PERB: Union Authorization Forms Are Confidential

City of Bellflower (2021) PERB Dec. No. 2770-M (Issued on 6/08/21)

The Bellflower City Employees Association (BCEA) filed a petition to decertify and replace AFSCME Local 3745 as the exclusive representative of three bargaining units within the City of Bellflower. While the petition was being processed, AFSCME requested that the City provide it with copies of BCEA’s authorization forms. In response, the City provided AFSCME with unredacted copies of the authorization forms submitted by BCEA. The City did so without notifying BCEA or receiving its consent.

The ALJ found that the City committed an unfair practice by failing to treat the proof of support as confidential. The Board affirmed. The opinion begins by noting that six of California’s public sector labor relations statutes require that representation petitions be filed and processed with PERB. Under PERB’s regulations, there is no question that PERB would treat the authorization forms as confidential.

Only the MMBA and two statutes governing trial court employees allow the employer to establish local rules where the employer processes representation petitions. Although the MMBA is silent on whether proof of support is confidential, the majority held that, “this does not suggest that the Legislature intended those employers to have discretion whether to treat proof of support documents as confidential.” To the contrary, citing to federal precedent, the majority held that confidentiality is necessary to protect employee and union rights because “employees may be chilled if they know that their proof of support authorizations could be disclosed to others …” The majority ruled that proof of support “may be shared only to the extent that the requesting party demonstrates a compelling need for them.” Here, the majority found that AFSCME did not have a compelling need for the documents that outweighed the employees’ confidentiality interests.

Member Shiners filed a concurring opinion. Member Shiners would not have applied a balancing test to AFSCME’s request for proof of support. According to Member Shiners, proof of support is a unique type of information that should not be treated as an ordinary request for information: “Employee free choice is undermined by subjecting proof of support materials to the traditional information request paradigm because the possibility that an employee’s proof of support could be disclosed to the incumbent union may chill employees from signing such materials in the first place.”

Comments:

I have always advised MMBA employers to establish their own local rules instead of relying on PERB’s default ones. However, most of the local rules that I have seen are silent on the confidentiality of proof of support. This decision establishes that proof of support must be maintained as confidential.
The majority opinion holds that a party can attempt to establish a compelling need for proof of support. However, what would be a compelling need? Here, AFSCME initially argued that it needed to view the proof of support to verify them. The majority opinion notes that “narrowly tailored redactions can be an appropriate solution, if privacy rights outweigh the union’s need for the redacted information.” But it is hard to imagine how proof of support can be redacted if a party’s goal is to verify them. In my opinion, a request for authorization forms to verify them should never constitute a compelling need as it runs counter to the whole reason these forms are confidential.