All notes for Subtopic 604.04000 – Confidentiality; Privacy

DecisionDescriptionPERC Vol.PERC IndexDate
2697M County of Tulare (Service Employees International Union Local 521)
604.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Confidentiality; Privacy
Where an employer has waived its right to negotiate an accommodation of third-party privacy rights with the union, PERB must determine the extent of any appropriate redactions. In most such cases, the best practice is for the ALJ hearing the unfair practice matter to conduct an in camera review and then order production of the full, unredacted document unless there is clear evidence that doing so would lead to a serious invasion of a significant privacy right, in which case the ALJ’s proposed decision should provide clear direction regarding the narrowly tailored redactions that are allowable. Such redactions typically involve replacing names with descriptive but de-identified placeholders, thereby permitting parties to track the important figures within a given record or across multiple records. (Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 13, fn. 7.) more or view all topics or full text.
02/20/20
2697M County of Tulare (Service Employees International Union Local 521)
604.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Confidentiality; Privacy
An employer may not unilaterally reject an information request based on alleged privacy concerns, as that frustrates the purposes of state labor law “by converting the applicable procedure from a two-way negotiation to a unilateral decision.” (Contra Costa Community College District (2019) PERB Decision No. 2652, p. 19; Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 13.) Where the County flatly denied Union’s request, parties were deprived of the opportunity to work out redactions or a different accommodation. The County waived its privacy concerns by categorically refusing Union’s request instead of offering to meet to seek an accommodation. (Sacramento, supra, PERB Decision No. 2597, p. 12 [employer must raise its confidentiality concerns in a timely manner and then meet with the union to seek an accommodation]. more or view all topics or full text.
02/20/20
2697M County of Tulare (Service Employees International Union Local 521)
604.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Confidentiality; Privacy
PERB has established the following legal framework covering situations where requested, presumptively relevant documents may contain confidential information that implicates “constitutionally significant privacy rights of third parties”: if a third party possesses a legally protected privacy interest that is based upon an objectively reasonable expectation of privacy, yet the union seeks to invade that privacy in a manner that is serious in both its nature and its scope, then PERB engages in a balancing test; if the serious invasion of privacy outweighs the union’s need for the information, then the union’s presumptive right to relevant information is overcome and narrowly tailored redactions or other accommodations become appropriate. (Contra Costa Community College District (2019) PERB Decision No. 2652, p. 18 (Contra Costa); Los Angeles Unified School District (2015) PERB Decision No. 2438, pp. 13-15, citing County of Los Angeles v. Los Angeles County Employee Relations Commission, et al. (2013) 56 Cal.4th 905, 926, and noting that balancing test applies only if all three elements of a privacy claim exist.) If the circumstances surrounding a union’s request show that third party privacy rights outweigh the union’s presumptive right to information, the employer still may not unilaterally determine how to proceed but must instead negotiate in good faith with the requesting union. (Contra Costa, supra, PERB Decision No. 2652, pp. 18-19; Sacramento City Unified School District (2018) PERB Decision No. 2597, pp. 12-14.) PERB described several common redaction conventions and other possible accommodations. more or view all topics or full text.
02/20/20
2652E Contra Costa Community College District
604.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Confidentiality; Privacy
In assessing potential privacy rights of third party students in response to information request seeking student complaints of discrimination against faculty, Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g (FERPA), and its California equivalent, do not cover complaints requested by union. (BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 754-755.) In any event, proving FERPA coverage provides neither a necessary nor a sufficient basis for community college district to withhold the complaints. FERPA allows disclosure by consent of a student, and student consent is typically necessary to allow a school to investigate fully the student’s complaint. Most employers properly inform complainants that if they do not consent to disclosure as needed to investigate, it may be impossible to investigate their complaints. On the other hand, even in the absence of FERPA coverage, Board must weigh complainants’ interests in having their complaints treated as confidential to the extent possible while still affording all applicable rights to accused employees and their exclusive representatives. However, a blanket policy of nondisclosure is inconsistent with an employer’s duty to provide information. more or view all topics or full text.
06/26/19
2652E Contra Costa Community College District
604.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Confidentiality; Privacy
Where a student complaint of discrimination against a faculty member employee is relevant to a union in representing the employee, it does not follow automatically that the employer must always fully disclose the entire student complaint to the union. Rather, there are two main categories of exceptions. First, a complaining student may insist on confidentiality, even knowing this may limit the school’s ability to respond. Secondly, where the student is willing to allow disclosure to permit a fair investigation, a school may still propose to the union limits on disclosure that keep complaints confidential to the extent possible while maintaining the union’s ability to represent the employee. At times, a complainant’s name may already be known, or may become quickly identifiable given the nature of the complaint. Other times, as where an instructor is accused of making explicit remarks about his or her personal life in front of an entire class, due process rights do not necessarily entitle the accused em more or view all topics or full text.
06/26/19
2652E Contra Costa Community College District
604.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; 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. more or view all topics or full text.
06/26/19
2597E Sacramento City Unified School District
604.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Confidentiality; Privacy
When a union’s RFI seeks disclosure of information that would infringe on legally cognizable privacy rights, the employer must meet and negotiate in good faith to accommodate all legitimate competing interests. (p. 12.) When an employer and union meet and negotiate over privacy concerns, they can address all aspects of the problem, including the extent to which various levels of redaction might lessen such concerns, as well as the extent to which such redaction methods might frustrate the union in carrying out its representational function. Bargaining parties may reach a different result in each case based on the unique circumstances at issue. (pp. 12-13.) more or view all topics or full text.
