City of Burbank (PERB 1988M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

BURBANK CITY EMPLOYEES ASSOCIATION,
Charging Party, Case No. LA-CE-326-M
Vv. PERB Decision No. 1988-M
CITY OF BURBANK, November 25, 2008
Respondent.

Appearances: Edward R. Purcell, Labor Consultant, for Burbank City Employees Association;
Carol A. Humiston, Senior Assistant City Attorney, for City of Burbank.

Before Neuwald, Chair; Rystrom and Dowdin Calvillo, Members.
DECISION

DOWDIN CALVILLO, Member: This case comes before the Public Employment
Relations Board (PERB or Board) on exceptions by the City of Burbank (City) to the proposed
decision of an administrative law judge (ALJ). The unfair practice charge filed by the Burbank
City Employees Association (Association) alleged that the City violated the Meyers-Milias-
Brown Act (MMBA)’ by failing to provide the Association with requested information
necessary and relevant to the Association’s representation of its member, City public works
employee Willard Moore (Moore), in a disciplinary arbitration. The ALJ found that the City
committed the charged violation.

The Board has reviewed the entire record in this case, including but not limited to, the

unfair practice charge, the complaint and answer, the hearing transcripts and exhibits, the

‘MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

ALJ's proposed decision, the City's exceptions and the Association's response thereto. Based
on this review, we affirm the violation found by the ALJ for the reasons discussed below.
BACKGROUND
Events Leading up to the Association's Information Request
On May 9, 2006, the City served Moore with a Notice of Proposed Three-Day
Suspension Without Pay. 	The City proposed to discipline Moore for his failure to comply with
the City's Public Works Department Attendance Standards Policy. 	Specifically, the notice
charged Moore with a violation of Article XIV, Section A, Subsection 2(A) and (S) of the
memorandum of understanding (MOU) between the City and the Association.2 In its
discussion of the facts underlying the charge, the notice referenced a 2002 proceeding before
the United States Department of Labor regarding Moore's use of leave under the Family and
Medical Leave Act (FMLA). Attached to the notice were 16 documents upon which the
charge was based. 	The City sent a copy of the notice to the Association's president.
On May 31, 2006, the City served Moore with a formal Notice of Three-Day
Suspension. The notice contained a finding that Moore did violate Article XIV, Section A,
Subsection 2(A) and (S) of the MOU. The discussion of the facts underlying the finding was
identical to that in the proposed notice. The notice also informed Moore that he had a right to
Subsection 2 states, in relevant part:
Suspension, demotion, or dismissal of an employee may be
accomplished for any one or more of the following reason[ s]:
(A) Violation of any official regulation or order or failure
to obey any proper direction made and given by a
superior, or failure to comply with any condition of
employment or to maintain any necessary qualification in
the course of municipal employment;
(S) Violation of administrative rules and regulations.
2

appeal the suspension pursuant to Article XIII
of
the MOU. Again, the City sent a copy
of
the
notice to the Association's president.
Article XIII
of
the MOU provides two separate grievance procedures. 	Section C
provides for advisory arbitration that may be initiated by the Association or an individual
employee. 	Section
Dis
available to an employee only "with the approval
of
the
[Association]." It provides for arbitration that "shall be binding upon the grievant, but only
advisory respective to the City, and subject to review by the City Manager." Section E
of
Article XIII states that disciplinary actions may only be appealed through the Article XIII
grievance procedures "and shall not be subject to the jurisdiction
of
the Civil Service Board."
On June 23, 2006, the Association's president sent the City a letter appealing Moore's
suspension pursuant to Article XIII, Section D. The letter requested that the matter be
scheduled for arbitration. 	Sometime thereafter, the Association retained Labor Consultant
Edward R. Purcell (Purcell) to represent Moore in the arbitration proceedings. On or about
August 18, Purcell received copies
of
the notices and supporting documents from the
Association.
The Association's Information Request
On September
1,
2006, Purcell sent a letter to Assistant City Attorney, Jina Oh (Oh),
who had been assigned to represent the City in Moore's arbitration. 	The letter informed Oh
that the Association had retained him to represent Moore in the disciplinary arbitration. 	It then
requested "the following documents and information concerning the various charges against
Mr. Moore:" 
1.	
Copies of all written requests made by the City to Mr. Moore
requesting medical certification, documentation, or verification of
any kind for sick leave hours used by Mr. Moore during the
course of his Burbank employment.
3

