Decision 2891M – City and County of San Francisco

California public sector labor relations precedent frequently protects employee and union rights to a greater degree than does federal precedent governing private sector labor relations, and PERB accordingly consider federal precedent only for its potential persuasive value. (The Accelerated Schools (2023) PERB Decision No. 2855, pp. 20-31; Operating Engineers Local Union No. 3 (Wagner et al.) (2021) PERB Decision No. 2782-M, p. 9, fn. 10; County of San Joaquin (2021) PERB Decision No. 2761-M, pp. 24, 33, 45-48 & fn. 19; City of Bellflower (2020) PERB Order No. Ad-480-M, p. 11; accord County of San Joaquin v. Public Employment Relations Bd. (2022) 82 Cal.App.5th 1053, 1073; Social Workers’ Union, Local 535 v. Alameda County Welfare Dept. (1974) 11 Cal.3d 382, 391.) (p. 12, fn. 7.)

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. (Butte-Glenn Community College District (2022) PERB Decision No. 2834, p. 9 (Butte-Glenn); City and County of San Francisco (2020) PERB Decision No. 2698-M, p. 6; Contra Costa Community College District (2019) PERB Decision No. 2652, pp. 5, 16-17 (Contra Costa); Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 8 (Sacramento).) 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. (Butte-Glenn, supra, p. 9; Contra Costa, supra, pp. 5-6; Sacramento, supra, p. 8.) (pp. 7-8.)

Union requested information relevant to its class action grievance asserting that the City violated the MOU’s antidiscrimination provision by disproportionately releasing from probation or extending the probation of African American bargaining unit members. In response, the City stated that it would provide the data only in aggregate form. When an employer unilaterally states such a position without offering to bargain in good faith over accommodating all relevant interests, the employer violates its duty to bargain in good faith and no further analysis is necessary to establish liability. (p. 13.)

Merely because an employer must provide information to a union in light of its role as an exclusive representative, the employer need not provide the same information to others. (Boardman v. Inslee (9th Cir. 2020) 978 F.3d 1092, 1110-1113 [law does not discriminate in providing union preferential access to information based on legal status as exclusive representative].) (p. 15, fn. 9.)

The labor relations statutes PERB administers confer upon an exclusive representative, as part of its representational rights and duties, separate informational rights that are broader than those that the public holds, and which include access to sensitive and confidential employee information. (Sacramento City Unified School District (2018) PERB Decision No. 2597, pp. 10-12.) California Public Records Act defenses accordingly do not apply to RFIs arising under a labor relations statute. (Id. at p. 10; accord Butte-Glenn Community College District (2022) PERB Decision No. 2834, p. 15, fn. 9; County of Tulare (2020) PERB Decision No. 2697-M, pp. 14-15, fn. 9.)

Under the labor relations statutes PERB administers, a union’s unique representational functions may allow it a right to sensitive or confidential information. (City and County of San Francisco (2020) PERB Decision No. 2698-M, p. 7; Contra Costa Community College District (2019) PERB Decision No. 2652, p. 18 (Contra Costa); Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 11 (Sacramento).) When an employer believes that a union has sought confidential information, settled procedural protocols govern how an employer must negotiate in good faith over potential accommodations, and established substantive standards govern what must occur if the parties cannot work out an accommodation. Procedurally, the employer must offer to bargain in good faith toward accommodating all legitimate competing interests, and if it instead unilaterally refuses to provide allegedly confidential information, it is liable for a violation without the need for further analysis. (City and County of San Francisco, supra, PERB Decision No. 2698-M, pp. 7 & 10-12; County of Tulare (2020) PERB Decision No. 2697-M, pp. 13-14; Contra Costa, supra, PERB Decision No. 2652, pp. 18-20; Sacramento, supra, PERB Decision No. 2597, pp. 12-14.) Bargaining parties may negotiate an accommodation that recognizes “that unions [can] be trusted to be discreet.” (Sacramento, supra, p. 13, citation omitted.) Thus, among other possibilities, the parties may enter into a confidentiality agreement or other arrangement in which the requesting union agrees to limit its use of the information to a particular purpose, and to disclose such information to union employees or attorneys only if necessary for that purpose. (Contra Costa, supra, p. 19; Sacramento, supra, pp. 12-13; Los Angeles Unified School District (2015) PERB Decision No. 2438, p. 20.) (pp. 8-9.)

