EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION – Confidentiality; Privacy
Single Topic for Decision 2652E
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604.04000 – Confidentiality; Privacy
PERB applies traditional balancing test in all information request cases in which an employer raises a privacy or confidentiality defense. When faced with an employer’s privacy assertion in response to a union’s request for relevant information, PERB, like the National Labor Relations Board (NLRB), 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. (Los Angeles Unified School District (2015) PERB Decision No. 2438, pp. 7-8; Detroit Edison Co. v. NLRB (1979) 440 U.S. 301, 318-320 (Detroit Edison).) Even if the employer meets this burden, the employer may not simply refuse to provide the information, but rather must meet and negotiate in good faith to seek an accommodation of all legitimate competing interests. Where an employer flatly refuses a union’s request, without meeting and conferring to seek an accommodation, normally that alone is a sufficient basis to find a violation, without engaging in the Detroit Edison balancing test.