Alfred Gutierrez worked in the State of California (Board of Equalization)'s Print Shop. Gutierrez asked his supervisor, Steven Hall, as to why a female employee was trained in another work area. Hall said that the situation was temporary and it was a management decision. Gutierrez requested and received union release time to prepare a grievance regarding the issue. Hall later saw Gutierrez preparing the grievance in his work area. Hall told him that he could not prepare the grievance in his work area, but that Hall would provide him a quiet private room to do so. Gutierrez responded that he should be allowed to prepare the grievance in his work area.
Hall subsequently met with Gutierrez and Gutierrez requested union representation. Hall denied his request on the grounds that the meeting had nothing to do with discipline. Hall informed Gutierrez that he could prepare the grievance on union time, but not in the work area. Hall directed Gutierrez to schedule meetings to discuss workplace concerns.
Gutierrez filed an unfair practice charge with PERB alleging that the State denied him the right to union representation. The ALJ found in favor of the State, as did the Board.
In order to establish a violation of the Weingarten right to union representation, the charging party must demonstrate: (1) the employee requested representation; (2) for an investigatory meeting; (3) which the employee reasonably believed might result in disciplinary action; and (4) the employer denied the request. To trigger the Weingarten right, management's purpose for the meeting has to be to elicit facts from the employee which have the potential to impact the employment relationship. Weingarten does not apply when the employer simply delivers notice of a disciplinary decision.
Here Hall's meeting with Gutierrez was short, only 10-15 minutes in length, and the purpose of the meeting was informative and instructional. Hall did not question Gutierrez during the meeting; therefore, it was not an investigatory interview. The purpose of the meeting was to review interactions between Hall and Gutierrez that occurred before, and to provide information and instruction to Gutierrez regarding those interactions. There was no investigation, because Hall was a participant in those interactions, and he had already determined what needed to be done.
The Weingarten case strikes a balance between management rights to set standards and a union's right to represent its members. This case is another in a long line of cases that authorizes management to simply give instructions or deliver notice of discipline without the presence of a union representative.
Gutierrez v. State of California (Board of Equalization) (2012) PERB Dec. No. 2237S [___ PERC ¶____].