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

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. 2830a-S
May 2, 2023
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 Banks, Chair; Krantz and Paulson, Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB) for a second time. In State of California (State Water Resources Control
Board) (2022) PERB Decision No. 2830-S (SWRCB), we considered exceptions by
Charging Party Professional Engineers in California Government (PECG) to a
proposed decision of an administrative law judge (ALJ) dismissing the complaint in
this matter. We partially reversed the proposed decision and remanded to the ALJ to
consider an issue that the proposed decision had left unresolved: whether
Respondent State of California (State Water Resources Control Board) (Water Board)
failed to provide PECG with sufficient information for it to meaningfully represent
Water Board employee Rosalyn Fleming in an investigatory interview, thereby

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interfering with protected rights under the Ralph C. Dills Act (Dills Act).1 (SWRCB,
supra, PERB Decision No. 2830-S, pp. 15-16.)
Following remand, the ALJ issued a second proposed decision, concluding that
the Water Board interfered with protected rights because it did not provide PECG with
sufficient information to allow meaningful representation. However, the proposed
decision included only a limited remedy requiring the Water Board to post a notice and
to cease and desist from further interference with representational rights. The ALJ
rejected PECG’s request for litigation sanctions and did not order the Water Board to
rescind a three-month suspension it issued against Fleming.
PECG has now filed exceptions to the ALJ’s second proposed decision. PECG
primarily argues that the ALJ erred by rejecting its request for litigation sanctions and
by not rescinding Fleming’s suspension. The Water Board filed no exceptions and
urges us to affirm the proposed decision. Having reviewed the record and the parties’
arguments, we find no cause to order the Water Board to rescind Fleming’s
suspension. Nor do we award litigation sanctions. However, as explained post, we
supplement the proposed cease-and-desist order to tailor it to the specific violation
found.2
1 The Dills Act is codified at Government Code section 3512 et seq. All statutory
references are to the Government Code.
2 Neither party excepted to the ALJ’s liability conclusion, 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.)

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FACTUAL AND PROCEDURAL BACKGROUND
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).
On March 12, 2020, Water Board Equal Employment Opportunity Officer Shyla
Hoffman held an investigatory interview with Fleming about an incident that had
occurred on January 30, 2020.3 PECG Labor Relations Counsel Jesse Rodriguez
represented Fleming at the interview. There is no longer any dispute that Hoffman
provided PECG with insufficient information to allow meaningful representation.
After Hoffman completed her investigation, she prepared a report concluding
that Fleming’s conduct on January 30 was unprofessional, rude, and violated the
Water Board’s workplace violence prevention policy. The Water Board later
suspended Fleming for three months, citing alleged misconduct on multiple dates,
including January 30.
Fleming appealed her suspension to the State Personnel Board (SPB). After
holding an evidentiary hearing, an SPB ALJ issued a proposed decision. The SPB ALJ
found that on January 30, Fleming did not violate the workplace violence prevention
policy but did engage in insubordination and discourteous treatment. The SPB ALJ
3 All further undesignated date references are to 2020.

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upheld Fleming’s suspension based on the following findings: (1) In March 2018, the
Water Board issued Fleming a three-week suspension for multiple instances of rude
conduct and warned her against further similar conduct; (2) On October 29, 2018,
Fleming was hostile, discourteous, and insubordinate to a supervisor who met with
Fleming about excessive non-work-related discussions during work hours. Most
notably, Fleming became angry and told the supervisor, “you will pay a price for this”;
(3) In November 2018, the Water Board issued Fleming a counseling memorandum
for her conduct on October 29, 2018 and further warned her regarding such behavior;
(4) In September 2019, Fleming was rude to a coworker; (5) In October and November
2019, Fleming was willfully disobedient in refusing to comply with deadlines; and
(6) Fleming engaged in insubordination and discourteous conduct on January 30.
Fleming did not appeal the SPB proposed decision. In the absence of any
appeal, the decision became final.
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.) In
doing so, we review the proposed remedy de novo. (The Accelerated Schools (2023)
PERB Decision No. 2855, pp. 16-31 (Accelerated Schools).)
The Legislature has vested PERB with broad authority to decide what remedies
are necessary to effectuate the purposes and policies of the Dills Act and the other
acts we enforce. (Dills Act, § 3514.5, 1st par. & subd. (c); Mt. San Antonio Community
College Dist. v. Public Employment Relations Bd. (1989) 210 Cal.App.3d 178, 189.)
PERB remedies must serve the dual purposes of compensating for harms that an

