City and County of San Francisco (PERB 2891M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1021,
Charging Party,
v.
CITY AND COUNTY OF SAN FRANCISCO,
Respondent.
Case No. SF-CE-1779-M
PERB Decision No. 2891-M
February 27, 2024
Appearances: Weinberg, Roger & Rosenfeld by Kerianne R. Steele, Michaela F.
Posner, and Ailyn Gonzalez, Attorneys, for Service Employees International Union,
Local 1021; David Chiu, City Attorney, Jonathan Rolnick, Chief Labor Attorney, and
Carlos Almendarez, Deputy City Attorney, for City and County of San Francisco.
Before Banks, Chair; Krantz and Paulson, Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by both parties to a proposed decision of an
administrative law judge (ALJ). The dispute arose after Charging Party Service
Employees International Union, Local 1021 (SEIU) filed a class action grievance
alleging that Respondent City and County of San Francisco (City) discriminated
against African American employees, including by extending their probationary
periods and/or releasing them from probation. SEIU submitted a request for
information (RFI) to the City, seeking information relevant to the grievance. The City
refused to provide certain requested data, leading SEIU to file this charge. In the

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current procedural posture, the only information still in dispute is disaggregated
race/ethnicity data for employees the City released from probation and employees
who had their probationary periods extended.
The complaint, as amended, alleges that the City violated the Meyers-Milias-
Brown Act (MMBA) in three respects.1 The ALJ dismissed two claims, finding that the
City neither unilaterally changed the status quo nor engaged in direct dealing when it
altered a form the City uses to ask employees to report their race and/or ethnicity.
SEIU took no exceptions to the ALJ’s conclusions on the unilateral change and direct
dealing claims, and we therefore do not address them.2
The ALJ sustained one claim, however, finding that the City violated its duty to
meet and confer in good faith by refusing to provide certain requested information.
The City’s exceptions assert that the ALJ erred in requiring the City to provide
disaggregated race/ethnicity data. SEIU’s exceptions, in turn, ask us to provide
greater remedies than those the ALJ ordered. For the reasons explained below,
neither party succeeds in its exceptions.3
1 The MMBA is codified at Government Code section 3500 et seq. All
undesignated statutory references are to the Government Code.
2 The ALJ’s conclusions about the City’s changes to the form are thus final and
binding only on the parties to this case; they are otherwise non-precedential. (County
of Santa Clara (2021) PERB Decision No. 2799-M, p. 3, fn. 4.)
3 While the proposed decision directs the City to provide multiple categories of
information, the City excepts only as to disaggregated race/ethnicity data. Our remedy
includes an order to provide the additional information categories that the City no
longer contests, but we express no opinion as to the ALJ’s conclusions on those
categories. (County of Santa Clara (2023) PERB Decision No. 2876-M, p. 3, fn. 3
[judicial appeal pending on other grounds].)

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FACTUAL AND PROCEDURAL BACKGROUND4
For five decades, the federal Equal Employment Opportunity Commission
(EEOC) has required state and local governments with 100 or more employees—
including the City—to submit a biannual report containing employees’ race/ethnicity
and other demographic data. The EEOC uses this data for purposes such as
comparing the City’s workforce with the available labor force in the geographic area.
To collect the required information while onboarding new employees, the City
asks them to voluntarily report their race/ethnicity on a self-identification form. When
the parties’ dispute arose, this form stated as follows: “[the City] reports information
about the gender and race/ethnicity of its workforce to the federal government to
comply with civil rights laws. The collected information is kept confidential and is
aggregated when reported, so no individuals are identified.” As required by federal
law, when employees decline to self-report their race/ethnicity, a City employee
completes the form based solely on visual perception.
At all relevant times, the City and SEIU have been parties to a Memorandum of
Understanding (MOU) covering a City-wide miscellaneous bargaining unit. The MOU
prohibits discrimination, stating in relevant part that “no person employed or applying
for employment shall in any way be discriminated against because of that person’s
actual or perceived race. . .”
4 The parties largely accede to the ALJ’s factual findings, which we incorporate
and supplement below.

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I. 	SEIU Files a Grievance and Submits an RFI
On July 31, 2019, SEIU Field Supervisor Xiu Min Li filed a class action
grievance alleging: “The City has engaged in individual, systematic and ongoing racial
discrimination against African American employees by releasing them from probation
unfairly and engaging in unfair discipline and employment actions. The known impacted
employees include but are not limited to [employee names and information omitted].”
Along with the grievance, Li sent the City an RFI seeking: (1) “A list of all probation
releases across all City Departments in the last 3 years”; (2) “A list of all probation
extensions across all City Departments in the last 3 years including those that are no
longer working at [the City] and those that are still working at [the City]”; and (3)
“name, employee ID, classification number and title, department, date of hire, date of
release, ethnic/racial demographic, appointment status, personal phone number,
home address and personal email address of each employee listed.”
On August 8, 2019, City Classification and Compensation Director Steven
Ponder responded to the RFI. Addressing the race/ethnicity data SEIU sought in its
third request, Ponder wrote that the City “cannot provide” the data “because of
employee privacy.”
The parties continued to communicate about multiple aspects of the RFI. On
August 20, 2019, Li e-mailed Ponder in relevant part:
“As for racial/ethnic demographics, if you do not wish to
provide raw data, please provide a summary or aggregate
as to how many of these employees are black, Latino,
white, etc. Moreover, again, the union maintains its right to
the information going back 3 years and as requested, we

