PERB Leaves Open the Question as to Whether an Employee Has a Right to Union Representation during a Performance Evaluation Meeting

Category: Blog Posts
Date: Feb 10, 2016 12:00 AM
PERB Leaves Open the Question as to Whether an Employee Has a Right to Union Representation during a Performance Evaluation Meeting

The Public Employment Relations Board (PERB) has long held that employees are entitled to union representation if they are required to attend a meeting where they have a reasonable belief that discipline may result from the meeting (Weingarten rights).  In Redwoods Community College District v. Public Employment Relations Board (1984), PERB expanded these Weingarten rights by stating that the right of representation also applies to "highly unusual circumstances."  What constitutes "highly unusual circumstances" has not been tested, at least until recently.  In early 2015, PERB expanded an employee's right to union representation to matters other than discipline when it held that employees are also entitled to union representation at an interactive process meeting. 

More recently, a PERB Administrative Law Judge (ALJ) was presented with the question as to whether the right of representation applied to performance evaluation meetings.  The ALJ ruled that under the circumstances of this case the performance evaluation meeting did not involve "highly unusual circumstances" and as a result, found no violation of the law.  The case was appealed to the Board on other grounds, and in State of California (California Correctional Health Care Services) (CCHCS), PERB, in dicta, commented upon but ultimately left open the issue of whether that right to union representation extended to performance evaluation meetings.

The facts in the case are as follows: Caesar Kindipan began working as a registered nurse at one employer facility in 2011.  On July 9, 2014, a supervisor he did not know approached him and asked that he join her and another supervisor in a conference room so she could administer his annual performance review.  Although the parties disputed the specifics of the meeting, the PERB ALJ deciphered the following "essentially undisputed" facts.

The meeting occurred when Kindipan was not ordinarily scheduled to work, as he was working an overtime shift.  He was called into the meeting with no notice by a supervisor whom he had never met.  During the meeting, the supervisor delivered a negative performance evaluation and a counseling memorandum on matters that had not previously been brought to Kindipan's attention.  Even though Kindipan had worked for his employer for a few years, this was his first performance evaluation, and thus, he did not know what to expect during the meeting.  During the meeting, he indicated his displeasure with the supervisor's negative assessment of his performance.  He indicated that he wanted to leave the meeting to speak with his union representative and to check on his patients.  The second supervisor told Kindipan that his attempt to end the meeting bordered on insubordination, but neither of the supervisors actually disciplined nor threatened to discipline Kindipan for leaving the meeting prematurely.

Kindipan's union filed an unfair practice charge alleging that Kindipan's employer violated Kindipan's rights by refusing to permit him to summon a union representative to the meeting.  The ALJ found that Kindipan was not entitled to representation for several reasons.  The meeting was not investigatory in nature, as the purpose was not for the supervisors to obtain information, but rather to provide a routine performance appraisal and a counseling memorandum to Kindipan.  During the meeting, the supervisors conveyed to Kindipan that they were unsure why he was responding to their evaluation and defending himself, and further indicated that they did not expect him to answer questions or provide responses.  The ALJ determined that their attempt to limit Kindipan's response to their assessment supported the fact that they were not meeting with him as part of any investigation.

In addition, the conversation during the meeting was limited to items already documented in the performance evaluation.  According to the ALJ, this indicated that the supervisors were not attempting to glean information for possible discipline against Kindipan.  Moreover, the fact that the meeting was scheduled with no notice and at the convenience of the supervisor did not trigger any right for Kindipan to have a representative at the meeting.  The ALJ noted that the circumstances of the meeting created stress, but "poor supervisory practices do not necessarily give rise to a violation."  Finally, the fact that there were two supervisors in the meeting does not, on its own, generate the right to union representation.

The specific facts of CCHCS were critical to the ALJ's decision that the meeting at issue was not investigatory and did not rise to the level of "highly unusual circumstances."  Therefore, the meeting did not trigger the employee's right to representation.  Even though the employer conducted the meeting under less than ideal circumstances (e.g., no notice to the employee, not on the employee's regular shift, and employee was not familiar with the supervisor providing the assessment), the ALJ still found that the conditions did not entitle the employee to representation.

The employer appealed the ALJ's decision regarding another aspect of the case (i.e., whether the proposed order regarding a finding that the agency's directive to stop issuing e-mails was overbroad); the union did not file an appeal regarding the finding of no right to representation.  Nonetheless, PERB chose to comment on the issue of the right to representation.  In a footnote, it explained that the panel had "differing views" as to whether the employer interfered with employee rights by not allowing Kindipan's representative to attend the meeting.  It also stated however, that since neither the employer nor the union excepted to or argued the ALJ's finding on that issue, the Board would not discuss it.  Significantly however, it specifically also chose not to adopt that portion of the ALJ's proposed decision dealing with the issue of right to representation.

While the CCHCS case leaves open the question as to whether an employee has a right to union representation during performance evaluation meetings, the Board's footnote and the ALJ's discussion are instructive as to what employer actions may trigger a right to representation.  For instance, employers should clearly communicate the purpose of performance evaluation meetings to employees ahead of time so employees have an understanding of what to expect during the meeting.  Employers should also be careful not to use the meeting to seek information that could lead to discipline.  Remember, the purpose of the meeting is to review the employee's prior performance and establish goals for improvement, if necessary.  It should not to be used as an investigatory tool to question employees about conduct or performance issues not already raised in the evaluation, as doing so may entitle the employee to union representation.  Finally,  to reduce the risk of having the performance evaluation meeting being found to have occurred under "highly unusual circumstances," employers should provide the employee with advance notice of the meeting, and have a supervisor with whom the employee is familiar conduct the meeting.

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