Court of Appeal:
Third District Says Right Is Derived From Dill Act; Rejects View That Representative Need Not Be Allowed Where There Is No Investigatory Interview Or Where Purpose Is Crime Detection
By a MetNews Staff Writer
A state employee’s right, under the Dill Act, to have a union representative present during an investigatory interview extends to having such a representative on hand during a strip search conducted for law enforcement purposes, even where no questions are posed, the Third District Court of Appeal held yesterday.
Presiding Justice Vance W. Raye authored the opinion which, though apparently presenting an issue of first impression, was not certified for publication. The opinion affirms, with a modification, a Nov. 27, 2018 decision of the Public Employment Relations Board (“PERB”).
The PERB opinion, by board member Arthur Krantz, an Oakland attorney, affirms a determination by an administrative law judge that the California Department of Corrections and Rehabilitation (“CDCR”) violated the right of its employee Amy Ximenez, under the Ralph C. Dills Act, to be represented by her union, the California Association of Psychiatric Technicians during an unclothed body search. She made an express demand for a representative to be present.
Ximendez 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. No such substance was found on her person.
Provisions of Act
The Dills Act is contained in Government Code §3512 et seq. Sec. 3519 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 as authorizing a union representative at an investigatory interview of a state employee. CDCR argued that Ximendez had no right to accompaniment by a representative where no interview took place and the purpose was a criminal investigation.
It also contended that if Ximendez did have any such right, she waived it by signing a document, as a condition of employment, acknowledging the employer’s right to conduct a search of employees.
Krantz said in the PERB decision:
“The primary issue is whether an invasive search of an employee’s person is the type of investigatory meeting which triggers a right to union representation. We uphold the ALJ’s conclusion that an invasive search of an employee’s person, including an unclothed body search, is the type of investigatory meeting which gives rise to the right to union representation. We further hold that if an employer rejects an employee’s request for representation, she cannot be found to have voluntarily waived her right to representation. Moreover, an employee does not waive her right to union representation by signing an acknowledgement of the employer’s rule that she is subject to search at any time while on the employers grounds.”
In his opinion affirming the PERB decision, Raye said that CDCR failed to cite any “PERB or court decisions supporting its position that a criminal investigation is not subject to the Dills Act.”
Under precedent, he wrote, “A.X. was entitled to the union representation she requested even though CDCR maintains it was conducting a criminal investigation,” adding:
“The search was clearly investigatory.”
Raye 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 A.X., and thereby avoid proceeding with a search that the ALJ found to be a breach of CDCR policy.”
The PERB decision orders CDRC to cease and desist from “1. Interfering with employees’ right to have a union representative during an unclothed body search, upon request” and “2. Denying the California Association of Psychiatric Technicians…the right to represent its members.” Raye pointed out that “the Dills Act only applies where the agency is acting as an employer.”
“[W]e modify PERB’s decision to limit an employee’s right to have a union representative present prior to and during an invasive body search to circumstances where CDCR and its representatives constitute the appointing authority or are acting as an employer and the employee reasonably fears discipline.”
The case is Department of Corrections and Rehabilitation v. Public Employment Relations Board, C088562.
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