EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION – Form of Information Provided; Costs

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While it is tautological that an employer need not provide information that does not exist, “when the requested information does exist in some form, the fact that the employer may have to compile it from various sources does not excuse the employer from producing it unless the employer can prove doing so would be unduly burdensome.” (State of California (Department of State Hospitals) (2018) PERB Decision No. 2568-S, p. 15.) Moreover, an employer must raise any such burden contemporaneously with the requesting union “so the parties can negotiate over eliminating or reducing the employer’s burden.” (Id. at p. 16.) Otherwise, the employer forfeits the defense and PERB will order the employer to supply the information despite any burden it may impose. (Ibid.) When requested information exists in some form, the fact that the employer cannot retrieve it from a centralized database—and instead may have to compile it from various sources (including employees’ memories)—does not excuse the employer from producing it, unless the employer can prove doing so would be unduly burdensome and has offered to bargain to alleviate the burden. (pp. 17-18.)