Contra Costa Community College District (PERB 2652E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED FACULTY OF CONTRA COSTA
COMMUNITY COLLEGE DISTRICT,
Charging Party,
v.
CONTRA COSTA COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case Nos. SF-CE-3208-E
SF-CE-3212-E
PERB Decision No. 2652
June 26, 2019
Appearances: Weinberg, Roger & Rosenfeld by Stewart E. Weinberg, Attorney, for United
Faculty of Contra Costa Community College District; Atkinson, Andelson, Loya, Ruud &
Romo by Marleen L. Sacks, Attorney, for Contra Costa Community College District.
Before Banks, Shiners, and Krantz, Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB or Board) on cross-exceptions filed by Contra Costa Community College District
(District) and United Faculty of Contra Costa Community College District (United Faculty) to
a proposed decision of an administrative law judge (ALJ).1 The ALJ found that the District
violated the Educational Employment Relations Act (EERA)2 when it refused to provide
United Faculty with copies of written discrimination complaints against two faculty members
that United Faculty exclusively represented, in advance of representing them at investigatory
1 PERB consolidated Case No. SF-CE-3208-E and Case No. SF-CE-3212-E for
purposes of the underlying hearing and decision.
2 EERA is codified at Government Code section 3540 et seq. Unless otherwise
specified, all statutory references are to the Government Code.

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interviews. As part of this proposed decision, the ALJ determined that the District failed to
establish a countervailing privacy interest outweighing United Faculty’s right to obtain the
complaints.
In its exceptions, the District claims, among other arguments, that the information
contained in the complaints may have been “relevant,” but was not “necessary” to United
Faculty’s representation of its members, and that the complainants’ privacy rights outweighed
the union’s right to information. We reject these arguments for the reasons discussed herein.
However, we nonetheless reverse the proposed decision. By providing a union with the right
to obtain a copy of the complaint prior to an investigatory interview, rather than reasonable
notice of the alleged misconduct, the proposed decision disturbs our precedent’s careful
balance between employer, union, and employee rights prior to and during an investigatory
interview. As discussed below, a union has a right to reasonable notice of the alleged
wrongdoing in advance of an initial investigatory interview, but the union does not obtain the
right to an underlying written complaint until after the initial investigatory interview.3
FINDINGS OF FACT
I. 	The First Discrimination Complaint
In November 2016, a faculty member requested assistance from United Faculty,
explaining that the District had retained an attorney, Georgelle Cuevas (Cuevas), to investigate
a student complaint against her, and that the District was requiring her to participate in an
investigatory interview with Cuevas. United Faculty agreed to assist. To help prepare for the
interview, United Faculty President Donna Wapner (Wapner) requested that the District
provide a copy of the student complaint. After the District denied this request, United Faculty
3 United Faculty excepts solely on the basis of a minor clerical mistake in the proposed
decision. This exception is moot in light of our decision to reverse the proposed decision.
2

Executive Director Jeffrey Michels (Michels) followed up with an e-mail that included a legal
justification for the request. Marleen Sacks (Sacks), legal counsel for the District, responded that
the District had a policy of not honoring such requests. One of Sacks’ primary points was that
disclosure of the complaint prior to the interview would compromise the integrity of the
investigation, because “by providing a copy of an actual complaint to the accused employee, in
advance of an interview, the employee has an opportunity to review the allegations in detail and
compose rehearsed (and possibly untrue or misleading) responses to potential questions.” In
addition to protecting the integrity of the investigation, Sacks stated that the decision to deny
the request for information was grounded in “the need to protect the privacy of the complainant
[and] the need to protect the student from retaliation.”
Prior to the interview, Wapner surmised it would likely pertain to a student complaint
that the faculty member allegedly used racially insensitive language in presenting class material,
though Wapner was not certain that she was correct in her assumption.
II. 	The Second Discrimination Complaint
Also in November 2016, Michels learned of a separate discrimination complaint against
another faculty member, who similarly had a forthcoming interview with Cuevas and asked
Michels to represent her. Again, United Faculty requested a copy of the complaint. The District
denied this request, too. Michels and the faculty member were aware that the complaint arose
from an encounter with a student at a workshop, in which the faculty member ultimately asked
law enforcement officers to remove the student. According to the faculty member, the student
arrived 45 minutes late for the workshop, took offense when the faculty member asked the
student a question, and alleged that the question was racist.
3

