Decision 2698M – City and County of San Francisco

Under the MMBA and other statutes that PERB administers, an exclusive representative is entitled to all information that is necessary and relevant to its right to represent bargaining unit employees regarding mandatory subjects of bargaining. The terms “necessary” and “relevant” are interchangeable; thus, a charging party can meet its burden by showing its request meets one prerequisite or the other. Information pertaining to mandatory subjects of bargaining is presumed relevant, and the employer must provide such information unless it can show that the information is plainly irrelevant or provide adequate reasons why it cannot supply the information. PERB uses a liberal, discovery-type standard to determine relevance. (pp. 6-7.)

An employer’s duty to provide information abides even where third party privacy rights are concerned, because “a union’s unique representational functions gives it a right to arguably private information.” [Citation.] When a union seeks information that implicates “significant privacy rights of third parties,” the employer may not simply refuse to provide the information but must instead “meet and negotiate in good faith to accommodate all legitimate competing interests.” [Citation.] (p. 7.)

When a union requests information relevant to a potential disciplinary grievance, the employer must raise any privacy concerns in a timely fashion so the parties can negotiate over accommodating those concerns before the union’s time to file a grievance has expired. (pp. 7-8.)

While the MMBA does not expressly provide for an exclusive representative’s right to information, the Board has repeatedly recognized that an exclusive representative’s statutory right to represent employees carries with it ancillary rights, including the right to obtain necessary and relevant information and to bargain with the employer over any alleged privacy concerns. Conversely, the MMBA prohibits employers from interfering with bargaining unit employees’ right to be represented by their exclusive representative, which by extension precludes interference with an exclusive representative’s right to necessary and relevant information. (p. 9.)

Although neither MMBA section 3503 nor section 3506 explicitly contains a meet and confer obligation, the duty to meet and confer under MMBA section 3505 extends to requests for information during the contractual grievance process. (p. 9.)

The Board rejected the employer’s argument that it was absolved of any duty to meet and confer with the union over redactions in an investigation report concerning a bargaining unit employee
because the union never made such a request. Following the union’s original request for information and receipt of a heavily-redacted investigation report, the union next attempted to obtain clarification regarding the redactions. After the employer responded in a conclusory manner, the union made two subsequent requests for a full, unredacted copy of the report. Almost three months later, the employer provided a report with fewer redactions. In all instances the employer solely determined what information to redact, thereby “converting the applicable procedure from a two-way negotiation to a unilateral decision.” [Citation.] Although these follow-up efforts clarified the dispute, they were not a necessary element to proving the employer’s violation; a union has no duty to request to meet and confer if an employer has unilaterally determined what information to redact and presented its decision as a fait accompli rather than as a proposal. (pp. 11-12.)

Unless the Board limits the posting requirement, PERB’s traditional remedy for an employer’s unfair practice includes a notice posting requirement on a unit-wide basis. “The purpose of posting a notice incorporating the terms of the order is educational for the represented employees. It is to notify employees of the conduct that was found to be unlawful, assure all employees affected by the decision of their rights and PERB’s conclusions, and inform employees that the controversy is now resolved and the employer is ready to comply with the remedy ordered.” [Citation.] The posting requirement also serves the purpose of “prevent[ing] the recurrence of the prohibited conduct on a unit-wide basis.” [Citation.] (pp. 12-13.)