Union’s Right to Information Does Not Extend to Extra-Contractual Forums

Carmichael Recreation & Park District (PERB Dec. No. 1953-M) (Issued on 4/17/08)

It is well-established under PERB precedent that a union is entitled to information "necessary and relevant" to represent employees in its role as the exclusive representative. There has been some confusion over the years as to whether the union’s right to information extends to extra-contractual forums. For example, many unions will agree to represent employees in disciplinary matters before personnel boards and/or civil service commissions. These forums are typically non-contractual and the employee’s right to a hearing is not controlled by the union.

When a union does voluntarily assume representation of an employee in such a forum, does it have the same right to information as if it was representing the employee in a contractual forum (e.g. a grievance arbitration)? In San Bernardino City Unified School District (1998) PERB Dec. No. 1270 (San Bernardino), PERB answered this question in the negative. In San Bernardino, PERB held that a union is not entitled to witness lists and other documents requested as part of an extra-contractual dismissal hearing.

The holding in San Bernardino, however, has always been somewhat in doubt because it contained no discussion of a directly contrary prior board decision, Los Angeles Unified School District (1994) PERB Dec. No. 1061 (Los Angeles). Los Angeles involved an almost identical issue – whether the union’s right to information extended to an extra-contractual disciplinary hearing before the District Personnel Board. There, the Board issued three separate decisions. The lead opinion held that the union’s right to information did not extend to extra-contractual disciplinary hearings. The concurring opinion held that it did, but found no violation as the employer had allowed the union to view the requested materials. The dissent would have found a right to information and a violation. Although the Board in Los Angeles dismissed the complaint, it was clear that 2 of the 3 Board members believed that the union’s right to information extended to extra-contractual forums.

In this most recent case, Carmichael Recreation & Park District, the Board adopted the ALJ’s proposed decision holding that the union’s right to information did not extend to its representation of an employee in a Skelly hearing, which was extra-contractual. The Board based its holding on San Bernardino. Interestingly, although the Board did mention Los Angeles, it did so only in passing in a footnote. Even more interesting is that the footnote on Los Angeles merely noted that the Board had dismissed a similar complaint. There was no mention that a majority of the Board in Los Angeles had actually reached a holding contrary to the Board’s subsequent decision in San Bernardino.

In any event, the Board in Carmichael Recreation & Park District clearly was aware of both the San Bernardino and Los Angeles decisions. Although the Board did not expressly overturn Los Angeles, it seems fairly clear that to the extent Los Angeles holds that a union’s right to information extends to extra-contractual forums, it is no longer good law.