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Recent PERB Cases May Expand Right to Union Representation in Meetings

Two recent cases from the Public Employment Relations Board (“PERB”) may significantly expand the right of employees to union representation in meetings with the employer.

Sonoma

Sonoma County Superior Court (2015) PERB Decision No. 2409, issued earlier this year, has the potential to significantly expand the circumstances under which an employee is entitled to union representation when meeting with their employer.

In Sonoma, Cyndi Nguyen, an employee of the Sonoma County Superior Court, was diagnosed with a physical impairment protected by the Americans with Disabilities Act (“ADA”).  Following the diagnosis, Nguyen asked to meet with a supervisor, and her union representative, to discuss reasonable accommodations for her disability.  The supervisor agreed to meet, but denied Nguyen’s request for union representation.  At the meeting, Nguyen was demoted to a lower paying position as a reasonable accommodation.

PERB began its analysis of the employee’s unfair labor practice charge by summarizing the law governing the right to union representation in employer-employee meetings.  The court determined that case law established two circumstances under which an employee is entitled to representation.  First, employees are entitled to representation in investigatory meetings if the employee reasonably fears disciplinary action or in other “highly unusual circumstances.”  These circumstances are commonly known as “Weingarten” rights, from the U.S. Supreme Court case of the same name, and as expanded by PERB.

PERB also found that the EERA grants a right to representation that is independent from Weingarten.  PERB found that this independent right guarantees representation at all “grievance-type” meetings, which it found to encompass any meeting that may “potentially [have] an impact on significant terms and conditions of employment.”

Relying on this broad interpretation, PERB held that Nguyen’s reasonable-accommodations meeting was a “grievance-type” meeting because it could impact the terms and conditions of her employment.  Thus, by denying Nguyen her right to union representation, the Court committed an unfair labor practice.

PERB appears to have, in this case, significantly broadened the right to have union representatives present.  Many meetings with a supervisor could or will “impact the terms and conditions of employment.”

Capistrano

More recently, PERB reiterated its position that union representation is often required outside of Weingarten meetings.  In Capistrano Unified School District, issued on June 30, 2015, PERB dealt with a more typical Weingarten scenario.  District employee Teresa Hause was expected to implement a new meals program.  When her supervisor, John Chamberlin, called her to explain the new program, Hause became upset because she felt that the new program was both unworkable and an attempt replace employees with computers.  Then Hause hung up on Chamberlin and failed to implement portions of the new program.

Shortly afterward, Chamberlin asked Hause to meet with him to ensure that she understood the new program.  Hause requested union representation if the meeting was going to be “disciplinary.”  Chamberlin assured Hause that the meeting was not disciplinary and continued.  Hause became upset again during the meeting and demanded that Chamberlin leave the premises.  After Chamberlin left, Hause was given a written reprimand for unprofessionalism and insubordination.

PERB found that Hause was entitled to union representation because the meeting was investigatory.  Thus, PERB reached this conclusion using a traditional Weingarten analysis.  Nonetheless, PERB took the opportunity to reiterate that the EERA guarantees unions an independent right to represent their members.  This right is not limited to Weingarten investigatory meetings in which discipline may be imposed.  Instead, the right to representation attaches whenever it is necessary for unions to meaningfully represent their members, as required by the EERA.

Note, also, that PERB’s holding relies heavily on preexisting hostility between Chamberlin and Hause, as well as Hause’s apparent refusal to implement the new meals program.  PERB found that this prior hostility transformed the meeting from a non-investigatory “shop floor” conversation into an investigatory meeting, despite Chamberlin’s assurances that discipline was not at issue, because it demonstrated that the meeting’s purpose was at least partially disciplinary.

Conclusion

Capistrano’s overview of the right to representation does not mention the right to representation in “grievance-type” meetings as discussed in Sonoma.  This may be partially explained by the fact that Sonoma is under appeal before the California judiciary.  By avoiding any discussion of the right to representation in grievance-type procedures, PERB may be protecting the Capistrano decision should Sonoma be overturned on appeal.

These decisions make clear that PERB is increasingly willing to find a right to representation in any meeting where the terms and conditions of employment may be implicated.  Please contact Kingsley Bogard if you have specific questions about how to handle an employee request for union representation.

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