Opinion
F077764
06-24-2020
STATE DEPARTMENT OF STATE HOSPITALS, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent; CALIFORNIA ASSOCIATION OF PSYCHIATRIC TECHNICIANS, Real Party in Interest.
Frolan R. Aguiling, Linda A. Mayhew, Paul M. Starkey, Stanley Marubayashi and Tawni O. Parr for Petitioner. J. Felix De La Torre, Wendi L. Ross and Sara T. Kang for Respondent. No appearance for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (PERB Dec. No. 2568-S, Case No. SA-CE-2056-S) ORIGINAL PROCEEDING; petition for writ of mandate. Frolan R. Aguiling, Linda A. Mayhew, Paul M. Starkey, Stanley Marubayashi and Tawni O. Parr for Petitioner. J. Felix De La Torre, Wendi L. Ross and Sara T. Kang for Respondent. No appearance for Real Party in Interest.
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The Public Employment Relations Board (PERB) issued a ruling finding the State Department of State Hospitals (Department) committed an unfair labor practice by failing to provide certain information to the California Association of Psychiatric Technicians (Association) in response to the Association's request for information, which was made in connection with a formal corrective action taken against a Department employee. (State of California (Department of State Hospitals) (California Association of Psychiatric Technicians) (2018) PERB Dec. No. 2568-S [43 PERC ¶ 3] (Psychiatric Technicians).) The Department filed a petition for a writ of mandate with this court, seeking to overturn that decision and the order requiring it to provide to the Association the information it had not already provided in response to the request. We conclude the Department has not established any error in PERB's decision and order. Accordingly, the writ petition is denied.
FACTUAL AND PROCEDURAL BACKGROUND
The Department issued a formal corrective action to one of its employees, Veronica Regalado, a psychiatric technician at Coalinga State Hospital. A formal corrective action is part of the Department's progressive discipline system and is less serious than an adverse action. Regalado wished to challenge the formal corrective action and sought the assistance of her employee representative, the Association.
Initially, Regalado reported to the Association that she had been administratively moved because one patient became angry and upset with her; he filed a complaint against her and influenced 13 other patients to sign and submit the same complaint. The complaints included accusations of patient abuse. In February 2015, an Association representative was present when Regalado was interviewed by the Department's Office of Special Investigations. On April 30, 2015, Regalado received the formal corrective action. Under the collective bargaining agreement between the Department and the Association, Regalado had 14 days to begin the process of challenging the formal corrective action by grievance or complaint. The Association attempted to investigate to determine whether grounds existed to challenge it. The Association sent the Department a request for information, asking for a response by May 12, 2015. It included item No. 3, a list of all the bargaining unit members who had been issued formal corrective actions for similar incidents in the last three years.
On May 12, 2015, Donna Feehan, discipline officer for Coalinga State Hospital, responded to the Association's request for information because labor relations analyst, Bill Thomson, was out of the office for a couple of days. The response stated Feehan had reviewed the request and would not be providing the requested items "at this time." She anticipated Thomson would provide a response to the request when he returned. Feehan's response also asserted that, because Regalado had received a formal corrective action, rather than an adverse action, she was not entitled to the documents requested. From her training, Feehan understood that, when the Department served an adverse action on an employee, the employee was entitled to all the supporting documents it relied on in taking that action. When served with a counseling memorandum or a formal corrective action, however, the employee was not entitled to the supporting documents.
In her response to the information request, Feehan also suggested the Association could contact the Office of Special Investigations about reviewing its investigation materials. The Association did so, but on May 14, 2015, the Office of Special Investigations refused the request because the documents requested were "only provided in investigations where the subject is facing an adverse action."
On May 20, 2015, the Association sent an informal grievance to the Department. It asserted the refusal of its information request violated the collective bargaining agreement and interfered with the Association's ability to investigate the matter and represent its member. The Department's May 21, 2015 response stated Regalado's formal corrective action did not rise to the level of an adverse action, so she had no right to appeal or obtain the documents used against her.
On May 22, 2015, Thomson, the labor relations analyst, responded to the informal grievance and the original information request. Regarding item No. 3, he stated: "The Discipline Office does not maintain the historical data requested. These documents would be contained in the affected employee's Supervisor and/or Official Personnel File (for the retention period specified). These documents are considered confidential Personnel information and may not be released without the concerned employee's authorization."
In August 2015, the Department served on Regalado an adverse action, with all the supporting documents attached. The adverse action was based in part on events surrounding the formal corrective action. The supporting documents included the documents responsive to items Nos. 1, 2, 4, 5, and 6 of the Association's May 7, 2015 information request.
