Decision 2834E – Butte-Glenn Community College District

An employer must normally provide an exclusive representative with all information that is necessary and relevant to its right to represent bargaining unit employees regarding mandatory subjects of bargaining. (State of California (State Water Resources Control Board) (2022) PERB Decision No. 2830-S, pp. 9-10; City and County of San Francisco (2020) PERB Decision No. 2698-M, p. 6.) This is a liberal, discovery-type standard akin to the standard California courts use to determine relevance, and, notably, “necessary” and “relevant” are interchangeable terms that do not have separate meanings. (Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 8.) (p. 9)

Once a party receives a request for relevant information, it must either promptly and fully supply the information or timely and adequately explain its reasons for not doing so. (Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 8 (Sacramento).) The responding party bears the burden of proof as to any defense, limitation, or condition that it asserts. (Ibid.) If the responding party believes that a request is unduly burdensome, seeks confidential information, or is otherwise overbroad, the responding party must affirmatively assert its concerns and offer to bargain over those concerns with the requesting party. (Id. at pp. 12-13; State of California (Department of State Hospitals) (2018) PERB Decision No. 2568-S, pp. 15-16 [assertion that an information request is unduly burdensome must be timely raised so the parties can negotiate over eliminating or reducing the responding party’s burden]; Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, p. 19 (Petaluma) [“Even where a request is arguably ambiguous or overly broad, the employer . . . must seek clarification [or] comply to the extent the request seeks relevant information”].) A responding party must exercise the same diligence and thoroughness as it would in other business affairs of importance, and a charging party need not show that a responding party’s lack of care caused harm. (Sacramento, supra, PERB Decision No. 2597, pp. 8-9; Petaluma, supra, PERB Decision No. 2485, p. 19.) Thus, a responding party violates its bargaining duty if it unreasonably delays its response, even if the delay did not prejudice the requesting party. (Sacramento, supra, PERB Decision No. 2597, p. 9; Petaluma, supra, PERB Decision No. 2485, p. 20.) (pp. 9-10.)

The union did not have to reassert or clarify its RFI after receiving the District’s response, because a union need not do so if it is sufficiently clear that the response did not fully satisfy the request, as it was in this case. Here, the District assessed and answered the union’s RFI as if it arose under the California Public Records Act (CPRA) and consequently failed to explore means of obtaining requested information that was not in its central course database. It was sufficiently clear that the District failed to seek information beyond preexisting records and the District unequivocally stated that no more information would be forthcoming. (p. 14.) The Board partially overruled Trustees of the California State University (2004) PERB Decision No. 1732-H, to extent it suggests that an exclusive representative’s failure to reassert or clarify its information request upon receiving a partial response from the employer always bars finding a violation of the duty to bargain in good faith, regardless of whether it was sufficiently clear that the response was incomplete. (p. 14.)

A responding party cannot rely on CPRA exemptions when responding to an information request arising under a labor relations statute. (Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 10 (Sacramento); see also County of Tulare (2019) PERB Decision No. 2697-M, pp. 14-15, fn. 9 [party responding to information request under labor relations statute may interpose defense to protect internal collective bargaining strategy but may not assert the broader deliberative process privilege applicable under the CPRA].) While the CPRA provides unions with the same right to public records as any person or organization, the statutes PERB administers confer upon an exclusive representative, as part of its representational rights and duties, a separate, broader right to information. The CPRA may not require an employer to “create a new set of public records,” but a union’s information request “may cover both public records and information that may not be found in any existing record,” meaning that “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.” (Sacramento, supra, PERB Decision No. 2597, p. 11.) (p. 15.)

It is not a charging party’s burden to prove exactly what further information a respondent would have found by conducting a proper, diligent search. (p. 18, fn. 11.)

A responding party cannot rely on CPRA exemptions when responding to an information request arising under a labor relations statute. (Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 10 (Sacramento); see also County of Tulare (2019) PERB Decision No. 2697-M, pp. 14-15, fn. 9 [party responding to information request under labor relations statute may interpose defense to protect internal collective bargaining strategy but may not assert the broader deliberative process privilege applicable under the CPRA].) While the CPRA provides unions with the same right to public records as any person or organization, the statutes PERB administers confer upon an exclusive representative, as part of its representational rights and duties, a separate, broader right to information. The CPRA may not require an employer to “create a new set of public records,” but a union’s information request “may cover both public records and information that may not be found in any existing record,” meaning that “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.” (Sacramento, supra, PERB Decision No. 2597, p. 11.) (p. 15.)

While it is tautological that an employer need not provide information that does not exist, “when the requested information does exist 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 the employer can prove doing so would be unduly burdensome.” (State of California (Department of State Hospitals) (2018) PERB Decision No. 2568-S, p. 15.) Moreover, an employer must raise any such burden contemporaneously with the requesting union “so the parties can negotiate over eliminating or reducing the employer’s burden.” (Id. at p. 16.) Otherwise, the employer forfeits the defense and PERB will order the employer to supply the information despite any burden it may impose. (Ibid.) When requested information exists in some form, the fact that the employer cannot retrieve it from a centralized database—and instead may have to compile it from various sources (including employees’ memories)—does not excuse the employer from producing it, unless the employer can prove doing so would be unduly burdensome and has offered to bargain to alleviate the burden. (pp. 17-18.)

The Board generally “decline[s] to review an exception raising an issue that was not presented to the ALJ.” (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 12; Colusa Unified School District (1983) PERB Decision No. 296, p. 4.) The Board exercised its discretion to consider the District’s exception where it raised an important issue concerning when an exclusive representative must reassert its information request upon receiving a less-than-complete response from the employer. We accordingly exercise our discretion to consider the District’s exception. (Los Angeles County Superior Court, supra, PERB Decision No. 2566-C, p. 13.) (p. 11.)

The appropriate remedy in cases involving a failure to provide information typically includes a cease-and-desist order and an order to provide the requested information upon the charging party’s request. (State of California (Department of State Hospitals) (2018) PERB Decision No. 2568-S, pp. 16-18; Regents of the University of California (Davis) (2010) PERB Decision No. 2101-H, p. 37; see also Children of Promise Preparatory Academy (2019) PERB Order No. Ad-473, pp. 4-5 [responding party must provide requested information based upon its duties when its obligation first arose, irrespective of whether intervening events may have created new potential defenses to providing the requested information].) (p. 19.)

The appropriate remedy in cases involving a failure to provide information typically includes a cease-and-desist order and an order to provide the requested information upon the charging party’s request. (State of California (Department of State Hospitals) (2018) PERB Decision No. 2568-S, pp. 16-18; Regents of the University of California (Davis) (2010) PERB Decision No. 2101-H, p. 37; see also Children of Promise Preparatory Academy (2019) PERB Order No. Ad-473, pp. 4-5 [responding party must provide requested information based upon its duties when its obligation first arose, irrespective of whether intervening events may have created new potential defenses to providing the requested information].) (p. 19.)

Employer waived request that PERB order the parties to negotiate over the cost of compiling requested information when it neither raised the alleged undue burden contemporaneously nor offered to bargain with union about it. (State of California (Department of State Hospitals) (2018) PERB Decision No. 2568-S, pp. 15-16 [assertion that an information request is unduly burdensome must be timely raised so the parties can negotiate over eliminating or reducing the responding party’s burden].) (pp. 17, 19.)