City of Los Altos (PERB 1891M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD	
•
TEAMSTERS LOCAL 350,
Charging Party,
v.
CITY OF LOS ALTOS,
Respondent.
Case No. SF-CE-331-M
PERB Decision No. 	1891-M
March 	1 4 , 	2007
Appearances: Beeson, Tayer & Bodine by Duane B. Beeson, Attorney, for Teamsters
Local 350; Liebert Cassidy Whitmore by Richard S. Whitmore and Greg Groeneveld,
Attorneys, for City of Los Altos.
Before Duncan, Chairman; Shek and McKeag, Members.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Teamsters Local 350 (Local 350) of a Board agent's partial
dismissal (attached) of their unfair practice charge. 	The charge alleged that the City of Los
Altos (City) violated the Meyers-Milias-Brown Act (MMBA)1 by failing to provide Local 350
with a notice of intent to terminate employment of represented employee Keith Amdur
(Amdur). 	Local 350 alleged that the City's policy of not providing disciplinary information
without the express consent of the employee involved was on its face a violation of the
MMBA.
The Board has reviewed the entire record in this matter, including, but not limited to,
the unfair practice charge, the amended unfair practice charge, the partial warning and
dismissal letters, Local 350's appeal and the City's opposition. The Board finds the partial
1MMBA is codified at Government Code section 3500, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

warning and dismissal2 letters to be free of prejudicial error and adopts them as the decision of
the Board itself, subject to the discussion below.
BACKGROUND
The unfair practice charge in this case was filed on December 1, 2005, and alleged that
the City failed to provide Local 350 with information about an August 2005 notice of intent to
terminate employment of City employee Amdur, a member of Local 350's bargaining unit.3 A
June 19, 2006, amended charge clarified Local 350's charge that the City's policy of denying
disciplinary information without the express authorization of the employee(s) is "on its face a
violation of the Meyers-Milias-Brown Act" and was not specific to Amdur. 	The Board agent's
warning and dismissal letters analyze whether or not the City violated the MMBA by
unilaterally implementing the policy4 and whether or not the City failed to provide requested
information to which Local 350 was entitled. Local 350's appeal alleges that the City's refusal
to provide the disciplinary information on the grounds that doing so would violate the
employee's right of privacy, constituted an ongoing interference with Local 350's ability to
exercise its representation duties. Local 350 concedes that there is "no union request for
identified information in the present situation." Rather, the union argues that it is entitled to
"automatic disclosure by the Employer to the Union of all disciplinary actions."
2The Board agent's partial dismissal includes an erroneous reference to the letter as a
"partial warning letter" but the error is not prejudicial.
3The December 2005 unfair practice charge also alleged that the City failed to provide
the names and mailing addresses of all bargaining unit employees. That charge was later
settled in a July 27, 2006, partial settlement agreement and will therefore not be discussed in
this decision.
4While Local 350's appeal asserts that the case is not a unilateral change case, its
amended charge states that the policy was implemented "without notice to, participation by, or
consent of the Union." Therefore, the Board agent was correct in analyzing whether or not
implementation of the policy constituted a unilateral change.
22

DISCUSSION
The issue for the Board's consideration is whether or not the City's policy of refusing
to provide disciplinary information of unit employees absent express authorization by the
employee involved violates the MMBA. Local 350 argues that this policy violates the MMBA
on its face because it interferes with the union's ability to carry out its representation duties.
According to Local 350, "the City's policy forecloses the Union from being informed by the
City that there may be a problem that triggers its representation obligations."
The City's position is that the policy at issue is longstanding and intended to protect the
privacy rights of its employees. 	The City argues that the constitutional right to privacy
afforded the employees trumps any right to information asserted by Local 350. PERB need not
address the constitutional argument raised by the City based on our finding that Local 350 has
no such right to the information, as will be discussed below.
The parties do not dispute that when consent is given by the employee, the disciplinary
information is provided by the City to Local 350. Rather, Local 350 suggests that even absent
consent by the employe -	
e and with no pending request by the union, the City's refusal to
provide the information constitutes an unfair labor practice. Local 350 argues that the current
policy of requiring employee consent impedes its ability to carry out its representation duties in
three ways: (1) the policy prevents the union from becoming aware of the nature and
frequency of disciplinary actions within the bargaining unit; (2) knowledge of incidents of
discipline enables the union to inform its members of facts that may affect the employees'
behavior on the job; and (3) the union has the responsibility to deal with the employer
concerning matters that could affect the terms and conditions of their employment.
Local 350 cites no PERB authority and we found no authority for the speculative
proposition that the union is entitled to all information that could conceivably aid the union in
W	
3

