Perb Demands That the City of Redding Provide Union With Investigative Reports
Public employers regularly assert “privacy” as an excuse not to provide information that shows management misbehavior. In SEIU Local 1021 v City of Redding, PERB Dec. No. 2190-M, PERB found that the City of Redding violated the MMBA when it refused the Union’s request for copies of investigative reports generated as a result of a Union grievance. Even in the absence of a grievance, Unions have a right to information that is necessary and relevant to three categories; bargaining, contract enforcement, and understanding working conditions related to the mandatory subjects of bargaining. In City of Redding, PERB upheld this right, even in the face of employer claims regarding privacy concerns.
In investigating a Union grievance, the City hired an outside investigator to investigate sexual harassment claims. The Union requested copies of the investigator’s report, in order to determine whether further grievances should be filed, and to properly represent its members. The City refused to turn over the reports. The Union, recognizing that some of the information may be embarrassing or private to its own members, agreed to accept the document with the names redacted and to work with the City to otherwise protect member privacy. Still, the City refused to provide the report.
PERB, in applying its traditional privacy balancing test, determined that redacting employee names was sufficient to protect individual employee privacy interests while still allowing the Union access to relevant and necessary information. PERB rejected the City’s argument that the Union had equal access to its members and other employees and could simply conduct the investigation on its own. PERB concluded that the Union’s “… access to witnesses does not marginalize its interest in obtaining investigative reports in this case”.
The City argued that it could not turn over the report because it had promised confidentiality to the interviewed employees. Although the dissent agreed with the City, the majority of the Board rejected this self-serving argument. The City failed to specifically identify any individual employee objection or any type of privacy right that providing a redacted copy of the report would damage. In short, PERB held that an employer cannot use privacy as a basis for an employer’s refusal to provide relevant and necessary information to a union.
The City of Redding has appealed PERB’s decision to the Court of Appeal.
Author: Matthew J. Gauger
