All notes for Subtopic 408.04000 – Highly Unusual Circumstances

DecisionDescriptionPERC Vol.PERC IndexDate
2660S * * * JUDICIAL APPEAL PENDING * * * State of California (Office of the Inspector General)
408.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Highly Unusual Circumstances
Under the circumstances—little to no advance notice of the interviews, no forewarning of the subject matter, and inadequate advisement as to how the Office of the Inspector General (OIG) would use the content of the interviews, all against the background of a historically tense relationship between the union and OIG—it was reasonable for the correctional officers who were summoned to interview to assume that no good could come from being singled out by OIG for a private, compulsory interview that, by all outward indications, was a formal investigation, regardless of OIG’s intention. To the officers, the interviews were indistinguishable from a formal investigation. (p. 30.) more or view all topics or full text.
08/15/19
2660S * * * JUDICIAL APPEAL PENDING * * * State of California (Office of the Inspector General)
408.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Highly Unusual Circumstances
Correctional officers had a right to representation due to the highly unusual circumstances of the Office of the Inspector General’s (OIG) interviews. Several officers declined to participate voluntarily in the interviews, leading OIG to compel their participation by serving each of them with a subpoena. OIG convened the meetings at officers’ jobsites, but in management or other private offices away from the employees’ ordinary worksites. Although OIG investigators are not in the same chain of command as officers, OIG’s role in the interviews lent them an aura of formality which predictably aroused the officers’ anxieties and suspicions. As one officer testified, formal interviews are a rare occurrence at the Department of Corrections and Rehabilitation. Another officer understood OIG’s function as investigating allegations of wrongdoing—even if his belief was unfounded given OIG’s limited statutory mandate—it informed the officer’s perspective that OIG’s involvement in an interview could portend a finding of misconduct. (pp. 29-30.) more or view all topics or full text.
08/15/19
2660S * * * JUDICIAL APPEAL PENDING * * * State of California (Office of the Inspector General)
408.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Highly Unusual Circumstances
In California, a public employee is entitled to representational rights not only when an employee reasonably fears discipline, but also in other “highly unusual” circumstances that are not necessarily disciplinary. (p. 27.) more or view all topics or full text.
08/15/19
2598S * * * JUDICIAL APPEAL PENDING * * * State of California (Department of Corrections and Rehabilitation)
408.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Highly Unusual Circumstances
An invasive search of an employee’s person, including an unclothed body search, is the type of investigatory meeting which gives rise to the right of union representation. The right to union representation attaches whenever an employer demands that an employee submit to an invasive body search, or subjects an employee to such a search. (p. 14.) An invasive body search is fundamentally confrontational. (p. 12.) As in a drug testing situation, an invasive body search is such an unusual and stressful situation that an employee is likely to volunteer information in an effort at self-defense, and therefore has a right to union representation even if the employer does not intend to ask questions. The right to union representation therefore attaches before an employee is invasively searched, just as it attaches before an employee takes a drug or alcohol test. (p. 11.) more or view all topics or full text.
437811/26/18
2440E Capistrano Unified School District
408.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Highly Unusual Circumstances
Because supervisor questioned employee about her whether she understood his instructions and intended to follow them, where employee had previously refused to do so, meeting was “investigative” within the meaning of Weingarten and federal authorities and it was unnecessary for PERB to determine whether meeting constituted “highly unusual circumstances” within the meaning of broader California law. more or view all topics or full text.
402406/30/15
2409C Sonoma County Superior Court
408.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; 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. more or view all topics or full text.
398801/13/15
1164E Barstow Unified School District
408.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Highly Unusual Circumstances
No reasonable perception of investigatory interview leading to discipline or highly unusual circumstances where meeting was called without warning to employee, employer remarks that conference concerned a student problem, remarks were confrontational, no comments hinted at possible discipline and no discipline followed. more or view all topics or full text.
202712508/07/96
0885E San Diego Unified School District
408.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Highly Unusual Circumstances
Employer confusion over whether evaluation was "scheduled" and other mixed messages constitute highly unusual circumstances. more or view all topics or full text.
152210306/14/91
0403H Regents of the University of California (California State Employees Association)
408.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Highly Unusual Circumstances
Employee called to a meeting regarding job audit faced highly unusual circumstances when she was denied pre-interview audit forms and had her work schedule changed after requesting forms; pp. 9-10. more or view all topics or full text.
81516109/06/84