*1 No. 16892. Dist. Third Oct. [Civ. 1979.] ROBINSON,
WILLIAM Plaintiff and Appellant, BOARD, STATE PERSONNEL Defendant and Respondent; JANSSEN, DAVID E. Director, etc., as Real in Interest and Party Respondent.
Counsel
Loren E. McMaster and E. Callis for Plaintiff and Philip Appellant. Evelle J. and General, and Younger George Deukmejian, Attorneys Hunter, General, Carol for Defendant and Attorney Deputy Respondent, and Real in Interest and Party Respondent.
Opinion BLEASE, J. matter, our in this filed Following opinion February and, Court on granted hearing January retransferred the case to court this for reconsideration in of Civil light Service Assn. v. Francisco Cal.3d City County 129, 586 P.2d 162]. Plaintiff from the of. the Sacramento appeals judgment Court the decision the State Board Superior affirming the dismissal of as an of the State of sustaining California his refusal to attend with his following meeting superiors without the a union presence-of representative.
Plaintiff he contends was dismissed in violation his statutory right of a union his reinstate- remedy _ ment. We conclude that a state has a at a with his held with a superiors significant purpose facts to action and not be dismissed investigate support disciplinary exercise of that We further conclude that the State attempted right. Personnel Board failed to make findings respect and the claim effect of the purported meeting plaintiff’s we reverse the and remand the representation. Accordingly, judgment case to the court with directions. superior appropriate
I Plaintiff, Robinson, William was a permanent Services, California of General and Grounds Buildings Department Division. The course of as a was marred janitor plaintiff’s employment about work. complaints *4 13, 1976,
On work was absent from without Friday, August plaintiff his to reason. When returned work informing supervisor plaintiff Lands, on he went to the next Monday, August higher above his his to absence as supervisor supervisor, Kolensky, explain to visit sister-in-law in San Francisco who had taken an necessary Lands, overdose of with discussion arrived pills. During Kolensky and handed him that memorandum” he plaintiff “counseling informing should call his before an and that absence further supervisor any absences tardiness could lead to more serious action him. against Plaintiff refused to the memorandum and stated that if there were accept further his should see his union any problems supervisor go representa- later, tive. one-half hour a second handed Approximately plaintiff memorandum memorandum” for the first “counseling refusing accept and for hostile when handed it. Plaintiff also refused accept becoming later, work. About two hours this memorandum and continued in his whether in a his about became involved supervisor plaintiff dispute Plaintiff, claim that the he should a floor. his wax despite supervisor’s would not wax the floor was and needed stated that he slippery waxing, then he had Plaintiff floor because waxed it the Thursday. previous he discussion that returned to Lands’ office and indicated in a heated Lands stated that would not wax the floor and wished to be sent home. to send him the decision was and that if wanted Kolensky’s Kolensky home he could. told to work but back plaintiff Kolensky go plaintiff refused to do so and left he didn’t care about stating anything. illness,
Plaintiff was absent from work the next on the day ground that but the record worked for another reveals that plaintiff employer a.m.) to 1 and for the state from worked morning p.m. (plaintiff testified that he reason did not work was that he was afraid of go fired. being
Plaintiff returned to work on 18 and was then asked August apparently to the office to go building discuss his A manager’s problems. memorandum” was “counseling of the prepared anticipation which stated that should the attitude not plaintiff’s improve immediately action will be Plaintiff told “punitive would justified.”' he Kolensky not office discuss his go without his union problems Plaintiff then went office, representative. building manager’s Roberts, repeated he position building manager, although indicated that the union would call the representative building manager later,” either “tomorrow or he told Roberts he would not discuss anything further.
Plaintiff was then dismissed effective but immediately, through efforts was able to work A30. through August before the State Personnel Board held that the hearing dismissal was proper. *5 a writ of mandate to his
Subsequently, sought compel reinstatement, but the Sacramento Court to refused County Superior issue the writ and affirmed the decision of the State Personnel Board. Plaintiff from the decision of the court. appeals superior
II Plaintiff contends that he was dismissed because of his insistence on the of a union at the presence representative August meeting his supervisors.
