February 2019 Newsletter – School Districts
Investigatory Questioning and Interference with EERA-Protected Rights
In a recent decision, PERB refined the boundaries regarding an employer’s investigatory inquiries of an employee who also serves as a union representative. In adopting the NLRB’s Cook Paint & Varnish Co. standard, PERB limited the scope of investigatory questioning into conversations between union representatives and the unit members who come to them in that capacity. An employer who exceeds such limits risks interfering with rights protected under the EERA.
In William S. Hart Union High School District (Hart) (Nov. 9, 2018) PERB Decision No. 2595E, PERB held that the District unlawfully interfered with the rights protected under the EERA when it sought details from a union steward of conversations between the steward and bargaining unit members under threat of discipline. In Hart, a union steward, who was rumored to be romantically involved with one of her unit members, was brought in for an investigatory interview after the District received formal complaints that the union steward and the employee were meeting in the parking lot in her car during his working hours. During its investigatory interview with the union steward, the District asked whether other bargaining unit members had expressed concerns to her about this particular employee with whom she was rumored to be romantically involved. The District then asked follow-up questions and specifically inquired into a particular site meeting where the site’s unit members expressed their concerns to the steward regarding the employee. The District asked for the identity of unit members who attended the meeting and questioned the substance of the conversations between the unit members and the steward. Following the interview, the District brought disciplinary charges against the union steward, which included, but were not limited to, “abandoning her responsibilities” to other unit members in order to cover up her affair with the night custodian.
PERB’s analysis of the issues turned on whether the District unlawfully interfered with EERA-protected rights when it questioned the union steward, while under the threat of discipline, regarding the complaints she received from other bargaining unit members. Historically, the framework for analyzing allegations of unlawful interference requires a sufficient initial showing that the employer’s conduct tends to or does result in some harm to rights protected under the EERA. Once this is established, the employer is able to offer its justification based on operational necessity. Then, the competing interests are weighed. Unlawful interference is found if the degree of harm to protected rights outweighs the employer’s justifiable operational necessity.
At issue in Hart were the rights of both individual employees and the employee organization. Those rights included the employee’s right to serve as a union steward and the organization’s right to represent employees in their employment relations with the public school employer. PERB ultimately adopted the NLRB’s standard regarding the scope of permissible investigatory questioning of a union representative, holding that both employees and their union representatives have a protected right to communicate with each other regarding matters of their employment relationship. Additionally, while public school employers have an affirmative duty to investigate and prevent misconduct, they must also respect the rights of public employees performing as union stewards to be free of coercive conduct by the employer. Accordingly, conduct of the employer that has a tendency to harm (or “chill”) this protected communication may amount to unlawful interference.
However, PERB did recognize one way an employer may exceed the scope outlined above and still respect the rights of union stewards – specifically, stating: When an employer’s questions veer into matters protected by [the] EERA, it is the employer’s obligation to assure the employee that his or her response is voluntary. In Hart, when the District asked the steward the identity of unit members who attended the meeting and the substance of the conversations between the unit members and the steward, without first assuring her that her responses were voluntary, PERB concluded the questioning was “coercive and harmed protected rights.”
From this decision, districts should keep in mind the following: 1) districts should refrain from asking investigatory questions of union stewards regarding conversations with unit members, as that may “chill” or interfere with employee and union rights; 2) districts should carefully evaluate all available evidence prior to asking investigatory questions and plan the questioning of an implicated employee in order to ensure that questions remain within the scope of permissible inquiries; 3) in the event investigatory questioning veers into matters protected by the EERA, the district is obligated to assure the union steward being question that their response is voluntary; and, 4) involving legal counsel early in the process can provide a critical perspective regarding perceived misconduct and potential disciplinary issues.
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