Los Angeles Unified School District (PERB 2438E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED TEACHERS LOS ANGELES,
Charging Party,
V.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-5810-E
PERB Decision No. 2438
June 25, 2015
Appearances: Holguin, Garfield, Martinez & Quinonez, APLC by Dana S. Martinez and
Michael E. Plank, Attorneys, for United Teachers Los Angeles; Jacqueline M. Wagner,
Assistant General Counsel, for Los Angeles Unified School District.
Before Martinez, Chair; Winslow and Banks, Members.
DECISION
WINSLOW, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Los Angeles Unified School District (District) to
the (attached) proposed decision by an administrative law judge (ALJ). The complaint alleged
that the District violated the Educational Employment Relations Act (BERA)
section 3543.5(a), (b), and (c) by refusing to provide to United Teachers of Los Angeles
(UTLA or Union) the names and work locations of unit members who were temporarily
reassigned during the District's investigation of the employees' alleged misconduct without
first providing each employee with an opportunity to opt out of disclosure to UTLA. The ALJ
determined that this conduct violated BERA.
The Board has reviewed the fonnal hearing record in its entirety. The record as a
whole supports the findings of fact in the proposed decision, and the decision is well-reasoned
1 BERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

and consistent with applicable law. Accordingly, the Board hereby affirms the proposed
decision and adopts it as the decision
of
the Board itself, supplemented by the following
discussion
of
the District's exceptions.
FACTUAL SUMMARY
Educational Service Centers
When certificated employees are being investigated by the District for alleged serious
misconduct such as child abuse, physical abuse
of
another staff member, or even student
testing irregularities, they are reassigned to one
of
six educational service centers (ESC) during
the investigation. Not all reassigned employees are disciplined and their stay at the ESC
ranges from a few days to a significantly longer period.
Reassigned employees are expected to work at the ESC and continue to receive their
full compensation. They are not immediately informed
of
the reasons for the reassignment,
and the rules at each ESC vary. 	One ESC prohibited employees from using any electronic
devices for their work. Another forbade employees from speaking with any other employee
during the period
of
their reassignment.
UTLA's Reguest for Information
On February 6, 2013, UTLA, the exclusive representative
of
approximately 35,000
District certificated employees, demandeJd to bargain over the hours and duties
of
unit
members reassigned to the ESCs. According to UTLA's President, Warren Fletcher (Fletcher),
the Union was concerned over the differing expectations and duties at the different ESCs.
UTLA was also concerned that the District was not following its criteria for determining when
2

an employee should be reassigned to an ESC and believed that a disproportionate number of
employees over 40 years of age were being reassigned.2
In the context of this bargaining demand, UTLA requested on March 13, 2013, the
names of teachers transferred to any of the six ES Cs, or ordered to work from home, while
they were being investigated for wrongdoing and the specific ESC location where each
"housed" teacher was transferred. Fletcher testified that UTLA needed the information to
communicate with its members to determine whether they required assistance and to develop
proposals for changes to working conditions at the ESCs.
In response to UTLA's request, the District, asserting the employees' privacy interests,
agreed to comply only after giving all reassigned teachers the ability to opt out of having their
information released to UTLA. 3
UTLA objected to the District's proposal for this opt-out procedure and offered to enter
into a confidentiality agreement. UTLA also clarified that it did not seek information
regarding disciplinary or ip.vestigation records. In spite of UTLA's objection, the District sent
UTLA counsel draft language for the opt-out message it planned to send to the reassigned
teachers. In response, UTLA reiterated its demand for the information and its objection to any
opt-out procedure.
The District refused UTLA's offer to sign a confidentiality agreement and proceeded to
notify all reassigned employees ofUTLA's information request, providing them the ability to
opt out of the request.
2 The collective bargaining agreement (CBA) between the parties, which was in effect
during all times relevant to this case, contained a provision prohibiting discrimination on the
basis of age.
3 The District explained to UTLA that giving the Union the names of reassigned
employees was tantamount to revealing to the Union that the named individuals are under
District or criminal investigation for alleged serious misconduct.
·
3

In mid-May 2013, the District provided UTLA with the names and work locations
of
261
of
the 276 unit members who were assigned to an ESC at the time. Fifteen employees had
opted out pursuant to the District's offer.
PROPOSED DECISION
The ALJ concluded that UTLA was entitled to the names and work locations for the
reassigned unit members, because such information was necessary and relevant to UTLA's
representation rights and duties. The requested information concerned issues within the scope
of
representation, was necessary to communicate with its bargaining unit, and enabled UTLA
to investigate reported policy and contract violations. The ALJ concluded that the District's
partial response did not satisfy UTLA's needs, because
it
prevented the Union from fully
investigating suspected contract or policy violations.
In weighing the District's assertions
of
employee privacy against UTLA's need for the
names and work locations
of
the reassigned employees, the ALJ noted that UTLA's request
was limited to prevent unnecessary disclosure
of
information, that it expressly excluded any
sensitive personnel or investigatory information, and that UTLA offered to keep the District's
response confidential. Thus, the ALJ concluded that UTLA's interest in communicating with
its unit members who were reassigned to the ESCs for the purpose
of
representation and
bargaining regarding working conditions in the ESCs and to monitor compliance with the CBA
and District policy outweighed the District's non-specific privacy assertions.
The ALJ rejected the District's assertion that complying with UTLA's information
request necessarily implicates important employee privacy interests because the fact
of
being
reassigned to the ESCs means the employees are under investigation for "egregious"
misconduct. According to the ALJ, the reassigned employees had no reasonable expectation of
privacy in their work locations, even
if
their reassignment to an ESC meant that they were
4

under investigation for alleged serious misconduct. He noted that the District routinely
furnishes to UTLA the work locations
of
unit members not assigned to ESCs, and that the
CBA gives UTLA a right
of
access to all District facilities, including ESCs. On balance,
according to the ALJ, the District did not meet its burden
of
proving that any privacy concerns
outweigh UTLA' s need for the requested information.
As to the District's defense that disclosure
of
the remaining information is unnecessary
because UTLA may obtain the requested information by direct contact with unit members, the
ALJ concluded that none
ofUTLA's
options for communicating with its members (including
various internet fora, employee bulletin boards, and the telephone) was equivalent to obtaining
the names and work locations from the District.
The ALJ also rejected the District's defense that its opt-out procedure was a good faith
attempt to resolve the parties' dispute over UTLA's information request. According to the
ALJ, the District did not satisfy its duty to bargain in good faith over this issue, because it
never explained in negotiations why it rejected UTLA's proposal for a confidentiality
agreement, but instead implemented the opt-out procedure without declaring impasse or
completing EERA's impasse resolution procedures.
DISTRICT'S EXCEPTIONS
The District excepts both to the ALJ's findings
of
fact and conclusions
of
law contained
in the proposed decision. It asserts that the ALJ erred in finding that some teachers were
currently housed at ESCs for reasons other than serious or egregious misconduct, and that
some teachers have been housed for reasons such as paperwork errors or testing irregularities.
According to the District, only current practice is relevant, not any prior practice, and that
currently only employees who are alleged to have engaged in egregious misconduct are
reassigned to ESCs.
5

The District excepted to the ALJ's conclusion
oflaw
that the reassigned teachers lack a
substantial privacy interest in their work locations. It contends that employees' privacy
interest rests in not being identified as being under investigation for alleged egregious
misconduct, an interest applicable even against the employee organization selected as the
exclusive representative
of
these employees.
The District also excepted to the ALJ's legal conclusion that the District failed to fully
comply with UTLA's information request.
If
UTLA was dissatisfied with receiving an
incomplete response due to the individuals' opting out, it was, according to the District,
obliged to reassert or clarify its request before filing the instant charge.
The District also excepted to the ALJ's rejection
of
the District's defense that UTLA
had multiple ways
of
communicating with its members that excused the District from
providing the requested teacher names and assignment locations. The District asserts that the
ALJ erred in concluding that UTLA's alternate forms
of
communication were not the
equivalent
of
being provided the requested information.
The District did not except to the ALJ' s conclusion that the requested information was
relevant and necessary to UTLA's discharge
of
the duty
of
representation. Nor did the District
except to the ALJ's conclusion that the District did not satisfy its duty to bargain in good faith
when it unilaterally implemented employee opt-out procedures.
UTLA'S RESPONSE
In UTLA's response to the District's exceptions, it argues that the record shows
employees may be reassigned for a variety
of
reasons, including non-egregious conduct such as
paperwork errors. UTLA argues that the ALJ was correct in finding that the District failed to
carry its burden
of proof that privacy concerns outweigh UTLA's need for the requested
information. UTLA notes that it offered to enter into a confidentiality agreement with the
6

