PERB Reinforces Unions’ Broad Right to Obtain Information from Public Employers

In Butte-Glenn Community College District, PERB found that “an employer responding to a request for information from an exclusive representative may be required to compile information from multiple records, management agents, and other sources, unless it can prove that doing so would be unduly burdensome.” PERB explained that an employer may even be required to rely on employer representatives’ memories to respond to the information request. As such, an employer’s duty to respond to information requests requires consulting various sources of information and not merely documents an employer may have in its possession. In so deciding, PERB has made it even more difficult for an employer to assert and demonstrate that responding to a request for information (RFI) is unduly burdensome.

Employers often rely on blanket assertions of undue burden to limit the union’s access to information which is relevant and necessary to fulfilling its representational obligations. In Butte-Glenn, the employer baselessly asserted that the information requested by the union did not exist. In rejecting this argument, PERB reiterated that an employer must prove any defense or condition it imposes to limit an exclusive representative’s access to information. Moreover, an employer must raise an undue burden defense in its initial response and offer to bargain with the union over these concerns—this is not a defense that an employer can raise after-the-fact merely to defend against an unfair labor practice charge. If the employer does not timely assert the undue burden defense, it is waived and “PERB will order the employer to supply the information despite any burden it may impose.”

Even if the union’s initial request is arguably unclear, PERB asserts that the employer must still respond to the request. An employer may be liable for failing to fully comply with an information request, even when a union does not follow up or clarify its request. Although a union is not legally required to follow up with an employer regarding an information request, we highly recommend that union representatives persistently follow up with the employer.

While Butte-Glenn was decided under the Educational Employment Relations Act (“EERA”), which governs school employees, it applies broadly to all statutes administered by PERB. This decision reaffirms public sector unions’ broad right to information. A public sector employer can no longer refuse to respond to an RFI simply because responding to it would require it to compile information from multiple sources.

For more information, contact your labor law counsel.