III. 	The District’s Unwritten Policy of Refusing to Provide Copies of Complaints
The District has no written document reflecting its policy of refusing to provide accused
employees or their exclusive representatives with copies of complaints. The District claims its
policy is grounded in the Chancellor’s Office model policy on discrimination and harassment
(Chancellor’s Policy), which states:
Investigative processes can best be conducted within a confidential
climate. Therefore, the District does not reveal information about
such matters except as necessary to fulfill its legal obligations.
Cuevas testified that the Chancellor’s Policy informs her approach and technique in
investigations, including her policy of not providing accused employees with copies of
complaints against them. District witnesses enumerated several reasons for this policy,
including: (1) concern with the asymmetrical power relationship between the student and
instructor, the potential for retaliation against the complainant, and the resulting “culture of
fear”; (2) maintenance of complainants’ privacy, and the chilling effect that disclosure might
have on the filing of meritorious complaints; and (3) maintenance of the integrity of the
investigation, particularly the concern that disclosure could lead to coaching of the respondent
and to the respondent’s ability to dispose of incriminating evidence. Cuevas further stated that
the substance of the allegations are conveyed to the employee through her questioning at the
interview, and that she allows breaks in the questioning if the accused employee wants to consult
with her union representative.
The District’s complaint form contains no promise of confidentiality to the filing party.
The District acknowledges that it cannot promise complete confidentiality or withholding of the
complainant’s name, as an accused must be able to respond to the complaint. The District
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further concedes that its policy does not promise confidentiality to complainants because release
of some information on a “need-to-know” basis may be essential to a thorough investigation.
District policy prohibits retaliation against someone who has filed a complaint, referred a
matter for investigation, or participated in the investigation of a complaint. Cuevas informs
employees subject to investigation of this prohibition.
IV. 	United Faculty’s Asserted Basis for Obtaining Complaints Prior to Investigatory
Interviews
Michels testified that United Faculty’s interest in representing members of the bargaining
unit with respect to investigatory meetings is primarily to protect, advise, and represent them and
prepare them for the investigatory interviews. In such meetings, the union attempts to advise
employees on their rights and responsibilities in the interview, including the need to be
cooperative and truthful, and to prepare them psychologically. In order to competently prepare
and represent the employee, the union asserts that it needs to know the nature and scope of the
accusations, viz. what will and will not be the subject of inquiry. United Faculty may counsel
employees regarding their right to remain silent, if the union determines that there is a risk of
criminal prosecution. Michels also expressed concern that non-disclosure of a complaint allows
the interviewer to “trick and trap” the employee. He detailed several instances when an
investigator solicited information regarding allegations which “veered” from the issues raised by
the complaint, or claimed to have incriminating evidence which did not exist.
DISCUSSION
An exclusive representative is entitled to all information that is necessary and relevant
to discharge its representational duties. (Sacramento City Unified School District (2018)
PERB Decision No. 2597, p. 8 (Sacramento); Petaluma City Elementary School District/Joint
Union High School District (2016) PERB Decision No. 2485, p. 17 (Petaluma).) The terms
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“necessary” and “relevant” are interchangeable, and a union can prove its case by meeting its
burden to show either the information’s relevance or its necessity. (Sacramento, supra, PERB
Decision No. 2597, p. 8; Petaluma, supra, PERB Decision No. 2485, p 21; Golden Empire
Transit District (2004) PERB Decision No. 1704-M, p. 6.) PERB uses a liberal, discovery-
type standard, similar to that used by the courts, to determine relevance. (Sacramento, supra,
PERB Decision No. 2597, p. 8; Petaluma, supra, PERB Decision No. 2485, p. 16.)
Information pertaining to matters within the scope of representation 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.” (Petaluma, supra,
pp. 17-18.)
Moreover, a charging party is not required to show that it was harmed by an employer’s
failure to use adequate care, diligence, or thoroughness in responding to an information request.
(Petaluma, supra, PERB Decision No. 2485, p. 23.) Thus, in this case, it is of no moment that
the two faculty members were able to guess some aspects of the complaints against them,
including the complainants’ identities. (Sacramento, supra, PERB Decision No. 2597,
pp. 14-15.)
The District’s blanket refusal to provide United Faculty with written discrimination
complaints presents three legal issues requiring close analysis: (I) Is a union entitled to
information relevant to actual or proposed discipline of a bargaining unit employee when
upcoming disciplinary meetings or proceedings are extra-contractual and the union therefore
has no duty of fair representation? (II) When a student accuses a represented employee of
discrimination or harassment, what are the employer’s obligations in balancing the union’s
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right to information with the complainant’s right to privacy? (III) What is the scope of
information to which a union is entitled prior to and during an investigatory interview? We
proceed to address each of these questions.4
I. 	Information Related to Extra-Contractual Disciplinary Meetings or Proceedings
A union has no duty of fair representation in extra-contractual meetings and
proceedings such as investigatory interviews, Skelly hearings,5 civil service board hearings,
and reasonable accommodation meetings. (International Union of Operating Engineers,
Local 501, AFL-CIO (Huff) (2000) PERB Decision No. 1382-S, adopting proposed decision at
pp. 16-17.) Nonetheless, a union has a broad right to represent employees in such fora, even in
the absence of any duty to do so. (See, e.g., Capistrano Unified School District (2015) PERB
Decision No. 2440, pp. 11-13 (Capistrano); Sonoma County Superior Court (2015) PERB
Decision No. 2409-C, pp. 14 & 22 (Sonoma).) Such representational rights derive from
employees’ right to be represented “on all matters of employer-employee relations” and from
employee organizations’ right to represent employees in all such matters, including,
significantly, meetings that could adversely affect employment status. (EERA, § 3543, subd. (a);
4 Our concurring colleague would prefer not to resolve the first two questions. Given
that the District has raised multiple defenses, only one of which we find meritorious, we have
discretion whether to address the first two issues. While the concurrence cites a fraction of the
occasions in which the Board has exercised that discretion one way or the other, we note that
our decision is precedential as to each of the three issues. (See, e.g., United Steel Workers of
America, Local 8599 v. Board of Education (1984) 162 Cal.App.3d 823, 834 [A portion of a
decision is generally found to be precedential, rather than mere dicta, if it “was based upon
material facts” or “responsive to an argument raised by counsel.”].)
5 In Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 (Skelly), the California Supreme
Court held that public entities must afford their employees with adequate pre-deprivation due
process before depriving them of a constitutionally protected property right.
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Sonoma, supra, PERB Decision No. 2409-C, pp. 14 & 22.) Here, there is no dispute that the
District’s investigatory interviews triggered such rights.6
This case therefore presents a fact pattern that arises at PERB from time to time: a union
requests information needed to advise or represent an employee on an important employment
matter that falls outside of contract enforcement. As the ALJ noted, a union has a right to
information regarding subjects within the scope of representation (often known as “mandatory
subjects”), even if the parties are not in negotiations and the parties’ collective bargaining
agreement does not provide a contractual forum for resolving disputes as to the subject in
question. (See, e.g., State of California (Department of Veterans Affairs) (2004) PERB
Decision No. 1686-S, adopted proposed decision at p. 9, emphasis added [“If the information
does not pertain to a mandatory subject . . . the union has the burden of demonstrating that the
information is otherwise necessary and relevant to its ‘representational responsibilities.’ . . .
For example, the claim can be defeated where the information is not presumptively relevant
and it can be demonstrated that the union’s sole purpose is to use the information for
prosecution of a case in an extra-contractual forum.”].)
We therefore hold that there is no categorical rule denying a union access to information
pertaining to a mandatory subject, even when the parties are not in bargaining and the union
intends to use the information to advise or represent an employee in relation to an extra-
6 In NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251, 257 (Weingarten), the U.S.
Supreme Court affirmed the NLRB’s holding that an employer must grant an employee’s request
to have a union representative present at an investigative interview which the employee
reasonably believes may result in discipline. While we often refer to employee and union rights
relative to representation at meetings as “Weingarten rights,” union and employee rights under
California’s public sector collective bargaining laws go well beyond the employee rights
identified in Weingarten. (See, e.g., County of San Joaquin (Sheriff’s Department) (2018)
PERB Decision No. 2619-M, p. 10.)
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contractual issue or forum. Moreover, because discipline is within the scope of representation
(Fairfield-Suisun Unified School District (2012) PERB Decision No. 2262, p. 12; Total
Security Management (2016) 364 NLRB No. 106, p. 11), we further hold that information
pertaining to actual or potential discipline is presumptively relevant, even if the only
contemplated disciplinary forum is extra-contractual. This approach recognizes that unions
must be able to advise employees about actual and potential discipline, and that denying a union
the right to information about proposed discipline in advance of an extra-contractual Skelly
hearing may frustrate early dispute resolution.7 Indeed, from early on PERB has recognized
that a union’s representational functions give it a right to information relevant to advising
employees on discipline and on extra-contractual issues such as discipline for protected
activity and new Supreme Court interpretations of the Education Code. (Mt. San Antonio
Community College District (1982) PERB Decision No. 224, pp. 10-12 & fns. 8-9
(Mt. San Antonio.)
Mt. San Antonio, supra, PERB Decision No. 224 and State of California (Department of
Veteran’s Affairs), supra, PERB Decision No. 1686-S are not the only Board decisions touching
on union requests for information that relate to a mandatory subject but arise in relation to
neither contract negotiations nor contract administration. The District cites two such decisions
7 EERA’s very first sentence establishes that unions help to improve personnel
management “by providing a uniform basis for recognizing [employee rights] . . . to be
represented . . . in their professional and employment relationships with [employers].” (EERA,
§ 3540.) Building on such principles, PERB has noted the importance of encouraging early
settlement of labor disputes, including disputes in front of PERB, which is an extra-contractual
forum: “Policies encouraging voluntary settlement of labor disputes, including alleged unfair
practices, cannot be overstated. Early resolution of disputes without litigation plays an obvious
role in improving employer-employee relations, as it eliminates the cost, acrimony, and time of
litigation and allows the parties to craft an agreement that fits their particular circumstance[.]
PERB's interest in assisting parties in settling their disputes cannot be gainsaid.” (Santa Ana
Unified School District (2013) PERB Decision No. 2332, p. 19.)
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for the proposition that a union categorically has no right to information with respect to an extra-
contractual forum: San Bernardino City Unified School District (1998) PERB Decision
No. 1270 (San Bernardino) and Carmichael Recreation & Park District (2008) PERB
Decision No. 1953-M (Carmichael). As we proceed to explain, to the extent Carmichael or San
Bernardino can be read in that manner, they were non-precedential and out-of-step with other
PERB precedent protecting a union’s ability to obtain information allowing it to intelligently
advise and represent employees regarding topics within the scope of representation. We explain.
In Los Angeles Unified School District (1990) PERB Decision No. 835 (LAUSD I), the
Board dismissed an unfair practice charge which alleged that the employer did not provide the
union with documents in advance of an extra-contractual Skelly hearing. The Board reached
this conclusion expressly because the union failed to request the documents, thereby
suggesting, without deciding, that the union had a right to request such information. (Id. at
p. 3.)
The Board returned to the issue in Los Angeles Unified School District (1994) PERB
Decision No. 1061 (LAUSD II). There, the ALJ found that EERA provided the union with a
right to disciplinary information in order to assist it in representing a bargaining unit member
in an extra-contractual forum, irrespective of whether the union had a duty to represent the
employee in that forum. (Id. at p. 5.) The employer took exceptions on this exact issue, and
each of the three participating Board members wrote separately. Member Caffrey opined that
the Board should not establish a categorical rule, emphasizing that “information requested by
an exclusive representative for use in representing an employee in an extra-contractual forum can
be relevant to its EERA-based responsibilities, thereby requiring the employer to furnish the
requested information absent a valid excuse. “It is the relevance of the [] information and not the
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nature of the forum for which it is requested, which determines whether the employer is
mandated by EERA to provide it.” (Id. at p. 12, fn. 9.) On the facts before the Board, Member
Caffrey voted in the employer’s favor, finding that the union waived its right to the information
by failing to respond when the employer challenged the information’s relevance. (Id. at p. 15.)
