September 2017 Newsletter – School Districts

Public Employers, the Union and New Hires

A recently signed law has two requirements affecting public employers, including educators. Specifically, Government Code Sections 3555 through 3559 which require an employer to give a union’s exclusive representative access to the employer’s new hire orientations. Also, the employer must provide to the union certain job-related, as well as personal contact information, of all the new hires in the bargaining unit, even those who are not union members.

Existing law grants specified public employees the right to form, join, and participate in the activities of employee organizations and requires public agency employers, among other things, to meet and confer with representatives of recognized employee organizations and exclusive representatives.

­Under the new law, an employer is required to provide the employees’ exclusive representative mandatory access to its new employee orientations. The law arose because the Legislature saw the need for the exclusive representative to be able to communicate with the public employees it represents. The law specifies that the employer, except under certain circumstances, is to give the exclusive representative no less than 10 days’ notice of an orientation However, the structure, time, and manner of the exclusive representative’s access are to be determined through “mutual agreement between the employer and the exclusive representative.” The specifics of this agreement will likely differ from employer-to-employer.

If an agreement between the parties cannot be reached the law calls for the matter to be subject to “compulsory interest arbitration.” This is where the employer and an exclusive representative submit their dispute to a third-party arbitrator who is authorized to approve either party’s proposal in its entirety, to approve a proposal using both the employer’s and exclusive representative’s final proposals, or to modify the proposals by the parties. Legal advice should be obtained if you have any questions regarding any potential agreement with an exclusive representative on this issue.

The law’s other requirement is that the public employer, with some exceptions, is to provide to the exclusive representative the job related and personal contact information for all newly hired employees, even those who do not join the union. This information includes providing the union with the name, job title, department, work location, work, home, and personal cellular telephone numbers, personal email addresses on file with the employer, and home address of any newly hired employee within 30 days of the date of hire or by the first pay period of the month following hire. Additionally, it requires that at least every 120 days, unless the relevant collective bargaining agreement states differently, that the union be provided a list of all employees in the bargaining unit that contains all this information.

This latter requirement raises the question of whether, by providing this personal information, the right to privacy for those new hires who are not union members is breached. Therefore, the information provided to the union has to be in compliance with employee privacy requirements which preclude the dissemination or misuse of sensitive and confidential information. For example, employees largely have a legally protected privacy interest in their home addresses and telephone numbers. Accordingly, home contact information is generally considered private.

However, the reasonableness of a privacy expectation can depend on the surrounding context. This context can include the customs, practices, and physical settings surrounding particular activities, and these may create or inhibit reasonable expectations of privacy.

Consequently, the determination of whether providing the personal information of an employee who is not a union member is proper involves applying a balancing test between the rights of the nonmembers, and the duty of the union to represent its members. Here, the balancing test’s conclusion is that the union’s interest in obtaining residential contact information for all the employees it represents is both legitimate and important. Accordingly, as an exclusive bargaining agent a duty of fair representation is owed to all the employees in the bargaining unit. This includes those employees who are not union members. Thus, providing the union the non-members’ personal information is appropriate.

For more information regarding this article, please contact Gerald Jagorda at gjagorda@ericksonlaw.com. For questions in general regarding this newsletter, please contact Kristina Limon at klimon@ericksonlaw.com.

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This publication was prepared solely for information purposes and should not be construed to be legal advice. If you would like further information on this matter, please contact our office.

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