2. Pursuant to number 1 above, copies
of
all written information
provided to the City by Mr. Moore in response to its requests.
3. A list
of
all dates on which the City made verbal requests to
Mr. Moore for medical certification, documentation, or
verification
of
any kind for sick leave hours used by Mr. Moore
during the course
of
his Burbank employment.
4. Any information in the possession
of
the City or its managers
concerning verbal responses made by Mr. Moore in conjunction
with number 3 above.
5. Copies
of
all municipal law, rules or regulations maintained
by the City concerning its administration
of
or compliance with
the federal Family Medical Leave Act (FMLA).
6. A list
of
all BCEA employees granted sick leave without pay
by the City pursuant to Article VI,
Hof
the MOU for the past 2
years.
7. All records in the City's possession concerning Mr. Moore's
previous complaint to the U.S. Dept.
of
Labor concerning the
City's failure to afford him FMLA leave as referenced in point 3,
para[graph] 5
of
the May 9, 2006 disciplinary notice.
The letter asked the City to "transmit the requested information as soon as possible." It
also informed Oh that the Association president would be contacting her with six possible
arbitration hearing dates. 	On September 5, 2006, the parties agreed to hold the arbitration
hearing on December 7 and 8, 2006.
The City's Response
On September 5, 2006, Oh e-mailed eight City employees in the human resources and
public works departments. Her e-mail informed them
of
the dates for Moore's arbitration
hearing and asked each
of
them to attend a meeting to determine which
of
them had documents
and information responsive to the Association's information request.
On September 13, 2006, Oh and the eight e-mailed employees met to discuss the
information requested by the Association. It appears from the record that the participants were
4

able to identify where the information was located but none produced anything to Oh at the
meeting. 	Oh testified that over the following weeks she received information sporadically
from the meeting attendees.
Having received no response from the City, Purcell sent a letter to Oh on September 26,
2006 inquiring about the information he had requested on September 1. On October 2, Oh
responded by letter that the City was in the process of gathering the information and "you
should receive any further documentation by mid-October."
On October 26, 2006, Oh sent Purcell a letter stating:
This letter is in response to your request for documents dated
September 1, 2006. After due consideration it is the position of
the City that your client, Willard Moore, through the Burbank
City Employees Association (BCEA) has already been provided
with all of the documents pertaining to the arbitration scheduled
for December ih and gt\ 2006. The documents you have
requested are immaterial and overbroad and beyond the scope of
what is necessary for the arbitration. In addition, item number 6
is not only irrelevant to the issue at hand but is protected under
medical and general privacy rights of the employees in question.
The letter then listed each of the seven items of information requested in the
September 1, 2006 letter. 	Items one through four were labeled "Immaterial and overbroad"
with no further explanation. Item six was labeled "Immaterial, overbroad, protected under
medical and general privacy rights." Item seven was labeled simply "Immaterial." Attached to
the letter was the City's sick leave policy in response to item five.
The Association's Second Request and the City's Response
On November 3, 2006, Purcell sent a response to Oh's October 26 letter. In his letter
Purcell stated: "My intent here is to renew the Union's September 1 request for material
necessary for it to defend the charges against Mr. Moore." The letter then explained why the
Association believed each of the seven items of requested information was relevant to its
5