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believe the [C]ity has the info or the capacity to collect such
info as similar data was provided to the union in the past or
the Board of Supervisor[s].
[¶] . . . [¶]
“Please provide the info asap so we can proceed in the
grievance process and/or file a PERB charge if necessary
to compel the release of these data.”
II. 	After SEIU Files This Charge, the Parties Continue Discussing SEIU’s RFI
SEIU complied with the MMBA’s six-month statute of limitations by filing this
charge in January 2020.5 After PERB’s Office of the General Counsel issued a
complaint in July 2020 and the City answered a month later, the parties continued to
discuss the information SEIU sought, leaving the case in abeyance with no hearing
date on the calendar. One issue the parties discussed during this time was SEIU’s
request that the City go beyond supplying aggregated race/ethnicity data and instead
provide such data on a disaggregated basis for employees the City released from
probation and for employees who had their probation extended. By e-mail dated
November 5, 2020, Ponder rejected this request, as follows:
“What we will not provide for this group is disaggregated
information on race and gender by individual; we have and
5 The City’s exceptions include a conclusory paragraph regarding the six-month
statute of limitations that applies to unfair practice charges. The City appears to claim
that SEIU’s unilateral change claim was untimely because SEIU “knew about the
City’s practice and policy more than six months prior to filing the charge.” We need not
resolve that issue, as the unilateral change claim is not before us. In the absence of
any explanation as to how the statute of limitations could apply to the claim that the
City failed to meet and confer in good faith when it refused to provide requested
information, we find any such defense waived. In any event, we would reject any such
defense given that SEIU filed this charge less than six months after the City refused to
provide certain information.

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will continue to provide in this data aggregate where
individuals cannot be identified.
“This is consistent with the City’s Employee Data Privacy
which is attached.[6]
“The basis for withholding race and gender by individual
employee is based on the following:
• 	“S.F. Admin. Code §§ 67.1(g)
• 	“S.F. Admin. Code §§ 67.24(c)
• 	“Cal. Gov. Code § 6254(c)
• 	“Charter §16.130”
On November 18, 2020, in a final e-mail thread regarding race/ethnicity data, Li
confirmed that the parties “did not reach agreement on what the city can provide” and
reiterated that that SEIU “would take whatever [Ponder’s] willing and able be provided
[sic] now but that we continue to demand to receive the remaining info that the city
insists it cannot provide.” In a response e-mail the same day, Ponder reiterated that
the City would not provide the disaggregated data SEIU sought. Ponder continued,
“While we recognize your valid interest in this data, we also have a counterbalancing
concern about employee privacy.”
Despite the parties’ clear disagreement on disaggregated race/ethnicity data in
November 2020, this case remained in abeyance for almost 18 more months. During
that time, the parties arbitrated the discrimination grievance, as discussed below.
6 The City’s “Employee Data Privacy” is a two-page internal document prepared
by Ponder regarding types of employee data the City collects and with whom it shares
such information.

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III. 	The Arbitrator Issues a Decision and SEIU Removes this Case from Abeyance
On March 10, 2022, Arbitrator David Weinberg denied SEIU’s discrimination
grievance, finding that the City did not violate the MOU when it released the three
named employees from probation.
On April 13, 2022, SEIU asked PERB to remove this case from abeyance. On
May 9, 2022, the ALJ provided notice that the formal hearing would take place on
August 18-19, 2022. On the first hearing day, SEIU moved to amend the complaint to
add the unilateral change and direct dealing allegations. The ALJ partially granted the
motion but scheduled an additional day of hearing for December 2022, to allow the
City time to prepare a defense against the new claims. The ALJ later moved the final
hearing date to February 2023. After the parties filed post-hearing briefs, the ALJ
issued the proposed decision in June 2023.
DISCUSSION
When resolving exceptions to a proposed decision, the Board applies a de novo
standard of review. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 5.) In
the following Discussion, Part I(A) explains the legal principles relevant to SEIU’s
request for disaggregated race/ethnicity data. Part I(B) applies those standards to the
record. Part II addresses SEIU’s request for an augmented remedy.
I. 	Information Requests Regarding Disaggregated Race/Ethnicity Data
A. 	Governing Legal Principles
An employer must normally provide an exclusive representative with all
information that is necessary and relevant to its right to represent bargaining unit
employees regarding mandatory subjects of bargaining. (Butte-Glenn Community

8
College District (2022) PERB Decision No. 2834, p. 9 (Butte-Glenn); City and County
of San Francisco (2020) PERB Decision No. 2698-M, p. 6; Contra Costa Community
College District (2019) PERB Decision No. 2652, pp. 5, 16-17 (Contra Costa);
Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 8
(Sacramento).) This is a liberal, discovery-type standard akin to the standard
California courts use to determine relevance, and, notably, “necessary” and “relevant”
are interchangeable terms that do not have separate meanings. (Butte-Glenn, supra,
p. 9; Contra Costa, supra, pp. 5-6; Sacramento, supra, p. 8.)
Race/ethnicity information is relevant because of unions’ critical role in working
to prevent and mitigate employment discrimination. (See, e.g., Contra Costa, supra,
PERB Decision No. 2652, pp. 16-17; State of California (Department of Veterans
Affairs) (2004) PERB Decision No. 1686-S, adopting proposed decision at pp. 10-11.)
That role is particularly clear where, as here, the operative MOU includes a
nondiscrimination clause. The City does not dispute that SEIU’s request for
disaggregated race/ethnicity data was relevant, but it refused to provide the data in
disaggregated form because it believed doing so would unduly infringe on employee
privacy rights.
Under the labor relations statutes we administer, a union’s unique
representational functions may allow it a right to sensitive or confidential information.
(City and County of San Francisco, supra, PERB Decision No. 2698-M, p. 7; Contra
Costa, supra, PERB Decision No. 2652, p. 18; Sacramento, supra, PERB Decision
No. 2597, p. 11.) When an employer believes that a union has sought confidential
information, settled procedural protocols govern how an employer must negotiate in

