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Court of Appeal of California

Fourth Appellate District

Division Two

Nitza Traina,

Plaintiff and Appellant,

v.

City of Fontana,

Defendant and Respondent.

 

E031851

2003 Cal. App. Unpub. Lexis 1623

February 20, 2003, Filed

 

NOTICE: NOT TO BE PUBLISHED IN OFFICIAL REPORTS CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 977.

 

Ward, J., Ramirez, P.J. Hollenhorst, J. concur

 

Plaintiff and appellant Nitza Traina was an employee of defendant and respondent City of Fontana (the City). She was charged with certain misconduct, given a Skelly n1 hearing, and then terminated. Plaintiff filed an appeal, and the matter was heard by an arbitrator. The arbitrator upheld the termination. Plaintiff then filed a petition for writ of mandate (writ petition), which was denied. She now appeals from the trial court's judgment in favor of the City, denying plaintiff's writ petition.

 

On appeal, plaintiff's sole contention is that the City wrongfully refused her request for representation at an interview that was held prior to her termination to investigate the charged misconduct. Plaintiff claims she was entitled to representation at the investigatory interview, pursuant to Labor Code section 923. n2 We shall affirm the judgment.

 

FACTUAL AND PROCEDURAL BACKGROUND

 

Plaintiff was a Human Resources Analyst for the City. She was a confidential employee, which meant that she had access to sensitive, personnel-related information. Plaintiff was not a member of any labor union.

 

On April 3, 1998, an investigatory interview of plaintiff was conducted by plaintiff's supervisor, Human Resources Director Gracie Harmon, and the City's counsel, Brad Neufeld. Plaintiff requested representation by counsel, but was told that she was not entitled to counsel at the interview. Harmon and Neufeld questioned plaintiff concerning two incidents. First, on March 6, 1998, plaintiff told a coworker that the city manager had had affairs with women in city hall while he was married. Plaintiff continued to talk about other city employees who had engaged in sexual relations with coworkers. Second, later, the same day, plaintiff speculated that an employee may have taken an extended lunch without reporting it on her time sheet. Plaintiff and a coworker went into the suspected employee's office to look for the time sheet in question. Plaintiff looked through the employee's in-basket, and directed the other coworker where to look for the time sheet. Later that day, plaintiff instructed another coworker to look for the time sheet.

 

At the investigatory interview on April 3, 1998, plaintiff either denied that she had made the alleged statements or acted as alleged, or stated that she did not recall the conversations or her actions on March 6, 1998. Specifically, she stated that she did not recall any conversation about the city manager, about the sexual affairs of other city employees, or about an employee who took an extended lunch. She also denied attempting to obtain the employee's time sheet or witnessing anyone else trying to obtain it.

 

As a result of her actions and her responses during the investigation, plaintiff was charged with: "'1. discourteous treatment of the public or other employees. 2. willful or negligent disobediance of any law, ordinance, City rules, Department regulation, or superior's lawful order. 3. Conduct unbecoming an officer or employee of the City. 4 Willful making of a false official statement. 5. Insubordination.'"

 

On April 28, 1998, plaintiff and her representative met with City Manager Frank Schuma to discuss her proposed termination. Plaintiff continued to deny virtually all allegations against her, despite statements from other employees that significantly differed from plaintiff's statements. In Schuma's notice of termination, he stated that his decision to terminate plaintiff's employment was based on the following: (1) plaintiff's alleged misconduct; (2) given the "overwhelming amount of credible evidence contradicting [plaintiff]," the city manager noted that plaintiff's persistent denials showed "a dishonest and unremourseful [sic] attitude"; (3) plaintiff's misconduct exhibited "an intent to discredit and undermine City management;" and (4) as a confidential employee, plaintiff's misconduct was "all the more serious inasmuch as it undermined the very nature" of her job.

 

Plaintiff was given a Skelly hearing, where she was represented by legal counsel. Following her Skelly hearing, plaintiff's employment was terminated. Plaintiff then appealed, and an evidentiary hearing was conducted by an arbitrator, Ernest Gould. The general issues presented in the appeal were whether the allegations against plaintiff were true, and, if so, whether termination was the appropriate discipline. Gould upheld plaintiff's termination, finding that the City had proved each of the charges by a preponderance of the evidence. Gould also stated that plaintiff's continued evasiveness and lack of honesty in these proceedings justified termination and that her lack of credibility made it impossible for her to continue as a confidential employee with the City.

