State of California (State Water Resources Control Board) (PERB 2830S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
PROFESSIONAL ENGINEERS IN
CALIFORNIA GOVERNMENT,
Charging Party,
v.
STATE OF CALIFORNIA (STATE WATER
RESOURCES CONTROL BOARD),
Respondent.
Case No. LA-CE-740-S
PERB Decision No. 2830-S
August 10, 2022
Appearances: Matthew Hanson, Attorney, for Professional Engineers in California
Government; California Department of Human Resources by David M. Villalba, Labor
Relations Counsel, for State of California (State Water Resources Control Board).
Before Shiners, Krantz, and Paulson, Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB) on exceptions filed by Professional Engineers in California Government
(PECG) to a proposed decision of an administrative law judge (ALJ). In the underlying
charge, PECG asserted that the State of California, State Water Resources Control
Board (Water Board) refused to provide PECG with information about alleged
wrongdoing by a PECG-represented Water Board employee, Rosalyn Fleming. PECG
claimed that, without this information, it was unable to meaningfully represent Fleming
in an investigatory interview. The complaint alleges that the Water Board refused to
provide this information on the date of the investigatory interview, March 12, 2020,
thereby failing to meet and confer in good faith with PECG and interfering with union

2
and employee rights protected under the Ralph C. Dills Act (Dills Act).1
The ALJ found that the Water Board established a statute of limitations defense
to PECG’s bad faith bargaining claim. The ALJ then dismissed the entire complaint,
treating the interference claims as purely derivative of the bad faith bargaining claim.
However, for the reasons explained below, the ALJ should have analyzed the
interference claims as independent unfair practice allegations. We therefore reverse
the proposed decision in part and remand to the ALJ to determine whether the Water
Board interfered with protected rights on March 12, 2020.2
FACTUAL AND PROCEDURAL BACKGROUND3
The Water Board is a State employer within the meaning of Dills Act section
3513, subdivision (j). PECG is a recognized employee organization within the meaning
of Dills Act section 3513, subdivision (b), and the exclusive representative of State
Bargaining Unit 9, a unit comprised of professional engineer classifications.
Fleming, a Water Resources Control Engineer at the Water Board, is a State
employee within the meaning of Dills Act section 3513, subdivision (c). At all relevant
times, Fleming worked with Environmental Scientist Emma McCorkle. Senior
1 The Dills Act is codified at Government Code section 3512 et seq. All statutory
references are to the Government Code.
2 No party has excepted to the ALJ’s dismissal of the bad faith bargaining claim,
and we therefore express no opinion on it. (See PERB Reg. 32300, subd. (e) [“Absent
good cause, the Board itself will not consider . . . issues and arguments not raised in
the statement of exceptions”]; PERB Regulations are codified at Cal. Code Regs.,
tit. 8, § 31001 et seq.)
3 Neither party excepted to the ALJ’s factual findings, and our factual
description draws largely from the ALJ’s proposed decision.

3
Environmental Scientist Nadim Shukry-Zeywar supervised Fleming and McCorkle.
I. 	The January 2020 Incident
On January 30, 2020, Fleming went to McCorkle’s cubicle to discuss a
work-related conference that required travel. Shukry-Zeywar had directed McCorkle,
but not Fleming, to attend the conference.4 Fleming and McCorkle dispute the details
of their discussion, but we need not resolve that dispute to resolve this case. After the
encounter, Fleming filed an internal complaint alleging that Shukry-Zeywar
discriminated based on race and age in permitting McCorkle to attend the conference
while not permitting Fleming to attend. The following day, McCorkle filed an internal
complaint alleging that during the January 30 encounter, Fleming acted aggressively,
blocked McCorkle’s egress from her cubicle, and ignored her request that Fleming
raise her concerns with Shukry-Zeywar.
On February 6, Shukry-Zeywar e-mailed Fleming, in part to explain why he
selected McCorkle to attend the conference. The e-mail continued as follows:
“Also, it was brought to my attention that on January 30,
2020, you approached Emma McCorkle twice at her cubicle
and demanded that she forward you the conference
information. Although, she provided you with the
information, she wasn’t comfortable doing so and asked
you several times to get the information from me. In the
future, please refrain from contacting Emma regarding any
topic, and if you have any work-related questions make
sure you direct them to me.”
4 All further dates refer to 2020, except where otherwise indicated.

