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

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604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.04000 – Confidentiality; Privacy

Under the labor relations statutes PERB administers, a union’s unique representational functions may allow it a right to sensitive or confidential information. (City and County of San Francisco (2020) PERB Decision No. 2698-M, p. 7; 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 potential accommodations, and established substantive standards govern what must occur if the parties cannot work out an accommodation. 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. (City and County of San Francisco, supra, PERB Decision No. 2698-M, pp. 7 & 10-12; County of Tulare (2020) PERB Decision No. 2697-M, pp. 13-14; Contra Costa, supra, PERB Decision No. 2652, pp. 18-20; Sacramento, supra, PERB Decision No. 2597, pp. 12-14.) Bargaining parties may negotiate an accommodation that recognizes “that unions [can] be trusted to be discreet.” (Sacramento, supra, p. 13, citation omitted.) Thus, among other possibilities, 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. (Contra Costa, supra, p. 19; Sacramento, supra, pp. 12-13; Los Angeles Unified School District (2015) PERB Decision No. 2438, p. 20.) (pp. 8-9.)