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

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Where the union requests sufficient information to allow meaningful representation at an investigatory interview, bad faith bargaining and interference can be alleged as independent claims, because proving one does not necessarily prove the other. For instance, because an investigatory interview can occur with minimal lead time (Contra Costa Community College District (2019) PERB Decision No. 2652, p. 31, fn. 19), there may be no information request until just before or even after the interview begins, and such a request may be in the form of an employee’s question, e.g., “what are the accusations against me?” Failing to answer that question sufficiently can interfere with protected rights without violating the obligation to bargain in good faith. In other cases, an employer may schedule an investigatory interview on a slower track. In such an instance, an employer may violate its duty to meet and confer in good faith if it refuses, without an adequate basis, a union’s information request. And while failure to provide information always constitutes at least derivative interference with protected rights, it can also constitute an independent interference violation, for instance if it leaves a union and employee without sufficient information to allow meaningful representation at an investigatory interview. (p. 10.)