On November 3, 2015, the Association filed an unfair practice charge with PERB, asserting the Department violated the Ralph C. Dills Act (the Act; Gov. Code, §§ 3512-3524), specifically section 3519, subdivisions (a), (b), and (c). The Association alleged the Department violated the Act by refusing to provide information in response to its request for information in connection with Regalado's formal corrective action. It alleged "[t]he information was necessary for [the Association] to determine whether the formal corrective action was taken for legitimate reasons and whether a grievance would be necessary," as well as whether contract violations or unfair practices were occurring at the hospital. PERB's general counsel issued a complaint against the Department. The Department denied the allegations. The matter was heard by an administrative law judge, who rendered a proposed decision finding the Department violated the Act by failing to timely provide the requested information, which prejudiced the Association in its representation of Regalado. He found, however, that the information included in the items, other than item No. 3, had already been provided to the Association in connection with the subsequent adverse action. As to item No. 3 of the request, the administrative law judge did not require the requested list to be produced because he concluded an employer is not required to create a document that does not exist at the time of the request.
All further statutory references are to the Government Code unless otherwise indicated.
The Department filed exceptions to the proposed decision. PERB considered the exceptions and affirmed the proposed decision, but made a change to the order. PERB conceded an employer need not comply with an information request when the information does not exist. Nevertheless, it noted that, if the information does exist in some form, the fact that the employer may have to compile it from various sources does not excuse production, unless the employer can prove compiling it would be unduly burdensome. PERB declined to consider whether compiling the information (which the Department conceded existed in some form) into a list would be unduly burdensome, because the objection that it would be burdensome had not been timely raised so the parties could negotiate to reduce or eliminate the burden. Accordingly, PERB changed the proposed remedy and ordered the Department, upon request, to provide the Association with the list requested in item No. 3.
The Department petitioned this court for a writ of mandate to overturn the portion of PERB's decision addressing item No. 3 of the Association's request for information. The Department contends PERB's finding that it violated the Act by refusing to provide the list was clearly erroneous, and the remedy imposed was an abuse of discretion, because they were contrary to two established rules: (1) employers are not required to provide information or documents that do not exist at the time of the request; and (2) employers are not required to provide information in a form more organized than that in which it is maintained in the employer's records. The Department also contends the remedy imposed was punitive and did not further the purposes of the Act. The Department asks that we issue a writ of mandate, setting aside PERB's decision to the extent it requires the creation of a list, and direct PERB to issue an unspecified new order consistent with a ruling in favor of the Department.
DISCUSSION
I. Standard of Review
PERB has jurisdiction to investigate and adjudicate charges of unfair labor practices brought by state employees or their employee representatives. (§§ 3513, subd. (h), 3514.5, 3541.3.) A party aggrieved by a final decision or order of PERB in an unfair practice case may petition the Court of Appeal for a writ of extraordinary relief from that decision or order. (§ 3520, subds. (b), (c).)
"PERB's legal findings are entitled to deferential review." (Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898, 904, italics omitted.) "Courts generally defer to PERB's construction of labor law provisions within its jurisdiction. [Citations.] '... PERB is "one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect." [Citation.]' [Citation.] We follow PERB's interpretation unless it is clearly erroneous." (County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 922 (County of Los Angeles).)
"The findings of [PERB] with respect to questions of fact, including ultimate facts, if supported by substantial evidence on the record considered as a whole, shall be conclusive." (§ 3520, subd. (c).)
PERB's remedial powers are broad. (Mt. San Antonio Community College Dist. v. Public Employment Relations Bd. (1989) 210 Cal.App.3d 178, 189.) It is authorized "to issue a decision and order directing an offending party to cease and desist from the unfair practice and to take such affirmative action ... as will effectuate the policies of this chapter." (§ 3514.5, subd. (c).) PERB may also investigate unfair practice charges, take any action and make any determinations about the charges it deems necessary to effectuate the policies of the Act, and take any other action it deems necessary to discharge its powers and duties and otherwise effectuate the purposes of the Act. (§§ 3513, subd. (h), 3541.3, subds. (i), (n).) Its choice of remedies is reviewed for abuse of discretion. (Oakland Unified School Dist. v. Public Employment Relations Bd. (1981) 120 Cal.App.3d 1007, 1014-1015.)
II. Request for Information
"One aspect of the duty to bargain 'collectively in good faith with labor organizations' [citation] requires the employer to make a reasonable and diligent effort to comply with the union's request for relevant information." (Cardinal Distributing Co. v. Agricultural Labor Relations Bd. (1984) 159 Cal.App.3d 758, 762; accord, County of Los Angeles, supra, 56 Cal.4th at pp. 922-923.) The employer is obligated "to provide necessary and relevant information needed by the union for the proper performance of its representational obligations. [Citations.] [¶] The employer's duty to furnish information, like its duty to bargain, 'extends beyond the period of contract negotiations and applies to labor-management relations during the term of an agreement.' [Citation.] This includes information needed to police and administer an existing [collective bargaining agreement], including grievance processing." (Hacienda La Puente Unified School District (1997) PERB Dec. No. 1184, p. 22 [21 PERC ¶ 28053, p. 22].) An employer's breach of the duty to provide requested information constitutes a refusal to bargain in good faith. (County of Los Angeles, at p. 923.)
