Unions and Employees to Receive Advance Disclosure of Complaints Before Investigative Interviews and Their Right to Information in Extra-Contractual Settings

Contra Costa Community College District (6/26/19) PERB Decision No. 2652

This decision provides guidance to all public sector labor practitioners on the rights of employee organizations to receive information regarding personnel investigations against union members. While the decision arose under the Educational Employment Relations Act (EERA, Government Code section 3540 et seq.) in the community college context, most of the decision will apply to all public employers.

A core, previously unresolved issue of concern to PERB practitioners has been the interplay between union and employee rights to information about pending investigations and employer’s right to withhold such information until the interview of the employee/subject occurs. In this clash of interests, unions maintain that even before the investigation of the subject employee occurs, they need to receive the complaint in order to represent the employee adequately. Employers, on the other hand, urge that the complaint must be kept confidential at least until the subject interview, in order to help assure that the employee’s statement is not rehearsed. An uncoached, unrehearsed reaction to the questions posed provides the individual investigating the complaint the best assessment of employee/subject credibility. Pre-interview disclosure also can give rise to concerns about possible harassment and intimidation of complaining parties or witnesses, and about spoliation of evidence.

PERB Member Erich Shiners joined in only part of this decision, taking issue, as discussed below, with some of the Board’s analysis.

KEY POINTERS FROM THE DECISION REGARDING DISCLOSURE:

A practical translation of PERBs’ lengthy decision is as follows:

1. Before an interview, an employee is entitled to receive adequate notice about the allegations. “Indeed, even under NLRB precedent, an employer does not satisfy its duty to allow meaningful representation if it provides only general information about the charges of misconduct.” PERB approvingly recited an example from U.S. Postal Service (2005) 345 NLRB 426, 436:

[A]n employer’s oral notice in advance of interviews—that one set of charges involved “a vehicle accident you were involved in on [a specific date],” while another set of charges involved “insubordination and/or sabotaging of the [employer’s] mission”—were too vague to allow meaningful representation, though in the former case the employer cured this problem by providing an advance copy of all questions to be asked.

The “Notice” requirement, however, does not compel pre-interview disclosure of the complaint.

2. If the employer has reason to believe that providing pre-interview notice might risk the safety of interested parties or the integrity of evidence in the employee’s control, the employer may delay the notice until the time scheduled for interrogation as long as it thereafter grants sufficient time for consultation. However, the employer must give the employee “enough time for the officer to meaningfully consult with any representative he elects to have present.” On this point, PERB cited Ellins v. City of Sierra Madre (2016) 244 Cal.App.4th 445, 454, a decision of the California Court of Appeal that was decided under the Public Safety Officers Procedural Bill of Rights (“PSOBR,” Government Code section 3300 et seq.).
3. Troublingly, the employee organization may seek clarification of the questions and allegations not only during the investigative interview, but also, in PERB’s view, before the interview.
4. Importantly, the employer is not obligated to disclose the complaint before the subject employee’s investigative interview. On this point, PERB embraced Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 572-579, a seminal decision of the California Supreme Court that was also decided under PSOBR.
5. The employer must allow the employee’s representative to participate in the meeting – including seeking clarification of questions and allegations – but the employee’s representative may not convert the interview into an adversarial proceeding.¹

STUDENT COMPLAINTS

As noted above, this case arose in the EERA’s community college context, and also involves issues unique to students and educational employers.

The realm of student complaints is complex. Hence, PERB closely examined the argument that student complaints were protected against disclosure under federal law – including the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g (FERPA), Title VI and (Title IX) – as well as their equivalents under California law and interpretive guidance from the federal Office of Civil Rights (OCR). Long story short: PERB believed that none of these laws protected the student complaint in this case from disclosure, and observed that OCR guidance makes clear that FERPA does not override the rights of employees. This leads to PERB’s bottom line view: in connection with subject employee interviews, employee or their unions simply “need to know” adequate details. This need, in PERB’s view, trumps students’ legitimate interest in confidentiality.

A SECOND IMPORTANT ISSUE: EMPLOYER’S DUTY TO PROVIDE INFORMATION ON “EXTRA-CONTRACTUAL” MATTERS

For decades – until this decision – PERB’s rule regarding the employer’s duty to provide information has differentiated between demands that are germane to negotiations and grievances, versus demands for information in other “extra-contractual” representational matters, such as investigations, disciplinary (“Skelly”) meetings, civil service matters, and the like. The duty to provide information has extended to the former, but not the latter, category. The two union-side appointees on the three-member panel that issued this decision decided that a union has a right to information on an “extra-contractual issue or forum,” including the investigation forum in this case. The Majority reached the issues in this case by reasoning that discipline is within the scope of bargaining, so information regarding actual or potential discipline is “presumptively relevant.” (The concurring opinion of Member Shiners pointed out that “our decisional law has never held that an employer’s individual discipline decisions must be negotiated.”)

After attempting to distinguish decades of contrary PERB case law, the Majority “clarified” that there is no categorical rule denying a union access to information pertaining to a mandatory subject of bargaining merely because it may be used in an extra-contractual forum, meeting, or proceeding. Therefore, the Board concluded that when a union is considering whether to exercise its right to represent employees in a meeting or proceeding that may adversely affect employment status, an employer may not deny the union’s related information request on the basis that the meeting or proceeding is extra-contractual or that the union has no duty of fair representation.

PERB Member Erich Shiners declined to join the Majority opinion on this issue. He concluded that because the Union had no right to obtain the written discrimination complaints before the investigator’s investigatory interviews, there was no need to address the District’s possible privacy defenses to production of the complaints after an investigatory interview. On this point, he cited Former Chair Martinez’s memorable words in a 2015 case: “[T]he cardinal principle of judicial restraint is that if it is not necessary to decide more, it is necessary not to decide more.”

Member Shiners observed that under longstanding PERB case law, the exclusive representative’s right to information “is predicated upon the necessity of the information to discharge its representational duty.” Here, the Union had no duty to represent employees outside the context of contract negotiations or contract administration.

Accordingly, in Member Shiner’s view, the Union was entitled to no more notice that the employee/subject of the investigation. So viewed, the Majority’s expansion of the right to information is inconsistent with PERB case law and PERB statutes.

Feel free to contact Firm partners Jeff Sloan (jsloan@sloansakai.com) or Genevieve Ng (gng@sloansakai.com) for more information.

1. Often, the investigator is hired by the employer on an independent contractor basis and is not a representative of the employer. Neutral investigators are beyond the control of the employer, so their acts should not be attributable to the employer. Despite that, PERB may view an independent contractor investigator as the employer’s “agent” for purposes of labor law compliance. This introduces a “Catch 22”: not controlling the investigator can lead to employer liability, but telling the investigator what to do compromises the “independence” of the investigator.