Lake Elsinore Unified School District (PERB 1648E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LAKE ELSINORE TEACHERS ASSOCIATION,
CTA/NEA,
Charging Party,
V.
LAKE ELSINORE UNIFIED SCHOOL
DISTRICT,
Respondent.
Case No. LA-CE-4545-E
PERB Decision No.
	1648
June
	23,
	2004
Appearances: 	Joseph
R.
Colton, Attorney, for Lake Elsinore Teachers Association,
CTA/NEA; Atkinson, Andelson, Loya, Ruud & Romo by John W. Dietrich, Attorney, for Lake
Elsinore Unified School District.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Lake Elsinore Teachers Association, CTA/NEA
(Association)
of
a Board agent's partial dismissal
of
its unfair practice charge. 	In its charge,
the Association alleged that the Lake Elsinore Unified School District (District) denied teacher
Darla Ausman (Ausman) rights to union representation during an investigatory interview in
violation
of
the Educational Employment Relations Act (EERA) 1 sections 3543. l(a) and
3543.S(a) and (b). The Board agent dismissed this allegation.
1EERA is codified at Government Code section 3540, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

BACKGROUND
In relevant part, the charge, as amended, alleged that in or around December 2002,
Ausman, a teacher at Butterfield Elementary School (Butterfield) informed coworker Christine
Mann (Mann)
of
a comment made by another teacher, Cheri Smith (Smith) pertaining to
anonymous and demeaning notes and pranks, which had the effect
of
victimizing Mann. The
Association contends that the District had been aware
of
Mann's victimization and that Mann
feared for her safety.
On or around February 11, 2003, Ausman received a message from the Butterfield
principal requesting that she attend a meeting with Keith McCarthy (McCarthy), District
assistant superintendent, the next day at 2:30 p.m. to discuss a complaint filed by Mann against
Smith. The message explicitly stated that the meeting did not involve a disciplinary or union
issue but that the District just wanted Ausman' s input.
On February 12, 2003, Ausman met with McCarthy and Sukhi Sandhu (Sandhu), the
District's attorney, who was investigating Mann's complaint. Notwithstanding the District's
assurances, believing the meeting might lead to discipline, Ausman requested union
representation. The District denied her request and directed her to speak to Sandhu. The
Association alleged that Ausman's request continued throughout the meeting. During the
interview, Sandhu questioned Ausman about her knowledge
of
the interaction between the
other two teachers. It is alleged that Sandhu intimidated Ausman by arguing with and berating
her. During the interview, Sandhu became aware that Ausman had become the target
of
the
investigation but did not permit Ausman the right to representation. 	The Association contends
that Ausman has denied that the District offered her the opportunity to obtain representation at
the time the focus of the interview turned toward her.
2

On April 21, 2003, Ausman was disciplined and received a counseling memorandum
resulting from the February meeting with Sandhu.
The Association asserts that its right to be present at the February 12, 2003 meeting
falls under Redwoods Community College Dist.
v.
Public Employment Relations Bd. (1984)
159 Cal.App.3d. 617 [205 Cal.Rptr. 523] (Redwoods), which extended the union's right to
represent employees in meetings with employers beyond traditional Weingarten2 rights, i.e.,
the right to represent employees in their "professional and employment relationships with
public school employers for issues not necessarily leading to discipline." (EERA sec. 3540;
Regents
of
the University
of
California
v.
PERB (1985) 168 Cal.App.3d. 937 [214 Cal.Rptr.
698]; Sierra Joint Community College District (1983) PERB Decision No. 345.) In this case,
Ausman was meeting with an upper level administrator and the District lawyer in a matter that
involved the employment relations
of
the subject teacher and other teachers represented by the
Association. Regardless
of
Weingarten, the Association had the right to represent Ausman at
the meeting.
The District filed a response to the unfair practice charge. In its response, the District
alleges that the charge lacks specificity. (PERB Reg. 326153 ; United Teachers - Los Angeles
(Wyler) (1993) PERB Decision No. 970; Covina-Valley Unified School District (1993) PERB
Decision No. 985.) The District states that Mann filed a harassment complaint against Smith
in which Mann alleges that several items had been anonymously placed in her mailbox and that
these items caused her distress. Based on comments by Ausman, Mann believed that Smith
2National Labor Relations Board v. Weingarten (1975) 420 U.S. 251 [88 LRRM 2689]
(Weingarten).
3PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
3

