Decision 2652E – Contra Costa Community College District

SF-CE-3208-E & SF-CE-3212-E

Decision Date: June 26, 2019

Decision Type: PERB Decision

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Decision Headnotes

408.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS
408.01000 – In General

A union has a right to sufficient information regarding alleged wrongdoing to enable a union representative to represent an employee in a meaningful manner during an investigatory interview, but the union does not obtain the right to an underlying written complaint until after the initial investigatory interview.

408.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS
408.03000 – Investigatory Interviews

A union has a right to sufficient information regarding alleged wrongdoing to enable a union representative to represent an employee in a meaningful manner during an investigatory interview, but the union does not obtain the right to an underlying written complaint until after the initial investigatory interview.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.01000 – In General

A union has a right to sufficient information regarding alleged wrongdoing to enable a union representative to represent an employee in a meaningful manner during an investigatory interview, but the union does not obtain the right to an underlying written complaint until after the initial investigatory interview.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.01000 – In General

A union is not required to show that it was harmed by an employer’s failure to use adequate care, diligence, or thoroughness in responding to an information request. Where union requested written student complaints of discrimination against two faculty members in advance of investigatory interviews, it was of no moment that employees were able to guess some aspects of the complaints against them, including the complainants’ identities.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.01000 – In General

There is no categorical rule denying a union access to information pertaining to a mandatory subject, even when the parties are not in bargaining and the union intends to use the information to advise or represent an employee in relation to an extra-contractual issue or forum. Because discipline is within the scope of representation, information pertaining to actual or potential discipline is presumptively relevant, even if the only contemplated disciplinary forum is extra-contractual. Information pertaining to actual or potential discipline is presumptively relevant, no matter in what forum the disciplinary matter might be resolved, as union has right to information necessary or relevant to its right to represent bargaining unit employees.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.01000 – In General

When a union is considering whether to exercise its right to represent employees in a meeting or proceeding that may adversely affect employment status, or the union does exercise that right, an employer may not deny the union’s related information request on the basis that the meeting or proceeding is extra-contractual or that the union has no duty of fair representation, as union has right to information necessary or relevant to its right to represent bargaining unit employees. Partially overrules San Bernardino City Unified School District (1998) PERB Decision No. 1270 and Carmichael Recreation & Park District (2008) PERB Decision No. 1953-M, to the extent they suggested a categorical rule denying unions access to information for extra-contractual fora.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.04000 – 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.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.04000 – 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.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.04000 – 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

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.05000 – Subjects of Information

A union has a right to sufficient information regarding alleged wrongdoing to enable a union representative to represent an employee in a meaningful manner during an investigatory interview, but the union does not obtain the right to an underlying written complaint until after the initial investigatory interview.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.06000 – Extra-Contractual Forum; Extra-Contractual Disciplinary Meetings or Proceedings

There is no categorical rule denying a union access to information pertaining to a mandatory subject, even when the parties are not in bargaining and the union intends to use the information to advise or represent an employee in relation to an extra-contractual issue or forum. Because discipline is within the scope of representation, information pertaining to actual or potential discipline is presumptively relevant, even if the only contemplated disciplinary forum is extra-contractual. Information pertaining to actual or potential discipline is presumptively relevant, no matter in what forum the disciplinary matter might be resolved, as union has right to information necessary or relevant to its right to represent bargaining unit employees.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.06000 – Extra-Contractual Forum; Extra-Contractual Disciplinary Meetings or Proceedings

When a union is considering whether to exercise its right to represent employees in a meeting or proceeding that may adversely affect employment status, or the union does exercise that right, an employer may not deny the union’s related information request on the basis that the meeting or proceeding is extra-contractual or that the union has no duty of fair representation, as union has right to information necessary or relevant to its right to represent bargaining unit employees. Partially overrules San Bernardino City Unified School District (1998) PERB Decision No. 1270 and Carmichael Recreation & Park District (2008) PERB Decision No. 1953-M, to the extent they suggested a categorical rule denying unions access to information for extra-contractual fora.