State of California, (Department of Consumer Affairs) (PERB 1711S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA STATE EMPLOYEES
ASSOCIATION, LOCAL 1000, SEIU, AFL-CIO,
CLC,
Charging Party,
v.
STATE OF CALIFORNIA (DEPARTMENT OF
CONSUMER AFFAIRS),
Respondent.
Case No. SA-CE-1385-S
PERB Decision No. 	1711-S
November 	2 3 , 	2004
Appearances: 	Lois Kugelmass, Senior Labor Relations Representative, and Tiffany Harris,
Labor Relations Representative, for California State Employees Association, Local 1000,
SEIU, AFL-CIO, CLC; State of California (Department of Personnel Administration) by
Robert J. Allen, Labor Relations Counsel, for State of California (Department of Consumer
Affairs).
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the State of California (Department of Consumer
Affairs) (State or Department) to an administrative law judge's (ALJ) proposed decision. 	The
ALJ found that the State violated the Ralph C. Dills Act (Dills Act)1 by interfering with the
rights of bargaining unit employees when it disciplined a supervisor; and failing or refusing to
provide necessary and relevant information.
T The Dills Act is codified at Government Code section 3512, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

The Board has reviewed the entire record in this case, including the proposed decision,
hearing transcript and exhibits, and the filings of the parties.2 The Board hereby reverses the
ALJ's proposed decision and dismisses the unfair practice charge and complaint in accordance
with the following discussion.
FACTUAL SUMMARY
The Bureau for Private Postsecondary and Vocational Education (BPPVE) is located
within the Department. 	The functions of the BPPVE were originally performed by an
independent agency, the Council on Private Postsecondary and Vocational Education
(Council). The Council's authority to operate sunset in December 1997, and the BPPVE
assumed the duties of the Council in January 1998.
The work of the BPPVE involves the licensing and oversight of privately owned
postsecondary schools and education programs. The BPPVE is comprised of several units,
including the Degree and Non-Degree Units. The Degree Unit reviews applications for
licensing of private schools that confer postsecondary degrees. 	The Non-Degree Unit
processes applications from vocational or technical schools that provide training in a broad
range of areas such as cosmetology, computers, culinary arts and automotive repair.
After a school owner files a licensing application, an initial review of the application
must be completed within 30 days. 	The school owner is then notified of any deficiencies in the
application and provided an opportunity to submit additional information. 	A further
comprehensive review includes an evaluation of areas such as the proposed program's
curriculum, facilities, instructors, library and financial resources. 	If appropriate, temporary
approval is granted and the school owner can begin to operate. A site visit is conducted prior
to a final determination whether to approve an application.
2The Department's request for oral argument was denied by the Board on June 15, 2004.
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Sheila Hawkins (Hawkins) is employed as an education administrator assigned to
supervise the Degree Unit. Hawkins previously served as deputy director of the Council.
After the Council sunset and its work moved to the BPPVE, Hawkins transferred to the
Department. 	Instead of being assigned to the BPPVE, however, Hawkins was placed in the
Bureau of Automotive Repair. 	After Hawkins filed an appeal, the State Personnel Board
(SPB) ordered the Department to assign her as an education administrator in the BPPVE.
Hawkins returned to the BPPVE in February 1999.
Michael Abbott (Abbott) became the chief of the BPPVE in November 1999. Hawkins
applied for the position of deputy chief, but withdrew from consideration after the interview
process. 	Hawkins accused Abbott of breaching a promise to select her as the deputy chief.
Bill Young (Young), the education administrator for the Title 38 Unit, was appointed deputy
chief in June 2000.
When Abbott arrived at the BPPVE, there were numerous working out of class
grievances pending. In December 1999, Marcia Trott (Trott) and Latanaya Johnson (Johnson),
both staff services analysts in the Degree Unit, filed out of class grievances asserting that they
were performing the work of education specialists. 	Eventually, the Department of Personnel
Administration (DPA) concluded that Trott and Johnson were working out of class and ordered
that they receive out of class pay. The BPPVE, in consultation with Department management,
decided to allow Trott and Johnson to continue working out of class. The BPPVE initiated the
process to promote them to education specialists and their promotions formally became
effective on November 1, 2000.
Prior to July 2000, the Legislature became concerned with the timely processing of
applications filed with the BPPVE. The Legislature included language in the 2000/2001 State
budget which required the BPPVE to provide quarterly status reports on its backlog.
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In order to prepare the reports to the Legislature, several meetings were held with unit
managers to develop a quarterly report form. Young sent a memo to unit managers instructing
them to count each application that was more than 365 days old as backlogged. Young
established this definition for purposes of the quarterly reports after consulting with legislative
budget committee staff. 	Once data was received from each unit manager, the information was
consolidated into a report and submitted to the Legislature.
Hawkins did not agree with Young's definition of a backlogged application. 	She
instructed the Degree Unit staff to identify an application as backlogged if it had not been
"touched" within one year. 	Hawkins also informed her staff that applications were complete
once temporary approval had been granted. 	While the Degree Unit had applications pending
since at least 1996, the unit did not report a backlog.
The BPPVE and the Department also decided in July 2000 to examine the organization
and duties of the BPPVE to meet workload issues and make sure that staff did not work out of
class. With the assistance of DP A, the BPPVE conducted a study of the work that needed to be
accomplished, the legal requirements and an evaluation of the employee skills necessary to
perform the work. There were numerous meetings where unit managers provided input
regarding the reorganization plan. Hawkins participated in these meetings. Upon completion
of the review, the study concluded that the work could be accomplished by assigning one
senior education specialist to each unit. The remainder of the positions in the units would be
classified as education specialists.
Hawkins did not agree with the reorganization plan. Under the prior Council, the
Degree Unit had been staffed with senior education specialists. Hawkins believed that the
work of the Degree Unit was sufficiently different from that of the other units and that it
should be performed only by senior education specialists. 	Abbott testified that Hawkins1
A
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comments were taken into consideration but she was told that only one senior education
specialist would be assigned to each unit. 	Hawkins was informed numerous times of this
decision and was told that she needed to manage the workload and supervise staff to ensure
that staff was not working out of class. 	There were discussions with Hawkins regarding how
work should be assigned to avoid staff working out of class. 	The more complex applications
were to be assigned to the Degree Unit's senior education specialist. A master's degree level
program and above is typically considered a more complex application.
Implementation of the reorganization plan began in September 2000. On October 2,
2000, Trott and Johnson filed a second out of class grievance asserting that they were
performing the work of senior education specialists.
An arbitration hearing was held in January 2002 to take evidence on Trott's and
Johnson's out of class grievance. Hawkins was subpoenaed to testify. Prior to the hearing,
Young and BPPVE Administrative Officer Sylvia Ramos (Ramos) spoke with Hawkins, telling
her that the Department was upset and wanted to win the grievance. Hawkins testified that
Young and Ramos, "more than hinted that DCA would be very unhappy if they lost this."
Hawkins testified at the arbitration hearing that under the prior Council the Degree Unit
was staffed by senior education specialists. 	She testified that although she had an obligation as
the supervisor to ensure that staff was not working out of class, she did not differentiate
between the workload assigned to the education specialists and the senior education specialist.
She stated that the work was divided up among the Degree Unit staff as it came in the door.
Hawkins testified that Trott and Johnson were performing the work of senior education
specialists.
A few days after the hearing Young accused Hawkins of "costing DC A the hearing."
The following week, Young initiated a schedule of weekly meetings with Hawkins to review
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5

