In a trio of decisions, PERB has continued to expand the areas in which an employee is entitled to a union (Weingarten) representative. The expansion first began in 2015 with Capistrano Unified School District (2015) PERB Decision No. 2440-E, in which PERB held that an employee’s right to a union representative under California law is “considerably broader” than under the NLRA’s Weingarten. That same year, PERB issued Sonoma County Superior Court (2015) PERB Decision No. 2409-C, in which it held that an employee has the right to a union representative during the interactive process to find a reasonable accommodation for a disability.
Now we have three more cases:
State of California (Department of Corrections & Rehabilitation): Physical Body Search
This case involved a civilian prison employee who was accused of smuggling narcotics into the prison. Upon receipt of an anonymous tip, prison authorities launched a criminal investigation which included an invasive body search. The employee asked for a union representative to be present during the body search. The request was denied.
Relying on NLRB decisions holding that an employee has the right to a Weingarten representative before submitting to a reasonable suspicion drug test, the Board found that the employee in this case was similarly entitled to a union representative. The Board held that:
As in a drug testing situation, an invasive body search is such an unusual and stressful situation that an employee is likely to volunteer information in an effort at self-defense, and therefore has a right to union representation even if the employer does not intend to ask questions. The right to union representation therefore attaches before an employee is invasively searched, just as it attaches before an employee takes a drug or alcohol test.
San Bernardino Community College District: Written Statements
This case involved an employee who was questioned by his supervisor regarding his whereabouts during his work shift. The employee asked for a union representative. The supervisor responded that he wasn’t going to question the employee anymore. Instead, the supervisor placed the employee in a room and asked the employee to provide a written statement.
The Board rejected the argument that the right to a union representative only attaches during an oral interview. The Board held that an employee has the right to a union representative before submitting a written statement as part of an investigatory interview. The Board explained that the same reasons for providing a union representative during an oral interview exist for a written statement. According to the Board, “These concerns may be diminished slightly in the absence of direct face-to-face questioning and verbal responses, but they are present nevertheless.”
County of San Joaquin (Sheriff’s Department): Rescinding Discipline as Remedy
This case involved an employee accused of failing to follow his supervisor’s instructions. The supervisor asked the employee to draft a memo explaining his actions. The employee asked to speak with a union representative first. The supervisor initially told the employee that he did not need a union representative. Shortly thereafter, the supervisor decided to instead initiate an internal affairs investigation into the employee’s conduct. As a result of that investigation, the employee was suspended for 10 days. The suspension was reduced to 5 days as a result of an arbitration.
The Board affirmed its holding in San Bernardino CCD that an employee is entitled to a union representative if requested to provide a written statement as part of an investigation. However, the Board in this case went further than in San Bernardino CCD with respect to the remedy. Here, the Board affirmed that when there is an unlawful denial of a union representative, a “purge order with make-whole relief” may be appropriate. The Board held that this case was such a situation.
In this case, the Board found that the employee’s “insistence on union representation resulted in escalation of the dispute to an internal affairs matter.” Therefore, according to the Board, “[t]here would have been no internal affairs investigation, and no discipline, absent [the employee’s] request for representation.” As such, the Board ordered the employer to rescind and expunge the disciplinary action. The Board ordered this remedy even though it appears that the employee did engage in conduct that the Board noted would have resulted in a counseling memo.
Comments:
- It should be clear to everyone by now that this Board is looking to aggressively expand an employee’s right to union representation beyond the areas in the original Weingarten case.
- Given these recent decisions, my advice for employers confronting a situation where it isn’t clear whether an employee is legally entitled to a union representative is to err in favor of allowing the representation. Remember, union representation cannot be used to unreasonably delay an interview. So having a wait for a union representative generally is only a minor inconvenience. In contrast, as these cases demonstrate, if PERB finds that an employer unlawfully denied representation, it can order any subsequent discipline rescinded.
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