In a November 19, 2018 decision, the Public Employment Relations Board clarified that a union’s request for information (RFI) is not properly analyzed under the Public Records Act (PRA, Government Code § 6250 et seq.). In Sacramento City Unified School District (2018) PERB Decision No. 2597, the PERB went further and held that redactions permissible under the PRA (such as employee names) are negotiable under the Educational Employment Relations Act (Government Code § 3540 et seq.).
A classified employee represented by the Service Employees International Union (SEIU) was terminated for putting a piece of tape over a student’s mouth. SEIU learned that the year before (in 2012), the District sent a termination notice to a teacher for similar conduct, but the teacher eventually returned to work. SEIU asked the district for copy of its settlement agreement with the teacher. The district disputed that the agreement was “necessary and relevant” for SEIU’s representation of the classified employee because the agreement involved a certificated employee in a different bargaining unit. However, the district proceeded to respond to the union’s request under the PRA.
Citing Marken v. Santa Monica-Malibu Unified School District (2012) 202 Cal.App.4th 1250, the district’s attorney notified the teacher’s attorney of the request and gave her an opportunity to to object to the disclosure of the agreement. The teacher did not object, and the district’s attorney sent the union a copy of the agreement with all names redacted.
After objecting to the redactions, SEIU requested all information and documents pertaining to both discipline matters, including, in the teacher’s case, the charging document, internal district reports, police reports, and the name of the district official who signed the settlement agreement. SEIU asserted these items were relevant to understanding whether the district treated the classified employee disparately by terminating him while the teacher had returned to work.
Addressing the request for the charging document, the district’s attorney again cited Marken and gave the teacher two further opportunities to object to the disclosure. Again the teacher did not object, and the district provided SEIU with a copy of the charging document with all employee names redacted, and a copy of a police report with some of the same names unredacted.
A hearing officer rejected the union’s disparate treatment argument and upheld the classified employee’s termination. SEIU filed an unfair practice charge with the PERB, not objecting to the employee’s termination, but alleging the district improperly redacted the documents produced in response to the union’s RFI, thereby failing to bargain in good faith.
The PERB Decision
After a hearing, the PERB administrative law judge determined the district could not interpose a Public Records Act exemption (such as the exemption for personnel files) as a defense to a union’s RFI. The ALJ nonetheless found the district did consider the requests under the EERA, or alternatively sufficiently complied with the EERA when it raised employee privacy concerns and disclosed redacted copies to SEIU. The ALJ concluded the unfair practice charge should be dismissed. SEIU filed exceptions to the ALJ’s decision.
The PERB agreed with the district that information pertaining to non-bargaining unit members is not presumed relevant and necessary to a union’s representational duties. Rather, the exclusive representative bears the burden of demonstrating that the information is relevant and necessary. (City of Redding (2011) PERB Decision No. 2190-M.) In Sacramento City, however, the PERB “clarified” that “a union may demonstrate relevance where it has requested information that may help it compare the disciplinary circumstances relevant to a bargaining unit employee, including the allegations and any resulting discipline, with prior circumstances involving non-bargaining unit employees.” The PERB found that SEIU had explained the relevance of the requested documents in two letters to the district, and had no duty to reassert or further clarify its position.
Most important, the PERB contrasted rights under the PRA, which apply to “all members of the public, including unions,” with labor relations statutes that provide only the bargaining parties with the right to request information from one another. These “PERB-administered statutes provide unions with more expansive access to information and records beyond that available under the [PRA].” Additionally, while an agency is not required to create a new record in response to a PRA request (citing Fredericks v. Superior Court (2015) 233 Cal.App.4th 209), a union’s RFI may require an employer to compile information from multiple records, agents, and other sources.
The PERB also noted that a public employer has duties under collective bargaining statutes that go beyond duties under the PRA. Specifically, if an RFI would lead to unduly burdensome costs, infringe on legitimate privacy interests, or pose a need for clarification or discussion, the employer must bargain in good faith toward an appropriate accommodation. An employer may not unilaterally adopt “its preferred method for dealing with privacy concerns.” (Citing Los Angeles Unified School District (2015) PERB Decision No. 2438.)
In Sacramento City, the PERB concluded that encompassed within the duty to negotiate over privacy concerns is “the extent to which various levels of redaction might lessen such concerns, as well as the extent to which such redaction methods might frustrate the union in carrying out its representational function.” Specifically, the parties can bargain over the method of redaction, such as replacing redacted names with placeholders such as “Teacher A” or “Student 1.” Alternatively, the parties can negotiate an accommodation that recognizes “that unions [can] be trusted to be discreet.” (Citing City of Redding, supra.) Further, materials sought through an RFI may be disclosed only for a specific limited purpose and not released to the public, unlike the full public disclosure of documents under the PRA.
The PERB found the district incorrectly denied that the information was necessary and relevant under the EERA and “further frustrated EERA’s purposes by converting the applicable procedure from a two-way negotiation to a unilateral decision.” The PERB specifically rejected the district’s determination that SEIU would receive a copy of the agreement only if the teacher’s attorney expressed no objection. The PERB did not determine whether the settlement agreement was a public record under the PRA or whether the district raised legitimate privacy concerns related to the teacher’s disciplinary record.
Impact for Public Employers
As often happens, the unusual facts in a particular case led to a ruling that affects public employers statewide. The significant takeaways from Sacramento City are threefold:
- Exemptions under the PRA do not apply to union requests for information under collective bargaining laws. Unions’ entitlement to information under EERA and other public labor-relations statutes is broader than the public’s right to documents under the PRA. While a “Marken-like” notification may be appropriate for an employee whose personnel records are sought in an RFI, the parties must balance the employee’s privacy rights against the rights of a union to the information, if the records are necessary and relevant to the union’s representational duties.
- While information and documents related to a non-bargaining unit member are not presumed relevant and necessary to the union’s representational duties, the union must be given an opportunity to explain their relevance. If the union adequately explains the relevance of the information, the employer must disclose it. Comparing disciplinary actions against unit members and non-unit members can support a relevance claim.
- If the requested information implicates privacy concerns, the employer and the union must negotiate the appropriate means of addressing those concerns. Negotiations may cover redaction of private information, the method of providing the information, and limitations on the use of the information, among other possible subjects.
Compliance with public employers’ obligations under the PRA and collective bargaining statutes can be complex and daunting.