Labor Relations Fundamentals for Community College Districts

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

Labor Relations Fundamentals for Community College Districts © 2019 (c) Liebert Cassidy Whitmore 17