Member Carlyle, in contrast, believed that the employer unlawfully denied the union information
to which the union was entitled. (Id. at pp. 22-30.) Member Carlyle strongly defended “the
ability of the union to represent its members in work-related disciplinary hearings if that is the
joint desire, regardless of what the tribunal/forum is called[]” or whether it is mentioned in a
collective bargaining agreement. (Id. at p. 29.) Member Carlyle noted that he and Member
Garcia formed a majority favoring a union’s right to information to assist in such extra-
contractual fora. (Id. at p. 30.) Member Garcia similarly noted his agreement on this point
(id. at p. 17), while voting to dismiss the case because he believed the employer had provided
adequate access to the information in question. (Id. at p. 21.) Thus, two Board Members found a
right to disciplinary information for use in an extra-contractual forum, while a third Board
Member would handle such matters case-by-case.8
Four years later, in San Bernardino, supra, PERB Decision No. 1270, the Board granted
the parties’ joint motion to withdraw certain parts of the underlying charge, and the Board
summarily adopted other parts of the ALJ’s 95-page proposed decision. (Id. at p. 2.) Without
citing LAUSD II, the ALJ wrote one paragraph regarding the extra-contractual forum issue,
finding the charging party union had requested a witness list for an extra-contractual forum
that was outside of the union’s duty of fair representation, and that, on the specific facts before
8 Member Caffrey’s opinion appears first in LAUSD II, supra, PERB Decision
No. 1061. For that reason, parties occasionally miss the mark by citing to parts of his opinion
even as to areas where Members Carlyle and Garcia formed a majority and disagreed with
Member Caffrey.
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the ALJ, the union had failed to show that the requested information was necessary and
relevant. (Id., adopted proposed decision at pp. 70-71.) The Board reviewed the proposed
decision solely on the District’s exceptions to those portions of the case it lost, as the union
filed no cross-exceptions regarding those portions that it lost. (Id. at p. 1.) Because no party
filed any exceptions related to the union’s claim for information relevant to an extra-
contractual forum, the ALJ’s decision as to that point remained non-precedential. (County of
Santa Clara (2018) PERB Decision No. 2613-M, pp. 7-8, fn. 6 [even where Board adopts a
proposed decision, ALJ conclusions are binding only on the parties if there are no exceptions
to such conclusions and the Board declines to reach the issues sua sponte]; accord County of
Orange (2018) PERB Decision No. 2611-M, p. 2, fn. 2; City of Torrance (2009) PERB
Decision No. 2004-M, p. 12.)
The ALJ decision in San Bernardino was clearly inconsistent with Member Carlyle and
Member Garcia’s majority view in LAUSD II. It may also have been inconsistent with
Member Caffrey’s minority view in LAUSD II, though arguably the ALJ in San Bernardino
may have followed a case-by-case framework similar to Member Caffrey’s approach. Even
though San Bernardino was non-precedential on the question of extra-contractual fora, it
sowed confusion, particularly when viewed together with the three opinions in LAUSD II. One
ALJ, for instance, considered San Bernardino to have been precedential on information
relevant to an extra-contractual forum, and he attempted to harmonize it with LAUSD II.9
9 In State of California (Department of Corrections) (1999) 23 PERC ¶ 30102, an ALJ
found that a union’s right to information included the right to obtain the audiotape of an
investigation, in order to determine if the employer had violated Weingarten or otherwise
committed an unfair practice, even though an unfair practice is an extra-contractual matter. The
ALJ grounded his decision, in part, on the LAUSD II majority supporting a union’s right to
information for extra-contractual purposes, and, further, on what he viewed as San
Bernardino’s case-by-case approach. (Ibid.)
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The first post-LAUSD II case in which the Board revisited the extra-contractual forum
issue was State of California (Department of Veterans Affairs), supra, PERB Decision
No. 1686-S. As discussed ante, the Board noted that the threshold query is whether information
is presumptively relevant because of its relation to a mandatory subject of bargaining, and that
the extra-contractual forum defense applies only to information that is not presumptively
relevant. (Id. at pp. 2-3 & adopting proposed decision at p. 9.) The union was receiving
inquiries regarding mandatory subjects such as workplace safety and a potentially hostile work
environment, and the Board found that the union therefore needed the information to help
advise employees on these important mandatory subjects of bargaining. (Id. at p. 2.)10
Four years later, the Board summarily adopted an ALJ’s proposed decision in
Carmichael, supra, PERB Decision No. 1953-M, wherein the ALJ found that a union had no
right to information for a Skelly hearing. The proposed decision, while noting that the ALJ in
San Bernardino had failed to cite or discuss LAUSD II, nonetheless expanded on the San
Bernardino ALJ’s assertions and seemed to suggest a categorical rule denying unions access to
information for extra-contractual fora. (Id., adopted proposed decision at p. 25 & fn. 35.)
When the Board summarily adopted the ALJ’s proposed decision, it specifically noted that
10 The concurrence argues that the union’s request in State of California (Department of
Veterans Affairs), supra, PERB Decision No, 1686-S may have been relevant to contract
administration. However, the decision strongly supports a conclusion that mandatory subjects
of bargaining are so central to a union’s purpose that a union may request information in order
to help it protect employees even absent a relevant contractual provision or forum. Not only
did the Board lay out the analytic framework as first considering whether information relates to
a mandatory subject, see ante at p. 8, but, further, the Board adopted this telling assessment:
“Although I find nothing in the memorandum of understanding that would support a grievance
as to either subject [discrimination or safety], that point is not essential. Both matters are
negotiable subjects.” (Id. at pp. 10-11.) The Board then endorsed the principle that even when
a union has no right to grieve workplace safety, the employer must nonetheless provide the
union with safety reports, as the union must be able to investigate safety in order to prevent
accidents and protect employees. (Id. at p. 11.)
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there were no exceptions before it regarding the union’s right to information. (Id. at p. 1,
fn. 2.) As discussed ante, this means that the ALJ’s proposed decision on that point was non-
precedential.
In City of Burbank (2008) PERB Decision No. 1988-M, p. 9 (Burbank), the respondent
relied on Member Caffrey’s opinion in LAUSD II, ignoring that Member Caffrey was in the
minority on the point in question. The Board noted that, in any event, LAUSD II had no
bearing on the Burbank facts, which involved an information request related to a contractual
arbitration. (Ibid.) The Board therefore had no need to plumb the depths of PERB precedent
on extra-contractual fora.11
In County of Tehama (2010) PERB Decision No. 2122-M, the Board adopted a
proposed decision that suggested a conflict in Board precedent, between LAUSD II and San
Bernardino, but did not address the other cases noted above. (Id., adopted proposed decision
at pp. 17-19.) The Board supplemented the proposed decision by citing Carmichael,
apparently regarding the Carmichael ALJ’s decision on extra-contractual fora as if it had in
fact been a precedential Board holding. (Id. at p. 11.) County of Tehama, however, did not
turn on any of these issues. Rather, the sole information issue arose when the charging party
moved to exclude certain exhibits because charging party had submitted an information request
to the respondent, and the respondent had not provided documents that it later used as exhibits.
On exceptions, the Board agreed with the ALJ’s procedural decision to deny this motion
because charging party failed to subpoena the documents in question. (Id. at pp. 10-11; see
11 Burbank noted that the right to information extends beyond contract negotiations and
“applies to labor-management relations during the term of an agreement,” which “includes
information needed to police and administer an existing CBA” (Burbank, supra, PERB
Decision No. 1988-M, p. 9, emphasis added), but the decision did not resolve whether “labor-
management relations during the term of an agreement” also includes non-contractual
disciplinary proceedings involving a bargaining unit employee.
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also Regents of the University of California (1987) PERB Decision No. 640-H, adopted
proposed decision at p. 89 [ALJ may exclude evidence based on refusal to comply with
subpoena].)
In City of Redding (2011) PERB Decision No. 2190-M (Redding), PERB adopted an
ALJ decision upholding a union’s right to obtain investigative reports regarding workplace
harassment. The ALJ recounted PERB’s decisions in LAUSD I, LAUSD II, San Bernardino,
State of California (Department of Veteran’s Affairs), and Carmichael, noting that San
Bernardino did not discuss LAUSD II and that State of California (Department of Veteran’s
Affairs) had, on the facts before it, rejected the employer’s argument that there was no
contractual forum relevant to discrimination and workplace safety issues. (Id., adopted
proposed decision at pp. 15-18 & fn. 26.)
Finally, in Santa Monica Community College District (2012) PERB Decision No. 2303
(Santa Monica), the Board adopted an ALJ’s conclusion that retirement election forms were
relevant and necessary to the union’s representational duties, and the Board therefore found it
irrelevant whether the union intended to use these records to advise employees regarding an
extra-contractual forum. (Id., p. 2, fn. 2) The forms were necessary and relevant to
representational duties primarily because they related to retirement, a mandatory subject of
bargaining, and therefore their relevance to the union’s duties was presumed. (Id., adopted
proposed decision at pp. 6-8.) The same is true here, except the mandatory issue is discipline.
The presumption makes sense given that a union can use information regarding mandatory
topics both to advise employees and to evaluate and craft bargaining proposals. (Id., adopted
proposed decision at p. 7.) While the union in Santa Monica asserted that the election forms
would be useful both to advise employees and in negotiations, it is evident that the union
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requested the information primarily to advise bargaining unit employees regarding a non-
contractual forum, as several employees had received letters regarding their retirement, and
those employees had requested assistance from their union. (Id., adopted proposed decision at
pp. 3-8.) Indeed, the outcome of such a case does not turn on whether a union happens to be in
negotiations at the time. Rather, irrespective of whether a union is in bargaining, it should be
able to advise employees intelligently about critical employment matters, even if those matters
may be resolved in extra-contractual fora.
In Santa Monica, the Board described the employer’s violation as a failure to provide
information “necessary or relevant to the [union’s] right to represent bargaining unit
employees.” (Santa Monica, supra, PERB Decision No. 2303. at p. 2.) Indeed, the Board has
adopted similar phrasing in the past, when a union requests information that it needs to
represent employees even in the absence of any duty of fair representation. (See, e.g., State of
California (Department of Veterans Affairs), supra, PERB Decision No. 1686-S, pp. 1, 2, & 5
[referencing information that is necessary and relevant to a union “to represent its members”
and to “determine if there are workplace safety concerns.”].) In cases such as the instant one,
Santa Monica’s broader phrasing makes sense, particularly given that California public sector
unions have a right to represent that has no parallel in private sector labor law. (Capistrano,
supra, PERB Decision No. 2440, pp. 13 & 16.) It also makes sense based on our holding in
Sonoma, supra, PERB Decision No. 2409-C, where we found that one central purpose of a
union is to advise employees in those interactions that “mean the difference between full
employment or being unemployed” (id. at p. 20), irrespective of whether the union has a duty
to do so. (Id. at p. 18, fn. 17.) Indeed, unions’ right to advise employees regarding important
employment matters (including discipline, safety, discrimination, and retirement) supports the
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outcome of information request cases such as State of California (Department of Veterans
Affairs), Mt. San Antonio, and Santa Monica, as well as Member Carlyle’s apt observation in
LAUSD II: “[T]here is nothing more basic than the ability of the union to represent its
members in work-related disciplinary hearings if that is the joint desire, regardless of what the
tribunal/forum is called.” (LAUSD II, supra, PERB Decision No. 1061, p. 29.)
For these reasons, we clarify that there is no categorical rule denying a union access to
information pertaining to a mandatory subject of bargaining merely because it may be used in
an extra-contractual forum, meeting, or proceeding. Information pertaining to actual or
potential discipline is presumptively relevant, no matter in what forum the disciplinary matter
might be resolved. Any other rule would place form over substance given, for instance, that
some collective bargaining agreements spell out all Skelly rights and all post-discipline dispute
resolution proceedings, while in other collective bargaining relationships some or all such
meetings and proceedings are extra-contractual. Therefore, when a union is considering
whether to exercise its right to represent employees in a meeting or proceeding that may
adversely affect employment status, or the union does exercise that right, an employer may not
deny the union’s related information request on the basis that the meeting or proceeding is
extra-contractual or that the union has no duty of fair representation.12
II. 	Balancing A Union’s Right to Information with A Complainant’s Right to Privacy
When faced with an employer’s privacy assertion in response to a union’s request for
relevant information, PERB, like the National Labor Relations Board (NLRB), uses a
12 In the private sector, most collective bargaining agreements provide for arbitration of
discipline. In contrast, public sector employers and unions often make use of extra-contractual
fora to resolve disputes over discipline, as in LAUSD II, supra, PERB Decision No. 1061.
Private sector precedent is not a useful guide given both this significant difference and the fact
that California law affords public sector unions a right to represent, as discussed above.
17