 

Plaintiff filed a petition for writ of mandate on June 4, 1999, alleging that the arbitrator's decision was invalid because: (1) his findings were not supported by the weight of the evidence; (2) he based his decision to uphold her termination on acts or omissions that were different from those relied upon by the City; (3) the City denied plaintiff's right to a representative during the April 3, 1998 investigative hearing, thereby violating the First and Fourteenth Amendments to the United States Constitution; (4) the penalty of termination was excessive; (5) her comments were protected speech; and (6) her termination was "a form of reprisal for" her exercising her rights under the California Fair Employment and Housing Act (Gov. Code, 12900 et seq.) and section 704(a) of title VII of the Civil Rights Act of 1964 (42 U.S.C.A. 2000e-3 et seq.).

 

The trial court denied plaintiff's petition, finding that there was sufficient evidence to support her termination. With regard to plaintiff's alleged right to counsel at the April 3, 1998 interview, the court held: "At the time of the April 3, 1998, investigation, the rule was that . . . employees [not represented by a union] had no right to representation at an investigatory hearing. Accordingly, Neufeld was correct in advising both [plaintiff] and Ms. Harmon of this fact, and Ms. Harmon appropriately continued with the hearing."

 

This appeal followed.

ANALYSIS

 

Plaintiff's sole contention is that she was entitled to be represented by counsel at the April 3, 1998 investigatory interview, pursuant to section 923. We disagree.

 

At the outset we note that, although plaintiff raised the issue of her alleged right to representation at the investigatory interview in her writ petition, she alleged that the refusal to allow her a representative was a violation of the First and Fourteenth amendments to the United States Constitution. She did not allege any right to representation under section 923. Although this theory was not advanced in the trial court, as asserted by the City, "it is settled that a change in theory is permitted on appeal when 'a question of law only is presented on the facts appearing in the record. . . .' [Citations.] The general rule confining the parties upon appeal to the theory advanced below is based on the rationale that the opposing party should not be required to defend for the first time on appeal against a new theory that 'contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial.' [Citation.] Such is not the case here." n3

 

I. Section 923 is Not Applicable

 

Section 923 is wholly inapplicable to the facts at hand. Section 923 provides, in its entirety: "In the interpretation and application of this chapter, the public policy of this State is declared as follows: Negotiation of terms and conditions of labor should result from voluntary agreement between employer and employees. Governmental authority has permitted and encouraged employers to organize in the corporate and other forms of capital control. In dealing with such employers, the individual unorganized worker is helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment. Therefore it is necessary that the individual workman have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."

 

In her opening brief, plaintiff argues that her right to be represented by counsel at the investigatory interview arises from the portion of section 923 which states: "it is necessary that the individual workman have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives . . . . " However, there is no reference in this portion of section 923 to an employee's right to counsel at an interview investigating alleged misconduct.

 

Plaintiff misconstrues the purpose and meaning of section 923. The purpose of section 923 is explained by the court in Service Employees International Union v. Hollywood Park, Inc.: n4 "Section 923 announces it is the public policy of this state to uphold the freedom of employees to organize and enter into collective bargaining contracts for their own protection. [Citation.] It expressly recognizes that the rights of labor must be guaranteed because 'in dealing with . . . employers, the individual unorganized worker is helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment.' [Citation.] Accordingly, it guarantees employees 'full freedom of association, self-organization, and designation of representatives of his own choosing [to negotiate the terms and conditions of his employment.]' [Citation.] Furthermore, the policy stated therein explicitly includes protection 'from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.' (Ibid.)" (Italics added.)