District to satisfy any concerns that the District may have had regarding employee privacy
interests.
DISCUSSION
We first consider the District's exceptions to the ALJ' s factual findings, and then
consider the central issue in this case: whether under the circumstances of this case, the
privacy interests of employees supersede the statutory collective bargaining rights of the
exclusive representative of those employees.
Reasons For Reassignment to ESCs
The ALJ's factual finding that some teachers are reassigned at ESCs for reasons other
than serious or egregious misconduct is supported by the record. Fletcher testified, without
contradiction, that at the time of the hearing, at least one teacher was reassigned for incorrectly
filling out a special education individualized education plan. (Reporter's Transcript (RT),
pp. 71-72.) UTLA Director of Labor Relations John Bowes (Bowes) testified that teachers had
been reassigned in the past for testing irregularities. (RT, p. 152.). Bowes did not definitively
testify that only employees accused of egregious misconduct were reassigned as of the date of
the headng. For these reasons, the District's exception to this finding is rejected.
Employees' Privacy Interest Under BERA
We agree with the District that the reassigned employees' privacy interest in this case
involves not their work location, but the fact of their reassignment to an ESC, which carries
with it the cloud of suspicion. But that does not settle the ultimate issue of whether UTLA's
interest in knowing who has been reassigned to the ESCs outweighs individual employees'
interest in keeping from UTLA the fact that they have been accused of wrongdoing.
When faced with an assertion of employee privacy in response to a legitimate
information request by an exclusive representative, PERB uses a balancing test and places the
7

burden on the employer to demonstrate that the privacy interest outweighs the union's need for
the information. (Golden Empire Transit District (2004) PERB Decision No. 1704-M
(Golden Empire); see also Santa Monica Community College District (2012) PERB Decision
No. 2303 at Proposed Dec., p. 10 (Santa Monica); Modesto City Schools and High School
District (1985) PERB Decision No. 479 (Modesto); City of Burbank (2008) PERB Decision
No. 1988-M, pp. 16-17 (Burbank).)
In applying this balancing test, PERB has ordered employers to provide exclusive
representatives with requested relevant information that arguably implicates employees'
privacy interests, e.g., information containing applicants' rating sheets used to award
promotions or transfers (Modesto, supra, PERB Decision No. 479); employee contact
information such as home addresses and phone numbers (Golden Empire, supra, PERB
Decision No. 1704-M; State Center Community College District (2001) PERB Decision
No. 1471; Bakersfield City School District (1998) PERB Decision No. 1262); reports of
investigations of workplace complaints (City of Redding (2011) PERB Decision No. 2190-M
(Redding); State of California (Department of Veterans Affairs) (2004) PERB Decision
No. 1686-S; sick leave requests (Burbank, supra, PERB Decision No. 1988-M); and a list of
unit members who did not have a retirement election form in their personnel file
(Santa Monica, supra, PERB Decision No. 2303).
Most on point is the Board's decision in Mt. San Antonio Community College District
( 1982) PERB Decision No. 224, pp. 10-11, which held that the employer was obligated to
comply with the union's request for names of employees disciplined for allegedly engaging in
protected activity.4 Private sector cases are in accord. (Transportation Enterprises, Inc.
4 Cf. City of Los Altos (2007) PERB Decision No. 1891-M, holding that an exclusive
representative is not entitled to automatically receive copies of notices of intent to dismiss unit
8

(1979) 240 NLRB 551, 561 [union entitled to employee disciplinary letters which are
presumptively relevant to the union's obligation to police the administration of the CBA];
Estrella Communications, Inc. (1997) 323 NLRB No. 192 [union's request for unredacted
copies of disciplinary notices, warnings, and records of disciplinary personnel actions was
presumptively relevant despite employer's invocation of employees' right of privacy].)
It is uncontroverted that the information UTLA requested was necessary and relevant to
the discharge of its duties as the exclusive representative to represent their members "in their
employment relations with public school employers." (EERA, § 3543.l(a); Rio Hondo
Community College District (1982) PERB Decision No. 260; Redwoods Community College
District (1983) PERB Decision No. 293). In order to represent its unit members in this
context, UTLA needed to be able to contact the reassigned teachers for several reasons. It
needed to police the administration of the CBA and District policies to assure that certificated
employees over 40 years of age were not disproportionately being reassigned to the ESCs or
that no employees were being reassigned in violation of policy. (State of California
(Department of Corrections & 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"].) It needed to gather information from these teachers to assist the Union in
developing proposals in the ongoing negotiations concerning the working conditions at the
ESCs. While UTLA did not explicitly assert an interest in informing the reassigned employees
of representational services it might offer in defending the employees in investigatory or
disciplinary proceedings, exclusive representatives have an obvious interest in making their
employees as a matter of course without a request for infonnation from the employee
organization.
9

services known to unit members. They can only efficiently accomplish this if they know
where to contact the reassigned employees.
BERA secures the right of employees to be represented by employee organizations of
their choice "in their professional and employment relationships." (BERA, § 3540.)
Employees also have the right to participate in the activities of employee organizations "for the
purpose of representation on all matters of employer-employee relations." (BERA,§ 3543(a).)
These rights are compromised if the employee organization cannot contact employees when
they may be in most need of the organization's expe1iise and assistance.
In sum, the interest of the exclusive representative in knowing which unit members are
potentially in need of its services, in policing the CBA and District policies regarding
reassignment, and in collecting information from the reassigned employees weigh heavily in
the balance against the individual employees' privacy interest.
We agree with the ALJ's conclusion that on balance, the District has not met its burden
of proving that employee privacy interests outweigh UTLA's need for the requested
information. In reaching this conclusion, we are further persuaded by the fact that UTLA
attempted to tailor its request' to accommodate privacy concerns. It did not seek employee
personnel files or investigation reports, and offered to keep confidential the contact
information, i.e., the identity and location of reassigned employees, a proposal that the District
rejected without explanation.
If the reassigned employees did not wish to involve UTLA in their employment issues
and did not want to reveal to the Union why they had been reassigned, they could simply tell
the Union that, or just ignore its communication. The privacy intrusion is minimal in this case
and is minimized even further by UTLA's offer to keep the infonnation confidential. The
employees' privacy interest in the fact they have been accused by their employer of
10

wrongdoing is far outweighed by the Union's exceptionally strong interests in being able to
contact these members at their newly-assigned workplaces. As noted by one federal appellate
court: "One of the consequences of collective bargaining is that it subordinates the particular
interests of individual employees to the collective interest of the unit. Hence, a preference for
confidentiality on the part of some ... employees does not nullify [the union's] right to the
information." (WCCO Radio, Inc. v. National Labor Relations Board (8 th Cir. 1988) 844 F.2d
511, 515.)
The District argues that an employer's promise of confidentiality establishes a
significant privacy interest that must be balanced against the Union's need for the information,
relying on Northern Indiana Public Service Co. (2006) 347 NLRB 210 (Northern Indiana) and
Detroit Edison Co. v. NLRB (1979) 440 U.S. 301 (Detroit Edison). These cases are of no
assistance to the District's position.
The confidential information in question in Northern Indiana, supra, 347 NLRB 210
consisted of employer notes taken during investigatory interviews with employees in which the
employer's promises of confidentiality preceded the interviews. ("Each individual spoke to
[the employer's labor relations coordinator] voluntarily, and she prefaced her interviews by
assuring each of them that she would keep their conversation confidential." (Id. at p. 210.)
Detroit Edison, supra, 440 U.S. 301 involved the question of whether an employer was
obligated to produce test questions related to a psychological aptitude test administered to
employment applicants, employee answer sheets, and the scores linked with the names of the
employees who received them, when such information was relevant to a grievance filed by the
employees' union. The employer administered the tests to applicants with the express
commitment that each applicant's test score would remain confidential. The U.S. Supreme
11

