Employer Required To Develop Policy To Retain Labor Relations E-Mails

Part of the obligation to collectively bargain in good faith is the obligation to share information about grievances. When the Seattle Police Officers’ Guild sought information about a disciplinary grievance, the City refused the Guild’s request, citing, among other things, the fact that it believed that the materials were privileged. An administrative law judge (ALJ) for the Washington Public Employment Relations Commission ruled against the City, finding that the materials were not protected by any privilege.

The ALJ recommended a remedial order that, among other things, required the City to promptly provide any collective bargaining information that the Guild requested, post notices in the workplace regarding its compliance with the law, and to “develop a written protocol for the Police Department that sets forth the steps that the employer will take to promptly preserve e-mails and other documents that are the subject of Union requests for information.”

Though the City did not appeal the ALJ’s determination that it had committed an unfair labor practice by not disclosing the requested information, it did object to the ALJ’s requirement that it develop a policy with respect to the retention of e-mails. The City contended that there was no evidence demonstrating that it had a pattern of failing to provide information, and that absent such a pattern, PERC should decline to award such an extraordinary remedy.

PERC disagreed with the City, and upheld the ALJ’s decision. PERC found that the order requiring the City to develop a policy concerning e-mails was “specifically tailored to address the employer’s prohibited practice. The employer failed to properly respond to the Guild’s information request for over a year, and only on the eve of the administrative hearing before the ALJ did it provide the Union with some, but not all, of the requested information. With respect to the information not supplied, the employer, by its own admission, admitted that any e-mail that had been ‘deleted’ by the recipient is automatically purged from the computer system after 45 days and is no longer recoverable. As this case demonstrates, unless this employer has a procedure of some sort in place to preserve relevant e-mails, it will not be able to comply with information requests should one of its employees inadvertently (or advertently) delete that document.

“Given the fact that employers and exclusive bargaining representatives routinely communicate about labor relations matters on a daily basis through e-mail, the ALJ did not commit reversible error in directing this employer to develop a protocol to ensure that collective bargaining e-mails are preserved and not destroyed, accidentally or otherwise.”

City of Seattle, Decision 10249-A (Wash. PERC 2009).

This article appears in the November 2009 issue