the Degree Unit's workload. Hawkins testified that Young paid particular attention to the work
of Trott and Johnson, questioning their handling of applications and their recommendations.
Abbott and Young had been receiving complaints from school owners about lengthy
delays in the processing of their applications. 	A review of the quarterly report provided to the
Legislature, however, showed no application backlog in the Degree Unit.
On June 6, 2002, Young went to Hawkins' office to request that she provide
information on the discrepancy in the backlog reports to the Legislature. Hawkins believed
that Young's request for workload information was unreasonable. 	She viewed the request as
harassment and an attempt to discredit her. Hawkins1 voice got louder and she became visibly
angry. Hawkins stated that her unit was not the only one with backlogs. 	She told Young that
she was going to "scorch this place" and be "the only one standing when it is over." When
Young stood up to leave, Hawkins also said, "I'm very angry with [Ramos]. She tried this with
me once before and she knows who won that."
The incident was witnessed by Abbott's secretary, Anita Keaton (Keaton). 	She stated
during the investigation conducted by the California Highway Patrol (CHP) that Hawkins
appeared angry and she raised her voice to Young. Keaton also said that she had felt
threatened by Hawkins in the past.
Hawkins denied making a threatening statement. 	She later explained to CHP
investigators that her statement was made in reference to an application she was working on.
She indicated that she was going to take a "scorch the earth" approach to the application. CHP
investigators concluded that Hawkins made the statements as described by Young.3
The CHP's investigative report was admitted into evidence at the PERB hearing by
California State Employees Association, Local 1000, SEIU, AFL-CIO, CLC (CSEA). The
State speculated that the report was provided to CSEA by Hawkins.
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Young immediately reported Hawkins1 comments to Abbott and Ramos. Young
provided a written summary of the meeting in an e-mail to Department Personnel Director
Sandra Mayorga (Mayorga). Young also reported that Ramos "expressed extreme concern for
her personal health and safety based on Ms. Hawkins1 expressed anger toward her." Young's e-
mail continued, "I too feel very threatened and concerned with Ms. Hawkins' continued and
recent meeting anger and threats." Young concluded:
V
There are also other documented incidents of Ms. Hawkins1
threats to the Bureau Chief and her combative and insubordinate
behavior is detrimental to the Bureau and its employees. Thus, I
believe her continued erratic and angry behavior require us to
consider her threats serious and possibly could jeopardize the
health and safety of Bureau employees.
(Department's Exhibit 506.)
Abbott consulted with the Department's personnel and internal affairs units, and the
decision was made to place Hawkins on administrative time off pending an investigation.
On June 7, 2002, Young asked Hawkins to report to the conference room. Two
investigators from the Department's Division of Investigation (DOI) gave Hawkins a memo
informing her that she was being placed on administrative time off. 	The investigators
accompanied Hawkins to her office to retrieve her personal belongings and then escorted her
from the building.
On June 13, 2002, Denise Brown, Department chief deputy director, made a written
request to the CHP to conduct an investigation into whether Hawkins violated the workplace
violence policy.4 Due to concern over the accuracy of the backlog information submitted to
the Legislature, the investigation was expanded to include a review of the unit's workload data.
4The Department has previously requested that the CHP investigate workplace violence
complaints. 	Hawkins filed a workplace violence complaint against Abbott in October 2001
that was investigated by the CHP.
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On June 28, 2002, CHP investigators advised Mayorga that Hawkins1 return to work
prior to the completion of the investigation would be detrimental as she would have access to
witnesses. Mayorga obtained an extension of Hawkins1 administrative leave from DPA to
July 22, 2002. On July 15, 2002, a second extension request was made by CHP investigators
to further extend Hawkins' leave pending completion of the investigation.
CHP investigators conducted interviews of 20 BPPVE and Department staff members,
including managers, other supervisors and employees assigned to the Degree Unit. In
August 2002, the Department issued notices to Degree Unit employees directing them to
appear for an interview with CHP investigators. The notice stated, in part:
You are notified that you will be the subject of an administrative
interrogation on . . . . 	The California Highway Patrol is presently
conducting an internal investigation into allegations concerning
misrepresentation of official reports.
The interviews were tape-recorded and each Degree Unit employee was represented by
CSEA. 	At the beginning of the interview, Degree Unit staff were informed they were not the
subject of the investigation. 	Degree Unit employees were questioned about their knowledge of
statutory and regulatory requirements in the processing of applications and actions taken to
track and monitor the status of pending applications.
After the employee interviews had been completed, CSEA Senior Labor Relations
Representative Lois Kugelmass (Kugelmass) wrote to the Department on August 21, 2002,
requesting information about the investigation regarding the alleged "misrepresentation of
official reports," and about a separate employee personal safety issue. Regarding the
"investigative interrogation," Kugelmass requested that the Department provide: 	(1) copies of
the "official reports" referenced in the notice of investigative interrogation; (2) the alleged
"misrepresentations" being investigated; (3) the Department's request to CHP to conduct the
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investigation; and (4) the results of the investigation, including written or electronic reports,
recommendations, recordings and background material.
Department Labor Relations Officer Tonya Blood (Blood) responded on September 5,
2002, providing information regarding the Department's efforts to address the safety issue.
Blood also informed CSEA that she was advised that the CSEA represented employees were
"not" the subject of the CHP investigation. (Emphasis in original.) She stated:
Given the fact that these employees are not the subjects of the
investigation, CSEA is not entitled to the requested information.
Blood invited Kugelmass to contact her if she had any questions about the Department's
response. 	Kugelmass did not clarify or renew her request for information regarding the CHP
investigation.
The CHP's investigative report was issued on September 6, 2002. The report made
several findings regarding Hawkins' supervision of the Degree Unit. 	The report made no
findings regarding the CSEA represented employees. 	CHP investigators concluded that
Hawkins failed to ensure that employees were completing job functions satisfactorily.
Although Hawkins acknowledged that it was her job to provide training for her staff, the
Degree Unit staff had never received any formal training. 	As a result, there was no
consistency in interpretation of statutes and regulations between staff members. 	Hawkins told
investigators that she did not want to tell her specialists what to do because they were required
to make professional judgments.
Investigators also found that Hawkins had not developed a consistent method for her
staff to track the progress of their workload. 	Applications were not assigned when they came
into the Degree Unit. Rather, they were placed on a shelf and staff would pick up the next
application as their workload allowed. 	Oftentimes, applications sat on the shelf well beyond
the initial 30-day preliminary review timeframe. 	Hawkins also gave directions to her staff that
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were inconsistent with management's directives when she instructed them to identify backlog
as any application that had not been touched. 	The report concluded that Hawkins' ineffective
supervisory style constituted "inexcusable neglect of duty and inefficiency."
CHP investigators also concluded that while the statements Hawkins made in her
meeting with Young did not rise to the level of a criminal threat, Hawkins had violated the
Department's workplace violence policy.
Just prior to the release of the CHP report, the arbitrator issued her decision on
September 4, 2002, granting Trott's and Johnson's out of class grievance. 	Thereafter, the
BPPVE and the Department decided to discontinue working the education specialists out of
class. 	Trott, Johnson and Education Specialist Shirley Geddes (Geddes)5 were notified on
September 9, 2002, that they would be transferred to other units within the BPPVE to remedy
their performing out of class work.6
Following the release of the arbitrator's decision, Geddes filed an out of class grievance
on September 13, 2002, stating that she had also been working out of class as a senior
education specialist. On September 19, 2002, the Department granted Geddes' grievance
informing her that she would receive out of class pay.
On September 12, 2002, the Department notified Hawkins that the investigation was
complete and she could return to work. Hawkins was also informed that she would be issued
an adverse action and demotion. Hawkins returned to work on September 16, 2002, and the
adverse action was issued on October 3, 2002.
5Geddes came to the Degree Unit in 2001. She was not a party to the out of class
grievance filed by Trott and Johnson in October 2000.
6Section 14.2 of the parties' MOU states, in part:
(B)(4) Out-of-class work may be discontinued by departments at
any time;
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The adverse action reported instances of Hawkins' failure to manage Degree Unit staff
and its workload. Most of the failure to manage allegations derived from the findings of the
CHP report. The adverse action also alleged that although Hawkins participated in the
reorganization study and stated that she was aware of her responsibility to ensure that staff was
not assigned work out of class, she failed to ensure that employees in the Degree Unit did not
perform out of class work. 	The adverse action noted that Hawkins allowed staff to choose to
perform higher-level duties and she testified at the arbitration hearing that the two education
specialists were performing senior education specialist level work.
The adverse action also alleged eight incidents of rude and unprofessional contact with
Young, Abbott and other BPPVE staff. 	These incidents began on August 12, 2000, when it
was alleged that Hawkins inappropriately questioned an employee about his role in the annual
report. On January 12, 2001, Hawkins received a counseling memo regarding both
insubordinate conduct when she refused to follow directions from Abbott to allow him to
review a notice before she mailed it to postsecondary schools and the anger she demonstrated
during their meeting. Hawkins also repeatedly told a secretary that she did not look happy and
commented on her hairstyle. Young verbally counseled Hawkins regarding these comments.
Hawkins1 "scorch the place" comments were also cited. The remaining allegations accused
Hawkins of speaking loudly and rudely to staff regarding her efforts to obtain office keys on
her return to the office on September 16, and making inappropriate comments to the supervisor
of the Non-Degree Unit about her work situation.
Hawkins appealed the adverse action to the SPB. During the course of the hearing,
allegations concerning Hawkins1 management of the Degree Unit and her arbitration testimony
were withdrawn. No evidence was provided at the PERB hearing on the reasons for the
withdrawal of these allegations from the adverse action.
11

