PERB Holds That Unions Are Not Entitled to Written Complaints Prior to Investigatory Interviews

08.08.2019

The Public Employment Relations Board (PERB) has held — in a much-anticipated decision litigated by Atkinson, Andelson, Loya, Ruud & Romo — that where an employer investigates allegations of misconduct against an employee, the employee’s “union has a right to reasonable notice of the alleged wrongdoing in advance of an initial investigatory interview, but the union does not obtain a right to an underlying written complaint until after the initial investigatory interview.” (Contra Costa Community College District, PERB Dec. No. 2652 (2019)).

In Contra Costa, the District received separate student complaints regarding two different faculty members, and set up an initial investigatory interview with each faculty member. The faculty union requested — but did not receive — an advance copy of the student complaints. The union responded by filing an unfair labor practice charge with PERB. An administrative law judge ruled that the district had committed an unfair labor practice by not providing a copy of the student complaints to the union, but the PERB board overturned the ALJ’s decision and dismissed the complaint.

Most significantly, PERB rejected the union’s argument that it was entitled to a copy of the written complaint against the employee prior to the initial investigative interview. In reaching this conclusion, PERB primarily relied on a case decided under the Police Officers Bill of Rights, which held that “an accused peace officer employee must receive reasonable pre-investigation information about all misconduct allegations, but need not receive the underlying written complaint until after the employer conducts an initial investigatory interview,” (citing to Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 572-579).

Employers are obligated, however, to make some factual disclosures prior to the initial investigative interview. PERB explained that: “An employer violates union and employee representational rights when it fails to provide sufficient information regarding alleged wrongdoing to enable a union representative to represent an employee in a meaningful manner during an investigatory interview. This is necessarily a fact-specific inquiry.” What information is “sufficient” to allowing “meaningful” representation will no doubt be the subject of future PERB decisions.

In reaching its holding PERB acknowledged that requests for information involving arguably private information must be evaluated by balancing the privacy interests involved against the union’s need for the information, but rejected the argument that student complaints are protected from disclosure under the Family Educational Rights And Privacy Act (FERPA) Rather, PERB determined that an employer must not “always fully disclose the entire student complaint to the union” and “may propose that the accused and his or her union agree to use a written complaint only for the purposes of responding to it and defending the accused….[and] may also proposed redaction of information not necessary to the accused employee’s defense. This may or may not include the student’s name….”

A majority of the PERB Board also reached beyond the boundaries of the dispute in this case, and reversed prior PERB precedent regarding a union’s right to request information related to so-called “extra-contractual” proceedings, i.e. matters that fall outside of enforcement of the collective bargaining agreement. A strong dissenting opinion noted that this determination was unnecessary to PERB’s holding, and that the majority decision on this particular issue went against prior PERB precedent. The majority went out of its way to claim that its holding on this issue should not be considered “dicta” (i.e., merely observational, rather than precedential), citing United Steel Workers of America, Local 8599 v. Board of Education (1984) 162 Cal. App. 3d 823, 834, which stated that “even when part of an opinion is not relevant to material facts,” the decision can have precedential effect “if it is responsive to an argument raised by counsel and probably intended for guidance of the court and attorneys upon a new hearing.” Notably, however, neither the union nor the district actually raised this issue in the briefs, and no new hearing was contemplated. Therefore, employers can still legitimately claim that this portion of the holding is “dicta,” and of no precedential value.

Significance:
Based on this new decision, employers faced with union requests for information prior to an initial investigatory interview must consider the request on a case-by-case basis, but are not obligated to disclose an underlying written complaint. They must, however, provide the union with a general description of the reason for the interview, sufficient to meet the legal requirements above. Requests for information after an investigatory interview must also be carefully evaluated, and need not be turned over without appropriate redactions or restrictions, or if the information is not necessary or relevant to the union’s representation of the matter. Because such requests must be considered on a case by case basis, employers responding to union information requests of this sort are advised to consult with legal counsel.