9
good faith over potential accommodations, and established substantive standards
govern what must occur if the parties cannot work out an accommodation.
Procedurally, the employer must offer to bargain in good faith toward
accommodating all legitimate competing interests, and if it instead unilaterally refuses
to provide allegedly confidential information, it is liable for a violation without the need
for further analysis. (City and County of San Francisco, supra, PERB Decision
No. 2698-M, pp. 7 & 10-12; County of Tulare (2020) PERB Decision No. 2697-M,
pp. 13-14 (Tulare); Contra Costa, supra, PERB Decision No. 2652, pp. 18-20;
Sacramento, supra, PERB Decision No. 2597, pp. 12-14.) Bargaining parties may
negotiate an accommodation that recognizes “that unions [can] be trusted to be
discreet.” (Sacramento, supra, p. 13, citation omitted.) Thus, among other possibilities,
the parties may enter into a confidentiality agreement or other arrangement in which
the requesting union agrees to limit its use of the information to a particular purpose,
and to disclose such information to union employees or attorneys only if necessary for
that purpose. (Contra Costa, supra, p. 19; Sacramento, supra, pp. 12-13; Los Angeles
Unified School District (2015) PERB Decision No. 2438, p. 20 (LAUSD).)
While parties are often able to negotiate accommodations on privacy issues,
alternatively the union may pursue an unfair practice charge. If the employer offered to
bargain, and it bargained in good faith to the extent requested, then the focus of the
charge becomes the substantive merits of the RFI and the privacy claim. Where the
employer raised a significant privacy interest—meaning a legally protected interest that
the RFI invades in a manner that is serious in both its nature and its scope—then a
balancing test applies. (Tulare, supra, PERB Decision No. 2697-M, p. 13; LAUSD,

10
supra, PERB Decision No. 2438 pp. 13-14, citing County of Los Angeles v. Los Angeles
County Employee Relations Com. (2013) 56 Cal.4th 905, 926.) Under this test, an
employer has the burden to demonstrate that the privacy interest outweighs the union’s
informational need. (City and County of San Francisco, supra, PERB Decision
No. 2698-M, p. 7; Contra Costa, supra, PERB Decision No. 2652, pp. 17-18;
Sacramento, supra, PERB Decision No. 2597, pp. 11-12 & 14, fn. 8; LAUSD, supra,
pp. 7-8.)
In LAUSD, supra, PERB Decision No. 2438, a school district assigned teachers
to educational service centers (ESCs) pending investigation for serious misconduct
such as child abuse, physically abusing a staff member, or testing irregularities. (Id. at
p. 2.) United Teachers Los Angeles (UTLA) requested an individualized list showing
teachers assigned to ESCs. (Id. at p. 3.) The district asserted that teachers accused of
serious wrongdoing had a significant privacy interest and should therefore have an
opportunity to opt out of UTLA receiving their contact information. (Ibid.) We
disagreed. Although teachers’ privacy interest was significant because assignment to
an ESC put them under a “cloud of suspicion,” it did not outweigh UTLA’s need to
communicate with teachers assigned to ESCs so that it could assist them, develop
ESC-related contract proposals, and investigate potential age discrimination or
contract violations. (Id. at pp. 3, 7-10.) Permitting the district to solicit opt-outs from
teachers, who might not recognize how this would impact UTLA’s ability to represent
them, would prevent UTLA from “efficiently” accomplishing its representational
purposes. (Id. at p. 10.) It was preferable to have UTLA contact teachers assigned to
ESCs and allow them to directly communicate about whether they wished to become

11
involved with or file a grievance, or if they otherwise desired assistance. (Ibid.) We
also relied upon UTLA’s promise to keep the information confidential (id. at p. 10),
noting that unions are commonly entrusted with private employee information, as
“[o]ne of the consequences of collective bargaining is that it subordinates the
particular interests of individual employees to the collective interest of the unit” (id. at
p. 11, citation omitted). Finally, it was of little import that the district had led teachers to
believe they had a protected privacy interest, as such an employer promise or practice
can only be dispositive if it derives from a significant privacy right established by law.
(Id. at pp. 12-13 & fn. 5 [citing other authority].)
There is no PERB precedent specifically discussing disaggregated
race/ethnicity information. However, our reasoning in LAUSD, supra, PERB Decision
No. 2438, pp. 7-11, supports a union’s need to receive such individualized information
regarding probationary employees to pursue workplace antidiscrimination advances
through grievances, bargaining for better assistance for probationary employees, or
otherwise representing employees on issues of discrimination, harassment, or any
interaction with the employer that can mean the difference between employment and
unemployment. (See also Contra Costa, supra, PERB Decision No. 2652, pp. 15-16.)
Moreover, we find persuasive precedent elsewhere. In The Bendix Corp. (1979)
242 NLRB 62, the National Labor Relations Board (NLRB) found that employees have
little, if any, confidentiality right in disaggregated data on their race and sex, and that
any such privacy right did not outweigh the requesting union’s need for the data. (Id. at
p. 63, fn. 11 [“We fail to see how the considerations of secrecy and confidentiality
apply to . . . the race and sex of applicants for employment.”].) The NLRB required the

