Labor Relations Fundamentals for Community College Districts

First page Table of contents 1 Next page Last page

A LL A BOUT THE A UTHORS With offices in Los Angeles, San Francisco, Fresno, San Diego and Sacramento, the law firm of Liebert Cassidy Whitmore represents Community College District management in all aspects of labor and employment law, labor relations, and education law as well as providing advice and representation in business and facility matters, both transactional and litigation. The Firm's representation of Community College Districts throughout California, encompasses all phases of counseling and representational services in negotiations, arbitrations, fact findings, and administrative proceedings before local, state and federal boards and commissions, including the Public Employment Relations Board, Fair Employment and Housing Commission, Equal Employment Opportunity Commission, Department of Labor and the Office for Civil Rights of the U.S. Department of Education (OCR). In addition, the Firm handles bidding questions, contract review and revision as well as other contracting issues. The Firm regularly handles a wide variety of labor and employment litigation and litigation regarding business and facilities issues, from the inception of complaints through trial and appeal, in state and federal courts. Liebert Cassidy Whitmore places a unique emphasis on preventive measures to ensure compliance with the law and to avoid costly litigation. For more than thirty years, the Firm has successfully developed and presented training workshops and speeches on all aspects of employment relations for numerous public agencies and state and federal public sector coalitions, including the Community College League of California (CCLC), Association of California Community College Administrators (ACCCA), Association of Chief Human Resources Officers for Community College Districts (ACHRO), California Community College and University Police Chiefs Association (CA CUPCA), Association of Chief Business Officials (ACBO), California Community College Chief Information Service Officers (CCCCISO), Community College Facility Coalition (CCFC), National Employment Law Institute (NELI), and the Public Agency Risk Management Authority (PARMA).

This workbook contains generalized legal information as it existed at the time the workbook was prepared. Changes in the law occur on an on going basis. For these reasons, the legal information cited in this workbook should not be acted upon in any particular situation without professional advice.

Copyright © 201 9 Liebert Cassidy Whitmore. All rights reserved. No part of this publication may be reproduced, stored, transmitted, or disseminated in any form or by any means without prior written permission from Liebert Cassidy Whitmore.

T ABLE OF C ONTENTS

6-19 ( C )

S ECTION 1 Overview .......................................................................................................................................................................8

S ECTION 2 Protected Union Activity and Organizing .....................................................................................................................9 A. Achieving Majority Support............................................................................................................................9 B. Request for Recognition ................................................................................................................................10 C. Permissible vs. Unlawful Activity During Organizing..................................................................................11 1. Union’s Right to Communicate with Employees...................................................................................11 2. Employees’ Right to Engage in Concerted Activity ..............................................................................12 3. Conduct of Supervisors ..........................................................................................................................13 D. Union and Employee Rights after Representation Is Certified......................................................................15 1. Union's Right to Communicate and Meet with Employees....................................................................15 2. Union Representation In Meetings With Management ..........................................................................17 3. Rights Related to Speech .......................................................................................................................17 4. Right to be Free from Surveillance of Union Activity ...........................................................................19 5. Right to Information...............................................................................................................................19 6. Right to Engage in Concerted Activity .....................................................................................................19 E. Union Responsibilities ..................................................................................................................................20 1. Union’s Duty of Fair Representation .....................................................................................................20 2. Prohibited Conduct and Unprotected Activity .......................................................................................20 S ECTION 3 Management Rights Doctrine ......................................................................................................................................20 A. The First Line Supervisor’s Role ..................................................................................................................20 B. Management Rights in Community Colleges................................................................................................21 C. Theory of Management Reserved Rights ......................................................................................................21 D. Restrictions on Management Rights..............................................................................................................23 S ECTION 4 An Employee’s Right to Representation .....................................................................................................................24 A. Representation in an Investigatory Interview ( Weingarten Rights) ..............................................................24 B. Representation in a Grievance Meeting ........................................................................................................25 C. Representation in an Interactive Process Meeting.........................................................................................25 S ECTION 5 Labor Negotiations and the First-Line Supervisor.......................................................................................................26 A. The Labor Negotiations Process....................................................................................................................26 B. Enforcing the Labor Agreement: First-Line Supervisors ..............................................................................27 1. Understanding the Labor Agreement .....................................................................................................27 2. Applying the Labor Agreement .............................................................................................................29 S ECTION 6 The Grievance Process ................................................................................................................................................31 A. What Is a Grievance? ....................................................................................................................................31 B. What Is a Grievance Procedure? ...................................................................................................................31 C. Grievance Procedures Require Support and Commitment to Be Successful.................................................32 D. Checklist: How to Avoid Grievances ............................................................................................................33 1. Know the Collective Bargaining Agreement .........................................................................................33 2. Maintain a Positive Working Relationship with Union Representatives, Shop Stewards and Business Agents .....................................................................................................................................33