its representation duties. Rather, we agree with the City's assertion that "the Union does not
have unfettered access to employees' personal information." The Board has held that the
union is entitled to information that is "necessary and relevant to discharging its duty to
represent unit employees." (Stockton Unified School District (1980) PERB Decision No. 143.)
Furthermore, PERB has held that there is no duty to provide information absent a
request. (Oakland Unified School District (1982) PERB Decision No. 275; Los Angeles
Unified School District (1990) PERB Decision No. 835.) Thus, Local 350's concession that it
has no pending request for identified information is pivotal because without a request,
Local 350 has no right to the disciplinary information which they argue they are entitled to as a
matter of course. However, even if there were a proper request by Local 350, that request
would have to be considered in light of the privacy considerations of the employees subject to
discipline.
Local 350's alternative argument that the City's policy interferes with the union's
ability to carry out its representation duties in violation of the MMBA also has no merit. In
order to establish a prima facie case for interference under the MMBA, the charging party must
establish that the conduct resulted in at least slight harm to employee rights. The courts have
described the standard as follows:
All [a charging party] must prove to establish an interference
violation of section 3506 is: 	(1) That employees were engaged in
protected activity; (2) that the employer engaged in conduct
which tends to interfere with, restrain or coerce employees in the
exercise of those activities, and (3) that employer's conduct was
not justified by legitimate business reasons. 	[Public Employees
Assn. v. Board of Supervisors (1985) 167 Cal.App.3d 797, 807
[213 Cal.Rptr. 491].]
In light of our holding that the City had no duty to provide the information absent a request, we
find that Local 350's allegations failed to demonstrate that the City's conduct resulted in any
harm to employee rights.
A	4

Local 350 fails to state a prima facie case of a violation of the MMBA. Local 350's
argument that the City's policy violates MMBA on its face is unpersuasive and unsupported by
PERB case law. Additionally, Local 350's charge does not state a prima facie case for denial
of requested information, because there is no request in dispute. Lastly, Local 350's charge
does not state a prima facie case for interference because the City's conduct did not result in
any harm to employee rights.
ORDER
Based on the foregoing, the partial dismissal of the unfair practice charge in Case
No. SF-CE-331-M is hereby AFFIRMED.
Members Shek and McKeag joined in this Decision.
55

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: 510-622-1023
Fax:(510)622-1027
July 5, 2006
Duane Beeson, Attorney
Beeson, Tayer & Bodine
1404 Franklin Street, 5th Fl.
Oakland, CA 94612-3208
Re: 	Teamsters Local 350 v. City of Los Altos
Unfair Practice Charge No. SF-CE-331-M
PARTIAL DISMISSAL
Dear Mr. Beeson:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 1, 2005. The Teamsters Local 350 (Local 350) alleges
that the City of Los Altos (the City) violated the Meyers-Milias-Brown Act (MMBA)1 by
failing to provide a Notice of Intent to Terminate Employment of represented employee Keith
Amdur. This partial warning letter does not relate to the allegations that the City failed to
provide the home addresses and phone numbers of bargaining unit members as requested in
November 2005.
I indicated to you, in my attached letter dated May 26, 2006, that certain allegations contained
in the charge did not state a prima facie case. You were advised that, if there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter,
you should amend the charge. 	You were further advised that, unless you amended these
allegations to state a prima facie case or withdrew them prior to June 2, 2006, the allegations
would be dismissed.
You requested and were granted an extension to file an amended charge. On June 12, 2006, I
received your First Amended Charge. 	Your amended charge does not contain any additional
facts, rather you argue that my Warning Letter misconstrued the legal theory under which the
employer allegedly violated the MMBA. 	My Warning Letter analyzed the employer's policy
of not notifying the union of disciplinary action against represented employees as a unilateral
change allegation. In your First Amended Charge, you state. "the issue now presented is
whether the City's policy of refusing to inform the Union of disciplinary actions against
bargaining unit employees.. .is on its face a violation of the Meyers-Milias-Brown Act." You
claim that in circumstances where an employee knowingly declines to involve the union in the
disciplinary action, or where an employee is unaware of his/her rights to be represented by the
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

