EMPLOYER DISCRIMINATION; PERSONS PROTECTED – In General

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Joining with another employee or employees to enforce external law regarding workplace rights, is itself group activity protected by EERA against employer interference and retaliation. (Franklin Iron & Metal Corp. (1994) 315 NLRB 819, enf’d (6th Cir. 1996) 83F.3d 156; Eastex, Inc. v. NLRB (1978) 437 U.S. 556.) Seeking individually to enforce provisions of a collectively-bargained agreement is “a logical continuation of group activity” and protected under EERA. The Board does not distinguish between those collectively-bargained provisions which reflect rights also protected and enforceable under external law, and other collectively-bargained rights which spring solely from the bargained agreement. Our concern in either case is not with the substance of the collectively-bargained rights, but rather with their source in the agreement and the employee’s use of collectively-bargained enforcement procedures. It is that activity which is implicated by charging party’s allegations, and protected by EERA. Protected employee activity includes, without limitation: (1) seeking to enforce collectively-bargained agreements, either individually or jointly with other employees; and (2) with one or more other employees, seeking to enforce workplace rights through administrative or judicial means. (Oakdale Union Elementary School District (1998) PERB Decision No. 1246; Franklin Iron & Metal Corp. (1994) 315 NLRB 819, enf’d (6th Cir. 1996) 83F.3d 156.) In addition, protected activity includes representation rights, known colloquially as “Weingarten rights,” so named for a decision of the United States Supreme Court affirming the National Labor Relations Board (NLRB) decision which enforced them. (NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251.) These rights protect an employee’s request for union representation, inter alia, when an employer seeks to question an employee under circumstances which are unusual or could lead to discipline for the employee.