal Revenue Serv. v. FLRA, supra,
671 F.2d 560, 563.)
In addition to the split of authority among the federal judiciary, there remains also the
view of the NLRB itself. The NLRB is the administrative body charged with interpreting the
federal labor relations statutes governing most private-sector employees. Its establishment and
Congressionally-declared purpose as the expert authority on private-sector labor relations
reflects a strong federal policy and long-standing recognition, dating back to the early 20th
Century, that the judiciary has no special expertise in collective bargaining and labor relations
matters. (29 U.S.C. § 160, subd. (a).)16
16 Even before passage of the NLRA in 1935, Congress expressed great concern over
the judiciary' s competence in regulating labor relations. For example, the Clayton Act of 1914
(29 U.S.C., § 52), removed federal court jurisdiction to use antitrust laws to regulate
unionization and other concerted employee activities. In 1932, Congress enacted the
32

Thus, the fact that one or more federal courts may disagree with the NLRB on a
particular issue does not mean that the NLRB must abandon its position. Because it is charged
with the uniform and orderly administration of federal labor law in all circuits, in each instance
when a federal court takes a view contrary to that of the NLRB, the agency must determine for
itself whether to acquiesce or to hold fast to its position, until circumstances change or the
disagreement is resolved by the U.S. Supreme Court. (Iowa Beef Packers, Inc. (1963)
144 NLRB 615, 616.) As a result, it is not uncommon for the NLRB to continue _to adhere to a
particular position, even after it has been rejected by one or more of the federal courts.
Such is to the case here, as the NLRB has not acquiesced to the view of the Eighth and
Ninth Circuits. Despite the passage of several decades, NLRB precedent remains that the
particular circumstances of each case, which may include the employee's disciplinary history or
previous communications with management, determine the reasonableness of the employee's
belief that discipline may ensue. (See, e.g., Good Hope Refineries, Inc. (1979) 245 NLRB 380,
383-384, enforced (5th Cir. 1980) 620 F.2d 57, cert. den. (1980) 449 U.S. 1012; Southwestern
Bell Tel. Co. (2002) 338 NLRB 552,557; cf.Amoco Chemicals Corp. (1978) 237 NLRB 394,
396-397; and Board of Equalization, supra, PERB Decision No. 2237-S.)
Norris-La Guardia Act (29 U.S.C., §§ 101 et seq.), which also deprives federal courts of
jurisdiction ,to grant injunctive relief in labor disputes, except in limited circumstances. The
purpose of the Norris-LaGuardia Act was to protect the rights of labor, which Congress
thought it had formulated in the section of the Clayton Act restricting injunctions in labor
cases, but which had been frustrated by the federal courts. (New Negro Alliance v. Sanitary
Grocery Co. (1938) 303 U.S. 552, 562-63; United States v. Hutcheson (1941) 312 U.S. 219,
235-236 [reviewing legislative history]; see also see section 301 of the Labor Management
Relations Act [granting federal courts only limited jurisdiction to enforce "no strike" clauses
and arbitration provisions of collective bargaining agreements] and Boys Markets, Inc. v. Retail
Clerk's Union, Local 770 (1970) 398 U.S. 235, 238; and, generally, Robert A. Gorman, Basic
Text on Labor Law: Unionization and Collective Bargaining (West, 1976), pp. 2-5.)
33

The rule is the same in the federal public sector. Even a government employer's promise
of immunity from criminal prosecution will not necessarily negate the reasonableness of an
employee's belief that an interview may result in discipline and that union representation is
therefore justified at the investigatory interview. (American Federation of Government
Employees, Local 2544 v. Federal Labor Relations Authority (D.C. Cir. 1985) 779 F.2d 719,
724-727, reversing and remanding United States Immigration &Naturalization Serv., San Diego,
California &American Federation of Government Employees, AFL-CIO, Local 2544 (July 24,
1984) 15 FLRA 383, 385, on remand United States Immigration &Naturalization Serv.,
San Diego, California &American Federation of Government Employees, AFL-CIO, Local 2544
(Apr. 7, 1986) 21 FLRA 240, 241.) Even the fact that the interview may overlap with a criminal
investigation does not alter the result. (Federal Labor Relations Authority, supra, 779 F.2d 719,
730.)
Like its counterparts in the federal private and public sectors, PERB has also held that an
employer's partial or ambiguous assurance that no discipline is intended will not suffice to
dispense with an employee's otherwise effective request for representation at an investigatory
interview. (Mammoth, supra, PERB Decision No. 371; Lake Elsinore, supra, PERB Decision
No. 1648.) In each case, the reasonableness of the employee~s request will turn on the totality of
circumstances, which may include the employee's history and previous communications with
management on matters related to the subject of the interview. (State of California (Department
of Social Services) (2009) PERB Decision No. 2072-S, adopting proposed dee. at pp. 30-31.)
Thus, contrary to the District's contention, the fact that the NLRB's decision in AAA was
rejected by a federal appellate court does not mean that the principle for which that case stands is
without support by other authorities.
34

More importantly, AAA 's rejection by a federal court does not automatically dispose of its
reasoning nor affect whether PERB may rely on such reasoning when interpreting California
law. (City of Vallejo, supra, 12 Cal.3d 608, 611.) Regardless of any disagreement between the
NLRB and the federal judiciary, or among the federal courts themselves, the touchstone for
whether private-sector decisional law or any other authority is applicable to the PERB
administered statutes remains whether the underlying reasoning is consistent with the language
and policies of the California statutes. (Id. at p. 611; McPherson, supra, 189 Cal.App.3d 293;
City of Oakland (Lewis), supra, PERB Decision No. 2387-M, pp. 25-26; Modesto City Schools,
supra, PERB Decision No. 291, pp. 60-61.)
In the present case, the principle of law for which AAA was cited by the ALJ is
consistent with the language and declared purposes of EERA, including the broadly-worded
right of employees to participate in employee organizations "for the purpose of representation on
all matters of employer/employee relations," and the corollary right of employee organizations to
"represent their members in their employment relations" with public school employers. (EERA,
§§ 3543, subd. (a), 3543.1, subd. (a).) This principle is well established in PERB's decisional
law. In Mammoth, supra, PERB Decision No. 371, the Board endorsed the objective standard
used in the private sector for evaluating the reasonableness of an employee's belief that
discipline or other adverse consequences could ensue from an investigative interview. In
Social Services, supra, PERB Decision No. 2072-S, the Board applied that standard to
conclude that the circumstances leading up to an investigatory interview, including an
employee's record of counseling and the complaints of coworkers against him, may provide a
reasonable basis to suspect that an interview on the same or related matters will "set the stage
for fonnal discipline." (Id. at pp. 30-31.) Thus, we agree with the ALJ's conclusion that the
history of "acrimonious discussions" between Hause and Chamberlin regarding Meals Plus,
35

and her apparent defiance
of
Chamberlin' s directives for implementing the program, provided
a reasonable basis for Hause to believe that the June 2, 2011 meeting on the same subject
might result in discipline. This conclusion is supported by the evidence and consistent with
applicable law.
For similar reasons, we do not regard the ALJ's reliance on the reasoning
of
an
intermediate decision in Northwest as fatal to the proposed decision, even if that reasoning was
later rejected by a majority of the NLRB. The proposition for which the Northwest ALJ's
decision was cited in the present case may be stated as follows: 	a meeting where some "give
and take" between an employee and management occurs on matters that may affect the
employment relationship constitutes an "investigatory interview." The same rule has been
repeatedly endorsed in PERB decisional law, including CSU Long Beach, supra, PERB
Decision No. 893-H and Placer Hills, supra, PERB Decision No. 377, both
of
which are also
cited in the proposed decision's discussion
of
this point. (See also Regents, supra, PERB
Decision No. 403-H, p. 10; and Baton Rouge Water Works, supra, 246 NLRB 995, cited with
approval by PERB in Rio Hondo, supra, PERB Decision No. 260, pp. 17-18; and, Quality
Manufacturing, supra, 195 NLRB 197, 199.) We therefore reject the District's contention that
the ALJ's reliance on the reasoning of overturned federal authorities is necessarily reversible
error, because the
ALT
also relied on controlling PERB authority for the same point of law.
(Rio Hondo Community College District (2013) PERB Decision No. 2313, p. 21.)
3.b. 	Whether PERB Should Follow the Eighth and Ninth Circuit Test for Evaluating
the "Reasonableness"
of
an Employee's Fear of Discipline.
For both policy and practical reasons, we also decline the District's invitation to follow
the view of the United States Courts of Appeal for the Eighth and Ninth Circuits. Our policy
concerns are essentially those already identified in the discussion of Lennox and Weingarten
36

