PERB: Employers Must Respond Promptly To Information Requests

Petaluma City Elementary School District (2016) PERB Decision No. 2485-E (Issued on 6/30/16)

[Note: With summer vacations and my schedule, I’ve not been able to write about the flurry of PERB decisions that were issued right before the end of the fiscal year. I intend to catch up by posting about those decisions in the next couple of weeks]

In this decision, the Board partially overturned a Board agent’s dismissal of an unfair practice charge. One of allegations was that the County unreasonably delayed providing necessary and relevant information in response to a union request. According to the charge, the union requested salary information on July 2, 2014, but the District did not provide the information until about six weeks later on August 13, 2014. The District asserted that it had intended to inform the union at a July 7, 2014 bargaining meeting that some of the information was not available; but that meeting was cancelled. It was not until the District’s response to the PERB charge that it asserted that some of the information was not available until it was provided on August 13. Nevertheless, the Board agent dismissed the allegation on the ground that the union did not show any prejudice from the delay.

The Board reversed. The Board emphasized that the right to information is not absolute. For example, an employer does not need to comply with a request where the information does not exist or is unavailable. However, the Board emphasized that the employer must still “affirmatively and diligently communicate the reason(s) for its refusal or delay in providing such information.” The Board held that:

[T]he party asserting a defense, limitation or condition to the disclosure of presumptively relevant information bears the burden of proof as to that question … and the failure to assert a timely argument against disclosure waives that issue on appeal.”

Further, the Board held that the requesting party does not need to demonstrate harm or prejudice as an element of its case. Here, the Board held that a six week delay during which time the District did not respond at all to the request was sufficient to state a prima face case. Accordingly, the Board ordered that a complaint issued on this allegation.

Comments:

Here, the six weeks between the request and production does not seem to be unreasonable to me. However, the Board took issue with the fact that the employer did not provide the union any update or explanation prior to the production of the information. I think it’s also important to note that the union wanted the information to assist it in bargaining. If the employer had provided an initial response—such as, “we’ve received your request and are gathering documents … we hope to have it to you by XXX”—this case may have been different. So one lesson from this case is to be sure to acknowledge receipt of information requests and provide status updates on compliance.