Decision 2568S – State of California (Department of State Hospitals) (California Association of Psychiatric Technicians)

An exclusive representative is entitled to all information that is “necessary and relevant” to the discharge of its duty to represent bargaining unit employees. An employer’s failure or refusal to provide such information violates the duty to bargain in good faith unless the employer proves the information is “plainly irrelevant” or raises a valid defense to production of the information. (p. 12)

An employer may be excused from compliance with an information request if the requested information does not exist. But where the requested information exists 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 compliance would be unduly burdensome. The burden of proving this defense is on the employer. (p. 15) An assertion that compliance with an information request would be unduly burdensome must be timely raised so the parties can negotiate over how to best eliminate or reduce the employer’s burden. (p. 16) PERB refused to consider the employer’s evidence that compiling the requested information would be unduly burdensome because the employer did not assert the potential burden of creating the requested list until the underlying administrative hearing. The employer’s failure to timely assert this response deprived the union of an opportunity to negotiate a path by which the information might be provided in a less burdensome manner. (p. 16)

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.

The bargaining contract allowed Union representatives to review employee personnel and supervisory files only if properly authorized by the employee. (pp. 3-4) Accordingly, DSH argued that the Union waived its right to receive the requested information absent authorization. However, a “waiver by contract” defense is an affirmative defense that must be pled in the respondent’s answer to the complaint or it is waived. (pp. 13-14)

An employer waives its affirmative defense of contractual waiver by not raising the defense in its answer or moving to amend the answer before the hearing. (pp. 13-14)