The State Personnel Board the dismissal on the upheld ground in the board’s (described fact) plaintiff’s employment history findings insubordination, inexcusable absence without leave “clearly constitute^] and other e, failure behavior within the of Subsections good meaning j and t of Section 19572 of the Government Code. His dismissal was fully warranted and his should be denied.” There can be no reasonable appeal with the conclusion that argument plaintiff’s employment history gave However, cause to terminate his if Robinson superiors good employment. had a and was dismissed for his right attempted Code, exercise of the his dismissal is invalid. right, (Gov. 3531.) § The entitled, threshold issue is whether a state under Code, law* state (Gov. 3525 et § employee organizations seq.) of a union held with presence representative during significant action. investigate grounds In Service Civil Assn. v. Francisco, City supra, Cal.3d California Court held that Supreme Meyers- Code, Milias-Brown Act 3500 et (Gov. § a local seq.) granted government of a union right, upon request, participation an interview held representative during investigatory prior imposition of a short-term The court found the contained within suspension. of Government Code sections 3503 and 3504. provisions Government Code section 3503 that: provides “Recognized employee organizations shall have the their members in their represent employment relations with Included within such public agencies.” “employment relations” are matters hours and other terms and relating “wages, conditions Code, . . .” employment. (Gov. 3504.) § court asserted that the section 3504 “seems be taken from the federal language Labor Act,” Relations noted its Management in the “sensitivity developments federal law in state and reasoned as interpreting follows: legislation,”
“Under the
of section 7 of the
provisions
National Labor Relations
Act,11 an
is entitled to the
of his union
an
interview
during
to recent
investigatory
United States
according
Court cases.
(NLRB
Inc.
U.S. 251
Weingarten,
[43
L.Ed.2d
95 S.Ct.
Garment
959];
Workers v.
Co. (1975)
Quality Mfg.
security. however, representative participation interest, not the but only safeguarding particular employee’s also the interests of entire unit bargaining by exercising vigilance certain that make does not initiate or continue a employer practice imposing punishment unjustly.
“ The Board’s construction also
to the
when it is
gives recognition
most useful
to both
A
employer.
single employee
confronted
an
whether certain conduct
by
employer
investigating
deserves
be too fearful or inarticulate to relate
discipline may
accurately
the incident
or too
to raise
being investigated,
ignorant
extenuating
A
factors.
could
assist
knowledgeable
employer
facts,
favorable
and save the
time
by
by
eliciting
employer production
to the bottom of the
incident
interview.
getting
occasioning
Certainly
not
need
transform the interview into an
contest.
adversary
nonetheless that union
at this
Respondent suggests
stage
because a decision as to
unnecessary
employee culpability
action can be
has
corrected after the decision to impose discipline
”
Francisco,
become final.’
Service Assn. v.
(Civil
City
County of
The State to this tracks Employee Organizations applicable in relied Act. Government Meyers-Milias-Brown language upon Code section 3528 as does Government section Code that: provides, shall have the their members “Employee organizations represent in their relations . . . with the state.” Government Code employment defines, section 3529 as does Government Code section scope hours, to include all matters and other relating “wages, terms and conditions of employment.” leads The studied sections quoted directly congruence Assn, Service
conclusion that
attributed
Civil
meaning
State
Act must also be attributed to the
Employee
Meyers-Milias-Brown
Inc.
Act. And the
of NLRB v. J.
