Case to Watch: Sonoma County Superior Court v. PERB
by David G. Ritchie on April 15, 2015
posted in Disability, Employment Law,
A judicial appeal is pending from a recent decision of the Public Employment Relations Board in SEIU 1020 v. Sonoma County Superior Court, PERB Decision No. 2409-C. The case involves a decision by the Superior Court (as the employer) that employees do not have a right to representation in the interactive process in which requests for accommodations and consideration of the reasonableness of those requests are considered by the Agency.
Cyndi Nguyen, a Court Reporter with the Superior Court met with the Court after she was diagnosed with an impairment that limited her ability to perform a major life activity. Nguyen asked that her representative be present at the meeting, but the Court did not allow the representation on the grounds that the meeting was to engage in an interactive dialog that could include confidential medical information, and secondarily because Weingarten rights would not apply (it was non-disciplinary in nature.) At stake was the offer (as an accommodation) from the Court to place Nguyen in alternate employment as a Legal Process Clerk – a position with lower pay than that of a Court Reporter.
SEUI alleged that the representation should have been permitted under Weingarten, a position that was originally rejected by the Board Agent (reversed by PERB.) In reversing the Board Agent, PERB overruled it’s own prior decision in California State University Employees Union v. Trustees of the California State University PERB Decision No. 1853-H, in which PERB had previously indicated there were no representation rights in interactive process meetings regarding disability accommodations.
The PERB Board was critical of the narrow approach to the facts in the Sonoma case, specifically the Parties’ apparent treatment of representation rights as being limited to Weingarten situations in which disciplinary action is at stake. PERB took a broader view and likened the issue of representation in an interactive process to the right of employees to be represented during a grievance process, noting that such a situation represented a separate and distinct right to representation from those arising out of Weingarten. Instead, PERB held that this decision not to allow representation denied the union the right to represent its members in “all matters of employee-employer relations”, a much broader standard than Weingarten and more reflective of finding separate representation rights exist whenever determinations may impact a bargaining unit more broadly. While this decision was based on the Trial Court Act, Gov. Code Sections 71630 et. seq., prior decisions under HEERA and the existence of similar language in other public agency labor relations statutes indicates that PERB would certainly broadly apply the principles discussed on public agencies generally.
If the PERB Board decision in Sonoma stands, and until the Board’s determination is stayed or reversed, employers should use caution and allow representation during the interactive process to explore reasonable accommodations related to an employee’s disability, if such representation is requested by the employee.