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II. 	Events Leading up to Fleming’s Investigative Interview
The Water Board assigned Equal Employment Opportunity Officer Shyla
Hoffman to investigate the two complaints. Fleming first learned of Hoffman’s
investigation on February 6, when Fleming received an e-mail from Hoffman. In the
e-mail, Hoffman stated that on February 11, she would interview Fleming “first as a
Complainant and for the second part as a Respondent.” Hoffman’s e-mail also
informed Fleming that she had the right to have a representative at the interview, and
Fleming responded that she planned to have a representative accompany her. PECG
assigned Labor Relations Counsel Jesse Rodriguez as Fleming’s representative.
Rodriguez advised Hoffman that he was unavailable on February 11, and the Water
Board accordingly postponed the interview.
In an e-mail thread that began February 6, Fleming asked Hoffman: “Please
provide the details of the allegations made against me.” Fleming copied Rodriguez on
this e-mail. Hoffman responded to Fleming and Rodriguez three minutes later, stating:
“You are a complainant for part of the interview, so I am assuming you have most of
the details regarding the investigation. I will not be providing further details of
allegations made against you until we meet.” Still on February 6, Rodriguez replied to
Hoffman by e-mail, as follows:
“The department has an obligation ‘to provide sufficient
information regarding alleged wrongdoing to enable a union
representative to represent an employee in a meaningful
manner during an investigatory interview.’ See attached. [5]
5 Rodriguez attached to his e-mail a copy of Contra Costa Community College
District (2019) PERB Decision No. 2652 (Contra Costa), which discusses an
employer’s obligation to provide information sufficient to allow a union to provide

5
The department is violating this right. Therefore, PECG
objects to the holding of an investigatory interview until this
violation is cured.”
In this e-mail reply, Rodriguez copied Water Board Labor Relations Officer Audra
Debenedetti and her supervisor, Lucia Neri.
On February 7, Hoffman replied to Rodriguez, copying Debenedetti and Neri:
“Ms. Fleming should have all the details regarding the complaint since she is also a
Complainant, I am not sure what else you need. Additionally, you have submitted this
case [Contra Costa, supra, PERB Decision No. 2652] to my office several times and
I have previously advised you that we are not obligated to comply with your request.
I will schedule an interview for Ms. Fleming and she will be expected to participate.”
Rodriguez then e-mailed Debenedetti and Neri, asking to discuss PECG’s
request and Hoffman’s response. Debenedetti and Rodriguez spoke a few days later.
In this conversation, Rodriguez again asked about the nature of the allegations
against Fleming, and he again referenced the Contra Costa decision. Debenedetti told
Rodriguez the Water Board did not have to provide such information.
On February 28, Hoffman e-mailed Fleming and Rodriguez, stating that she
was rescheduling the interview to March 11 by telephone conference. On March 10,
Rodriguez responded by e-mail, stating in relevant part: “PECG, once again, requests
information regarding the allegations against Ms. Fleming prior to tomorrow’s
investigatory interview. Without this information, our ability to represent her effectively
will be significantly hampered.” Still on March 10, Hoffman responded by e-mail but
did not acknowledge or reference PECG’s renewed request and instead indicated only
meaningful representation at an investigatory interview.

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that Hoffman would move the interview to March 12.
III. 	The Investigative Interview
When Hoffman convened the interview on March 12, she first instructed
Fleming that she had to answer all of Hoffman’s questions truthfully. Hoffman testified
that she next read aloud McCorkle’s allegations against Fleming and asked Fleming
for her response. According to Hoffman, she “essentially . . . asked [Fleming] if she
was in Ms. McCorkle’s cubicle blocking the exit or entry and if she stayed there until
she had received the [travel document].” Hoffman did not affirmatively offer an
opportunity for Fleming and Rodriguez to take a break and meet privately, but she
testified that she would have allowed a break upon request.
Fleming and Rodriguez both dispute Hoffman’s account of the interview.
According to Fleming, Hoffman never explained the allegations against her during the
interview, although by the end of the interview she understood the gist of the
complaint. Fleming characterized Hoffman’s questions as deceptive and designed to
get Fleming to incriminate herself. Rodriguez similarly testified that Hoffman neither
explained McCorkle’s allegations nor said that the Water Board considered its
investigation to involve alleged workplace violence. Rodriguez denied that Hoffman
indicated what allegations she was investigating prior to questioning Fleming.
Rodriguez described Hoffman’s questions as “piecemeal,” “unorthodox,” and
“disjointed,” leaving Fleming and Rodriguez to have to piece together the allegations.
Neither Fleming nor Rodriguez requested a break during the interview.6
6 The ALJ did not resolve the conflicting evidence as to what, if anything,
Hoffman said regarding the nature of the allegations before she began questioning

