By Chet Quaide, Partner
and Marleen Sacks, Senior Counsel
Pleasanton Office
and Marleen Sacks, Senior Counsel
Pleasanton Office
Recently, our clients have been getting bombarded with requests from local unions for information related to pending disciplinary cases and grievances, with the unions claiming that the information is “necessary and relevant” to the representation of their members. No doubt this recent uptick in such requests is due the June 30, 2011 PERB decision in SEIU 1021 v. City of Redding, which held that it was an unfair labor practice for the City to deny the union a copy of a confidential investigation report into sensitive personnel matters. Notably, the City recently appealed the PERB decision to the California Court of Appeals, so for the short term, the case is of no precedential value.
But regardless of how the case is ultimately decided by the Court of Appeal, the City of Redding case is actually not as compelling as the unions are claiming. This is because any request for information dispute depends on its own set of facts. As the City of Redding case itself noted, “Information request cases ordinarily turn on the particular facts involved, so each request is analyzed separately.” (City of Redding, citing Chula Vista City School District (1990) PERB Decision No. 834.)
In the City of Redding case, the union was requesting a formal investigation report involving employees working in a city customer service division. The investigation report was prepared by an outside investigator. The City had sent a letter to the union informing it that as a result of issues addressed in the report, certain changes would be made to the customer service division. The letter asked for the union’s support in directing bargaining unit members to use the chain of command to resolve problems, among other things. The union then requested a copy of the formal investigation report. The union justified the request by stating that it was unable to assess whether the issues raised by its members had been addressed without seeing the report. This, in turn, was necessary because the union and the City had agreed to implement a new job classification if customer service issues had been resolved. The City withheld the report on the grounds that it was confidential and contained confidential personnel information. PERB ultimately held that the report was “relevant and necessary” for the union to represent bargaining members, and ordered that the report be produced.
Lately, however, unions have been requesting actual investigation and interview notes by internal personnel directors, and/or written materials that public entities are relying in making personnel decisions. Such requests are likely distinguishable from the holding in City of Redding. Moreover, there are still numerous defenses available to public entities receiving information requests. For example, an employer need not comply with a request for information if the request is unduly burdensome. (See State of California (Departments of Personnel Administration and Transportation) (1997) PERB Decision No. 1227‑S.) Constitutional rights of personal privacy, and other reasons, may limit otherwise lawful demands for production of confidential information. PERB has adopted a balancing test to apply in situations involving confidential information. (Los Rios Community College District (1988) PERB Decision No. 670.) Obviously, in applying such a balancing test, each case is considered on its own separate facts.
In addition, Carmichael Recreation & Park District (2008) PERB Decision No. 1953-M, held that a Skelly hearing was an “extra-contractual” proceeding, and the union was not entitled to make requests for information. San Bernardino City Unified School District (1998) PERB Decision No. 1270 provides that an employer need not provide the union with a witness list requested for a Personnel Commission disciplinary appeal hearing.
The justification for a request for information “must be more than a mere concoction of some general theory which explains how the information would be useful to the union in determining if the employer has committed some unknown contract violation.” (Ventura County Community College District (1999) PERB Decision No. 1340, citing Los Angeles Unified School District (1994) PERB Decision No. 1061.) In another case PERB held that a request was unjustified based on a longstanding line of authority that “there is no obligation for an employer to provide detail regarding the thought process or rationale underlying its managerial decisions.” (Id., citing State of California (Departments of Personnel Administration and Transportation) (1997) PERB Dec. No. 1227-S.)
In light of the current ambiguity in the law, the possibility that confidential information is involved, as well as the fact that each situation will turn on its own facts, public employers should continue to be cautious in how they respond to requests for information, and have those requests reviewed by counsel.