The SPB issued a decision on September 30, 2003, upholding some and dismissing
other allegations of rude and unprofessional conduct.7 The SPB modified the discipline from a
demotion to a six-month reduction in salary.8
West Haven Investigation
An application seeking approval of the West Haven University was filed by its owner
on November 30,2000. Temporary approval was granted on June 1, 2001. In October 2001,
the application was reassigned to Trott for a comprehensive review.
On April 29, 2002, West Haven submitted an application to add a Bachelor's of Science
in Nursing degree to its program.
In early June 2002, the applicant's level of communication with BPPVE staff increased.
The applicant called and sent lengthy e-mails and faxes expressing his frustration with the
delay in approving his application. 	He complained of the cost of maintaining facilities and
staff while waiting approval of the application. 	In addition to BPPVE and Department staff,
some of the applicant's e-mails were directed to legislators and the Governor. His
e-mail indicated that he had been in communication with both Trott and Abbott, and both had
made multiple promises over the prior months that the application would soon be resolved. In
March 2002, Abbott indicated to the applicant there was a possibility that his application
would be denied, but that a final decision had not been made.
There was evidence of counseling or progressive discipline against Hawkins prior to
the notice of adverse action. 	The record established that Hawkins was verbally counseled on
several occasions regarding her responsibility to manage staff and workload; counseled by
Young regarding her inappropriate comments to a secretary; and she was given a counseling
memo regarding insubordinate conduct and her expression of anger during a meeting with
Abbott.
The ALJ took administrative notice of the SPB decision as a public record and
considered it in the preparation of the proposed decision.
12
8

Trott became concerned with the tenor and frequency of the applicant's
communications. Some e-mail messages were sent in the early hours of the morning. His e-
mail referenced his military background and his expertise in bioterrorism.9 The applicant
complained about abuses by the government and compared himself to Rodney King. 	He also
threatened to sue individuals involved in the delay of his application. The applicant pleaded
for a decision either approving or disapproving his application. 	Trott testified at the PERB
hearing, "I didn't want to be the one that knew that Ted Kaczynski was around and nobody
figured out that he was the Unabomber until he blew somebody up."
On July 15, 2002, Trott sent an e-mail to Abbott stating that she had just picked up
another 10 page fax from the applicant. 	She found his writings disturbing and considered him
dangerous and believed him capable of violence.
On July 15, 2002, Abbott contacted the applicant and advised him that his application
was nearing completion. He also informed the applicant that his communications with BPPVE
staff were "inappropriate and counterproductive." 	He directed the applicant to communicate
only with Abbott and Young. 	The applicant complied with the request and further
communications were directed to BPPVE managers.
Young discussed the situation with the CHP. In addition, the DOI was contacted to
evaluate the applicant's conduct and assess whether he was a threat. Abbott informed Trott and
other Degree Unit employees of these actions on July 18, 2002.
During this period, Trott was working with Department legal counsel Kristy Shields
(Shields) to evaluate what evidence might be necessary to make a case for denial of the West
Haven application.
9The applicant is a retired Navy Master Chief Hospital Corpsman. 	The West Haven
University program offered free training to healthcare professionals in the treatment of victims
of biological terrorism.
13