Organizations
rulings
Weingarten,
are
1001 Francisco, 22 at Cal.3d 567. is correct that Califor- supra, p. Respondent nia law does not as such contain section 7 of the National Labor Nonetheless, Relations Act. the California law has imbibed the federal as it of the policy, applies scope representation, through adoption of federal hours, “The and other terms and language. phrase ‘wages, of is LMRA, taken verbatim from conditiops where it employment’ has been a almost that given generous interpretation, including anything affect an in his might (Grodin, employee employment relationship.” Public in The Employee Act Bargaining Meyers-Milias-Brown California: in the Courts 23 (1972) L.J. fns. omitted with (cited Hastings Assn., in Cal.3d, Civil Service at 566 of 22 and in approval supra, p. Union, Social Workers’ Local 535 v. Alameda County Dept. Welfare 382, 11 461, Cal.3d 391 521 P.2d The 453]).) inclusion of within the is investigatory meetings scope in with the accorded to the federal keeping generous interpretation language. The rule has most been in M. Weingarten recently explored Alfred
Lewis, v. Inc. N.L.R.B. Cir. F.2d (9th 1978) 403. We its adopt of the California law. reasoning interpretation
“Whether an interview lead action is investigatory may an based a reasonable evaluation of all the objective inquiry upon circumstances, not reaction upon subjective employee. [NLRB J. 251, 171, Inc. (1975) 420 U.S. 257 fn. 5 L.Ed.2d (43 Weingarten, S.Ct. The court 964).] with Weingarten quoted approval NLRB’s statement that would not the rule such run- apply ‘[w]e of-the-mill as, conversations for shop-floor example, giving or instructions or corrections of work In such training needed techniques. cases there cannot be reasonable basis an normally any interview, fear that adverse result from the and thus we any impact would then see no reasonable basis for him to seek the assistance of his Id., 257-58, at 95 S.Ct. at representative.’ quoting Quality Manufac Co., 195 N.L.R.B. It should be (1972). turing acknowledged a interview in which the is or instructed supervisory questioned work about it carries with the threat that if the performance inevitably directive, cannot or will not or discharge comply follow; threat, more, but that latent without does not discipline may invoke the the assistance of a union representative. arises interview is to when significant
obtain facts action that that is support disciplinary probable being Lewis, N.L.R.B., considered.” M. Inc. v. F.2d seriously (Alfred supra, at 410.) p. *8 case are whether the
The factual issues in this meeting August would for a (which was held investigatory purpose significant and; so, refusal of if whether the of a justify presence representative) without a union Robinson to in the representative meeting participate for action taken his was a basis the dismissal by superiors.1 turns ascribed to the This case be meeting sought upon purposes 18, 1976, and to the with the his on August plaintiff by supervisors Board found action taken on that date. The State Personnel suspension was told to to the that on “the Building report August appellant leave and other office to discuss his absence without problems. Manager’s his union that would not talk to without stated he anybody appellant he was relieved of At this duty point representative being present. terminated.” eventually is, course, work, “relieved of from
Being duty” suspension action in and itself. The action was taken at disciplinary disciplinary State Board at precise “point,” according finding, It can be inferred from this which the occurred. request representation was that the for union at the finding request inference is in the cause of the dismissal. This supported proximate A was Robinson’s record. memorandum” prepared “counseling contains, It under of the August meeting. supervisors anticipation statement, reaction to his refusal. Robinson’s employee’s superior’s with me his refused to discuss regarding anything “Employee blatantly Robinson, behavior, I Mr. If this is actions or Job stated to performance. attitude, assistant with are relieved of as a Janitor duties your you your the State of Calif. Turn in ID and leave the your Badge clothing file, Plaintiff’s to the dated a memorandum premises.” superiors prepared 1976. It details Robinson’s that he following day, August request forth had until the union It sets say nothing representative present. said, Robinson, of his as follows: “I ‘Mr. under the response superiors circumstances, are relieved of duties as a Janitor you hereby your Assistant with the State of California for and are blatant insubordination 1 Weare not called in this case to determine whether of a upon Code, (See be exercised at the instance of the union. Gov. only representative 3528.) There has been no made that a union was not to be made showing § representative Rather, the record does show the union was made available plaintiff. representative available action and that such enabled the following Moreover, to continue to work to 30. Government Code section 3528 August authorizes an on his own behalf or chosen appear through of the union notwithstanding unavailability representative.
