PERB Rules Employer Has No Obligation To Provide Union Or Employee With Written Complaint Until After Initial Investigatory Interview

Category: Special Bulletins
Date: Jul 1, 2019 03:58 PM

This Special Bulletin was authored by Eileen O’Hare-Anderson & Emanuela Tala

The Public Employment Relations Board (“PERB”) found that the Contra Costa Community College District (“District”) did not violate the Educational Employment Relations Act when it withheld copies of written discrimination complaints against two faculty members in advance of investigatory interviews. 

In Contra Costa Community College District (2019) PERB Decision No. 2652E, PERB found that a union has a right to reasonable notice of the alleged wrongdoing before the investigatory interview, but the union does not have a right to a copy of the written complaint until after the initial investigatory interview is completed.  

The District received two student complaints against two faculty members, and subsequently hired an attorney to investigate the complaints.  The District required the two accused faculty members to attend investigatory interviews.  The faculty members requested union assistance in connection with the interviews, and the union agreed to assist them.  The union then requested copies of the complaints prior to the interviews.  The District, through its attorney, informed the union that its policy was not to provide copies of complaints before an interview.  The District asserted the need to protect the integrity of the investigation and the complainants’ privacy rights as primary reasons for denying requests for copies of the complaints.

PERB held that the employer must provide reasonable notice of the alleged misconduct.  This must be timely and include sufficient information about the alleged wrongdoing “to enable a union representative to represent an employee in a meaningful manner during the interview.”  Whether an employer has met this obligation is a case-by-case determination.  However, “the employer has no obligation to provide the underlying written complaint until after the employer conducts an initial investigatory interview.”

Notice is timely if it gives the accused employee enough time to consult with his or her representative.  Notice is sufficient if it provides the accused employee and his or her representative with enough information about the allegations to allow for representation in a meaningful manner during the interview.  

PERB also explained that after an investigatory interview, the employer may not deny the union’s request for information on the basis that a disciplinary meeting or proceeding falls outside the scope of the bargaining agreement or on the basis that the union has no duty of fair representation. 

Similarly, the employer may not deny the union’s request for information by simply asserting a third party’s right to privacy.  PERB reaffirmed the rule that after the employer raises the legitimate privacy rights of a third party, such as a student, the employer cannot simply refuse to provide any information.  Rather, the employer must meet and confer in good faith to reach an accommodation of both the union’s and the accused employee’s right to obtain the information and the third party’s right to privacy.  Such accommodations could include redacting information that is not relevant, or entering into agreements limiting use of the information.

NOTE:  Employers must be careful in responding to requests for information, especially while investigations are pending.  Agencies should work with local counsel to navigate the requirements of this and other applicable laws.

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