balancing test and places the burden on the employer to demonstrate that the privacy interest
outweighs the union’s need for the information. (Los Angeles Unified School District (2015)
PERB Decision No. 2438, pp. 7-8; Detroit Edison Co. v. NLRB (1979) 440 U.S. 301, 318-320
(Detroit Edison).) Even if the employer meets this burden, the employer may not simply
refuse to provide the information, but rather must meet and negotiate in good faith to seek an
accommodation of all legitimate competing interests. (Sacramento, supra, PERB Decision
No. 2597, p. 12; American Baptist Homes of the West dba Piedmont Gardens (2015) 362
NLRB No. 139, p. 4, aff’d. (D.C. Cir. 2017) 858 F.3d 612 (American Baptist Homes).)
The District asks us to adopt a blanket rule protecting student complaints, akin to the
NLRB’s former policy exempting witness statements from disclosure, which the NLRB
applied from the time it decided Anheuser-Busch, Inc. (1978) 237 NLRB 982, until it ruled in
American Baptist Homes, supra, 362 NLRB No. 139, that the Detroit Edison balancing test
applies to witness statements. PERB never followed Anheuser-Busch, Inc., even when it was
extant NLRB precedent, and we decline to adopt the District’s proposed rule. Rather, we
continue to apply the traditional balancing test in all information request cases in which an
employer raises a privacy or confidentiality defense. (Sacramento, supra, PERB Decision
No. 2597, p. 14, fn. 8, citing Redding, supra, PERB Decision No. 2190-M, p. 2 and adopting
proposed decision, at pp. 13-14 [If the “employer satisfies its burden of demonstrating that
disclosure would compromise privacy rights, PERB engages in balancing test set forth in Detroit
Edison Co. v. NLRB 440 U.S. 301, 314.”].)
PERB has “noted that a union’s unique representational functions gives it a right to
arguably private information,” including workplace complaint investigation reports.
(Sacramento, supra, PERB Decision No. 2597, p. 11.) Indeed, we have generally reached this
18