E. Processing the Grievance .............................................................................................................................34 1. Basic Principles of Grievance Processing ..............................................................................................34 2. Grievance as a Communication Channel ...............................................................................................34 3. Union Activity and Grievance Processing .............................................................................................34 F. Checklist: Handling Grievances at the Initial Step........................................................................................35 1. Notification ............................................................................................................................................35 2. Prepare for the Meeting..........................................................................................................................35 3. Understand the Grievance ......................................................................................................................35 4. Investigate ..............................................................................................................................................36 5. When considering your decision, ask yourself:......................................................................................36 6. Give Your Answer .................................................................................................................................36 7. Follow Up ..............................................................................................................................................37 G. Important Follow-Up Steps After the Grievance Meeting ............................................................................37 H. The Written Response to the Grievant ..........................................................................................................37 I. The Appeal and Arbitration Process..............................................................................................................38 1. Checklist and Pointers for Handling Grievance Appeals .......................................................................38 J. Preparing for the Arbitration/Appeals Hearing .............................................................................................40 1. Arbitration Preparation Procedures and Techniques ..............................................................................40 2. The Arbitration Hearing.........................................................................................................................41 3. Arbitration and Specific Grievances ......................................................................................................42 4. How to Present a Case in Arbitration.....................................................................................................43 S ECTION 7 Criteria Used by Arbitrators in Interpreting Agreement Language .............................................................................46 A. The Criteria ...................................................................................................................................................47 1. Intent of the Parties ................................................................................................................................47 2. Clarity of the Language..........................................................................................................................47 3. Specific Versus General Language ........................................................................................................47 4. Agreement to Be Construed as a Whole ................................................................................................47 5. Bargaining History of the Language ......................................................................................................48 6. Practice Prior to Negotiations ................................................................................................................48 7. Practice Since Negotiations....................................................................................................................48 8. Higher Regulations and Law..................................................................................................................48 9. Avoiding Harsh, Absurd or Nonsensical Result ....................................................................................48 10. Reasonableness ......................................................................................................................................49 B. Standards of Proof and Evidence ..................................................................................................................49 C. Effect of Binding Arbitration ........................................................................................................................49 S ECTION 8 Issues and Challenges ..................................................................................................................................................50 A. Introduction ...................................................................................................................................................50 B. Grievance Issues............................................................................................................................................50 1. Disciplinary Actions ..............................................................................................................................51 2. Union Rights ..........................................................................................................................................53 3. Dress and Grooming ..............................................................................................................................54 4. Retaliation ..............................................................................................................................................54 5. Employee Performance Evaluations ......................................................................................................54 6. Tenure Decisions....................................................................................................................................54 7. Past Practice ...........................................................................................................................................55

A PPENDIX A Sample Community College District Grievance Procedure .................................................................................57

A PPENDIX B Sample Management Rights Provision.................................................................................................................62

A PPENDIX C Supervisor’s Checklist for Preparing for Hearing ................................................................................................63

A PPENDIX D Checklist for Testifying as a Witness ...................................................................................................................64

A PPENDIX E Educational Employment Relations Act...............................................................................................................66

A PPENDIX F Checklist for Analyzing Discipline Problems ......................................................................................................86

E NDNOTES ...................................................................................................................................................................87

O VERVIEW

S ECTION 1

This workbook is designed for the community college administrator, supervisor or manager who is involved in labor relations on a day-to-day basis.