"The exclusive representative is entitled to all information that is necessary and relevant to discharge its representational duty. [Citations.] PERB uses a liberal, discovery-type standard, similar to that used by the courts, to determine the relevance of an information request. [Citations.] The requested information need not itself be admissible or dispositive of the issues in dispute. Rather, it is considered relevant if reasonably calculated to lead to the discovery of such information. [Citations.] [¶] Information pertaining to unit employees' wages, hours, or working conditions is 'so intrinsic to the core of the employer-employee relationship that it is considered presumptively relevant and must be disclosed unless the employer can establish that the information is plainly irrelevant or can provide adequate reasons why it cannot furnish the information.' [Citations.] Thus, the representative need not justify its request for such information, unless the employer first rebuts the presumption of relevance." (Petaluma City Elementary School District/Joint Union High School District (2016) PERB Dec. No. 2485, pp. 17-18 [41 PERC ¶ 23, pp. 17-18] (Petaluma City).)
The administrative law judge determined the information the Association requested was relevant and necessary to assess the merits of the formal corrective action against Regalado, in order to determine whether a complaint or grievance should be filed on her behalf. The Department did not except to the finding that the information requested was relevant and necessary, and does not challenge that finding here. Consequently, for our purposes, it is undisputed that the information requested in item No. 3 was relevant to the Association's representation of Regalado and to its decision whether to file a grievance or complaint on her behalf to challenge the formal corrective action.
"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." (Petaluma City, supra, PERB Dec. No. 2485 at p. 19 [41 PERC ¶ 23, p. 19].) The Department contends PERB has two established rules that excuse its failure to timely comply with item No. 3 of the Association's information request: (1) an employer is not required to create a new document to respond to an information request, when the requested document does not exist; and (2) an employer is not required to produce requested information in a manner more organized than that in which it maintains the information in its records. As to item No. 3 of the request for information, the Department asserts PERB's finding that it violated its obligation to provide information is contrary to these established rules. The Department argues it had no obligation to provide a list that did not exist, or to produce information about other employees who received formal corrective actions in the form of a list, when the information was not maintained in list form in its records.
We conclude these rules do not sweep as broadly as the Department contends, and PERB did not misapply, ignore, or override them in its decision.
A. Employer is not required to produce information that does not exist
An employer may defend its failure to provide information with justifiable circumstances. For example, an employer need not comply with an information request when the requested information does not exist. (State of California (Departments of Personnel Administration and Transportation) (1997) PERB Dec. No. 1227-S, p. 13 [22 PERC ¶ 29007, p. 13] (Personnel and Transportation).) A violation of the obligation to provide relevant information "will not be found where there is no convincing evidence that the requested information existed at the time of the request, since an employer cannot be forced to turn over what it did not possess or what did not exist at the time of the request." (Id. at p. 10.) "Although an employer need not comply with an information request if the requested information does not exist or is otherwise unavailable, our cases are clear that it must nonetheless affirmatively and diligently communicate the reason(s) for its refusal or delay in providing such information." (Petaluma City, supra, PERB Dec. No. 2485 at p. 22 [41 PERC ¶ 23, p. 22].)
Item No. 3 of the Association's information request asked for a "List of all [bargaining unit] 18 members that have been issued [formal corrective actions] for similar incidents in the past 3 years." The Department's initial response to the Association's information request did not assert that the information requested in item No. 3 did not exist. The Department refused to comply with the entire request based on its assertion that an employee who received a formal corrective action, rather than an adverse action, was not entitled to the information requested. The subsequent May 22, 2015 response also did not assert that the information sought in item No. 3 did not exist. Rather, while it stated that the discipline office did not maintain this data, it conceded the information existed in the employees' supervisor files or official personnel files.
The findings of PERB and the administrative law judge indicate the Department did not affirmatively and diligently communicate to the Association that the information requested in item No. 3 would not be provided on the ground it did not exist or on some other ground that constituted a valid defense to disclosure. The administrative law judge found "[t]he deadline for filing a complaint or grievance was 14 days after the formal corrective action was issued or May 14, 2016." Prior to that date, the Department did not provide any responsive information, but asserted the Association was not entitled to any information because Regalado was subject only to a formal corrective action, and not an adverse action. PERB also noted the timeframe for filing a complaint, and observed that, according to the testimony of the Association representative, no grievance or complaint was filed on behalf of Regalado because, without the requested information, the Association was unable to evaluate potential defenses to the action.
The Department now contends that, because a "list" of the pertinent employees did not exist at the time of the Association's request, it was not required to provide the information sought in item No. 3; therefore the failure to provide the information did not violate its duty to respond to the request. The administrative law judge found that, "[a]s to request number three, the [Department] shall not provide the list of the bargaining unit members, as an employer is not required to create a document which does not exist at the time of the request." PERB disagreed with this conclusion. It stated: "As [the Department] correctly notes, an employer need not comply with an information request if the requested information does not exist. [Citation.] But when the requested information does exist in some form, the fact that the employer may have to compile it from various sources does not excuse the employer from producing it unless the employer can prove doing so would be unduly burdensome." (Psychiatric Technicians, supra, PERB Dec. No. 2568-S at p. 15 [43 PERC ¶ 3, p. 15].) We conclude PERB's statement of the rule more accurately reflects case precedent.