7
After concluding her investigation, Hoffman prepared an undated report finding
that Fleming’s conduct was unprofessional, rude, and violated the Water Board’s
workplace violence prevention policy. Hoffman forwarded her findings to Water Board
management for further action. On August 25, Hoffman e-mailed Fleming a one-page
Findings Memorandum, which notified Fleming of Hoffman’s findings and that she had
referred the matter to management for further handling.7
IV. 	Fleming’s Discipline
On September 20, the Water Board issued Fleming a Notice of Adverse Action
(NOAA) based on Hoffman’s findings regarding Fleming’s conduct in January 2020, as
well as other allegations that fell outside of Hoffman’s investigation. Regarding the
January 2020 incident, the NOAA stated that Fleming’s behavior was intimidating,
unprofessional, and violated the Water Board’s workplace violence prevention policy.
V. 	PECG’s Unfair Practice Charge
PECG filed this charge on September 3, 2020. The Water Board did not
respond to the charge. In June 2021, Rodriguez wrote to PERB’s Office of the General
Counsel (OGC) and stated that, pursuant to telephone discussions between
Rodriguez and OGC, PECG was modifying its charge by removing reference to certain
allegations. The day after PECG filed this modification, OGC issued the complaint in
this matter. We discuss these events at greater length, post.
Fleming. As we discuss post, the ALJ should resolve this dispute on remand.
7 At some point, Hoffman also notified Fleming that she concluded Fleming’s
discrimination complaint was unsubstantiated.

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DISCUSSION
When resolving exceptions to a proposed decision, we apply a de novo
standard of review. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 5.) For
the following reasons, we partially reverse and remand this matter.
I. 	Applicable Law
A. 	Interference with Representational Rights
A union has the right to represent an employee it exclusively represents in an
investigatory interview, and the employee has a corresponding right to union
representation. (Contra Costa, supra, PERB Decision No. 2652, p. 7; Capistrano
Unified School District (2015) PERB Decision No. 2440, pp. 10-14; Sonoma County
Superior Court (2015) PERB Decision No. 2409-C, pp. 13-14.) Under the Dills Act and
the other labor relations statutes we enforce, an employer interferes with union and
employee representational rights if it does not allow meaningful representation during
an investigative interview. (§ 3519, subds. (a) & (b); Contra Costa, supra, PERB
Decision No. 2652, p. 26, citing State of California (Department of Corrections) (1998)
PERB Decision No. 1297-S, adopting proposed decision at p. 12.)
As part of these protected rights, the union and the represented employee have
the right to receive information about the nature of any alleged wrongdoing sufficiently
in advance of the investigative interview to allow for consultation before, and thus
meaningful representation during, the interview. (Contra Costa, supra, PERB Decision
No. 2652, pp. 26-30.) The employer must provide more than merely a vague summary
such as “a vehicle accident you were involved in on [a specific date],” or
“insubordination and/or sabotaging of the [employer’s] mission.” (Id. at p. 27.) After

