The Public Employment Relations Board (“PERB”) reaffirmed that public employees have the right to the presence of a union representative, upon request, at interactive-process meetings to discuss possible reasonable accommodations in the workplace for a disability.
In Sonoma County Superior Court, (2017) PERB Decision No. 2532-C (Sonoma II), Cyndi Nguyen was a court reporter with the Sonoma County Superior Court (“Superior Court” or the “Employer”). In 2013, Nguyen began having severe pain in her hands and wrists, which left her unable to perform the duties of a court reporter. The Superior Court and Nguyen were scheduled to meet as part of the interactive process required by the American with Disabilities Act and California’s Fair Employment and Housing Act. The meeting was to be held with Nguyen, an HR Analyst, and the Assistant Court Executive Officer. Nguyen requested that her Union Representative accompany her to the meeting; however, her Employer denied the request. At the meeting, the Employer proposed to place Nguyen in the position of Legal Processing Clerk Level I, while Nguyen asked that she be placed at Level II that had a higher salary. Ultimately, the Employer placed Nguyen at Level I, which led to a reduction of pay to about half of what she was earning making as a court reporter.
Nguyen’s Union filed an Unfair Practice Charge with PERB on the basis that the Employer unlawfully denied Nguyen her right to union representation. PERB’s Office of the General Counsel initially dismissed the Union’s charge because of PERB precedent (Trustees of California State University, (2006) PERB Decision No. 1853-H) holding that Weingarten rights, an employee’s right to a union representative at disciplinary or investigatory meetings, did not apply to interactive-process meetings.
The Union appealed, which led PERB to overturn Trustees and clarify that an employee has the right to the presence of a union representative in meetings with the boss: (1) in employer-initiated investigative meetings that would lead the employee to reasonably fear disciplinary action or under highly unusual circumstances, and (2) in employee-initiated meetings on matters related the employee’s terms and conditions of employment, like grievance meetings, discussions of leave entitlements, etc. (Sonoma County Superior Court (2015) PERB Decision No. 2409-C (Sonoma I).) The interactive-process meetings fell under the second strand. PERB also noted that unions have the reciprocal right to represent members at these meetings.
After Sonoma I, a formal hearing took place ultimately leading PERB to issue its second precedential decision on the matter. In Sonoma II, PERB reaffirmed its decision in Sonoma I stating that it “expanded the right of representation to include union representation in such meetings upon the employee’s request.” It then reiterated that the right to representation does not apply to “run-of-the-mill ‘shop floor’ conversations.” In other words, the right to representation attaches when there is a formal meeting or some give and take on the terms and conditions of employment. It probably does not apply, for instance, at informal meetings when the employer is giving performance direction or, in the context of interactive-process meetings, at “initial evaluation meetings between the employee and supervisor.”
As far as a remedy, PERB ordered the Employer to conduct another interactive-process meeting with Nguyen, upon her request, and allow the presence of her Union Representative.
In his concurrence and dissent, Board Member Eric Banks noted that an employer’s refusal to allow the presence of a union representative at an interactive-process meeting could violate the employer’s duty to bargain. Member Banks would have also gone much further than the two-member majority in terms of remedy. Member Banks would have remanded the matter to PERB’s Office of the General Counsel for compliance proceedings to determine whether a back pay award was appropriate. While noting that reinstatement and full back pay of a court reporter was probably not appropriate given that Nguyen could not perform those job duties, he noted that a back pay award, such as that of a Legal Processing Clerk Level II, could be appropriate.
Sonoma II reaffirms the expanding nature of an employees’ right to representation and the union’s reciprocal right to represent its members. Sonoma II, through Member Banks’s concurrence, also shows where there are continued areas to expand.
The Union was represented by this firm, Weinberg, Roger & Rosenfeld.
By Anthony Tucci | August 2, 2017