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conclusion even when the employer raises “constitutionally significant privacy rights of third
parties.” (Ibid., citing Redding, supra, PERB Decision No. 2190-M, adopting proposed
decision at pp. 16-18.) In those instances in which an employer raises legitimate third party
privacy interests in response to a union’s request, the employer must meet and confer in good
faith to reach an accommodation. (Sacramento, supra, PERB Decision No. 2597, pp. 12-14.)
For instance, an appropriate accommodation may consist of (a) redacting information that is
not relevant to the union’s purpose in requesting records, or for which privacy otherwise
outweighs the union’s need; or (b) arrangements in which the union and accused employee
agree to use witness statements and complaints only for purposes of defending the accused
employee, and to disclose such records to the union’s employees, attorneys, or agents only as
needed to defend the accused employee. (Id. at pp. 12-13 & fn. 7.)
In this case, the District flatly rejected United Faculty’s requests. In doing so, the
District “frustrated EERA’s purposes by converting the applicable procedure from a two-way
negotiation to a unilateral decision[.]” (Sacramento, supra, PERB Decision No. 2597, p. 13.)
Indeed, the District admitted at the hearing that it had a blanket policy of not releasing the
accuser’s complaint form to the accused, at least prior to the investigatory interview, if ever.13
13 The District’s primary reason for withholding the complaints at the investigation
stage had little to do with privacy. Indeed, the District admitted that in order to conduct a fair
investigation, it must allow the accused employee to learn the name of the complainant and the
substance of the complaint. Withholding the substance of the complaint initially and then
revealing it piece by piece during the course of an interview was the District’s chosen
investigation technique. In the final part of our discussion, post, we discuss how this employer
tactic is in tension with an employer’s duty to provide reasonable notice regarding the
allegations at issue, in order to allow effective Weingarten representation. At this stage,
however, we simply note that we balance third party privacy concerns against the union’s right
to information even though the District based its reasoning largely on issues unrelated to
complainants’ privacy rights.
19

Where an employer flatly refuses a union’s request, without meeting and conferring to
seek an accommodation, normally that alone is a sufficient basis to find a violation, without
engaging in the Detroit Edison balancing test. (Sacramento, supra, PERB Decision No. 2597,
p. 14.) In this case, however, even though the District’s blanket rejection alone violated
EERA, we nonetheless consider the third party privacy issues at stake, as part of considering
whether to order the District to produce the complaints.
In discussing potential privacy rights of third party students, the parties have primarily
asked us to assess the impact, if any, of federal laws including the Family Educational Rights
and Privacy Act, 20 U.S.C. § 1232g (FERPA) and federal civil rights laws such as 42 U.S.C.
§ 2000d et seq. (Title VI) and 20 U.S.C. § 1681 et seq. (Title IX). With the aid of the parties’
briefs, we have reviewed these laws, their equivalents under California law, related federal and
state regulations, and agency interpretive guidance.
In order to receive federal funds, schools must create policies compliant with the
privacy protections that FERPA affords to personally identifiable information contained in
certain education records that are both “directly related to a student” and “maintained by” a
school or agent thereof. (20 U.S.C. § 1232g(a)(4)(A).) The District, citing several non-
California state court decisions and federal district court decisions from around the country,
notes that it is unclear whether a student’s written complaint about a school employee falls
within the above definition of an “education record.” Illustrating this uncertainty, the District
cites a Florida appellate decision that describes some of the relevant split authority. (Rhea v.
District Board of Trustees of Santa Fe College (2013) 109 So.3d 851, 856-858 & fns. 3-4 [citing
precedent finding that student complaints against employees directly relate to the accused
20

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employees rather than to the complaining students, but declining to follow this line of cases as
applied to a student’s email complaining about a teacher].)
In analyzing whether FERPA applies, the parties neglect several important strands of
analysis. To begin with, FERPA itself excludes employee records. (20 U.S.C.
§ 1232g(a)(4)(B)(iii).) Furthermore, the United States Supreme Court has interpreted FERPA as
protecting “institutional records kept by a single central custodian, such as a registrar[.]”
(Owasso Independent School District v. Falvo (2002) 534 U.S. 426, 435 (Owasso).) Most
importantly, California precedent treats records regarding student complaints against school
employees as being employment records rather than student records kept by a registrar or other
similar central custodian of student records. In BRV, Inc. v. Superior Court (2006) 143
Cal.App.4th 742 (BRV), a media outlet made a public records request for records concerning
allegations that a school district superintendent verbally abused students and sexually harassed
female students. The court considered whether the records were “education records” under
FERPA and “pupil records” under its California equivalent, Education code section 49073 et
seq.14 (Id. at ¶. 751-755.) The court treated the inquiry as equivalent under state and federal
law, particularly since California’s statutes were the state’s “statutory response to [FERPA],” and
noted that there is scant precedent to guide the inquiry. (Id. at pp. 751-752.) Ultimately, BRV
followed Owasso in finding that FERPA protects records that a school regularly collects and
maintains about its students, rather than records about student complaints against a school
employee:
Certainly the language of the statute, though broadly written, does
not encompass every document that relates to a student in any way
14 Whereas Education code section 49073 et seq. apply to elementary and secondary
schools, in the present case the California equivalent to FERPA, applicable to community
colleges, is found at Education code section 76240 et seq.
21

and is kept by the school in any fashion. A pupil record is one that
‘directly relates’ to a student and ‘maintained’ by the school. We
agree with [Owasso] that the statute was directed at institutional
records maintained in the normal course of business by a single,
central custodian of the school. Typical of such records would be
registration forms, class schedules, grade transcripts, discipline
reports, and the like. [¶] The [document at issue] does not fall
within that group . . . [it] was not directly related to the private
educational interests of the student. Its purpose was to investigate
complaints of malfeasance allegedly committed by the
[superintendent].
(Id. at pp. 754-755.)
We are bound by California precedent, which, while scant, does not support the
proposition that FERPA covers the complaints that United Faculty sought. However, this case
does not ultimately turn on whether FERPA and its California equivalent protect personally
identifiable information in the student complaints at issue. To the contrary, proving FERPA
coverage is neither a necessary nor a sufficient basis for the District to withhold the complaints.
FERPA coverage would not be sufficient, because FERPA allows disclosure by consent of a
student, and student consent is typically necessary to allow a school to investigate fully the
student’s complaint. The District, like most other employers, properly informs complainants that
if they do not consent to disclosure as needed to investigate, it may be impossible to investigate
their complaints. On the other hand, even in the absence of FERPA coverage, we must weigh
complainants’ interests in having their complaints treated as confidential to the extent possible
while still affording all applicable rights to accused employees and their exclusive
representatives. (See, e.g., 5 Cal. Code Reg., § 4964 [“All complaints or allegations of
discrimination or sexual harassment will be kept confidential during any informal and/or formal
complaint procedures except when disclosure is necessary during the course of an investigation,
in order to take subsequent remedial action and to conduct ongoing monitoring.”].)
22

