Though the case does not involve public safety officers, a recent decision from an administrative law judge (ALJ) of the California Public Relations Board (PERB) could have significant ramifications in the public safety workplace. In the case, the ALJ ruled that employees filing a complaint against a fellow employee do not have a reasonable expectation of privacy in their complaints.
The case began in October 2009, when two community college employees filed workplace misconduct complaints against the male tennis coach, who sought union assistance at an investigatory interview. The employer declined to fulfill the Union’s request for a copy of the informal complaint and refused to provide additional information concerning the nature of the allegations.
Pursuant to the findings of the investigation, the college president eventually issued a letter of warning to the coach. The Union then filed an unfair practice charge contending that the employer violated the state bargaining law by failing to provide timely responses to information requests and by interfering with the union’s ability to represent a bargaining unit employee.
The ALJ found that a union “is entitled to all information that is necessary and relevant to the discharge of its duty of representation. Failure to provide such information is a per se violation of the duty to bargain in good faith. Notwithstanding the liberal standard, an employer can refuse to release information that is otherwise necessary and relevant if, for example, it will impose burdensome costs on the employer, or the release will compromise employee privacy rights.
“In this case, the District asserts that the complaints were informal and therefore, it was not required to provide copies of the complaints. Nevertheless, on the basis of these informal complaints, the District initiated formal investigations. The District’s assertion that the document(s) giving rise to its asserted need for a formal investigation were not necessary and relevant to the Association’s representational duties is clearly wrong. The complaints which led the District to investigate the employee for workplace misconduct, thereby exposing him to disciplinary action by the District, are indisputably necessary and relevant to the Association’s representational duties, with regard to its duty to ensure that contractual disciplinary procedures are followed and with regard to the allegation in the grievance that the District applied the informal complaint procedures discriminatorily.”
The District’s main argument was that the complaints were confidential and that disclosure to the Association was not required. The ALJ noted that PERB had “long ago recognized that constitutional rights of personal privacy may limit otherwise lawfully authorized demands for the production of personal information which has been held in confidence. Where a union has established the relevance and need for particular information, the burden of proof is on the party holding the information to show that disclosure would compromise the right of privacy. If a protected privacy interest is demonstrated, we balance the conflicting right of disclosure against the asserted privacy right.
“A ‘reasonable’ expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms. The reasonableness of a privacy expectation depends on the surrounding context.
“Likewise, it is clear that, as with civil litigation, it is neither reasonable nor required that witness contact information be kept confidential from the representative of the accused when defending against workplace misconduct allegations. Rather, the identification of witnesses is central to the discovery process and a routine and essential part of the union’s duty to represent its members. Supposing the District had concerns regarding the identity of student witnesses whose grades or ability to continue participating in the tennis program might be compromised in the event of a conflict with the employee, the District had a duty to raise those concerns with the Association and bargain to ameliorate those concerns. Instead, the District credited a student witness’s recollection of events over the employee’s recollection of events. By refusing to disclose the identity of this witness, the Association was unable to weigh for itself the very evidence used by the District to justify disciplining the employee.
“Ultimately, while employees generally have a legally protected privacy interest in their home addresses and contact information, they do not have a right, or even an objectively reasonable expectation of anonymity from their exclusive representative when filing workplace misconduct complaints against coworkers. Nor is the correlation of an employee’s identity with the filing of a complaint a serious intrusion into an employee’s privacy right, especially in the circumstance presented here, where both the complainant and respondent employees are represented by the Union. The same conclusion is inevitable when dealing with witness identity and contact information.”
Foothill De Anza Faculty Association, 40 PERC ¶ 14, 40 (Cal. PERB ALJ 2015).