College administrators, managers and supervisors often face issues related to union activity in the workplace. This workbook is intended to instruct administrators and others in appropriate conduct when faced with union activity. Our intent is to address the functional, philosophical and professional considerations inherent in the exercise of management’s basic rights within the proper parameters of employee and organizational rights. Supervisors, managers and administrators should be knowledgeable about fundamental labor relations principles when cultivating a positive relationship with employees and employee organizations. Many of these principles originated in the private sector. It is imperative that supervisors and managers understand management rights – and the distinct limitations on that concept – as well as collective bargaining, effective communication methods, and appropriate techniques for responding to grievances. In our experience representing public agencies, these issues present the greatest challenges faced by administrators, managers and supervisors in carrying out their job responsibilities. The law which governs community college district (and K-12 school district) labor relations in the State of California is the Educational Employment Relations Act (EERA). 1 The EERA is based on fundamental precepts contained in federal statutes and governs the relationship between schools or community college districts and employees represented by labor organizations. The EERA is similar to the federal National Labor Relations Act (NLRA), which governs labor relations in the private sector. 2 Other public agencies in California, such as cities, counties and state agencies are subject to different collective bargaining laws. Managers and supervisors should be aware that the liability of the district, including liability that may result from violation of the EERA, extends to the acts of the employer’s “agents.” In effect, this means the district may be held responsible for the actions of its administrators, managers and supervisors when they are acting within the scope of employment, (i.e., in the line of duty). A supervisor must be cognizant of his or her role as an agent of the district when interacting with employees and labor organizations. A primary principle of labor relations is that employees have a right to organize into employee organizations (often referred to as exclusive representatives, employee associations or unions; these terms are used interchangeably in this workbook) and to bargain collectively with their employers relative to working conditions. Once representation has been established, there are obligations that the union must assume, the most important of which is its obligation to fairly represent the members in the bargaining unit. A union that has been designated and certified as the exclusive bargaining agent must represent all members of the unit without exception whether or not they are members of the union itself. 3

Handling grievances at the early stages of the grievance procedure is considered part of the supervisor’s role in labor relations. A valid and effective formal grievance procedure contributes to the orderly and peaceful redress of employee complaints. This process is preferable to, and seeks to avoid, protracted legal actions, work stoppages and other confrontational experiences at the work place. A positive management attitude, respectful of the integrity of the grievance process, serves the best interests of both labor and management. It facilitates the ability of the administrator/supervisor/manager to work effectively under the provisions of the bargaining agreement and with representatives of the local employee organization. We hope the contents of this workbook will assist first line supervisors and middle managers to meet their dual responsibilities of fairly and effectively implementing a grievance procedure and preserving and maintaining management’s basic rights. In community college districts the first line supervisor can be a classified manager, supervisor, or an educational administrator, such as a dean or a vice president. The terms “supervisor,” “manager” and “administrator” are used to discuss the supervisory relationship throughout this workbook. Supervisors may experience a union effort to “organize” employees in the workplace. An organizing drive may come as a surprise to the employer, or may be anticipated based on discussions or a preceding series of events. Supervisors are legally prohibited from interfering in an organizing drive and from obstructing protected activity. 4 Employers receiving state funds are prohibited from using any of those funds to "assist, promote, or deter union organizing." 5 Furthermore, statutory law prohibits a public employer from deterring or discouraging public employees or applicants from becoming or remaining members of an employee organization, authorizing representation, or paying dues to an employee organization. 6 However, supervisors do have certain rights, as well as responsibilities, when responding to an organizing campaign. This section describes the process of organizing and establishing representation of a bargaining unit. A. A CHIEVING M AJORITY S UPPORT The organizing process typically starts off with contact made between a labor organization and a group of employees. Either party may initiate this contact. When a group of employees contacts a union, it is often in response to perceived problems in the workplace, such as a reduction in salary, benefits or staff, perceived unfair treatment of employees, or unsafe working conditions. Once contact is made, the union representative will spend a period of time meeting with the employees and gathering signatures on a petition or authorization cards. An authorization card is a card signed by an employee that authorizes a union to represent the employee in his or her employment relationship with the district (e.g., collective bargaining). Some cards may state that S ECTION 2 P ROTECTED U NION A CTIVITY AND O RGANIZING

the employee desires an election to be held to determine whether or not the union has the full support of the majority of the employees in the bargaining unit.

The collection of authorization cards, representing proof of majority support for union representation, is the essential step in an organizing drive. Once a union representative collects enough authorization cards to demonstrate proof of majority support in the anticipated unit of employees, the union will file a formal request for recognition with the Public Employment Relations Board (PERB). 7

B. R EQUEST FOR R ECOGNITION

The process of requesting recognition and evaluating majority support is one that is regulated by statute. The following overview describes the process.

