PERB Ruling on District Investigations

On June 26, 2019, the Public Employee Relations Board (PERB) issued a 44-page ruling overturning the initial decision of an administrative law judge (ALJ) in response to two “Unfair Labor Practice” complaints filed by United Faculty in 2016. Where the ALJ had found that the District violated the Educational Employment Relations Act by refusing to provide UF with copies of written complaints prior to investigatory interviews, PERB found that “a union has a right to reasonable notice of the alleged wrongdoing in advance of an initial investigatory interview, but the union does not obtain the right to an underlying written complaint until after the initial investigatory interview.” The unfair practice complaints and underlying unfair practice charges were therefore dismissed.

The full text of the PERB ruling is here: PERB-Investigations-Ruling.

Although PERB ruled in favor of the District, the lengthy decision does not resolve many key issues that have been in dispute, and on many issues PERB sided with the UF. They rejected any “blanket rule” for refusing to provide the Union with information regarding complaints but suggested that a case-by-case “two-way negotiation” should take place balancing privacy concerns and other factors with the Union’s legitimate need for information in order to represent its members. Much of the ruling describes the “nuanced approach” that should govern the sharing of information during misconduct investigations, noting that providing “only general information” may be “too vague to allow meaningful representation.” But the ruling is not specific in articulating exactly what sort of information an employer must provide or when.

Instead, the ruling seems to invite more litigation, even to the point of suggesting that the District “likely violated the reasonableness standard by strategically withholding the substance of allegations,” but noting that this standard is not referenced in the UF’s complaints. We could appeal or file fresh charges, but we hope we can now reach agreement and develop new protocols for investigations and disciplinary matters using the PERB ruling as a starting point. If not, then we may need to re-litigate.

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