Representation During Performance Evaluations: Still an Open Question
February 19, 2016
The Public Employment Labor Relations Board (PERB) recently heard a case related to whether or not employees have the right to union representation during performance evaluations. The appeal came from a complicated case where an employee received a performance review that included a negative evaluation of his work.
There were several irregularities with the meeting, including a lack of notice to the employee for a meeting that occurred at a time the employee did not typically work, and with a different supervisor conducting the review.
The employee was displeased with the evaluation and wanted to consult with his union representation; the supervisor did not allow this action to occur. This article from employment and labor relations experts Liebert Cassidy Whitmore includes more details.
The Administrative Law Judge (ALJ) initially found that this particular employee was not entitled to union representation at his performance review, and that the event was not an unfair labor practice for several reasons. Firstly, the purpose of the meeting was not investigatory but rather for the purpose of providing feedback. Also, the meeting only covered topics in the performance review, suggesting that the supervisors were not seeking additional information to discipline the employee.
The ALJ also clarified that “poor supervisory practices do not necessarily give rise to a violation,” so the facts of the case related to the unusual timing of the review and the unknown supervisors delivering the review to the employee were not necessarily problematic from the perspective of an unfair labor practice.
The employee’s union appealed portions of the case to the PERB. The PERB commented in a footnote that “the panel had ‘differing views’ as to whether the employer interfered with employee rights” on the issue of representation at the meeting. However, the union had not appealed this portion of the ALJ’s ruling, so the PERB did not issue a formal ruling on that question.
The question of whether or not employees are entitled to union representation at a performance review remains an open question and employers would be wise to be aware of these potential issues and clarify expectations around performance reviews.