above. Like the Weingarten rule under federal law, the statutory right to representation under
EERA and the other PERB-admini.stered statutes is designed, in part, to protect "fearful" or
"inarticulate" employees from their own unwitting admissions, obtained without the benefit of
representation. (Weingarten, supra, 420 U.S. 251,263; Lake Elsinore, supra, PERB Decision
No. 1648, pp. 8-9; Social Workers' Union, supra, 11 Cal.3d 382, 384; Redwoods, supra, PERB
Decision No. 293, p. 7.) Because a meeting with management whose purpose is to elicit
damaging facts from the employee has the potential to impact the employment relationship,
denying an employee the assistance of the employee organization frustrates the statutory
purposes of representation. (Board of Equalization, supra, PERB Decision No. 2237-S, p. 7.)
Whether discipline seems "probable" or has been "seriously considered" by the employer at
the outset of a meeting may have little or no bearing on how the meeting unfolds and thus, on
whether an employee's fear of discipline or other adverse consequences is "reasonable."
(Lake Elsinore, supra, PERB Decision No. 1648, p. 8; see also Fremont, supra, PERB
Decision No. 301.)17
There are also conceptual and practical problems with the standard urged by the
District. Just as "any rule that requires a probe of an employee's subjective motivations" must
be rejected as "an endless and unreliable inquiry" (Weingarten, supra, 420 U.S. 251,257, fn. 5;
see also Mammoth, supra, PERB Decision No. 371, proposed dee. at pp. 32-33), the same may
be said about evaluating the reasonableness of an employee's belief, based on the subjective
17 We do not suggest that Hause's opposition to the Meals Plus program, or the manner in
which she expressed that opposition, or her demeanor towards her supervisor was "reasonable."
Instead, the inquiry here is whether, when Hause made her request for union representation was
it reasonable under the circumstances for her to believe that disciplinary action could ensue from
the June 2, 2011 meeting with Chamberlin. Given what had transpired between Hause and
Chamberlin leading up Hause' s request for representation on June 2, 2011, we agree with the
AL.T that it was "reasonable" for Hause to believe that she might face disciplinary action.
37

intentions
of
the employer. (Consolidated Edison Co.
of
New York, Inc. (1997) 323 NLRB 910,
910-911; see also
NV
Energy, Inc.
&Arthur
Goodspeed (2010) 355 NLRB 41.) An employer's
assurance that no discipline is contemplated may
be
one circumstance to consider when
evaluating the reasonableness
of
an employee's request for representation (Barstow Unified
School District (1996) PERB Decision No. 1164), but it cannot be the sole determinate.
(Lake Elsinore, supra, PERB Decision No. 1648, pp. 5-6, and cases cited therein; Mammoth)
supra) PERB Decision No. 371.)
3.c. 	Whether Employer Assurances Dispose
of
any "Reasonable" Fear
of
Discipline
. Similar to its argument above that the employer's purpose in calling a meeting
determines whether it is "investigatory" or "disciplinary/' the District urges PERB to accept
Chamberlin's assurance that he did not intend for the June 2 meeting to result in discipline, and
to ignore all other circumstances. Although we generally credit Chamberlin's account
of
the
June 2, 2011 meeting as more consistent and credible than Hause's, we do not accept the
District's argument that, simply because Chamberlin reassured Hause that he did not come to her
worksite with the intention
of
taking disciplinary action, that therefore even the possibility
of
discipline was so remote as to make Hause's request for representation unreasonable under the
circumstances.18 As explained above, notwithstanding Chamberlin's assurances to the contrary,
Nor, do we read more into Chamberlin's testimony than what was actually said.
Chamberlin testified that, until the roll-out had been completed at all twelve middle schools
under his supervision, the overriding concern was to make the transition to Meals Plus as smooth
as possible. When questioned about the belligerent tone used by Hause with Chamberlin, and
about her apparent refusal to follow his directions on the first day of the Meals Plus roll-out,
Chamberlin did not testify that no disciplinary action was contemplated. Instead, he responded
that "other things" could be dealt with "at another time." Although he testified that he had not
planned to discipline Hause on June 2, 2011, even if she had deliberately sabotaged the Meals
Plus roll-out at Niguel Hills, he did not indicate that she would not be disciplined at some point
for her actions leading up to the roll-out, and it stretches credulity to believe that, after being
"berated" and hung-up on by Hause, that Chamberlin had not at least considered the possibility
38

other circumstances were present which made discipline or other adverse action a realistic
possibility, including Hause's strident opposition to Meals Plus, her apparent disregard of
Chamberlin's directives, and the fact that the subject of the interview was whether Hause
understood and would comply with Chamberlin's directives.19 Even crediting Chamberlin's
testimony that he had not yet considered disciplinary action, under the circumstances, Hause may
have nonetheless reasonably believed that her pattern of resistance to the Meals Plus program
"could end up written down ... and possibly ... end up somewhere" for further action at a later
date. (See Mammoth, supra, PERB Decision No. 371.)20
of issuing a written reprimand, once the roll-out was complete and he could turn his attention to
"other things."
19 While the District criticizes the ALJ's reliance on an interim decision in Northwest,
supra, 265 NLRB 190, the majority opinion in Northwest also offers little support for the
District's position. In Northwest,' a divided NLRB held that, under all the circumstances
present, an employee, who was disciplined for calling a manager an "asshole" at a meeting of
all employees could not have held a reasonable fear that the meeting would result in discipline,
and was therefore not entitled to representation. Although the NLRB was divided over
whether the meeting itself was "investigatory" and whether employees who had been
questioned the previous day in the presence of a steward could reasonably fear discipline at the
meeting the following day, both the majority and dissenting opinions agreed that the
appropriate test for making such determinations was an analysis of all the circumstances
present, and not an exclusive focus on whether the employer had initiated the meeting with
assurances that the meeting was not investigatory or disciplinary. For the majority and
dissenting views, compare Northwest, supra, at pages 190-191 with pages 192-194.
20 The District similarly contends that Hause should have no right to representation in the
present case, because any "reasonable belief' she held as to the likelihood of discipline was due
to her own misconduct, including her "unprofessional" and "disrespectful" treatment of her
supervisor both before and during the June 2, 2011 meeting, as opposed to Chamberlin's purpose
in convening the meeting. However, there is no rule stating that an employee's previous
conduct, including misconduct, cannot provide the basis for a reasonable belief that discipline or
other adverse consequences may result from a meeting with management. (Mammoth, supra,
PERB Decision No. 371; Social Services, supra, PERB Decision No. 2072-S.) To hold
otherwise would require employees to forfeit their statutory rights to representation based on past
conduct.
39

3.d. 	Whether the ALl Relied on Flawed After-the-Fact Reasoning
The District also excepts to the ALJ' s reliance on
post
facto analysis, i.e., citing the fact
that a written reprimand ultimately issued as evidence in support
of
a determination that,
at
the
time
of
her request, Hause "reasonably" believed that discipline may be in the offing. The
objective test adopted by
PERB
is whether an employee reasonably believes a meeting might
result in discipline at the time the employee requests representation.
We agree with the District that, to the extent the proposed decision relies on the fact
that Hause ultimately was reprimanded
to
evaluate the reasonableness
of
her belief in the
prospect
of
discipline at the time she requested representation, it employs "flawed, after-the
fact reasoning." An individual's action, or his or her motivation for taking action, cannot be
caused by a subsequently-occurring event for the simple reason that the actor could not have
known
of
the subsequently-occurring event at the time
of
the action. However, because the
ALJ's conclusion regarding the "reasonable belief' requirement is amply supported by other
evidence and is consistent with applicable law, the error would not affect the ALJ's conclusion
that Hause reasonably feared discipline when Chamberlin arrived unannounced at her worksite
to discuss implementation of Meals Plus.
4. 	Whether the District Denied Hause's Request for Representation.
The District also excepts to the ALJ's conclusion "that Hause requested CSEA assistance
during the June 2, 2011 meeting," and "that she called CSEA steward Jensen during the course
of
the meeting." The District argues that, by the time Hause communicated her desire for
representation by leaving a voicemail message for Jensen within earshot of Chamberlin, any
communications by Chamberlin that could fairly be characterized as "questioning" had already
ceased. However, the District's exception misstates both the law and the record.
40

An employer may not interfere with, restrain, or coerce employees to secure a waiver of
statutorily-protected rights, including their right to representation. (EERA, § 3543.5, subd. (a);
Marin, supra, PERB Decision No. 145, pp. 13-14; Southwestern Bell Tel. Co., supra, 227
NLRB 1223; Department of Justice Immigration & Naturalization Serv., Border Patrol, El Paso,
Texas (1990) 36 FLRA 41, 45.) Because a waiver of a statutory right is not lightly inferred
(Mt. San Antonio Community College District (1982) PERB Decision No. 224), our cases hold
that once the employee communicates the request for representation, the employer must
terminate the discussion, absent objective evidence that the employee has knowingly and
voluntarily agreed to continue the interview without representation. (CSU Long Beach, supra,
PERB Decision No. 893-H, pp. 24-25.) Thus, Lake Elsinore and similar authorities require
employees to make only one request for representation. (!d. at p. 8; United States Postal Serv.
(1979) 241 NLRB 141, 141-142; Lennox, supra, 244 NLRB 607, 608-609.) Even if a "surprise"
response from an employee turns an otherwise "ordinary" shop floor conversation into an
investigatory or disciplinary meeting, the employee is under no obligation to repeat his or her
request. At that point, an employer who continues the interrogation effectively denies the
request and commits an unfair practice. (CSU Long Beach, supra, PERB Decision No. 893-H,
pp. 22, 24; Brown & Connolly, Inc. (1978) 237 NLRB 271, 286, enforced (1 st Cir. 1979)
593 F.2d 1373; E.I. Du Pont De Nemours and Co. (1982) 259 NLRB 1210 (Du Pont).)
Here, the District admits that Chamberlin asked Hause about her understanding of, and
compliance with, his directives after Hause had already stated that, "if this is going to be
disciplinary," she wanted representation. Because we reject the District's argument (above) that
this statement was. ineffective as a request for representation, we likewise reject the contention
that Chamberlin was authorized to continue questioning Hause after she made this statement.
Additionally, because there was no evidence that Hause voluntarily consented to waive her right
41