An employee organization submits to PERB a request for recognition to become the exclusive representative of an appropriate unit. 8 If a collective bargaining agreement (CBA) already exists, and employees in a unit seek to sever from the unit or be represented by a different labor association, a request must be submitted during a 29-day period (that which is less than 120 days, but more than 90 days, prior to the expiration of the agreement, not counting the date on which the agreement expires). 9 An employee organization must file such a request with the employer and the regional office of PERB, with proof of majority support provided to the regional office. 10 The employer is required to immediately post conspicuous notice of the request, and all subsequent formal actions of the parties and PERB, for a period of 15 workdays. 11 During the processing of a request for recognition, a rival employee organization may file an “intervention” to the request for recognition upon proof of at least 30 percent support in the designated unit. 12 Within 15 calendar days following notification of PERB’s determination, the employer must notify PERB by separate filing if it grants recognition pursuant to Government Code section 3544, or if it denies recognition. 14 The employer must grant recognition unless it doubts the appropriateness of the unit, the petition is untimely filed, there was a valid intervention by another employee organization, or the employer has lawfully recognized another employee organization within the previous 12 months as the exclusive representative of any employees included in the unit described in the request for recognition. 15 If the employer denies recognition, the employee organization may petition for PERB investigation to determine majority support or determine the appropriateness of a unit. 16 PERB may then investigate the matter, conduct a hearing or conduct a representation election. 17 PERB will then issue a decision. 18 At any time prior to a final decision of the Board regarding an appropriate unit, the parties may mutually agree upon an appropriate unit and request the Board to conduct a consent election. 19 Within 20 calendar days of the receipt of the request, the PERB Regional Director will review the showing of support and inform the parties as to sufficiency or insufficiency of support. 13

PERB determines the appropriateness of a bargaining unit on the basis of the community of interest between and among the employees and their established practices, including but not limited to the extent to which the employees belong to the same employee organization and the effect of the size of the unit on the efficient operation of the district. 20 The following rules and guidelines are observed:

 A faculty unit must include all faculty employed by the district with the exception of managers, supervisors and confidential employees. 21  A supervisors’ unit must contain all supervisors employed by the district, and will not be represented by the same employee organization as the supervisors’ subordinates. 22  Classified employees and academic employees will not be included in the same unit. 23  In a district that employs more than 20 supervisory peace officers, supervisory non-peace officers can be grouped in the same unit with supervisory peace officers, or they can be placed in separate, exclusive units. 24 PERB has held that under Government Code section 3508 of the Meyers Milias Brown Act (MMBA), governing local government labor relations, peace officers have the affirmative right to join or participate in peace-officer only units, although nothing in that section requires peace officers to exercise this right nor prohibits them from being in mixed units if they so choose." 25

If PERB determines that (1) the employee organization requesting recognition has demonstrated proof of support of more than 50 percent of the employees in an appropriate unit, (2) no other employee organization has demonstrated proof of support of at least 30 percent of the employees, and (3) the employer has not granted recognition, PERB will certify the petitioner as the exclusive representative. 26 C. P ERMISSIBLE VS . U NLAWFUL A CTIVITY D URING O RGANIZING Both during and after an organizing campaign, a supervisor must be able to distinguish appropriate and inappropriate types of conduct on behalf of the union, employees and management. As an agent of the district, the supervisor must refrain from any unlawful action that can result in an unfair practice charge against the district. Furthermore, the supervisor must be prepared to address prohibited activity on behalf of the union or employees.

1. U NION ’ S R IGHT TO C OMMUNICATE WITH E MPLOYEES

During the organizing process, a union representative is entitled to the following rights:

 A right of access to the district’s premises for the purpose of communicating with employees, subject to reasonable time and place regulations by the district. 27

 A right to be treated consistently with all other solicitors, even

employees who solicit co-workers for sales to support a local school or non-profit agency. For example, a requirement that nonemployee union organizers obtain identification cards was found to be unreasonable because the requirement did not apply to all visitors. 28