The administrative law judge cited two cases in support of his conclusion: County of Solano (2014) PERB Decision No. 2402-M [39 PERC ¶ 78] (Solano) and Los Angeles Superior Court (2010) PERB Decision No. 2112-I [34 PERC ¶ 94] (Los Angeles Superior Court). Solano did not address creation of a new document from information that existed at the time of the request. In Solano, during a bargaining session, the employee representative requested that the county provide it with the target savings, i.e., the total dollar amount of savings, the county hoped to achieve in its negotiations with the bargaining unit. (Solano, supra, PERB Dec. No. 2402-M at p. 4 [39 PERC ¶ 78, p. 4].) The county responded that it did not have that information; its goal was across-the-board concessions from all bargaining units. (Ibid.) PERB found the information was relevant, but the administrative law judge had determined the county never calculated its target savings, and "[a]n employer need not provide requested information that does not exist." (Id. at p. 12.) Consequently, the county had not refused to provide relevant and necessary information. (Ibid.)
In Solano, the county's goal was not to obtain target savings from a specific bargaining unit, and it had not calculated any such target amount, so the county did not possess information responsive to the request. Thus, the holding of Solano was that an employer need not provide requested information when the information does not exist. It did not hold that the employer was excused from providing existing information because a single document containing that information did not exist, or because PERB could not order the county to create a new document that compiled existing information.
In Los Angeles Superior Court, PERB reviewed the partial dismissal of the unfair practice charge brought by the court interpreters' union against the superior court. (Los Angeles Superior Court, supra, PERB Dec. No. 2112-I at p. 1 [34 PERC ¶ 94, p. 1].) PERB affirmed the dismissal of allegations that the court failed to respond to the union's request for information. (Id. at pp. 2, 12.) The union alleged it requested "information related to the basis for the elimination of regular assignments." The court did not provide information, but stated it "had no 'written documents, reports, assignment data or analysis of interpreter case loads' " relevant to the request. (Id. at p. 12) The union asserted the court was engaged in a comprehensive study to determine staffing needs, but presented no facts establishing that the study was complete or that the court was "in fact in possession of any 'written documents, reports, assignment data or analysis of interpreter case loads.' " (Ibid.) Thus, PERB concluded that the union had not made the prima facie showing of an unfair practice that was required to avoid dismissal, because it had not shown that the requested information existed. (See id. at pp. 6-7, 12.)
In Regents of the University of California (Davis) (2010) PERB Decision No. 2101-H [34 PERC ¶ 55] (Davis), a case cited by PERB, the union sent several information requests to the university concerning classification and reclassification of clerical positions. Regarding one request, the university concluded the only way to gather the information was through a search of the institutional memory of the various departments at each campus. (Id. at pp. 12-13.) The university denied the request on grounds not related to the difficulty of collecting the information. (Id. at p. 13.) Regarding a subsequent request—for a list of positions reclassified out of the clerical bargaining unit when the position became vacant—the university asserted it did not "maintain system wide position control (i.e., a system of recording and tracking filled and vacant positions." (Id. at p. 14.) Because it did not have a central database that tracked the information, the university refused to provide it. (Ibid.) The union replied that the university could gather the information by inquiry, but the university still did not provide it. (Id. at pp. 14-15.) PERB found the information requested was relevant and, absent a valid defense, the university was obligated to provide it. (Id. at p. 33.)
The university's primary justification for withholding the information sought was its claim it had no database in place to collect the information, and collecting it would require searching institutional memory through individuals, which would be an enormous task and an undue burden on the university's resources. (Davis, supra, PERB Dec. No. 2101-H at p. 33 [34 PERC ¶ 55, p. 33].) PERB concluded the university had failed to carry its burden of proving that providing the information would have been unduly burdensome. (Id. at pp. 33-34.) "The fact that the information may not have been in the form that would accommodate the interests of both the [u]niversity and [the union] does not automatically render [the union's] request unduly burdensome." (Ibid.) The university's "lack of a database with position control to track vacant positions is insufficient, standing alone, to justify its denials of the requests." (Id. at p. 34.) There was evidence the university did have a database that could have generated a list of the requested information. Further, the university representative admitted he took no steps to determine whether the individual campuses had the ability to provide the requested information. (Ibid.) PERB concluded the university "failed to establish the request was sufficiently burdensome to justify its refusal to provide the requested information." (Ibid.)
Thus, where the information the union sought existed, but not in the form of a list as requested by the union, the employer was not automatically excused from producing the information on that basis. It would have been excused only if it had proven collection and production of the information was unduly burdensome.