Abbott had numerous conversations with Shields about the West Haven application.
Abbott testified that Shields advised him "that there was insufficient evidence to make a
plausible case for denial that would likely stand up in an administrative hearing. It was also
her opinion that we had exhausted all of the possibilities for gathering that sort of evidence."
On July 23, 2002, Abbott granted temporary approval of the West Haven application to
add the Bachelor of Science in Nursing to its program. A comprehensive review of the
application was still required.
On July 29, 2002, DOI Senior Investigator Kim Trefry (Trefry) interviewed Trott for
approximately 30 minutes regarding her complaints about the applicant. 	Trefry questioned
Trott about the timelines for the West Haven application and asked her about her concerns for
her safety.
Trefry did not speak to other employees in the Degree Unit because Trott did not tell
her that they were also concerned about the applicant's communications. 	Trefry consulted with
a member of the Governor's protective detail after noting that the Governor had also received
an e-mail from the applicant. 	The protective detail reviewed the information Trefry provided
and information in its database, and concluded that the applicant was not a threat. Trefry did
not interview the applicant but she did check various law enforcement resources and
investigated his background to determine if there were any other concerns. 	Trefry ultimately
concluded that the applicant had not committed any criminal acts and his behavior did not rise
to the level of an immediate threat. 	She characterized the applicant's repetitious
communications as "annoying," but noted that they did not reoccur after BPPVE managers
spoke with him. Trefry testified that she prepared an 8 to 15 page investigative report.
In an e-mail to Abbott dated July 31, 2002, Trott expressed concern for her safety and
requested that the West Haven application be reassigned. Her e-mail also discussed some of
14

the staff deliberations regarding application. 	Trott stated that she had notified outside expert
witness Dr. Faye Bower of Abbott's reasons for granting temporary approval. 	Trott concluded
by noting that she had copied CSEA on her e-mail, "because of my continuing concern
regarding the retaliatory and punitive actions of you and [Young]."
On August 15, 2002, Trott and Kugelmass met with Young. Trott expected Young to
discuss her request for reassignment. 	Instead, Young counseled Trott for disclosing
confidential information regarding the West Haven deliberations to outside parties. 	When
pressed about Trott's safety concerns, Young stated that the complaints about the applicant had
been "found unwarranted." A counseling memo dated September 19, 2002, directed Trott to
refrain from sharing confidential information with outside parties.
On August 22, 2002, CSEA filed a health and safety grievance on behalf of Trott,
alleging that Trott had been threatened with adverse action for bringing her safety concerns to
CSEA. Kugelmass also submitted an information request dated August 21, 2002, seeking, "the
findings and conclusions of the investigation by Trefry and all reports, summaries, notes,
recordings, and documents, either written or electronic, upon which DOI and/or the Bureau
relied on in its decision not to reassign Trott."
Department Chief Deputy Denise Brown (Brown) responded to the grievance on
August 26, 2002. 	She found that all health and safety issues were appropriately addressed in
accordance with Department policies. Brown also noted that Trott's request had been granted
and the West Haven application had been reassigned. 	Thereafter, CSEA withdrew the
grievance.
On September 5, 2002, Blood responded to CSEA's request for information concerning
the West Haven investigation, stating in part:
Although this seems to be a moot point, given that this matter
seems to be resolved, the department is unable to provide the
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requested information at this time. The department's Division of
Investigation has continued to proceed with the investigation of
this matter and the findings will be available in the near future.
Once the findings are made available, Ms. Trott will receive a
formal response from the Department and a courtesy copy will be
provided to you.
DOI Supervising Investigator Lynda Swenson sent a memo to Trott dated September 6,
2002, regarding the investigation of the West Haven University owner. The memo stated in
part:
The assessment has been completed and it was determined that
the allegations against [the applicant] were "Unfounded". 	[The
applicant's] behavior did not rise to the level of criminal conduct
and he did not pose an immediate threat to employees at BPPVE.
(Emphasis in original.)
On September 23, 2002, Kugelmass renewed her request for information concerning the
West Haven investigation. 	Kugelmass acknowledged the Department's conclusion that the
applicant was not a threat but stated that, "neither Ms. Trott nor the Union have any evidence
that DOI conducted a thorough investigation."
The Department has not provided the requested information.
POSITIONS OF THE PARTIES
CSEA alleges that the State interfered with the rights of bargaining unit employees
when it disciplined the supervisor for testifying in support of the out of class grievance. 	CSEA
also asserts that the requested CHP investigative information is necessary and relevant to its
representation of the Degree Unit employees because they were interviewed by the CHP.
Finally, CSEA contends that the West Haven investigative information is relevant to determine
whether the Department conducted a thorough investigation.
The State responds that the evidence does not establish that it interfered with employee
rights when it disciplined Hawkins. The State asserts that Hawkins would have been
disciplined regardless of her testimony at the arbitration hearing. 	The State contends that there
16

is ample evidence to demonstrate a pattern of antagonistic conduct by Hawkins toward her
supervisors and others and this antagonism both predates and postdates her grievance
testimony. 	In addition, Hawkins' arbitration testimony revealed that she was not properly
managing the unit's workload and staff assignments, contrary to her earlier representations to
BPPVE managers.
The State also argues that the principles of collateral estoppel should apply. The SPB
has already concluded that Hawkins' engaged in inappropriate behavior. The State contends
that PERB is precluded from relitigating matters addressed in the SPB hearing.
In regard to the information request allegations, the State contends that CSEA is not
entitled to details of an investigation of a supervisor. 	The bargaining unit employees were not
the subject of the CHP investigation. The employees were simply witnesses who had pertinent
information and their interviews were a normal part of an investigation. The State asserts there
is no evidence this information was relevant and necessary to CSEA's representation of
bargaining unit employees or that any need for the information by CSEA would, on balance,
prevail over constitutional privacy rights.
Concerning the West Haven investigation, the State contends that criminal
investigations are exempt from disclosure under the Public Records Act. The State asserts that
to permit further prying into a citizen's affairs by CSEA would violate the citizen's
constitutional privacy rights, especially where, at Trott's request, further contact with the
citizen was eliminated.
DISCUSSION
Dills Act section 3515 grants state employees the right to form, join and participate in
the activities of employee organizations for the purpose of representing them in matters of
employer-employee relations. 	Section 3519 prohibits the State employer from discriminating
17