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receiving sufficient information, the union and employee have the right to consult for
an amount of time that is reasonable given the nature of the allegations and the
information provided. (Id. at pp. 29-30.) Assessing such issues is typically fact
intensive. (Id. at p. 30.)
Here, for instance, there is no dispute that on February 6, Shukry-Zeywar
e-mailed Fleming as follows: “[Y]ou approached Emma McCorkle twice at her cubicle
and demanded that she forward you the conference information. Although, she
provided you with the information, she wasn’t comfortable doing so and asked you
several times to get the information from me.” This e-mail, standing alone, did not
provide Fleming with notice that she had allegedly violated the Water Board’s
workplace violence prevention policy, much less information as to how she was
alleged to have done so.8
B. 	Bad Faith Bargaining By Refusing to Provide Necessary Information
In addition to prohibiting interference with protected rights, the Dills Act also
prohibits an employer from failing or refusing to meet and confer in good faith.
(§ 3519, subd. (c).) Pursuant to this duty, an employer must normally provide an
exclusive representative with “all information that is necessary and relevant to its right
8 The Water Board cites Pacific Telephone and Telegraph Co. (1982) 262
NLRB 1048 (Pacific Telephone) and argues that an employer need only provide “a
general statement as to the subject matter of the interview” in advance of an
investigatory interview. In Contra Costa, however, we specifically noted that PERB
precedent protects representational rights to a greater extent than National Labor
Relations Board precedent, and that we disagree with Pacific Telephone to the extent
it arguably allows an employer to provide very general notice of alleged misconduct.
(Contra Costa, supra, PERB Decision No. 2652, p. 27.) Instead, “our touchstone is
what is necessary to allow meaningful representation.” (Ibid.)

10
to represent bargaining unit employees regarding mandatory subjects of bargaining.”
(City and County of San Francisco (2020) PERB Decision No. 2698-M, p. 6.) Because
discipline is a mandatory subject of bargaining, information pertaining to actual or
potential discipline is presumptively relevant, even if the only contemplated disciplinary
forum is extra-contractual.9 (Contra Costa, supra, PERB Decision No. 2652, p. 9.)
Thus, while a charging party can allege a state employer violated Dills Act
section 3519, subdivisions (a) and (b) by denying a request for sufficient information to
allow meaningful representation at an investigatory interview, a charging party can
independently allege the employer violated its duty to meet and confer in good faith.
In this context, bad faith bargaining and interference can be alleged as
independent claims, because proving one does not necessarily prove the other.10 For
instance, because an investigatory interview can occur with minimal lead time (Contra
9 In Contra Costa, supra, PERB Decision No. 2652, Member Shiners disagreed
that an exclusive representative has a statutory right to request and receive information
from the employer solely for the purpose of representing an employee in an
extra-contractual disciplinary appeal. (Id. at pp. 34-36 (conc. opn. of Shiners, M.).)
Because neither party excepted to the ALJ’s dismissal of the bad faith bargaining
allegation, he expresses no opinion on whether the Water Board’s refusal to provide the
requested information violated Dills Act section 3519, subdivision (c).
10 If a charge or complaint alleges interference based upon the same conduct
giving rise to another claim, the interference claim is independent if it can be
established without the other claim being established. (County of San Joaquin (2021)
PERB Decision No. 2761-M, p. 18 [judicial appeal pending] (San Joaquin).) In
contrast, if it is impossible to establish interference without establishing the other
claim, then the interference claim is a derivative one. (Ibid.; County of Santa Clara
(2021) PERB Order No. Ad-485-M, p. 9.) In cases in which a charging party accuses
an employer of providing too little information to allow meaningful representation,
interference with representational rights is independent, as it can be established even
in the absence of bad faith bargaining or any other violation.

11
Costa, supra, PERB Decision No. 2652, p. 31, fn. 19), there may be no information
request until just before or even after the interview begins, and such a request may be
in the form of an employee’s question, e.g., “what are the accusations against me?”
Failing to answer that question sufficiently can violate Dills Act section 3519,
subdivisions (a) and (b) without violating subdivision (c). In other cases, an employer
may schedule an investigatory interview on a slower track, as in this case. In such an
instance, an employer may violate its duty to meet and confer in good faith if it
refuses, without an adequate basis, a union’s information request. And while failure to
provide information always constitutes at least derivative interference with protected
rights, it can also constitute an independent interference violation, for instance if it
leaves a union and employee without sufficient information to allow meaningful
representation at an investigatory interview.11
II. 	Application to This Case
On February 7, the Water Board repeatedly stated that it need not comply with
the obligations explained in Contra Costa, supra, PERB Decision No. 2652. However,
February 7 was more than six months before PECG filed this charge, and PECG has
11 In Contra Costa, supra, PERB Decision No. 2652, the union did not allege
that the employer interfered with representational rights by refusing to provide
sufficient information about the accusations to allow meaningful representation. (Id. at
p. 30.) Rather, its only claim was for failure to meet and confer in good faith based on
the employer’s refusal to provide copies of written complaints against two accused
employees. (Ibid.) We found no right to obtain such complaints at the investigatory
interview stage, though we noted that after the investigatory interview stage and in
advance of any pre-deprivation hearing pursuant to Skelly v. State Personnel Bd.
(1975) 15 Cal.3d 194, the employer must normally work with the union on any
necessary redactions or other privacy accommodations and normally must provide
such records. (Contra Costa, supra, pp. 9, 17 & 25.)

