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

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Constitutional privacy interests may limit a union’s right to obtain confidential information. A claim that disclosure of requested information would implicate confidentiality interests must be made in a timely fashion so the parties can meet and confer over how to ameliorate the privacy concern. (p. 14) PERB rejected DSH’s assertion of confidentiality for two reasons. First, DSH first raised the concern 15 days after receipt of the Union’s request. Without opining whether 15 days constitutes a bright line rule, PERB found that DSH’s response was untimely in this case because it came after the 14-day period to initiate a complaint under the MOU had ended, depriving the Union an opportunity negotiate over how to accommodate any privacy interests so that it might review the requested information before the filing period closed. (pp. 14-15) Second, DSH only asserted confidentiality concerns over the list of bargaining unit members who had received similar formal corrective actions. It did not notify the Union of any confidentiality concerns over other subjects until the parties’ dispute was before PERB. (p. 15) Under these circumstances, PERB rejected the employer’s confidentiality defense as untimely.