EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS – Investigatory Interviews

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To be effective, the right to union representation in an investigatory interview includes an opportunity for the employee prior to the interview to confer with the union. Where the employer schedules the interview in such fashion that the employee has no opportunity to confer with the union on the employee’s own time prior to the interview, then upon request of either the employee or the union representative the employer must provide a reasonable time for the employee and the union representative to confer, in private, before proceeding with the interview so that the union representative “can provide meaningful representation” not merely be an observer. Under EERA a union designates the union’s agents, including without limitation union agents who will represent employees in investigatory interviews. EERA does not oblige an employer or the union to accommodate an employee’s choice of union representative, either in scheduling or conducting an investigatory interview; provided that, where an employee’s preferred union representative is available, an employer may not insist upon a different representative. (Consolidation Coal Co. (1992) 307 NLRB 976.) Nor does EERA afford an employee the right to be represented by the employee’s own attorney in an investigatory interview conducted by employer officials. (California Teachers Association, Solano Community College Chapter, CTA/NEA (Tsai) (2010) PERB Decision No. 2096.)