PERB Weakens “Duty To Reassert Request” Rule For Information Requests

[Note: There have been quite a few important PERB cases in the last couple of months. Due to various litigation matters, I’ve fallen behind on blogging about them but will try to catch-up on all of them in the next few weeks.]

Los Angeles Unified School District (2015) PERB Decision No. 2438-E (Issued on 6/25/15)

Facts

When teachers are investigated by the Los Angeles Unified School District (District) for serious misconduct, they are reassigned to one of six educational service centers (ESC) during the investigation. The union wanted to bargain over the working conditions of teachers assigned to an ESC and as part of its bargaining demand, the union submitted an information request for the names of all teachers assigned to an ESC. The union alleged that it wanted to communicate with the affected teachers in order to develop its bargaining proposals. In response, the District, asserting the employees’ privacy interests, agreed to comply only after giving all affected teachers the ability to opt out of having their information released to the union. The union objected to the opt-out procedure and offered to sign a confidentiality agreement instead. The District declined the union’s offer of a confidentiality agreement and proceeded to notify the affected teachers of the union’s request and provide them an opt-out opportunity. The District eventually provided the union the names of 261 of the 276 teachers who were assigned to an ESC at any time. Fifteen employees selected the opt-out option.

Decision

The Board appeared to agree with the District that the affected teachers had a privacy interest in the fact of their reassignment to an ESC, which “carries with it the cloud of suspicion.” But the Board noted that even when an information request implicates privacy interests, a balancing test be must be applied that weighs the burden on the employer against the union’s need for the information. Here, the Board held that the balancing test weighed in favor of the union.

In reaching its decision, the Board noted that the union attempted to address the District’s privacy concerns by offering to sign a confidentiality agreement. As for the employees’ privacy interests, the Board stated that, “If the reassigned employees did not wish to involve [the union] in their employment issues and did not want to reveal to the Union why they had been reassigned, they could simply tell the Union that, or just ignore its communication. As a result, the Board held that, “The privacy intrusion is minimal in this case.”

The Board then addressed the District’s defense that after it provided the union with the names of 261 of the 276 affected teachers, the union failed to reassert its request. The Board characterized this defense as the “duty of reassert request after partial compliance.” (See Oakland Unified School District (1983) PERB Decision No. 367 (Oakland).) In Oakland, the employer responded to a union request for information and the union failed to reassert its request. According to the Board, the key fact in Oakland was that:

The union did not object, reassert its request, or otherwise place the employer on notice that the response was inadequate before filing its unfair practice charge. The likely purpose of the Board’s dismissal of the allegation in Oakland was to establish that an employer could not be charged with an unfair practice after it had partially complied with an information request unless it is placed on notice by the requestor that the partial compliance is inadequate.

Here, the Board found that the District admitted it understood the scope of the union’s information request and knew that it was not fully complying with it. Given the circumstances, the Board held that the District was on notice that its response would not satisfy the union. Accordingly, the Board held that, “Under these circumstances to require UTLA to repeat or clarify its request or objective, despite the District’s clear understanding of both, would elevate form over substance.”

Comments:

The “duty to reassert” an information request after an employer has initially complied is one of my favorite defenses to an unfair practice charge alleging failure to provide information. It’s very common during bargaining for a union to send out an extensive list of information requests. Some documents will be easy to produce, others more difficult, and some requested documents simply won’t exist. It is often the case that after an initial response is provided to the union, there is no follow-up until bargaining goes south and then all of the sudden there is an unfair practice charge. In these situations, the union’s failure to reassert an information request can be fatal to its unfair practice charge.
This case certainly weakens the “duty to reassert” defense. Under the holding here, if a union has made its request clear, and the employer fails to comply with it, there is no duty for the union to reassert its request. However, the defense is certainly not dead. As mentioned above, it often is the case that a request is not “black and white” and that the responsive documents are not easily defined. In such situations, I believe that if the employer has made a good faith effort at compliance, the “duty to reassert” defense should still be available if the union fails to object or seek clarification of the employer’s response.