had placed the items in her box and that her personal safety was in jeopardy from Smith.
Sandhu interviewed Mann, Ausman and other individuals to investigate Ausman's claim. In
contrast to Ausman, when Smith was interviewed, she was notified that she was entitled to
have a union representative since discipline might result from the interview.
The District denied Ausman's request for union representation at the beginning
of
the
interview because at that time there was no disciplinary action being considered against her.
Initially, the purpose
of
the interview was to find out what Ausman knew about the alleged
threat to Mann by Smith. At that time, the District alleges that Ausman was given the
opportunity to cease the discussion and have union representation present for the remainder
of
the interview. She declined the offer. At the end
of
the interview, Ausman stated that she
should not have shared anything with Mann since her comments needlessly caused Mann
concern.
BOARD AGENT'~ PARTIAL DISMISSAL
The warning letter acknowledged the parties' factual dispute regarding whether, during
the February
12
interview when the investigation turned to Ausman's conduct, the District
offered Ausman the right to obtain representation but Ausman declined the offer. That after
her initial request, Ausman did not again request representation for the remainder
of
the
meeting, is not in dispute. The warning letter, in part, advised the Association that the District
did not violate Ausman's Weingarten rights.
The Board agent dismissed the allegation that Ausman was unlawfully denied
representation during the February 12 meeting both because the circumstances did not meet the
elements
of
the Weingarten rule, as adopted by the Board in Rio Hondo Community College
District (1982) PERB Decision No. 260 (Rio Hondo), and, in the absence of a reasonable fear
of discipline under Redwoods, "highly unusual circumstances" did not exist. The Board agent
4

reasoned that the initial request for representation was denied because the meeting began with
no expectation that discipline would result. As the meeting progressed, the Board agent found
that it became clear that discipline was a possibility but Ausman did not revive her request.
Citing State
of
California (Department
of
Forestry) (1988) PERB Decision No. 690-S
(Forestry), the Board agent stated that an employer's obligation to permit representation is not
triggered until the employee requests representation and the employer has no obligation to
inform the employee
of
the right. The Board agent thus concluded that Ausman's failure to
request representation once the meeting began to focus on her conduct defeated this allegation.
The Board agent further found the Association's allegation that Ausman reasonably
believed that the meeting might lead to discipline alleges a legal conclusion not supported by
facts and so does not state a prima facie case.
DISCUSSION
Under the Weingarten rule, adopted by the Board in Rio Hondo, the charging party
must show that: 	(a) the employee requested representation, (b) for an investigatory meeting,
(c) which the employee reasonably believed might result in disciplinary action, and (d) the .
employer denied the request. In highly unusual circumstances, there may be the right to union
representation absent the employee's reasonable belief in disciplinary action. (Redwoods.)
In State
of
California (Department
of
Parks and Recreation) (1990) PERB Decision
No. 810-S (DPRI) and State
of
California (Department
of
Parks and Recreation) ( 1990) PERB
Decision No.
81
0a-S (DPRII), the Board found a right to representation in circumstances
similar to the case before us. In that case, Robert Murphy (Murphy), a park ranger, requested
representation in a meeting between himself and district Superintendent William Fait (Fait).
Fait declined representation stating that the interview would not result in disciplinary action.
Murphy then telephoned his union representative who in turn called Fait. Fait told the union
5