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unfair practice causes and deterring further violations. (County of San Joaquin v.
Public Employment Relations Bd. (2022) 82 Cal.App.5th 1053, 1068; Accelerated
Schools, supra, PERB Decision No. 2855, p. 16; Bellflower Unified School District
(2022) PERB Decision No. 2544a, p. 26.)
We apply these standards here to resolve questions relating to rescission,
litigation sanctions, and the proper scope of the cease-and-desist order.
I. 	Rescission
If an employer’s unfair practice during an investigatory interview is one material
cause of eventual discipline, the proper remedy is to rescind the discipline, purge
related records, and make the employee whole, typically while leaving open whether
the employer may lawfully re-investigate any alleged misconduct or issue lesser
discipline. (County of San Joaquin (Sheriff’s Department) (2018) PERB Decision No.
2619-M, p. 13 & fn. 13; Capistrano Unified School District (2015) PERB Decision No.
2440, pp. 45 & 47-53 (Capistrano).) PECG claims that the Water Board’s unfair
practice was one material cause of Fleming’s three-month suspension. The primary
basis for proving that unfair practices in an investigatory interview materially caused
discipline is to show that the discipline was based, at least in part, on information or
admissions obtained in the interview, or on employee conduct during the interview.
(Capistrano, supra, PERB Decision No. 2440, p. 47.)
Here, PECG did not prove causation. While Fleming’s conduct on January 30
materially contributed to the Water Board’s decision to suspend her, no information or
admissions obtained during the unlawful interview constituted such a material cause.
Nor did the Water Board materially rely on Fleming’s conduct at the interview. We

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therefore affirm the ALJ’s decision not to order the Water Board to rescind Fleming’s
suspension or purge related records.
II. 	Litigation Sanctions
PECG seeks an award of litigation sanctions based on legal work performed in
this case. A party seeking such relief normally must meet a standard akin to that under
Rule 11 of the Federal Rules of Civil Procedure, showing that its opponent pursued a
frivolous argument in bad faith. (Sacramento City Unified School District (2020) PERB
Decision No. 2749, p. 11.) Because the Water Board raised non-frivolous arguments in
this case, PECG cannot meet this standard.4
III. 	Cease-and-Desist Order
The proposed decision directs the Water Board to cease and desist from
interfering with representational rights. We supplement that order by directing the Water
Board to refrain from relying on: (1) any information or admission obtained during
4 In contrast, for a charging party to obtain an award based on litigation fees or
costs in a separate proceeding, or based on salaries or other costs of representation or
bargaining, it need only show by a preponderance of the evidence that the offending
party’s conduct caused a harm and that it is reasonably feasible to estimate the financial
impact. (City and County of San Francisco (2023) PERB Decision No. 2858, p. 15;
Alliance Judy Ivie Burton Technology Academy High et al. (2022) PERB Decision
No. 2809, pp. 14, 31-32 [judicial appeal pending]; Oxnard Union High School District
(2022) PERB Decision No. 2803, p. 3; County of Santa Clara (2021) PERB Decision
No. 2799-M, p. 28, fn. 14; Regents of the University of California (2021) PERB Decision
No. 2755-H, p. 56; Sacramento City Unified School District, supra, PERB Decision
No. 2749, p. 15; City and County of San Francisco (2020) PERB Decision No. 2691-M,
p. 51, fn. 32; City of Palo Alto (2019) PERB Decision No. 2664-M, p. 8, fn. 6.) Here,
the Water Board’s unfair practice may have increased PECG’s costs before SPB in
that the unfair practice included not apprising Fleming it was investigating her for
violating its violence prevention policy—an allegation SPB later rejected. However, we
do not consider this potential make-whole theory given that PECG has not pursued it
and neither party litigated it.

