A Public Employer’s Roadmap for Handling Union Requests for Information

alifornia’s public labor relations statutes require public employers to respond to a labor union’s requests for information (RFI’s) in a timely manner. In fact, the definition of “meet and confer in good faith” includes the obligation to freely exchange information.

With statutory compliance hanging in the balance, it’s important for employers to know how to respond to RFI’s. If you’ve just received a long list of requests from a labor union and are unsure how to proceed, look no further. Here is a step-by-step approach employers can take to help ensure compliance:

1. Step One: Assign an RFI Coordinator in Human Resources to Manage the Agency’s Response.

This is especially important when dealing with lengthy information requests, and if an agency has multiple bargaining tables open at the same time. Information may need to be drawn from multiple sources, including payroll, finance, Human Resources, and other departments. IT may need to assist with certain reports. An RFI Coordinator can ensure the right people are contacted for information, identify roadblocks early on, and conduct the necessary follow-up to make sure the agency can respond in a timely fashion.

PERB has held that an unreasonable delay in providing information constitutes as much of a violation as an outright refusal.  A party responding to an information request must exercise the same diligence and thoroughness as it would in other business affairs of importance. For these reasons, the RFI Coordinator should ideally be someone who is well connected in the organization and who can be a squeaky wheel.

2. Step Two: Carefully Review the RFI with Legal Counsel.

Is the union entitled to the information? California public sector labor relations statutes provide broader informational rights for labor unions than the general public, and labor unions may have the right to access sensitive and confidential employee information. A labor union is entitled to information that is necessary and relevant in discharging its representational duties. PERB uses a liberal, discovery-type standard, like that used by the courts, to determine relevance. California Public Records Act defenses do not apply to RFIs arising under a labor relations statute.

At this step in the process, it’s a good idea to reflect on what the RFI may indicate about the union’s interests at the table. The employer’s negotiator should strategically consider and plan for the impact of the information on the bargaining process, including whether the data will support or detract from the employer’s proposals.

3. Step Three: Raise Any Question or Legal Defense Immediately. Where Appropriate, Discuss Potential Accommodations with the union.

A responding party’s primary defenses to producing relevant information are clear and unmistakable waiver, privacy, undue burden, or an absolute or qualified privilege. However, such defenses must be raised promptly. A responding party may waive any defenses to disclosure that it fails to raise in a timely manner after receiving a request.

In many instances, PERB requires the parties to bargain over accommodation of defenses rather than deny the request outright. Here are some appropriate questions and responses to a problematic RFI:

1. Information Requested Appears Not Relevant: Where information requested appears to be not necessary or relevant to representation, ask the union to explain relevance. Remember that a union’s right to information is broad, so consult with legal counsel before refusing to provide information.
2. Request is Vague: Where information requested is vague or open-ended, ask the union for clarification or to provide more specifics about the information it seeks.
3. Request Is Burdensome: Where information requested presents an undue burden for the employer, bargain with the union regarding an appropriate accommodation.
4. Request is Costly: If providing the information in the form requested by the union imposes substantial costs, bargain with the union over who will bear the costs.
5. Union Already Has Access: If the employer and the union have equal access to the same information from the same source, tell the union where they can find the information, including where exactly it resides if on the agency’s website.
6. Request is for Privileged Information: Where information requested consists of internal negotiations strategy communications or attorney-client privileged communications, assert the privilege in correspondence to the union in a timely manner. If the assertion of negotiations strategy communications privilege is challenged, PERB will apply a balancing test, balancing the confidentiality interest against the need for disclosure.
7. Request is for Private Information: Where the requested information may violate privacy rights, the employer may not unilaterally refuse to provide information, nor may an employer unilaterally decide what to redact before providing the information. Instead, offer to bargain to determine how to accommodate the privacy concerns. If such reports contain private information of third parties, PERB applies a balancing test that weighs a union’s need and interest in obtaining the information against the employer or third party’s privacy and confidentiality interests. Appropriate accommodations to protect private information include agreed-upon redactions, and arrangements to limit using materials for a given arbitration or negotiation and to prohibit public disclosure.

4.Step Four: Compile Initial Response, Indicate Where Information Does Not Exist, and Estimate Response Times Where More Time Is Needed.

At this step, the employer should start to provide information. For lengthy RFI’s, an employer should provide responses on a rolling basis rather than wait until all information is ready.

Before providing information to the union, remember to verify accuracy. Knowingly providing a labor union with inaccurate information regarding the financial resources of the employer constitutes an unfair labor practice under the Meyers Milias Brown Act (MMBA) and the Educational Employment Relations Act (EERA).

The RFI Coordinator should provide regular, written status updates to union representatives, so it is clear the employer is exercising diligence in compiling the requested data.

5. Step Five: Keep Clear Written Records.

A key responsibility of the RFI Coordinator is to keep a permanent written record of information provided, and to whom and when it was provided. If the parties meet to discuss accommodation, the Coordinator should maintain a written record of what was discussed and what accommodation was agreed upon. If a request is denied, the Coordinator should maintain a written record of what defense was asserted and when. It is common for unions to file unfair practice charges for failure to provide information in response to an RFI. Unions may strategically use such a charge as the basis for an unfair practice strike, so failure to comply with this important obligation can have consequences for your negotiations and labor relationship.

Once the RFI is fulfilled, the RFI Coordinator should confirm completion of the response by email to the union representative.

6. Step Six: Remember That RFIs Go Both Ways. The employer can request Information too.

If your organization has any questions about handling a union RFI, please reach out to your trusted legal advisors for assistance.