representative that the interview was to discuss a citation issued by Murphy and that no formal
action would result from the interview. Immediately before the interview, Murphy again
requested representation, which Fait again denied. Murphy was initially allowed to tape record
the meeting but was ordered to tum it
off
before the interview concluded. After the recorder
was turned off, Fait asked questions about other citizen complaints against Murphy. Soon
after, Murphy received a written counseling memo signed by Fait, stating in part that:
No further action regarding this complaint is planned. 	If similar
complaints are received regarding improper conduct on your part
and after investigation judged to be valid within the next
12
months, this memorandum may be made an attachment to such
corrective or adverse action as may be deemed necessary.
Under these circumstances, the Board found a violation
of
Murphy's Weingarten rights,
i.e., that the Department
of
Parks and Recreation interfered with Murphy's rights under the
Ralph
C.
Dills Act (Dills Act). 4 (DPRI, p. 4,
warning letter,
p.
l;
DPRII,
p. 4,
fn. 3.)
In this case, Ausman requested union representation at the outset
of
the meeting, was
denied union representation based on the District's statement that the meeting was not an
investigatory interview; however, the discussion during the meeting resulted in a disciplinary
memo being placed in Ausman's file. 	The District argues that Ausman could not have
reasonably believed that discipline would result from the interview at the time she requested
representation. We disagree. 	Given the highly charged atmosphere surrounding the public
victimization
of
Mann and the formal nature
of
the investigation, it was reasonable for Ausman
to believe that discipline could result from the interview. That belief was compounded by the
alleged hostile demeanor toward Ausman displayed by Sandhu, the District's attorney who
4The Dills Act is codified at Government Code section 3512, et seq. 	The parties'
collective bargaining agreement contained a "no reprisal" provision and a grievance procedure
culminating in binding arbitration. The Board thus deferred this aspect of the charge to
arbitration.
6

conducted the interview. That belief was also validated by the resulting discipline imposed
upon Ausman.
In Rio Hondo, citing Baton Rouge Water Works Company (1979) 246 NLRB 995 [103
LRRM 1056], the Board explained that the right to representation in investigatory interviews
attaches whether or not the interview is labeled
as
such:
' .. .Indeed,
if
the employer engages in any conduct beyond
merely informing the employee
of
a previously made disciplinary
decision, the full panoply
of
protections accorded the employee
under Weingarten may be applicable
....
'
In this respect, we find that the facts surrounding Ausman's interview
to
be analogous
to those in Redwoods. 	In Redwoods, the court found that the employee was entitled to union
representation because
of
the unusual facts in that case. Doris Hughey (Hughey), the
employee, had previously requested that the college dean review an unfavorable performance
evaluation by her supervisor. Hughey later resolved the problem with her supervisor and
withdrew her request to the dean. However, the dean insisted on continuing with the
interview. Hughey requested union representation. The meeting convened with the union
representative present. The dean directed the union representative not to participate in the
meeting since there were no disciplinary overtones, but only a factfinding matter regarding her
evaluation. During the interview, each item on the evaluation was discussed. 	The union
representative made a comment and the dean cut him off mid-sentence. 	Soon after the
meeting, the dean issued a memo expressing concern both with Hughey's and her supervisor's
performance; the memo was placed in Hughey's personnel file. 	The court found a violation
of
Hughey' s right to representation in that:
Hughey was required to participate in an interview which she no
longer sought, before a high-level District administrator, and to
respond to questions concerning her work performance. For all
[the dean's] assurances to the contrary, his inquiry amounted to
an assessment of what Hughey had considered a negative
7

personnel review. Unquestionably the interview was
investigatory and relatively formal. 	The atmosphere was
intimidating, and [the dean's] attitude toward [the union
representative] could only have made it more so. Hughey' s
concerns were implicit in her request for union representation at
the interview. Parenthetically, her concerns were in significant
measure borne out when, as a consequence of the interview, a
memorandum containing negative reflections on Hughey's
oerformance was olaced in her oersonnel file. 	In these unusual
circumstances Hughey was entitled to representation which she
did not receive, and CSEA was denied its right to represent her.
(Redwoods, at p. 625, emphasis added.)
In this case, the circumstances are very similar to the facts in Redwoods. Ausman
sought union representation at the outset of the meeting and was denied that representation; the
interview was formal and was conducted by the District's attorney; the District's attorney
exhibited a hostile demeanor toward Ausman; the interview involved investigation of a
harassment claim against an employee, albeit not initially Ausman; and the discussion at the
interview resulted in disciplinary action being taken against Ausman.
However, regardless of whether the discipline element existed at the onset of the
meeting, the District may not discipline Ausman after assuring her that no discipline would
result from the interview. Citing Forestry, the Board agent opined that the District had no duty
to inform Ausman of her right to representation. While it is true that the employer is not
required to inform an employee of her Weingarten rights, 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. (See DPRI, DPRII, and Redwoods.) Otherwise an employee must
repeatedly ask for representation or place herself in the difficult situation in which the union's
8

