EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS – Highly Unusual Circumstances
Single Topic for Decision 2409C
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408.04000 – Highly Unusual Circumstances
The right to representation in all matters of employer-employee relations includes the right to have a union representative present at an interactive process meeting upon the employee’s request. An employee has a right to union representation at an interview that is initiated by the employer, attended by more than one higher level administrator, and imbued with a sense of “appellate” formality that distinguished it from a “shop floor” conversation. An employee had a right to a union representative at a meeting called by her supervisor to discuss the employee’s request for job audit forms. There is a right to represent and be represented at grievance-type meetings, regardless of whether the circumstances are “highly unusual,” because of the rights guaranteed by EERA sections 3540, 3543(a) and 3543.1(a). EERA and other statutes PERB administers have as their purpose the improvement of employer-employee relations and communication between employees and public agency management through representation by employee organizations on all matters of employee-employer relations. Such purpose cannot be achieved unless employees have a right to summon their employee organization representatives to represent them in meetings convened to discuss enforcement of the CBA. The FEHA regulations governing reasonable accommodation and the interactive process provide numerous protections for the employee. The interactive process therefore presents opportunities for a representative to assist the employee in the process of obtaining an accommodation. The representative can also serve an important function in explaining to the employee the employer’s rights and the possible consequences of refusing offered accommodations. The union’s right to represent in the interactive process attaches only if the employee requests union representation.