12
employer to provide the name, race, and sex of applicants for posted jobs, finding this
information was necessary for the union to enforce the parties’ contractual
antidiscrimination clause. (Id. at p. 63.) Specifically, the union needed disaggregated
information to efficiently investigate potential discrimination in filling posted positions.
(Id., adopting proposed decision at pp. 70-71.) The NLRB explained that:
“Inasmuch as the Union has a right to protect unit
employees from discriminatory treatment by Respondent, it
has the need for information related to race and sex in
order to carry out this function. Furthermore, the
antidiscrimination clause in the collective-bargaining
agreement entitles the Union to this information to enable
the Union to implement contractual policy and monitor the
terms of the agreement. Thus, we find that the
[demographic] information relating to bargaining unit
employees is presumptively relevant and must be supplied
by Respondent.”
(Id. at p. 63; accord Strategic Resources, Inc. (2016) 364 NLRB 451, 462 & 467-470
[race, age, and gender of employees is presumptively relevant information that the
employer must disclose to the exclusive representative upon request].)7
7 California public sector labor relations precedent frequently protects employee
and union rights to a greater degree than does federal precedent governing private
sector labor relations, and we accordingly consider federal precedent only for its
potential persuasive value. (The Accelerated Schools (2023) PERB Decision
No. 2855, pp. 20-31; Operating Engineers Local Union No. 3 (Wagner et al.) (2021)
PERB Decision No. 2782-M, p. 9, fn. 10; County of San Joaquin (2021) PERB
Decision No. 2761-M, pp. 24, 33, 45-48 & fn. 19; City of Bellflower (2020) PERB Order
No. Ad-480-M, p. 11; accord County of San Joaquin v. Public Employment Relations
Bd. (2022) 82 Cal.App.5th 1053, 1073; Social Workers’ Union, Local 535 v. Alameda
County Welfare Dept. (1974) 11 Cal.3d 382, 391.)

13
Likewise, courts have recognized that a plaintiff alleging discriminatory
treatment may need access to personnel file information on other similarly situated
employees to investigate claims of discriminatory practices. (See, e.g., Garrett v. City
and County of San Francisco (9th Cir. 1987) 818 F.2d 1515, 1519, fn. 6 [former city
firefighter who sued for race discrimination was entitled to obtain personnel files of
colleagues in city’s fire department, despite city’s claim that such discovery infringed
on firefighters’ privacy, because of need to assess potential evidence of race-based
disparate treatment within the department].)
B. 	Application to SEIU’s RFI
SEIU requested information relevant to its class action grievance asserting that
the City violated the MOU’s antidiscrimination provision by disproportionately releasing
from probation or extending the probation of African American bargaining unit
members. In response, the City stated that it would provide the data only in aggregate
form. When an employer unilaterally states such a position without offering to bargain
in good faith over accommodating all relevant interests, the employer violates its duty
to bargain in good faith and no further analysis is necessary to establish liability. (See
ante at p. 9.) Here, however, we continue with the analysis as if the City had offered to
bargain. We do so both to provide guidance on the issues at stake and because the
City came close to offering to bargain when it expressed a continuing desire to work
with the union on the request.
To begin, the City does not contest that SEIU sought necessary and relevant
information. Indeed, the City told SEIU it recognized the union had a “valid” interest.
The ALJ, similarly, after hearing testimony about the need for disaggregated race and

14
ethnicity information, credited such testimony and concluded that SEIU needed the
disaggregated data to competently perform its representational function. We agree, as
SEIU needs to be able to contact African American unit members released from
probation (or who had their probation extended) to help such employees and to
investigate whether the experience of the three named employees in its grievance
reflected a broader problem. SEIU needs to interview such employees to assess
potential violations, defenses, and any other causes of racially skewed treatment of
employees on probation, as well as to decide whether to push the case to arbitration,
and if so to prepare for arbitration. (State of California (Department of Corrections and
Rehabilitation) (2012) PERB Decision No. 2285-S, pp. 9-10 [union’s ability to
independently investigate potential grievance “is an essential tool for determining
whether the grievance has any merit and, if it does, for providing effective
representation”].) SEIU must be able to target its inquiries toward potential similarly
situated employees so that it can “efficiently accomplish” these representational
functions. (LAUSD, supra, PERB Decision No. 2438, p. 10.)
The City has not met its burden to prove that disclosing disaggregated
race/ethnicity information to SEIU invades privacy in a manner that is serious in both
its nature and its scope, much less that there is a serious privacy invasion that
outweighs SEIU’s laudable purpose in seeking the information. We reach this
conclusion for multiple reasons. First, we find persuasive the NLRB and judicial
precedent noted ante at pages 11-13. Stated simply, employees’ privacy interest in
their race/ethnicity is limited enough that it gives way to a union or plaintiff seeking to

15
investigate, prevent, ameliorate, or remedy workplace discrimination, as SEIU seeks
to do here.
Indeed, it is important to step back and survey the overall context. In an ideal
world, race/ethnicity information should not be stigmatizing in the least. Due to
discrimination, we do not currently live in such an ideal world.8 But that truth
underscores why context matters so much. The City is not shielding race/ethnicity
information from a third party that seeks to profit or benefit from the data, or that
significantly risks taking actions harmful to the employees. Rather, the City raises the
issue as an obstacle to disclosing data to the employees’ exclusive representative.9
The data SEIU requested will assist in investigating potential discrimination and
offering employees help vis-à-vis any race-based disparate treatment or disparate
impact that City employees may be subject to during their probationary periods. As in
LAUSD, supra, PERB Decision No. 2438, therefore, we find an employer interposing
employees’ alleged privacy interests is a particularly weak argument when it hinders
8 In a 2020 proposed decision in PERB Case No. SF-CE-1163-H, the ALJ found
no significant privacy interest in disaggregated race and sex data, in part based on the
ALJ’s stated view that such information should not be stigmatizing. The employer took
no exceptions and instead complied with the ALJ’s order to provide such data to a
requesting union. Thus, PERB Decision No. HO-U-1657-H is final and binding only on
the parties involved, and it is otherwise non-precedential.
9 Merely because an employer must provide information to a union in light of its
role as an exclusive representative, the employer need not provide the same
information to others. (Boardman v. Inslee (9th Cir. 2020) 978 F.3d 1092, 1110-1113
[law does not discriminate in providing union preferential access to information based
on legal status as exclusive representative].) As in Boardman, if employees choose a
different union as their exclusive representative, the informational rights at issue in this
case would transfer to that union.

