EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION – Confidentiality; Privacy
Single Topic for Decision 2438E
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604.04000 – Confidentiality; Privacy
District violated EERA by refusing to provide to union the names and work locations of unit members who were temporarily reassigned during the District’s investigation of the employees’ alleged misconduct without first providing each employee with an opportunity to opt out of disclosure to union. The privacy interest of employees who are reassigned pending investigation into alleged misconduct case involves not their work location, but the fact of their reassignment, which carries with it the cloud of suspicion. When faced with an assertion of employee privacy in response to a legitimate information request by an exclusive representative, PERB uses a balancing test and places the burden on the employer to demonstrate that the privacy interest outweighs the union’s need for the information. The names and work locations of unit members who were temporarily reassigned during the District’s investigation of the employees’ alleged misconduct was necessary and relevant to the discharge of the union’s duties as the exclusive representative to represent their members “in their employment relations with public school employers.” Even when a union does not explicitly assert an interest in informing reassigned employees of representational services it might offer in defending the employees in investigatory or disciplinary proceedings, exclusive representatives have an obvious interest in making their services known to unit members. They can only efficiently accomplish this if they know where to contact the reassigned employees. EERA secures the right of employees to be represented by employee organizations of their choice “in their professional and employment relationships.” (EERA, § 3540.) Employees also have the right to participate in the activities of employee organizations “for the purpose of representation on all matters of employer-employee relations.” (EERA, § 3543(a).) These rights are compromised if the employee organization cannot contact employees when they may be in most need of the organization’s expertise and assistance. The employees’ privacy interest in the fact they have been accused by their employer of wrongdoing is far outweighed by the Union’s exceptionally strong interests in being able to contact these members at their newly-assigned workplaces. An employer’s assurance to reassigned employees that their reassignment or the fact that they were being investigated for alleged misconduct would remain confidential would not necessarily defeat the Union’s entitlement to the names and work locations of the employees. The District’s alleged practice of keeping confidential the identities of reassigned employees is undermined by its having informed a media requestor of the date and location to which a teacher had been reassigned, making no effort to assert any exceptions to disclosure contained in the Public Records Act. The fact that an employee does not consent to information being provided to the exclusive representative does not constitute grounds for the employer to refuse to provide it. A union’s pledge of confidentiality with respect to the list of reassigned employees further mitigates its request being a “serious” invasion of privacy either as to nature or scope.