This case involves a very common scenario. An employee is subject to discipline and requests a hearing. In preparation for the hearing the union submits several information requests, including a request for a list of employees disciplined for similar conduct in the past and the penalties imposed in each case. In making such a request, the union is obviously exploring whether the penalty imposed by the employer was disparate in some fashion. As is common, the employer in this case refused to provide this information based on several grounds, including a right to privacy by the other employees and the undue burden of compiling such a list. In rejecting the employer’s defenses, PERB set forth some guidance that all employers should be aware of going forward.Contractual waiver is an affirmative defense
An “affirmative defense” is a defense where the party asserting it has the burden of proof. Here, the employer asserted at hearing that the union had waived its right to the requested information through contractual provisions. PERB refused to consider the employer’s defense because it was not pled as an affirmative defense in the answer.
Confidentiality/Privacy
The employer also asserted that it properly denied the union’s request for information because it infringed on the privacy rights of other employees. PERB acknowledged that a right to privacy may limit a union’s right to information. But PERB went on to hold that a claim of privacy, “must be made in a timely fashion so the parties can meet and confer over how to ameliorate the privacy concern.” In this case, PERB was critical because the employer did not assert a privacy interest in the information until after the deadline to file a grievance had elapsed. As a result, PERB held that the defense “fails because it was not raised in a timely manner.”
Duty to Compile Information
Finally, PERB considered the employer’s defense that it had no duty to provide a list of employees who had received corrective actions for similar conduct in the prior three years because no such list existed. PERB acknowledged that, “an employer need not comply with an information request if the requested information does not exist.” However, PERB went on to state that, “[W]hen the requested information does exist in some form, the fact that the employer may have to compile it from various sources does not excuse the employer from producing it unless the employer can prove doing so would be unduly burdensome.”
In this case, the employer asserted that it did not have a database for the requested information. Instead, the employer would have to manually search the personnel files of more than 700 employees to determine whether any of them had received correction action for similar conduct. PERB declined to consider whether conducting such a search would constitute an undue hardship because the employer had not asserted this as an affirmative defense. As a result, PERB ordered the employer to compile the list with the requested information.
Comments:
- This is a good reminder of the importance of pleading all applicable affirmative defenses in the answer. For information requests, the primary affirmative defenses are undue hardship and waiver. Practitioners should also remember that if you forget to plead a particular affirmative defense or become aware of one after the answer is filed, it is possible to amend the answer. Although PERB has not often addressed the issue of amended answers, the standard should be the same as the standard for amending a complaint; namely, the main issue is going to be whether the other party will suffer “prejudice.” This means that any amendment to the answer should be done as early as possible and well ahead of the hearing.
- PERB’s goal is to encourage the parties to negotiate early and often on the scope of information requests. To encourage this PERB has indicated that employer defenses raised after the union has been forced to file a grievance/complaint may be rejected as untimely. The results of such a rejection can be especially painful for an employer. For example, in this case the employer was ordered to manually review 700+ personnel files to determine whether other employees received correction action for similar conduct in the prior three years. In my mind, requiring such a search clearly constitutes an undue hardship on the employer. However, because the employer did not raise this defense earlier PERB refused to consider it.
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