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To parse the complex interplay between rights held by different parties when a student
complains of mistreatment by an employee or by another student, both parties rely on
interpretive guidance from the U.S. Department of Education, Office of Civil Rights (OCR). In
2001, OCR published in the federal register revised Title IX guidance (OCR Guidance), after a
notice and comment period. The District introduced the OCR Guidance as an exhibit in this
matter, and it is viewable online at https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf,
last accessed June 18, 2019.
The OCR Guidance initially summarizes comments that OCR received and considered,
including comments that “raised concerns about the interrelation between [FERPA] and Title
IX” and particularly highlighted “the due process rights of individuals, including teachers,
accused [by] a student, to obtain information about the identity of the complainant and the nature
of the allegations.” (OCR Guidance at pp. vi-vii.) OCR notes that commentators asked it to
strengthen its guidance in this area because withholding information at the request of a
complainant “undermines the fairness of the investigative and adjudicative process.” (Id. at,
p. viii.) OCR states that, in response to such comments, it substantially amended its guidance in
several areas. (Ibid.) Specifically, the OCR Guidance states that public school employees have
constitutional due process rights, public and private school employees may also have additional
rights under state law, collective bargaining agreements, faculty handbooks, and other similar
sources, and schools must honor these rights. (Id. at pp. viii, 17, 18 & 22.)15
Where, as here, a student complaint is relevant to a union in representing an employee, it
does not follow automatically that the employer must always fully disclose the entire student
15 In reaching this conclusion, OCR assumes that a student’s written complaint against a
school employee is a FERPA record, but finds that FERPA does not override employee rights,
meaning that discipline may not be possible absent the student’s willingness to disclose
relevant records. (See, e.g., OCR Guidance at p. viii.)
23

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complaint to the union. Rather, there are two main categories of exceptions. First, a
complaining student may insist on confidentiality, even knowing this may limit the school’s
ability to respond. Indeed, in discussing a school’s need to “inform the student that a
confidentiality request may limit the school’s ability to respond,” OCR concludes that a student’s
insistence on complete confidentiality may mean that “OCR would not expect disciplinary action
against [the] alleged harasser.” (OCR Guidance at p. 17.) In such circumstances, absent other
witnesses willing to come forward, a school may be limited to taking actions other than
discipline, or may need to limit its investigation to accusations by other complainants or
witnesses who do not insist on complete confidentiality. (Id. at p. 18.) Indeed, the District
introduced into evidence model policies issued by the California Community Colleges
Chancellor’s Office, which track this approach:
Investigative processes can best be conducted within a confidential
climate. Therefore, the District does not reveal information about
such matters except as necessary to fulfill its legal obligations.
Potential complainants are sometimes reluctant to pursue a
complaint if their names will be revealed. The inability to reveal
the name of a complainant or facts that are likely to reveal the
identity of the complainant can severely limit the ability of the
District to respond. Complainants must also recognize that
persons who are accused of wrongdoing have a right to present
their side of the matter, and this right may be jeopardized if the
District is prohibited from revealing the name of the complainant
or facts that are likely to disclose the identity of the complainant.
If a complainant insists that his or her name not be revealed, the
responsible officer should take all reasonable steps to investigate
and respond to the complaint consistent with the complainant’s
request as long as doing so does not jeopardize the rights of other
students or employees.16
16 The District’s policies similarly note that if the complainant insists on confidentiality,
“the District should take all reasonable steps to investigate and respond to the complaint
consistent with the complainant’s request, as long as doing so does not jeopardize the rights of
other students and employees.”
24

Secondly, where the student is willing to allow disclosure to permit a fair investigation, a
school may still propose to the union limits on disclosure that keep complaints confidential to the
extent possible while maintaining the union’s ability to represent the employee. For instance, a
school may propose that the accused and his or her union agree to use a written complaint only
for the purposes of responding to it and defending the accused, and to disclose such records to
the union’s employees, attorneys, or agents only as needed to defend the accused employee. A
school may also propose redaction of information not necessary to the accused employee’s
defense. This may or may not include the student’s name, depending on whether student names
are relevant to providing a full defense. At times, as in both instances at issue here, a student’s
name may already be known, or may become quickly identifiable given the nature of the
complaint. Other times, as where “an instructor [is accused of making] explicit remarks about
his or her personal life in front of an entire class[,]” OCR notes that due process rights do not
necessarily entitle the accused employee to learn, during the investigation, which class member
made the report. (OCR Guidance, p. 18.)
Such accommodations may assuage a student’s concerns sufficiently to convince her to
agree to limited disclosure. Even in cases where a student has raised no such concerns and
agrees to full disclosure, such accommodations are appropriate under the terms of 5 California
Code of Regulations section 4964 and related principles governing discrimination complaints.
These same principles apply to any workplace investigation of a discrimination or harassment
complaint, irrespective of whether the complainant is a student or another employee. Indeed, the
District introduced into the record the California Department of Fair Employment and Housing
Workplace Harassment Guide for California Employers, which provides the following guidance:
25

Can the investigator keep the complaint confidential?
The short answer is no. Employers can only promise limited
confidentiality – that the information will be limited to those who
‘need to know’ . . . . [¶] [I]n the process of investigating, it is
likely that people will know or assume details about the
allegations, including the identity of the person who complained . .
. . since allegations are often clear enough for people to figure out
who complained about what . . . . [¶] [W]hile the identity of the
person who brought the complaint may in some cases be kept
confidential, the complaint itself cannot be.
(Italics in original.)
As noted ante, the District eschewed the required nuanced approach described above and
instead maintained a blanket policy of nondisclosure, which is inconsistent with its duty to
provide information. (Sacramento, supra, PERB Decision No. 2597, p. 13.)
III. 	Scope of the Right to Information in Advance of an Investigatory Interview
In Capistrano, supra, PERB Decision No. 2440, p. 12, we noted that in advance of an
investigatory meeting, the employer must provide information about “the nature of any charge of
impropriety.” That information must be sufficient to allow “meaningful” representation. (Ibid;
State of California (Department of Corrections) (1998) PERB Decision No. 1297-S, adopted
proposed decision at p. 12.) In order to provide meaningful representation, we note that an
employer must permit an employee’s representative to participate in the meeting, which may
include, for example, reasonable requests seeking to clarify questions and allegations, both
prior to and during an investigatory interview. And while the representative cannot turn the
interview into an adversarial proceeding, neither may the employer “insist that the
representative remain silent or take no active role in the meeting.” (Capistrano, supra, PERB
Decision No, 2440, p. 12.) However, with or without such clarifying questions by a union
representative, a critical question remains: to what extent do EERA and other California labor
26

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relations laws require an employer to provide relevant details of the alleged misconduct prior
to an investigatory interview?
In Pacific Telephone & Telegraph Co. (1982) 262 NLRB 1048 (Pacific Telephone), the
NLRB found that an employer need not “reveal its case, the information it has obtained, or
even the specifics of the misconduct to be discussed. A general statement as to the subject
matter of the interview, which identifies to the employee . . . the misconduct for which
discipline may be imposed, will suffice.” (Id. at p. 1049, emphasis in original.) To the extent
that Pacific Telephone can be read as always protecting an employer from having to provide
specifics of the misconduct to be discussed, we disagree, as our touchstone is what is necessary
to allow meaningful representation. Indeed, even under NLRB precedent, an employer does
not satisfy its duty to allow meaningful representation if it provides only general information
about the charges of misconduct. (U.S. Postal Service (2005) 345 NLRB 426, 436 [employer’s
oral notice in advance of interviews—that one set of charges involved “a vehicle accident you
were involved in on [a specific date],” while another set of charges involved “insubordination
and/or sabotaging of the [employer’s] mission”—were too vague to allow meaningful
representation, though in the former case the employer cured this problem by providing an
advance copy of all questions to be asked].) We endorse these principles from U.S. Postal
Service, supra, 345 NLRB at p. 436. (See also Capistrano, supra, PERB Decision No. 2440,
p. 12 [citing U.S. Postal Service, supra, 345 NLRB at p. 436].)17
We also take note of a related body of law under the Public Safety Officers Procedural
Bill of Rights Act (POBR) (§ 3300 et seq.) and the Firefighters Procedural Bill of Rights Act
17 While we have repeatedly noted that PERB precedent protects representational rights
to a greater extent than corresponding NLRB precedent, we consider NLRB precedent for its
persuasive value when it is consistent with California authority. (Capistrano, supra, PERB
Decision No. 2440, pp. 13-15 & 29, fn. 15.)
27

