PERB Provides Guidance On Who Can Be A Weingarten Representative

Hartnell Community College District (2015) PERB Decision No. 2452-E (Issued on 09/04/15)

Have you ever had an employee designate a Weingarten representative who is not from the employee’s recognized union? I’ve had this happen a couple of times. Usually it occurs in the context of an organizational campaign. For example, one situation I dealt with involved an employee who wanted to use a Weingarten representative from a union trying to decertify the existing exclusive representative.

This case involved a complex set of facts, but I thought the discussion on Weingarten rights was interesting. Here, the employee alleged that the employer denied him a Weingarten representative. The Office of the General Counsel dismissed this particular allegation because it wasn’t clear whether the desired representative was even a union representative. In affirming, the Board held that even if the employee had alleged the representative was a union representative, it wasn’t clear in the charge that it was a representative from the employee’s exclusive representative.

In addressing this issue, the Board first emphasized that employees have a broad right to representation, and employee organizations have a broad right to represent employees, under EERA. The Board emphasized that these rights are “coterminous” as “there can be no right of an employee to representation without an organizational right to represent.”

However, the Board held that once an exclusive representative is selected by the employees, only that organization may represent bargaining unit employees with the employer. This is because the goal of EERA is to provide a uniform basis for recognizing the rights of employees. Accordingly, the Board held that since there was an exclusive representative in place, the employee only had a right to a Weingarten representative from his exclusive representative, and not from another union. The Board concluded:

[L]like the rights of employee organizations, where a majority of employees has chosen a representative, EERA expressly limits the rights of all unit employees, including their rights to self-representation and to act in concert with others, to further the statutory scheme of collective bargaining through exclusive representation, ‘which is the cornerstone of the Act.’

Comments:

I agree with the Board’s holding on this particular issue. In labor law, there is always tension between promoting labor peace and employee choice. You want to give employees a choice as to their representative, but not so much as to cause instability in the workplace. That’s why we have a contract bar and other similar doctrines. Here, once there is an exclusive representative it makes sense that the employees should turn to that representative for Weingarten representation. This avoids the instability and contradictory positions that might result in having multiple different unions involved in such meetings.
I also expect PERB to reach the same holding under the other acts that it administers. This is because the language of EERA section 3543 largely mirrors that in the other acts. There are some differences, but those differences have not made much of a difference to PERB in other contexts.