representation
of
Moore. With regard to item six, the request for information about employees
who had taken unpaid sick leave under Article VI, Section
Hof
the MOU, the letter asked the
City to provide the Association with "specific citations" to the "medical and general privacy"
rights asserted by the City as its reason for not producing the information. Additionally, the
letter stated the Association was "willing to receive such information in redacted form,
protecting the names
of
the employees in question."
Oh responded by letter on November 9, 2006. The letter stated that the only issue in
the Moore arbitration was "whether or not a three day suspension is appropriate discipline." It
then stated that the City had provided the Association with all
of
the documents pertaining to
this issue and therefore "your request for further documentation is immaterial, overbroad and
beyond the scope
of
what is necessary for this arbitration." The Association filed its unfair
practice charge with PERB on November 16.
On November 22, 2006, Purcell and Oh participated in a conference call with
Sara Adler (Adler), the arbitrator presiding over Moore's hearing. During the call, Purcell and
Oh agreed to limit the scope
of
information to be provided by the City to the two years prior to
the events underlying Moore's discipline. Adler then ordered the City to produce information
from the prior two years that was responsive to the Association's entire September 1 request.
By the first hearing date on December 8,3 the City had provided the Association with some
of
the responsive information. 	The remainder
of
the information was produced by the City's
witnesses during the course
of
the arbitration hearing. 	On December 26, the Association
amended its charge with PERB to include the facts outlined above.
3The hearing did not begin on December 7, 2006 as scheduled because the arbitrator
was ill.
6

ALJ' s Proposed Decision
The ALJ concluded that the City violated its duty to meet and confer in good faith by
failing to provide the Association with the information it requested in a timely manner or, in
the alternative, adequately justifying why it could not provide the information. Because the
Association had received all
of
the requested information by the end
of
the arbitration hearing,
the ALJ did not order the City to provide the information. Thus, the ALJ's remedy consisted
of
a cease and desist order and notice posting.
City's Exceptions
In its exceptions, the City claims it had no duty to provide the requested information
because: 	(1) MMBA section 3 505 does not apply to disciplinary arbitrations; and (2) the
discovery provisions
of
the California Arbitration Act (CAA)4 trump any duty to provide
information under MMBA. 	The City also asserts that the Association waived its right to the
requested information by not providing for arbitration discovery in the MOU. The City further
excepts on the ground the ALJ failed to make specific findings that the information requested
by the Association was "necessary and relevant" to Moore's disciplinary arbitration and was
not provided in a timely manner. Finally, the City argues that PERB should defer to the
arbitrator's ruling on the relevancy
of
the requested information.
Association's Response to Exceptions
The Association responds that the City's claims that it had no duty to provide the
requested information are meritless and that the ALJ found the requested information relevant
because the City failed to establish any recognized defense to its failure to provide the
information. 	The Association also takes issue with the City's interpretation of several PERB
decisions upon which the City relies in its exceptions.
4CAA is codified at Code of Civil Procedure section 1280 et seq.
7

DISCUSSION
1. 	Duty to Provide Information Relevant to Contractual Disciplinary Arbitration
It is a long-established principle of labor law that a recognized employee organization
"is entitled to all information that is necessary and relevant to discharging its duty to represent
unit employees." (Stockton Unified School District ( 1980) PERB Decision No. 143 (Stockton);
NLRB v. Acme Industrial Co. (1967) 385 U.S. 432, 435-436 [64 LRRM 2069] (Acme
Industrial)/ Absent a valid defense, an employer's refusal to provide such information upon
request is a per se violation of the employer's duty to meet and confer in good faith. 	(Stockton;
Curtiss-Wright Corp. v. NLRB (3d Cir. 1965) 347 F.2d 61 [59 LRRM 2433].) MMBA section
3505 requires public agencies and recognized employee organizations to "meet and confer in
good faith regarding wages, hours, and other terms and conditions of employment." Therefore, a
public agency employer's refusal to provide "necessary and relevant" information to a
recognized employee organization upon request violates MMBA section 3505. (Town of
Paradise (2007) PERB Decision No. 1906-M.)
The City does not dispute these fundamental principles. Nonetheless, it argues that the
duty to provide information does not apply to disciplinary arbitrations. After an exhaustive
recitation of the legislative history of Section 3505, the City concludes that the legislature did
not intend for the duty to extend beyond the meet and confer process. 	Thus, the City asserts,
because disciplinary arbitration is not a part of the meet and confer process but rather "an
adversarial proceeding" that does not contemplate the exchange of information, Section 3505
does not apply to such proceedings.
5When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act (NLRA) and California labor relations statutes
with parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608 [116
Cal.Rptr. 507].)
8

