ROBINSON v. DIRECTOR OF DEPARTMENT OF GENERAL SERVICES

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Court of Appeal, Third District, California.

William ROBINSON, Plaintiff and Appellant, v. STATE PERSONNEL BOARD of the State of California, Defendant and Respondent; DIRECTOR OF the DEPARTMENT OF GENERAL SERVICES, Real Party in Interest and Respondent.

Civ. 16892.

Decided: February 02, 1978

Loren E. McMaster and Philip E. Callis, Sacramento, for plaintiff and appellant. Evelle J. Younger, Atty. Gen., and Carol Hunter, Deputy Atty. Gen., for defendant and respondent and real party in interest and respondent.

The Director of the Department of General Services dismissed plaintiff Robinson as a janitor in that department. After an administrative hearing, the State Personnel Board concurred in the findings of the hearing officer and sustained the dismissal. Robinson then filed a petition for writ of mandate with the Sacramento Superior Court to compel his reinstatement. He appeals from the judgment denying the writ.

In its written notice of punitive action (Gov.Code, s 19574), the Department of General Services charged Robinson with acts constituting “Insubordination,” “Inexcusable absence without leave,” and “Other failure of good behavior either during or outside of duty hours . . . of such a nature that it causes discredit to his agency or his employment.”

After taking evidence, the hearing officer found that (1) on June 26, 1975, although personally instructed by a supervisor to clean baseboards in Building 042, Robinson refused and was counseled by his supervisor. (2) On January 7, 1976, Robinson was instructed to report to Building 093 for work; he refused and left the job. He was logged as absent without leave for an eight-hour shift and was counseled again by his supervisor about his job-related attitude. (3) On April 6, 1976, Robinson was counseled by his superior for excessive use of sick leave on Fridays and Mondays. During the counseling session, he became quite belligerent and shouted at the counseling supervisor. (4) On July 7, 1976, upon short notice, Robinson requested eight-hours vacation in order to have a CB radio repaired. His request was denied, and he was advised to report to work as the shift was shorthanded. He reported three hours late after having the radio repaired. He was logged as absent without leave for three hours and again counseled on his job attitude and his absences without permission. (5) On August 13, 1976, Robinson was again absent without leave for a full eight-hour shift. When he returned to work on Monday, August 16, 1976, his supervisor attempted to deliver a counseling memorandum to him and also to counsel him in person; Robinson again became belligerent and refused to accept the memorandum or any counseling advice. He told the supervisor to send it to his union representative and refused to accept the memorandum. Later, during that shift, Robinson refused to perform duties as instructed on two specific occasions and left his assigned building without permission. He was once again logged as absent without leave for five hours and for an eight-hour shift on the following day as a result of his absence from duty. (6) On the 18th of August 1976, Robinson refused to discuss any of the incidents with the building manager or his supervisor, and demanded the right to union representation prior to such discussion relating to his job performance. At that time he was relieved of his duties. On the 24th of August, formal notice of dismissal and the reasons therefor was prepared and delivered to plaintiff.

On appeal Robinson contends he was wrongfully dismissed because of his demand for the presence of a union representative during the proposed meeting with the building manager and his supervisor, as well as his refusal to accept delivery of a counseling memorandum, demanding that it be delivered to the union representative. In support of his contention he asserts as authority Government Code sections 3527 and 3528, and further argues that Government Code section 3531 requires his reinstatement without regard to the sufficiency of the evidence to support the charges. The contention is without legal or factual support.

I

Section 3527 establishes the statutory right of state employees to form, join, or refuse to join and participate in the activities of employee organizations for the purpose of representation on matters of employer-employee relations. Section 3528 provides the right of employee organizations to represent their members in their employment relations with the state, including grievances. Section 3531 prohibits the state and employee organizations from interfering with or intimidating, restraining, or coercing or discriminating against employees because of the exercise of their rights, under section 3527, either to organize or to refuse to join employee organizations.

On August 16, 1976, the plaintiff refused to accept the counseling memorandum relating to his employment performance and two days later refused to confer with his supervisors and the building manager relating to that performance without the presence of a union representative. That right as demanded by plaintiff is not afforded by Government Code sections 3527 and 3528.

The “Local Public Employee Organizations Law” contained in Government Code section 3500 et seq. generally known as the Meyers-Milias-Brown Act is the authority for, and provides recognition of, the right to association and representation of public employees. Within that act Government Code section 3500 guarantees public employees “the right . . . to join organizations of their own choice and be represented by such organizations in their employment relationships with public agencies.” Those rights specified in section 3500 are reiterated and not expanded upon in section 3527. Government Code section 3504 affords a public employee the right to union representation at an interview with the employer when the employee may believe the interview will involve an investigation of his union-related activities and possibly sanctions against him as a result of those activities. (See Social Workers' Union, Local 535 v. Alameda County Welfare Dept. (1974) 11 Cal.3d 382, 390, 113 Cal.Rptr. 461, 521 P.2d 453.)

In this instance the circumstances giving rise to the preparation of the refused counseling memorandum and the request that the employee counsel and confer with the employer were related to job performance, not with union activities.