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the same employees from receiving assistance, and such an argument does not
normally outweigh a union’s antidiscrimination purpose. (Id., adopting proposed
decision at pp. 9-10; see also Sacramento, supra, PERB Decision No. 2597, p. 9
[personnel records of non-bargaining unit employees are relevant and necessary as a
comparator, though in cases where the union has no need to speak to the employees
or to know their names, it may be proper to redact names and use de-identified
placeholders allowing all parties to track important figures across multiple records].)
While the City claims that Title VII of the Civil Rights Act of 1964 (42 U.S.C.
§ 2000e et seq.) requires it to keep race and ethnicity information confidential, the City
fails to demonstrate that is true. Rather, the City cites to section 709(e) of Title VII
(42 U.S.C. § 2000e-8(e)), which prevents EEOC employees from publicizing certain
data the agency obtains. If anything, this shows Congress knew how to protect
confidentiality of race/ethnicity information and chose to place limits on the EEOC
rather than on the government agencies required to collect and report such
information. Thus, if either party gains a stronger argument in this case from the
federal framework, it is SEIU, not the City.10
10 As noted, SEIU no longer pursues its unilateral change and direct dealing
claims. This concession moots another City argument based on federal law: the City’s
claim that it cannot bargain about data collection practices because federal law
establishes the manner of collection and the matter is therefore exempt from
bargaining pursuant to San Francisco Fire Fighters Local 798 v. Board of Supervisors
(1992) 3 Cal.App.4th 1482, 1494 [holding that matters pertaining to promotion are
normally subject to bargaining, but there is an exception for a city’s decision made to
comply with a federal consent decree]. To the extent the City has attempted to merge
its unilateral change defense with its defense to SEIU’s RFI, the argument has no
traction as a reason to deny the RFI, as federal law imposes no confidentiality
requirement on the City.

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Nor do we find persuasive the City’s citations to the California Public Records
Act (CPRA).11 The labor relations statutes we administer confer upon an exclusive
representative, as part of its representational rights and duties, separate informational
rights that are broader than those that the public holds, and which include access to
sensitive and confidential employee information. (Sacramento, supra, PERB Decision
No. 2597, pp. 10-12.) Indeed, a City witness noted this point in his testimony. CPRA
defenses accordingly do not apply to RFIs arising under a labor relations statute.
(Id. at p. 10; accord Butte-Glenn, supra, PERB Decision No. 2834, p. 15, fn. 9; Tulare,
supra, PERB Decision No. 2697-M, pp. 14-15, fn. 9.)
Moreover, the City mischaracterizes the CPRA. Its full argument on the CPRA
is as follows: “Section 6254(c) of the Government Code states the public generally
does not have a right to obtain disclosure of information that would ‘constitute an
warranted [sic] invasion of personal privacy,’ and elsewhere affirms that the public is
entitled to ‘data regarding age, race, ethnicity, national origin, or gender . . . so long as
the data contains no individually identifiable information.’ (Gov. Code §§ 6254 (c),
6254.18.)” The quoted language about providing race and ethnicity information in a
de-identified manner comes from former section 6254.18 (now recodified in sections
7926.400-7926.430), and it applies solely to employees and agents of reproductive
health services facilities. As with the City’s citation to federal law, this citation shows
the Legislature knows how to explicitly require de-identification of race/ethnicity
11 The CPRA was originally codified at section 6250 et seq. The CPRA
Recodification Act of 2021, effective January 1, 2023, renumbered the law’s provisions
without any substantive change relevant to this case. (See §§ 7920.000-7931.000.)

18
information but has not done so for the City’s employees, even as to requests from
members of the public.12
The City also has its own public records regulations, which are part of the City’s
Sunshine Ordinance. The City cites two such provisions, found in sections 67.1 and
67.24(c) of the City’s Administrative Code. Section 67.1 is a general statement
affirming that, in the context of public meetings, City employees, among others, have a
right of privacy, though that privacy interest gives way in favor of open meetings.
Section 67.24(c) similarly does not aid the City, for multiple reasons: (1) it governs
requests for personnel information from the public, not from an exclusive
representative union; (2) its only reference to race or ethnicity appears in section
67.24(c)(1)(i), which covers only information on job applicants; and (3) the provision
on job applicants, while poorly written and subject to more than one interpretation,
may require disclosure of the ethnicity of each successful job applicant.
We next consider the City’s reliance on Article 16 of its City Charter, entitled
“Miscellaneous Provisions,” and specifically to Section 16.130, entitled “Privacy First
Policy.” Section 16.130 states that it is “intended to provide guidance to the City when
12 Were a member of the public to submit a CPRA request for disaggregated
race/ethnicity data, the general CPRA provision on personnel records would apply.
Under that provision (formerly § 6254(c) and now recodified as § 7927.700), the
outcome depends on balancing any potential privacy invasion with the benefit of
disclosure to the public. (Marken v. Santa Monica-Malibu Unified School Dist. (2012)
202 Cal.App.4th 1250, 1272-1276.) We do not speculate on the outcome of such a
hypothetical analysis, as it would be unlike the analysis here. Not only does a union
have greater informational rights than the public, but, as discussed post, we are able
to limit SEIU’s use and disclosure of the data in a way that is impossible when a
government agency fulfills a CPRA request.