to representation, we eonclude that her refusal to respond to Chamberlin' s question was also
protected (Quality Manufacturing, supra, 420 U.S. 276, 279-281; Marin, supra, PERB Decision
No. 145, p. 13), and that she did not waive her right to representation
by
eventually responding
to Chamberlin's repeated questioning. (Lake Elsinore, supra, PERB Decision No. 1648, pp. 8-9;
Weingarten, supra, 420 U.S. 251, 256.)
5. 	Whether the
ALl's
Purge Order Exceeded
PERB's
Authority.
Lastly, the District excepts to make whole relief as excessive, contrary to Board
precedent, and "wildly inappropriate," because, according to the District, it creates perverse
incentives for employees to engage in misconduct with impunity. We consider each
of
these
contentions.
5.a. 	Whether Make Whole Relief is Excessive or Punitive.
According to the District, the proposed .remedy is excessive, because it would require
the District to rescind and expunge the entire reprimand, including matters occurring beforeor
otherwise unrelated to the June 2, 2011 meeting. The District appears to argue that, because
CSEA withdrew its allegation that the written reprimand was retaliatory, any remedy in this
case must be limited to rescinding and expunging only those portions
of
the reprimand which
were a "product"
of
the unlawful interview.
Moreover, since the reprimand did not relate to the subject
of
the June 2, 2011 meeting
or rely on information obtained at that meeting, the Board should reject the ALJ' s proposed
make whole order. The District cites at least two categories
of
alleged misconduct referenced
in the reprimand which, it claims, were not a product of the June 2, 2011 meeting and which,
therefore, should not be expunged. First, the District argues that it should be free to discipline
Hause for any alleged misconduct occurring before the June 2, 2011 meeting, notwithstanding
Chamberlin's assurance at the outset of the June 2, 2011 meeting that no discipline was
42

contemplated. The District points out that Chamberlin neither questioned Hause about pre
June 2, 2011 events, nor otherwise obtained any information about such events at the June 2,
2011 interview. Relying on CSU Long Beach, supra, PERB Decision No. 893-H, the District
argues that, because it already possessed evidence of Hause's misconduct occurring before the
June 2, 2011 meeting, any remedy affecting pre-June 2, 2011 events would be excessive.
The District similarly contends that it should be free to discipline Hause for
insubordinate behavior occurring at the June 2, 2011 meeting. According to the District,
Weingarten was only intended to protect employees from their admissions, i.e., from
information obtained without the benefit of representation, but not from the consequences of
their conduct, including any misconduct occurring at a meeting with management, regardless
of whether the meeting was held under unlawful circumstances. Therefore, the District argues,
the reprimand should not be expunged, even assuming representational rights were denied,
because, while the document "references Hause's conduct" at the June 2, 2011 meeting, it
"does not relate to any information learned as a result of Chamberlin 's questioning," nor
"reference anything brought about through Chamberlin' s choosing."
Additionally, the District objects to make whole relief on policy grounds. It argues that
. if adopted by the Board, the proposed rem~dy in this case would amount to a "free pass" for an
employee "to unilaterally behave inappropriately and outrageously in a commonplace meeting
with one's supervisors with impunity." In effect, the District argues that the nature ofHause's
alleged misconduct at the June 2, 2011 meeting outweighs any wrongdoing by the District in
this case and that if the ALJ' s proposed remedy is adopted by the Board "any mundane
conversation with a supervisor, and any outrageous or inappropriate conduct exhibited by [an]
employee during such a conversation could not constitute cause for discipline."
43

5.a.1. 	Whether a Purge Order is Appropriate for Discipline that is not Retaliatory.
We first consider the District's argument that a purge order is excessive, because there
has been no separate determination that the reprimand was issued for an unlawful retaliatory
purpose. The District correctly observes that CSEA has withdrawn its allegation that the
District retaliated against Hause for her protected conduct, and that the only issues properly
before the Board are: (1) whether the District violated representational rights; and (2) if so,
what is the appropriate remedy for such violation.
However, the Board has not hesitated to issue a purge order for disciplinary documents
stemming in whole or in part from a denial
of
representational rights, regardless
of
whether the
disciplinary action itself was determined to be for an unlawful, retaliatory purpose. (Marin,
supra, PERB Decision No. 145, p. 20; Placerville, supra, PERB Decision No. 377, p. 41;
Rio Hondo, supra, PERB Decision No. 260, p. 20.) The fact that this case contains no
retaliation or discrimination allegation is not dispositive
of
whether a purge order is
appropriate for the District's denial
of
representational rights. Rather, the relevant inquiry, as
suggested elsewhere in the District's statement
of
exceptions, is whether the reprimand stems,
in whole or in part, from the unlawful interview. We now turn to that inquiry.
5.a.2. 	Whether Events Occurring Before June 2, 2011 May be Purged.
The District argues that the proposed.remedy is excessive, insofar as it would rescind
the entire reprimand, or expunge from it, matters allegedly occurring before June 2, 2011, not
discussed at the June 2, 2011 meeting, and otherwise "unrelated to" any denial
of
representational rights. Citing CSU Long Beach, supra, PERB Decision No. 893-H, the
District reasons that, because they occurred before June 2, 2011 and/or were not discussed at
the June 2, 2011 meeting, the conduct and statements attributed to Hause in the first five
44

paragraphs of the reprimand were not a "product" of the unlawful interview and should
therefore not be expunged.21
As to alleged events or statements occurring before the June 2, 2011 interview, in
theory, an appropriate remedy would excise any protected conduct from the written reprimand,
while leaving the remaining material for Hause and CSEA to accept or dispute, as they wish,
through the contractual grievance and arbitration procedures or any other available remedies.
However, fashioning a "partial-expungement" remedy poses serious conceptual and practical
problems, particularly on the limited issues and record properly before us. While PERB's
remedial authority is broad, "BERA does not empower the Board to right every wrongful act"
(Alisa! Union Elementary School District (1998) PERB Decision No. 1248, pp. 5-6.) In
particular, PERB lacks jurisdiction to review discipline or other adverse actions unrelated to
the commission of an unfair practice (EERA, §§ 3543.1, subd. (i), 3541.5, subd. (b); Jurupa,
supra, PERB Decision No. 2283, p. 13), and the Board is not in the business of re-writing
disciplinary documents for employers, nor attempting to achieve the same result, by parsing
protected from unprotected conduct referenced or relied on in such documents. (San Ysidro
School District (1980) PERB Decision No. 134 (San Ysidro), p. 19.) Where an employer bases
disciplinary action on "mixed" conduct, i.e., part of which was protected and part of which
may not be protected, rather than attempt to determine what portion of the discipline is not in
violation of BERA, the more appropriate course of action is to order rescission of the entire
penalty. (Ibid.) Because of the conceptual, practical and jurisdictional problems posed by a
21 The District excepts to the proposed remedy of expunging the entire reprimand.
Nevertheless, because it argues that some of its contents are "unrelated" to the June 2, 2011
meeting, we read this exception as a request to reverse expungement of the entire document or,
in the alternative, to retain the balance of the reprimand, in the event any portion of the
document is purged.
45

partial expungement order in this case, we decline
to
exclude only those portions
of
the
reprimand that reference or rely on pre-June
2,
2011 conduct attributed
to
Hause.
5.b. 	Whether the Remedy for Denying Representational Rights May Extend
to
Employee Conduct at an Unlawful Interview.
Similar to its argument above with respect
to
pre-June 2, 2011 events, the District
argues that portions
of
the reprimand referencing·Hause's conduct during the meeting are
"unrelated" to any denial
of
representational rights and, consequently, that the ALJ exceeded
his authority by ordering the entire document expunged. We likewise reject this argument.
Hause's protected conduct at the June 2, 2011 meeting included her request for CSEA
representation, which was also an assertion of her collectively-bargained right to 24 hours'
notice for an investigatory or disciplinary meeting, and her initial refusal to respond to
Chamberlin's questioning after her request for representation was effectively denied. (Marin,
supra, PERB Decision No. 145, p. 13; Quality Manufacturing, supra, 420 U.S. 276, 279-281.)
Determining what,
if
any role such protected conduct played in the District's decision to
reprimand Hause is especially problematic, in light
of
Chamberlin's credited testimony that, as
of the morning of the June 2, 2011, there were no plans to discipline Hause, even
if
it turned
out that she had deliberately sabotaged the Meals Plus program. If nothing Hause said or did
before June 2, 2011, including her open defiance
of
Chamberlin' s authority, warranted
disciplinary action, then we must conclude that something Hause said or did at the June 2,
2011 meeting was the cause of the written reprimand.22
22
Because the June 2, 2011 meeting occurred on the last day of work before the
summer break, and because the District promptly presented its reprimand to Hause upon her
return after the summer break, we conclude that she was not disciplined for any alleged
misconduct occurring after the June 2, 2011 meeting.
46