(FBOR) (§ 3250 et seq.). This precedent interprets a distinct statutory scheme that affords
rights to individual public safety employees rather than to unions. Moreover, POBR and
FOBR do not feature the same triggering circumstances as exist under PERB precedent.
Nonetheless, we consider precedent under these statutes for its persuasive value, to the extent it
is consistent with the statutes we enforce. (See, e.g. City of Davis (2016) PERB Decision
No. 2494-M, p. 43 [noting that “adverse action” under the MMBA encompasses a greater set
of employer conduct than “punitive action” under POBR].)
In an early case interpreting POBR, the California Supreme Court found that an accused
peace officer employee must receive reasonable pre-investigation information about all
misconduct allegations, but need not receive the underlying written complaint until after the
employer conducts an initial investigatory interview. (Pasadena Police Officers Assn. v. City of
Pasadena (1990) 51 Cal.3d 564, 572-579 (Pasadena).) A quarter century later, the California
Court of Appeal explained how Pasadena represents a balance between “prompt, thorough,
and fair investigations” and fair treatment for the accused employee. (Ellins v. City of Sierra
Madre (2016) 244 Cal.App.4th 445, 454 (Ellins), quoting Pasadena, supra, 51 Cal.3d at
p. 568.) Fair treatment, according to Ellins, requires that employees and their representatives
be able to prepare for interviews, even though they have no right to full discovery at the pre-
interview stage:
Although the disclosure of discovery regarding misconduct in advance of
an interrogation might ‘frustrate the effectiveness of any investigation’
by ‘color[ing] the recollection of the person to be questioned or lead[ing]
that person to confirm his or her version of an event to that given by
witnesses’ whose statements have been disclosed in discovery [citing
Pasadena], advanced disclosure of the nature of the investigation has the
opposite effect: It allows the officer and his or her representative to be
‘well-positioned to aid in a full and cogent presentation of the [officer’s]
view of the matter, bringing to light justifications, explanations,
extenuating circumstances, and other mitigating factors’ and removes the
28

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incentive for ‘uninformed representatives . . . to obstruct the
interrogation “as a precautionary means of protecting employees from
unknown possibilities.” [Citing United States Postal Service v. NLRB
(D.C. Cir. 1992) 969 F.2d 1064, 1071.] Thus, advance disclosure of the
nature of the investigation serves both purposes of [POBR] by
contributing to the efficiency and thoroughness of the investigation while
also safeguarding the officer’s personal interest in fair treatment.
(Ellins, supra, at p. 454, emphasis in original.)
Ellins adopted a reasonableness requirement regarding how far in advance of the
interview an employer must disclose the nature of the allegations. (Ellins, supra,
244 Cal.App.4th at pp. 453 & 456.) The court noted that the employer must afford “enough
time for the officer to meaningfully consult with any representative he elects to have present,”
and the court further defined what is reasonable as follows:
The time necessary to do so may depend upon whether the officer has
already retained a representative (or instead needs time to secure one)
and upon the nature of the allegations; their complexity; and, if they are
unrelated, their number. However, an employing department with reason
to believe that providing this information might risk the safety of
interested parties or the integrity of evidence in the officer’s control may
delay the notice until the time scheduled for interrogation as long as it
thereafter grants sufficient time for consultation.
(Id. at p. 453.)18
As in Ellins, we find that the amount of advance notice is but one factor, which should
be analyzed in context, together with the nature of the allegations and the level of detail the
18 Ellins noted the similarity between POBR rights and representation rights under
NLRB precedent, including Pacific Telephone, supra, 262 NLRB 1048. As noted ante, PERB
precedent typically protects representational rights to a greater extent than corresponding NLRB
precedent, and we do not find the NLRB’s discussion in Pacific Telephone to describe fully an
employer’s obligation to provide notice of the nature of misconduct allegations. Ellins, while
noting that NLRB precedent is not binding for POBR cases, interpreted that precedent as largely
supporting a reasonableness requirement. (Ellins, supra, 244 Cal.App.4th at p. 455.) Ellins
similarly noted that Pasadena had analogized to procedural protections afforded criminal
defendants. (Ibid.) As with the analogy to NLRB precedent, Ellins found that criminal law
precedent, while not binding, supports a reasonableness requirement. (Ibid.)
29

employer provides. The overall notice must be reasonable, taking into account both its
temporal and substantive aspects. In Ellins, the allegations were straightforward: the
employer was investigating an accusation that an officer had accessed the California Law
Enforcement Telecommunication System (CLETS) to locate an ex-girlfriend without a law
enforcement purpose. (Id. at p. 450.) The employer delayed giving Ellins detailed notice
about the nature of the allegations, fearing he would retaliate against his ex-girlfriend given the
unique circumstances. When the employer provided notice of the allegations, it gave
significant details, telling Ellins: “[I]n May 2010 [you are alleged to have] inappropriately
accessed the [CLETS database] and made numerous inquiries regarding [your] former
girlfriend . . . and her relatives.” (Ibid.) After providing this notice, the employer permitted
Ellins up to an hour to consult with his representative. (Ibid.) The court found that the
employer’s notice was reasonable on the whole. (Id. at p. 457.)
Based on similar principles, we hold that an employer violates union and employee
representational rights when it fails to provide sufficient information regarding alleged
wrongdoing to enable a union representative to represent an employee in a meaningful manner
during an investigatory interview. This is necessarily a fact-specific inquiry. While our above
discussion, including U.S. Postal Service, supra, 345 NLRB at p. 436, suggests the District
likely violated the reasonableness standard by strategically withholding the substance of the
allegations, the PERB complaints did not allege that the District failed to provide United
Faculty with reasonable notice of the alleged wrongdoing. Nor did the parties litigate that
issue. Rather, United Faculty’s charges in this matter, and the resulting unfair practice
complaints, challenged only the District’s failure to provide United Faculty with a copy of the
students’ written complaints. Thus, United Faculty invites us to alter our precedent
30

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substantially by holding that, between the time an employer announces an investigatory
interview and the time the interview occurs, a union may request the underlying complaint, and
that the employer cannot lawfully go forward with the interview until it has complied with this
request. We decline United Faculty’s invitation.19
CONCLUSION
For the foregoing reasons, we reject the District’s relevance and privacy arguments that
would cast doubt on whether it ever has a duty to provide United Faculty with underlying
complaints against accused faculty members, but we nonetheless reverse the proposed
decision. When representing an employee in an investigatory interview, a union has a right to
reasonable notice of the alleged wrongdoing in advance of the interview. However, consistent
with Pasadena, supra, 51 Cal.3d 564 the employer has no obligation to provide the underlying
written complaint until after the employer conducts an initial investigatory interview.
ORDER
The unfair practice complaints and underlying unfair practice charges in Case
Nos. SF-CE-3208-E and SF-CE-3212-E are DISMISSED.
Member Banks joined in this Decision.
Member Shiners’ concurrence begins on p. 32
19 Notably, an investigatory interview is often scheduled with minimal lead time.
Providing a copy of a discrimination complaint may require an employer to work with the
accused employee’s union over redactions or other privacy accommodations, which may or
may not be feasible in the timeframe prior to the interview.
31

SHINERS, Member, concurring: I agree with my colleagues that the Contra Costa
Community College District (District) did not violate the Educational Employment Relations
Act (EERA) when it refused to provide United Faculty of Contra Costa Community College
District (United Faculty) with written discrimination complaints against two instructors prior to
the instructors being interviewed as part of the District’s investigations of the student
complaints. I also join my colleagues in holding that, prior to an investigatory interview, an
employer’s obligation to provide information is satisfied by providing the exclusive
representative with sufficient information about the nature of the allegations being investigated
to allow the union to provide meaningful representation to the interviewed employee.
I do not, however, join the majority decision’s discussion of an employer’s potential
privacy defenses when a student complaint is the subject of a post-investigatory interview
information request or its discussion of an exclusive representative’s right to information when
representing an employee in proceedings not governed by the collective bargaining agreement.
My objection to these discussions is that, notwithstanding the parties’ extensive briefing on
these issues, neither must be resolved to decide this case. As noted above, we conclude United
Faculty had no right to obtain the written discrimination complaints from the District before
the instructors’ investigatory interviews. Thus, there is no need to address the District’s
possible privacy defenses to production of the complaints after an investigatory interview.
And because this case involves only pre-investigatory interview information requests, there is
no need to address what right an exclusive representative may have to obtain a complaint when
representing an employee in an extra-contractual proceeding following an investigatory
interview. Because both issues are superfluous to the resolution of this case, I decline to join
the majority’s discussion of them. (See United Teachers Los Angeles (Raines, et al.) (2016)
32

