Eight Simple Rules to Avoid a Date with the Public Employment Relations Board

Transcription

1 Eight Simple Rules to Avoid a Date with the Public Employment Relations Board A Primer on the Administrator s Duties and Obligations Under the Educational Employment Relations Act October 26, 2012 ACHRO/EEO Lake Tahoe Presented by: Brian D. Bock, Esq. Jordan I. Bilbeisi, Esq.

2 Rule #1 Know the Law Controlling Employer-Employee Relations in California Education. The Educational Employment Relations Act ( EERA ) Govt. Code 3540, et seq. Main features of the EERA Provides for employee representation Scope of bargaining Protected union and employer rights Assigns PERB with enforcement Representation issues (unit recognition, modification, severance, etc.) Unfair practice charges Binding decisions on public employers/representatives 2

3 Rule #2 Acknowledge That Union s Have the Right to Represent (and Communicate with) District Employees on District Property. EERA (b): Right of access Basic Premise: Ability of unions and employees to communicate and disseminate, receive, and exchange information. 3

4 Rule #2 (Cont d) Where do they have access? Bulletin Boards (Regents of Univ. of Cal. (1983) PERB Dec. No. 319-H) District Mailboxes/Non-Union Related Communications (San Leandro Teachers Assn. v. Governing Bd. of San Leandro Unified Sch. Dist. (2009) 46 Cal.4 th 822) (State of Cal. (Dept. of Personnel Administration) (1998) PERB Dec. No S) Other means of communication 4

5 Rule #2 (Cont d) Subject to reasonable regulation by employer Presumption of union right rebuttable Employer must show that access would be disruptive to services or otherwise disturbing Must be narrowly drawn to serve this purpose PERB balances employer s right to maintain order and discipline with union s rights 5

6 Rule #3 Recognize That Employee s Have the Right to Union Representation at Disciplinary Meetings (a.k.a., their Weingarten Rights ). National Labor Relations Board v. Weingarten (1975) 420 U.S Does Weingarten apply to school districts? 6

7 Rule #3 (cont d) When does the Weingarten right attach? Meetings where the right applies Reasonable belief discipline may result Meetings where the right does not apply Discipline already determined Non-Meeting Situations where Weingarten may apply 7

8 Rule #3 (cont d) Making the Request for Representation This will trigger the employee s right BUT employer has no obligation to inform employee of the right Representative of employee s choice? Employers, union reps must be mindful of their conduct at meeting Fine line between permissibly assisting employee and impermissibly turning meeting into adversarial forum 8

9 Rule #4 Do Not Threaten or Otherwise Discriminate Against an Employee for Exercising Union Rights. It is unlawful for a public school employer to [i]mpose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter. (EERA (a).) 9

10 Rule #4 (cont d) What sort of actions could this encompass? Adverse employment action (e.g., discipline, transfer, failure to promote, etc.) following protected union activity. Threats for exercising protected rights. Was the threat reasonably intended to interfere with or coerce the exercise of protected rights? Objective standard 10

11 Rule #4 (cont d) Discrimination vs. Interference To show discrimination, employee must show unlawful intent. Usually through circumstantial evidence (e.g., proximity in time, inconsistent justifications, departure from established policies and procedures, etc.) To show interference, employee need only show employer s conduct tends to or does result in harm to protected rights No need to show unlawful intent 11

12 Rule #4 (cont d) Did employer have operational necessity for action? Evidence that employer would have taken the same action despite protected activity Mere participation in union activities does not insulate employee from adverse action Balancing the employer s vs. union s interests 12

13 Rule #5 Do Not Interfere with Union Activities During Non-Work Time. General Rule: Work time is for work (State of California (Employment Development Department) (2001) PERB Dec. No. 1365a-S.) However, unit members are free to conduct union activities during non-working hours, in non-work areas May regulate union activity in non-work areas, nonwork hours only if necessary to maintain order, production, or discipline 13

14 Rule #5 (cont d) Discussion/promotion of non-union issues Permissible items Leaflets related to legitimate labor dispute Union/political buttons in non-instructional setting Impermissible items leaflets, buttons, other promotional items Union buttons that create undue distraction, disruption or safety hazard ( special circumstances ) Political buttons in classroom 14

15 Rule #6 Allow (Reasonable) Release Time for Negotiations and Grievance Processing. A reasonable number of employee union representatives have the right to reasonable periods of release time, without loss of compensation, to meet, negotiate or process grievances. ( (c).) 15

16 Rule #6 (cont d) What is reasonable? PERB: Employer must exhibit open attitude in consideration of amount of released time granted Take into consideration hours needed for activity and number of employees needed for that activity However, employer need not shoulder the entire burden by releasing all employee reps for all the time they deem necessary or spend in representation 16

17 Rule #7 Recognize that unions have a right to certain employer information. No express right in EERA But PERB has held union has right to all information that is necessary and relevant to the discharge of its duty to represent employees. (Stockton Unified Sch. Dist. (1980) PERB Dec. No. 143.) 17

18 Rule #7 What is necessary and relevant? Info immediately pertaining to mandatory subjects of bargaining Info pertaining to contract negotiations or administration, including grievances PERB has broadly interpreted this right But employer need not disclose if: Privacy outweighs union need for info Inadequate request Unduly burdensome request Union waived right to info Equal access 18

19 Rule #8 When in Doubt, Ask Your Personnel Administrators for Assistance. The human resources/labor relations staff in your district are knowledgeable in the EERA/PERB arena. Perhaps, this is the simplest, and most effective rule for you to follow: Unless you are 100% certain about how to act in a given situation DO NOT ACT BEFORE YOU ASK. Otherwise, you may end up with a DATE WITH the PERB. 19

20 20 Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.

21 21 Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.

22 22 Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.

23 23 Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.