or retaliating against employees for participating in these activities. The Legislature has,
however, expressly excluded supervisors from the definition of employee under the Dills Act
(Sec. 3513(c)) and PERB does not have jurisdiction to remedy supervisors' claims of unfair
labor practices. 	(State of California. Department of Health (1979) PERB Decision No. 86-S
(Department of Health); State of California (1980) PERB Decision No. 118-S.)
An employer's discipline of a supervisor may be found unlawful, however, if it
interferes with bargaining unit employees' exercise of their rights under the Dills Act. In
Department of Health, the union alleged that the rights of supervisors were impinged when the
department informed them they could not hold office in employee organizations. 	While PERB
dismissed the charge for lack of jurisdiction to enforce the rights of supervisors, the Board
suggested that action taken against a supervisor may interfere with employees' Dills Act rights.
In granting the union an opportunity to amend its charge, the Board stated:
An employer's conduct against supervisors is generally not
grounds for an unfair practice charge. However, if there is a
reasonable inference that the conduct had an adverse effect on
nonsupervisory employees in the exercise of their rights, an
unfair practice charge will be entertained vis a vis the
nonsupervisory employees.
Because PERB has not directly addressed the issue of whether an employer's discipline
of a supervisor interfered with employees' protected rights, it is appropriate to look to cases
arising under the National Labor Relations Act (NLRA)10 for guidance.
The NLRA similarly excludes supervisors from coverage under that act. 	The National
Labor Relations Board (NLRB) will not remedy discharges of supervisors for participation in
union activity, except in limited circumstances. In Parker-Robb Chevrolet, Inc. (1982)
262 NLRB 402 [110 LRRM 1289] (Parker-Robb). the NLRB described the circumstances
under which it would consider reversing a supervisor's discharge.
10The NLRA is codified at 29 U.S.C., sec. 151, et seq.
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[A]n employer may not discharge a supervisor for giving
testimony adverse to an employer's interest either at an NLRB
proceeding or during the processing of an employee's grievance
under the collective-bargaining agreement. 	Similarly, an
employer may not discharge a supervisor for refusing to commit
unfair labor practices, or because the supervisor fails to prevent
unionization. In all of these situations, however, the protection
afforded supervisors stems not from any statutory protection
inuring to them, but rather from the need to vindicate employees'
exercise of their [rights under the NLRA].
(Parker-Robb at 402-403; fns.. omitted.)
The NLRB's analysis continues with a determination of the employer's motivation in
the supervisor's discharge. When one of the limited circumstances above are present, and a
"mixed motive" for the employer's action is apparent, the NLRB applies the analysis set forth
in Wright Line (1980) 251 NLRB 1083 [105 LRRM 1169] (Wright Line). Under the Wright
Line test, adopted by the Board in Novato Unified School District (1982) PERB Decision
No. 210 (Novato), the burden is on the charging party to prove that the protected conduct was a
motivating factor in the adverse action. 	Once unlawful motivation is established, the burden
shifts to the employer to prove that it would have taken the same action despite the protected
activity. (NLRB v. Oakes Machine Corp. (1990) 897 F.2d 84 [133 LRRM 2753].)
In the present case, CSEA alleges that by taking disciplinary action against Hawkins,
the Department interfered with the bargaining unit employees' exercise of protected rights.
In January 2002, Hawkins was subpoenaed to testify in the arbitration hearing held to
gather evidence on Trott's and Johnson's grievance. Hawkins testified in support of their
claims that they were working out of class as senior education specialists. 	Several months
after her testimony, Hawkins was placed on administrative time off, served with an adverse
action and demoted.
19

By testifying in support of the grievants at the arbitration hearing, this situation falls
squarely under the limited circumstances where it is appropriate to consider whether the
disciplinary action taken against a supervisor interferes with employees' protected rights.
Under Novato, and its line of cases, PERB has described factors which may
demonstrate an inference of unlawful motivation in the employer's action. 	Although the timing
of an employer's adverse action in close temporal proximity to the employee's protected conduct
is an important factor, it does not, without more, demonstrate the necessary connection or nexus
between the adverse action and the protected conduct. (Moreland Elementary School District
(1982) PERB Decision No. 227.) Facts establishing one or more of the following additional
factors must also be present: (1) disparate treatment of the employee; (2) departure from
established procedures and standards; (3) inconsistent or contradictory justifications for the
employer's actions; (4) cursory investigation of the employee's misconduct; (5) failure to offer
the employee justification at the time the employer took action or the offering of exaggerated,
vague, or ambiguous reasons; (6) animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572.); or (7) any other facts which
might demonstrate the employer's unlawful motive. (Novato; North Sacramento School District
(1982) PERB Decision No. 264.)
BPPVE managers were aware that Hawkins had disagreed with the reorganization plan
and they had spoken with her numerous times about the need to manage workload to ensure
staff was not working out of class. 	After the efforts taken to resolve the working out of class
issues, the Department was understandably sensitive to such claims. When they learned that
Hawkins had been subpoenaed to testify, Young and Ramos spoke to Hawkins before the
arbitration hearing and made it clear that the Department would be unhappy if it lost the
grievance. 	After she testified in support of the grievants, Young accused Hawkins of "costing
20

DC A the hearing." These comments are sufficient to suggest an inference that the discipline
imposed on Hawkins was motivated by her testimony in support of the grievants.
Once an inference that unlawful motivation is established, the burden shifts to the
employer to prove that it would have taken the action regardless of the employee's protected
conduct. 	(Novato; Martori Brothers Distributors v. Agricultural Labor Relations Board (1981)
29 Cal.3d 721 [175 Cal.Rptr. 626].)
There is ample evidence to establish that the Department would have issued the adverse
action against Hawkins regardless of her support for the grievants in the arbitration hearing. A
reorganization study was conducted by the Department with the assistance of DPA to examine
the workload while ensuring that the staff performed the proper class of work. 	As a result of
the study, only one senior education specialist was assigned to each unit, with the remaining
positions classified as education specialists.
During numerous meetings with BPPVE managers discussing her responsibility to
manage the unit's workload, Hawkins was directed to ensure that the staff in her unit was
assigned to perform the appropriate classification of work. 	However, Hawkins testified in the
arbitration hearing that, instead, she assigned the work as it came in the door without
differentiating in the assignment of classification work. 	Therefore, Hawkins admitted that she
did not properly perform her duties as directed.
Hawkins' refusal to even attempt to manage workload and staff assignments to avoid
staff working out of class is distinguished from Hawkins testifying in support of the grievants.
It was not her testimony in support of the employees' grievance, but her revelation that she
ignored directives and allowed, perhaps even encouraged, her staff to perform out of class
work that drew the attention of her supervisors. 	It was this fact that motivated the Department
to take adverse action against Hawkins, not that Hawkins testified in the arbitration hearing.
21

Further evidence of Hawkins' pattern of insubordinate conduct is found when she
ignored Abbott's instructions to allow him to review a draft notice before it was mailed to
postsecondary schools. Hawkins also gave her staff directions that were inconsistent with
Young's express directive when she instructed them to identify backlog as any application that
had not been touched.
Finally, the CHP report concluded that while Hawkins' June 6, 2002, statements did not
rise to the level of a criminal threat, she violated the violence in the workplace policy.
Hawkins exhibited angry behavior during the meeting which was witnessed by Abbott's
secretary. Keaton confirmed that she had felt threatened by Hawkins' conduct in the past.
Ramos also expressed concern for her safety as some of the comments were specifically
directed toward her. Young urged the Department to take Hawkins1 comments seriously based
on her prior "erratic and angry behavior." 	While Hawkins' behavior was ultimately not found
to be a criminal threat, the Department had a reasonable basis for removing Hawkins from the
workplace pending an investigation.
It is clear from the record that the Department had other motivations, including
personal animus in disciplining Hawkins. What is not at issue here, however, is whether just
cause existed for the discipline imposed on Hawkins. Rather, based on the evidence in this
case, we do not find that the Department was motivated by any of Hawkins' activities subject
to the Dills Act. Therefore, as the Department had a legitimate basis for its action, the
evidence does not establish that the Department interfered with employee rights when it
disciplined Hawkins.11
1 'Collateral estoppel is not applicable in this case because the SPB did not consider the
identical issues now before PERB, whether the discipline was motivated by protected activity
and interfered with the rights of bargaining unit employees. 	(People v. Sims (1982) 32 Cal.3d
468 [186 Cal.Rptr. 77]; State of California (Department of Developmental Services) (1987)
22