The District attempts to address this problem by suggesting that it should be free to
discipline Hause for aggressive and insubordinate conduct at the meeting because such conduct
was not a "product" of the unlawful interview. We can agree that the reprimand does not
appear to be based on admissions or other information obtained from Hause as a result of the
June 2, 2011 meeting with Chamberlin, nor on "anything brought about through Chamberlin's
choosing." From Chamberlin's perspective, most of Hause's statements at the June 2, 2011
meeting, including her extended criticism of Meals Plus and of the District's managers, were
neither responsive to his questioning nor appropriate under the circumstances. However, that
does not dispose of the issue. Although we recognize a legitimate distinction between
information or admissions obtained from an unrepresented employee and misconduct occurring
at an unlawful interview, we are not persuaded by the District's argument that conduct,
including employee misconduct, occurring at or in the immediate aftermath of an unlawful
interview can never be the "product" of the employer's denial of representational rights.
As the Supreme Court explained in Weingarten, an important purpose of the right to
representation is to assist employees in their efforts to vindicate themselves. In the highly
charged and emotional atmosphere of an investigatory interview, the presence of a union
representative may have a moderating effect on both the employee and the employer. (Id. at
pp. 263-264; Redwoods, supra, PERB Decision No. 293, p. 7; see also NLRB v. Southwestern
Bell Tel. Co. (5th Cir. 1984) 730 F.2d 166, 172; Penn-Dixie, supra, 253 NLRB 91, 95-96; and
Certified Grocers of California, Ltd. (1977) 227 NRLB 1211, 1215, enforcement den. on other
grounds (9th Cir. 1978) 587 F.2d 449, 451.) The logic of Weingarten and PERB's own
decisional law suggests that the protections afforded by EERA should extend to employee
conduct in circumstances where a representative could have prevented an employee from
losing his or her temper, becoming insubordinate, lying, or engaging in other misconduct, and
47

thereby giving the employer additional grounds for discipline. (Weingarten, supra,
420 U.S. 251, 264, fn. 7; Lake Elsino,re, supra, PERB Decision No. 1648, pp. 8-9; Redwoods,
supra, PERB Decision No. 293, p. 7; see also Social Workers' Union, supra, 11 Cal.3d 382,
384.)
Contrary to the District's assertion, there is considerable federal authority holding that
expungement of discipline and other forms of make-whole relief, including reinstatement and
back pay, are available for an employee who has been disciplined for misconduct occurring as
a result of an unlawful investigatory interview.
First, there is the NLRB's decisional law which, until the mid-1980s, routinely awarded
make-whole relief for Weingarten violations, even for employees with serious performance or
misconduct issues. (Illinois Bell Tel. Co. (1975) 221 NLRB 989, 991 [reinstatement with back
pay of employee discharged for suspected workplace theft]; Southwestern Bell Tel. Co., supra,
227 NLRB 1223, 1223, n. 1 [reinstatement with back pay for employees discharged or
suspended for making false injury reports]; Southwestern Bell Tel. Co., supra, 251 NLRB 612,
613,615, enforcement den. (5th Cir. 1982) 667 F.2d 470 [NLRB ordering reinstatement with
back pay for employee discharged for theft of company property where confession obtained
at unlawful interview]; Certified Grocers of California, supra, 227 NLRB 1211 [back pay
and rescission of two-week disciplinary layoff for low production], enforcement den.
(9th Cir. 1978) 587 F.2d 449; Texaco, Inc., supra, 251 NLRB 633, 636-637, enforced
(9th Cir. 1981) 659 F.2d 124 [expunging discipline for admitted safety violations where union
representative was silenced at investigative interview].) At that time, the NLRB followed a
burden-shifting approach, under Kraft Foods, Inc. (1980) 251 NLRB 598 (Kraft Foods), where
the NLRB General Counsel could make a prima facie showing that make-whole relief was
appropriate by demonstrating that the employee subjected to an unlawful interview was
48

disciplined for conduct that was the subject of the interview. The burden then shifted to the
respondent, who could avoid a make-whole remedy by demonstrating that the decision to
discipline the employee was not based on information obtained at the interview. (Ibid.)
In addition to the Kraft Foods "exclusionary rule" for information obtained in violation
of Weingarten, in a handful of cases the NLRB also recognized that employees subjected to an
unlawful interview should not be djsciplined for intemperate or even insubordinate conduct
occurring at or in the immediate aftermath of the investigative meeting, if the presence of a
union representative might have prevented or mitigated the misconduct. (Du Pont, supra,
259 NLRB 1210; United States Postal Serv. (1981) 256 NLRB 78, 81-82, revd. and
enforcement den. (9th Cir. 1982) 689 F.2d 835; Louisiana Council No. 17,AFSCME, AFL-CIO
(1980) 250 NLRB 880, 899-900; Anchortank, Inc. (1978) 239 NLRB 430, 431.) Although the
NLRB later overruled Kraft Foods and determined, in Taracorp Industries, a Div. of Taracorp,
Inc. (1984) 273 NLRB 221 (Taracorp), that make-whole relief is generally inappropriate for.
Weingarten violations,23 the NLRB's pre-Taracorp decisional law remains persuasive
authority for PERB, inasmuch as it was the federal precedent in place at the time PERB
adopted the Weingarten doctrine (see.Rio Hondo CCD, supra, PERB Decision No. 260,
pp. 15-19), and inasmuch as PERB has never endorsed the Taracorp rule that make-whole
- See Taracorp, supra, 273 NLRB 221, 222; Greyhound Lines (1985) 273 NLRB 1443;
Montgomery Ward & Co. (1984) 273 NLRB 1226, 1227; Illinois Bell Tel. Co. (1985)
275 NLRB 148, 1-149; New Jersey Bell Tel. Co. (1990) 300 NLRB 42, 44, 54-56; and, Barnard
College, supra, 340 NLRB 9341 942 ["The Board will not order a make-whole remedy for a
Weingarten violation unless the General Counsel can show that the discipline was the direct
result of the employee's assertion of his Weingarten rights"]; cf. Preferred Transp., Inc. (2003)
339 NLRB 1, holding that make-whole relief available where discipline or discharge "was not
based on misconduct uncovered by the investigation, but rather on misconduct that was
triggered by and elicited during the investigation." (Id. at p. 3, emphasis in original.) The
NLRB explained that make-whole relief is appropriate where the investigation itself was
unlawfully motivated, because in such instances, there is "a clear and direct connection
between the employer's unlawful conduct and the reason for discipline."
49

relief is unavailable for violations of the representational rights guaranteed by the PERB
administered statutes. 24
More recently, the NLRB has explicitly recognized an exception to Taracorp whereby
make-whole relief may be available in cases where an employee is disciplined for misconduct
precipitated by and occurring during an unlawful interview. On May 29, 2015, the NLRB
issued E.I. Dupont de Nemours & Co., Inc. (2015) 362 NLRB No. 98 (Dupont) in which a three
member panel of the NLRB concluded that the respondent violated section 8(a)(l) of the NLRA
by denying an employee a union representative during investigative interviews into a workplace
accident. The employee was terminated for misconduct including dishonesty and inconsistency
during the interviews. In addition to the standard cease-and-desist order for Weingarten
violations, a majority of the panel ordered the matter remanded to determine whether the
employee was also entitled to make-whole relief. In what the majority characterized as "an issue
of first impression post-Taracorp," it explained that, because the alleged misconduct occurred
during and potentially as a.result of the employer's unlawful interviews, section I0(c) and the
24 In CSU Long Beach, supra, PERB Decision No. 893-H, the Board affirmed a
proposed decision which cited Taracorp and PERB precedent to reject make-whole relief when
the investigative interview had no effect on the employer's decision to mete out discipline.
While the Board took note of the ALJ's discussion of Taracorp, nothing in the Board's
decision indicates its agreement with or endorsement of Taracorp and the Board has never
overruled its earlier cases holding that make whole relief is available when the resulting
discipline stems in whole or in part from an unlawful interview. (See Redwoods, supra, PERB
Decision No. 293, affd. in relevant part at 159 Cal.App.3d 617; Lake Elsinore, supra, PERB
Decision No. 1648.)
We also note that Taracorp relies in part on statutory language with no counterpart in
BERA or any of the other PERB-administered statutes. Section 10(c) of the NLRA prohibits the
NLRB from ordering reinstatement or baek pay for employees suspended or discharged "for
cause." Here, as elsewhere, the absence of statutory language even remotely comparable to that
found in section 10(c) of the NLRA "provides an ample basis for departing from the strictures of
Weingarten." (Redwoods, supra, PERB Decision No. 293, p. 6; see also Mt. Diablo, supra,
EERB Decision No. 44, pp. 8-9; see also Sonoma, supra, PERB Decision No. 2409-C, p. 8.)
50

