Employee A worked for the City and County of San Francisco and was the subject of a disciplinary investigation. As a result of the investigation, Employee A received a written warning regarding disruptive behavior.
The Service Employees International Union (SEIU) filed a grievance on Employee A’s behalf. On November 9, 2018, a SEIU Field Representative requested “a copy of interview questions to all witnesses named in the written warning . . . a copy of the interview answers of all witnesses of [sic] the written warning . . . [and] [a]ny other evidence, such as notes, internal complaints, email communications, etc..” The Field Representative noted that the information was needed so that SEIU could “investigate the grievance.”
On November 20, 2018, the City sent the Field Representative a copy of the investigative report that had seven pages redacted. When the Field Representative requested a description of the redacted information, a City administrator noted that the redacted information was unrelated and not used to support Employee A’s written warning.
In December 2018, a Field Representative requested a full, unredacted version of the investigation report because SEIU needed the information to conduct an investigation and make its own assessment. A City administrator responded that the investigative report belonged to the City Attorney and he would forward the representative’s request.
The Field Representative sent another request to the City for the report in January 2019. The Field Representative filed an Unfair Practice Charge in February 2019. In March 2019, a City administrator sent the Field Representative another version of the investigation report. This version had only five redacted pages. The administrator said that the City was providing that version of the report “on a non-precedent setting basis, after carefully weighing the privacy interest of the witnesses”. This copy of the report had redactions in the Background section of the report. The City said that the redacted information pertained to another investigation that was not relevant and would violate the privacy interest of another employee. At no time did the City offer to meet and confer about the redactions, or indicate that the City would be willing to negotiate about them.
The Public Employment Relations Board (PERB) held that the MMBA duty to meet and confer extends to union requests for information during a contractual grievance process. The City argued that it had no duty to meet and confer because SEIU never made such a request. PERB disagreed, noting that SEIU attempted to get clarification from the City about the redactions, but that the City replied in a conclusory matter. Each time the City provided another copy of the investigation report, it decided unilaterally what to redact. PERB held that a union has no duty to request meet and confer if the employer has unilaterally decided what to redact and has presented its decision as a fait accompli rather than a proposal.
City and County of San Francisco, PERB Dec. No. 2698M (2020).
Note:
A union has a right to information that is necessary and relevant to represent its members, as well as the right to meet and confer with the employer over alleged privacy concerns that may arise regarding investigation reports. This decision reiterates that the employer should discuss privacy concerns that arise from investigation reports before unilaterally deciding what to redact.