In Chula Vista City School District (1990) PERB Decision No. 834 [14 PERC ¶ 21162] (Chula Vista), the union requested information about the district's leave policy, asking for a description of two types of leave and when each type could or could not be used. (Id. at p. 45.) The district did not respond. The union made subsequent requests, stating that, if the district refused to provide the specific information requested, it wanted to review all the employee requests for those types of leave for a stated time period. (Id. at p. 48.) When the district asserted the leave requests were privileged, the union proposed redacting the names of the employees. The district still refused to produce the information. (Ibid.)
PERB stated: "Whether the particular information sought must be provided in the manner requested depends upon the facts of the case. [Citation.] Once a demand for relevant information is made, the information must be made available in a manner not so burdensome or time-consuming as to impede the process of bargaining, although not necessarily in the form requested by the union. However, the employer may not simply present the information in any form which it considers adequate but which is nonetheless unsuitable for informed consideration by the union." (Chula Vista, supra, PERB Dec. No. 834 at pp. 51-52 [14 PERC ¶ 21162, pp. 51-52].) "Since the [d]istrict had this material in its possession, it was obliged to grant the [union] access to its records, or make the information available in a useable form." (Id. at p. 55.) PERB added that, in light of the district's claim of privilege, the district "could have accommodated the [union's] need by deleting identifying information from the [leave] request forms before giving them to the [union] or supplying the information in a form that would have made it equally useful to the [union]." (Id. at pp. 55-56.)
The rule excusing production of information that does not exist does not apply to item No. 3 of the Association's information request. The administrative law judge found only that the list did not exist; he did not find that the substantive information sought—the identities of the bargaining unit members who had been issued formal corrective actions for similar incidents in the last three years—did not exist. That information admittedly existed in the Department's files. As Chula Vista indicated, the Association was not entitled to receive the information in the particular form sought, i.e., a list. Nonetheless, it was entitled to the information, which existed and undisputedly was necessary and relevant to the Association's representation of its member. The Department was obligated to provide the information, by compiling it into the list requested, by granting access to the files containing the information, or by making the information available in some other useable form. It failed to promptly either make the information available or advise the Association of its objection to providing the information in a list form, which would have allowed the parties to meet and confer concerning the appropriate form in which the information should be provided.
PERB did not misapply the rule that an employer is not required to produce information that does not exist.
B. Employer not required to produce information if production is unduly burdensome
"An employer need not comply with an information request that is unduly burdensome ...." (Personnel and Transportation, supra, PERB Dec. No. 1227-S at p. 7 [22 PERC ¶ 29007, p. 7].) "However, the employer must affirmatively assert its concerns and then bargain in good faith to ameliorate those concerns." (Los Angeles Superior Court, supra, PERB Dec. No. 2112-I at p. 11 [34 PERC ¶ 94, p. 11].) "Even where a request is arguably ambiguous or overly broad, the employer may not simply ignore it. It must seek clarification and/or comply to the extent the request seeks relevant information." (Petaluma City, supra, PERB Dec. No. 2485 at p. 19 [41 PERC ¶ 23, p. 19].)
At the administrative hearing, the Department attempted to show it would have been burdensome to provide information identifying the bargaining unit members who had been issued formal corrective actions for similar incidents in the last three years. It presented testimony that compiling the information requested would have required printing a list of current employees who were members of bargaining unit 18, and a list of former members who separated from the Department in the last three years. The Department would then have had to manually review the official personnel file of each such member, look to see if the file contained a formal corrective action, then read the formal corrective action to determine whether it was based on an incident similar to that involved in Regalado's case. The testimony indicated there were 700 to 750 bargaining unit 18 employees at Coalinga State Hospital.
PERB declined to consider whether the Department had established that compilation of the requested material would be unduly burdensome. The Department "did not assert the potential burden of creating the list as a defense until the hearing," and "an assertion that an information request is unduly burdensome must be timely raised so the parties can negotiate over eliminating or reducing the employer's burden." (Psychiatric Technicians, supra, PERB Dec. No. 2568-S at p. 16 [43 PERC ¶ 3, p. 16].) The Department does not dispute PERB's factual findings that it failed to promptly raise the defense that provision of the requested list would be unduly burdensome, and that it did not raise the defense until the hearing. The Department also does not challenge the implicit finding that, by failing to timely raise the defense, the Department denied the Association the opportunity to negotiate in an attempt to ameliorate the claimed burden within the time in which the Association or Regalado was required to file a complaint or grievance to challenge the formal corrective action.
The Department also complains that the information request did not simply ask it to compile and provide a list of existing information, it required the Department to assess the formal corrective actions found in its employees' personnel files, make a judgment about whether they were similar to the formal corrective action in Regalado's case, and create a new document containing a list of those employees with similar formal corrective actions. It contends it was not obligated to create such a new document.
The general rule is that "[o]nce 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." (Petaluma City, supra, PERB Dec. No. 2485 at p. 19 [41 PERC ¶ 23, p. 19].) If an employer has a reason that excuses compliance with a request for information, it must communicate that reason in its response to the information request. It cannot simply ignore the request. (Id. at p. 22.) When a request is arguably ambiguous or overly broad, the employer must seek clarification or comply to the extent possible. (Id. at p. 19.)
