PERB Emphasizes An Expansive Right To Union Representation

Capistrano Unified School District (2015) PERB Decision No. 2440-E (Issued on 6/30/15)

Facts:

The issue in this case was whether an employee had the right to union representation in a meeting with her supervisor. It was undisputed that the employee and supervisor had a “strained” relationship. During a telephone call in which the supervisor was trying to explain a new program, the employee became argumentative because she felt the new program was unworkable. Before the supervisor could explain the benefits of the new program, the employee hung up the phone. A few days later the supervisor went to visit the employee to make sure the employee understood the protocols for the new program. When the supervisor asked to meet privately with the employee, the employee asked for a union representative if the meeting was “going to be disciplinary.” The supervisor assured the employee that the meeting was not disciplinary and continued without responding to the employee’s request for union representation.

During the meeting the employee again criticized the new program as unworkable and called it “ridiculous.” The employee also yelled that she wanted the supervisor to leave the premises immediately. The supervisor left, but later issued the employee a written reprimand for unprofessionalism and insubordination. One of the incidents mentioned in the written reprimand was the employee’s yelling at the supervisor to leave the premises.

Board Decision

The Board began its decision by noting that EERA provides a right to union representation during an investigatory or disciplinary meeting that is at least as broad as right afforded to private employees under NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251. However, the Board quickly moved into a discussion about how the right to union representation under EERA is “considerably broader” than the right under Weingarten. Citing to Redwoods Community College Dist. v. PERB, the Board emphasized that California courts have recognized a right to union representation in “highly unusual circumstances.” (Redwoods Community College Dist. v. PERB (1984) 159 Cal.App.3d 617.) In support of its position, the Board noted that EERA section 3543.1 provides employee organizations the independent right—a right not present in the language of the NLRA—to represent members in their employment relations with public school employers. Thus, according to the Board, even though PERB has followed Weingarten in the past, “where the California statutes provide for broader or additional rights not found in the federal private-sector law, PERB must follow the intent of the Legislature to effectuate the purpose of the statute.”

After setting forth the law, the Board quickly determined that the meeting at issue was “investigatory” and that the employee should have been afforded the right to union representation. In reaching this conclusion, the Board rejected the employer’s argument that because the supervisor assured the employee that no discipline was contemplated, the employee could not have had a reasonable belief that the meeting was investigatory. The Board held that a supervisor’s stated purpose for a meeting is not dispositive, but that the overall context of the meeting must be considered. Relying on some federal precedent, the Board said that, “Even a government employer’s promise of immunity from criminal prosecution will not necessarily negate the reasonableness of an employee’s belief that an interview may result in discipline and that union representation is therefore justified at the investigatory interview.”

Comments:

This decision sets forth PERB’s legal justification for an expansive right to union representation. What is interesting is that PERB has already issued a decision setting forth an even broader right to union representation. That case is Sonoma County Superior Court (2015) PERB Decision No. 2409-C (“Sonoma”).) I haven’t blogged yet about Sonoma because I represent the employer in that case and I was waiting for some things to flesh out first. But in my mind, it would have made sense for PERB to have issued this decision first because it serves as a logical precursor to Sonoma. If you read this decision in full, you’ll see that the Board takes every opportunity to remind the reader that the right to representation under EERA does not derive solely from Weingarten. What the Board emphasizes is that unions have an independent right to represent their members, even if the disciplinary element is absent from a meeting. Based on Redwoods, I would concede this point, but only where there are “highly unusual circumstances” that are akin to those present in an investigatory or disciplinary meeting.
In my mind, PERB is using this decision to help justify its decision in Sonoma, in which it expands the right to union representation beyond even “highly unusual circumstances.” Under Sonoma, an employee arguably has the right to union representation in any meeting involving the terms and conditions of work. It’s a drastic—and in my opinion, unjustified and unnecessary—expansion of the right to representation. In support of my position, I would urge readers to take a look at the Redwoods case. Although this decision cites to Redwoods, there are important portions of Redwoods that are not discussed in it. For example, in Redwoods the court noted that, “None of these cases [cited] holds that there would not be a right of representation if the discipline element were absent. But the opinions in Weingarten, Civil Service Assn. and Robinson show that there was a potential for disciplinary action in each case, and that each court considered the discipline element significant.” The court went on to state that, “The limitation implicit in the discipline element is sound as a matter of policy” and concluded that, “Although the precedents do not compel a conclusion that the discipline element is invariably essential to a right of representation, under EERA and other California labor statutes representation should be granted, absent the discipline element, only in highly unusual circumstances.” Thus, while it is technically true that the right to representation under EERA is not strictly limited to disciplinary situations, the court in Redwoods made it clear that absent a disciplinary situation, the right should only exist in highly unusual circumstances.
With respect to the present case, the Board did not decide whether highly unusual circumstances were present because it found the meeting to be investigatory. Based on the facts set forth in the decision, I don’t disagree with the Board’s ultimate conclusion. However, I would have reached this conclusion differently. In Lake Elsinore Unified School District (2004) PERB Decision No. 1648, PERB held that if a supervisor tells an employee that a meeting will not result in discipline in order to deny the employee a union representative, then no discipline can result from the meeting. Based on the facts set forth in this case, the supervisor promised the employee the meeting would not lead to discipline, but then issued a written reprimand based in part on what happened in the meeting. Under Lake Elsinore Unified School District, that’s sufficient to find a denial of the right to union representation.
Another part of the decision I found interesting is the Board’s discussion about what happens if a supervisor promises the employee that a meeting will not lead to discipline. If I was on the Board, I would hold that if a supervisor promises that a meeting will not lead to discipline, then an employee cannot have a reasonable belief that the meeting is disciplinary, and no right to union representation will exist. I would then hold the employer to its promise and prohibit the employer from disciplining the employee for anything that is said during the meeting. In my mind this is a better rule, but obviously PERB disagrees.