Court found test secrecy to be "critical to the validity of any such program." (Detroit Edison,
supra, 440 U.S. 301, 304.)
In both Northern Indiana, supra, 347 NLRB 210 and Detroit Edison, supra,
440 U.S. 301, the employer made specific, discrete promises of confidentiality that were at
least arguably a partial inducement for the employees or employment applicants to take some
action (in the case of Northern Indiana, to voluntarily agree to participate in an investigation;
in Detroit Edison, to apply for positions at the company). In the present case, the District gave
no assurance to the reassigned.employees that their reassignment to the ESCs or the fact that
they were being investigated for alleged misconduct would remain confidential. Even if the
District had given such assurances, such promises would not necessarily defeat the Union's
entitlement to the information. (New Jersey Bell Telephone Co. (1988) 289 NLRB 318
(New Jersey Bell) [employer may not use confidentiality as an excuse for failing to provide
relevant information to union based on the employer's policy promising that a broad range of
personnel information will be kept confidential].)
The District argues that its "practice of keeping confidential the identities of housed
[reassigned] employees, bolstered by the opt-out option, communicates .to employees that they
have a privacy interest in their identities as housed employees." (Respondent's Exceptions,
p. 5.) We disagree. Fir.st, the District did not have a "practice" of keeping the identities of
reassigned employees confidential. The evidence shows that on December 3, 2013, the Los
Cerritos Community Newspaper Group wrote to the District asserting that a certain teacher
was reportedly assigned to the District "teacher jail," and asked for the allegations of
misconduct and the date he was assigned to the facility. The District replied on December 17,
2013, refusing to disclose the allegations of misconduct based on exemptions to the Public
Records Act (Govt. Code, § 6254(c), (t) and (k).) But the District readily informed the media
12

requestor
of
the date and location to which the identified teacher had been reassigned, making
no effort to assert any exceptions to disclosure contained in the Public Records Act. (Charging
Party, Exh. 3.)
As far as the evidence shows, the only "practice" or assurance
of
privacy the District
communicated to employees regarding their reassignment was a procedure it implemented
after UTLA requested the information, i.e., the opportunity to opt out
of
the request.5 Taken
together, this is not so much a privacy policy for employees' benefit as it is a subterfuge to
avoid providing UTLA information to which it is entitled.
Constitutional Privacy Interests
The District also asserts these employees' constitutional right to privacy is secured by
Article I, Section 1
of
the California Constitution. We turn now to that argument.
The California Supreme Court ruled on a union's right to employee contact information
(home addresses and telephone numbers), analyzing the question under both the Meyers-
Milias-Brown Act6 and Article I, Section 1
of
the California Constitution. (County
of
Los Angeles
v.
Los Angeles County Employee Relations Commission, et al. (2013) 56 Cal.4th
905 ( County
of
Los Angeles).) In assessing whether the constitutional right
of
privacy
precluded a union's right to obtain employee contact information, the Court applied the
framework established by Hill
v.
National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 (Hill):
An actionable claim [for invasion
of
privacy] requires three
essential elements: (1) the claimant must possess a legally
protected privacy interest
...
; (2) the claimant's expectation
of
5 Even
if
the opt-out policy pre-dated UTLA's information request, it would not, by
itself, justify the District's refusal to provide the information. (New Jersey Bell, supra,
289 NLRB 318, pp. 319-320 [fact that an employee docs not consent to information being
provided to exclusive representative does not constitute grounds for refusing to provide it];
Utica Observer-Dispatch
v.
National Labor relations Board (2d Cir. 1956) 229 F.2d 575, 577.)
6 The MMBA is codified at Government Code section 3500 et seq.
13

privacy must be objectively reasonable ... ; and (3) the invasion
of privacy complained of must be serious in both its nature and
scope.
(County of Los Angeles, supra, 56 Cal.4th 905, p. 926.) If all three elements are established,
the strength of the privacy interests is balanced against countervailing interests.
The Court in County of Los Angeles, supra, 56 Cal.4th 905 found that employees had a
legally protected privacy interest in their home addresses and phone numbers. 7 Likewise,
employees have a privacy interest in the fact that their employer has accused them of egregious
misconduct. Thus, the first factor of the Hill test is satisfied.
Whether employees have a reasonable expectation of privacy is an objective
entitlement, the existence of which depends on the surrounding context, such as customs,
practices, and physical surroundings. (County of Los Angeles, supra, 56 Cal.4th 905, p. 927.)
In this case, there are several factors that indicate the employees in question did not have an
objective expectation of privacy in either their work location, or in the employer's allegations
against them.
First, the District argues that its practice of withholding the identity of reassigned
employees created a reasonable expectation of privacy. This claim is belied by the alacrity
with which the District revealed the name of a reassigned employee to a news organization, as
discussed supra, at pages 12-13.
As the ALJ determined, the reassigned employees were not informed by the District
that they have any substantive privacy right in their new job assignment, and the employees
7 However, after applying the balancing test set forth in Hill, supra, 7 Cal.4th 1, the
Supreme Court concluded that the union's competing interest in fulfilling its duty to represent
all unit members and the concomitant need to communicate with those employees outweighed
privacy interests in home addresses and phone numbers.
14

were not directed to keep their identities or that of other reassigned employees confidential.8
Thus, unlike in Northern Indiana, supra, 347 NLRB 210, there is no evidence that the District
made any promises to reassigned employees that it would keep their names and work locations
from UTLA.
The third element in analyzing a privacy claim, whether the invasion is serious in both
its nature and scope, also works against claims of privacy in this case. As mentioned earlier,
UTLA narrowly tailored its request to seek only the information it needed to perform its
functions, i.e., the names and work locations of reassigned employees. UTLA's pledge of
confidentiality with respect to the list of reassigned employees further mitigates its request
being a "serious" invasion either as to nature or scope. Finally, the employees remain in
control of the information concerning the accusations made against them. They can simply
decline to reveal to UTLA those private facts. 9
County ofLos Angeles, supra, 56 Cal.4th 905, 926 requires a balancing of privacy
interests against countervailing interests only if all three of the elements discussed above have
been satisfied. Because we have determined that the employee's expectation of privacy is not
objectively reasonable and that the invasion is not serious in nature or scope, it is not necessary
to engage in the balancing test to assess the constitutional claim under Article I, Section 1 of
the California Constitution.
8 Such a blanket direction to keep silent could be seen to interfere with employees'
protected rights to representation and to participate in the activities of the employee
organization of their own choosing. (See Banner Health System (2012) 358 NLRB No. 93
[employer may not prohibit employees from discussing ongoing investigations of employee
misconduct unless it can show that witnesses needed protection, or that evidence was in danger
of being destroyed or fabricated]; Los Angeles Community College District (Perez) (2014)
PERB Decision No. 2404.)
9 On the facts before us, we do not decide whether the exclusive representative is
entitled to information about the allegations of misconduct in ongoing investigations because
UTLA did not request it. The issue is therefore not before us.
'
15

For these reasons, we conclude that the constitutional privacy interest
of
the employees
does not justify the District's conduct.
Duty to Reassert Request After Partial Compliance
After implementing its opt-out option over the vigorous and consistent objection
of
UTLA, the District provided the names and work locations
of
all but
15
of
the reassigned
employees on May 13, 2013. The ALJ determined that this partial response did not satisfy
UTLA's legitimate needs because it prevented the Union from investigating the "full breadth
of
any policy violations." (Proposed Dec., p. 11.) According to the ALJ, UTLA was not
obliged to repeat its request because it was sufficiently clear to the District that the partial
compliance would not satisfy the request.
The District excepts to this conclusion, re-arguing that UTLA's failure to reassert its
objection to partial compliance trumps its claim that the District committed an unfair practice,
relying on Oakland Unified School District (1983) PERB Decision No. 367 (Oakland) and
Trustees
of
the California State University (2004) PERB Decision No. 1732-H (Trustees). For
reasons explained
by
the ALJ, we reject the District's contentions. UTLA did not waive its
right to prosecute this unfair practice complaint by failing to repeat its unequivocal objection to
the opt-out procedure and to what the District produced, viz., the incomplete information
response. 	UTLA's entitlement to all
of
the requested information was not diminished by the
District's production
of
only a portion
of
the information, even though that portion covered the
majority
of
the ESC-housed employees. We also note that UTLA in fact did reiterate its
demand for the information and its objection to any opt-out procedure after the District sent
UTLA counsel draft language for the opt-out message it planned to send to the ESC-housed
teachers.
16