A district may regulate union activity in a non-work area during non-working time only if the regulation is necessary to maintain order, production or discipline. 29 When an employer has produced a legitimate business reason for conduct that interferes with employee or union rights, PERB will balance the competing interests to determine whether a violation has occurred. 30 It is unlawful for a labor organization to threaten, discriminate or retaliate against an employee, or to restrain or coerce an employee, for reasons relating to the exercise of employee rights under EERA. 31 2. E MPLOYEES ’ R IGHT TO E NGAGE IN C ONCERTED A CTIVITY Employees have the right to engage in concerted activity, such as participation in informational picketing during non-work hours; signing pro-union petitions and authorization cards; and dressing in union insignia or wearing union buttons at work. 32 Employees may also have the right to engage in a legal strike. A legal strike is one which (a) does not cause a total breakdown of basic education or a total breakdown of negotiations free from coercive tactics that hold education hostage, 33 (b) does not create a substantial and imminent threat to the health or safety of the public, 34 and (c) does not constitute an unfair labor practice. 35 The wearing of union clothing, buttons, or insignia is a protected right, absent special circumstances. 36 If special circumstances exist, then the employer may be within its rights to reasonably limit or prohibit the wearing of buttons by employees. 37 In some instances, schools may prohibit teachers from wearing political buttons while teaching, although special circumstances are not necessarily inherent in all instructional settings. 38 Yet even where such a prohibition is enforceable in instructional settings, the prohibition does not extend to non- instructional settings, such as a back-to-school night. 39 PERB has also recognized specific special circumstances, delineated in private sector labor law, justifying a prohibition of union buttons or insignia. Such special circumstances may exist where buttons could jeopardize an employee’s safety; damage machinery or products; exacerbate employee dissension; cause distraction from work demanding great concentration; disrupt the uniformity, discipline or appearance of neutrality among paramilitary law enforcement employees, or damage the image to the public by the employees coming into contact with the public in the absence of a protected purpose. 40 While a district’s burden to demonstrate special circumstances is not a heavy one, it does require demonstrating the existence of special circumstances. 41 Thus, where a button is allegedly unduly distracting or disruptive, PERB will undertake an objective examination of the button to

determine whether an objectively reasonable person would find it distracting, and will compare the buttons to other distractions prohibited or allowed by the employer. 42

3. C ONDUCT OF S UPERVISORS

During and after the organizing process, supervisors must be careful not to engage in the following unlawful activity:

 Questioning or interrogating an employee regarding union activity if “the inquiry conveys employer disapproval toward the union and creates an expectation of employee response”; 43

 Threatening employees for participating in union activities; 44

 Discriminating or retaliating against an employee for participating in union activities; 45  Promising benefits in exchange for opposing the union, or to deter employees from opposing the union; 46  Deterring or discouraging employees or applicants from becoming or remaining members of an employee organization, authorizing representation, or paying dues to an employee organization; 47  Distributing mass communications concerning public employees’ rights to join or support an employee organization, or to refrain from joining or supporting an employee organization, without providing the exclusive representative with the opportunity to meet and confer; 48  Eavesdropping on meetings with the union representative or discussions about the union; 49 or  Showing preference towards one employee organization over another, or in any way interfering with the formation or administration of an employee organization. 50  Adopting or enforcing rules that can be reasonably construed to prohibit or “chill” protected, concerted activity. For example, a blanket prohibition against workplace recordings was found to violate employees’ right to engage in concerted activities under the National Labor Relations Act (NLRA) because photography and audio/video recording in the workplace can be used by employees to promote mutual aid or protection, such as documenting unsafe workplace equipment. 51 While this decision does not apply to public employers, PERB often references NLRA in interpreting public sector labor relations statutes.

Any of the above actions is considered an unfair labor practice and could lead to the filing of an unfair practice charge against the employer.

A district has the right to regulate, through reasonable time, place and manner rules, the conduct of employees and union representatives. Supervisors should be familiar with, and uniformly apply, all such policies and regulations, including those applicable to outside solicitors and organizations.

EMPLOYERS SHOULD:

 Have a regular system of communicating to employees about issues of importance to the workplace. Deciding for the first time to implement regular system of communication to employees during an organizing drive or labor negotiations is risky and thus normally should be avoided.  Investigate accusations of harassment, intimidation, and other forms of interference by administrators/managers/ supervisors, and take corrective action where such allegations are found to be true.  Regularly communicate to the management team about their obligation, as an agent of the district, to comply with the EERA.  Monitor statements, speeches and other communications to employees to avoid the appearance of intimidation toward employees in the face of protected activity. In considering whether communications could be viewed as interference or intimidation, employers should view the statements within “the totality of the circumstances.”

