Labor Relations Fundamentals for Community College Districts

him or her of the recommendation for discipline, unless during the course of the meeting the supervisor engages in investigatory conduct, such as seeking additional facts or evidence.

Although an employee is generally entitled to the union representative of his or her choice, the employer is not obligated to postpone the interview for an unreasonable amount of time simply to accommodate the schedule of the desired representative. When delaying the meeting to accommodate the schedule of the desire representative would constitute an unreasonable delay, the employer may proceed with a meeting so long as another union representative is available at the time set for the meeting. 105 A representative has the authority to participate in any disciplinary interview. This does not mean that the representative can interfere or instruct the employee to refuse to answer questions. However, the representative can ask managers to clarify questions, ask their own questions of employees after management is finished with its questions and make a record of any alleged procedural violations. The role of the representative is to provide assistance and counsel to the employee being interrogated, and the district must allow a representative to play an active role in assisting the employee during the meeting, rather than require the representative to be silent. 106 However, the supervisor has no duty to bargain with the representative at an investigatory interview. 107 Generally, a representative may be present to assist the employee, attempt to clarify facts, or suggest other employees who may have knowledge of them. 108 However, the employer may insist that it is only interested in hearing the employee’s own account of the matter under investigation. 109

The employee is entitled to consult with the union representative prior to the meeting so the representative can provide meaningful representation. 110

B. R EPRESENTATION IN A G RIEVANCE M EETING

Employees generally have a right to bring a representative to a formal or informal grievance meeting or a meeting to discuss contract interpretation or implementation. 111

C. R EPRESENTATION IN AN I NTERACTIVE P ROCESS M EETING PERB has also held that the right of representation guaranteed by Trial Court Act 112 includes an employee's right to have a union representative assist him or her in the interactive process by attending meetings with the employer convened to explore possible reasonable accommodations to an employee's disability, if the employee requests union representation. 113 An employer may be required to hold interactive process meetings to fulfill its obligations under California’s Fair Employment and Housing Act, a statute enforced by the Department of Fair Employment and Housing. 114 In recognition of the employee's right to privacy and right not to participate in the activities of employee organizations, PERB held that the union's right to represent in the interactive process attaches only if the employee requests union representation. 115

Labor Relations Fundamentals for Community College Districts © 2019 (c) Liebert Cassidy Whitmore 25