The Department did not timely raise a defense that the requested list did not exist, or that creating one would involve exercising its own judgment as to which formal corrective actions were issued "for similar incidents" to Regalado's. It also did not assert the request was ambiguous because the meaning of the term "for similar incidents" was unclear. It did not raise any of these claims in its May 12 or May 22, 2015 response to the Association's information request.
If the Department had expressed these concerns about item No. 3 of the request in response to the request for information, the parties could have promptly met and conferred to attempt to resolve them, by clarifying any ambiguities, defining the terms used, or agreeing to production of the information in a form other than the requested list. Because the Department did not timely raise and adequately explain these issues, and cite them as reasons for its failure to comply with the Association's request, it violated its obligation to provide information and forfeited its objections. (Petaluma City, supra, PERB Dec. No 2485 at p. 23 [41 PERC ¶ 23, p. 23]; Personnel and Transportation, supra, PERB Dec. No. 1227-S at p. 13 & fn. 11 [22 PERC ¶ 29007, p. 13 & fn. 11]; Conditioned Air Systems, Inc. (2014) 360 NLRB 789, 791.)
The Department has not established that PERB abused its discretion or acted contrary to established precedent by finding the Department committed an unfair practice when it failed to timely provide the information requested in item No. 3 of the Association's information request. The Department also has not shown PERB erred by rejecting any belated claims of burden or ambiguity.
C. Employer not required to produce information in a manner more organized than its records
The Department represents that PERB concluded its "failure to create a list upon request" violated the Act; it argues that conclusion "contradicts PERB and [National Labor Relations Board] precedent holding that employers need not furnish requested information in a manner more organized than the employer maintains its own records." The Department seems to argue PERB erred by failing to follow the established rule.
Because California labor relations acts, such as the Ralph C. Dills Act (Gov. Code, § 3512 et seq.), the Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq.), and the Agricultural Labor Relations Act (Lab. Code § 1140 et seq.) were patterned after the federal National Labor Relations Act (NLRA; 29 U.S.C. § 151 et seq.), California courts seeking guidance for interpreting these state laws have consulted cases decided by the National Labor Relations Board (NLRB), interpreting parallel provisions of the NLRA. (International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 268.)
PERB upheld the administrative law judge's conclusion that the Department violated the Act by failing to provide all of the information requested by the Association in its information request. PERB rejected the administrative law judge's conclusion that, because a list of all the bargaining unit members who had been issued formal corrective actions for similar incidents in the last three years did not exist, the Department was excused from providing any information in its possession in response to item No. 3 of the request. PERB stated: "As [the Department] correctly notes, an employer need not comply with an information request if the requested information does not exist. [Citation.] But when the requested information does exist in some form, the fact that the employer may have to compile it from various sources does not excuse the employer from producing it unless the employer can prove doing so would be unduly burdensome." (Psychiatric Technicians, supra, PERB Dec. No. 2568-S at p. 15 [43 PERC ¶ 3, p. 15].) PERB accurately stated the law.
"[T]he employer need not furnish information in a form more organized than its own records." (Personnel and Transportation, supra, PERB Dec. No. 1227-S at p. 7 [22 PERC ¶ 29007, p. 7].) The union "is not entitled to demand receipt of the information in a particular form." (Los Rios Community College District (1988) PERB Dec. No. 670, p. 10 [12 PERC ¶ 19083, p. 10].) The employer, however, is required to respond promptly to the union's request for information and must either provide the information it has in its possession in some useable form or raise a valid defense to production of the information. (Petaluma City, supra, PERB Dec. No. 2485 at p. 19 [41 PERC ¶ 23, p. 19]; Chula Vista, supra, PERB Dec. No. 834 at pp. 52, 55 [14 PERC ¶ 21162, pp. 52, 55].) The Department failed to comply with this obligation.
In Stockton Unified School District (1980) PERB Decision No. 143 [4 PERC ¶ 11189], the union made a request for health benefit information during contract negotiations. (Id. at pp. 5, 12.) The district responded that the information did not exist in the form requested and advised the union to obtain it from the insurer. (Id. at pp. 5-6.) The union was unable to obtain the information from the insurer. When it renewed its request to the district, the district reasserted the information did not exist in the form requested (information about claims and costs incurred by bargaining unit employees), and it would be unduly burdensome for the district to compile it by extracting the requested information from the data it had received from the insurer (information pertaining to all employees covered by the health benefit plan). (Id. at pp. 6, 16.)