19
considering the adoption of privacy-protective laws, regulations, policies, and practices
for the City.” Section 16.130(e)(5) states that the City shall “[d]iscourage the collection,
storage, sharing, or use of Personal Information, including Personal Information that
may identify an individual’s race, religion or creed, national origin, gender, sexual
orientation, age, physical or mental disability, or other potentially sensitive
demographic information, unless necessary to accomplish a lawful and authorized
purpose.” And Section 16.130(e)(6) states that the City shall “[d]e-identify data sets,
when collected for research, statistical, or other analytical purposes, thereby removing
the ability to connect personal characteristics with specific individuals, and implement
technical safeguards to prevent re-identification of information.”
While the record contains no evidence regarding these provisions’ genesis or
intent, we glean from their language and placement in the Charter’s “Miscellaneous
Provisions,” rather than in the Charter’s separate, extensive provisions on labor and
employment, that they were not necessarily enacted with the intent of impacting the
City’s labor relations. In any event, Section 16.130(e)(5) explicitly allows provision of
identified information “to accomplish a lawful and authorized purpose.”13
For these reasons, it is not difficult to harmonize the City’s Charter, ordinances,
policies, and practices with the MMBA principles explained above. Notably, however, if
such harmonizing were not possible, the MMBA would preempt any conflicting local
regulation or policy. (County of Los Angeles v. Los Angeles County Employee
Relations Com., supra, 56 Cal.4th at p. 917; Building Material and Construction
13 Charter Section 16.130(e)(2) contains the same carve-out, using the same
language.

20
Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651, 665; International Brotherhood of
Electrical Workers v. City of Gridley (1983) 34 Cal.3d 191, 202; International
Federation of Professional and Technical Engineers v. City and County of San
Francisco (2000) 79 Cal.App.4th 1300, 1306, citing Los Angeles County Civil Service
Com. v. Superior Court (1978) 23 Cal.3d 55, 63; Huntington Beach Police Officers’
Assn. v. City of Huntington Beach (1976) 58 Cal.App.3d 492, 500-502; San Leandro
Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553, 557; City and
County of San Francisco (2020) PERB Decision No. 2691-M, pp. 20-21, 31, 43 & 52.)
Furthermore, to the extent the City cites its own actions as creating a privacy
right, we have already noted (ante at p. 11) that an employer normally does not create
an obstacle to disclosure to an exclusive representative solely via the employer’s own
act. Rather, an employer’s policy or promise of confidentiality typically becomes
relevant to this analysis only if grounded in a previously existing privacy right.14
Finally, in LAUSD, supra, PERB Decision No. 2438, we noted that UTLA would
use the information in question only as needed for proper purposes. (Id. at p. 10.)
Similarly, we have often noted that one appropriate accommodation of competing
interests is to restrict a union’s use of information to limited, proper purposes. (Contra
Costa, supra, PERB Decision No. 2652, p. 19; Sacramento, supra, PERB Decision
No. 2597, pp. 12-13; LAUSD, supra, PERB Decision No. 2438, p. 20.) While such an
extra precaution may not be strictly necessary here, it further erases any doubt as to
14 The City has also waived the argument that it led employees to rely on the
privacy of their race/ethnicity, as the City failed to preserve this argument in its
exceptions.

21
the proper outcome. (See, e.g., Hill v. National Collegiate Athletic Assn. (1994)
7 Cal.4th 1, 38 [holding that “if intrusion is limited” and information is disclosed only “to
those who have a legitimate need to know, privacy concerns are assuaged”].) Indeed,
by adding a protective order to our remedy, we adopt a common judicial approach to
allowing full discovery while minimizing intrusions on privacy. (See Lindemann,
Grossman & Weirich, Employment Discrimination Law, Ch. 34.IIIA.1 (7th ed. 2023)
(e-book) [noting that “blanket claims of privacy, even when based on statute or rule,
often do not protect nonparty employee personnel files or similar information from
discovery in discrimination cases, particularly when the court has entered a protective
order to ensure confidentiality”].) We therefore direct SEIU to refrain from releasing
disaggregated race/ethnicity information and to use such information only as needed
to investigate and/or seek to prevent, lessen, ameliorate, or remedy potential
workplace discrimination or other potential legal or contractual violations.
Accordingly, the City’s showing of privacy invasion is small enough that there is
no need to engage in balancing (Tulare, supra, PERB Decision No. 2697-M, p. 13), or,
in the alternative, the City has not carried its burden of proving that a significant threat
to a legitimate privacy right outweighs SEIU’s representational needs (ibid). For the
foregoing reasons, we affirm the ALJ’s conclusion as to race/ethnicity data.15
15 By the time the City complies with our order, most City employees at issue in
the RFI will be former employees. We express no opinion whether SEIU may be able
to help such employees, for instance by arguing that the City’s eventual provision of
information triggers applicable statutes of limitations. Irrespective of what percentage
of former or current employees SEIU may be able to assist, the City cannot interpose
new defenses that have arisen based on the passage of time. (Butte-Glenn, supra,
PERB Decision No. 2834, p. 19.) To rule otherwise would frustrate SEIU’s ability to
investigate patterns and potentially achieve systemic change by bargaining for

prospective, probation-related contract provisions. Similarly, by the time we issued
LAUSD, supra, PERB Decision No. 2438, a considerable number of the teachers in
question were no longer under investigation and/or were former employees, but that
did not impact our order.
22
II. 	SEIU’s Exceptions as to Remedy
The Legislature has vested PERB with broad authority to decide what remedies
are necessary to effectuate the purposes and policies of the MMBA and the other acts
we enforce. (MMBA, § 3509, subd. (b); Mt. San Antonio Comm. College Dist. v. Public
Employment Relations Bd. (1989) 210 Cal.App.3d 178, 189.) PERB remedies must
serve the dual purposes of compensating for the harm a violation causes and
deterring further violations. (County of San Joaquin v. Public Employment Relations
Bd. (2022) 82 Cal.App.5th 1053, 1068; Bellflower Unified School District (2022) PERB
Decision No. 2544a, p. 26.) Remedial orders typically must rely to a degree on
estimates; such estimates are preferable to allowing uncertainty—caused by unlawful
conduct—to leave an unfair practice without any effective remedy. (Bellflower Unified
School District (2021) PERB Decision No. 2796, p. 20; Lodi Unified School District
(2020) PERB Decision No. 2723, p. 21, fn. 13; City of Pasadena (2014) PERB Order
No. Ad-406-M, pp. 8, 13-14, 26-27.)
The ALJ’s proposed remedy would require the City to provide SEIU with the
2016-2019 information it sought, including disaggregated race/ethnicity data. While
information from 2016-2019 is no longer the most useful data set for SEIU to fulfill its
statutory purposes, PERB will rarely find that an RFI becomes moot, lest the delay of
litigation end up allowing respondents to avoid their duties. (Butte-Glenn, supra, PERB
Decision No. 2834, p. 19; see also p. 21, fn. 15, ante.) But circumstances such as this