1003 in ID notified turn and hereby your badge clothing your Supervisor the State and leave You will be notified in at the premises. writing ” time.’ prescribed had Robinson to refuse the without a union meeting representa- tive if a of the was in facts significant purpose investigate meeting relation to action. memo- The contemplated disciplinary “counseling of the 18 randum” states: “After meeting prepared anticipation August the above we of feel the State California reviewing Counseling Reports, not sufficient returns from services to for the getting your compensate Therefore, amount of and we are on training supervision expending you. should not attendance attitude immedi- your performance, improve feel we action will be from ately, punitive justified prevent you future with the State of California reconciliation.” your damaging beyond The First, reveals memorandum two facts. action was certain- punitive in the minds of Robinson’s 18 of the ly superiors. purpose August was Robinson, to elicit a from the nature which meeting response constituted a fact in the minds of his which superiors upon disciplinary Second, action hinged. was not action disciplinaiy contemplated dismissal; otherwise, it was not the kind would which Robinson prevent from his future with the State of California. damaging dismissal Only would fall under that can It be inferred from this that it was the category. events of 18 which transformed a less-than-dismissal August possible action in the minds of Robinson’s the dismissal action into superiors reviewed this case. found,
On this record the State Personnel Board could have and the would evidence that a finding, significant support 18 18 events August August transformed the action into a dismissal. The contemplated disciplinary State Personnel Board made no such nor the findings, contrary findings, because it did not consider to be relevant to its them apparently determination even issue had been raised with it though Robinson’s counsel.
Such “In are a final resolution of this case. findings necessary this kind of the role of the court is to ascertain proceeding appellate whether administrative record embodies substantial evidence administrative and of the trial court.” support findings agency v. State (Coomes Personnel Board 773 (1963) Cal.App.2d is, course, 639].) The State (Italics added.) Board to make under the of Government Code required findings provisions 18682. A section failure to make an justifies appropriate findings (Webb remand. v. State Personnel Board Cal.App.3d *10 115].) Cal.Rptr. [94 case
This arose in the trial court under the of Code of Civil aegis Procedure section 1094.5. The determinations of the State Personnel Board, a statewide Constitution, its from the state deriving agency, power are reviewable under the substantial evidence test. v. (Martin State only Bd. 26 573, (1972) 577 306].) Cal.App.3d Cal.Rptr. [103 Nonetheless, the action is reviewed test the which “[although agency determines the existence absence of substantial evidence to the support of Civil section 1094.5 ais agency findings, ‘implicit [Code Procedure] that the which renders the decision must requirement agency challenged set forth the between the raw evidence and findings bridge analytic gap ultimate decision or order.’ Assn. a Scenic v. (Topanga Community 506, Los 11 Cal.3d 515 522 [(1974)] Angeles Cal.Rptr. [113 P.2d Los Alamitos Gen. 12].)” Inc. v. Lackner 86 (1978) Hosp., Cal.App.3d here, 425 Where, as the absence of a Cal.Rptr. [149 98]. crucial results such an is an finding analytic gap, appellate remedy remand. appropriate are, instance,
The critical in the first for the State Personnel findings Board to make. is reversed and the case remanded to the
Accordingly, judgment trial court with directions to issue its writ mandate peremptory the State Personnel Board to its vacate decision to its ordering subject to further review the record and to make as to existing findings of the as investigatory purpose August for union relationship request plaintiff’s decision to terminate the and to render decision agency’s consistent with this opinion. J.,P. concurred.