Taracorp line of cases were inapplicable. On remand, an AU was to determine whether the
employee's discharge was due at least in part to his conduct during the unlawful interviews and,
if so, whether the respondent could show that it would have terminated the employee for reasons
independent of his conduct during the unlawful interviews. If the respondent failed to make this
showing, the employee would be entitled to the make-whole relief of reinstatement and back
pay. In responding to the dissent's concern that there is no limiting principle and that
employees could wind up getting make-whole relief for "all sorts of outlandish, even criminal,
behavior that possibly could occur during an unlawful Weingarten interview," the Dupont
majority explained that its decision "does not alter the well-established principle that the
Board's make-whole remedy is not available for conduct that is objectively 'so egregious as to
take it outside the protection of the Act, or ... render the employee unfit for further service'."
(Id. at p. 5.)
In addition to the recent Dupont decision and the NLRB's pre-Taracorp decisional law
are the decisions of our counterpart in the federal public sector, the Federal Labor Relations
Authority (FLRA), which have harmonized Weingarten with statutory language that is, in
important respects, similar to that found in EERA and other PERE-administered statutes.25
Although the FLRA interprets the federal public-sector statute as a codification of Weingarten,
it recognizes the need for some effective remedy for interference with representational rights,
In some respects, the Federal Service Labor-Management Relations Statute
(5 U.S.C., §§ 7101 et seq.) section 7114(a)(2)(B) is like EERA, and unlike the NLRA.
Although a federal government employee must request representation, the statutory right (and
duty) to represent employees in investigative interviews actually belongs to the exclusive
representative. Although EERA does not specifically mention such interviews, as discussed
above, the rights of employees to representation "on all matters of employer-employee
relations," and the right of employee organizations, wit4out qualification, to represent
employees "in their employment relations" certainly encompass investigative and disciplinary
interviews. (Redwoods, supra, PERB Decision No. 293, pp. 5-6.)
51

including in cases where a federal government employee is disciplined or discharged, at least
in part, for alleged misconduct occurring at an unlawful interview. The rule adopted by the
FLRA is similar to that long followed by PERB's "mixed motive" discrimination cases.
~an Ysidro, supra, PERB Decision No. 134, p. 19.) That is, unless the employer can
demonstrate that it would have taken the same disciplinary action for misconduct occurring
outside the unlawful interview, the appropriate remedy is to rescind and expunge the
disciplinary action, and to permit the employer to reconsider disciplinary proceedings against
the employee based only on the basis of a second, untainted interview or, if no second
interview is conducted, on the basis of any evidence obtained independently of the previous
unlawful interview. (United States, Department of Justice, Bureau of Prisons, Metro. Corr.
Ctr., New York, New York &American Federation of Government Employees, AFL-CIO,
Local 3148 (June 29, 1987) 27 FLRA 874, 881; United States, Department of Justice, Bureau
of Prisons, Safford,_Arizona &American Federation of Government Employees, Local 2313,
AFL-CIO (Apr. 6, 1990) 35 FLRA 431; see also Du Pont, supra, 259 NLRB 1210, 1215,
holding that a disciplinary action that is "an outgrowth of the unlawful interview, ... must be
rescinded and expunged from [the employee's] personnel file.")
Thus, there is ample authority from the federal public sector, from the NLRB's pre
Taracorp decisions, and from the NLRB's recent reexamination of this issue in Dupont, supra,
362 NLRB No. 98, that make-whole relief may be appropriate when employee misconduct
occurs during and as a result of an unlawful interview. Depending upon the particular
circumstances and which test is used, the available remedies may range from rescinding the
discipline and re-convening the interview under lawful conditions to determine whether
discipline is appropriate (United States, Department of Justice, Bureau of Prisons (1990)
35 FLRA 431) to full, make whole relief, including rescission of discipline with reinstatement
52

and back pay, unless the employer can demonstrate that it would have taken the same
disciplinary action for misconduct unrelated to the unlawful interview. (Dupont, supra,
362 NLRB No. 98, p. 4; L. A. Water Treatment (1982) 263 NLRB 244, 245 and
Communication Workers v. NLRB, supra, 784 F.2d 847, 850-851.)
In the present case, there is ample evidence to conclude that had Jensen or another
CSEA representative been permitted to attend the June 2, 2011 meeting, Hause's unwarranted
conduct at that meeting might have been prevented or at least mitigated. Chamberlin admitted
that the meeting had not gone as planned and that, at some point, he would have welcomed the
presence of a union representative as "absolutely ... beneficial." There was also undisputed
evidence that Jensen had previously attended such meetings with Hause without incident,
notwithstanding the "strained relationship" between Hause and Chamberlin. Presumably,
permitting the presence of a representative could have calmed Hause and persuaded her to
listen to her supervisor, before engaging in some of the conduct for which she was later
reprimanded. Yet, because Chamberlin did not think representation was "necessary," even
after Hause communicated her desire for a representative, he did not halt the meeting and wait
until Jensen or another representative was available.
Although reasonable minds may differ as to whether Jensen or another representative
could have controlled Hause at the June 2, 2011 meeting and changed the course of events,
any doubt must be resolved against the party whose unlawful conduct made it possible.
(City of Pasadena (2016) PERB Order No. Ad-406-M, pp. 12-13, 26; J. H. Rutter-Rex Mfg.
Co. (1971) 194 NLRB 19, 24.) Accordingly, we reject the District's argument that
representational rights may only ever protect employees from their admissions but not from
their conduct, including any misconduct, occurring as the result of an unlawful interview. We
likewise reject its argument that, in this particular case, its interference with representational
53

rights had no effect
on
the course
of
the meeting or its subsequent decision to reprimand Hause
for her conduct at the June 2, 2011 meeting.
5.c. 	Whether Hause's Alleged Misconduct Deprives
Her
of
Any Protection.
The District also argues that "any wrongdoing by the District"
in
this case does not
justify make whole relief, because the result would be to "permit[] Hause to harass and mistreat
other District employees without consequence." Implicit in this exception is the view that
because Hause's alleged or admitted conduct at the June 2, 2011 meeting was "outrageous,"
"inappropriate," and even "insubordinate," she must lose any protection afforded by EERA for
her otherwise protected conduct. However, protected conduct does not cease to be protected,
simply because the employer regards the employee as "insubordinate." (Marin, supra, PERB
Decision No. 145, pp. 12-15.)
We reject the District's exception here for two reasons. First, in response to Hause's
request for representation, Chamberlin assured her that he did not intend to discipline her for
any conduct occurring before June 2, 2011. As explained in the proposed decision, an employer
who refuses an employee's request for representation by assuring the employee that no discipline
will ensue from the interview may not then impose discipline as a result
of
the interview.
(Lake Elsinore, supra, PERB Decision No. 1648, p. 8.) In accordance with PERB precedent, the
ALT therefore appropriately ordered that any pre-June 2, 2011 events be expunged from the
written reprimand.
Second, we agree with the ALJ that the District's reprimand was, at leastin part, a
product or outgrowth of the unlawful conditions under which the June 2, 2011 meeting occurred
and that rescission and expungement were likewise appropriate with respect to Hause' s conduct
at the June 2, 2011 meeting. (Redwoods, supra, PERB Decision No. 293, p. 10; Du Pont, supra,
259 NLRB 1210, 1215; cf. CSU Long Beach, supra, PERB Decision No. 893-H, p. 26.) The
54

record demonstrates that the District has had
"a
good relationship with the Union," that it has
agreed to provide 24 hours' notice to Hause for such meetings, and that Jensen's involvement in
such meetings had contributed to a positive outcome. Under the circumstances, it seems unlikely
that Hause would have engaged in the misconduct alleged by the District, if Chamberlin had
simply complied with her initial request for representation, pursuant to EERA and the District's
contractual arrangement with CSEA. We therefore reject the District's contention that any
remedy in this case is unwarranted, because ofHause's alleged misconduct.
5.d. 	Whether Make Whole Relief Incentivizes Employee Misconduct.
We next address the District's policy concern that expungement is an "unwarranted"
invocation
of
Weingarten that will provide employees with "a free pass to unilaterally behave
inappropriately and outrageously in a commonplace meeting with one's supervisors with
impunity." We think the District's fears are misplaced and exaggerated. As suggested above,
expungement is necessary to prnvide some form of effective remedy to the representative and
the affected employee for an employer's denial ofrepresentational rights. A cease-and-desist
order alone is inadequate, because its exclusive focus on prohibiting future violations
effectively rewards the employer for its past misconduct, without attempting to restore the
conditions and relationships that existed or would have existed, but for the commission of the
unfair practice. (Santa Clara Unified School District .(1979) PERB Decision No. 104, p. 26.)
It also seems improbable that employees who find themselves in an investigatory
meeting, and who, by definition, already entertain a reasonable fear
of
discipline, will use the
present decision as license to engage in misconduct at the interview, simply because the
employer has denied their request for representation. In any event, employers can easily
protect themselves from the dire consequences predicted by the District by simply granting an
employee's valid request for representation in the first place.
55