 

A. Section 923 Concerns the Negotiation of Terms and Conditions of Employment

 

In Robinson v. Hewlett-Packard Corp., n5 an employee who had suffered a work-related back injury was transferred to a position in which the strain on his back would be lighter. The quality and quantity of his work declined in that position, and, after being placed on probation, he was terminated. One of the plaintiff's theories was that his employer terminated him in retaliation for his attempt to exercise his legal rights. He presented evidence "showing that he had requested the presence of his attorney at any conference in which [his employer's] representatives discussed the quality and quantity of his work. In the court below, as here, he based his argument on the provisions of Labor Code section 923 and upon a sentence in Montalvo v. Zamora . . . which reads as follows: 'We believe it to be within the intent and scope of the statute, by implication, though not expressly declared, that the individual employee has the right to designate an attorney or other individual to represent him in negotiating terms and conditions of his employment, and that his discharge for so doing constitutes a violation of Labor Code section 923.' [Citation.]" n6

 

The Robinson court explained that "the Labor Code speaks plainly of 'negotiations' concerning 'terms and conditions of labor.' The plaintiffs in Montalvo [citation] attempted to negotiate to obtain certain hourly wage rates for agricultural workers. [Citation.] But the statutory phrase 'terms and conditions of labor' says nothing about an employee's performance standard. Interpreted in its broadest form, we cannot discern in the wording of the statute any legislative intent to the effect that an employee has the right to have an attorney present at any time his boss discusses with him his good or poor performance. . . . We think 'terms and conditions of labor' refers precisely to that: terms and conditions. Performance on the job is quite another matter." n7

 

Similarly, here, section 923 did not give plaintiff the right to have an attorney present when her supervisor was discussing her alleged misconduct. In her reply brief, plaintiff makes contradictory arguments concerning "terms and conditions of employment." Initially, she contends that the City's argument that section 923's language "only applies to negotiating 'the terms and conditions of employment' is plainly inaccurate." She then argues that section 923 applies here because "disciplinary matters and investigatory interviews that may lead to discipline are terms and conditions of employment." (Italics in original.)

 

As stated in Robinson, "terms and conditions of labor" as used in section 923 does not refer to discussions about an employee's job performance or misconduct on the job. Moreover, section 923 provides, in part, "that the individual workman have full freedom of . . . designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers . . . in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." (Italics added.) The purpose of the April 3, 1998, interview was to investigate plaintiff's alleged misconduct. No negotiation of any terms or conditions of her employment or collective bargaining occurred. Section 923 has no applicability.

 

B. Montalvo and its Progeny are Inapposite

 

Plaintiff also contends that the "first case presenting the issue of whether Labor Code [section] 923 extended rights to individuals to be represented by an attorney rather than a labor union" was Montalvo v. Zamora. n8 However, there is no issue in the case at hand as to whether section 923 gives an individual the right to be represented by an attorney, rather than a labor union. The only issue presented is whether section 923 provides that plaintiff had the right to representation of any kind at the investigatory interview.

 

Plaintiff asserts that "Montalvo and its progeny thus establish that an employee who is not represented by a union representative has the right to have an attorney represent the employee in meetings management requires her to attend at least to the extent she would be entitled to have a union representative present were she subject to a collective bargaining agreement." We fail to see how Montalvo supports this contention.

 

In Montalvo, the issue raised was "whether the defendant [employer] violated any law in allegedly discharging the plaintiffs [employees] because they designated an attorney to represent them for the purpose of negotiating terms and conditions of employment with the defendant." n9 The court stated that "clearly, the declared purpose of Labor Code section 923 is to guarantee to individual employees full freedom of self-organization and of association with others 'for the purpose of collective bargaining or other mutual aid or protection,' free from interference or coercion by their employers. [Citations.]" n10 The court proceeded to discuss "whether the individual employee has a correlative right to designate an attorney or other individual to act as his representative to negotiate terms and conditions of employment, independent of all other employees of the same employer." n11 The court concluded that it was within the intent and scope of section 923 that "the individual employee have the right to designate an attorney or other individual to represent him in negotiating terms and conditions of his employment, and that his discharge for so doing constitutes a violation of Labor Code section 923." n12 The court, therefore, held "that the plaintiffs state a cause of action for civil relief when they allege that they were discharged because they designated an attorney to represent them for the purpose of negotiating terms and conditions of employment." n13

 

Thus, Montalvo is inapposite. The court there merely determined that an individual has the right, under section 923, to designate an attorney to represent him [or her] for the purpose of negotiating terms and conditions of employment and that the discharge of an employee for exercising that right violated section 923.