If an information request implicates privacy issues, and the employer offered to bargain and it bargained in good faith to the extent requested, then the union may pursue an unfair practice charge. The focus of the charge becomes the substantive merits of the RFI and the privacy claim. Where the employer raised a significant privacy interest—meaning a legally protected interest that the RFI invades in a manner that is serious in both its nature and its scope—then a balancing test applies. (County of Tulare (2020) PERB Decision No. 2697-M, p. 13; Los Angeles Unified School District (2015) PERB Decision No. 2438, pp. 13-14, citing County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 926.) Under this test, an employer has the burden to demonstrate that the privacy interest outweighs the union’s informational need. (City and County of San Francisco (2020) PERB Decision No. 2698-M, p. 7; Contra Costa Community College District (2019) PERB Decision No. 2652, pp. 17-18; Sacramento City Unified School District (2018) PERB Decision No. 2597, pp. 11-12 & 14, fn. 8; Los Angeles Unified School District (2015) PERB Decision No. 2438, pp. 7-8.) (pp. 9-10.)

In determining whether to order employer to provide information, PERB considers union’s promise to keep the information confidential. The Board noted that unions are commonly entrusted with private employee information, as “[o]ne of the consequences of collective bargaining is that it subordinates the particular interests of individual employees to the collective interest of the unit.” (Los Angeles Unified School District (2015) PERB Decision No. 2438, p. 11, citation omitted.) (pp. 10-11.)

One appropriate accommodation of competing interests is to restrict a union’s use of information to limited, proper purposes. (Contra Costa Community College District (2019) PERB Decision No. 2652, p. 19; Sacramento City Unified School District (2018) PERB Decision No. 2597, pp. 12-13; Los Angeles Unified School District (2015) PERB Decision No. 2438, p. 20.) The Board added a protective order to its remedy, thereby adopting a common judicial approach to allowing full discovery while minimizing intrusions on privacy. The Board directed the union to refrain from releasing disaggregated race/ethnicity information and to use such information only as needed to investigate and/or seek to prevent, lessen, ameliorate, or remedy potential workplace discrimination or other potential legal or contractual violations. (pp. 20-21.)

It is of little import that an employer leads employees to believe they had a protected privacy interest, as such an employer promise or practice can only be dispositive if it derives from a significant privacy right established by law. (Los Angeles Unified School District (2015) PERB Decision No. 2438, pp. 12-13 & fn. 5 [citing other authority].) (pp. 11 & 20.)

The City did not meet its burden to prove that disclosing disaggregated race/ethnicity information to union invades privacy in a manner that is serious in both its nature and its scope, much less that there is a serious privacy invasion that outweighs union’s representational purpose in seeking the information. Employees’ privacy interest in their race/ethnicity is limited enough that it gives way to a union or plaintiff seeking to investigate, prevent, ameliorate, or remedy workplace discrimination. The City is not shielding race/ethnicity information from a third party that seeks to profit or benefit from the data, or that significantly risks taking actions harmful to the employees. Rather, the City raises the issue as an obstacle to disclosing data to the employees’ exclusive representative, data the union requested to assist in investigating potential discrimination. An employer interposing employees’ alleged privacy interests is a particularly weak argument when it hinders the same employees from receiving assistance, and such an argument does not normally outweigh a union’s antidiscrimination purpose. (pp. 14-16.)

Race/ethnicity information is relevant because of unions’ critical role in working to prevent and mitigate employment discrimination. (See, e.g., Contra Costa Community College District (2019) PERB Decision No. 2652, pp. 16-17; State of California (Department of Veterans Affairs) (2004) PERB Decision No. 1686-S, adopting proposed decision at pp. 10-11.) That role is particularly clear where the operative MOU includes a nondiscrimination clause. (p. 8.)

