Right to Union Representation Not Limited to Interviews

March 20, 2019 by Kena Cador

In 2015, PERB held that the right to a union representative under California law is broader than the NLRA’s version under Weingarten. In 2017, in SEIU v. Sonoma County Superior Court, PERB extended Weingarten to include a right to union representation during the interactive process—meetings between an employer and an employee seeking accommodations for a disability.

PERB has now issued two opinions that recognize an employee’s right to have a union representative present in several specific circumstances other than the traditional context of an investigatory interview.  PERB has issued an additional decision protecting employees from retaliation for invoking their Weingarten right.

Physical Body Search

In State of California (Department of Corrections & Rehabilitation) (11/26/2018) an employee was subjected to an invasive body search that required the removal of her clothing.  PERB recognized that an unclothed body search is the type of investigatory meeting that gives rise to the right to union representation.  PERB premised its holding on the fundamentally confrontational nature of an invasive body search as well as the fact that many people might infer guilt from an employee’s hesitation or refusal to comply.

Written Statements

In San Bernardino Community College District (12/5/2018) an employer questioned an employee until he requested a union representative.  In response to the request, the employer ceased questioning but then directed the employee to draft a written statement before being relieved of duty.  PERB held that because the employee reasonably believed his written statement could be used for disciplinary purposes, the right to representation attached to his preparation of the written statement.  It further recognized that the policy concerns underlying the right to representation apply regardless of whether the employer is seeking additional information or merely attempting to confirm information the employee has already provided. 

[Note that both San Bernardino Community College District and Department of Corrections & Rehabilitation are currently pending judicial appeal, which means it is possible that PERB’s expanded view of Weingarten rights might not remain good law.]

Expungement

In SEIU v. County of San Joaquin (Sheriff’s Department) (12/28/2018) a supervisor asked an employee to submit a memo explaining the employee’s failure to follow management instructions.  In response, the employee requested to speak with his union representative.  This prompted the employee’s supervisor to initiate an internal affairs investigation.  PERB held that where a request for union representation results in the escalation of the dispute, an employee is entitled to have the imposed discipline completely removed from their employee file.

 

The opinions can be downloaded below:

https://www.perb.ca.gov/decisionbank/pdfs/2619-M.pdf  (San Joaquin Sheriff’s Department)

https://www.perb.ca.gov/decisionbank/pdfs/2599-E.JAP.pdf  (San Bernardino Community College)

https://www.perb.ca.gov/decisionbank/pdfs/2598-S.JAP.pdf (Department of Corrections & Rehabilitation)

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