ability to represent her is weakened. 5 Such a consequence does not serve the Supreme Court's
purpose in Weingarten:
A single employee confronted by an employer investigating
whether certain conduct deserves discipline may be too fearful or
inarticulate to relate accurately the incident being investigated, or
too ignorant to raise extenuating factors
....
[R]espondent would
defer representation until the filing
of
a formal grievance
challenging the employer's determination
of
guilt after the
employee has been discharged or otherwise disciplined. At that
point, however, it becomes increasingly difficult for the employee
to vindicate himself, and the value
of
representation is
correspondingly diminished. The employer may then be more
concerned with justifying his actions than reexamining them.
(Weingarten, at pp. 262-264.)
In light
of
the above, we find that the District denied Ausman' s rights under BERA
section 3543.S(a) and concomitantly denied the Association its right to represent Ausman
under EERA section 3543.S(b).
ORDER
The Board REVERSES the Board agent's partial dismissal in Case No. LA-CE-4545-E
and REMANDS this case to the Office
of
the General Counsel consistent with this Decision.
Member Neima joined in this Decision.
Chairman Duncan's dissent begins on page 10.
5Compare with Fremont Union High School District (1983) PERB Decision No. 301, in
which an employee complained about the district's computation
of
her sick leave. The district
gave her the opportunity to audit her sick leave records under the observation
of
her
supervisor. The employee requested union representation but the request was denied. 	The
Board deemed the audit meeting to be a precursor to the grievance procedure and found that
the employee was denied the right to representation. Although the employee did not renew her
request for representation during the audit meeting, the Board opined that there was no reason
to believe that the request would not be denied and that a new request would thus be futile.
The Board found therefore that the employee did not waive her right to representation by not
renewing her request for representation.
9

DUNCAN, Chairman, dissenting: I respectfully dissent. From all the information
Darla Ausman (Ausman) received from the Lake Elsinore Unified School District (District)
prior to meeting with the District lawyer ( and even at the time she requested representation
before the meeting began) there was nothing contemplated by the District in regard to
discipline of Ausman. 	The reason the Board agent dismissed the Weingarten 1 claim was
because a prima facie case was not made as to that claim. This was a partial dismissal and the
Board agent issued a complaint related to the other charges.
Even after the warning letter from the Board agent, Ausman did not state in her facts
any reasons why she thought she would face discipline at or following that meeting.
The test to determine whether a prima facie case has been set out includes the element
that at the time the employee requests representation she must, "reasonably believe the meeting
might lead to discipline." (Rio Hondo Community College District (1982) PERB Decision
No. 260.)
Without facts to show why she reasonably believed that she could face discipline she
has not met all of the elements of the test. Further, in stating a prima facie case, the charging
party must state the "who, what, when, where and how" of an unfair practice. (State of
California (Department of Food and Agriculture) (1994) PERB Decision No. 1071-S, citing
United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Speculating after
review of the disciplinary letter is inappropriate. Because she did not plead her case with the
necessary specificity on this charge it should be dismissed.
1
National Labor Relations Board v. Weingarten (1975) 420 U.S. 251 [88 LRRM 2689]
(Weingarten).

When the tone of the meeting with the District lawyer changed, Ausman did not make a
new request for representation. I agree with the Board agent that it was Ausman' s
responsibility to make that request. When the denial of representation was issued by the
District there was no thought that the meeting could lead to discipline towards Ausman. 	Only
Ausman would have known if there were reasons, then unknown to the District, that it might.
Ausman chose not to plead facts to support her position. 	As the majority correctly
noted, the facts pled are taken at face value and assumed to be true. However, the legal
conclusions are not, as the Board agent indicated. 	Issuing a complaint in these circumstances
is based on speculation as to what Ausman was thinking when she requested representation
before the meeting and why she did not later request it during the meeting. 	To me, the
question to be addressed is not, "How many times do you have to ask for representation?" but
rather "What do you have to include to state a prima facie case?" The Board agent advised
Ausman of the need for additional facts ( contrary to what she says in her appeal of the Board
agent's dismissal). Ausman chose not to provide them. Because of her choice I believe the
partial dismissal was appropriate and the complaint that issued is on the only issues appropriate
to proceed in this case.
Because a complaint already issued related to the Lake Elsinore Teachers Association,
CT A/NEA' s right to represent Ausman, I believe it is unnecessary and inappropriate to
address that issue here.
11