PERB Holds State Employee had Right to Union Representation at Strip Search

On October 4, 2021, the Third District Court of Appeal affirmed a Public Employment Relations Board (“PERB”) decision that a state employee’s right to have a union representative present during an investigatory interview extends to having a representative in attendance during a strip search conducted for law enforcement purposes, even though there was no interrogation or questioning, pursuant to the Ralph C. Dills Act.  The case is Department of Corrections and Rehabilitation v. Public Employment Relations Board, C088562, PERB Decision No. 2598-S, and can be found here: https://perb.ca.gov/decision/2598s/

PERB ruled in the underlying decision that the California Department of Corrections and Rehabilitation (“CDCR”) violated the right of its employee to be represented by her union during an unclothed body search.  The employee was subjected to the search after entering her workplace, the California State Prison at Coalinga, based on a tip from an inmate that she would be smuggling in a narcotic powder.  She explicitly asked for a representative to be present, and was denied.  She was searched and no narcotic powder or other illegal substance was found on her person.

The Dills Act (Government Code §3512 et seq.) declares it to be unlawful “(a)...to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter” or “(b) Deny to employee organizations rights guaranteed by this chapter.”

That language has been interpreted to give state employees the right to a union representative at an investigatory interview.  CDCR argued that the employee had no right to a union representative where no interview took place and the purpose was a criminal investigation.  It also contended that if the employee did have any such right, she waived it by signing an acknowledgement of the employer’s rule that she is subject to search at any time while on the employer’s grounds.

PERB rejected those arguments and held that an employee does not waive her right to union representation by signing such a document.  PERB pointed to the potential utility of having a union representative present, saying:

“In this instance, a union representative could have urged a pre-search inquiry that the OIA agent in fact engaged in post-search, i.e., whether there was an inmate who might have been motivated to make a false report against [the employee], and thereby avoid proceeding with a search that the ALJ found to be a breach of CDCR policy.”

It is important for union members to know their rights when any sort of investigation is being done at the workplace.  Per SEIU Local 1021 v. Sonoma County Superior Court,(2015) PERB Decision No. 2409-C (Sonoma County Superior Court), a case handled by Weinberg Roger & Rosenfeld, there is a broad right of representation under the PERB-administered statutes, so even if an interaction with management does not pose a risk of disciplinary consequences, err on the side of demanding a representative. Notably, the reasoning of the PERB decision that is the subject of this article applies to all PERB-administered statutes.

By Maximillian Casillas | January 7, 2022

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