Having determined that an unfair practice occurred when the District issued its written
reprimand to Hause, based in part, on her exercise of protected conduct at the June 2, 2011
meeting with Chamberlin, we adopt the proposed decision and order, as modified.
ORDER
Based on the foregoing findings
of
fact and conclusions
of
law and the entire record in
this case and pursuant to the Educational Employment Relations Act (EERA), Government
Code section 3540, the Public Employment Relations Board (PERB or Board) AFFIRMS the
proposed decision of the administrative law judge and finds that the Capistrano Unified School
District (District) violated section 3543.5, subdivision (a),
of
the Government Code by denying
Theresa Hause (Hause) the right to representation by an employee organization during an
investigatory interview. The above conduct also violated subdivision (b) of section 3543.5
of
EERA, by denying the.California School Employees Association and its Capistrano
Chapter 224 (collectively, CSEA) its right to represent employees in investigatory interviews.
The District, its governing board and its representatives, shall:
A. 	CEASE AND DESIST FROM:
1. 	Denying Hause the right to be represented in investigatory interviews
involving potential disciplinary action.
2. 	Denying CSEA rights guaranteed by EERA, including the right to
represent employees in investigatory interviews with the educational employer.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICES OF EERA:
1. 	Rescind and expunge from Hause's personnel files the September],
2011 Written Reprimand issued to Hause.
56

2. 	Within ten (10) workdays of service of a final decision in this matter,
post at all work locations where notices to employees in the District are customarily posted,
copies of the Notice attached hereto as an Appendix, signed by an authorized agent of the
District and indicating that the District will comply with the terms of this Order. Such posting
shall be maintained for at least thirty (30) consecutive workdays. In addition to physical
posting of paper notices, the Notice shall be posted by electronic message, intranet, internet
site, and other electronic means customarily used by the District to communicate with its
employees in the District's Food and Nutrition Services Department. (City of Sacramento
(2013) PERB Decision No. 2351-M.) The District, its governing board and its representatives
shall take reasonable steps to ensure that the posted Notice is not reduced in size, defaced,
altered or covered by any material.
3. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of PERB, or the General Counsel's designee. The District
shall provide reports, in writing, as directed by the General Counsel or his/her designee. All
reports regarding compliance with this Order shall be concurrently served on CSEA.
Members Huguenin and Winslow joined in this Decision.
57

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. LA-CE-5621-E, California School
Employees Association & its Capistrano Chapter 224
v.
Capistrano Unified School District, in
which all parties had the right to participate, it has been found that the Capistrano Unified
School District (District) violated the Educational Employment Relations Act (EERA),
Government Code section 3543.5, subdivision (a), by denying Theresa Hause (Hause) the right
to representation by an employee organization during an investigatory interview. The above
conduct also violated EERA, Government Code section 3543.5, subdivision (b), by denying
the California School Employees Association and its Capistrano Chapter 224 (collectively,
CSEA) rights to represent educational employees in investigatory interviews.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Denying Hause the right to be represented in investigatory interviews
involving potential disciplinary action.
2. 	Denying CSEA rights guaranteed by EERA, including the right to
represent employees in investigatory interviews with the educational employer.
B.	
TAKE
THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES
OF
EERA:
Rescind and expunge from Hause's personnel files the September 1, 2011 Written
Reprimand issued to Hause.
Dated:
---------
CAPISTRANO UNIFIED SCHOOL DISTRICT
By:
--------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 224,
Charging Party,
V.
CAPISTRANO UNIFIED SCHOOL DISTRICT,
Res ondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5621
PROPOSED DECISION
(10/10/2012)
Appearances: Nathan Banditelli, Labor Relations Representative, on behalf
of
California
School Employees Association & its Chapter 224;_Anthony DeMarco and Amy Estrada,
Attorneys, on behalf
of
Capistrano Unified School District.
Before Eric
J.
Cu, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a union alleges that a public school employer violated the Educational
Employment Relations Act (EERA)1 by interfering with an employee's rights to have a union
representative, present during
an
investigatory interview. The employer denies a violation.
On November
7,
2011, the California School Employees Association and its Chapter
224 (CSEA) filed an unfair practice charge with the Public Employment Relations Board
(PERB or Board), alleging that the Capistrano Unified School District (District) committed
multiple violations ofEERA. On January 20, 2012, CSEA withdrew all allegations
e;x.cept
the
claim that the District unlawfully denied a CSEA-represented employee the right to have a
CSEA representative present during an investigatory interview and disciplined her as a result
of
that interview. That day, the PERB Office of the General Counsel issued a complaint on the
remaining claim. The District filed an answer to the PERB complaint on February 16, 2012,
denying that a violation occurred and asserting multiple affirn1ative defenses.
1 EERA is codified at Government Code section 3540 et seq.

On March 14, 2012, the parties participated in an informal settlement conference but
the matter was not resolved. On June 13-14, 2012, the parties participated in a fonnal hearing.
The parties filed simultaneous closing briefs on August 24, 2012. At that point, the record was
closed and the matter was submitted for a proposed decision.
FINDINGS OF FACT
The Parties
The District is a public school employer within the meaning
ofEERA
section
3540.l(k). CSEA is an exclusive representative within the meaning
of
EERA section
3 540
.1
( e) and represents a bargaining unit that includes the District's food service workers.
Theresa Hause is a public school employee within the meaning
ofEERA
section 3540.l(j) and
is employed by the District in a position represented
by
CSEA.
Hause's Employment at the District
Hause has been employed at the District as a Lead Food Service Worker II for 19 years
as part
of
the Food and Nutrition Services (FNS) department. At the times relevant to the
PERB complaint, Hause worked at Niguel Hills Middle School. 	Her essential job duties
include ordering and preparing food, directing three food service workers, and serving food to
students. Hause also makes recommendations for saving money and improving service.
Hause's direct supervisor is FNS Supervisor John Chamberlin. Chamberlin's supervisor is
FNS Director Dawn Davey.
Niguel Hills has breakfast, mid-morning, and lunch service. In addition, the site serves
a la carte items, consisting mostly
of
snacks. Food service is typically done at service
windows adjacent to a central quad. As
of
May 26, 2011, Niguel Hills also served food on a
separate cart. 	The District tracks student food purchases such as how many free or reduced-fee
lunches are served.
2

Implementation of the Meals Plus Software
In 2011, the District decided to upgrade software used by the FNS department. That
software, called Meals Plus, enabled the District to do more sophisticated tracking of inventory
and student data. 	The District began implementing Meals Plus one school site at a time,
starting April 2011.
Niguel Hills was scheduled to implement Meals Plus on May 26, 2011. On or around
May 20, 2011, Chamberlin spoke with Hause over the telephone to discuss the roll-out. Hause
expressed her opinion that the Meals Plus software would not work effectively, but would
reduce sales and eliminate food service worker positions. 	Chamberlin described Hause's tone
as argumentative and belligerent. Hause hung up the telephone before the conversation was
completed. Chamberlin tried to call back, but Hause did not answer and did not return his call.
Hause does not deny hanging up on Chamberlin.
On May 23, 2011, Chamberlin met with Hause at Niguel Hills. 	According to
Chamberlin, he offered to have Hause work at a different school site on May 26, 2011, if the
stress of the Meals Plus roll-out was too great. According to Hause, Chamberlin said he would
involuntarily transfer her to a different site if she planned on "sabotaging" the implementation
of Meals Plus. Hause was not transferred or temporarily reassigned as a result of this meeting.
The new software was implemented at Niguel Hills on May 26, 2011 as planned.
Hause worked at the outside food cart and served both meals and a la carte items during the
lunch service that day.
On June 1, 2011, Chamberlin contacted Hause by telephone to give her some
instructions. First, Chamberlin instructed Hause to stop working at the food service cart and to
instead work at the food service windows. Second, Chamberlin directed that only a la carte
items, not meals, be served from the cart. Hause did not fom1ally acknowledge Chamberlin's
3

instructions but continued to criticize the Meals Plus program. Hause again hung up the
telephone before Chamberlin considered the conversation to be finished. 	Hause does not deny
this. Hause complied with Chamberlin's directives that day.
The Incidents of June 2, 2011
On June 2, 2011, the last work day of the 2010-2011 year, Chamberlin visited the
Niguel Hills food service area at approximately 8:40 a.m. Hause was the only FNS employee
on site at the time. Chamberlin and Hause have very different recollections of this encounter.
Each witness's account will be outlined below followed by a resolution of those credibility
issues that are relevant to deciding the issues in this case.
Chamberlin's Account
According to Chamberlin, he greeted Hause and stated that he wanted to speak with her
about the directives from June 1, 2012. Hause yelled for Chamberlin to "get out of [her]
kitchen!" Chamberlin replied that he had the right to be there as her supervisor. He also spoke
in an elevated voice because ofHause's tone and because the fans in the kitchen were loud. At
that point, Hause turned away from Chamberlin and walked into her office.
Chamberlin followed her into the office and sat down. Hause immediately expressed
fear of being disciplined and requested CSEA representation. Chamberlin responded that he
did not intend the meeting to be disciplinary and that he wanted to find out whether his
directives were understood and being implemented. He also said that he would allow her to
have a CSEA representative present.
Chamberlin then proceeded to question Hause. He asked her whether she understood
his directives and was following them. Hause initially did not reply but after being asked
multiple times, she accurately reiterated Chamberlin's two directives and confinned that she
was following them.
4