We do not find Oakland, supra, PERB Decision No. 367 dispositive. In Oakland, the
union requested information once and the District responded. The union did not object,
reassert its request, or otherwise place the employer on notice that the response was inadequate
before filing its unfair practice charge. The likely purpose of the Board's dismissal of the
allegation in Oakland was to establish that an employer could not be charged with an unfair
practice after it had partially complied with an information request unless it is placed on notice
by the requestor that the partial compliance is inadequate.
_Unlike the employer in Oakland, supra, PERB Decision No. 367, the District admits it
understood the full scope of UTLA's information request prior to its partial production of
teacher names, and the reason for the request. The District disregarded UTLA's objection to
the opt-out procedure, rejected without explanation the Union's offer of confidentiality, and
unilaterally proceeded with the opt-out. Taken together, these facts demonstrate the futility of
UTLA reasserting or clarifying its objection to the opt-out procedure after the District's partial
production of names and locations.
UTLA's request was the subject of significant discussion and negotiation. The District
knew from the beginning that UTLA wanted the names and work locations of the reassigned
employees. There was no ambiguity in the request that called for clarification after partial
compliance by the District. The only dispute between the parties was the District's assertion of
privacy and its insistence on implementing an opt-out procedure. Therefore, when the District
provided UTLA with all but 15 names (withholding those who had opted out), it was on notice
that this response would not satisfy UTLA, given the vigorous objection the Union had to the
opt-out process in the first place. Under these circumstances to require UTLA to repeat or
17

clarify its request or objective, despite the District's clear understanding
of
both, would elevate
form over substance. 10
We also reject the District's implied argument that it substantially complied because
nine
of
the employees who opted out were no longer in an ESC by the time the District
provided UTLA the information. An unreasonable delay in providing requested information is
tantamount to a failure to produce the information at all. ( Chula Vista City School District
(1990) PERB Decision No. 834.)
Here the District's delay in responding to UTLA's information request was caused by
the District's unreasonable insistence on unilaterally implementing an opt-out process. To
conclude that the District need not produce the names
of
those employees who are not
currently housed at the ES Cs because
of
retirement, termination~ or return to the classroom
would reward the District for its impermissible delay. What is relevant to our analysis are the
withheld names at the time ofUTLA's valid information request.
Alternate Forms
of
Communication
The District reasserts its argument that because various alternative forms
of
communication were at UTLA's disposal, the District was relieved
of
any duty to provide the
information UTLA had requested. The ALJ rejected this claim: "The fact that UTLA might
ultimately be able to obtain the requested information by contacting each
of
its 35,000
members through other means does not excuse [Los Angeles Unified School District] from
providing necessary and relevant information already in its possession." (Proposed Dec.,
p. 15.)
For the same reasons, reliance on Trustees, supra, PERB Decision No. 1732-H is
unavailing, as that case relied on Oakland, supra, PERB Decision No. 367 in dealing with facts
similar to Oakland. 
18

We agree with the ALJ. The burden on UTLA of attempting to interview every
reassigned teacher in person, or of having to send blanket communications to all 35,000
bargaining unit members requesting that reassigned teachers contact them, compared with the
District's ease of providing the names and locations of reassigned teachers to UTLA, indicates
that UTLA does not have "equal access to the same information from the same source."
(Regents of the University of California (Davis) (2010) PERB Decision No. 2101-H, p. 35;
Redding, supra, PERB Decision No. 2190-M ["SEIU's access to witnesses does not
marginalize its interest in obtaining investigative reports in this case"]; Finley Hospital (2012)
359 NLRB No. 9, p. 5; New York Times Co. (1982) 265 NLRB 353 [alternative means of
obtaining information do not excuse noncompliance].)
The District's argument that the reassigned members may contact UTLA with concerns
is unavailing. UTLA's concerns include the possibility that different assignment locations may
have different working conditions, and that older teachers may be disproportionately subjected
to being reassigned at ES Cs. A reassigned teacher at one ESC location would not have reason
to know or suspect that the conditions at other ESC locations were different, or to know the
relative ages of teachers at different District locations. UTLA could not discover disparities in
working conditions at different ESCs unless UTLA members contacted them. UTLA would
have no means of knowing which employees were reassigned at which location, apart from the
overly burdensome process of appearing at each ESC and interviewing each teacher at that
work place.
The District's reliance on The Regents of the University of California, University of
California at Los Angeles Medical Center (1983) PERB Decision No. 329-H (UCLA) is
misplaced. In that case concerning union access rights to work places, PERB noted that the
availability of alternative access is an important factor in striking a reasonable balance
19

regarding access to
h_ealth
facilities.
11
The case before us here is a dispute over a request for
relevant information, and alternative means
of
obtaining the information rarely negates the
employer's duty to provide such information. (Redding, supra, PERB Decision No. 2190-M,
p. 2.)
REMEDY
Where an employer has refused to provide information to which an exclusive
representative is entitled, the appropriate remedy is to order the employer to provide an up-to-
date list
of
the requested information, among other things. (Santa Monica, supra, PERB
Decision No 2303.) We will do so in this case.
We note that UTLA offered to enter into a confidentiality agreement "wherein UTLA
will agree to limit the use and dissemination
of
the information for representation and
bargaining purposes only." (Charging Party Exh. 13.) We find that this proposal, originally
rejected by the District, is sufficient to address the District's concerns that the names and
reassignment locations will be disseminated. We will therefore include in the order a
requirement
of
a confidentiality agreement in accordance with the terms proposed
by
UTLA
applicable to UTLA and its agents and employees. (Southern Ohio Coal
Co.
(I 994)
315 NLRB 836)
We will also order that the District cease and desist from unilaterally implementing the
opt-out option.
ORDER
Upon the foregoing findings
of
fact and conclusions
of
law, and the entire record in the
case, it is found that the Los Angeles Unified School District (District) violated the
11
In UCLA, supra, PERB Decision No. 329-H, PERB concluded that the availability of
alternative access sites other than on patient care floors obviated the need for the employer to
provide more extensive access to those floors than it had already provided.
20

Educational Employment Relations Act (BERA), Government Code section 3543.S(a), (b), and
(c)
by
refusing to provide United Teachers Los Angeles (UTLA) with the names and work
locations
of
all certificated employees reassigned to Educational Service Centers
or
other
locations while under investigation for misconduct, pursuant to
UTLA's
request for that
information, and
by
unilaterally implementing its opt-out option.
Pursuant to EERA section 3541.S(c),
it
hereby is ORDERED that the District, its
governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Refusing to completely respond to UTLA's requests for information
necessary and relevant to its representational duties, namely the names and work locations
of
bargaining unit members who have been reassigned to Educational Service Centers or other
locations because such employees are under District investigation for alleged misconduct;
2. 	Unilaterally sending opt-out notifications to bargaining unit members
with regard to UTLA requests for information to which UTLA is entitled under EERA,
including but not limited to the names and location
of
bargaining unit members reassigned at
Educational Service Centers;
3. 	Denying UTLA the right to represent its bargaining unit; and
4. 	Denying employees the right to be represented
by
UTLA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	Provide UTLA with a current list
of
the names and work locations
of
all
bargaining unit members reassigned to Educational Service Centers or other locations during
the pendency
of
District investigations
of
alleged misconduct, subject to UTLA, its agents and
21

employees, limiting the use and dissemination of the information for representation and
bargaining purposes only.
2. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees in the District customarily are posted,
copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the District, indicating that it will comply with the terms of this Order.
Such posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable
steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered
with any other material. In addition to physical posting of paper notices, the Notice shall be
posted by electronic message, intranet, internet site, and other electronic means customarily
used by the District to communicate with its certificated employees represented by UTLA.
3. 	Written notification of the actions taken to comply with this Order shall
be made to the Office of the General Counsel of the Public Employment Relations Board, or
the General Counsel's designee. The District shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on UTLA.
Chair Martinez and Member Banks joined in this Decision.
22

