Decision 2597E – Sacramento City Unified School District

Under PERB-administered statutes, an exclusive representative is entitled to all information that is necessary and relevant to discharge its representational duties. (Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, p. 17.) The terms “necessary” and “relevant” are interchangeable, and a charging party union meets its burden by showing that it has requested relevant information, without also having to show, separately, that the information is “necessary” to fulfilling the union’s representative function. (Id. at p. 21.) PERB uses a liberal, discovery-type standard, similar to that used by the courts, to determine relevance. (Id. at p. 16.)

An employer violates its duty to bargain in good faith if its delay in providing information is unreasonable under the circumstances, even if the delay causes no prejudice. (p. 9.)

Information pertaining to non-bargaining unit employees is not presumed relevant, and the exclusive representative thus bears the burden of demonstrating that such information is relevant and necessary to its representational duties. A union demonstrates relevance where it has requested information that may help it compare the disciplinary circumstances relevant to a bargaining unit employee, including the allegations and any resulting discipline, with prior circumstances involving non-bargaining unit employees. (p. 9, fn. 6.) Union had right to obtain, evaluate, and introduce evidence that arguably may have supported a disparate treatment argument, even where information pertained to a non-bargaining unit employee (p. 9.)

PERB-administered statutes provide unions with more expansive access to information and records beyond that available under the CPRA. A union’s RFI may cover both public records and information that may not be found in any existing record. Thus, an employer responding to an RFI may be required to compile information from multiple records, management agents, and other sources, unless it can prove that doing so would be unduly burdensome.

An employer, as part of its duty to fully answer a union’s request or else timely and adequately explain a valid defense to disclosure, may not rely upon a CPRA exemption in place of a defense recognized under PERB precedent. (p. 10.) A party responding to an RFI has additional duties under a collective bargaining statute that go beyond its CPRA duties. For example, if a union’s request as written (or as made orally) would lead to unduly burdensome costs, infringe on legitimate privacy interests, or otherwise pose a need for clarification or discussion, an employer must bargain in good faith with the union and seek to negotiate an appropriate accommodation. (p. 12.)

Even though the CPRA and PERB-administered collective bargaining statutes in certain respects protect overlapping rights and interests, and many unions make dual requests under both statutes, an employer must separately analyze its CPRA obligations and its obligations under the collective bargaining statutes. (p. 13.)

When a union requests relevant information, the employer must either fully supply the information or timely and adequately explain its reasons for not doing so, and the employer bears the burden of proof as to any defense, limitation, or condition that it asserts. (pp. 8-9) A party answering a RFI must exercise the same diligence and thoroughness as it would “in other business affairs of importance,” and a charging party need not show that it suffered harm or prejudice as a result of a responding party’s lack of care. (Petaluma, supra, PERB Decision No. 2485 at pp. 19, 24.)

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.)

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.)

Information pertaining to non-bargaining unit employees is not presumed relevant, and the exclusive representative thus bears the burden of demonstrating that such information is relevant and necessary to its representational duties. A union demonstrates relevance where it has requested information that may help it compare the disciplinary circumstances relevant to a bargaining unit employee, including the allegations and any resulting discipline, with prior circumstances involving non-bargaining unit employees. (p. 9, fn. 6.) Union had right to obtain, evaluate, and introduce evidence that arguably may have supported a disparate treatment argument, even where information pertained to a non-bargaining unit employee (p. 9.)

When a union requests relevant information, the employer must either fully supply the information or timely and adequately explain its reasons for not doing so, and the employer bears the burden of proof as to any defense, limitation, or condition that it asserts. (pp. 8-9) A party answering a RFI must exercise the same diligence and thoroughness as it would “in other business affairs of importance,” and a charging party need not show that it suffered harm or prejudice as a result of a responding party’s lack of care. (Petaluma, supra, PERB Decision No. 2485 at pp. 19, 24.)

Information pertaining to non-bargaining unit employees is not presumed relevant, and the exclusive representative thus bears the burden of demonstrating that such information is relevant and necessary to its representational duties. A union may demonstrate relevance where it has requested information that may help it compare the disciplinary circumstances relevant to a bargaining unit employee, including the allegations and any resulting discipline, with prior circumstances involving non-bargaining unit employees. (p. 9, fn. 6.)

Although the Board reviews exceptions to a proposed decision de novo, the Board need not address alleged errors that have no bearing on the outcome. (Los Angeles Unified School District (2015) PERB Decision No. 2432, p. 2; Regents of the University of California (1991) PERB Decision No. 891-H, p. 4.)