Hause then began loudly criticizing the implementation
of
the Meals Plus software at
Niguel Hills. Among her complaints were that the screens and keyboards were not effective
for the new software, that other sites had newer equipment, and that she felt that the new
system would be cause for eliminating food service positions. Chamberlin considered Hause's
comments and tone to be abusive. At that point, Hause left the office and unsuccessfully
attempted to contact CSEA Chief Steward Ken Jens en on her mobile telephone.
Hause moved towards the kitchen and yelled
"I
want you to get out
of
my kitchen
now!" Chamberlin needed to collect himself for a moment and he then began taking notes on a
notepad he brought with him.
Hause came back in and said she was not feeling well and was going to leave for the
day. She then left the premises. Chamberlin got emotional
as
well and began to cry. He
contacted Davey who asked
ifhe
was alright and
if
he was capable
of
mnning the breakfast
service scheduled to begin at Niguel Hills in around 10 minutes. 	Chamberlain said he would
and completed the breakfast service that day until other food service employees arrived.
Chamberlin testified that the purpose
of
the meeting was to determine whether Hause
understood and would comply with his June 1, 2011 directives because be was unsure whether
Hause bad heard them correctly. He also wanted to discuss and observe the roll-out of Meals
Plus at Niguel Hills.
Hause' s Account
According to Hause, Chamberlin ordered her to follow him into her office and
"aggressively" asked "did you follow my directives from yesterday?" Hause replied, "yes."
Chamberlin repeated the question and Hause repeated her answer. 	Chamberlin then asked "do
you even know what a directive is?" Hause replied, "yes, I do."
5

At that point, Hause requested CSEA representation but Chamberlin did not respond.
Hause then called Jensen using her mobile telephone and left him a voicemail message stating
she was feeling threatened by Chamberlin and felt that she needed CSEA representation.
Chamberlin continued to ask something to the effect of "do you even know what a
directive is?" Hause described Chamberlin's voice as loud, just below yelling. At some point,
Hause stated "this has to stop." Chamberlin replied "I am the supervisor and you are the
employee. You do what I tell you to do." Hause then left the office and returned to the food
service area. 	Chamberlin moved past her and obstructed her path. Hause said "this is my
kitchen, you need to leave me alone." Chamberlin replied "I am the supervisor. You must do
as you are told. I can come here whenever I want."
Hause then left the food service area and told Niguel Hills Vice Principal Al Rios that
she was being harassed and felt ill. She told Rios that she was going to leave for the day. Rios
informed Chamberlin that Hause was going to leave.
Credibility Determination
To the extent that it is necessary, Chamberlin's testimony is credited over Hause's
about the events of the June 2, 2011 meeting. Inconsistencies in her testimony cast doubt on
her ability to recall the meeting clearly. For example, on direct examination, Hause did not
testify that she ever formally requested CSEA representation. 	She only later recalled doing so
during cross examination. In addition, Hause testified inconsistently about the number of
ti1nes Chamberlin asked her questions.
More importantly, Hause's recollection ofChan1berlin's questioning is contradicted by
an e-mail message Hause sent to Jensen about the June 2, 2011 meeting the next day. During
the hearing, Hause testified that Chamberlin repeatedly asked her only two questions, whether
she followed his directives and whether she even 1mderstood what a directive is. In contrast, in
6

the June 3, 2011 e-mail message, Hause wrote that Chamberlin asked her "to explain to him
what his directives were per [their] phone call." This e-mail message is (?Onsistent with
Chamberlin's testimony and inconsistent with Hause's. Furthermore, based
on
my
own
observations
of
Chamberlin, I find it implausible that he would continuously ask an essentially
rhetorical question after Hause already gave her response. For these reasons, it is concluded
that Chamberlin asked Hause whether she followed his June
1,
2011 directives and whether
Hause would articulate those directives for Chamberlin.
Issuance
of
the Written Reprimand
On September 7, 2011, Hause returned to work for the 2011-2012 school year. The
District issued her a document entitled "WRITTEN REPRIMAND: FAILURE TO FOLLOW
DIRECTIVES AND INSUBORDINATION." FNS Director Davey authored the document
based on Chamberlin's
input
The document stated that the purpose
of
Chamberlin's June 2,
2011 visit was to "monitor the implementation
of
the directives given the day before." The
document also referenced Hause's responses to Chamberlin's questions and that Hause yelled
· for Chamberlin to "get out
of
[her] kitchen!" The District considered Hause's behavior that
day to be "unprofessional, disrespectful, insubordinate and willfully disobedient." Davey also
referenced the two times that Hause htmg up the telephone during conversations with
Chamberlin. Hause filed a response to the Written Reprimand on September 21, 2011.
ISSUE
Did the District interfere with protected rights by denying Hause the right to have a
CSEA representative present at the June 2, 2011 meeting?
CONCLUSIONS OF LAW
BERA section 3543.S(a) protects an employee's right to be represented on employer
employee relations matters. (Santa Barbara Community College District (2011) PERB
7

Decision No. 2212; Fontana Unified School District (2010) PERB Decision No. 2147.) This
includes the right to union representation during certain meetings with his or her employer.
(Los Banos Unified School District (2007) PERB Decision No. 1935 (Los Banos USD).) This
right is derived from the U.S. Supreme Court decision in National Labor Relations Board
(NLRB)
v.
J.
Weingarten, Inc. (1975) 420 U.S. 251 (Weingarten), which found a substantially
similar right under the National Labor Relations Act (NLRA). (See Rio Hondo Community
College District (1982) PERB Decision No. 260.)
Under EERA, an employee required to attend an investigatory interview with the
employer, whether or not it is labeled as such, is entitled to union representation where the
employee has a reasonable basis to believe discipline may result from the meeting. (Los Banos
USD, supra, PERB Decision No. 1935.) Thus, an employer violates this right where:
(a) the employee requests 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., [citations omitted].)2 These elements will be applied to this case.
a. 	Hause's Request for Representation
The first issue is whether Hause requested representation during the June 2, 2011
meeting. The right to representation is only triggered by the employee's request. (San
Bernardino County Public Defender (2009) PERB Decision No. 2058-M (San Bernardino
County).) Conversely, there is no violation of this right when the employee fails to
affirmatively request representation at the meeting. 	(Ibid.) In this case, it is undisputed that
Hause requested CSEA assistance during the June 2, 2011 meeting and that she called CSEA
- Even when these elements are not present, PERB may find a right to a representative
in meetings arising under "highly unusual circumstances." (Redwoods Community College
District v. Public Employment Relations Board (1984) 159 Cal.App.3d 617.) One example of
such a meeting is where an employee was required to attend a meeting with a high-ranking
employer official to discuss her perfonnance evaluation, the meeting was investigatory and
fom1al, and the official exhibited a hostile attih1de toward the employee. (Id. at 625.)
8

steward Jensen during the course
of
the meeting. This is sufficient to establish that Hause
requested CSEA representation.
b. 	Investigatory Nature
of
the Meeting
The second issue is whether the June 2, 2011 meeting was investigatory in nature. 	The
right to representation attaches during meetings where the essential purpose is to elicit
information that may impact the employment relationship. (County
of
Santa Clara (2012)
PERB Decision No. 2267-M, citing Placer Hills Union School District (1984) PERB Decision
No. 377.) On the other hand,this right does not extend to all meetings with the employer. For
example, there
is
no right to representation where the purpose
of
the meeting is merely to
inform the employee that he or she is being disciplined. (Ibid.) Likewise, the right to
representation does not apply to "run-of-the-mill shop-floor conversations as, for example, the
giving
of
instructions or training or needed corrections
of
work techniques." ( Weingarten,
supra, 420 U.S. at pp. 255-258, quoting Quality Manufacturing
Co.
(1972) 195 NLRB 197,
199.)
In California State University, Long Beach (1991) PERB Decision No. 893-H (CSU),
the Board found a meeting to get an employee's "side
of
the story" was an investigatory
interview sufficient to trigger the right to representation. In Northwest Engineering Company
(1982) 265 NLRB 190 (Northwest), a meeting where "a give and take between employees and
supervisors was anticipated
...
was, in effect, an interview to which the right to union
representation as a condition
of
employee participation was applicable." (Id. at 197, [internal
quotations omitted]; see also AAA Equipment Service Co. (1978) 238 NLRB 390, [meeting to
"elicit facts" from employee was more than a mere shop-floor conversation.])
In contrast, in State
of
California (Department
of
California Highway Patrol) (1997)
PERB Decision No. 1210-S (State
of
CA), the Board found no right to representation during a
9

meeting, the purpose of which was to inform the employee that her abrasive and curt demeanor
towards the public was unacceptable. No questions were asked of the employee during the
meeting. Similarly, the Board found no right to representation during a meeting where the
employer sought to enforce its directive that an employee move her workstation. (San
Bernardino County, supra, PERB Decision No. 2058-M.) In that case, the employer twice
directed the employee to move her station but she did not obey. Although the employer asked
whether the employee would comply with the directives, the Board concluded that the purpose
of the meeting was not to investigate the employee's conduct; it already knew that she had not
moved her workstation. Rather, the purpose of the meeting was to give the employee one final
opportunity to comply with the order to move her work station. (Ibid.)
In the present case, Chamberlin testified that he did not know whether Hause
understood and complied with his instructions from June 1, 2011 and that he went to Niguel
Hills the next day to find out. Accordingly, Chamberlin asked her to "explain her
interpretation of the directive[s.]" He also asked Hause whether she followed those directives.
Chamberlin testified that, if Hause had not implemented his directives, he would "listen to her"
as to why. Chamberlin brought a notepad with him to the meeting and took notes about
Hause's comments. According to the September 1, 2011 Written Reprimand, which
Chamberlin read and approved, the purpose of the visit was to "monitor the implementation of
the directives given the day before." Based on these facts, it is concluded that Chamberlin
went to Niguel Hills on June 2, 2011, to gather information from Hause about his June 1, 2011
directives and, in a broader sense, about implementation of Meals Plus at Niguel Hills. 	This
case is similar to CSU, supra, PERB Decision No. 893-H, because Chamberlin sought Hause's
"side of the story" about the roll-out of Meals Plus at her site. This questioning is consistent
with an investigatory interview.
10