Regan, Acting EVANS, J. in the I concur discussion on majority’s general present state of law but dissent from the factual rights pertaining conclusions therein reached. In this I view instance the circumstances rise to the of the refused memorandum and giving preparation counseling that the counsel and confer with his as request employer related not to threatened or job performance, discipline. anticipated contention, no Contrary plaintiff’s
vested in Code Government sections 3527 and employee pursuant normal or interviews during inquiries relating job performance, even fear be imminent a as though discipline may result of his job performance. In Union, Social Workers’ Local 535 Alameda County Dept. Welfare Cal.3d 382 521 P.2d 453],
Court, while the to union acknowledging employee’s right representation at an limited that to employer-employee investigatory inquiry, right circumstances, not “a normal interview with to involving regard employ- ment matters.” (Id., 392.) at p.
Here, the interview the with Robinson requested by building manager and his related normal matters supervisor employment regarding the did matter not plaintiff’s job performance; subject contemplate discussion, or disci- interrogation, investigation relating any possible Robinson; of into conduct for of pline only investigations purposes afford the the imposing discipline employee right representation those interviews. (Ibid.) during sum,
In the intention here was to interview and discuss employer’s i.e., matters, attitude; normal it was employment job performance not intended as an activities investigation employee’s purposes of Such normal or discussions imposing discipline. employment-related interviews, as contrasted conduct, of even investigations employee not the though have discipline although by contemplated employer may been feared the do not vest the with a by employee, employee union Code, at the interview. (Gov. representation employment-related Union, 3500 et § Social Workers’ Local 535 v. Alameda seq.; County 386-392; 11 at Cal.3d Mobil Oil v. Dept., supra, pp. Corporation Welfare N.L.R.B. Cir. 482 F.2d (7th 1973) 842.) I conclusion, have arrived at considered the discourse on my having various of contained in Assn. Civil Service v. rights public employees City 22 129, Francisco Cal.3d 552 (1978) Cal.Rptr. [150 P.2d and concur with court 162], that cases of public employment, is entitled to due in matters process involving contemplated Assn., is is Civil what due? In Service discipline. question process court did not deem established in v. State prediscipline rights Skelly Bd. Cal.3d 194 (1975) 539 P.2d to be 774], [124 in matters to minor action. That conclu
applicable relating where, here, sion is also as either actual or compelled, discipline, threatened, was not At the time when was contemplated. afforded, claimed and not was by employer attempting the recalcitrant into a session for only get counseling analysis of his conduct and direction as to future At that time performance. Skelly However, mandated due was counsel) not process (presence required. it has extended the acknowledged Legislature to include the of union at representatives confrontations the enactment of the investigational Meyers by Code, Milias-Brown Act. Gov. (See 3504.) The of such §§ stated NLRB Inc. procedure succinctly Weingarten, that, U.S. 260-261 L.Ed.2d 95 S.Ct. to be 959], “The is, however, whose he seeks participation safeguard interest, not but also the only interests ing particular employee’s the entire unit to make certain that the bargaining exercising vigilance does not initiate continue employer practice imposing punishment ” Assn., (Italics In ours.) Service the California *12 unjustly. Supreme Civil Court extended the in minor disciplinary actions due public involving employees, although process representation examination, as defined is not An of the factual Skelly required. of this case discloses it be dissimilar background sufficiently Assn, factual related in Civil Service as to not disciplinary background warrant further extension of the Act into an area Meyers-Milias-Brown function, obviously dealing employee perforniance, management as from a or a minor distinguished prediscipline investigation conference. as these statutes
Applied broadly language, sweeping might as.their have had demand he been an interview in supported Robinson’s facing which was To Such was not the This case. truculent discipline be'imposed. him into a employee’s supervisors simply get were tiying “counseling” session for an I conduct. do not believe the was analysis of Legislature bent into a noncrisis upon propelling representatives that sort. In' the words of retired Associate Justice Friedman, Leonard “It would be a terrible to run railroad.” way
I would affirm judgment. and real interest and defendant petition respondent party for a December Court denied respondent hearing by Clark, J., 1979. ofwas that the should be granted. opinion petition