This blog post was authored by Adrianna E. Guzman, Brian P. Walter and Shardé C. Thomas
Today the California Supreme Court published a decision, County of Los Angeles v. Los Angeles County Employee Relations Commission, that requires a public employer to disclose home contact information for all bargaining unit members to the representative for the bargaining unit.
The Service Employees International Union, Local 721 (“Union”), is the exclusive representative for several bargaining units of County employees. Approximately 14,500 County employees were not members of the Union. The Union was required to annually send a Hudson notice to County employees in their bargaining units, informing the unit employees of their membership options, applicable fees, and reasons they were required to pay the fees. Included in the Union’s Hudson notice was a solicitation letter to join the Union or forms to decline to join. The forms requested names, home addresses, and home telephone numbers of County employees who decline to join the Union. The Union had names and telephone numbers for less than half of the 14,500 non-members. In the past, the Union prepared the Hudson notice, the County prepared the mailing labels, and the County Employee Relations Commission (“Commission”) mailed the Hudson notices, along with the Union’s solicitation letter and forms.
During negotiations in 2006, the Union proposed a change to the MOU Hudson notice obligation that would require the County to furnish the Union with names and home addresses of employees covered by the agency shop provisions each year. The Union wanted the personal information of the non-members to communicate about union activities and events, but also as a recruitment tool. The County maintained that the information was irrelevant to any collective bargaining issue and disclosure would impede on non-members’ constitutional privacy rights. The County proposed they continue their current Hudson mailing method or negotiate a procedure that would authorize the release of the information.
The Union rejected both of the County’s options, withdrew its proposal to modify the Hudson notice provision, and filed an unfair practice charge against the County. The unfair practice charge was heard by the Commission. Relying on decisions of the Public Employment Relations Board (“PERB”) and the National Labor Relations Board (“NLRB”), the Commission ordered production of the personal information of non-member County employees. The County filed a petition for writ of mandate seeking relief from the Commission’s decision on the grounds that disclosure of non-members’ personal information violated their privacy rights under California law.
The trial court agreed that the non-members had a right to privacy in their home contact information, but denied the County’s petition, finding that the privacy interests of non-members were outweighed by the public policy interests favoring collective bargaining. The trial court determined that the Union needed the information to fulfill its duties of representation and the disclosure of the information did not violate non-member’s privacy rights under California law.
Court of Appeals
The County appealed and the Court of Appeals reversed. The Court of Appeals held that non-member County employees were entitled to notice and an opportunity to object to disclosure of their home contact information to the Union before that information was disclosed. The Court of Appeals determined that employees who provide their home contact information as a condition of employment have a reasonable expectation that that information will remain confidential except as required to be disseminated to governmental agencies and benefit providers. The Court of Appeals fashioned a notice and opt-out procedure that the parties were required to follow upon remand that would not deprive the Union of its right to contact information for non-members and would also allow the County to inform non-members whose privacy interests would be affected.
California Supreme Court
The California Supreme Court granted the Union’s petition for review. The Supreme Court agreed with the Court of Appeals that the Union is entitled to the home contact information of non-members, but reversed the portion of the decision imposing specific procedural requirements for disclosure of that information upon the parties.
The Supreme Court first considered whether the Union was entitled to obtain the personal information (home addresses and telephone numbers) of all represented employees, including non-member employees. Unlike the Court of Appeals, the Supreme Court found NLRB and PERB decisions to be persuasive authority in interpreting the Meyers-Milias-Brown Act (“MMBA”). Both NLRB and PERB decisions hold that names and addresses of public employees are presumptively relevant to collective bargaining and therefore subject to disclosure to unions. The Court said that NLRB and PERB decisions are persuasive guidance and the Court should follow PERB’s interpretations unless they are clearly erroneous.
The Court held that the failure to provide relevant information about non-member employees violated the County’s obligation under the MMBA to bargain in good faith. The Court explained that contact information is presumptively relevant to bargaining, so it must be disclosed unless the employer can show the information is not relevant or provide adequate reasons why the information cannot be provided.
Although a public employer is obligated under the MMBA to disclose the home contact information to the exclusive representative, the question of whether privacy rights under Article 1, Section 1 of the California Constitution prohibit disclosure was a question of first impression for the Court. The Court applied a balancing test from Hill v. National Collegiate Athletic Ass’n (1994) 7 Cal.4th 1 to determine whether the non-member’s right to privacy outweighed the Union’s interest in disclosure of contact information. Under Hill, a court must determine whether there is: (1) a legally protected privacy interest, (2) a reasonable expectation of privacy, and (3) an invasion of privacy that is serious in nature and scope. The Court determined that there was a protected privacy interest in non-member employees’ home contact information. The Court also determined that the non-member employees possessed a reasonable expectation of privacy in that information, as the County had never previously disclosed home contact information for non-members to the Union and many non-members had specifically declined to provide that information to the Union. However, the Court also found that the non-members’ expectation of privacy was diminished because disclosure of home contact information was the “overwhelming norm” in labor relations. Finally, the Court determined that disclosure of the home contact information would be a serious invasion of privacy.
After determining that disclosure of the home contact information would invade the privacy of non-member employees, the Court was required under the Hill case to balance the non-members’ privacy interest in their home contact information against the Union’s interest in obtaining the information. The Court held that the Union’s interest in obtaining the home contact information outweighed the non-members’ privacy interest. The Court noted that the Union has a duty of fair representation to all employees in the bargaining unit, including non-members. That duty would be frustrated if the Union did not have access to the home contact information for non-members. Additionally, the Court noted that the obligation to send a yearly Hudson notice to employees falls on the Union, not the employer, even though the County and the Commission had historically provided that notice.
Finally, the Court noted that the privacy invasion is relatively mild, and the parties could negotiate or the Commission could adopt specific procedures to allow non-members to opt-out of providing their home contact information. The Court also held that the Court of Appeals exceeded its authority by ordering the parties to adopt specific notice and opt-out procedures instead of letting the parties develop those procedures on their own.
This decision means that a public employer who fails to provide relevant home contact information upon request will violate its obligation under the MMBA to bargain in good faith. If an employer wishes to avoid disclosing the personal information of bargaining unit employees who are not members to the exclusive representative, it may negotiate opt-out procedures with the exclusive representative.