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-5810-E, United Teachers
Los Angeles v. Los Angeles Unified School District in which all parties had the right to
participate, it has been found that the Los Angeles Unified School District (District) violated
the Educational Employment Relations Act (EERA), Government Code section 3540 et seq.,
by refusing to provide United Teachers of Los Angeles (UTLA) with the names and work
locations of all certificated employees reassigned to Educational Service Centers or other
locations while under investigation for misconduct, pursuant to UTLA's request for that
information, and by unilaterally implementing its opt-out option.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. CEASE AND DESIST FROM:
1. Refusing to completely respond to UTLA's requests for information
necessary and relevant to its representational duties, namely the names and work locations of
bargaining unit members who have been reassif,>ned to Educational Service Centers or other
locations because such employees are under District investigation for alleged misconduct;
2. Unilaterally sending opt-out notifications to bargaining unit members
with regard to UTLA requests for information to which UTLA is entitled under EERA,
including but not limited to the names and location of bargaining unit members reassigned at
Educational Service Centers;
3. Denying UTLA the right to represent its bargaining unit; and
4. Denying employees the right to be represented by UTLA.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. Provide UTLA with a current list of the names and work locations of all
bargaining unit members reassigned to Educational Service Centers or other locations during
the pendency of District
1

investigations of alleged misconduct, subject to UTLA, its agents and employees, limiting the
use and dissemination of the information for representation and bargaining purposes only.
Dated: 	LOS ANGELES UNIFIED SCHOOL DISTRICT
By: Authorized Agent
---------
--------------
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED TEACHERS LOS ANGELES,
Charging Party,
V.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5810-E
PROPOSED DECISION
(5/14/2014)
Appearances: Holguin, Garfield, Martinez & Quiflonez, APLC, by Dana S: Martinez and
Michael Plank, Attorneys, for United Teachers Los Angeles; Jacqueline M. Wagner,
Assistant General Counsel, for Los Angeles Unified School District.
Before Eric J. Cu, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, an exclusive representative claims that a public school employer violated
the duty to bargain in good faith under Educational Employment Relations Act (EERA)1 by
failing to respond fully to its information request. The employer denies any violation.
On May 3, 2013, United Teachers Los Angeles (UTLA) filed the instant unfair practice
charge with Public Employment Relations Board (PERB or Board) against Los Angeles
Unified School District (LAUSD). UTLA alleges that LAUSD gave only a partial response to
its request for the names and work locations ofemployees who were temporarily reassigned
, during an investigation. On August 29, 2013, the PERB Office ofthe General Counsel issued
a complaint alleging a violation ofEERA sections 3543.S(a), (b), and (c). On September 18,
2013, LAUSD filed an answer to the PERB complaint admitting that UTLA made the request,
but denying the remainder ofthe substantive allegations. LAUSD also asserted a series of
af:finnative defenses, including that the requested information was confidential.
1 EERA is codified at Government Code section 3540 et seq.

The parties participated in an informal settlement conference on November 6, 2013, but
the matter was not resolved. PERE held a formal hearing on February 7, 2014.
Closing briefs were due on April 7, 2014. UTLA filed its closing brief that day.
LAUSD filed its own brief one day later but it was accepted by PERE with no objection from
UTLA. OnApril 22, 2014, LAUSD filed a motion to reopen the record. UTLA filed its
opposition to the motion on April 30, 2014. At that point, the record was closed and the matter
was considered submitted for decision.
LAUSD'S MOTION TO REOPEN THE RECORD
LAUSD moves to reopen the record in this case to admit as a UTLA business record a
document entitled "Local District 'Reassignment Form."' LAUSD's request is expressly
limited to the document itself. There were no declarations supporting any factual assertions
made in the motion. PERE's Board may "reopen a completed record based on newly
discovered evidence which was not previously available and could not have been discovered
with the exercise of reasonable diligence." (Regents of the University of California ( 1987)
PERE Decision No. 615-H (UC ~egents), p. 14, citing San Mateo Community College District
(1985) PERE Decision No. 543.) The new evidence must also be relevant to the issues raised
in the existing complaint. (UC Regents, at p. 15; see also County of Santa Clara (2012) PERB
Decision No. 2267-M, p. 3-4.) Those cases involved requests to reopen the record in a case
before the Board itself pursuant to PERE Regulations 32320(a) and 32410(a).2 Those same
standards will be applied here in the absence of more specific guidance on how such requests
are addressed when made to an Administrative Law Judge:
According to LAUSD, the Local District Reassignment Form demonstrates that in April
2014, UTLA communicated with the same employees at issue in its information request and
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
2

sought their contact information. Nothing on the form supports this assertion. The form
is
undated and does not describe how
it
was distributed by UTLA,
if
at all. Nor does it describe
whether any employees completed the form for UTLA. As explained above, LAUSD's motion
is limited by its express terms to the form itself. Moreover, even assuming LAUSD's
assertions to be true, LAUSD has not explained how UTLA's efforts to contact certain unit
members in 2014
is
relevant to LAUSD's failure to respond to UTLA's 2013 request for
information about similarly situated employees. Accordingly, LAUSD' s motion is denied.
FINDINGS
OFF
ACT
The Parties
LAUSD is a public school employer within the meaning
ofEERA
section 3540. l(k).
UTLA is an exclusive representative within the meaning ofEERA section 3540. l(e).
UTLA represents the roughly 35,000 certificated employees at LAUSD. UTLA and
LAUSD are parties to a Collective Bargaining Agreement (CBA) whose terms were in effect at
all times relevant to this case. The CBA contains provisions for UTLA's access to LAUSD
facilities and bulletin boards, employees' right to accept or reject UTLA assistance in ·
discipline matters, and unit members' protections from discrimination.
LAUSD's Investigative Reassignment Process
LAUSD has a practice
of
temporarily reassigning some
of
its employees accused
of
misconduct to one
of
five Educational Service Centers (ESCs). Reassigned employees are
sometimes referred to as "housed" employees, and the ES Cs are sometimes derisively referred
to as "teacher jail." Pursuant to the access provisions
of
the CBA, LAUSD allows UTLA
representatives to access the ESCs, although there was reportedly one instance where a UTLA
representative was denied access under circumstances not disclosed for the record. On at least
one occasion, LAUSD allowed a public official to tour an ESC.
3