EMPLOYER REPRESENTATIVES MAY:

 Correct information provided by a union or other source that is inaccurate or untrue.  Place reasonable time, place and manner restrictions on the access of unions or employee organizations in the same manner as they restrict others.

EMPLOYER REPRESENTATIVES MAY NOT:

 Ask employees whether they intend to sign a petition supporting the union.  Threaten employees who support or appear to support the union. Threats are loosely defined under PERB case law. For example, asking an employee what she thinks of the union during an organizing drive was found to be a threat when asked by an administrator who was not liked by the employee. That same action was found not to be a threat when asked by an administrator who the employee liked. This standard is subjective and weight is given to how the employee feels in determining whether conduct is threatening.

 Praise or reward employees (even subtly) because they don’t support the union..  Ask other employees with whom you are friendly to urge other employees not to support a union.  Put in place a benefit in working conditions (even a subtle one) during or immediately prior to the employees choosing whether or not to be represented.  Threaten to file unfair labor practice charges against a union seeking to organize employees unless there is a reasonable basis for filing such a charge (e.g., threats from the union or other unlawful behavior).

D. U NION AND E MPLOYEE R IGHTS AFTER R EPRESENTATION I S C ERTIFIED Union rights during the organizing process, discussed above, remain in place after a bargaining agent is certified as a representative by PERB. Once certified as the representative of employees in a bargaining unit, the union serves to represent the employees in their employment relationship with management. To represent individual employees in disputes with their supervisors at the work site itself, the employees usually elect a union representative from their own ranks. The primary tasks of the union representative are to negotiate the labor agreement, represent employees in defending against proposed disciplinary action or presenting grievances to supervisors, and to represent the union on a day-to-day, operational basis in relations with management. a. Union’s Right to Use Employer Communication Systems In carrying out its function, the union has a right to communicate with employees. Unions have the right to use institutional bulletin boards, mailboxes, and other means of communication, subject to reasonable regulation, and a right to use institutional facilities at reasonable times for the purpose of meetings concerned with statutory rights under EERA. 52 Employees who have rightful access to their employer’s e-mail system in the course of their work also have a right to use the e-mail system to engage in EERA protected communications on non-work time. An employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights. 53 Generally, employee use of an agency’s email system during non-work time will be protected if it relates to subjects such as wages, hours of work and other employee terms and conditions of employment. However, employees are not entitled to use employer email systems, or other 1. U NION ' S R IGHT TO C OMMUNICATE AND M EET WITH E MPLOYEES

District communication systems, for all non-work matters. For example, an employer may have a policy restricting distribution of political endorsements via employee mailboxes, so long as the policy is reasonable and viewpoint neutral. 54 b. Union’s Right to Visit the Workplace In carrying out its function, the union also has a right to meet with employees. An employer must permit union representatives (including those who are not employees), to visit the premises in order to check working conditions or investigate grievances. To prevent abuse of these rights, rules usually exist requiring advance notice to management and requesting permission from area supervisors for such visitations. However, by disregarding such rules the employer can create an established past practice that no advance notice or permission is required, thus relinquishing some of the management right to control the physical environment of the workplace. For example, if the employer establishes a practice of allowing the union to hold meetings in the division or department conference room for a period of 15 months, the district cannot suddenly and unilaterally decide to exercise its discretion and deny usage. The union may have established a reasonable argument that such meetings in this location constitute a protected activity based on past practice, and thus the employer cannot prohibit meetings at that location without providing the opportunity to meet and negotiate. c. Union’s Right to Participate in New Employee Orientation A union is entitled to meaningful access to their represented members to (1) communicate about the rights and obligations created by the collective bargaining agreement, (2) discuss the role of the representative, and (3) answer questions. 55 Meaningful access includes mandatory access to an employer’s new employee orientations, with at least ten days’ notice, with certain exceptions. 56 The structure, time, and manner of union access to new employee orientation is subject to negotiations, and must be determined through mutual agreement between the employer and the union. Failure of the parties to reach agreement on the structure, time, and manner of the access is subject to compulsory interest arbitration. 57 d. Union’s Right to Employee Contact Information An employer must also provide a union with the following information about any newly hired employee: name, job title, department, work location, work, home, and personal cellular telephone numbers, personal email addresses on file with the employer, and home address. Such information must be provided within 30 days of the date of hire or by the first pay period of the month following hire. 58 In addition, an employer must also provide the union with a list of that information for all employees in the bargaining unit at least every 120 days, unless more frequent or more detailed lists are required by an agreement with the exclusive representative. 59 The parties may develop procedures to allow employees to object to disclosure of personal contact information. 60