Information Request Allegations
CSEA also alleges that the Department violated its duty to bargain in good faith when it
refused to provide copies of the investigative reports on Hawkins and the West Haven
University owner, and related documents and electronic recordings.
PERB has long held that an exclusive representative is entitled to all information that is
necessary and relevant to the discharge of its duty of representation in negotiations, processing
of grievances and administration of the contract. 	(Stockton Unified School District (1980)
PERB Decision No. 143 (Stockton): Modesto City Schools and High School District (1985)
PERB Decision No. 479 (Modesto').') An employer's refusal to provide such information
violates the duty to bargain in good faith unless the employer can demonstrate adequate
reasons for its failure to provide the requested information. 	(Stockton; State of California
(Departments of Personnel Administration and Transportation) (1997) PERB Decision
No. 1227-S (State of California).)
Information immediately pertaining to a mandatory subject of bargaining is
presumptively relevant. 	(State of California.) An employer's duty to provide relevant
information, however, is not absolute. 	An employer may be excused from providing
information if the information is unavailable or the request is unduly burdensome. 	(State of
California; Chula Vista City School District (1990) PERB Decision No. 834 (Chula Vista).)
The employer need not furnish information in a form more organized than its own records.
(State of California.) No violation will be found where the employer responds and th	
11	
e union
does not reassert or clarify its request for information. 	(Oakland Unified School District
(1983) PERB Decision No. 367.) Further, if the employer questions the relevance of the
information, the exclusive representative must give the employer an explanation. 	(Modesto;
PERB Decision No. 619-S.) Thus, collateral estoppel effect cannot be given to the decision of
the SPB.
23

San Bernardino City Unified School District (1998) PERB Decision No. 1270
(San Bernardino).)
Requests for information that do not concern mandatory subjects of bargaining are not
presumed relevant and the exclusive representative bears the burden of demonstrating that the
information is necessary and relevant to its representational duties. 	(State of California.) The
Board has found that information requests pertaining to non-bargaining unit employees are not
presumed relevant. 	An exclusive representative bears the burden of demonstrating the
"probable or potential relevance" of the requested information to its representation of
bargaining unit employees. 	(Chula Vista; San Bernardino; San Diego Newspaper Guild v.
NLRB (1977) 548 F.2d 863 [94 LRRM 2923].)
Hawkins Investigation
After the Degree Unit employees were interviewed by CHP investigators, CSEA made
a written request for information about the CHP investigation. 	The request identified the
represented employees and stated that they were the subject of the investigation. CSEA was
clearly seeking information in its efforts to represent the identified bargaining unit employees
concerning the investigation. The Department responded that CSEA was not entitled to the
information because the bargaining unit employees were not the subject of the investigation.
In fact, the investigation's findings demonstrate that the inquiry pertained only to a non-
bargaining unit supervisor.
Information pertaining to non-unit employees is not presumed relevant. Thus, CSEA
had the burden to show that the information was relevant to its duty to represent bargaining
unit employees. 	CSEA made no effort to meet this burden. 	After being informed that the
represented employees were not the subject of the investigation, CSEA did not reassert its
interest in the information or explain its relevance to CSEA's representational duties.
24

Even assuming the information was presumptively relevant, the Department's response
to the information request clearly questions CSEA's need for the information because it did not
pertain to CSEA represented employees. No adverse action had been taken against represented
employees, no grievances had been filed relating to the investigation and the investigation
concerned a non-unit employee. Thus, the relevance of the information was not apparent to the
Department.
Once the Department indicated that it did not believe the information was relevant for
CSEA's representational purposes, CSEA had an obligation to clarify its request and explain
how the information was necessary and relevant to its duty to represent bargaining unit
employees. 	Clearly, CSEA was familiar with this obligation as it renewed and clarified its
request for the West Haven information. However, in this case, CSEA failed to meet this
obligation when it did not renew its interest in the information and clarify its need for the
information. 	Therefore, the Department did not violate its duty to bargain in good faith when
it failed or refused to provide the information regarding the Hawkins investigation.
West Haven Investigation
CSEA also sought information regarding the investigation of the West Haven
University applicant. 	After the Department granted Trott's request to reassign the application,
CSEA withdrew its safety grievance. At the conclusion of the investigation, the Department
notified Trott and CSEA that the investigation had determined that the applicant's
communications did not rise to the level of criminal conduct and he did not pose an immediate
threat to employees. 	In this case, after the Department responded to the request for the West
Haven investigation information, CSEA did clarify and renew its request for the information.
CSEA asserted that the information was necessary to determine whether the Department had
conducted a thorough investigation.
25

Workplace safety issues are matters within the scope of representation. 	(State of
California (Department of Corrections) (2000) PERB Decision No. 1381-S.) The parties have
addressed health and safety issues in the memorandum of understanding, granting employees
the right to file grievances challenging workplace safety. 	Information pertaining to the
investigation of workplace safety matters is presumptively relevant. 	However, constitutional
rights of personal privacy may also limit requests for confidential information. 	(Modesto;
Los Rios Community College District (1988) PERB Decision No. 670 (Los Rios).) Where
production of information may infringe on a right of privacy, the NLRB has balanced the
union's need for the information with the individual's privacy interests. PERB has also adopted
this approach in situations where these competing interests conflict. (Modesto; Los Rios.)
CSEA is well aware of the actions taken by the Department in response to Trott's safety
concerns. 	After being alerted to Trott's concerns regarding the tenor and increased frequency
of the applicant's communications, the Department notified the CHP and initiated a formal
investigation to assess the applicant's threat potential. BPPVE managers also advised the
applicant that his communications were inappropriate and must be directed only to the
managers. Thereafter, the applicant complied with this directive. These actions were
communicated to Degree Unit employees. In addition, Trott's request to reassign the West
Haven application was granted, eliminating her need to contact the applicant. Finally,
approval of the West Haven application was granted, further reducing the applicant's need to
make contact with the BPPVE. 	Trefry testified that after these actions were taken, the
applicant's repetitious communications did not continue.
In her investigation, Trefry delved into the applicant's background and made inquiries
with various law enforcement resources. 	Such inquiries are typically intended to evaluate an
26

individual's motive and ability to act on potential threats. 	Information obtained from these
sources could well encompass sensitive personal information involving the applicant.
Further, Trefry testified that she involved the Governor's protective detail in her
investigation of the applicant. 	Evidence of security procedures in evaluating threat
assessments for elected officials could be compromised by release of investigative information
and such information may impair future investigations. 	(Postal Service (1992) 306 NLRB 474
[140 LRRM 1136].)
CSEA does not challenge the conclusion reached by the investigation, but indicates that
it wants to independently evaluate whether the investigation was thorough. 	The Board frowns
on broad requests that may extend beyond necessary and relevant information stating that, "the
right to information cannot be turned into a broad-ranging fishing expedition." 	(State of
California.) The actions taken by the Department to mitigate the safety concerns regarding the
applicant and the lack of evidence of his continued communications, suggest that CSEA's need
for the information is not significant. 	Balancing CSEA's need for this information against the
applicant's privacy interests, weighs against disclosure of the investigative information.
Therefore, the failure to provide the West Haven investigative information did not violate the
duty to bargain in good faith.
ORDER
The unfair practice charge and complaint in Case No. SA-CE-1385-S are hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Member Neima joined in this Decision.
Member Whitehead's dissent begins on page 28.
27