- -
SF-CE-331-M
July 5, 2006
Page 2
union at the disciplinary hearing, the city's policy forecloses the union from meeting its
representation obligations.
An employer's duty to provide information to the exclusive representative arises in several
different contexts within the collective bargaining relationship. 	One such circumstance is
where an employer intends to implement new, or change existing policy. In that case, a failure
to provide the exclusive representative notice and an opportunity to demand bargaining over
the proposed change is a violation of the MMBA. Another such circumstance is where the
exclusive representative has requested information that is necessary and relevant to its
representational duties. Failure to respond to a request for information that is necessary and
relevant to a union's representational duties is a violation of the MMBA. However, absent
circumstances giving rise to a duty to provide information, there is no mechanism for requiring
an employer to provide any and all information that might one day become relevant to the
union's duties as an exclusive representative.
My Warning Letter addressed the factual deficiencies in either a unilateral change allegation or
an alleged violation of the duty to respond to an information request. Your First Amended
Charge does not cure these factual deficiencies, and in fact states: "The amendment is
intended to eliminate the issues of whether there was a unilateral change in City policy as well
as those involving Mr. Amdur's discharge."
In Oakland Unified School District (1982) PERB Decision No. 275, the Board held that absent
either the employer's deliberate withholding of information on a negotiable subject, or the
union's request for the specific information, the employer's failure to inform the union of its
adoption of a policy was not evidence of bad faith. 	The Board reasoned that all employers
have many policies which may be of interest to a union, and that such policies were reachable
through information requests. Id. As stated in your charge, the employer has refused to
-
volunteer useful information until it is obligated to do so. However, you have not provided
any facts that tend to demonstrate that the employer is either deliberately concealing
information from the union, or that it is refusing to provide information upon request.
Therefore, based upon the rule from Oakland Unified School District, you have not alleged
sufficient facts to establish that the employer's policy has violated the MMBA.
Therefore, I am dismissing those allegations related to the employer's policy of refusing to
inform the Union of disciplinary actions against bargaining unit employees for failure to state a
prima facie case based on the facts and reasons contained in this and my May 23, 2006 letter.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

C
SF-CE-331-M
July 5, 2006
Page 3
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section 11020(a).) A document
is also considered "filed" when received by facsimile transmission before the close of business
together with a Facsimile Transmission Cover Sheet which meets the requirements of
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. (Regulation 32135(b), (c)
and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. 	(Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. 	(See Regulation 32140 for the required contents.) The
document will be considered properly "served" when personally delivered or deposited in the
mail or deposited with a delivery service and properly addressed. A document may also be
concurrently served via facsimile transmission on all parties to the proceeding. 	(Regulation
32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. 	(Regulation 32132.)
Final Date
(

SF-CE-331-M
July 5, 2006
Page 4
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By
Alicia Clement
Regional Attorney
Attachment
cc: J. Logan, Human Resources Manager
City of Los Altos
One North San Antonio Road
Los Altos, CA 94022
AC