Though we have found no authority that supports the City's argument, the City
contends that in Los Angeles Unified School District (1994) PERB Decision No. 1061
(LAUSD), "PERB held that the right to receive information under the EERA does not extend
to a disciplinary arbitration proceeding." This contention misinterprets the case. The issue
before the Board in LAUSD was whether information requested by a union for the purpose
of
representing a member in a disciplinary hearing before the district personnel commission was
entitled to a presumption
of
relevance. The separate opinions by the three panel members
focused on the fact that the information was requested for use in a forum not created by the
parties' collective bargaining agreement (CBA). Nowhere in its decision did the Board address
the employer's duty to provide information for use in a contractual disciplinary forum. 	Thus,
because the Association requested information for the purpose
of
representing Moore in a
disciplinary arbitration proceeding created by the parties' MOU, LAUSD does not apply here.
While PERB has not explicitly addressed whether an employer has a duty to provide
information relevant to a contractual disciplinary arbitration, it has addressed the duty in the
context
of
a disciplinary grievance. In Hacienda La Puente Unified School District ( 1997)
PERB Decision No. 1184 (Hacienda La Puente), the Board held that an employer has a duty to
provide information relevant to a disciplinary grievance. 	The Board began its analysis by
observing:
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.' (Acme Industrial.) This includes information needed
to police and administer an existing CBA, including grievance
processing. (Chula Vista City School District (1990) PERB
Decision No. 834; Modesto City Schools and High School District
(1985) PERB Decision No. 479; Acme Industrial.)
9

The Board then found that the school district committed an unfair practice by refusing
to provide the union with a requested "letter/incident report" which may have served as the
basis for the reprimand grieved by the employee.
PERB also has not addressed whether the duty to provide information continues once
the grievance proceeds to arbitration. However, the National Labor Relations Board (NLRB)
has ruled that an employer has "an obligation to furnish information to the Union in order to
assist it in properly preparing for arbitration
if
the information requested was relevant to the
grievance scheduled for arbitration." (Montgomery Ward and Co. (1978) 234 NLRB
588,589
[98 LRRM 1022]; The Kroger Co. (1976) 226 NLRB
512,514
[93 LRRM 1315].)6
Of
particular significance to this case, the NLRB has held that an employer's refusal to provide
information relevant to a pending contractual disciplinary arbitration was an unfair labor
practice. (NLRB v. Pfizer, Inc. (7th Cir. 1985) 763 F.2d 887 [119 LRRM 2947].) Following
the above authority, we hold that MMBA section 3505 requires an employer to provide a
recognized employee organization with requested information that is relevant to a pending
contractual disciplinary arbitration.
As an alternative, the City argues that it had no duty to provide the requested
information because the Association's information requests did not "invoke" Section 3505 or
request to meet and confer. PERB has never required information requests to contain either
of
6In Chesapeake and Potomac Telephone Co. v. NLRB (2d Cir. 1982) 687 F.2d 633,
635-636 [111 LRRM 2165], the court explained the rationale for recognizing the duty to
provide information in the pre-arbitration hearing context:
Reasonable discovery
of
material relevant to a grievance prior to
an arbitration hearing enables a union to make an informed
evaluation of the merits of its claim and to withdraw the
arbitration demand or settle the grievance if the information
indicates that the grievance is less meritorious than it had initially
believed, thus eliminating delay and expense that might otherwise
be incurred.
10