PERB stated: "The general rule excuses the employer from providing otherwise relevant information if compliance with such requests would be unduly burdensome. The burden of proving this defense lies with the employer. [Citation.] Once a request for relevant information is made, 'the employer either must supply information or adequately set forth the reasons why it is unable to comply.' " (Stockton Unified School District, supra, PERB Dec. No. 143 at p. 15 [4 PERC ¶ 11189, p. 15].) It cited federal cases involving the NLRB for the proposition that, when the union requests information specific to its members, the employer cannot flatly refuse to break down the information it possesses (which pertains to all of its employees) and adjust it to suit the union's needs by extracting the information applicable to the union members. (Id. at p. 16.) Because the district merely asserted that extraction of the information would be burdensome, but failed to present evidence to prove it, PERB rejected that claim. (Ibid.) The district did not establish its defense, so a violation of the duty to provide information was established. (Id. at pp. 18-19.)
Similarly, in Davis, PERB rejected the university's claim it could not produce the information requested by the union because it did not exist in the form requested (a list of reclassified positions) and it would be unduly burdensome to collect the information and put it in that form. (Davis, supra, PERB Dec. No. 2101-H at p. 34 [34 PERC ¶ 55, p. 34].) PERB concluded the fact the information was not in the form sought did not automatically render the information request unduly burdensome, and without proof that the request was unduly burdensome, the university was not excused from complying with it. (Id. at pp. 33-34.)
In Chula Vista, PERB concluded: "Whether the particular information sought must be provided in the manner requested depends upon the facts of the case. [Citation.] Once a demand for relevant information is made, the information must be made available in a manner not so burdensome or time-consuming as to impede the process of bargaining, although not necessarily in the form requested by the union." (Chula Vista, supra, PERB Dec. No. 834 at pp. 51-52 [14 PERC ¶ 21162, pp. 51-52].) The employer could not simply refuse to provide employee leave records based on an assertion the records were confidential. It could have accommodated the union's need for the information by redacting the employees' identifying information before providing the records to the union, or by supplying the information in another form that would have made it equally useful to the union. (Id. at pp. 55-56.) The fact that the information might not have been conveniently available in a form that would accommodate the interests of both parties did not automatically render the union's request unduly burdensome or relieve the district of its duty to provide it. (Id. at p. 56.)
The rule the Department relies on—that an employer need not furnish information in a form more organized than its own records—is a rule addressing the format in which information must be provided, not a rule excusing production. Production of information is excused only if the employer establishes some recognized defense, such as that the information does not exist at all or is not in the employer's possession, or that providing the information would be unduly burdensome. The Department attempted to show that collecting the requested information would be unduly burdensome, but PERB determined it did not raise that defense until the hearing, and at that point it was untimely. PERB concluded the Department's "failure to timely raise a burden of production claim deprived [the Association] of the ability to negotiate over how the information might be provided in a less burdensome manner within the short timeframe the Union had to determine its course of action with regard to challenging Regalado's formal corrective action." (Psychiatric Technicians, supra, PERB Dec. No. 2568-S at p. 16 [43 PERC ¶ 3, p. 16].) PERB's refusal to consider the untimely claim of undue burden was consistent with the established rule that, "[o]nce 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." (Petaluma City, supra, PERB Dec. No. 2485 at p. 19 [41 PERC ¶ 23, p. 19].)
The Department has not established that PERB failed to follow established precedent in making its ruling in this case.
III. Remedy Ordered
"The initial determination as to whether the charges of unfair practices are justified, and, if so, what remedy is necessary to effectuate the purposes of [the Act], shall be a matter within the exclusive jurisdiction of [PERB]." (§ 3514.5.) PERB is authorized "to issue a decision and order directing an offending party to cease and desist from the unfair practice and to take such affirmative action ... as will effectuate the policies of" the Act. (§ 3514.5, subd. (c).) On the review of PERB's decision by writ petition, the appellate court has jurisdiction "to make and enter a decree enforcing, modifying, or setting aside the order of [PERB]." (§ 3520, subd. (c).)
In discussing the Agricultural Labor Relations Board (ALRB), which is granted similarly broad discretion in fashioning a remedy for an unfair labor practice, the California Supreme Court has stated:
The ALRB is authorized to issue "an order requiring such person to cease and desist from such unfair labor practice, to take affirmative action, ... and to provide such other relief as will effectuate the policies of this part." (Lab. Code, § 1160.3.) --------
"Where the [ALRB] relies on its 'specialized knowledge' and 'expertise,' its decision 'is vested with a presumption of validity.' [Citation.] That presumption has even more force when courts review the [ALRB]'s exercise of its remedial powers, which 'are necessarily broad.' [Citation.] ' "Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the [ALRB]'s discretion and must guard against the dangers of sliding unconsciously from the narrow confines of law into the more spacious domains of policy." ' ...
"In light of the Legislature's clear intent to confer broad remedial powers on the [ALRB], the [ALRB]'s orders imposing remedies are only ' "subject to limited judicial review." ' [Citation.] Thus, 'the [ALRB]'s remedial order "should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can be fairly said to effectuate the policies of the Act." ' " (Tri-Fanucchi Farms v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1161, 1168-1169 (Tri-Fanucchi Farms).)
