Decision 1988M – City of Burbank
LA-CE-326-M
Decision Date: November 25, 2008
Decision Type: PERB Decision
Description: The Association alleged that the City violated its duty to bargain in good faith by failing to timely provide the Association with requested information relevant to an employee’s pending disciplinary arbitration.
Disposition: The Board affirmed the ALJ’s conclusion that the City’s failure to provide the requested information in a timely manner violated MMBA section 3505. Section 3505 requires an employer to provide an exclusive representative with requested information necessary and relevant to its representation of a bargaining unit member in a contractual disciplinary arbitration. The California Arbitration Act does not eliminate or limit a party’s right to information under MMBA and the absence of an arbitration discovery provision in the parties’ MOU does not waive the Association’s right to information relevant to contractual arbitration proceedings. The Board found the requested information presumptively relevant to the pending arbitration and that the City failed to establish an affirmative defense to production of the information. The Board also found that the City failed to provide the information in a timely manner because it produced some of the information three months after the request and the rest on the day of the arbitration hearing.
Perc Vol: 33
Perc Index: 11
Decision Headnotes
101.02000 – Conflicts Between PERB-Administered Laws and Other California Statutes; Education Code/Supersession; MMBA Supersession
The discovery provisions of the California Arbitration Act (Code of Civil Procedure section 1280 et seq.) do not eliminate or limit a party’s entitlement to relevant information under MMBA section 3505.
604.01000 – In General
An exclusive representative is entitled to all information that is necessary and relevant to the discharge of its duty to represent a bargaining unit member in a contractual disciplinary arbitration proceeding. Employer violated MMBA section 3505 by failing to promptly provide information requested by the employee organization that was relevant to an employee’s pending arbitration challenging his discipline for violation of the employer’s attendance policy. All of the requested information was presumptively relevant because it related to either the use of sick or FMLA leave by the employee or by other members of the bargaining unit. The employer failed to establish an affirmative defense to production of the information. The employer also failed to provide the information in a timely manner because it produced some of the information almost three months after the initial request and did not produce the rest until ordered to do so by the arbitrator during the hearing.
604.05000 – Subjects of Information
Information requested by exclusive representative regarding employee’s use of sick and FMLA leave and use of such leave by other bargaining unit members was presumptively relevant to employee’s pending arbitration challenging discipline for violation of the employer’s attendance policy.
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
MOU’s silence regarding arbitration discovery did not waive exclusive representative’s statutory right to information necessary and relevant to its representation of a bargaining unit member in contractual disciplinary arbitration proceedings.
1103.05000 – Answer or Other Defense/Waiver
Employer waived its affirmative defense of deferral to arbitration by not raising defense in its answer or moving to amend answer at hearing to include defense. Thus, ALJ could not address the defense in proposed decision nor could the Board address the defense on appeal.
1402.03000 – By Contract/Zipper Clauses/Management Rights Clauses
MOU’s silence regarding arbitration discovery did not waive exclusive representative’s statutory right to information necessary and relevant to its representation of a bargaining unit member in contractual disciplinary arbitration proceedings.
1402.07000 – Failure to Timely Raise Affirmative Defense
Employer waived its affirmative defense of deferral to arbitration by not raising defense in its answer or moving to amend answer at hearing to include defense. Thus, ALJ could not address the defense in proposed decision nor could the Board address the defense on appeal.