The Public Employment Relations Board (PERB) recently held in Sonoma County Superior Court (Sonoma) that employees are entitled to union representation at interactive process meetings. With this ruling, PERB expressly overturned prior precedent on this issue.
Before the Sonoma ruling, PERB recognized a right to union representation in individual meetings with the employer primarily only in the context of investigatory or disciplinary meetings, i.e. Weingarten rights. Under the ADA and FEHA, interactive process meetings are held between employees and employers in order to explore potential reasonable accommodations to assist an employee with a disability to perform essential job functions. They are not disciplinary or investigatory meetings. As a result, PERB has previously held that the right to representation does not apply to interactive process meetings. Notably, in an analogous situation where the employee was represented by a workers’ compensation attorney, the California Court of Appeal has found that an employer may be required to allow the employee’s attorney to participate in the interactive process.
However, in Sonoma, PERB explains that the right to representation is not limited to Weingarten rights. Many years ago, the California Court of Appeal affirmed PERB’s decision in Redwoods Community College District recognizing that the right to representation is broader than Weingarten rights. In fact, the collective bargaining statutes administered by PERB support the right to representation in the additional context of grievance processing and arbitration. This is because grievance-type meetings are a product of collective bargaining, and the grievance procedure is the mechanism by which collective bargaining agreements (CBAs) are enforced.
PERB stated in Sonoma that interactive process meetings are not traditional Weingarten meetings because they are not disciplinary or investigatory meetings. Further, they are not grievance meetings because they do not arise out of a negotiated grievance procedure or other claim that the employer has violated the CBA. PERB reasoned that interactive process meetings most closely resemble grievance meetings. Like a grievance meeting, an interactive process meeting may involve the terms and conditions of employment in which all parties have an interest.
Importantly, for the employee, the interactive process meeting could result in the loss of his or her job. In addition, there are many potential reasonable accommodations that could intersect with the terms of a CBA (e.g. seniority rights). PERB noted that a union representative can serve a useful function in explaining, defending and asserting the employee’s rights and the possible consequences of refusing offered accommodations. The representative, who can bring to the meeting a familiarity with the CBA, could also assist the employer in identifying conflicts between a proposed accommodation and the CBA.
PERB’s decision in Sonoma does not hold that employees are entitled to representation at all meetings affecting wages, hours and other terms and conditions of employment. But it is reasonable to view PERB’s reasoning in the case as signaling PERB may soon further clarify or possibly expand the right to representation at individual meetings between employer and employee.