WHITEHEAD, Member, dissenting: 	I dissent from the majority's opinion. After a
review of the record in this matter, I respectfully disagree with majority's findings of facts and
legal conclusions as discussed below.
Adverse Actions against Hawkins
It is undisputed that Sheila Hawkins (Hawkins) is a supervisor under the Ralph C. Dills
Act (Dills Act)1 and that normally the Public Employment Relations Board (PERB or Board)
has no jurisdiction over employer conduct directed to supervisors. However, the Board may
find an unfair practice in employer actions against supervisors in limited circumstances. 	In
State of California. Department of Health (1979) PERB Decision No. 86-S (Department of
Health), the Board stated that:
[I] f there is a reasonable inference that the conduct had an
adverse effect on nonsupervisory employees in the exercise of
their rights, an unfair practice charge will be entertained vis a vis
the nonsupervisory employees. 	[Fn. omitted.] In this case, if
CSEA can show that the personnel officer's comments would
have had the effect of restraining, coercing or interfering with
nonsupervisors in the exercise of their SEERA rights, the unfair
practice process is the proper vehicle for resolving the dispute.
(Emphasis added.)
More recently, in NLRB v. Nevis Industries. Inc. (9 th Cir. 1981) 647 F. 2d 905, 910,
[107 LRRM 2890] (Nevis), the court opined:
There are limited exceptions to the rule that employer conduct
towards supervisors does not violate the Act. These exceptions
protect employees' right 'to have the privileges secured by the Act
vindicated through the administrative procedures of the Board.'
[Cit.] The exceptions have been construed narrowly. 	[Cit]
Courts have found a violation of section 8(a)(l) and ordered
reinstatement of supervisors in three basic situations. 	[Cits.] 	The
first is where a supervisor is disciplined for refusing to commit an
unfair labor practice. 	[Cits.] 	The second is where a supervisor is
disciplined for testifying before the Board. 	[Cits.] 	The third is
'Ralph C. Dills Act is codified at Government Code section 3512, et seq. Unless
otherwise indicated, all statutory references herein are to the Government Code.
28

where a supervisor who hired his own crew was discharged as a
pretext for terminating his pro-union crew. 	[Cit]
In these cases reinstatement was ordered only to remedy harm done
to rank and file employees.
The National Labor Relations Board reaffirmed this principle in Parker-Robb Chevrolet,
Inc. (1982) 262 NLRB 402, at pp. 402-404 [110 LRRM 1289] (Parker-Robb):
Notwithstanding the general exclusion of supervisors from coverage
under the Act, the discharge of a supervisor may violate Section
8(a)(l) in certain circumstances, none of which are present here.
Thus, an employer may not discharge a supervisor for giving
testimony adverse to an employer's interest either at an NLRB
proceeding [Fn. omitted.] or during the processing of an employee's
grievance under the collective bargaining agreement. 	[Fn. omitted.]
Similarly, an employer may not discharge a supervisor for refusing to
commit unfair labor practices, [Fn. omitted.] or because the
supervisor fails to prevent unionization. 	[Fn. omitted.] 	In all these
situations, however, the protection afforded supervisors stems not
from any statutory protection inuring to them, but rather from the
need to vindicate employees' exercise of their Section 7 rights.
. . . . . . . .
In the final analysis, the instant case, and indeed all supervisory
discharge cases, may be resolved by this analysis: The discharge of
supervisors is unlawful when it interferes with the right of employees to
exercise their rights under Section 7 of the Act, as when they give
testimony adverse to their employers' interest or when they refuse to
commit unfair labor practices. 	The discharge of supervisors as a result
of their participation in union or concerted activity - either by
themselves or when allied with rank-and-file employees - is not
unlawful for the simple reason that employees, but not supervisors,
have rights protected by the Act. 	[Emphasis added.]
The majority opinion did not include various key facts discussed by the administrative
law judge (ALJ) in his analysis. The out-of-class grievances filed by unit employees Marcia
Trott (Trott) and Latanya Johnson (Johnson) in December 1998 and October 2000, and
Hawkins' testimony at the arbitration of the latter grievance in January 2002 closely precede
the adverse actions taken against Hawkins. The ALJ found that both Sylvia Ramos, the
Bureau for Private Postsecondary and Vocational Education (BPPVE) administrator and Bill
Young (Young), the BPPVE assistant chief and Hawkins' supervisor, advised Hawkins before
29

her arbitration testimony that "DCA2 was very upset. DCA wanted to win this . . . ." Hawkins
testified at the Board hearing that her supervisors "more than hinted that DCA would be very
unhappy if they lost this [grievance appeal]." At the January 2002 arbitration hearing,
Hawkins testified in favor of Trott and Johnson's positions. 	A few days after the arbitration
hearing, Young approached Hawkins and accused Hawkins of "costing DCA the hearing." It
was shortly after the hearing that Young took a more active role in overseeing the Degree Unit
and became critical of Trott and Johnson's work product. 	Again, Young did not testify at the
Board hearing to either substantiate, deny, or justify his conduct.
These events set the stage for the animated discussions between Young and Hawkins
regarding organization of workload and deadlines, the heated discussion on June 6, Hawkins'
escort from the DCA offices by law enforcement on June 7, Hawkins' three months
administrative time off, the Notice of Administrative Interrogation (Notice of A.I.) in August,
the adverse action taken against Hawkins, and the involuntary transfer of Trott and Johnson out
of the Degree Unit. 	Management's discussions with Hawkins before and after her arbitration
testimony bolster the California State Employees Association's (CSEA) allegation of the
negative impact on unit employees from management's conduct toward Hawkins.
In August 2002, Hawkins and the employees she supervised were served with a Notice
of A.I. 	The Notice of A.I. stated that the California Highway Patrol (CHP) was "conducting an
internal investigation into allegations concerning misrepresentation of official reports."
Johnson was told by a CHP officer during the investigation that "there is not an active internal
investigation on her, however, information obtained during the administrative interrogation has
the potential to lead to adverse action." The ALJ found that the seven employees were
interrogated under threat of charge for insubordination. Each of the employees, accompanied
DCA refers to State of California (Department of Consumer Affairs) (State or
Department).
30