these items in order to trigger the employer's duty to provide the requested information.
Accordingly, this argument is without merit.
a. 	California Arbitration Act Discovery Provisions versus Duty to Provide
Information under MMBA
In addition to its argument based on the MMBA itself, the City asserts a second ground
for finding that the MMBA' s duty to provide information does not apply in this case:
discovery in disciplinary arbitration proceedings is controlled by the provisions of the CAA,
not the MMBA. In support of this argument, the City notes that the California Supreme Court
has called the CAA "a comprehensive statutory scheme regulating private arbitration in this
state [by which] the Legislature has expressed a strong public policy in favor of arbitration as a
speedy and relatively inexpensive means of dispute resolution." (Moncharsh v. Reily & Blase
(1992) 3 Cal.4th 1, 9 [10 Cal.Rptr.2d 183] [internal quotation marks and citations omitted].)7
From this, the City concludes that PERB has no jurisdiction to determine whether the City
committed an unfair practice in this case.
The United States Supreme Court rejected a similar argument in Acme Industrial.
There, the employer refused to provide information relevant to pending grievances. (Id., at
pp. 434-435.) The employer argued, and the court of appeal agreed, that, in light of"national
labor policy favoring arbitration," the binding arbitration provision of the parties' CBA
divested the NLRB of jurisdiction to decide whether the employer's failure to provide
information constituted an unfair labor practice. (Id., at p. 435.) The Supreme Court found no
conflict between the policy favoring arbitration and the Board's exercise of jurisdiction over
7Also in support of this argument, the City states that "California Courts have
consistently applied the CAA to agreements to arbitrate in collective bargaining agreements."
The City then cites to cases where the court applied the CAA to confirm or vacate an
arbitration award. We agree that the CAA gives the courts the authority to confirm or vacate
arbitration awards that arise out of a CBA. However, this says nothing about the relationship
between the CAA's discovery provisions and the MMBA's duty to provide information.
11

the alleged unfair labor practice because "the assertion
of
jurisdiction by the Board in this case
in no way threatens the power which the parties have given the arbitrator to make binding
interpretations
of
the labor agreement." (Id., at
p.
437-438.) Indeed, the Court observed that
"[f]ar from intruding upon the preserve
of
the arbitrator, the Board's action was in aid
of
the
arbitral process" because it helps the union to "sift out unmeritorious claims" before they reach
arbitration. (Id., at p. 438.)
Similarly, we find no conflict between California's "strong public policy in favor
of
arbitration," as embodied in the CAA, and PERB's jurisdiction under MMBA to determine
whether a refusal to provide requested information relevant to a contractual disciplinary
arbitration constitutes an unfair practice. In fact, the two statutes work in tandem to make the
arbitration process more efficient for all parties by reducing the number
of
meritless claims
that reach arbitration. Moreover, because PERB's unfair practice inquiry is limited to whether
a party was entitled to particular information before the arbitration hearing, PERB will not be
intruding on the arbitrator's power to interpret the MOU or to rule on the relevance and
admissibility
of
evidence during the hearing. 	Therefore, we find that the CAA in no way
eliminates or limits a party's entitlement to relevant information under MMBA section 3505.
b. 	Waiver
of
Right to Information
In a corollary to its CAA argument, the City asserts the Association had no right to
information in Moore's disciplinary arbitration because the parties' MOU did not provide for
arbitration discovery. Code
of
Civil Procedure section 1283.05 sets forth the means for
obtaining discovery in arbitration proceedings. Under Code
of
Civil Procedure section
1283.l(b), parties may incorporate the discovery provisions of Section 1283.05 into an
arbitration agreement. Based on these code sections, the City contends "there is no right to
discovery unless the arbitration agreement provides for it." Thus, the City argues, because the
12

MOU did not provide for arbitration discovery, the Association had no right to the requested
information.
In essence, the City claims that the
MOU's
silence regarding arbitration discovery acts
as a waiver
of
the Association's statutory right to receive information relevant to contractual
disciplinary arbitrations. PERB rejected an identical argument in Hacienda La Puente:
In its first exception, the District apparently contends that,
because the CBA does not require the District to provide the
Association with information regarding grievance processing, the
Association has waived its right to such information.	
It
is well
established, however, that the Board will not infer a waiver
of
the
right to bargain from silence. (San Mateo County Community
College District (1985) PERB Decision No. 486; see also, Chula
Vista City School District (1990) PERB Decision No. 834 at pp.
50-52 [finding right to necessary and relevant information
implicit in duty to bargain].) Therefore, the CBA's silence
regarding the Association's right to information
is
not a waiver
of
that right.
Following Hacienda La Puente, we find that the MOU's silence regarding arbitration
discovery did not waive the Association's statutory right to information in contractual
arbitration proceedings. 8
At the PERB hearing, the City also attempted to establish that the Association had
waived its right to information by its conduct in past disciplinary arbitrations. In support
of
this theory, the City presented evidence about discovery in a 2005 disciplinary arbitration
between the City and the Association involving Moore and made an offer
of
proof that Senior
Assistant City Attorney Terry Stevenson would testify to the parties' discovery practice in
prior disciplinary arbitrations. The ALJ excluded this evidence because he found past practice
8
It
is worth noting that, even
if
the MOU did contain a discovery provision, the
provision in itself would not constitute a waiver absent evidence the parties agreed to the
provision in exchange for a waiver of the statutory right to information. (Modesto City Schools
and High School District (1985) PERB Decision No. 479 (Modesto).)
13

