March 2019 Newsletter – School Districts
Employees Right to Union Representation
In California School Employees Association & It’s Chapter 291 v. San Bernardino Community College District, December 5, 2018, the Public Employment Relations Board issued a decision (PERB Decision No 2599) that further clarified when an employee’s right to union representation arises.
In Decision 2599, PERB found that once an employee has a reasonable belief that the inquiry could lead to disciplinary action, the employee is entitled to representation. Further, the unit member’s request for union representation is not nullified by his or her willingness to answer a supervisor’s initial interview questions. PERB further found that a district is not required to formally or explicitly deny the employee’s request for representation to violate the right to union representation. Instead, citing County of San Bernardino (Office of the Public Defender) (2015) PERB Decision NO 2423-M, p. 38, fn. 20, PERB reiterated that upon request by an employee for representation, a district has three options: 1) Grant the request, 2) discontinue the interview, or 3) offer the employee the choice of proceeding with the interview without union representation or having no interview at all. (Id.) With regard to the latter, however, the employer may not continue the interview without granting the requested union representation unless the employee ‘voluntarily agrees to remain unrepresented after having been presented by the employer with the choices’ described above or ‘is otherwise made aware of these choices.'” In other words, the employer must act on an employee’s request for representation by either granting it or terminating the interview unless it was clear that employee is waiving his or right to union representation.
PERB further found that the burden was not upon the employee to use his or her cell phone to immediately contact and secure union representation, but instead for the district to discontinue the interview until such time as the employee had representation. Similarly, PERB found that the employee’s decision to complete a written statement of facts at the request of the employer did not waive the right to union representation. In reaching its conclusion, PERB dismissed the district’s argument that the right to representation did not when the employer is only seeking additional information. Instead, PERB found that the right to representation attached regardless of whether the employer is looking for additional information or seeking to confirm information. Nor is an employee required to produce a written statement to protect the right to representation. “An employee has no obligation, nor should they be placed in the position, to risk further disciplinary charges by refusing to adhere to their employer’s directive.”
From this decision, district employers should keep in mind than an employee has the right to request representation once the employee reasonably believes that the information being requested could lead to disciplinary action. Further, upon request by an employee for representation, the District has the option of either: a) granting the request; b) discontinuing the interview until representation is obtained; or c) obtain consent from the employee that the employee has chosen to proceed with the interview without union representation. If this latter option is obtained, it is recommended that this consent be committed to writing and signed by the employee, and that the district take measures to ensure than no argument can be made that this decision was coerced or otherwise the result of threats or intimidation.
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