PERB Reaffirms Importance of Meeting and Conferring with Unions
August 2018
Number 36
The Public Employment Relations Board (PERB) recently reaffirmed the importance of meeting and conferring with unions regarding information requests. In Department of State Hospitals (PERB Dec. No. 2568-S) (DSH), PERB concluded that an employer violated the Dills Act by refusing to provide relevant and necessary information to a union requesting such information in order to represent its member.
Background
A group of 14 patients filed a complaint against a DSH employee that included reports of suspected dependent adult/elder abuse. The complaint was investigated and findings letters issued. The employee received a letter directing her to be professional while interacting with staff and patients, and to not use profanity.
The union representing the employee asked to review the hospital's supporting documentation for the formal corrective action. DSH refused to provide all of the requested documents and claimed the employee was only entitled to the documents if an adverse action issued.
Under applicable laws, an exclusive representative is entitled to all information that is "necessary and relevant" to the discharge of its duty to represent bargaining unit employees. An employer's failure or refusal to provide such information violates the duty to bargain in good faith unless the employer proves the information is "plainly irrelevant" or raises a valid defense to production of the information.
DSH claimed its refusal to provide the documents was based on contractual waiver, confidentiality, and the non-existence of a list of employees who had received formal corrective actions. DSH argued the union waived its right to obtain information contained in the employee's personnel and supervisory files because the information request did not indicate that the employee had authorized the union to review those materials, as required by the MOU. DSH also claimed the investigation materials were privileged and should be withheld to protect employee and patient confidentiality. Finally, DSH claimed it did not possess a list of bargaining unit members who had received formal corrective actions over the prior three years for incidents similar to the employee's and was therefore not required to provide it.
PERB reasoned that privacy interests may limit a union's right to obtain information. However, a claim that disclosure of requested information would implicate privacy interests must be made in a timely fashion so the parties can meet and confer over how to resolve the privacy concern. PERB found DSH's delay in asserting patient and employee confidentiality deprived the union of the ability to negotiate over accommodating privacy prior to the deadline for filing a complaint. Further, DSH only asserted a confidentiality concern about the list of bargaining unit members who had received similar formal corrective actions and not about the investigation materials, which were the sole subject of DSH's confidentiality defense before PERB. Because of the delay in asserting this defense, PERB found that the defense failed.
According to PERB, DSH correctly noted "an employer need not comply with an information request if the requested information does not exist." When the requested information does exist in some form, however "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." PERB declined to consider whether creating the list would be unduly burdensome because DSH did not assert this defense until the hearing. Just as with the confidentiality claim, an assertion that an information request is unduly burdensome must be timely raised so the parties can negotiate over eliminating or reducing the employer's burden. PERB found the untimeliness deprived the union of the ability to negotiate over how the information might be provided in a less burdensome manner.
Takeaways
This decision provides a useful roadmap of the process an employer should follow before refusing to provide requested information to a union.
Number 36
The Public Employment Relations Board (PERB) recently reaffirmed the importance of meeting and conferring with unions regarding information requests. In Department of State Hospitals (PERB Dec. No. 2568-S) (DSH), PERB concluded that an employer violated the Dills Act by refusing to provide relevant and necessary information to a union requesting such information in order to represent its member.
Background
A group of 14 patients filed a complaint against a DSH employee that included reports of suspected dependent adult/elder abuse. The complaint was investigated and findings letters issued. The employee received a letter directing her to be professional while interacting with staff and patients, and to not use profanity.
The union representing the employee asked to review the hospital's supporting documentation for the formal corrective action. DSH refused to provide all of the requested documents and claimed the employee was only entitled to the documents if an adverse action issued.
Under applicable laws, an exclusive representative is entitled to all information that is "necessary and relevant" to the discharge of its duty to represent bargaining unit employees. An employer's failure or refusal to provide such information violates the duty to bargain in good faith unless the employer proves the information is "plainly irrelevant" or raises a valid defense to production of the information.
DSH claimed its refusal to provide the documents was based on contractual waiver, confidentiality, and the non-existence of a list of employees who had received formal corrective actions. DSH argued the union waived its right to obtain information contained in the employee's personnel and supervisory files because the information request did not indicate that the employee had authorized the union to review those materials, as required by the MOU. DSH also claimed the investigation materials were privileged and should be withheld to protect employee and patient confidentiality. Finally, DSH claimed it did not possess a list of bargaining unit members who had received formal corrective actions over the prior three years for incidents similar to the employee's and was therefore not required to provide it.
PERB reasoned that privacy interests may limit a union's right to obtain information. However, a claim that disclosure of requested information would implicate privacy interests must be made in a timely fashion so the parties can meet and confer over how to resolve the privacy concern. PERB found DSH's delay in asserting patient and employee confidentiality deprived the union of the ability to negotiate over accommodating privacy prior to the deadline for filing a complaint. Further, DSH only asserted a confidentiality concern about the list of bargaining unit members who had received similar formal corrective actions and not about the investigation materials, which were the sole subject of DSH's confidentiality defense before PERB. Because of the delay in asserting this defense, PERB found that the defense failed.
According to PERB, DSH correctly noted "an employer need not comply with an information request if the requested information does not exist." When the requested information does exist in some form, however "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." PERB declined to consider whether creating the list would be unduly burdensome because DSH did not assert this defense until the hearing. Just as with the confidentiality claim, an assertion that an information request is unduly burdensome must be timely raised so the parties can negotiate over eliminating or reducing the employer's burden. PERB found the untimeliness deprived the union of the ability to negotiate over how the information might be provided in a less burdensome manner.
Takeaways
This decision provides a useful roadmap of the process an employer should follow before refusing to provide requested information to a union.
- If the employer does not believe the information requested is "necessary and relevant," it should ask the requesting union for an explanation.
- Employers should disclose exceptions to information requests to the union up front. PERB will be less likely to side with the employer if the exception is first raised at the hearing.
- Employers should meet and confer with the union about information requests to which exceptions are taken, compromising when possible and seeking resolution of the issues. PERB and other administrative bodies and courts will be more likely to side with an employer that attempts to resolve an issue directly with the union.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