When the employer refuses to provide information, the appropriate remedy includes a cease-and-desist order and an order to provide the information upon the union's request. (Davis, supra, PERB Dec. No. 2101-H at p. 37 [34 PERC ¶ 55, p. 37].) The Department concedes it was appropriate for PERB to order it to cease and desist from refusing to provide information in response to the Association's request, but contends it was an abuse of PERB's discretion to order it to provide the information requested, i.e., a list of bargaining unit members who had been issued similar formal corrective actions. The Department asserts again that it cannot be required to create a list in response to a request for information, that to do so would be unduly burdensome, and that doing so requires the Department to determine which formal corrective actions are similar to Regalado's.
As previously discussed, case law establishes an employer may be obligated to compile information in its possession into useable form before providing it to the union, when compilation is not unduly burdensome. The Department asserts the order requiring it to compile information from its personnel files into a list is unduly burdensome. It argues as if its claim of burden was established before PERB, and therefore imposing a remedy that requires it to undertake that burden was an abuse of PERB's discretion. PERB, however, made no finding that compiling the requested information would be unduly burdensome to the Department. Instead, it found the Department failed to timely raise the issue of burden; the Department did not except to that finding. PERB declined to consider the belated claim that providing the requested list would be unduly burdensome. Consequently, the Department never established that it would be unduly burdensome to compile the requested information into a list and provide it to the Association, and we cannot make that assumption in derogation of PERB's decision and order.
The Department asserts for the first time in its reply brief that it should be allowed to comply with the information request by some means other than creating a new list, such as "by providing access to the personnel files of other employees, or by producing corrective action memos for [the Association] to inspect and make its own determination about whether they are 'similar' to the one [the Association] was investigating." We note that the Department never suggested to PERB that, if it was required to provide information in response to item No. 3, it should be permitted to make the required disclosure in some other form. It simply insisted that, because a list was requested, and the information did not exist in list form, it was not required to provide any information in response to item No. 3 of the information request and did not commit an unfair practice by refusing to do so.
The remedy for an unfair labor practice is within the broad discretion of PERB. (§ 3514.5, subd. (c); see Tri-Fanucchi Farms, supra, 3 Cal.5th at p. 1168.) Our review of its remedy is limited (Tri-Fanucchi Farms, at p. 1168) and we cannot substitute our discretion for that of PERB (Gurewitz v. Kinder (1979) 96 Cal.App.3d 460, 467). PERB has broad discretion to order an employer to provide information requested by the union after the employer refuses to do so. That discretion would include determining in what form the information should be provided, when the employer asserts it would be unduly burdensome to provide the information in the form in which the union requested it. If the Department wished to request a remedy it felt was less burdensome than simply complying with the information request as it was made, it should have addressed that issue in its argument to PERB.
PERB's chosen remedy should stand unless the Department has shown it is " ' "a patent attempt to achieve ends other than those which can be fairly said to effectuate the policies of the Act." ' " (Tri-Fanucchi Farms, supra, 3 Cal.5th at p. 1169.) The purpose of the Act is "to promote full communication between the state and its employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment between the state and public employee organizations." (§ 3512.) Consistent with that purpose, "[i]t is well settled under PERB and NLRB case law that an exclusive representative is entitled to information sufficient to enable it to understand and intelligently discharge its duty to represent bargaining unit members." (Chula Vista, supra, PERB Dec. No. 834 at p. 50 [14 PERC ¶ 21162, p. 50].) Accordingly, the employer is obligated to provide information to the union if it is likely to be relevant and useful to the union in determining the merits of a grievance and in fulfilling the union's statutory representation duties. (Id. at p. 51; accord, City of Burbank (2008) PERB Dec. No. 1988-M, p. 15 [33 PERC ¶ 11, p. 15].)
The Department argues that PERB has not shown how requiring it to create a list containing the requested information would serve the purposes of the Act. In this proceeding, however, the Department bears the burden of establishing error in PERB's order. The Department has not shown that requiring it to comply with its obligation to provide relevant information requested by the union does not serve the purposes of the Act. If an employer declines to supply relevant information on the ground it would be unduly burdensome to do so, the employer must timely raise this objection with the union, then substantiate its defense. (Conditioned Air Systems, Inc., supra, 360 NLRB at p. 791.) The reason for requiring a prompt response raising an objection or defense to the request is to permit the union to modify or clarify its request, or to permit the parties to meet and confer in an effort to ameliorate the burden of production. A remedy that requires production enforces the employer's obligation. Since the Department did not establish any defense to provision of the information, and did not ask PERB to allow it to provide the information in some other form, we do not believe PERB's order requiring the Department to provide the information as requested constitutes an abuse of its broad discretion.
The Department has not established any error in the remedy imposed.
DISPOSITION
The petition for a writ of mandate is denied. The stay of State of California (Department of State Hospitals) (California Association of Psychiatric Technicians) (2018) PERB Decision No. 2568-S [43 PERC ¶ 3] is vacated upon finality of this opinion. PERB is entitled to its costs in this proceeding.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
MEEHAN, J.