Employees are typically
house.cl
while LAUSD investigates alleged misconduct. While
some employees are housed for only a matter
of
days, others are reassigned for significantly
longer. Not all reassigned employees are eventually disciplined. Nor
is
every disciplined
employee.housed beforehand. Housed employees are expected to work during their
reassignment and continue to receive their full compensation.
UTLA President Warren Fletcher testified that LAUSD policy allows unit members to
be reassigned when the allegations
of
misconduct are so serious that
it
"makes sense" to
relocate the employee during the investigation. John Bowes, then-LAUSD's Director
of
Labor
Relations, confirmed Fletcher's testimony, stating that housing
is
used for "allegation[s]
of
egregious misconduct, whether sexual misconduct allegations involving an employee with a
child or another staff member, [or] allegations
of
physical abuse with a child or another staff
member[.]" In practice, however, UTLA was informed that LAUSD actually reassigns
employees for a variety
of
reasons ranging from "serious misconduct all the way to paperwork
errors." Bowes's testimony was consistent with those reports stating, "I know teachers have
been housed in the past for testing irregularities."
Newly housed employees are not immediately informed
of
the purpose
of
their
reassignment. Employees are issued a set
of
workplace protocols that, at the times relevant to
this case, differed at each ESC. For example, the instmctions for one ESC precluded
employees from using any electronic devices, including computers, for their work. Some ESC
protocol forms prohibited use
of
music players, others did not. Some ESC forms specified
fixed break periods, some did not. One ESC protocol form forbade unit members from
speaking with any other employee for the duration
of
the reassignment.
UTLA's Bargaining Demand and Initial Information Request
On February 6, 2013, UTLA demanded, in writing, that LAUSD:
4

bargain over the hours and duties applied to any temporarily
housed bargaining unit members. This includes, but
is
not
limited to, hours
of
assignment, on-site/off-site obligations,
break-periods, duties assigned and other work rules that may be
applied.
Fletcher informed LAUSD during bargaining sessions that UTLA was concerned about
"widely differing expectations and duties" at the different ESCs. Fletcher also testified about
UTLA's concerns that LAUSD was not following its existing criteria for when a unit member
should be housed and that a disproportionate share
of
housed employees were over 40 years
old, which could implicate the CBA's anti-discrimination provisions. In connection with its
bargaining demand, UTLA requested copies
of
all instructional protocols from the ESCs.
LAUSD responded to this initial information request
by
providing the workplace
protocol forms for each ESC. LAUSD also provided a "Housed Employee Data Sheet,"
stating, among other things, that there were 263 housed unit members at the time.
UTLA's March 13, 2013 Information Request
On March 13, 2013, UTLA requested the names, employee number, and work location
for employees depicted on the Housed Employee Data Sheet. Fletcher told LAUSD in
bargaining that UTLA viewed such information as "a basic right
of
the exclusive
representative in order just to be able to do our job." He reminded LAUSD that
it
regularly
provided UTLA with teachers' work assignments and that LAUSD could not create "a
different class
of
employees about whom we did not have the right to know [their]
assignment." Fletcher explained that UTLA needed the information to communicate with its
members to detennine whether they required assistance and to develop proposals for changes
to working conditions at the ESCs.
Bowes responded to UTLA's request on March 14, 2013. He said that LAUSD would
comply with the request after informing all housed employees ofUTLA's request that "they
5

would have a short period of time where they could opt out of having their information
released." The parties subsequently referred to this process as an "opt-out procedure." UTLA
objected to LAU SD' s proposal for. an opt-out procedure.
On March 20, 2013, Bowes sent UTLA attorney Jesus Quinonez draft language for the
opt-out message it intended to send to all housed unit members. In response, UTLA reiterated
both its demand for the information and its objection to any opt-out procedure.
On April 3, 2013, LAUSD sent UTLA an e-mail message authored jointly by Bowes
and LAUSD attorney Dick Fisher about the outstanding information request. They stated:
[G]iven the fact that most all of the housed employees are under
investigation for allegations of serious misconduct, we believe
giving UTLA their name is the same thing as volunteering to
UTLA not only their identity but also telling UTLA that most of
the named individuals are under District or criminal investigation
or for alleged serious misconduct.
Bowes and Fisher also asserted that UTLA would ultimately receive the identities of "a large
percentage" of housed employees because they believed most would not opt-out. They
questioned why such a response would not be sufficient for UTLA's needs.
On April 24, 2013, UTLA attorney Dana Martinez limited UTLA's request to only
housed unit members' names and work location (not employee numbers). Martinez clarified
that UTLA was not seeking any discipline or investigation records from LAUSD and expressed
UTLA's willingness to enter into a confidentiality agreement.
Bowes and Fisher responded to Martinez on April 26, 2013, stating that privacy
protections were needed because "each of the housed employees is still the subject of an
investigation or charges involving serious misconduct and was removed from his or her
assignment for that reason[.]" They acknowledged UTLA's willingness to keep the disclosed
information confidential but did not specify why that proposal did not satisfy their privacy
concerns. They also acknowledged that UTLA already possessed the name and employee
6

number for all unit members. Thus, the only information UTLA lacked was which unit
members were assigned to an ESC.
On or around April 26, 2013, LAUSD contacted all housed unit members and told them
that LAUSD would provide their names and work locations to UTLA unless they opted out of
such disclosure. On or around May 13, 2013, LAUSD provided UTLA with the names and
work location for 261 of the 276 unit members assigned to an ESC at the time. The parties did
not communicate further about UTLA' s information request.
ISSUE
Did LAUSD violate the EERA by failing to provide UTLA with the names and work
location of all housed unit members upon request?
CONCLUSIONS OF LAW
UTLA accuses LAUSD of violating EERA by failing to adequately respond to its
information request. EERA entitles exclusive representatives to all infonnation "necessary and
relevant" to the discharge of their duty ofrepresentation. (Santa Monica Community College
District (2012) PERB Decision No. 2303 (Santa Monica CCD), proposed decision, p. 6, citing
Stockton Unified School District (1980) PERB Decision No. 143).) Failure to provide such
information upon request is a breach of the duty to bargain in good faith and violates EERA
sections 3543.S(a), (b), and (c). (Santa Monica CCD, p. 3; Compton Community College
District (1990) PERB Decision No. 790, p. 6.)
Necessary and Relevant Request
PERB uses a liberal standard, similar to a discovery-type standard, to determine
relevance ofrequested information. (Santa Monica CCD, supra, PERB Decision No. 2303,
proposed decision, p. 6, citing Trustees of the California State University ( 1987) PERB
Decision No. 613-H.) Requests for information relating to issues within the scope of
7

representation are considered presumptively relevant. (Saddleback Valley Unified School
District (2013) PERB Decision No. 2333 (Saddleback Valley USD), proposed decision, p. 22,
citing Ventura County Community College District (1999) PERB Decision No. 1340.)
Similarly, infonnation enabling a union to communicate with its members is viewed as
intrinsically relevant to its representational duties. (Bakersfield City School District (1998)
PERB Decision No. 1262 (Bakersfield City SD), proposed decision, pp. 17-18.) According to
the Board, '" data without which a union cannot even communicate with employees whom it
represents is, by its very nature, fundamental to the entire expanse of a union's relationship
with its employees.'" (Id., quoting Prudential Insurance Co. v. NLRB (2nd Cir. 1969) 412
F.2d 77, p. 80.)
In this case, UTLA's request was necessary and relevant to its representation of the
certificated unit for multiple reasons. First, UTLA sought the information to investigate
reports that unit members were reassigned in violation of existing policy. EERA's definition
of the "scope of representation" expressly includes an employer's "transfer and reassignment
policies." (EERA, § 3543.2(a).) Therefore, information relating to LAUSD's application of
its reassignment policies is presumptively relevant. (Saddleback Valley USD, supra, PERB
Decision No. 2333, proposed decision, p. 2 L)
Second, PERB has consistently found that information relating to specific unit members
was necessary and relevant where the requesting union was actively representing that group of
employees. For instance, in Chula Vista City School District (1990) PERB Decision No. 834
(Chula Vista City SD), the Board found that the names, address, and job assignments ofnon-
unit member substitute teachers was necessary and relevant to the parties' negotiations over the
misclassification of employees as long-term substitutes. (Id. at p. 58-60.) In Los Angeles
Superior Court (2010) PERB Decision No. 2112-I (LA Superior Court), PBRB similarly found
8