irrelevant to whether the City had breached its duty to provide information in the 2006 Moore
arbitration.
While the formal rules
of
evidence do not apply in a PERB hearing, "[i]mmaterial,
irrelevant, or unduly repetitious evidence may be excluded." (PERB Reg. 32176.)9 As a
matter
of
law, the Association's failure to exercise its statutory right to request information in
prior disciplinary arbitration proceedings does not constitute a waiver
of
that right "for all
times." (See San Jacinto Unified School District (1994) PERB Decision No. 1078 ["[A]
union's acquiescence in previous unilateral changes does not operate
as
a waiver
of
the right to
bargain for all times."].) Thus, because evidence
of
the parties' discovery practice in past
disciplinary arbitrations was not legally relevant in this matter, the ALJ did not err in excluding
it.
2. 	Failure to Provide Requested Information
PERB has long held that an exclusive representative is entitled to all information that is
necessary and relevant to the discharge
of
its duty
of
representation in negotiations, processing
of
grievances and administration
of
the contract. (Stockton; Modesto.) In Chula Vista City
School District (1990) PERB Decision No. 834 (Chula Vista), PERB adopted the United States
Supreme Court's ruling in Acme Industrial that an employer must provide requested
information for a grievance proceeding:
if
it likely would be relevant and useful to the union's
determination
of
the merits
of
the grievance and to their
fulfillment
of
the union's statutory representation duties.
(Id., at pp. 437-438.)
9PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq. 
14

a. 	Relevance of Information
The City excepts to the ALJ's failure to make separate and detailed findings that each
of the items in the Association's September 1, 2006 information request was relevant to
Moore's disciplinary arbitration. However, in concluding that the requested information was
relevant, the ALJ was not required to make such findings.
Information that is necessary for an exclusive representative "to decide whether to
proceed with a grievance or arbitration" on behalf of a bargaining unit member is presumed
relevant. (Ralphs Grocery Co. (2008) 352 NLRB No. 18, *29 [183 LRRM 1356] (Ralphs).)
The exclusive representative need not explain the relevance of the requested information unless
the employer rebuts the presumption of relevance. 	(Id., at p. *31.) When the presumption has
been rebutted, "[t]he determination of whether requested information is relevant is made under
a liberal discovery-type standard." (Chula Vista, internal quotations omitted.) Under this
standard, information may be relevant even though the exclusive representative is able to
present the grievance without it. (Newark Unified School District (1991) PERB Decision
No. 864.) However, information is relevant only if it can assist the exclusive representative in
determining the merits of the particular grievance for which it is requested. 	(Ventura County
Community College District (1999) PERB Decision No. 1340 (Ventura County CCD).)
All of the information requested by the Association pertained to the merits of Moore's
grievance. 	Items one through four and seven requested information about the City's responses
to Moore's requests for sick or FMLA leave. 	Item six asked for information about use of
unpaid sick leave by members of Moore's bargaining unit pursuant to the MOU. Item five, the
City's laws, rules and regulations pertaining to FMLA leave, were applicable to bargaining
unit members including Moore. Accordingly, all of the items requested in the September 1,
15

