EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION – Confidentiality; Privacy

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A union’s unique representational functions may allow it a right to sensitive or confidential information. (City and County of San Francisco (2024) PERB Decision No. 2891-M, p. 8 (San Francisco); Contra Costa Community College District (2019) PERB Decision No. 2652, p. 18 (Contra Costa); Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 11 (Sacramento.) When an employer believes that a union has sought confidential information, settled procedural protocols govern how an employer must negotiate in good faith over a potential accommodation, and established substantive standards govern what must occur if the parties cannot work out such accommodations. (San Francisco, supra, pp. 8-9.) Procedurally, the employer must offer to bargain in good faith toward accommodating all legitimate competing interests, and if it instead unilaterally refuses to provide allegedly confidential information, it is liable for a violation without the need for further analysis. (Id. at p. 9; County of Tulare (2020) PERB Decision No. 2697-M, pp. 13-14 (Tulare); Contra Costa, supra, pp. 18-20; Sacramento, supra, pp. 12-14.) Bargaining parties may negotiate accommodations that recognize unions can be trusted to be discreet. (Sacramento, supra, p. 13.) For instance, the parties may enter into a confidentiality agreement or other arrangement in which the requesting union agrees to limit its use of the information to a particular purpose, and to disclose such information to union employees or attorneys only if necessary for that purpose. (San Francisco, supra, p. 9; Tulare, supra, p. 13; Contra Costa, supra, p. 19.) (pp. 10-11.)