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: 510-662-1023
Fax:(510)622-1027
May 23, 2006
Duane Beeson, Attorney
Beeson, Tayer & Bodine
1404 Franklin Street, 5th Fl.
Oakland, CA 94612-3208
Re: 	Teamsters Local 350 v. City of Los Altos
Unfair Practice Charge No. SF-CE-331-M
PARTIAL WARNING LETTER
Dear Mr. Beeson:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 1, 2005. The Teamsters Local 350 (Local 350) alleges
that the City of Los Altos (the City) violated the Meyers-Milias-Brown Act (MMBA)1 by
failing to provide a Notice of Intent to Terminate Employment of represented employee Keith
Amdur. This partial warning letter does not relate to the allegations that the City failed to
provide a the home addresses and phone numbers of bargaining unit members as requested in
November 2005.
My investigation revealed the following. Local 350 is a party to a Memorandum of
Understanding with the City of Los Altos, representing its public works employees. Keith
Amdur is an employee of the City and a member of the bargaining unit represented by Local
350. 	On August 29, 2005, the City issued a Notice of Intent to Terminate Employment of
Keith Amdur. However, the City did not serve a copy of that Notice on Local 350, apparently
as part of a "policy of declining to provide the Union with employee disciplinary actions
affecting bargaining unit members on the ground that such information would violate the
employee's right of privacy." Local 350 learned of the Notice on September 19, 2005 when a
City employee called to inform the Union that a Skelly hearing had been scheduled for
September 23, 2005. The City eventually provided Local 350 with all of the disciplinary
documents regarding Mr. Amdur, but only after Mr. Amdur gave his authorization for the City
to do so.
1 The MMBA is codified at Government Code section 3500 et seq. 	The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-331-M
May 26, 2006
Page 2
Discussion
In determining whether a party has violated Government Code section 3505 and PERB
Regulation 32603(c),2 PERB utilizes either the "per se" or "totality of the conduct" test,
depending on the specific conduct involved and the effect of such conduct on the negotiating
process. (Stockton Unified School District (1980) PERB Decision No. 143.)3 Unilateral
changes are considered "per se" violations if certain criteria are met. Those criteria are:
(1) the employer implemented a change in policy concerning a matter within the scope of
representation, and (2) the change was implemented before the employer notified the exclusive
representative and gave it an opportunity to request negotiations. 	(Vernon Fire Fighters v. City
of Vernon (1980) 107 Cal.App.3d 802 [165 Cal.Rptr. 908]; Walnut Valley Unified School
District (1981) PERB Decision No. 160; San Joaquin County Employees Association v. City of
Stockton (1984) 161 Cal.App.3d 813; Grant Joint Union High School District (1982) PERB
Decision No. 196.)
To the extent that the charge alleges a unilateral change in the City's policy regarding
notification of disciplinary actions against bargaining unit members, you have alleged
insufficient facts to establish that the City's failure to notify Local 350 of its Intent to
Terminate Mr. Amdur's employment was a change in policy that was implemented before the
City gave notice and an opportunity to request negotiations.
The exclusive representative is entitled to all information that is "necessary and relevant" to the
discharge of its duty of representation. 	(Stockton Unified School District (1980) PERB
Decision No. 143). PERB uses a liberal standard, similar to a discovery-type standard, to
determine relevance of the requested information. (California State University (1986) PERB
Decision No. 613-H.) Failure to provide such information is a per se violation of the duty to
bargain in good faith.
If the employer demonstrates substantial cost involved in providing the information in the
precise form requested, the parties must bargain in good faith as to who will bear those costs.
(Los Rios Community College District (1988) PERB Decision No. 670; Tower Books (1984)
273 NLRB 671.)
To the extent that the charge alleges a failure to provide necessary and relevant information, it
is unclear whether and when Local 350 requested the information, giving rise to a duty by the
City to provide it or provide a reason why it cannot do so. Finally, according to the City, it
eventually did provide the requested information.
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
3 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

SF-CE-331-M
May 26, 2006
Page 3
For these reasons the allegation that the City failed and refused to provide the union with a
copy of a Notice of Intent to Terminate Employment of Keith Amdur, dated August 29, 2005,
as presently written, does not state a prima facie case. If there are any factual inaccuracies in
this letter or additional facts that would correct the deficiencies explained above, please amend
the charge. The amended charge should be prepared on a standard PERB unfair practice
charge form, clearly labeled First Amended Charge, contain all the facts and allegations you
wish to make, and be signed under penalty of perjury by the charging party. 	The amended
charge must have the case number written on the top right hand corner of the charge form. The
amended charge must be served on the respondent's representative and the original proof of
service must be filed with PERB. If I do not receive an amended charge or withdrawal from
you before June 2, 2006, I shall dismiss the above-described allegations from your charge. If
you have any questions, please call me at the telephone number listed above.
Sincerely,
Alicia Clement
Regional Attorney
AC