 

C. Plaintiff Was Not a Member of a Union

 

Plaintiff further contends that certain language in section 923 is "practically identical" to language in section 7 of the National Labor Relations Act (NLRA), and that such language was relied upon in NLRB v. J. Weingarten, Inc. n14 and Epilepsy Foundation of Northeast Ohio v. N.L.R.B. n15 "in extending an individual nonunionized employee the right to designate a representative at an 'investigatory interview which the employee reasonably believes might result in disciplinary action.'"

 

In Epilepsy Foundation, the court discussed the history of the interpretation of section 7 of the NLRA, under which employees in a unionized workplace may request the presence of a union representative at an investigatory interview which the employee reasonably believes might result in disciplinary action. This is known as the Weingarten rule. The National Labor Relations Board (the Board) had "changed its mind" several times regarding the application of Weingarten rights to employees not represented by a union. However, at the time when the underlying case in Epilepsy Foundation arose, the Board's policy on the application of Weingarten rights was clear - employees not represented by a union could not invoke Weingarten. The court found that the rule could not be applied retroactively. n16

 

The court below found that the holding in Epilepsy Foundation was on point. In its ruling on the writ petition, the court stated that there was no dispute that plaintiff was not a member of a union. The court found that, "at the time of the April 3, 1998, investigation, the rule was that unrepresented employees had no right to representation at an investigatory hearing. Accordingly, Neufeld was correct in advising both [plaintiff] and Ms. Harmon of this fact."

 

As discussed above, section 923 is not applicable here. (See ante, I.A.) To the extent the language in section 923 is analogous to the language in section 7 of the NLRA, we agree with the trial court that plaintiff had no right to representation at the time of the hearing.

 

II. There Was No Ex Parte Contact with a Represented Party

 

Plaintiff finally argues that the city attorney's communications with her at the April 3, 1998, interview was an ex parte contact with a represented party, in violation of Rules of Professional Conduct, rule 2-100. This issue was apparently never raised below. "It is well established that issues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal. A party who fails to raise an issue in the trial court has therefore waived the right to do so on appeal. [Citations.]" n17 Moreover, there is no indication that plaintiff was a "represented party" at the time of the investigatory interview. There was no ex parte contact.

 

DISPOSITION

 

The judgment is affirmed.

/s/ Ward J.

We concur:

/s/ Ramirez P.J.

/s/ Hollenhorst J.

 

Notes:

 

1 Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 124 Cal. Rptr. 14, 539 P.2d 774.

2 All further statutory references will be to the Labor Code, unless otherwise noted.

3 Ward v. Taggart (1959) 51 Cal.2d 736, 742, 336 P.2d 534.

4 Service Employees International Union v. Hollywood Park, Inc. (1983) 149 Cal. App. 3d 745, 759-760, 197 Cal. Rptr. 316.

5 Robinson v. Hewlett-Packard Corp. (1986) 183 Cal. App. 3d 1108, 228 Cal. Rptr. 591.

 

6 Robinson v. Hewlett-Packard Corp., supra, 183 Cal. App. 3d 1108, 1131.

7 Robinson v. Hewlett-Packard Corp., supra, 183 Cal. App. 3d 1108, 1132, italics added, footnote omitted.

8 Montalvo v. Zamora (1970) 7 Cal. App. 3d 69, 86 Cal. Rptr. 401 (Montalvo).

9 Montalvo, supra, 7 Cal. App. 3d 69, 73.

 

10 Montalvo, supra, 7 Cal. App. 3d 69, 75.

 

11 Montalvo, supra, 7 Cal. App. 3d 69, 75, italics added.

 

12 Montalvo, supra, 7 Cal. App. 3d 69, 75.

 

13 Montalvo, supra, 7 Cal. App. 3d 69, 75.

14 NLRB v. Weingarten (1975) 420 U.S. 251 [95 S. Ct. 959, 43 L. Ed. 2d 171].

 

15 Epilepsy Foundation of Northeast Ohio v. N.L.R.B. (D.C. Cir. 2001) 348 U.S. App. D.C. 26, 268 F.3d 1095.

16 Epilepsy Foundation of Northeast Ohio v. N.L.R.B., supra, 268 F.3d 1095, 1102.

17 In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117.

 


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