2. U NION R EPRESENTATION I N M EETINGS W ITH M ANAGEMENT Another basic union right is representation of employees in certain types of meetings with management. For example, it is well established that an employee has a right to representation when he or she files a grievance, and his or her union generally provides such representation. 61 In addition to grievance meetings, an employee has the right to union representation in a meeting with management where the employee requests the presence of a union representative at the conference, and the conference is investigatory and may result in discipline, or the employee has a reasonable belief the meeting may result in discipline. This is typically referred to as an employee’s Weingarten Rights. 62 An employee may also be entitled to union representation in a conference to deal with the employee’s union activities. Finally, an employee is entitled to have a union representative present upon request where the meeting involves the interactive process to determine if an employer can provide reasonable accommodation to an employee with a qualifying disability. 63 For the purpose of calculating overtime, time spent by an employee in adjusting grievances between an employer and employees during the time the employees are required to be on the premises is hours worked. However, where there is a formal union relationship, the Department of Labor (DOL) regulations indicate that the DOL will defer to the collective bargaining process in regard to calculation of such time. Where an employee spends time on labor management disputes voluntarily and outside normal working hours, the time is not considered hours worked for the purpose of calculating overtime liability. a. Employee Speech In determining whether government may discipline an employee as a result of employee speech, courts apply a balancing test between the interests of the employee as a citizen in commenting upon matters of public concern and the interest of the state as an employer in promoting the efficiency of public services. 64 Where an employee speaks as a citizen about matters of public concern, he or she faces only those speech restrictions necessary for the employer to operate efficiently and effectively. 65 Speech related to the desire for the benefits of unionization, employer employee relationships, or the loss of confidence in management of a public agency is considered a matter of public concern. 66 However, in applying the Pickering balancing test, a court can take into consideration the context of the employee’s speech, such as whether the speech was made at a proper time and place and appropriate manner, the effect on efficiency and harmony, or the interference with the speaker’s performance of duties. 67 Public employers are not required to demonstrate an actual disruption of the workplace; “reasonable predictions of disruption are sufficient.” 68 3. R IGHTS R ELATED TO S PEECH

PERB has found that employee criticism of a supervisor on employment-related subjects is protected when its purpose is to advance the employees’ interests in working conditions. 69 This protection extends to speech that is uncomplimentary to the employer, and even to speech containing inaccuracies and exaggerations. 70 The NLRB has determined that a policy against employee statements that "damage" the employer violates the NLRA because it potentially stifles the "concerted activity" the Act protects. 71 The NLRB has also applied such protection vigorously to employee posts on Facebook and other social media. 72 However, speech that is “opprobrious, flagrant, insulting, defamatory, insubordinate or fraught with malice” so as to cause “substantial disruption” or material interference” loses its protection. 73 b. Employer Speech Another basic right that can lead to controversy is the limit on employer speech. Supervisors and managers are prohibited from making comments during an organizing election that imply that the campaign is futile. While employers are permitted to provide factual information, they must refrain from any threat of retaliation for union activity. For example, management’s representatives cannot make assertions that unionization will result in lower wages and loss of benefits, or that the union is a “menace” that should be eliminated. The U.S. Supreme Court has found that the National Labor Relations Act (NLRA) embodies a “First Amendment right of employers to engage in non- coercive speech about unionization,” and thus expressly precludes regulation of speech about unionization, so long as the communications do not contain a “threat of reprisal or force or promise of benefit.” 75 Another example, during a United Auto Worker (UAW) organizational campaign, an employer displayed a “UAW Wall of Shame” banner, beneath which it placed a number of paper tombstones, each of which had “RIP” with the name of a UAW-represented plant that had closed. Every couple days, the employer would add another tombstone bearing another closed UAW-represented plant. On the day before the election, the company posted a tombstone with the name of the employer on it and a question mark in the middle. 76 The National Labor Relations Board (NLRB) found that the clear implication of the “Wall of Shame” was that the fate of the plant would be thrown into question if, and only if, the employees chose union representation. 77 In order for the company to have avoided a violation of the NLRA, it would have had to offer objective facts as the basis for its belief that, for reasons beyond the company’s control, selection of the UAW as the employees’ bargaining representative could cause the closure of the plant. 78 Instead, the employer remained mute regarding the basis for its assertion, implying that the employer would retaliate if the employees chose the UAW as their collective bargaining representative. 79 As discussed above, the wearing of union buttons or insignia is a protected right, absent special circumstances. 74

