Can You Refuse To Bargain With A Particular Person?

Anaheim Union High School District (2015) PERB Decision No. 2434-E (Issued on 6/19/15)

This is another very long decision. I’m just going to focus on one issue: One of the members of the union’s bargaining team was an employee who was in the process of being terminated by the school district (District). The allegations against the employee included harassment of other employees. The District felt that allowing the employee to be on the union’s bargaining team would intimidate or cause fear for members of the employer’s bargaining team. So the employer refused to bargain with the union if the employee at issue was on the team.

The administrative law judge (ALJ) found the employer’s conduct to be an unfair practice because “EERA gives the parties the right to appoint their own negotiators and forbids either side from dictating who their opposing representatives may be.” (citing Yolo County Superintendent of Schools (1990) PERB Decision No. 838.) On exceptions, the District cited to National Labor Relations Board (NLRB) precedent recognizing an exception to the general rule that employees may choose whomever they desire to represent them in formal negotiations with the employer. (See Fitzsimons Mfg. Co. (1980) 251 NLRB 375, enfd. (6th Cir. 1982) 670 F.2d 663; KDEN Broadcasting Co. (1976) 225 NLRB 25.) The NLRB cases stand for the principle that a limitation or exception to this general rule will only be found where there is “persuasive evidence that the presence of the particular individual would create ill will and make good-faith bargaining impossible.” According to the Board:

“[I]mpossible” is a high bar to reach for a party that refuses to deal with the selected representative of the other party to a collective bargaining relationship, as it should be. A bargaining unit cannot be deprived of its most fundamental right to select a representative of its own choosing for purposes of collective bargaining unless bargaining is in fact rendered impossible.

Here, the Board held that the District failed to meet this high standard. The Board stated that the mere fact the employee was being terminated for harassment does not establish that bargaining with that individual would be impossible. The Board noted that there was no persuasive evidence that the presence of the employee would interfere with bargaining.

Comments:

If you’ve been in labor relations long enough, you’ve encountered that union representative whose behavior is so outrageous that you’ve seriously considered barring that person from meetings and/or bargaining. I’m sure my colleagues on the union side can say the same thing about certain management representatives. Here, PERB provides some guidance on when you can actually do that. The answer is that it’s very, very difficult.
I agree with PERB that the standard has to be high since any the rule has to apply for both employers and employees. So if employers start “barring” union representatives from bargaining the unions are going to do the same thing to management representatives. For example, let’s say that PERB finds that an employer has committed bad faith bargaining. Could the union then refuse to negotiate with the management representative involved in this case in all future negotiations? Wouldn’t the union’s argument be that having to bargain with someone found to have engaged in bad faith bargaining would frustrate the process? You can see how it would quickly become a tit-for-tat type of thing.
So what evidence does there need to be to bar a particular person from bargaining? In the Fitzsimons Mfg. Co case, the NLRB found the standard to be met where the union representative actually grabbed and threatened to punch a management team member. So a threat of violence or actual violence will meet the standard. There arguably might be some situations involving lesser conduct. But remember, it’s a double-edged sword so my advice is to be very careful in this area.