CALPELRA Alert: PERB Clarifies Right To Union Rep In Meeting
In a recent case involving a school district food service lead-worker, PERB generated a comprehensive legal analysis regarding the individual’s right to union representation for investigative or disciplinary matters. The PERB ALJ initially decided that the District violated the employee’s right to representation in a meeting with her supervisor – even when the manager intended the meeting to be neither investigatory nor disciplinary. The Capistrano Unified School District appealed to PERB. PERB dismissed the District claim, and ordered the District to rescind and expunge the reprimand from the personnel records.[1]

At the outset we recommend that every practitioner review this case for its comprehensive statement of PERB decisional law on general Weingarten rights.[2]
 
Factual Background

The case is too lengthy to summarize in an Alert, but it clarifies the general rule under PERB-administered statutes that a represented employee is entitled to union representation when the following three conditions are met: 
  1. The employee requests representation;
  2. The employer requests an investigatory meeting (not the run-of-the-mill shop-floor conversations as, for example, the giving of instructions or training or needed corrections of work techniques); and
  3. The employee (not the supervisor) reasonably believes a meeting/discussion might result in disciplinary action.
The facts in this case involve a lead worker/employee who, despite a strained relationship with her regional supervisor, criticized the District’s recent software and operational changes, and expressed her intention to not implement the changes at her school cafeteria. The employee’s regional supervisor set up a meeting stating that the meeting was not intended for discipline, but was to ensure the worker was familiar with the new program and how to implement it.

At the beginning of the meeting, the employee asked for a union representative, “if the meeting would lead to discipline.” The supervisor denied the employee's request for union representation, assuring the employee that the meeting was not for discipline purposes but was intended to assess her understanding of directives regarding the new program changes.  The supervisor did not stop the questioning after the employee requested union representation.

Unfortunately, the meeting degenerated into a heated disagreement.  After the meeting, the supervisor issued a written reprimand, stating the employee's behavior at the meeting was "unprofessional, disrespectful, insubordinate and willfully disobedient."

After an extensive hearing, the PERB ALJ found that the District unlawfully refused union representation, and ordered the District to completely expunge the written reprimand. The District appealed to PERB and argued the following:
  1. The employee did not clearly request union representation;
  2. The purpose of the meeting was neither disciplinary nor investigative;
  3. The employee did not reasonably fear that discipline would result from the meeting;
  4. The employee waived the right to union representation by proceeding to answer the supervisor’s questions; and
  5. An order to purge the entire reprimand record was an inappropriate remedy because the discipline was based on the employee’s conduct, rather than the employee's answers to the supervisor’s questions.
PERB Decision

In a lengthy opinion, PERB rejected the District’s appeal and generously cited prior PERB and NLRB decisions. PERB determined the following:
  • “Magic words or specific behavior” are not required to request union representation, and the employee’s request for union representation was clearly indicated.
  • An employee has no right to union representation for "the giving of instructions or training or needed corrections of work techniques."  The meeting in question, however, was not the “run-of-the-mill shop floor discussion,” but instead involved the employer’s attempt to induce an employee’s admission that she did not intend to cooperate with the supervisor’s instructions.
  • Despite the supervisor’s assurance the meeting was not disciplinary, the employee could still reasonably fear that discipline was a purpose of the meeting, especially in light of prior acrimonious discussions regarding the cafeteria changes.
  • The employee did not waive the right to union representation by proceeding to answer the supervisor’s questions because once an employee communicates the request for representation, the employer must terminate the discussion, absent objective evidence that the employee has knowingly waived the right to representation.
  • The remedy to purge the entire reprimand file was appropriate because an employee “should not be disciplined for intemperate or even insubordinate conduct occurring at or in the immediate aftermath of an unlawful investigative meeting, if the presence of a union representative might have prevented or mitigated the misconduct
."
Practitioner Tips
  • PERB intended this case to be a seminal statement of the law. Capistrano provides an excellent summary of the current status of the law regarding an individual’s right to union representation in matters relating to discipline, to an investigative interview, or in “highly unusual circumstances.”

    Practitioners should be aware that the current PERB has consolidated prior Board decisions that expand Weingarten rights for PERB administered statutes beyond those in the private sector under the NLRB.[3]
     
  • The Capistrano case comes on the heels of another PERB decision expanding an individual’s right to union representation during a disability accommodation interactive process. (See CALPELRA Alert 15-01, dated January 22, 2015, regarding Sonoma County Superior Court.)
     
  • When practitioners instruct agency supervisors on the basics of the individual right to union representation, add to that training the short story of Capistrano:
     
    1. That the supervisor’s intent going into the meeting -- regarding whether the meeting is investigatory or disciplinary -- is not controlling. What is controlling is whether the employee had a reasonable belief that the meeting might be disciplinary or investigatory.
    2. At the beginning of a meeting there may be no basis for union representation, but as the meeting progressed, employer’s conduct at the meeting may give rise to the right of representation.
    3. Finally, once an employee requests union representation, the supervisor must stop the inquiry, or proceed at the risk that the meeting may be unlawful and the product of the meeting expunged from the employment records.
       
  • This case is a good example of the tendencies of the Martinez Board over the past four years to incorporate early PERB rulings (1980’s and early 1990’s) into a comprehensive and consistent body of decisional law on a major labor relations topics (for example, decisions on “effects bargaining").
 
[1] Capistrano Unified School District v. California School Employees and Its Capistrano Chapter 224 (2015) PERB Decision No. 2440.
[2] NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251, incorporated into PERB administered statutes by Marin Community College District (1980) PERB Decision No. 145. Subsequent PERB decisions have expanded individual rights for California public employees beyond Weingarten, including the right to represent employees “in highly unusual circumstances,” and in providing a separate and discrete right to unions to represent individual employees in a bargaining unit.
[3] See Capistrano Unified School District, supra, at pages 13-16.
This Alert summarizes a significant recent court case, arbitration decision, legislation, or other important information.  The Alert format is not intended as a periodic review of all significant cases, but instead provides labor relations practitioners with key information for immediate guidance in day-to-day activities.
2015 CALPELRA President:  Scott Chadwick, City of San Diego
Alert No. 15-17 Authors:  William F. Kay and M. Carol Stevens, Burke, Williams & Sorensen
The information contained in this publication is not intended to constitute professional counsel or a legal opinion. Although we consider the information to be timely and accurate, there is no substitute for personal counsel with a professional. Provided with specific facts, your attorney can fashion a solution sensitive to your needs.
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