On or about August 8, 2009, the Executive Board of the Merced County Sheriff’s Employees Association (MCSEA) met with the Association’s attorney Barry Bennett to discuss a variety of employment issues. At the meeting, an incident from the previous day was discussed where several inmates at the Main Jail attacked another inmate in the Main Jail yard. According to the information about the incident provided to the Association’s Board, the assigned officers were not provided with non-lethal weapons and, consequently, were unable to deter the inmates from continuing their assault with the result that the safety of inmates and the officers was placed at risk.
Bennett memorialized these concerns in a letter sent to the Sheriff. On August 10, 2009, these concerns were memorialized in a letter written by Bennett and sent to Pazin. Fairly quickly, a commander began an investigation into whether the safety issues could have been reduced if officers were issued a pepper ball launcher – a forced compliance weapon that launches a projectile which breaks on impact and releases a chemical irritant. The commander obtained the video footage of the incident, and concluded that a pepper ball launcher would not have been effective in stopping the fight.
An investigator met with Association president Frank Melo to discuss the issue, and asked Melo who had told him there had been a fight in the yard. Melo told him, “We discussed it among ourselves.” The investigator again asked Melo who had told him there was a fight in the yard. Melo asked the investigator if he was ordering him to reveal the name and the investigator told him that he was. When Melo identified the officer, the investigator said, “That is your problem right there.”
Melo testified that after the meeting, he no longer wanted to perform his duties as Association president because he feared that he would be fired and did not want another confrontation with management. The MCSEA board convinced Melo not to resign as president before his term expired, and the Association filed an unfair labor practice complaint against the County.
California’s Public Employment Relations Board held that the discussion at the Executive Board meeting was privileged, and that the County had violated the law by asking Melo to relate the conversation. The Board found that “Melo’s response to the initial inquiry as to who stated the fight occurred on the yard was ‘we discussed it among ourselves,’ however, such response was coupled with statements from the complaining employee that he met with Association members to address these concerns. These two together establishes to a reasonable person that this discussion occurred among the Association representatives. Therefore, when the investigator ordered Melo to answer his question after his second inquiry, he was now inquiring into the internal discussions of the Association as they were meeting with their attorney. Such inquiry creates at least slight harm to employee rights as it would tend to chill Association representatives’ discussions with their legal representatives if they knew such discussions would later be the subject of immediate disclosure by a manager’s order.
“Reporting safety concerns to an exclusive representative is protected activity. Therefore, whether the complaining employee told Melo, or any other Association representative, about his safety concerns prior to the executive board meeting does not change our conclusion that the investigator’s dogged inquiry about the identity of the reporter interfered with protected rights in this case. The harm here is not simply seeking to learn what transpired at a union meeting and is not dependent on whether an attorney was present. The harm lies in the potential chilling effect the employer’s conduct under the facts in this case has on employees’ discussions with their union representative about matters protected under the collective bargaining law.”
Merced County Sheriff’s Employee Association v. City of Merced, # 2361-M (Cal. PERB 2014).