that a request for unit members' job assignments prior to a strike was necessary and relevant to
investigating hiring inconsistencies after the strike. (Id. at warning letter, p. 13-14.) In
Mt. San Antonio Community College District (1982) PERB Decision No. 224 (Mt. San Antonio
CCD), PERB held that the disciplinary records of employees involved in a union-sanctioned
public demonstration was necessary and relevant to the union's efforts to protect its members
from unlawful discrimination. (Id. at pp. 10-11.)
Here, it is undisputed that the parties were bargaining over the terms and conditions of
housed unit members at the time UTLA' s information request was discussed. As in
Bakers.field City SD, supra, PERB Decision No. 1262, UTLA's request for the names and work
locations of housed unit members was needed to identify and communicate with the employees
most affected by those negotiations. And as in Chula Vista City SD, supra, PERB Decision
No. 834 and LA Superior Court, supra, PERB Decision No. 2112-1, UTLA sought that
information while actively representing those employees in negotiations.
LAUSD argues that UTLA does not have an unfettered right to review its unit
members' personnel records citing as support City of Los Altos (2007) PERB Decision
No. 1891-M. There, a union asserted the right to receive copies of all employee discipline
concurrent with the employee even absent a request or a particular representational purpose.
The Board dismissed the case, holding "without a request, [the union] has no right to the
disciplinary information they argue they are entitled to as a matter of course." (Id. at p. 4.)
Had the union in that case requested information from the employer, the Board suggested that
it would have balanced the union's need for the infonnation against any specific privacy
interests implicated. (Ibid.) The present situation is distinguishable because UTLA actually
requested the infonnation at issue in this case. Furthermore, UTLA did not seek any
disciplinary records from LAUSD. To the extent that disciplinary or investigatory information
9

is necessarily implicated by UTLA's information request, this case bears closer resemblance to
Mt.
San Antonio CCD, supra, PERB Decision No. 224. In that case, the Board held that
disclosure
of
disciplinary information was necessary and relevant to the union's specific
representational purpose. (Id. at pp. 10-11.) Here, unlike in City
of
Los Altos, the information
requested
by
UTLA was not for some broad, unspecified purpose. Rather, as in Mt. San
Antonio CCD, UTLA sought information relating to housed unit members for the particular
purpose ofrepresenting those employees' interests in ongoing bargaining and investigating.
specific reports about policy violations and discrimination.
LAUSD's Partial Response
An employer does not breach its duty to provide information where it partially complies
with the request and the requesting party fails to communicate its dissatisfaction, follow up,
reassert, or clarify its request. ( City
of
Redding (2011) PERB Decision No. 2190-M, proposed
decision, p. 14, citing Klamath-Trinity Joint Unified School District (2005) PERB Decision
No. 1778 ( other citations omitted).)
In this case, LAUSD provided UTLA with the names and work locations of261
of
purportedly 276 housed unit members on May 13, 2013. Although UTLA did not reassert its
request after that, it is undisputed that UTLA consistently and vocally opposed any form
of
an
opt-out procedure. UTLA offered alternative ways to address LAUSD's concerns but it never
deviated from the position that use
of
an opt-out procedure was unacceptable. LAUSD never
expressed that there was any ambiguity to UTLA's position and
it
knew it was implementing
the opt-out procedure over UTLA's objections.
In addition, LAUSD's partial response did not satisfy UTLA's needs. Fletcher
explained to LAUSD that it was concerned about reported violations
of
its reassignment
policies. UTLA was also concerned that LAUSD was engaging in age discrimination.

LAUSD's partial disclosure prevented UTLA from investigating the full breadth
of
any policy
violations.
Based
on
these facts, the record was already sufficiently clear that LAUSD's May 13,
2013 response would not satisfy UTLA's demand. UTLA was not required to reassert that
position again after May 13, 2013.
Employee Privacy
LAUSD argues that it should not be required to produce the remaining information for
privacy reasons. An employer may be excused from responding to a request for otherwise
necessary and relevant information where it compromises employee privacy. (Los Rios
Community College District (1988) PERB Decision No. 670, p. 13; Modesto City Schools and
High School District (1985) PERB Decision No. 479 (Modesto), pp. 10-1
L)
In those cases,
"the Board is required to balance the privacy interests
of
employees against the union's need
for the information." (Golden Empire Transit District (2004) PERB Decision No. 1704-M
( Golden Empire TD), p. 8.)3 The employer bears the burden
of
proving that the privacy
interests at stake outweigh the union's need for the information. (Ibid.; see also Santa Monica
CCD, supra, PERB Decision No. 2303, proposed decision, p. 10.) The California Supreme
Court recently relied upon Golden Empire TD
when deciding an information request case.
(County
of
Los Angeles
v.
Los Angeles County Employee Relations Commission (2013) 56
Cal.4th 905 ( County ofLA), pp. 921-922, 925, also citing Bakersfield City SD, supra, PERB
Decision No. 1262; Modesto.)
3 Golden Empire TD, supra, PERB Decision No. 1704 appears to concern a transit
district whose collective bargaining rights are covered by sections
of
the Public Utilities Code
not enforced byPERB. (See Pub. Util. Code,§ 101001 et seq.) This apparent anomaly does
not alter the Board's analysis
of
the employer's obligations in infonnation request cases which
was expressly adopted by later Board decisions as well as by the California Supreme Court. In
a subsequent case, the Board explained that it reached the merits
of
the dispute in Golden
Empire TD because neither party contested PERB
's jurisdiction. (San Diego Trolley, Inc.
(2007) PERB Decision No. 1909-M, dismissal letter, p. 4.)
11

In Golden Empire TD, supra, PERB Decision No. 1704-M, the Board rejected the
argument that the employer could refuse to provide employee contact information on the
grounds that 4 of roughly 200 employees requested confidentiality. (Id. at pp. 7-8.) It
concluded that the four employees' requests were insufficient to justify the employer's refusal
to respond. The Board then ordered the employer to provide the names and contact
information for all represented employees. (Id. at pp. 8-9.) In contrast, the Board found that
an employer was not required to produce an investigative threat assessment report about a job
applicant that included a detailed evaluation of the applicant's personal background as well as
the information about the Governor's security detail. (State of California (Department of
Consumer Affairs) (2004) PERB Decision No. 1711-S (Department of Consumer Affairs), at
pp. 26-27.) The union in that case stated that it wanted the information only to independently
· evaluate the thoroughness of the investigation. (Id. at p. 27.)
As explained in more detail above, UTLA has established that the names and work
locations for the housed unit members were needed because that information concerned issues
within the scope ofrepresentation, were necessary to communicate with its bargaining unit,
and enabled UTLA to investigate reported policy and contract violations. Unions have a
significant interest in such information. (Saddleback Valley USD, supra, PERB Decision No.
2333, proposed decision, p. 21; Bakersfield City SD, supra, PERB Decision No. 1262,
proposed decision, pp. 17-18; Chula Vista City SD, supra, PERB Decision No. 834, pp. 58-60.)
Unlike in Department of Consumer Affairs, supra, PERB Decision 1711-S, UTLA' s request
was limited to prevent unnecessary disclosure of information from LAUSD. It expressly
excluded any sensitive personnel or investigatory information. It also offered to keep
LAUSD's response confidential.
12

LAUSD argues that disclosure necessarily implicates employee privacy rights because
all the housed employees are under either a criminal or internal investigation for "egregious"
misconduct. Those assertions were not proven at hearing. Witnesses from both parties
testified that employees were housed for reasons ranging from egregious sexual misconduct to
paperwork errors. LAUSD has not shown or even asserted that the information it withheld
after its May 13, 2013 response concerned employees who were under investigation for any
serious misconduct. LAUSD's non-specific assertions of privacy rights are insufficient to
satisfy its burden of proof. (See City of Burbank (2008) PERB Decision No. 1988-M, p. 16.)
Moreover, LAUSD has not established that housed employees have any substantial
privacy interest in their work locations in this case. In County of LA, supra, 56 Cal.4th 905,
the court balanced a union's request for unit member contact information against those
employees' privacy rights by applying its invasion of privacy analysis. (Id. at p. 926.) To
state a claim under such an analysis, a plaintiff would need to show that there was (1) a legally
protected privacy interest; (2) an objectively reasonable expectation of privacy; and (3) a
serious invasion of that privacy interest. (Ibid.) Applying those standards here, LAUSD has
failed to establish the second element of this test, that the employees at issue have any
reasonable expectation of privacy in their work locations. The record shows that LAU SD
regularly' furnishes other work location information to UTLA upon request. According to
LAUSD, the parties' CBA gives UTLA access to all LAUSD facilities, including ESCs.
LAUSD has allowed a public official to tour an ESC as well. In addition, newly housed
employees are not informed that they have any substantive privacy interest in their job
assignment. Nor are they directed to keep the identities of other housed employees in their
vicinity confidential. The mere fact that employees have requested privacy through the opt-out
13