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Hoffman’s unlawful investigatory interview; or (2) Fleming’s conduct during the
interview. While the record does not show that the Water Board has so far relied on any
such information, admission, or conduct, in order to compensate for the harm caused by
the unfair practice it is important to ensure that the Water Board does not do so in the
future.
ORDER
Based upon the foregoing factual findings and legal analysis, and the record in
this case, the Public Employment Relations Board (PERB) finds that the State of
California (State Water Resources Control Board) (Water Board) failed to provide
Professional Engineers in California Government (PECG) with sufficient information
for it to meaningfully represent a Water Board employee in an investigatory interview,
thereby interfering with protected rights under the Ralph C. Dills Act, Government
Code Section 3512 et seq. (Dills Act).
Pursuant to Dills Act section 3514.5, subdivision (c), we hereby ORDER that
the Water Board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with bargaining unit employees’ right to meaningful
representation at investigatory interviews.
2. 	Interfering with PECG’s right to represent bargaining unit
employees in a meaningful manner.
3. 	Relying, for any purpose, on: (a) information or admissions
obtained during the investigatory interview the Water Board conducted on March 12,
2020; or (b) employee conduct during that interview.

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B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF THE DILLS ACT:
1. 	Within 10 workdays after this decision is no longer subject to
appeal, post at all work locations where notices to Water Board employees are
posted, copies of the Notice attached hereto as an Appendix. The Notice must be
signed by an authorized agent of the Water Board, indicating that the Water Board will
comply with the terms of this Order. Such postings shall remain in place for a period of
30 consecutive workdays. The Water Board shall take reasonable steps to ensure that
the Notice is not altered, defaced, or covered with any other material. In addition to
physically posting this Notice, the Water Board shall post it by electronic message,
intranet, internet site, and other electronic means the Water Board uses to
communicate with Water Board employees.5
2. 	Notify OGC of the actions the Water Board has taken to follow this
Order by providing written reports as directed by OGC and concurrently serving such
reports on PECG.
Chair Banks and Member Paulson joined in this Decision.
5 Either party may ask PERB’s Office of the General Counsel (OGC) to alter or
extend the posting period, require further notice methods, or otherwise supplement or
adjust this Order to ensure adequate notice. Upon receipt of such a request, OGC
shall solicit input from all parties and, if warranted, provide amended instructions to
ensure adequate notice.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-704-S, Professional
Engineers in California Government v. State of California (State Water Resources
Control Board), in which the parties had the right to participate, the Public Employment
Relations Board (PERB) has found that the State of California (State Water Resources
Control Board) (Water Board) failed to provide Professional Engineers in California
Government (PECG) with sufficient information for it to meaningfully represent a
Water Board employee in an investigatory interview, thereby interfering with protected
rights under the Ralph C. Dills Act, Government Code Section 3512 et seq. (Dills Act).
As a result of this conduct, PERB has ordered us to post this Notice, and we
will CEASE AND DESIST FROM:
1. 	Interfering with bargaining unit employees’ right to meaningful
representation at investigatory interviews.
2. 	Interfering with PECG’s right to represent bargaining unit employees in a
meaningful manner.
3. 	Relying, for any purpose, on: (a) information or admissions obtained
during the investigatory interview we conducted on March 12, 2020; or (b) employee
conduct during that interview.
Dated: _____________________ 	STATE OF CALIFORNIA (STATE WATER
RESOURCES CONTROL BOARD)
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.