RIGHT TO REPRESENTATION EXTENDS TO WRITTEN STATEMENTS

MATTHEW TAYLOR

Associate
MESSING ADAM & JASMINE LLP

It is well known that public-sector employees have the right to union representation during an investigatory interview. But does this right also apply when an employer, rather than asking questions to elicit a verbal response from an employee, directs the employee to draft a written statement that could be used for disciplinary purposes? Does providing such a written statement carry similar risks for an employee as answering questions verbally in a person-to-person investigatory interview? According to the California Public Employee Relations Board (PERB), a quasi-judicial agency that oversees public-sector collective bargaining in California, the answer to both questions is yes. (See California School Employees Association v. San Bernardino Community College District, PERB Decision No. 2599, December 5, 2018.) 
As background, the U.S. Supreme Court ruled that an employee has the right to union representation in investigatory interviews. This right and its associated rules are collectively referred to as Weingarten rights after the name of the case, NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251. The burden is on the employee to make a clear request for union representation either before or during the interview; the employer, on the other hand, has no obligation to inform the officer of this right. Once the employee invokes the right, the employer must respect the officer’s decision by granting the request, discontinuing the interview or offering the employee the choice of proceeding with the interview without representation or ending the interview. The employer who denies the request for union representation and continues to ask questions commits an unfair labor practice. The employee has a right to refuse to answer and he or she may not be disciplined for such a refusal (though you should always consult with your representative who, in many cases, would advise you to follow the “obey now, grieve later” approach).
In the facts at issue in the above PERB case, the San Bernardino Community College District Police Department attempted to circumvent an employee’s Weingarten rights through an artful dodge: a request for a written statement. Adam Lasad, a community services officer, was the subject of an investigatory interview regarding his whereabouts during his work shift. Being questioned by his supervisor, Sergeant Chris Tamayo, Lasad initially answered several questions, then requested union representation. Acting on orders from the police chief, Sergeant Tamayo responded by stating, “[W]e’re not going to question you anymore,” but “I just need a memo explaining where you were” (PERB Decision No. 2599, p. 3). Sergeant Tamayo then proceeded to leave Lasad alone in an office to draft the written statement. Though Lasad had access to his personal cellphone and a landline, he did not try to contact the representative and obtain representation before completing the statement. 
Faced with an unfair labor practice charge, the San Bernardino Community College District argued that the Department did not commit a violation because the right to representation arises only when an employee is required to provide a verbal response.     
PERB disagreed. Ruling that the District violated Lasad’s rights, PERB adhered to the U.S. Supreme Court’s rationale in the Weingarten decision, quoting the Court as follows:
“A single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors. A knowledgeable union representative could assist the employer by eliciting favorable facts and save the employer production time by getting to the bottom of the incident occasioning the interview” (PERB Decision No. 2599, p. 3 quoting NLRB v. J. Weingarten, Inc. [1975] 420 U.S. 251, 262-263). 
PERB further determined that requiring the employee to draft a written statement implicates similar concerns as “direct face-to-face questioning and verbal responses,” as employees “may be more or less precise in their written statements than in their oral ones, depending, among other things, on their facility with the written language” (Id. at p. 4).  
PERB also found Lasad’s willingness to draft the written statement inconsequential as to whether the Department infringed on his right to union representation. A police officer is not required to disobey his superiors to invoke successfully his or her Weingarten rights. As stated by PERB:
“Although the refusal to obey a rule or directive that unlawfully infringes on employee or union rights is generally protected…we do not require employees to risk discipline in order to preserve their rights to challenge unlawful action” (Id. at p. 6 citing Long Beach Unified School District [1987] PERB Decision No. 608, p. 12).
In a last-ditch effort to avoid a complete loss before PERB, the San Bernardino Community College District claimed that Lasad’s request for representation, coming after he had already answered several questions, prevented the District only from seeking additional information beyond what Lasad had already provided. PERB once again disagreed, stating that the right to representation applies “regardless of whether the employer is seeking additional information or merely attempting to confirm information the employee has already provided.” It reasoned that a subsequent statement may ultimately contradict an employee’s earlier statement, opening him or her to impeachment for inconsistency, or it may confirm an earlier statement and thereby make it more difficult for the employee to change or explain those answers later. Accordingly, “the assistance of a union representative would be no less valuable than if the employer were seeking only new information” (Id. at pp. 4-5).
It should be noted that PERB currently does not have jurisdiction over unions that exclusively represent peace officers (there is a limited exception for unions representing both peace officers and non-peace officers). PERB was able to hear Lasad’s case because his union represents police department employees who, like him, are not peace officers. Unfortunately, former Governor Jerry Brown vetoed proposed legislation that would have repealed this jurisdictional limitation based on the rationales that PERB has limited funding, which would be insufficient to handle peace officer issues, and that peace officer unions are the only employee organizations that may petition the courts for injunctive relief related to labor issues. Thus, he argued that peace officer unions should not be able to benefit from having access to both PERB and the courts.
Nevertheless, our firm is fighting to change PERB’s limited jurisdiction so that unions representing police officers may bring claims before this important tribunal specializing in labor law. We recently filed a case before PERB on behalf of a union that represents peace officers exclusively against a local municipality, and we are defending against that city’s motion to dismiss the case before PERB.
Regardless of whether access to PERB will remain closed to peace officer unions, PERB’s decision against the San Bernardino Community College District upholding Weingarten rights carries significant weight, as California courts and arbitrators have recognized PERB’s expertise in labor matters and often look to PERB precedents to inform their decisions. Furthermore, these tribunals also take guidance from the National Labor Relations Board (NLRB), a federal agency that enforces federal labor law in relation to collective bargaining and unfair labor practices. It has also held that employees have a right to representation before submitting written statements as part of an investigatory interview.
Lasad’s treatment by his supervisors reflects the pitfalls facing both sworn and non-sworn members of law enforcement organizations who are subject to discipline investigations. We therefore urge you to be vigilant in knowing your rights. Request union representation when your employer seeks either a verbal or written statement from you that could be used for disciplinary purposes.

About the Author
Matthew Taylor is an associate attorney at Messing Adam & Jasmine LLP, a firm that predominately represents public safety unions and their members in their labor relations. Prior to joining the firm, Matthew served as a police officer and investigator in New York City.