CAPS Continues to Fight Against the State’s Intimidation and Retaliation. On November 15, CAPS began a 3-day rolling strike that was the first-ever in state civil service. It is evident that we shook things up: departments have no set procedures to fall back on when dealing with leave types, dock, AWOL-status, timekeeping codes, or other questions that have arisen during the last few weeks. CAPS members have been reporting various departmental issues arising after they participated in our historic Defiance For Science strike. Let’s be clear: CAPS does not agree with or condone what we believe are the State’s illegal retaliatory actions toward State Scientists as a result of members’ participation in our legal, Union-called strike, and will continue to defend and fight for members.We must stand together and protect one another, an injury to one is an injury to all!
State employees have a statutory right to strike, and you cannot be fired or disciplined for participating in a legal, Union-led strike. A strike is a protected activity, and it is illegal for an employer to threaten an employee with discipline or retaliate against an employee for engaging in a legal, Union-led strike. The State continues to engage in scare tactics in an attempt to discourage all State employees from ever again using our COLLECTIVE POWER.
CAPS attorneys and professional labor representatives are working diligently to defend workers experiencing retaliatory actions and to advocate for the correct application of laws and regulations. Defending against possible illegal state action takes time. CAPS is deeply committed to preventing and fighting back against all forms of intimidation and retaliation.
While CAPS attorneys and professional labor representatives work towards resolving these outstanding issues, the current advice is to follow your supervisors’ direct orders and abide by departmental directions. You may politely note your objection while doing so. Temporary compliance does not mean acceptance, and CAPS will continue to fight against tactics and attempts to punish State Scientists for exercising our right to participate in lawful concerted labor activity.
CAPS has and will continue to defend Scientists experiencing reprisals due to participation in legally protected union activity, including our Defiance for Science strike. If you have experienced any form of reprisals or retaliation as a result of participating in our strike, email caps@capsscientists.org, ASAP, to ensure CAPS attorneys and professional labor representatives are able to compile and document all of this Administration’s actions against State Scientists for exercising our rights.
Weingarten Rights. State Scientists (and all state employees) have the right to request a union representative to attend a meeting they reasonably believe will result in disciplinary action. These rights are called “Weingarten Rights” and are derived from a 1975 Supreme Court Case (NLRB v. J. Weingarten, Inc.). These rights apply in investigatory interviews and meetings where the employee has a reasonable belief that formal discipline may result. State Scientists may request union representation before, or during, such an interview (after the interview ends, it’s too late). When representation is requested, the supervisor must do one of three things: grant the request and delay questioning until the representative arrives; deny the request and end the interview immediately; or offer the option of having the interview without representation. The last option is essentially voluntarily giving up one’s rights to union representation. This is usually NOT the best option.
How to invoke your Weingarten Rights. Use the following as a template for how to invoke your rights:
“I believe this discussion could lead to disciplinary action against me, and as such, I respectfully request that my union representative be present at this meeting.”
If your supervisor denies the request for union representation and continues the interview, you have the legal right to refuse to answer questions. This option must be exercised tactfully. Don’t walk out of the interview. Instead, request CAPS’ representation but don’t answer questions without your CAPS representative present. This can look like you answering the questions with the same statement repeatedly, i.e. “Thank you for your question, I would like to confer with my union representative prior to answering that question.” If you are pressured into answering (such as being threatened with insubordination for failure to answer) the information gathered at the meeting may be excluded in any subsequent disciplinary action.
A helpful tool to help you figure out when a meeting is “disciplinary,” and therefore subject to Weingarten Rights is this – if the meeting is held and you are being questioned about things that happened in the past, the meeting is likely disciplinary; if it’s to discuss how to handle things in the future, it’s most likely not. If you enact your Weingarten Rights, contact CAPS as soon as possible (caps@capsscientists.org).
Review your Official Personnel File (OPF). Your Official Personnel File (OPF) contains documents that describe your employment with the State of California. Personnel documents that may be included in your OPF can be routine, such as your original application, copies of Notices of Personnel Actions (NOPAs), insurance forms, training certificates, and so on. Occasionally, however, the OPF may contain items that can be interpreted as negative in nature, such as copies of Adverse Actions or Counseling Memos. The information in your file is confidential and available only to you, your department for the purposes of administration of the department’s affairs, and to hiring managers to whom you’ve given permission to peruse it.
State Scientists have the right to insert reasonable supplementary material and written responses to items contained within the file, as well as the right to request that items of a negative nature be purged after three years.
To request to review your OPF, simply reach out to your departmental Human Resources branch or your assigned personnel liaison. If you encounter any issues with reviewing your OPF, or removing materials, contact caps@capsscientists.org. You may have a CAPS union representative present for review of your OPF.
In Solidarity,
Your CAPS Executive Committee