23
one lead us to require the respondent to provide both the data originally requested as
well as a current version thereof if requested. (County of Ventura (2018) PERB
Decision No. 2600-M, pp. 44 & 46.) Such an obligation would exist in any event by
virtue of PERB’s standard order to cease and desist further violations. (National Labor
Relations Bd. v. P*I*E Nationwide, Inc. (7th Cir. 1990) 894 F.2d 887, 892 [“If a cease
and desist order became moot by virtue of the respondent’s discontinuing the specific
illegalities that gave rise to the order, such orders would have no force at all—the
respondent would comply for a day, declare the order moot, and resume its violations
with impunity”].) However, it is worthwhile to be more explicit where possible, and we
do so here by requiring the City to update the 2016-2019 data promptly upon receiving
such a request from SEIU.
SEIU also seeks two other remedies. First, SEIU asks us to direct the City to
alter its forms, practices, or policies relevant to soliciting race/ethnicity information.
However, SEIU has filed no exceptions regarding the ALJ’s decision to dismiss the
complaint’s unilateral change and direct dealing claims. Moreover, as shown in our
remedial order, post, we need not order changes to forms, policies, or practices to
effectuate the MMBA’s purpose of providing SEIU with the information it needs to
perform its statutory purposes. We therefore reject this exception.
Second, SEIU requests litigation expenses from this case and/or from the
arbitration proceeding regarding its discrimination grievance. In its post-hearing brief
to the ALJ, the City included only a summary paragraph regarding these requests, but
in its exceptions, SEIU offers a more robust analysis. SEIU notes that, because the
arbitration is now long since over, the information it receives after this decision

24
becomes final will be too late to change that outcome. Accordingly, SEIU urges that
we apply precedent with an eye to the fact that failing to augment the proposed
remedy may allow employers in the City’s position to gain a benefit from
intransigence.
With certain exceptions not applicable here, a party to a PERB matter seeking
litigation expenses based upon its attorney fees and costs in that matter must normally
prove that its opponent maintained a claim, defense, or motion, or engaged in another
action or tactic, that was without arguable merit and pursued in bad faith. (Sacramento
City Unified School District (2020) PERB Decision No. 2749, p. 11.) SEIU has not met
that burden of proof here, as we do not find that the City acted in bad faith given that
this was a case of first impression for PERB.
However, we apply a different standard when deciding if a respondent found to
have committed an unfair practice must pay attorney fees and costs related to a
separate proceeding—whether the proceeding is in court, in arbitration, or in another
PERB matter outside of the unfair practice charge itself. A charging party can obtain
such a remedy if it (or a party in privity with it) has engaged in the separate proceeding
in material part to remedy, lessen, make up for, or stave off the impacts of the unfair
practice. (Victor Valley Union High School District (2022) PERB Decision No. 2822,
pp. 23-24; Sacramento City Unified School District, supra, PERB Decision No. 2749,
pp. 11-12; City of San Diego (2019) PERB Decision No. 2464a-M, p. 4; Omnitrans
(2009) PERB Decision No. 2030-M, p. 30; County of San Joaquin (Health Care
Services) (2003) PERB Decision No. 1524-M, p. 3.) Similarly, we direct payment of a
charging party’s salaries or other bargaining and/or representation costs incurred in

25
material part due to an unfair practice, even absent a separate proceeding. (City and
County of San Francisco (2023) PERB Decision No. 2858-M, pp. 15-17; Alliance Judy
Ivie Burton Technology Academy High et al. (2022) PERB Decision No. 2809, pp. 14,
31-32, 34 (Alliance).) In either of those contexts, make-whole relief is proper if the
charging party proves that the respondent’s unlawful conduct caused harm and it is
reasonably feasible to estimate the impact thereof. (City and County of San Francisco,
supra, PERB Decision No. 2858-M, p. 15.)
SEIU’s discrimination grievance was a separate proceeding, meaning we must
determine whether our remedy should include any arbitration-related expenses as a
make-whole remedy. At times, a union pursuing a grievance may incur greater
expenses while marshalling additional evidence to make up for information that an
employer unlawfully failed to provide, thereby creating a valid claim for make-whole
compensation of extra expenses. Other potential make-whole scenarios could occur,
for instance, if an unlawful failure to provide information degraded a union’s ability to
win in arbitration to such an extent that it became futile, which might make the union
eligible for a make-whole remedy comprising full attorney fees and costs in the
arbitration. A charging party should normally have an opportunity to establish such
losses—including causation—in compliance proceedings. (Pittsburg Unified School
District (2022) PERB Decision No. 2833, p. 15 [PERB provides “a successful charging
party the opportunity to prove losses in compliance hearings, unless the record has
proven that there was no such harm”]; see also City and County of San Francisco,
supra, PERB Decision No. 2858-M, p. 15; Antelope Valley Community College District
(2023) PERB Decision No, 2854, p. 7; Alliance, supra, PERB Decision No. 2809,