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not at any stage of this case asserted any exception to the six-month statute of
limitations set forth in Dills Act section 3514.5. Indeed, the complaint alleges violations
on March 12, and PECG’s exceptions do not ask us to consider any potential
violations before that date. PECG’s exceptions also abandon any claim under Dills Act
section 3519, subdivision (c). Accordingly, we address only the allegation that the
Water Board interfered with union and employee representational rights on March 12
by failing to afford an opportunity for meaningful representation. Before discussing that
allegation, however, we first consider whether the case processing history in this case
precludes any potential finding of liability.
A. 	Case Processing History
PECG summarized its charge in the opening paragraph, alleging that the Water
Board violated Dills Act sections 3515 and 3515.5 when it refused to provide PECG
and Fleming sufficient information to permit PECG to meaningfully represent her at an
investigatory interview. Sections 3515 and 3515.5, along with section 3519,
subdivisions (a) and (b), give rise to the protected union and employee
representational rights discussed above. On June 3, 2021, Rodriguez wrote OGC as
follows: “Pursuant to our telephone discussions on Friday, May 28, 2021, and Thursday,
June 3, 2021, Complainant PECG is modifying its Unfair Practice Charge to remove
reference to allegations concerning violations of section 3515 and 3515.5 of the Dills
Act, without prejudice.” This partial withdrawal did not mention the Dills Act prohibitions
on interference found at section 3519, subdivisions (a) and (b). One day after receiving
the partial withdrawal, OGC issued a complaint alleging the Water Board violated those
provisions, as well as section 3519, subdivision (c).

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It is unclear from the record why OGC solicited a partial withdrawal. If OGC
believed the subdivision (a) and (b) allegations were solely derivative of the bad faith
bargaining allegation, this belief was erroneous because on the facts alleged in PECG’s
charge, interference with representational rights can be established independently from
a bad faith bargaining violation. (See San Joaquin, supra, PERB Decision No. 2761-M,
pp. 18-22 [complaint alleges independent interference violation unless liability for
interference cannot be established independently of another violation].)12
In any event, the parties did not treat the partial withdrawal as curtailing PECG’s
ability to litigate its interference allegations. The parties continued litigating whether the
Water Board interfered with representational rights by failing to allow meaningful
representation on March 12. For instance, in its opening statement, PECG specifically
argued that the Water Board’s failure to provide sufficient information regarding
Fleming’s alleged wrongdoing prevented it from representing Fleming in a meaningful
manner at her investigatory interview. The Water Board did not object to PECG treating
the complaint as asserting interference with representational rights by failing to allow
meaningful representation on March 12. Indeed, the Water Board largely followed the
same framing. For example, in its opening statement, the Water Board specifically
12 OGC must issue a complaint based on all legal theories for which the alleged
facts state a prima facie case. (San Jose/Evergreen Federation of Teachers, AFT
Local 6157, and American Federation of Teachers, AFL-CIO (Crawford et al.) (2020)
PERB Decision No. 2744, p. 23; Hartnell Community College District (2015) PERB
Decision No. 2452, pp. 53-54.) Thus, even if PECG did not assert a bad faith
bargaining allegation, OGC had to consider that theory if it believed the facts
presented such a claim. However, that does not explain why OGC would solicit the
above-described partial withdrawal.

