Discipline and Termination -Employee Rights in the Public SectorPA 800

Presented by:Amihan MakayanDecember 12, 2012

AGENDA

▪ California Public Sector Labor Statutes▪ Union Rights in Public Employment▪ Weingarten Rights▪ Skelly Rights▪ Duty of Fair Representation▪ Personal Experience and Suggestion

California Public Sector Labor Statutes

The CA Public Employment Relations Board (PERB) administers:▪ HEERA – Higher Education Employment Relations Act ,

1979▪ EERA – Education Employment Relations Act , 1976▪ Dills Act (SEERA) – State Employees , 1979▪ Meyers Milias Brown Act (MMBA) – Municipal Employees,

1968

UNION RIGHTS IN PUBLIC EMPLOYMENT

▪ Basic Employee Rights under California Public Sector ▪ Form, join, or assist labor organizations▪ Bargain collectively through chosen representatives▪ Present grievances, individually, collectively, or through the Union

▪ Unfair Labor Practices▪ Interfering with, restraining, or coercing employees in the above rights▪ Retaliating, discriminating against, or threatening employees (because

of above rights)▪ Dominating or interfering with the formation or administration of any

labor organization.▪ Refusal to meet and confer (bargain) with the union chosen by the

employees to be their exclusive representative.

Rights of Permanent Public Employee Workers

▪ These rights are guaranteed by the 5th and 14th Amendments of US Constitution, and the California Constitution.▪ Free Speech▪ Property Interest in Job ▪ Due process

▪ Weingarten Rights▪ Skelly Rights

WEINGARTEN RIGHTSNLRB V. J. WEINGARTEN (420 U.S. 251)

WEINGARTEN HISTORY

• Leura Collins, clerk at Weingarten Store No. 98• Failed to pay for full price for a box of chicken – was accused of

stealing• Requested union rep and was denied multiple times

• Unfair labor charge filed with NLRA• Ruling become Weingarten rights• Applies to private companies with represented employees• Public sector uses term but in reality covered by state and US

constitutions and other labor laws and statutes.

WEINGARTEN RIGHTS

• Rule 1: The employee must make a clear request for union representation before or during the interview. The employee cannot be punished for making this request. The employer is not required to suggest representation.

• Rule 2: After the employee makes the request, the employer must choose from among three options. 1. The employer must grant the request and delay questioning until the union

representative arrives and has a chance to consult privately with the employee2. Deny the request and end the interview immediately; or 3. Give the employee a choice of having the interview without representation or

ending the interview.

• Rule 3: If the employer denies the request for union representation, and continues to ask questions, it commits an unfair labor practice and the employee has a right to refuse to answer. The employer may not discipline the employee for such a refusal.

SKELLY RIGHTSSkelly v. State Personnel Board (1975)California Supreme Court

SKELLY RIGHTS• Public employees protection of Due Process clauses of California and US

Constitutions. • Property Interest in Employee’s jobs• Pre-disciplinary:

• Notice of proposed action• Reason for the action• Copy of charges and materials• Right to Respond to Charges• No formal hearing required

• Post-disciplinary:• Written notice of the grounds for termination• Evidentiary hearing• Neutral hearing officer• Burden of proof is on employer

Skelly Rights

▪ Applies to▪ Termination▪ Long suspension (5+ days)

▪ Does not apply to▪ Written warning▪ Short suspension ( <5 days)▪ Reclassification▪ Demotion in lieu of layoff▪ Reassignment and transfer

▪ Skelly rights is separate and in addition to the collective bargaining agreement

DUTY OF FAIR REPRESENTATIONNational Labor Relations Act

DUTY OF FAIR REPRESENTATION

▪ Under the National Labor Relations Act ▪ Obligation to represent all employees fairly, in good

faith, and without discrimination.▪ Often misunderstood

PERSONAL EXPERIENCE AND SUGGESTIONS

▪ Importance of following appropriate procedures▪ Importance of following HR advice▪ Understand the roles of Management, HR, and Labor

QUESTIONS?

Thank you!