2006 letter were presumptively relevant to the Association's representation
of
Moore in his
disciplinary arbitration.
b. 	City's Defenses to Production
of
Information
"Presumptively relevant information must be furnished on request to employees'
collective-bargaining representatives unless the employer establishes legitimate affirmative
defenses to the production
of
the information." (Ralphs, at
p.
*29.) The employer may be
excused from providing the requested information if: (
1)
the information is "plainly
irrelevant" (Stockton); (2) the information does not exist or producing it
is
unduly burdensome
(Chula Vista); or (3) disclosure
of
the information would compromise a recognized right
of
privacy (Modesto). The employer bears the burden
of
proving these defenses. (Bakersfield
City School District (1998) PERB Decision No. 1262; Modesto.)
In its October 26, 2006 response to the Association's information request, the City
stated that the requested information was "immaterial and overbroad and beyond the scope
of
what is necessary for the arbitration." The letter asserted that all but item five were
"immaterial" and/or "overbroad." It further asserted that the information sought regarding
granting
of
unpaid sick leave to other bargaining unit members was "protected under medical
and general privacy rights."
These cursory justifications do not establish an affirmative defense to production
of
the
requested information. First, the City has failed to show that the requested information was
"plainly irrelevant." In Ventura County CCD, the exclusive representative requested a list
of
faculty members who had been interviewed as part of a review of the college's basketball
program. However, the grievance that triggered the request challenged a teacher's nonrenewal
based on the district's tenure review process. The Board found the requested list was not
relevant because the exclusive representative failed to show "a need for the list in order to
16

determine the merits
of
that employee grievance." Here, as discussed above, all
of
the
information requested by the Association was necessary and relevant to determining the merits
of
Moore's grievance challenging his discipline for violating the public works department's
attendance policy. Thus, the requested information was not "plainly irrelevant" to Moore's
grievance.
Second, the City's statement that the requests were "overbroad" could be construed as
indicating it would be unduly burdensome for the City to produce the information. 	This
appears to have been the City's intent given that during the November 22, 2006, conference
call with the arbitrator, the parties agreed to limit production
of
infonnation to the prior two
years. However, the City's letter did not say how or why production would be burdensome or
suggest a way to narrow the request to alleviate the problem. Moreover, Oh testified she
believed that no information responsive to items three and four existed, yet her letters to
Purcell did not mention this.
Third, the City asserted employees' privacy rights as justification for not providing
evidence
of
bargaining unit members' use
of
unpaid sick leave. However, the City did not
provide any explanation as to what specific privacy interests would be compromised by
providing the requested information. In its November 3, 2006 letter, the Association asked the
City to provide the specific legal authority upon which its objection rested. 	The Association
also stated that it would accept the information "in redacted form, protecting the names
of
the
employees in question." The City did not provide the requested authority nor did it respond to
the Association's redaction proposal. Thus, the City failed to establish that employees' privacy
rights would be compromised by producing the requested information.
Furthermore, the City's duty to provide the information did not end with its October 26,
2006 response. Once the employer responds to the union's request, it has no obligation to
17

produce further information unless the union reasserts or clarifies its information request.
(Oakland Unified School District (1983) PERB Decision No. 367.) On November 3, 2006, the
Association by letter reasserted its request and explained the reasons it was seeking the
information. As a result, the City was obligated to respond to the Association's request. Its
November 9, 2006 letter, which merely reiterated the City's position that the information
requested was "immaterial, overbroad and beyond the scope of what is necessary for this
arbitration," did not satisfy its duty to provide the information or adequately justify why it
could not do so. (See Azusa Unified School District (1983) PERB Decision No. 374 ["The
District's belief that the information was unnecessary or the Association's reasons for wanting it
impractical does not constitute adequate justification."].)
C. 	Timeliness of City's Responses
In addition to being substantively inadequate, the City's responses to the Association's
information requests were untimely. "Unreasonable delay in providing requested information
is tantamount to a failure to provide the information at all. ... The fact that an employer
ultimately furnishes the information does not excuse an unreasonable delay." (Chula Vista.)
A delay may be found reasonable when the delay was justified by the circumstances and the
union was not prejudiced by the delay. 	(Union Carbide Corp. (1985) 275 NLRB 197,201 [119
LRRM 1077].)
Regarding the City's justification for the delay, Oh testified that she did not respond to
the Association's request for seven weeks because she was: 	(1) "receiving information in
piecemeal form" from various people; (2) "occupied with other matters of [her] employment;"
and (3) "forming [her] legal opinions regarding this case and how to go about handling it." 10
10Oh sent a letter to Purcell on October 2, 2006 stating that the City was in the process
of gathering the information and that he should have it by mid-October. However, the letter
18