procedure
is
an insufficient basis to reject an information request. (Golden Empire TD, supra,
PERB Decision No. I 704-M, pp. 7-8.)
Based on these facts, LAUSD has not shown that employees have a reasonable
expectation
of
privacy in the fact that they are at an ESC. LAUSD cites no case standing for
the proposition that employees have any substantial privacy interest in their job assignment.4
On balance, LAUSD has not met its burden
of
proving that any privacy concerns outweighs
UTLA's need for the .requested information.
UTLA' s Alternative Access
LAUSD also argues that disclosure
of
the remaining information is unnecessary
because UTLA may obtain the requested information by direct contact with its unit members.
An
employer is not required to produce requested information
if
the requesting union has equal
access to that information from the same source. (Regents
of
the University
of
California
(Davis) (2010) PERB Decision No. 2101-H, p. 35.) In those cases, the employer must still
notify the requesting party where the information is located. (Ibid.) On the other hand, the
Board rejected the assertion that a union was not entitled
to requested information about an
investigation where it could have obtained similar information through alternative means.
(City
of
Redding, supra, PERB Decision No. 2190-M, p. 2.)
In this case, LAUSD maintains that UTLA has multiple ways
of
communicating with
its members including various Internet fora, employee bulletin boards, and the telephone.
However, none
of
these options equal the employee records LAUSD has at its disposal. The
4 The cases cited by LAUSD refer to information concerning mental examinations
(Vinson
v.
Superior Court (1987) 43 Cal.3d 833, p. 841 ), bank transactions (Valley Bank
of
Nevada
v.
Superior Court (1975) 15 Cal.3d 652, p. 656), urine test results (Luck
v.
Southern
Pacific Transportation Co. (1990) 218 Ca1App.3d 1, p. 15), applications for membership in a
private association (Olympic Club v. Superior Court (1991) 229 Cal.App.3d 358, pp. 362-363),
and names and telephone numbers (Life Technologies Co. v. Superior Court (2011) 197
Cal.App.4th 640, p. 653).
14

fact that UTLA might ultimately be able to obtain the requested information by contacting each
of
its 35,000 members through other means does not excuse LAUSD from providing necessary
and relevant information already in its possession. This argument
is
rejected.
LAUSD's Bargaining Conduct
LAUSD also asserts that there was no violation here because its proposal for an opt-out
procedure was a good faith attempt to resolve the parties' .dispute. In County
of
LA, supra, 56
Cal.4th 905, the court held that parties may bargain in good faith over ways to ameliorate any
privacy issues, including possibly agreeing to an opt-out procedure. (!d. at p. 932.) LAUSD
did not, however, fully satisfy its duty to bargain
in
good faith. During negotiations,
"unilateral changes cannot be implemented until the parties have either reached agreement or
impasse after exhausting the statutory impasse resolution procedures." (State
of
California
(Department
of
Personnel Administration) (1993) PERB Decision No. 995-S, proposed
decision, p. 20, citing PERB
v.
Modesto City School District (1982) 136 Cal.App.3d 881, p.
900; NLRB
v.
Katz (1962) 369 .U.S. 736, p. 754.) In this case, LAUSD and UTLA never
reached agreement over how to address any privacy issues. Nor did LAUSD explain in
negotiations why UTLA's proposal for a confidentiality agreement was unacceptable. Neither
party declared impasse or engaged in EERA's mandated impasse procedures. (See EERA, §
3548 et seq.) Accordingly, LAUSD was not privileged to unilaterally implement its opt-out
procedure. Its failure to satisfy its bargaining obligations is only further evidence that its
response to UTLA's information request violated the duty to bargain in good faith.
UTLA's request for the names and work locations
of
all housed unit members was
necessary and relevant to its duty as exclusive representative
of
certificated personnel.
LAUSD has not asserted a persuasive reason for refusing to provide all
of
the requested
information. Accordingly, its conduct violated EERA sections 3543.5(a), (b), and (c).
15

REMEDY
PERB has broad remedial powers under EERA section 3541.5(c), including:
The board shall have the power to issue a decision and order
directing an offending party to cease and desist from the unfair
practice and to take such affirmative action, including but not
limited to the reinstatement
of
employees with or without back
pay, as will effectuate the policies
of
this chapter.
In
Santa Monica CCD, supra, PERB Decision No. 2303, PERB held that an appropriate
remedy in cases involving the failure to provide requested information include an order to
cease and desist from violating EERA, to provide an up-to-date list
of
the requested employee
information, and to post a notice
of
the violation. (Id. at p. 3.) These are appropriate remedies
here as welL Therefore, LAUSD
is
ORDERED to cease and desist from refusing to respond to
UTLA's requests for information that
is
necessary and relevant to its representational duties
and from interfering with protected rights. LAUSD is further ORDERED to produce an up-to-
date response to UTLA's request for the names and work locations
of
housed unit members.
Finally, LAUSD is ORDERED to post a notice
of
this violation at all work locations where
notices to LAUSD employees customarily are placed. (See Ibid.)
PROPOSED ORDER
Upon the foregoing findings
of
fact and conclusions
of
law, and the entire record in the
case, it is found that the Los Angeles Unified School District (LAUSD) violated the
Educational Employment Relations Act (EERA), Government Code section 3543.S(a), (b), and
(c). LAUSD violated EERA by refusing to provide United Teachers Los Angeles (UTLA)
with the names and work locations
of
all housed certificated employees, pursuant to UTLA' s
request for that information.
Pursuant to EERA section 3541.5(c), it hereby is ORDERED that LAUSD, its
governing board and its representatives shall:
16

A.	
CEASE AND DESIST FROM:
1.	
Refusing to properly respond to UTLA' s requests for information
necessary and relevant to its representational duties;
2.	
Denying UTLA the right to represent its bargaining unit; and
3. 	Denying employees the right to be represented by UTLA.
B.	
TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1.	
Provide UTLA with an up-to-date list
of
the names and work locations
of
all housed bargaining unit members;
2. 	Within 10 workdays
of
the service
of
a final decision in this matter, post
at all work locations where notices to employees in LAUSD customarily are posted, copies
of
the Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent
ofUTLA, indicating that it will comply with the terms
of
this Order. Such posting shall be
maintained for a period
of30
consecutive workdays. Reasonable steps shall be taken to ensure
that the Notice is not reduced in size, altered, defaced or covered with any other material.
4. 	Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel
of
the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent shall provide reports,
in
writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on UTLA.
Right to Appeal
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed Decision
and Order shall become final unless a party files a statement of exceptions with the Public
Employment Relations Board (PERB or Board) itself within 20 days of service of this Decision. The
Board's address is:
17

Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
In accordance with PERB regulations, the statement of exceptions should identify by page
citation or exhibit number the portions of the record, if any, relied upon for such exceptions. (Cal.
Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular PERB business
day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd. (a).)
A document is also considered "filed" when received by facsimile transmission before the close of
business together with a Facsimile Transmission Cover Sheet or received by electronic mail before
the close of business, which meets the requirements ofPERB Regulation 32135(d), provided the
filing party also places the original, together with the required number of copies and proof of service,
in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, §§ 32090, 32091 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served on a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140, and
32135, subd. (c).)

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-5810-E, United Teachers Los
Angeles v. Los Angeles Unified School District, in which all parties had the right to participate,
it has been found that Los Angeles Unified School District (LAUSD) violated the Educational
Employment Relations Act (BERA), Government Code section 3540 et seq., by refusing to
provide United Teachers Los Angeles (UTLA) with the names and work locations of all
housed certificated employees, pursuant to UTLA' s request for that information.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. CEASE AND DESIST FROM:
L Refusing to properly respond to UTLA's requests for information
necessary and relevant to its representational duties;
2. Denying UTLA the right to represent its bargaining unit; and
3. Denying employees the right to be represented by UTLA.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE BERA:
1. Provide UTLA with an up-to-date list of the names and work locations of
all housed bargaining unit members
Dated: LOS ANGELES UNIFIED SCHOOL DISTRICT
By: Authorized Agent
---------
-------------
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORK.DAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.