August 2016 Newsletter – School Districts
PERB Clarifies Employer’s Obligation to Respond to Union Requests for Information in a Timely Manner
K-12 schools and community colleges engaged in collective bargaining must provide relevant information to the union upon request without an unreasonable delay. In Petaluma City Elementary School District (2016) PERB Decision No. 248, PERB provided guidance as to when an employer’s slow response may lead to an unfair practice charge.
By way of background, in collective bargaining negotiations, the union is entitled to all information that is necessary and relevant to discharge its representational duty. This means that the union is entitled to information it needs “to understand and intelligently discuss the issues raised in bargaining.” Once relevant information has been requested, the employer must either supply the information or timely and adequately explain its reasons for not complying with the request. Any failure or any unreasonable delay to provide such information is a per se violation of the duty to negotiate in good faith and may support an independent allegation of surface bargaining.
In Petaluma, the union requested information pertaining to the cost of step and column increases for certificated employees. Without explanation, the district did not provide the information until six weeks later and the union filed an unfair practice charge alleging bad faith bargaining. PERB held that under the circumstances of the case, the union stated a prima facie case for failure to provide information. Crucial to its decision was that at the time, the district did not state that the requested information was unavailable or that its production would be unduly burdensome, costly, or time-consuming. Rather, the district defended its action by attempting to argue that the union was not impacted or prejudiced by this six week delay, noting that no meetings occurred during the six weeks it took for the district to respond.
PERB rejected this argument and noted that the union does not need to show that it was harmed or prejudiced by a delay in providing information. Instead, PERB found that it is the district’s responsibility to affirmatively and diligently communicate the reasons for its refusal or delay in providing such information. Accordingly, PERB held that in the absence of any contemporaneous explanation by the district for its delay in providing relevant and necessary information, the only issue is whether the six weeks constituted unreasonable delay under the circumstances.
Petaluma should emphasize to employers the importance to respond to information requests in a timely fashion. When a request seems burdensome or time consuming but requires a response, employers should not wait until the response is ready before communicating with the union. Instead, employers should indicate in writing at its earliest opportunity that it intends to respond in good faith, but that the gathering and production of documents and information may take some time. If possible, the employer should also give an estimated timeline for its expected response and production. This communication will avoid allegations of bad faith bargaining and may contribute to a better relationship with the union.
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