“I want Union representation in this meeting,” PERB clarifies an employee’s right to representation
In Capistrano Unified School District (PERB Decision No. 2440-E), PERB held that an employee’s request for representation need not follow a strict formula in order to be a valid request. PERB also held that a non-disciplinary meeting may become disciplinary if during that meeting the employer seeks additional information about possible misconduct.
Under California public sector labor laws, the right to representation extends to all matters within the scope of representation, not just discipline. So, the right to representation is broader than in the private sector.
In this case, a food service worker was disciplined after she refused directives to implement new software, and then had a heated exchange with her supervisor about the issue. During that exchange, the supervisor asked questions about the software implementation and the worker stated that “if the meeting” was going to lead to discipline, she wanted Union representation. The supervisor said the meeting was not disciplinary and continued to ask questions. The worker was subsequently disciplined for failure to follow directives and insubordination.
The Union alleged that the discipline violated EERA (Educational Employment Relations Act) because in that meeting the worker had been denied representation. PERB upheld the ALJ’s decision, which ordered the discipline be rescinded and the worker made whole.
PERB held that a request for representation is valid even if it contains “conditional language,” such as “if” statements. There are no magic words needed to invoke the right, though an employee still must make a request for representation.
PERB also clarified the circumstances in which the right to representation attaches. PERB observed that not every meeting serves a single purpose, and a meeting may transform from a non-disciplinary meeting to a disciplinary meeting. The right to representation attaches “as long as [a meeting] contains subject matter related to disciplinary offenses.”
Furthermore, even a “shop floor” conversation between a supervisor and employee about work “may  trigger the right to representation, if sufficiently linked to a realistic prospect of discipline stemming from the employee's poor production or history of conflict.” Thus, even if a supervisor assures the employee that no discipline will result from the meeting, the employee may reasonably believe discipline could result despite the assurances, and be entitled to representation.
PERB also held that rescission of the discipline and make whole relief may be appropriate where alleged misconduct, such as insubordination, occurs as a result of an unlawful interview.
For more information regarding public sector law and the right to representation, contact your labor law counsel.
By Rob Szykowny | August 13, 2015