Contrary to plaintiff's contention, no right to union representation is vested in the employee pursuant to Government Code sections 3527 and 3528 during normal inquiries or interviews relating to job performance, even though the employee may fear discipline may be imminent as a result of his job performance.

In Social Workers' Union, Local 535 v. Alameda County Welfare Dept., supra, 11 Cal.3d 382, 113 Cal.Rptr. 461, 521 P.2d 453, the Supreme Court, while acknowledging the employee's right to union representation at an employer-employee meeting or investigatory inquiry, limited that right to circumstances where the activity being investigated related directly to the employee's union activities. The court at page 386, 113 Cal.Rptr. at page 464, 521 P.2d at page 456, stated, “Since the investigation touched upon the statutorily guaranteed associational rights of the employees, and since the employees could reasonably fear that the investigation might lead to disciplinary penalties for such union participation, we hold that the employee could properly demand the presence of a union representative at such interview.” (Emphasis added.) (Fn. omitted.)

The Supreme Court continued on page 392, 113 Cal.Rptr. on page 468, 521 P.2d on page 460, stating, “the employer's investigation here did not constitute a normal interview with regard to employment matters but, instead, an inquiry that focused upon the employee's conduct regarding the use of county cars in connection with a union rally.”

Here, the interview requested by the building manager with Robinson and his supervisor related to normal employment matters regarding plaintiff's job performance; the subject matter did not contemplate a discussion, interrogation, or investigation relating to Robinson's union activity; only investigations into the latter kind of conduct afford the employee the right to union representation during the employment interviews. (Ibid.)

In sum, the employer's intention here was to interview and discuss normal employment matters, i. e., job performance and attitude; it was not intended to focus on the employee's union activities. Such normal employment-related discussions or interviews, even though discipline arising out of them may be contemplated by the employer or feared by the employee, does not vest any right in the employee to union representation at the employment-related interview. (Gov.Code, s 3500 et seq.; Social Workers' Union, Local 535 v. Alameda County Welfare Dept., supra, 11 Cal.3d at pp. 386-392, 113 Cal.Rptr. 461, 521 P.2d 453; Mobil Oil Corporation v. N.L.R.B. (7th Cir. 1973) 482 F.2d 842.)

II

The foregoing discussion adequately answers plaintiff's remaining contentions that as a matter of law, Government Code section 3531 requires his reinstatement regardless of the sufficiency of the evidence to support the discipline imposed. We will, however, consider that contention as a direct challenge to the sufficiency of the evidence to support the findings and his ultimate dismissal.

Factual determinations of the State Personnel Board an agency which was created by, and derives its adjudicating power from, the Constitution “ ‘are not subject to re-examination in a trial de novo but are to be upheld by a reviewing court if they are supported by substantial evidence.’ ” (Martin v. State Personnel Bd. (1972) 26 Cal.App.3d 573, 577, 103 Cal.Rptr. 306, 308.)

While reviewing the evidence placed before the State Personnel Board, the superior court exercises the same function as this court. (Martin v. State Personnel Bd., supra; Neely v. California State Personnel Bd. (1965) 237 Cal.App.2d 487, 489, 47 Cal.Rptr. 64.) Neither court may reweigh the evidence, and we are bound to consider the evidence in the light most favorable to the Board, giving it every reasonable inference and resolving all conflicts in its favor. (Gee v. California State Personnel Bd. (1970) 5 Cal.App.3d 713, 717, 85 Cal.Rptr. 762.) The evidence presented more than meets the quantitative and qualitative tests of sufficiency in support of the findings and the punitive action taken. The record reveals that in 1975 and 1976, on repeated occasions, the plaintiff was absent without leave, he was counseled against such absences; he was belligerent with his supervisors; he refused to perform his janitorial tasks as directed, and ultimately refused job performance counseling in person and by memorandum. That evidence presented was weighed by the trier of fact and decided adversely to plaintiff. (People v. Cannedy (1969) 270 Cal.App.2d 669, 676-677, 76 Cal.Rptr. 24.) Our review of that evidence reveals it to be substantial in support of the findings of the trier as well as those of the State Personnel Board.

The judgment denying the petition is affirmed.

I concur in the result. I do not agree that Government Code sections 3502, 3504, 3527-3528 guarantee organizational participation only in those employer-employee meetings which involve organizational representation or activity. To the contrary, sections 3502, 3504 and 3527 speak of organizational representation “on all matters of employer-employee relations.” (Emphasis supplied.) Moreover, it is inaccurate to say that Social Workers' Union, Local 535 v. Alameda County Welfare Dept., 11 Cal.3d 382, 113 Cal.Rptr. 461, 521 P.2d 453, sustains the right to organizational representation only when the investigation centers on union activity.

Applied as broadly as their sweeping language, these statutes might have supported Robinson's demand had he been facing an interview in which discipline was to be imposed. Such was not the case. This truculent employee's supervisors were simply trying to get him into a “counseling” session for an analysis of his conduct. I don't think the legislature was bent upon propelling union representatives into a non-crisis meeting of that sort. It would be a terrible way to run a railroad.

EVANS, Associate Justice.

JANES, J., concurs in the result and in the concurring opinion of FRIEDMAN, Acting P. J.

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