4. R IGHT TO BE F REE FROM S URVEILLANCE OF U NION A CTIVITY There is also understandable sensitivity on the part of employee organizations as to what they consider to be surveillance of protected activity by supervisors. If there is evidence the surveillance is designed to discourage union activities, the employer may be said to be in violation of basic union rights. However, isolated acts of misconduct by management are not generally viewed as a violation of union rights. Unless egregious, an act which is non-recurring, and which only poses a minor infraction, is generally not the basis for a successful unfair labor practice charge. 5. R IGHT TO I NFORMATION An employer must provide an exclusive representative with all information that is necessary and relevant to the union’s duty to represent employees in their employment relations, unless there is a compelling reason why the information should not be provided. 80 In defining the parameters of “necessary and relevant information” PERB has ruled that if the requested information pertains directly to a mandatory subject of bargaining, it is presumptively relevant. 81 6. R IGHT TO E NGAGE IN C ONCERTED A CTIVITY Protected concerted activity occurs when two or more employees act together to protest or complain about terms and conditions of employment, such as wages and benefits. The EERA protects an individual employee’s right to engage in, or not to engage in, protected, concerted activities. Many forms of concerted activity are legally protected. Distribution of information, engaging in speech that is critical of the employer, filing a complaint or grievance, and peaceful, informational picketing on off-duty time are considered protected concerted activity. 82 Another form of concerted activity is a labor strike or work stoppage. Labor agreements commonly contain no-strike clauses. An employee might be subject to discipline for violating this provision during the term of the labor agreement. Once the labor agreement expires, a strike will only be considered protected activity if it follows exhaustion of statutory impasse procedures, or if evidence demonstrates that the strike was provoked by the employer’s unfair practices. 83 In either instance, the strike must not result in the “total breakdown of education.” 84 Districts should always consult with legal counsel prior to disciplining employees for strikes or related activities due to complex legal issues that might arise. A district should consider several variables when deciding how to react to a strike, sickout, or other work stoppage. It should consider whether the public can go without the strikers’ services or whether the district can hire replacement workers, determine the effect on service delivery, and ascertain community and press reactions to the labor dispute. Sometimes it is best to let strikers stay out until they are ready to resume work. In other circumstances, it might be advisable to propose mediation or some other form of dispute resolution, to revise proposals to draw the strikers back to the bargaining table, or to seek injunctive relief from PERB to compel the employees to return to work.

Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 10 Page 11 Page 12 Page 13 Page 14 Page 15 Page 16 Page 17 Page 18 Page 19 Page 20 Page 21 Page 22 Page 23 Page 24 Page 25 Page 26 Page 27 Page 28 Page 29 Page 30 Page 31 Page 32 Page 33 Page 34 Page 35 Page 36 Page 37 Page 38 Page 39 Page 40 Page 41 Page 42 Page 43 Page 44 Page 45 Page 46 Page 47 Page 48 Page 49 Page 50 Page 51 Page 52 Page 53 Page 54 Page 55 Page 56 Page 57 Page 58 Page 59 Page 60 Page 61 Page 62 Page 63 Page 64 Page 65 Page 66 Page 67 Page 68 Page 69 Page 70 Page 71 Page 72 Page 73 Page 74 Page 75 Page 76 Page 77 Page 78 Page 79 Page 80 Page 81 Page 82 Page 83 Page 84 Page 85 Page 86 Page 87 Page 88 Page 89 Page 90 Page 91 Page 92 Page 93 Page 94

Made with FlippingBook - Online catalogs