Disaggregated race and ethnicity data is relevant and necessary information which union needed to competently perform its representational function. Union needs to be able to contact African American unit members released from probation (or who had their probation extended) to help such employees and to investigate whether the experience of the three named employees in its grievance reflected a broader problem. Union needs to interview such employees to assess potential violations, defenses, and any other causes of racially skewed treatment of employees on probation, as well as to decide whether to push the case to arbitration, and if so to prepare for arbitration. (State of California (Department of Corrections and Rehabilitation) (2012) PERB Decision No. 2285-S, pp. 9-10 [union’s ability to independently investigate potential grievance “is an essential tool for determining whether the grievance has any merit and, if it does, for providing effective representation”].) Union must be able to target its inquiries toward potential similarly situated employees so that it can “efficiently accomplish” these representational functions. (Los Angeles Unified School District (2015) PERB Decision No. 2438, p. 10.) (pp. 13-14.)

The proposed decision directed the City to provide multiple categories of information, but the City excepted only as to one category of information. The Board’s remedy included an order to provide the additional information categories that the City no longer contested, but the Board expressed no opinion as to the ALJ’s conclusions on those categories. (County of Santa Clara (2023) PERB Decision No. 2876-M, p. 3, fn. 3 [judicial appeal pending on other grounds].) (p. 2, fn. 3.)

A party to a PERB matter seeking litigation expenses based upon its attorney fees and costs in that matter must normally prove that its opponent maintained a claim, defense, or motion, or engaged in another action or tactic, that was without arguable merit and pursued in bad faith. (Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 11.) However, PERB applies a different standard when deciding if a respondent found to have committed an unfair practice must pay attorney fees and costs related to a separate proceeding—whether the proceeding is in court, in arbitration, or in another PERB matter outside of the unfair practice charge itself. A charging party can obtain such a remedy if it (or a party in privity with it) has engaged in the separate proceeding in material part to remedy, lessen, make up for, or stave off the impacts of the unfair practice. (Victor Valley Union High School District (2022) PERB Decision No. 2822, pp. 23-24; Sacramento City Unified School District (2018) PERB Decision No. 2749, pp. 11-12; City of San Diego (2019) PERB Decision No. 2464a-M, p. 4; Omnitrans (2009) PERB Decision No. 2030-M, p. 30; County of San Joaquin (Health Care Services) (2003) PERB Decision No. 1524-M, p. 3.) Similarly, PERB directs payment of a charging party’s salaries or other bargaining and/or representation costs incurred in material part due to an unfair practice, even absent a separate proceeding. (City and County of San Francisco (2023) PERB Decision No. 2858-M, pp. 15-17; Alliance Judy Ivie Burton Technology Academy High et al. (2022) PERB Decision No. 2809, pp. 14, 31-32, 34.) In either of those contexts, make-whole relief is proper if the charging party proves that the respondent’s unlawful conduct caused harm and it is reasonably feasible to estimate the impact thereof. (City and County of San Francisco, supra, PERB Decision No. 2858-M, p. 15.) (pp. 24-25.)

To make a union whole for an employer’s refusal to provide information, as well as to deter future violations, it may be necessary in some cases pertaining to information requests relevant to an arbitration or other separate proceeding to order monetary compensation related to: (a) full or partial attorney fees or costs related to the proceeding for which the union sought information; and/or (b) extra staff time or other resources spent in relation to the proceeding or the underlying problem the union was attempting to solve. (p. 26.)

The Board ordered the City to provide the union with the 2016-2019 information it sought, including disaggregated race/ethnicity data. PERB acknowledged that information from 2016-2019 is no longer the most useful data set for SEIU to fulfill its statutory purposes, but that PERB will rarely find that an RFI becomes moot, lest the delay of litigation end up allowing respondents to avoid their duties. (Butte-Glenn Community College District (2022) PERB Decision No. 2834, p. 19.) Accordingly, the Board required the City to provide both the data originally requested as well as a current version thereof if requested. (County of Ventura (2018) PERB Decision No. 2600-M, pp. 44 & 46.) (pp. 22-23.)