14
argued that the evidence would show that it “fully complied with the Dills Act and
provided Ms. Fleming and the Union with all of the information they needed to prepare
for and to participate in the investigative interview.” The parties proceeded to litigate
this issue, particularly disputing whether Hoffman, at the outset of the March 12
investigatory interview, provided sufficient details about the allegations that PECG
could have requested a break and thereafter adequately represented Fleming. Each
party examined and cross-examined witnesses on that question.
Ultimately, it is appropriate to consider independent interference claims for two
reasons. First, the complaint adequately alleged both bad faith bargaining and
independent interference claims. In the alternative, even were we to find that PECG
withdrew without prejudice its independent interference allegations, we would still
consider those interference claims under the unalleged violation doctrine given that:
(1) the Water Board had adequate notice and opportunity to defend against these
claims based on PECG’s opening statement; (2) the acts or omissions at issue are
intimately related to the subject matter of the complaint and are part of the same
course of conduct; (3) the parties fully litigated the allegations; and (4) the parties had
the opportunity to examine and cross-examine witnesses regarding the acts or
omissions at issue.13 (San Joaquin, supra, PERB Decision No. 2761-M, p. 22.)
The Water Board also rests a procedural defense on the words “prior to” in the
complaint’s central allegation: “On March 12, 2020, Respondent failed and refused to
13 Although we believe the interference allegations were fully litigated, in an
abundance of caution we direct the ALJ to offer the Water Board an opportunity to
reopen the record. If the Water Board chooses to do so, the ALJ shall afford both
parties an opportunity to present further evidence.

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provide the information described in paragraph 4 prior to an investigatory interview of
Fleming.” (Emphasis supplied.) The Water Board asks us to read this phrase as strictly
focusing on what occurred only before Hoffman met with Rodriguez and Fleming. But
determining what occurred at the outset of the interview is our only means of evaluating
the Water Board’s defense that Hoffman provided PECG and Fleming with sufficient
information and an (unstated) opportunity to consult before questioning commenced.
The Water Board nonetheless claims the words “prior to” prevent us from considering
whether Hoffman conducted the interview without providing sufficient information. These
notions depart significantly from notice pleading principles, and we reject them. (San
Joaquin, supra, PERB Decision No. 2761-M, p. 21.) The words “prior to” do not
preclude us from analyzing evidence regarding the outset of the investigatory interview
to determine whether Hoffman provided sufficient information and whether PECG could
then have meaningfully represented Fleming after taking a break to consult with her.
B. 	Resolving the Independent Interference Allegations
The ALJ found that the Water Board established a statute of limitations defense
to PECG’s bad faith bargaining claim.14 The ALJ then dismissed the entire complaint,
treating the interference claims as purely derivative. We reverse and remand for
consideration of the independent interference allegations discussed above.
As noted, determining whether an employer failed to allow meaningful
representation involves a fact-intensive inquiry. Here, that inquiry may turn, at least in
part, on a credibility determination the ALJ left unresolved. Specifically, Hoffman
14 We express no opinion on that issue, as PECG has abandoned the bad faith
bargaining claim that OGC pleaded in the complaint.

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testified that at the outset of the investigative interview she read aloud McCorkle’s
allegations against Fleming and would have permitted Rodriguez and Fleming to take
a break to consult before Fleming provided her side of the story. In their testimony,
Rodriguez and Fleming disputed that Hoffman read McCorkle’s allegations to them or
otherwise informed them of those allegations before questioning began. Liability thus
could turn, in part, on whether the ALJ credits Hoffman over Rodriguez and Fleming.
(Contra Costa, supra, PERB Decision No. 2652, pp. 29-30 [timing and substance of
employer’s disclosures, together with amount of time thereafter afforded for
consultation, are relevant considerations].) On remand, therefore, the ALJ should
consider witness credibility, among other relevant record components, in determining
whether the Water Board provided PECG and Fleming with the opportunity for
meaningful representation during the March 12, 2020 investigative interview.
ORDER
The Government Code section 3519, subdivision (c) allegation in Case
No. LA-CE-740-S is DISMISSED. The Government Code section 3519, subdivisions
(a) and (b) allegations are REMANDED to the Division of Administrative Law for
further proceedings consistent with this Decision.
Members Shiners and Paulson joined in this Decision.