437711/19/18
2597E Sacramento City Unified School District
604.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Confidentiality; Privacy
Balancing test which governs those cases in which an employer and union have met and negotiated over legitimate privacy issues but were unable to reach an accommodation. (Redding, supra, PERB Decision No. 2190-M, p. 2 and adopting proposed decision, pp. 13-14 [if employer satisfies its burden of demonstrating that disclosure would compromise privacy rights, PERB engages in balancing test set forth in Detroit Edison Co. v. NLRB (1979) 440 U.S. 301, 314].) Courts interpreting the CPRA also balance privacy rights against the right to information. (See, e.g., Marken, supra, 202 Cal.App.4th at 1274-1276 [finding that the public’s interest in an investigatory report and disciplinary record outweighed a teacher’s privacy interest, but upholding the redactions directed by the superior court].) In any given instance, the balancing test applicable in CPRA cases may or may not lead to the same outcome as that applicable in PERB cases, given the extra rights and obligations that distinguish bargaining parties from members of the public. (p. 14, fn. 8.) more or view all topics or full text.
437711/19/18
2568S State of California (Department of State Hospitals) (California Association of Psychiatric Technicians)
604.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Confidentiality; Privacy
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. more or view all topics or full text.
43306/12/18
A428E Children of Promise Preparatory Academy
604.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Confidentiality; Privacy
Failure to provide contact information is a per se violation of the duty to bargain in good faith because it is fundamental to the expanse of a union’s relationship with the employees. The exclusive representative is entitled to the phone numbers and addresses of all unit employees, and, under the balancing test, this may include employees who request confidentiality. The Academy’s refusal to provide contact information had the real effect of causing the Association to embark on personal contact with teachers which, according to the Academy, was viewed by several teachers as harassment and caused nine teachers to opt-out of providing contact information. more or view all topics or full text.
402306/29/15
2438E Los Angeles Unified School District
604.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; 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. more or view all topics or full text.
402606/25/15
1891M City of Los Altos
604.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Confidentiality; Privacy
Even if there were a proper request by the union for disciplinary information related to employees in the unit, that request would still have to be considered in light of the privacy considerations of the employees subject to discipline. more or view all topics or full text.
317403/14/07
1704M Golden Empire Transit District
604.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Confidentiality; Privacy
The District violated the MMBA by refusing to provide unit employees’ addresses and phone numbers. Local 517 is entitled to all information which is “necessary and relevant” to the discharge of its duty of fair representation. Failure to provide this information is a “per se” violation of the duty to bargain in good faith because it is “fundamental to the expanse of a union’s relationship with the employees.” Local 517 is entitled to the phone numbers and addresses of all unit employees, including the four (of 200) who requested confidentiality. When constitutional privacy rights are implicated, the Board must balance the privacy interests of employees against the union’s need for information. Local 517 needs this information for access to unit members while there is no statutory requirement that prohibits disclosure of the requested information to Local 517. Employer has burden of proof to demonstrate disclosure would compromise confidentiality. more or view all topics or full text.
29711/08/04
1711S State of California, (Department of Consumer Affairs)
604.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Confidentiality; Privacy
Constitutional rights of personal privacy may limit requests for confidential information. Where production of information may infringe on a right of privacy, the NLRB has balanced the union's need for the information with the individual's privacy interests. PERB has adopted this approach in situations where these competing interests conflict; p. 26. Evidence of security procedures in evaluating threat assessments for elected officials could be compromised by release of investigative information and such information may impair future investigations; p. 27. more or view all topics or full text.
291511/23/04
1686S State of California (Department of Veterans Affairs)
604.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Confidentiality; Privacy
Where there is no attorney advice the attorney-client privilege may apply. more or view all topics or full text.
2825009/09/04
1314H Regents of the University of California (Coalition of University Employees)
604.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Confidentiality; Privacy
University did not fail or refuse to provide relevant and necessary information when it required an employee to execute a release before providing employee medical information to the Union; p. 4, dismissal letter. more or view all topics or full text.
233005602/01/99
0834E Chula Vista City School District
604.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Confidentiality; Privacy
Leave requests were not type of confidential employee records that would be exempt from disclosure. District could have accommodated association's need by deleting identifying information from request forms before giving to association or supplying information in form that would have made it equally useful to association; p. 55. more or view all topics or full text.
142116208/16/90
0670E Los Rios Community College District
604.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Confidentiality; Privacy
District properly asserted confidentiality of nonunit employees' social security numbers. more or view all topics or full text.
121908306/02/88
0613H Trustees of the California State University (California Faculty Association)
604.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Confidentiality; Privacy
Once union has established relevance of information requested, burden on party holding the information to show disclosure would compromise privacy/confidentiality. Here, employer failed to carry burden; p. 19. more or view all topics or full text.
111805102/09/87
0374E Azusa Unified School District
604.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Confidentiality; Privacy
Refusal to provide seniority list is bad faith bargaining unless employer can give adequate reasons why cannot supply information; p. 8. more or view all topics or full text.
81501812/30/83