Decision 2438E – Los Angeles Unified School District

A union is not obliged to repeat a request for information when it was sufficiently clear to the District that the partial compliance would not satisfy the request, and when it would be futile to repeat its request. A union’s entitlement to all of the requested information is not diminished by the employer’s production of only a portion of the information, even when that portion covered the majority of the requested information. An unreasonable delay in providing requested information is tantamount to a failure to produce the information at all. The burden on the union of attempting to interview every reassigned teacher in person, or of having to send blanket communications to all bargaining unit members requesting that reassigned teachers contact them, compared with the District’s ease of providing the names and locations of reassigned teachers to the union, indicates that union does not have “equal access to the same information from the same source.”

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.

A union is not obliged to repeat a request for information when it was sufficiently clear to the District that the partial compliance would not satisfy the request, and when it would be futile to repeat its request. A union’s entitlement to all of the requested information is not diminished by the employer’s production of only a portion of the information, even when that portion covered the majority of the requested information. An unreasonable delay in providing requested information is tantamount to a failure to produce the information at all. The burden on the union of attempting to interview every reassigned teacher in person, or of having to send blanket communications to all bargaining unit members requesting that reassigned teachers contact them, compared with the District’s ease of providing the names and locations of reassigned teachers to the union, indicates that union does not have “equal access to the same information from the same source.”

When a union has offered to enter into a confidentiality agreement wherein the union will agree to limit the use and dissemination of requested information for representation and bargaining purposes only,” and the District rejects such offer, the offer is sufficient to address the District’s concerns that the information will be disseminated, and it is appropriate for the Board to include in the order a requirement of a confidentiality agreement in accordance with the terms proposed by the union applicable to the union and its agents and employees.

When a union has offered to enter into a confidentiality agreement wherein the union will agree to limit the use and dissemination of requested information for representation and bargaining purposes only,” and the District rejects such offer, the offer is sufficient to address the District’s concerns that the information will be disseminated, and it is appropriate for the Board to include in the order a requirement of a confidentiality agreement in accordance with the terms proposed by the union applicable to the union and its agents and employees.