Union entitled to receive information requested, over Employer objection and “opt-out” procedure
In a recent case, the Public Employment Relations Board (“PERB”) held that a Union had the right to receive the names and work locations of employees who were under investigation for alleged misconduct.
In Los Angeles Unified School District, the Union representing the teachers requested the names and work locations of unit members who were temporarily reassigned during the District’s investigation of the employees’ alleged misconduct. The Union was concerned over differing expectations and duties at the different reassignment locations; the Union also sought to investigate whether the District was complying with the criteria for such reassignments and whether a disproportionate number of employees over 40 years of age were being reassigned; and the Union wanted to gather information from the affected teachers to develop bargaining proposals regarding working conditions at the reassignment locations.
The District asserted that the employees had a privacy interest in the information because they would be identified as being under investigation. Over the Union’s objection, the District unilaterally decided to use an “opt-out” procedure in which it notified the employees and gave them an opportunity to ask the District to withhold their names and work locations. The District then withheld from the Union the names and locations of the employees who, according to the District, had opted out.
The employer had the burden to show that the privacy interest outweighed the Union’s need for the information, and PERB found the employer in this case did not meet that burden. The Union’s interest in obtaining the information was significant, and the privacy intrusion was minimal because the Union was not receiving the employees' personnel files or the investigation reports. Further, PERB rejected the District’s argument that the Union supposedly could get the same information by contacting its members. The Union did not have “equal access to the same information from the same source.” The District could easily provide the names and locations of reassigned teachers, whereas it would be burdensome on the Union to attempt to get the information by trying to interview everyone at each reassignment location or by contacting all bargaining unit members.
For more information, please contact your labor law counsel.
By Anne Yen | September 9, 2015