PERB Orders Employer to Negotiate with Union Over Redactions to Requested Investigation Report

May 21, 2020 by Christopher Hammer

PERB recently confirmed that public employers may not unilaterally make unlimited redactions to disciplinary investigatory reports produced in response to union requests. Rather, PERB ruled, employers have a duty to meet and confer with the union over redactions to an investigation report regarding employee misconduct. (PERB Dec. No. 2698m) Under the MMBA and other statutes that PERB administers, the union is entitled to all information that is necessary and relevant to its right to represent bargaining unit employees regarding mandatory subjects of bargaining, including employee discipline. The employer’s duty to provide information exists even where third party privacy rights are concerned, because “a union’s unique representational functions gives it a right to arguably private information.”

In this case, the city employer redacted several pages of its investigation report without providing an explanation to the union for the redactions. When the union pushed back, the employer un-redacted several pages and explained that the remaining redactions concerned third party statements that were irrelevant to the misconduct. PERB reasoned that when the union seeks information that implicates “significant privacy rights of third parties,” the employer may not simply refuse to provide the information but must instead “meet and negotiate in good faith to accommodate all legitimate competing interests.” Accordingly, PERB concluded that the employer was obligated to meet and confer with the union over the redactions in the investigation report, and that its failure to do so violated the MMBA.

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