26
p. 34; County of Santa Clara, supra, PERB Decision No. 2799-M, p. 29; Regents of
the University of California (2021) PERB Decision No. 2783-H, p. 32.)
SEIU is therefore correct in its broad point about unfair practice charges
pertaining to information requests relevant to an arbitration or other separate
proceeding. To make a union whole for an employer’s refusal to provide information,
as well as to deter future violations, it may be necessary in some such cases to order
monetary compensation related to: (a) full or partial attorney fees or costs related to
the proceeding for which the union sought information; and/or (b) extra staff time or
other resources spent in relation to the proceeding or the underlying problem the
union was attempting to solve.
In the unique circumstances of this case, however, there is no cause for
compliance proceedings on potential monetary relief. SEIU kept this case in abeyance
for 18 months, only removing the case from abeyance after the arbitrator had issued a
decision rejecting SEIU’s grievance. This litigation strategy guaranteed that the
arbitration would finish before the PERB hearing began. Because most cases do not
feature such facts, normally the employer risks potential monetary exposure if PERB
eventually decides it unlawfully withheld information and thereby caused compensable
harm. Indeed, an employer withholding information requested for potential use in an
arbitration often leaves a union with a Hobson’s choice: proceed to arbitration without
certain information or ask the arbitrator for a long continuance to allow the union to
obtain information by either completing an ongoing PERB case or pursuing subpoena
compliance through superior court litigation and potential ensuing appeals. We do not
suggest that a union in that situation waives its right to seek an order of arbitration

27
costs (including litigation expenses and staff time) merely because it proceeds with
arbitration rather than asking for a continuance. However, proceeding with arbitration
while leaving the PERB information request charge in abeyance for 18 months is a
fundamentally different scenario, because it does not reflect a union that has
continued to pursue its RFI in the hope of receiving an adequate response before
arbitration. For that reason, monetary compensation related to arbitration expenses
and/or staff time is unwarranted here.
ORDER
Based on the foregoing and the entire record in this case, the Public
Employment Relations Board (PERB) finds that the City and County of San Francisco
(City) violated the Meyers-Milias-Brown Act (MMBA), Government Code sections
3503, 3506, and 3506.5, subdivisions (a) and (b), by failing to adequately respond to
an information request from Service Employees International Union, Local 1021
(SEIU). All other claims are DISMISSED.
Pursuant to MMBA section 3509, subdivision (b), we order as follows.
I. 	The City, its governing board, and its representatives shall:
A. 	CEASE AND DESIST FROM failing or refusing to provide disaggregated
employee information SEIU requests for the purpose of investigating potential
discrimination against employees it exclusively represents.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Within 30 days after this decision becomes final, provide SEIU with a list
of SEIU-represented City employees who were released from probation, or whose
probation was extended, between January 1, 2016 and January 1, 2019, showing

28
each employee’s name, department, title, classification, identification number,
appointment status, dates of employment, personal e-mail address and phone
number, home address, and race/ethnicity.
2. 	Within 45 days of a request by SEIU, provide the information listed in
paragraph B(1) for the period of January 1, 2019 through the date this decision
becomes final.
3. 	Post at all locations where the City posts notices to employees
represented by SEIU copies of the Notice attached hereto as an Appendix. An
authorized agent of the City shall sign the Notice, indicating that the City will follow the
terms of this Order, and the City shall maintain such postings for a period of 30
consecutive workdays. The City shall take reasonable steps to ensure that the Notice
is not reduced in size, altered, defaced, or covered with any other material. In addition
to physically posting the Notice, the City shall communicate it by electronic message,
intranet, internet site, and other electronic means the City uses to communicate with
SEIU bargaining unit employees.16
4. 	Notify OGC of the actions the City has taken to follow this Order by
providing written reports as directed by OGC and serving such reports on SEIU.
II. 	SEIU and its representatives shall refrain from releasing disaggregated
race/ethnicity information and shall use such information only as needed to investigate
16 Any party may ask PERB’s Office of the General Counsel (OGC) to alter or
extend the posting period, require further notice methods, or otherwise supplement or
adjust this Order to ensure adequate notice. Upon receipt of such a request, OGC
shall solicit input from all parties and, if warranted, provide amended instructions to
ensure adequate notice.

29
and/or seek to prevent, lessen, ameliorate, or remedy potential workplace
discrimination or other potential legal or contractual violations.
Chair Banks and Member Paulson joined in this Decision.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SF-CE-1779-M, Service Employees
International Union Local 1021 v. City and County of San Francisco, in which all
parties had the right to participate, the Public Employment Relations Board (PERB)
has found that the City and County of San Francisco (City) violated the Meyers-Milias-
Brown Act (MMBA), Government Code section 3500 et seq. by failing to provide
relevant and necessary information to service Employees International Union,
Local 1021 (SEIU) pursuant to the requirements of the MMBA.
As a result of this conduct, we have been ordered to post this Notice, and we will:
A. 	CEASE AND DESIST FROM failing to provide disaggregated employee
information SEIU requests for the purpose of investigating potential discrimination
against employees it exclusively represents, provided that SEIU shall refrain from
releasing disaggregated race/ethnicity information and shall use such information only
as needed to investigate and/or seek to prevent, lessen, ameliorate, or remedy
potential workplace discrimination or other potential legal or contractual violations.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Within 30 days after this decision becomes final, provide SEIU
with a list of SEIU-represented City employees who were released from probation, or
whose probation was extended, between January 1, 2016 and January 1, 2019,
showing for each employee the following data: name, department, title, classification,
identification number, appointment status, dates of employment, personal e-mail
address and phone number, home address, and race/ethnicity.
2. 	Within 45 days of a request by SEIU, provide the information listed
in paragraph B(1) for the period of January 1, 2019 through the date this decision
becomes final.
Dated: _____________________ 	City and County of San Francisco
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER MATERIAL.