by a representative, was interrogated for at least two hours, most spending between three to
four hours with the investigating officers. 	The CHP investigation ultimately resulted in a
report regarding the work product of the Degree Unit, which Hawkins supervised, not about a
crime committed on State property, a principal function of the CHP.3 The CHP investigation
thus appears to be an overreaction by the Department to workload issues and a heated
statement by Hawkins.
As a result of the CHP report, Hawkins received a notice of adverse action demoting
her from the education administrator position.4 The stated reasons for the notice include: 	(1)
failure to direct her staff in such a manner to avoid out-of-class work; (2) submitting inaccurate
backlog statistics to Bureau management, consequently tainting the reports to the Legislature;
and (3) Hawkins' involvement in a series of interpersonal workplace conflicts, the worst of
which involved a violation of the workplace violence policy.
In the incident prompting CHP investigation, Hawkins allegedly stated to Young that
she was "going to scorch this place" and that she "would be the only one standing when all was
said and done." This statement occurred at a meeting on June 6, 2002 in which Young and
Hawkins discussed workload and both individuals' conflicting views regarding its resolution
The	he CHP's mission as stated on its website is:
The mission of the California Highway Patrol is to provide the
highest level of safety, service, and security to the people of
California, and to assist governmental agencies during
emergencies when requested.
4Interestingly, the counsel from the Department of Personnel Administration (DPA)
opposing Hawkins' appeal of the notice of adverse action agreed to delete several of the causes
for discipline in the notice, such as references to Hawkins' arbitration testimony, alleged
failure to maintain accurate workload/backlog statistics, and alleged failure to properly train
and direct her staff. 	As a result, the DPA attorney agreed to eliminate the allegation that
Hawkins was guilty of Government Code section 19572(c), inefficiency. 	There was also no
evidence at the State Personnel Board hearing of counseling or any other form of progressive
discipline against Hawkins.
31
T

within the agency. 	On June 7, 2002, with no advance warning, law enforcement officers
escorted Hawkins from the premises. 	Hawkins was placed on administrative time off for over
three months until September 16, 2002. Her return date occurred twelve days after the
arbitrator rendered her award in the out-of-class grievance. 	Significantly. Young, the manager
involved in this incident, did not testify at the Board hearing.
It is therefore clear that the Department's treatment of Hawkins had the effect of
threatening reprisals and coercing Trott and Johnson because of their filing out-of-class
grievances and of punishing Hawkins for her arbitration testimony on behalf of Trott and
Johnson regarding these grievances. 	This conduct has the effect of chilling the protected
activities of Trott and Johnson. 	This is a classic case in which the adverse treatment of a
supervisor harms the protected conduct of unit employees under Department of Health. Nevis,
and Parker-Robb, above.
CSEA Request for Information Pertaining to CHP Degree Unit Report
I disagree with the majority that CSEA is not entitled to access to the CHP report. The
Department refused to provide the report allegedly because the investigation was directed at
Hawkins and not unit employees. Under the Dills Act, failure to provide information relevant
to the representation of employees has been deemed a refusal to meet and confer in good
faith. 	The request must involve matters within scope and is subject to a "liberal discovery
standard." 	(State of California (Departments of Personnel Administration and Transportation)
(1997) PERB Decision No. 1227-S.) The determination of whether disclosure is appropriate
is made on a case-by-case basis. (Id.)
-
The Notice of A.I. provided to each degree unit employee stated that the CHP was
"conducting an internal investigation .. . concerning misrepresentation of official reports."
(Emphasis added.) There was nothing in the notice that limited the investigation to Hawkins.
The punitive tone of the notice was evidenced by the warning in the notice not to discuss the
32

investigations' existence with anyone other than the employees' representative or to have
contact with any witnesses or parties regarding the investigation. Further, Johnson was
informed by a CHP officer that the investigation could lead to adverse action. 	Trott and
Johnson were ultimately involuntarily transferred out of the Degree Unit. 	The connection
between the report and the threat of adverse action show that the investigation report is
directly related to discipline, a mandatory subject of negotiation. 	I find that under
Mt. San Antonio Community College District (1982) PERB Decision No. 224, the
information requested by CSEA is relevant to the representation of the subject employees to
determine whether the investigation was retaliation for filing out-of-class grievances. 	CSEA
is entitled and has an obligation to request information relevant to representing unit
employees in a potential disciplinary matter.
The Department insists that CSEA is not entitled to the report under the Public
Records Act, Government Code sections 6250 et seq. I would confirm the Board's decision
in Trustees of the California State University (2004) PERB Decision No. 1591-H, citing
Stockton Unified School District (1980) PERB Decision No. 143 (Stockton), that the Public
Records Act cannot be used to deny an information request that is otherwise required by the
Higher Education Employer-Employee Relations Act (HEERA).5'6 In fact, contrary to the
Department's argument, the Public Records Act specifically sanctions such disclosures:
In Stockton, the Board declared that:
In general, the exclusive representative is entitled to all
information that is necessary and relevant to discharging its duty
to represent unit employees. 	[Cit] An employer's refusal to
provide such information evidences bad faith bargaining unless
the employer can supply adequate reasons why it cannot supply
the information. 	[Cit.]
In defining the parameters of 'necessary and relevant
information' to which the representative is entitled, the courts
have concluded that information pertaining immediately to
33

mandatory subjects of bargaining is so intrinsic to the core of the
employer-employee relationship that it is considered
presumptively relevant and must be disclosed unless the
employer can establish that the information is plainly irrelevant
or can provide adequate reasons why it cannot furnish the
information. 	[Cit, underlining in original.]
The Department's concern about Hawkins' privacy is disingenuous given Hawkins'
willingness to disclose the documents.
The provisions of this chapter shall not be deemed in any
manner to affect the status of judicial records as it existed
immediately prior to the effective date of this section, nor to
affect the rights of litigants, including parties to administrative
proceedings, under the laws of discovery of this state, nor to
limit or impair any rights of discovery in a criminal case.
(Government Code sec. 6260, emphasis added.)
Contrary to the Department's contention, CSEA and the Department are clearly
litigants to an administrative proceeding in this matter.
Refusal to Provide CSEA with Information about the Charles Frye (Frye) Investigation
Frye, owner of Westhaven University, was a licensing applicant who harassed Trott
and other Department employees through threatening phone calls and e-mails during the
processing of his application by Trott. 	The testimony of Trott and others evidenced Trott's
reasonable concern for her safety. 	The concern was exacerbated by Frye's repeated
references to his expertise in bio-terrorism. 	Trott's coworkers agreed that Frye's behavior fell
outside of normal boundaries. 	The Board has long held the health and safety of employees to
be within the scope of representation. 	(See e.g., Regents of the University of California
(1983) PERB Decision No. 319-H.) The Department only provided Trott with a brief
response to her complaint that her complaint was "unfounded." CSEA's request for the
detailed investigatory report of Frye's conduct was therefore appropriate, relevant, and
reasonable under the circumstances. Again, the Department has expressed a concern that by
6HEERA is codified at Government Code section 3560, et seq.
34

not disclosing the report, it is protecting Frye's privacy. The basis for doing so was to label
the investigation a "criminal investigation." However, the investigation was initiated at the
behest of Trott and the terse response was insufficient to alleviate her concerns, those of her
co-workers, or potentially, of the individual who took over Frye's application from Trott.
CSEA's request for the documents supporting the Department's response to Frye is therefore
reasonable in that it asks for relevant information needed for CSEA to effectively represent
Trott and other unit employees with regard to Frye's potential to harm them.
In light of the above, I conclude that the Department has violated Dills Act section
3519(a), (b) and (c) and that the Board should adopt the ALJ's proposed decision and
implement the proposed order as is.
35