This does not indicate diligence on the part
of
the City. 	Specifically, the record does not show
why it took the City seven weeks to formulate its October 26, 2006 response to the Association
which simply provided one attachment and then indicated why the City could not respond to
six
of
the seven requests for information. Further, even after the arbitrator ordered the City to
produce the information, it produced only some
of
the information prior to the arbitration
hearing. The Association did not receive the remainder
of
the information to which it was
entitled until December
8,
the day
of
the arbitration hearing, and even then only after the
information was produced by the City's own witnesses at the hearing. Finally, the City's delay
in producing the information certainly hampered the Association's ability to adequately
prepare Moore's defense for the hearing. Accordingly, the City's delay in producing the
information was unjustified and prejudicial to the Association.
For the reasons above, the City violated MMBA section 3505 by failing to promptly
provide the Association with requested information relevant and necessary to its representation
of
Moore in the disciplinary arbitration.
3. 	Deferral to Arbitration Award
Finally, the City argues that PERB should defer to the arbitrator's ruling on the
relevance
of
the information requested by the Association. Deferral to arbitration is an
affirmative defense that must be raised by the City in its answer or it is waived. 	(East Side
Union High School District (2004) PERB Decision No. 1713.) The City did not raise a
deferral defense in its answer nor did it attempt to amend its answer at hearing to include the
defense. Thus, the City waived the deferral defense. As a result, even though the City raised
the defense in its post-hearing brief, the ALJ could not consider it in his proposed decision.
did not address the substance of the information request and therefore cannot be considered a
response to it.
19

(Sonoma County Office
of
Education (1997) PERB Decision No. 1225.) For the same reason,
the Board cannot consider the deferral defense on appeal.
ORDER
Upon the foregoing findings
of
fact and conclusions
of
law and the entire record in this
matter, it is found that the City
of
Burbank (City) violated the Meyers-Milias-Brown Act
(MMBA), Government Code section 3505, and Public Employment Relations Board (PERB)
Regulation 32603(c) (Cal. Code Regs., tit.
8,
sec. 31001 et seq.), by failing to provide the
Burbank City Employees Association (Association) with requested information necessary and
relevant to the Association's representation
of
its member, City Public Works employee
Willard Moore, in a disciplinary arbitration.
Pursuant to Government Code sections 3509(a) and 3541.5(c), it is hereby ORDERED
that the City, its governing council, and its representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Failing to provide necessary and relevant information requested by the
Association for the purpose
of
representing bargaining unit members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF MMBA:
1.	
Within ten (10) workdays following the date this Decision is no longer
subject to appeal, post at all work locations where notices to employees are customarily posted,
copies
of
the Notice attached hereto. The Notice must be signed by an authorized agent
of
the
City, indicating the City will comply with the terms
of
this Order. Such posting shall be
maintained for a period
of
thirty (30) consecutive workdays. Reasonable steps shall be taken
to ensure that the Notice is not reduced in size, altered, defaced or covered with any other
material.
20

2. 	Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel
of
PERB, or the General Counsel's designee. The City shall
provide reports, in writing, as directed by the General Counsel or his/her designee. All reports
regarding compliance with this Order shall be concurrently served on the Association.
Chair Neuwald and Member Rystrom joined in this Decision.
21

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. LA-CE-326-M, Burbank City Employees
Association v. City
of
Burbank, in which all parties had the right to participate, it has been
found that the City
of
Burbank (City) violated the Meyers-Milias-Brown Act, Government
Code section 3505, and Public Employment Relations Board Regulation 32603(
c)
(Cal. Code
of
Regs., tit.
8,
sec. 31001 et seq.), by failing to provide the Burbank City Employees
Association (Association) with requested information necessary and relevant to the
Association's representation
of
its member, City Public Works employee Willard Moore, in a
disciplinary arbitration.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.	
Failing to provide necessary and relevant information requested by the
Association for the purpose
of
representing bargaining unit members.
Dated: 	CITY OF BURBANK
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.