County Violated MMBA by Refusing Employee’s Request for Representation and Disciplining Him for Making the Request

Category: Briefing Room
Date: Mar 15, 2019 05:51 PM

Joel Madarang was a Custody Recreation Supervisor at the County of San Joaquin’s jail. As a Custody Recreation Supervisor, Madarang supervised inmate recreation programs. In 2014, Madarang began conducting bingo games for the female general population inmates on Thursday afternoons. Later, Madarang’s supervisor, Kristen Hamilton, emailed him directing him to change the start time of the bingo games from 1:00 p.m. to 10:30 a.m. in order to make room for a new mental health program designed to decrease the recidivism rate.

In the following months, Madarang held numerous bingo games in the morning. However, on three occasions, he held bingo games in the afternoon. Madarang understood that Hamilton had directed him to move the time of the bingo game so as not to interfere with the new mental health program, but he also believed he had discretion to make changes to the recreation schedule. As a result, Madarang did not seek Hamilton’s authorization before holding the bingo games in the afternoon.

Hamilton learned that the bingo games Madarang held in the afternoon were affecting the attendance of the mental health program. Hamilton sent Madarang an email asking why he was holding bingo games in the afternoon when she had directed him to hold them in the morning. After Madarang explained verbally, Hamilton sent a follow-up email expressing her frustrations and directing Madarang to write a memo explaining why he failed to follow her directions and to bring it to her office.

Madarang told Hamilton that he wanted to speak to a union representative first. Hamilton responded that Madarang did not need a union representative for this and that he should just write the memo so she could get his side of the story and correct his behavior. Madarang continued to request a union representative prior to writing the memo.

Hamilton consulted with the jail’s custodial captain, who told her that if Madarang wanted to speak with a representative, he should be allowed to bring one when he delivered Hamilton the requested memo. Instead of relaying that information to Madarang, however, Hamilton requested an internal affairs investigation regarding Madarang’s refusal. The County placed Madarang on paid administrative leave and investigated the allegations against him. Madarang received a 10-day suspension for insubordination.

PERB found that the County violated the MMBA by refusing to grant Madarang’s request for a union representative, and then by disciplining him because of his request. PERB noted that “[a]n employer faced with a valid request for representation has three options. It may: (1) grant the request; (2) discontinue the interview/request for information and investigate through other means; or (3) offer the employee the option of continuing the interview without representation or having no interview at all.” PERB noted that Hamilton’s order that Madarang draft the memo and bring it to her was well outside an employer’s permissible responses to an employee’s request for a representative.

PERB also found that by initiating an investigation into Madarang’s alleged insubordination after he repeatedly requested representation, the County punished him for making such requests. There was no evidence that Hamilton had considered discipline or sought to involve internal affairs before Madarang requested a representative. PERB noted that there would not have been an internal affairs investigation or discipline absent Madarang’s request for representation. Thus, PERB concluded that the County violated both Madarang and the union’s rights under the MMBA.

County of San Joaquin (Sheriff’s Dep’t), PERB Decision No. 2619-M (2018).

NOTE:
Agencies must allow an employee the right to representation if: the employer seeks to elicit information that the employee reasonably believes could potentially affect the employment relationship; and the employee asks for a representative. 

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