This case is distinguishable from San Bernardino County, supra, PERB Decision No.
2058-M, because Chamberlin did not come to Niguel Hills solely to give Hause another
opportunity to follow his instructions. Furthermore, Chamberlin's questions were not, as the
District maintains, designed to ensure comprehension
of
directives and to provide corrective
guidance. (See State
of
CA, supra, PERB Decision No. 1210-8.) Chamberlin admittedthat he
questioned Hause precisely because he did
no.t
know whether his directives were being
followed and did not know
if
corrective action was needed.
If
his instructions were not carried
out, Chamberlin testified he would have discussed the matter with Hause. This is sufficient
information to conclude that the June 2, 2011 meeting was investigatory.
c. 	Reasonable Belief
of
Discipline
The third issue is whether Hause had a reasonable belief that discipline would follow
from
the
meeting. In Mammoth Unified School District (1983) PERB Decision No. 371
(Mammoth USD),the Board found that an employee had a reasonable belief that an
investigatory meeting would lead to discipline even though the employer expressly told him
that it was not disciplinary in nature. There, the employer had a history
of
angry
confrontations with his supervisor and the meeting was called the same day that the employee
had registered a complaint about his supervisor's directives. (Ibid.; see also Lake Elsinore
Unified School District (2004) PERB Decision No. 1648.)
In Barstow Unified School District (1996) PERB Decision No. 1164, the Board found
that an employee had no reasonable expectation
of
discipline when the employer made it clear
from the outset that the meeting concerned a student matter, not the employee's performance.
Here, Hause had a reasonable belief that Chamberlin's unannounced June 2, 2011
meeting could lead to discipline. Hause and Chamberlin had a history of acrimonious
discussions about FNS operations, cuhninating in Hause abruptly hanging up the telephone on
11

Chamberlin two different times. One of those times was on June 1, 2011, the day before the
meeting in question. During the meeting itself, both Hause and Chamberlin spoke with raised
voices. 	Given this history of conflict culminating in Chamberlin's unannounced visit to Niguel
Hills, Hause had a reasonable belief that Chamberlin was there to discipline her. Hause
likewise had a reasonable belief that Chamberlin's questions regarding his directives could
result in discipline because the failure to follow an employer's instructions is legitimate
grounds for discipline. (See e.g., Riverside Unified School District (1987) PERB Decision
No. 639.)
Moreover, Hause's concern about receiving discipline turned out to be well-founded.
The September 1, 2011 Written Reprimand references both hanging-up incidents as well as
Hause's failure to follow Chamberlin's instrnctions as the basis for its discipline. Under these
circumstances, Hause had a reasonable belief that discipline would result from the June 2,
2011 meeting.
d. 	Denial of Request
The fourth issue is whether Chamberlin denied Hause's request for_representation.
Once an employee invokes the right to representation during an applicable meeting, the
employer may simply discontinue the interview and proceed with its investigation through
other means. In the alternative, the employer may instrnct the employee that he or she has the
option of continuing the interview umepresented or having no interview at all. (San
Bernardino City Unified School District (1998) PERB Decision No. 1270, citing Weingarten,
supra, 420 U.S. 251.) The employer may also reschedule the interview to a time when a union
representative is able to attend. (Ibid.)
In this case, the District contends that Chamberlin ended the interview after Hause
requested representation. However, this assertion is not consistent with the record.
12

Chamberlin stated that he would allow Hause to have a CSEA representative present at the
meeting but proceeded to question
her
before she even attempted to contact Jensen. He made
no attempt to reschedule the meeting, cancel it, or give Hause the option
of
proceeding without
representation or without an interview at all. 	Chamberlin's decision to proceed with the
interview after Hause requested representation amounts to a denial
of
representation in
violation
ofEERA
section 3543.S(a) and (b).
REMEDY
PERB has broad remedial powers to effectuate the purposes
of
EERA. EERA section
3541.S(c) states:
The board shall have the power to issue a decision and order
directing an offending party to cease and desist from the unfair
practice and to take such affirmative action, including but not
limited
to
the reinstatement
of
employees with or without back
pay, as will effectuate the policies
of
this chapter.
The typical remedy is cases involving the denial
of
the right to representation is an order to
cease and desist from the unlawful conduct. (City
of
Monterey (2005) PERB Decision
No. 1766-M.)
In addition, in Lake Elsinore Unified School District, supra, PERB Decision No. 1648
the Board found that "once the employee has made a request for representation during an
interview and the employer refuses the request, stating that no discipline would result from the
interview, then the employer may not impose discipline as a result
of
the interview." 	In
Redwoods Community College District (1983) PERB Decision No. 293, the Board found that
an employer interfered with protected rights where it denied an employee's request for
representation during a meeting to discuss a disputed performance eva.luation. The Board
found it appropriate to purge documents that were a product of the meeting from the
13

employee's personnel file, including a report making negative remarks about the employee's
performance.
In contrast, in CSU, supra, PERB Decision No. 893-H, the Board found it inappropriate
to expunge documents from an employees' personnel file where those documents were created
prior to the investigatory meeting and were not based "in whole, or in any part, on any
information or other evidence acquired by the Respondent as a result
of
the meetings."
In this case, the September
1,
2011 Written Reprimand references Hause's conduct
before, during, and after the June 2, 2011 investigatory meeting. This includes specific
reference to Haus.e's responses to Chamberlin's questions. Accordingly, because the Written
Reprimand was based, at least
in
part, on an investigatory interview where Hause was denied .
the right to representation, it is appropriate to rescind this document.
PROPOSED ORDER
Upon the foregoing findings
of
fact and conclusions
of
law, and the entire record in the
.case, it is found that the Capistrano Unified School District (District) violated the Educational
Employment Relations Act (Act), Government Code section 3543.S(a) and (b). The District
violated the Act by denying an employee the right to representation during an investigatory
interview.
Pursuant to section 3541.S(c)
of
the Act, it hereby is ORDERED that the District, its
governing board and its representatives shall:
A 	CEASE AND DESIST FROM:
1. 	Denying Theresa Hause the right to be represented in investigatory
meetings involving potential disciplinary action; and
2. 	Denying California School Employees Association and its Chapter #224
(CSEA) the right to represent its members.
14

B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1.	
Rescind the September
1,
2011 Written Reprimand issued to Hause; and
2. 	Within 10 workdays
of
the service
of
a final decision in this matter, post
at all work locations where notices to employees in the District customarily are posted, copies
of
the Notice attached hereto as an Appendix. The Notice must be signed by an authorized
agent
of
the District, indicating that it will comply with the terms
of
this Order. Such posting
shall be maintained for a period
of
30 consecutive workdays. Reasonable steps shall be taken
to ensure that the Notice is not reduced in size, altered, defaced or covered with any other
material.
3. 	Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel
of
the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on CSEA.
Right to Appeal
Pursuant to California Code
of
Regulations, title
8,
section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this
Decision. 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
15

In accordance with PERB regulations, the statement of exceptions should identify by .
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (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 PERB Regulation 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, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, §§ 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 a~company each copy served
on a party or filed with the Board itself, (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135,'subd. (c).)
Eric J. Cu
Administrative Law Judge
16

APPENDIX
NOTICE TO El\'IPLOYEES
POSTED
BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An
Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. LA-CE-5621-E, California School
Employees Association and its Chapter 224 (CSEA)
v.
Capistrano Unified School District
(District) in which all parties had the right to participate, it has been found that the District
violated the Educational Employment Relations Act (EERA), Government Code section 3540
et seq. by denying a represented employee the right to be represented by CSEA in an
investigatory meeting where there was reasonable potential for discipline.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.	
Denying Theresa Hause the right to
b6
represented in investigatory
meetings involving potential disciplinary action; and
2. 	Denying CSEA the right to represent its members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
L 	Rescind the September 1, 2011 Written Reprimand issued to Hause.
Dated:
---------	
Capistrano Unified School District
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORK.DAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED, OR COVERED WITH ANY OTHER
MATERIAL.