PERB Decision No. 2475, p. 5 [“PERB does not issue advisory opinions or generalized
declarations of law on issues not raised by the facts of a case or not necessary for its
resolution.”], italics added; see also Oak Valley Hospital District (2018) PERB Decision
No. 2583-M, p. 10 [where ruling on single exception fully resolved the relevant complaint
allegation, the Board declined to address remaining exceptions]; Capistrano Unified Education
Association (La Marca) (2001) PERB Decision No. 1457, p. 12 (concurring opinion of
Member Whitehead) [agreeing that PERB lacked jurisdiction over the charge but declining to
join the majority’s discussion of the timeliness of the charge because the issue was
“unnecessary to the resolution of this matter”]; cf. Fresno County In-Home Supportive Services
Public Authority (2015) PERB Decision No. 2418-M, p. 58, fn. 1 (concurring opinion of Chair
Martinez) [“[T]he cardinal principle of judicial restraint is that if it is not necessary to decide
more, it is necessary not to decide more”], internal quotations and citations omitted.)
Nonetheless, in anticipation that parties and PERB may rely in future cases on the
majority decision, I provide my view on each of the nonessential issues.
First, I agree with the majority’s observation that neither the Family Educational Rights
and Privacy Act (20 U.S.C. § 1232g) nor any of the other federal and state statutes cited by the
District categorically bars a public school employer from disclosing a student complaint in
response to an exclusive representative’s post-investigatory interview information request.
Rather, consistent with our longstanding decisional law, the student’s privacy interest must be
weighed against the exclusive representative’s interest in obtaining the complaint for
representational purposes on a case-by-case basis. (Los Angeles Unified School District (2015)
PERB Decision No. 2438, pp. 7-8.)
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Second, I strongly disagree with the majority’s view that an exclusive representative
has the same right to information when representing an employee in an extra-contractual
proceeding as it does when negotiating, administering, or enforcing the collective bargaining
agreement. It is well-established that “an exclusive representative is entitled to all information
that is necessary and relevant to discharge its representational duties.” (Sacramento City
Unified School District (2018) PERB Decision No. 2597, p. 8, italics added; Petaluma City
Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485,
p. 17; see also, Stockton Unified School District (1980) PERB Decision No. 143, p. 13 [“the
exclusive representative is entitled to all information that is necessary and relevant to
discharging its duty to represent unit employees”], italics added.) The exclusive
representative’s representational duty applies to contract negotiations, as well as to
administration and enforcement of the contract. (Cal Fire Local 2881 (Tobin) (2018) PERB
Decision No. 2580-S, p. 3; United Teachers Los Angeles (Raines, et al.), supra, PERB
Decision No. 2475, p. 70.) Correspondingly, we have long held that the exclusive
representative’s right to information applies during both contract negotiations and contract
administration, including grievance processing. (City of Burbank (2008) PERB Decision
No. 1988-M, p. 9; Chula Vista City School District (1990) PERB Decision No. 834,
pp. 50-51.) As these decisions indicate, the exclusive representative’s right to information is
predicated upon the necessity of the information to discharge its representational duty.
Because the exclusive representative has no duty to represent employees outside the context of
contract negotiations or contract administration, the exclusive representative’s right to
information accordingly is co-extensive with its duty of fair representation.
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The necessary corollary to this conclusion is that when an exclusive representative
chooses to exercise its right to represent an employee when it has no duty to do so, it is entitled
only to the same information to which the employee is entitled under the circumstances.20 As
the majority acknowledges, an exclusive representative has no duty to represent an employee
in an extra-contractual proceeding. (See Sonoma County Superior Court, supra, PERB
Decision No. 2409-C, p. 18, fn. 17 [exclusive representative has no duty of fair representation
when representing an employee in an interactive process meeting]; International Union of
Operating Engineers, Local 501, AFL-CIO (Huff) (2000) PERB Decision No. 1382-S,
adopting proposed decision at pp. 16-17 [exclusive representative has no duty of fair
representation when representing an employee in an investigatory interview].) Consequently,
when an exclusive representative chooses to represent an employee in an extra-contractual
proceeding, it is not entitled to obtain any more information from the employer than that to
which the represented employee is entitled.21 (See Pacific Telephone & Telegraph Co. (1982)
262 NLRB 1048, 1049 (Pacific Telephone) [employee and union representative are entitled to
know subject matter of investigation prior to employee’s investigatory interview]; cf. Ellins v.
City of Sierra Madre (2016) 244 Cal.App.4th 445, 455 [public safety officer is entitled to know
subject of investigation so he or she may meaningfully consult with a representative before
being interviewed].) Consistent with the above principles, I believe prior Board decisions
20 This is consistent with this Board’s recognition that the exclusive representative’s
right to represent an employee when it has no duty to do so is co-extensive with the
employee’s right to be represented in such a situation. (Sonoma County Superior Court (2015)
PERB Decision No. 2409-C, p. 22.)
21 Under the majority’s contrary view, exclusive representatives enjoy the full panoply
of representational rights even in circumstances where they have no duty to represent an
employee. In my view, neither EERA nor the other statutes under PERB’s jurisdiction allow
employee organizations to enjoy full representational rights without corresponding full
representational duties.
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concluding (even in dicta) that the duty to provide information does not apply when an
exclusive representative requests information solely for use in an extra-contractual proceeding
are correct, and would confirm that as the governing rule in future cases.
The majority’s contention that PERB has adopted a contrary rule is not supported by
our decisional law. First, the majority’s reliance on State of California (Department of
Veterans Affairs) (2004) PERB Decision No. 1686-S, City of Redding (2011) PERB Decision
No. 2190-M (Redding), and Mt. San Antonio Community College District (1982) PERB
Decision No. 224 (Mt. San Antonio), is misplaced. According to the majority, these decisions
establish that an employer must provide information relevant to a mandatory subject of
bargaining (in this case discipline) even when there is no contractual mechanism for resolving
a dispute over that subject. But the majority’s review of these decisions overlooks important
facts.
In State of California (Department of Veterans Affairs), supra, PERB Decision
No. 1686-S the applicable memorandum of understanding (MOU) prohibited discrimination
against employees. (Id., adopting proposed decision at p. 7.) Although the MOU’s anti-
discrimination provision did not appear to be subject to the contractual grievance procedure,
the MOU did appear to allow the filing of discrimination complaints.22 (Ibid.) After the
Department received an investigator’s report addressing alleged discriminatory behavior by a
supervisor, the union requested a copy of the report to determine whether to file a
discrimination complaint under the MOU. (Id., adopting proposed decision at pp. 8 & 11.)
22 Notably, neither the Board nor the ALJ drew a distinction between a grievance and a
complaint for purposes of their analysis. (State of California (Department of Veterans Affairs),
supra, PERB Decision No. 1686-S, adopting proposed decision at p. 7, fn. 3.)
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Although the Board stated generally that the report was related to the issues of
“workplace safety and freedom from a hostile work environment[]” (State of California
(Department of Veterans Affairs), supra, PERB Decision No. 1686-S at p. 2), the Board did not
overturn the ALJ’s finding in the adopted proposed decision that the union requested the report
for the purpose of determining whether to file a discrimination complaint under the MOU.
Indeed, as later recognized in Redding, the Board “rejected the employer’s argument that the
information was sought for use in an extra-contractual forum.” (Redding, supra, PERB
Decision No. 2190-M, adopting proposed decision at p. 16 & fn. 26.) Thus, because State of
California (Department of Veterans Affairs) involved information requested for possible use in
a contractual dispute resolution procedure, it does not support the majority’s proposition that
similar information would have to be provided for potential use solely in an extra-contractual
proceeding. (See Oak Valley Hospital District, supra, PERB Decision No. 2583-M, p. 9
[“cases are not authority for propositions not considered”].)
Nor does Redding, supra, support the majority’s proposition. There, the union
requested an investigator’s report addressing allegations of a hostile work environment,
harassment, and unfair work assignments so it could decide whether to file grievances based on
the report’s findings. (Redding, supra, PERB Decision No. 2190-M, adopting proposed
decision at pp. 8-10.) The decision does not indicate that the union sought to use information
from the report in extra-contractual proceedings. Thus, just like State of California
(Department of Veterans Affairs), Redding did not address information sought for use in an
extra-contractual proceeding.
The same appears to be true for Mt. San Antonio. The requested information there
consisted of (1) the names of employees disciplined for distributing leaflets and (2) the home
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addresses of part-time instructors who might have been affected by a recent California
Supreme Court decision. In cursory fashion, the Board resolved the first issue by noting that
among a union’s representational duties is the “insistence that employees not be disciplined for
engaging in protected activity.”23 (Mt. San Antonio, supra, PERB Decision No. 224 at
pp. 9-10.) The decision does not say, however, whether such discipline would have been
subject to a contractual grievance procedure. On the second issue, the Board found the union
was entitled to part-time instructors’ home addresses even though the instructors were no
longer district employees because it pertained to benefits they may have accrued during their
district employment. (Id. at p. 13.) Again, the decision is silent as to whether failure to
provide these benefits could have been subject to the contractual grievance procedure. On the
other hand, there also is no indication in the decision that the union requested either type of
information for use in an extra-contractual proceeding. As a result, Mt. San Antonio also fails
to support the majority’s proposition.
Nor can Los Angeles Unified School District (1994) PERB Decision No. 1061
(LAUSD II) bear the great weight the majority places upon it to establish its purported rule of
law. In LAUSD II, each member of the panel wrote a separate opinion, with two members
agreeing the charge should be dismissed. The concurring and dissenting members also agreed
the duty to provide information extends to extra-contractual proceedings. Notably, there was
no agreement among the panel members on any rationale for the outcome, so there was not
23 The Board supported this observation by citing Transportation Enterprises Inc.
(1979) 240 NLRB 551 for the proposition that “[d]isciplinary letters have been held to be
presumptively relevant to the union’s duty to represent employees.” (Mt. San Antonio, supra,
PERB Decision No. 224, p. 10, fn. 8.) But that decision offers no support for the majority here
because in that case the union requested disciplinary letters “so that it could better represent
employees in grievance proceedings.” (Transportation Enterprises Inc., supra, 240 NLRB at
p. 561.)
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even a plurality opinion. As a result, LAUSD II’s precedential value is highly dubious. (See
George Lithograph (1992) 305 NLRB 1090, 1092 [a Board decision “cannot be relied on”
when it “consists of three separate opinions by three different Board members”].) And later
decisions’ declination to cobble the concurrence and dissent into a holding further undercuts
LAUSD II’s value as support for the asserted rule that the duty to provide information extends
to extra-contractual proceedings. (See Fresno County In-Home Supportive Services Public
Authority, supra, PERB Decision No. 2418-M, pp. 31-32 [finding precedential value of prior
decision “uncertain” where all panel members wrote separate opinions and the majority’s view
had not been adopted in subsequent decisions]; General Electric Co. (1966) 160 NLRB 1308,
1316 [noting later decisions that deviated from prior decision without overruling it “weakened
[the prior decision’s] value as a precedent”]; cf. People v. Dungo (2012) 55 Cal.4th 608, 628
[when determining the holding of a fractured U.S. Supreme Court decision, the court must find
a legal standard that would “necessarily produce results with which a majority of the Court
from that case would agree”], citation omitted, italics added.) Accordingly, PERB’s decisional
law does not support the majority’s contention that PERB has a long-established rule granting
an exclusive representative a right to information for use solely in an extra-contractual
proceeding.
I agree with the majority on one point, however: there is no categorical rule barring
production of information merely because it may be used in an extra-contractual proceeding.
Rather, PERB has adopted the “dual purpose rule,” under which information must be produced
if it is necessary and relevant to fulfilling a simultaneous representational duty,
notwithstanding that it also could be used in an extra-contractual proceeding. (Santa Monica
Community College District (2012) PERB Decision No. 2303, p. 2, fn. 2; LAUSD II, supra,
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PERB Decision No. 1061, p. 12, fn. 9; see Westinghouse Electric Corp. (1978) 239 NLRB
106, 110-111 [“If information is relevant to collective bargaining, it loses neither its relevance
nor its availability merely because a union additionally might or intends to use it to attempt to
enforce statutory and contractual rights before an arbitrator, the Board, or a court”].) The
majority appears to believe this rule will always be satisfied with respect to extra-contractual
disciplinary proceedings because discipline is a mandatory subject of bargaining. But only
“the criteria for discipline and the procedure to be followed[] are matters within the scope of
representation.” (Fairfield-Suisun Unified School District (2012) PERB Decision No. 2262,
p. 12.) Our decisional law has never held that an employer’s individual discipline decisions
must be negotiated.24 Thus, unless the information requested pertains to the criteria or
procedure for discipline and thus could be used in support of a bargaining proposal or
grievance, it would not have to be provided under the dual purpose rule.
In addition to being unsupported by PERB’s decisional law, the majority’s expansion of
the right to information is inconsistent with the statutes under PERB’s jurisdiction. Under the
24 In the absence of any PERB decision on point, the majority cites Total Security
Management (2016) 364 NLRB No. 106, where the National Labor Relations Board held the
employer had a duty to negotiate over individual discipline decisions. But that case involved a
unique set of facts not present here. There, an exclusive representative had been certified but
no collective bargaining agreement was in place yet. (Id. at p. 2.) The employer stipulated that
when it discharged three employees, “it did not apply any uniform policy or practice regarding
discipline for their asserted misconduct.” (Ibid.) Because the disciplinary decisions were
wholly discretionary, the Board held the employer was obligated to bargain over them. (Id. at
p. 10.) Notably, the Board stated that “imposition of discipline on individual employees alters
their terms and conditions of employment and implicates the duty to bargain if it is not
controlled by preexisting, nondiscretionary employer policies or practices.” (Id. at p. 3, italics
added.) Thus, the bargaining obligation recognized in Total Security Management applies only
when there are no existing policies or practices, e.g., collective bargaining agreement
provisions, personnel rules, etc., governing employee discipline. Here—and in by far the
majority of cases that come before PERB—there are state laws, employing agency policies,
and contractual rules governing employee discipline. Thus, there is no basis to apply Total
Security Management in this case. Indeed, it is unlikely the factual predicates for applying
Total Security Management would ever exist in California public sector employment.
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majority’s rule, an exclusive representative’s right to represent an employee entitles the union
to use an information request to bypass any rules and procedures an extra-contractual forum
may have for obtaining information. But the non-supersession language in our statutes
expressly protects such rules from being bypassed. EERA, for instance, provides in relevant
part: “This chapter shall not supersede other provisions of the Education Code and the rules
and regulations of public school employers which establish and regulate tenure or a merit or
civil service system.” (EERA, § 3540.) Likewise, the Ralph C. Dills Act governing state
employer-employee relations provides, in relevant part:
Nothing in this chapter shall be construed to contravene the spirit
or intent of the merit principle in state employment, nor to limit the
entitlements of state civil service employees, including those
designated as managerial and confidential, provided by Article VII
of the California Constitution or by laws or rules enacted pursuant
thereto.
(Dills Act, § 3512.)25 And the Meyers-Milias-Brown Act governing local agency employer-
employee relations similarly states, in relevant part: “Nothing contained herein shall be deemed
to supersede the provisions of existing state law and the charters, ordinances, and rules of local
public agencies that establish and regulate a merit or civil service system.” (MMBA, § 3500,
subd. (a).)26
As the above quoted language indicates, the Legislature’s intent in enacting these labor
relations statutes was not to diminish the role of established civil service systems. But the
majority’s overly broad interpretation of an exclusive representative’s right to information does
just that by necessarily overriding any civil service system’s procedural rules for obtaining
25 The Ralph C. Dills Act is codified at Government Code section 3512 et seq.
26 The Meyers-Milias-Brown Act is codified at Government Code section 3500 et seq.
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information when an employee has union representation in a civil service proceeding.27 On the
other hand, the dual purpose rule, which recognizes a right to information only in contractual
disciplinary proceedings but not in those governed by non-contractual rules, creates no conflict
between the statutory right to represent and the non-supersession provisions. Because we must
strive to harmonize statutory provisions rather than render them inconsistent (Faulder v.
Mendocino County Bd. of Supervisors (2006) 144 Cal.App.4th 1362, 1370), I would continue
to apply the dual purpose rule in extra-contractual forum cases.
Not only is the majority’s legal analysis untenable, but the broad rule announced today
creates a disparity among public employees facing potential or actual discipline. While an
employee has a statutory right to be represented by their union in an extra-contractual
proceeding, an employee is not required to exercise that right, and instead may choose self-
representation or representation by another. (EERA, § 3543.)28 Likewise, while an exclusive
representative has a right to represent employees in extra-contractual proceedings, it is not
required to exercise that right and may decline to represent an employee. Under the majority’s
rule, employees who elect not to have union representation or who are denied union
representation would not be able to obtain as much information in extra-contractual
27 Indeed, although it is unclear whether the majority intends to overrule County of
Tehama (2010) PERB Decision No. 2122-M, that will be the result. Starting today, in a case
before PERB challenging an employee’s discipline an exclusive representative will be able to
submit an information request instead of following the process in PERB Regulations for
issuance of a subpoena for the production of documents.
28 The same is true under the other statutes administered by PERB. (Gov. Code,
§§ 3502 [MMBA], 3515 [Dills Act], 3524.56 [Judicial Council Employer-Employee Relations
Act, codified at § 3524.50 et seq.], 3565 [Higher Education Employer-Employee Relations
Act, codified at § 3560 et seq.], 71631 [Trial Court Employment Protection and Governance
Act, codified at § 71600 et seq.], 71813 [Trial Court Interpreter Employment and Labor
Relations Act, codified at § 71800 et seq.]; Pub. Util. Code § 99563 [Transit Employer-
Employee Relations Act, codified at Pub. Util. Code § 99560 et seq.].)
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proceedings as employees who have union representation. Adherence to the dual purpose rule,
on the other hand, would ensure that all employees who participate in extra-contractual
proceedings are able to obtain the same information in those proceedings. Principles of
fundamental fairness thus lead me to reject the majority’s rule while urging continued
application of the dual purpose rule.29
Finally, I am puzzled by the majority’s implication that an exclusive representative
cannot adequately represent an employee in an extra-contractual proceeding when it is unable
to obtain information beyond that which the employee may obtain. By holding that an
exclusive representative is entitled to sufficient information about the nature of the allegations
being investigated to allow the union to provide meaningful representation to an employee
during an investigatory interview, the majority necessarily concedes that, with respect to such
interviews, the information provided to the employee is sufficient for the union to perform its
representational function. But the majority does not explain why in any other extra-contractual
proceeding, such as a Skelly hearing, interactive process meeting, or civil service commission
hearing, a union would need more information than what an employee may obtain. Nor is
there any evidence before us to support the majority’s claim that early resolution of
disciplinary matters would be more likely if the employer were required to provide a union
with more information than the represented employee could obtain. Although it is
understandable that a union representative would want as much information as possible when
representing an employee in an extra-contractual proceeding, I cannot find on the record before
29 Indeed, by providing a benefit to employees who choose union representation in
extra-contractual matters, the majority implicitly signals a preference for exercise of that right
over exercise of the statutory rights to self-representation and to refuse to participate in
employee organization activities. As a neutral agency, PERB should not encourage or
discourage the exercise of particular statutory rights.
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us that having more information than that to which the employee is entitled is necessary for the
union to fully exercise its statutory right to represent the employee.
In sum, I join the majority in holding that, prior to an investigatory interview, an
exclusive representative is entitled to obtain only such information about the allegations being
investigated as is necessary under the circumstances for it to meaningfully represent the
interviewed employee. I decline, however, to join the rest of the majority decision.
44