‘Gag Order’ On Union President Ruled Illegal

The Santa Clara County Correctional Peace Officers’ Association represents correctional employees of Santa Clara County, California. Sergeant Lance Scimeca is the president of the Association.

Beginning in September 2015, news outlets reported that inmate Michael Tyree had allegedly been beaten to death by correctional deputies. In response to these news reports, Sheriff Laurie Smith gave a press conference. Scimeca later testified that he and other Association members believed that the Sheriff had proclaimed the guilt of the members who had been arrested and cast the remaining members of the Association in a negative light.

Immediately following the press conference, Scimeca reported a dramatic increase in the number of calls he received from CPOA members voicing concerns about their job security and/or imminent changes to their working conditions. There were also uncorroborated rumors that the Sheriff’s Office had created a “Blue Ribbon” commission “to look at jail operations.” Scimeca reported that employees feared that a Blue Ribbon commission would unilaterally change working conditions at the jail facilities.

In response to members’ concerns, Scimeca produced a video and posted it on YouTube, assuring members that CPOA would support members throughout the investigation of Tyree’s death. This video was critical of the manner in which the Sheriff’s Office was handling the investigation. The video was widely viewed and received a number of comments from current and former Association members.

Shortly afterwards, Scimeca received a notice from Sheriff Smith informing him that he was being placed on administrative leave with pay pending disciplinary action, and that he should not return to work until notified to do so. The notice ordered Scimeca to surrender his Sheriff’s Office ID, keys, and to “stay away from all Sheriff’s Office property, facilities and functions unless specifically directed to enter or attend.” Smith also ordered Scimeca to not “discuss this matter with any witnesses, potential witnesses, the complainant, or any other employee of the Sheriff’s Office other than your official representative.”

Later, the County modified the terms of Scimeca’s administrative leave to allow him to discuss union matters with Association members and to participate in bargaining sessions. The modified terms said nothing about whether Scimeca was now allowed on County property.

An administrative law judge (ALJ) with California’s Public Employment Relations Board found that the restrictions on Scimeca’s activities amounted to illegal interference with the Association’s internal activities. The ALJ began by reciting law developed over many years that an employer can interfere with union communications only if it shows “a legitimate and substantial business justification.”

The ALJ found that “it is clear that the County’s so-called gag order interferes with Scimeca’s protected right to discuss his terms and conditions of employment with his fellow coworkers. The fact that the County specifically exempted Scimeca’s “official representative” from the gag order does not erase the interference. Employees have a protected right to speak to each other about their workplace concerns – not just to their exclusive representative.

“The reason the County’s justifications fail to meet the legitimate and substantial threshold is that they state only general concerns unconnected with the particular investigation of Scimeca. The County provides very limited information about the basis of its investigation of Scimeca. First, the County only learned of the alleged misconduct because of a separate investigation that occurred under a court-ordered seal. Even assuming that separate investigation involved illegal conduct, there is no evidence that Scimeca engaged in illegal conduct, nor has the County intimated such.

“In fact, the County loosely characterizes the alleged misconduct as a violation of the communications policy. And while the County asserts that the violation was ‘egregious,’ and could lead to discipline, there are no additional facts which would tend to indicate that the safety of inmates or coworkers was compromised by the alleged misconduct or that Scimeca had abused his position or intimidated coworkers or inmates. In short, the County gives very little beyond its own characterization of the conduct as egregious to warrant denying Scimeca his right to meet and confer with coworkers about working conditions.

“The County apparently imposes the same communications ban on all employees under investigation. This broad and undifferentiated confidentiality rule fails to tip the balance in favor of curtailing employees’ protected rights. Without going so far as to impose upon the County a duty to determine if witnesses need protection or evidence was in danger of being destroyed, I note simply that the County has not presented a legitimate business justification for the gag order in relation to Scimeca’s investigation.

“What is especially problematic has to do with the specific working conditions for bargaining unit members. Employees are not permitted to leave the jail facility during their work shift, and interviews by supervisors and Internal Affairs are conducted in the jail facilities. The Association has only one full-time employee who is not a County employee, and there are no Association members on release time. What this means is that the only union representatives available to represent members are other County employees. Accordingly, I find that the County’ s conduct unlawfully interfered with the Association’s and committed an unfair labor practice.”

Santa Clara County Correctional Peace Officers’ Association, 41 PERC ¶ 83 (Cal. PERB ALJ 2016).