In County of Los Angeles v. Los Angeles County Employee Relations Commission, the California Supreme Court recently addressed an important issue involving employee privacy in public sector union representation. The Court found that a public-sector union’s duty to represent all employees in a bargaining unit trumps their right to keep their contact information private.
During labor negotiations with the County of Los Angeles, SEIU proposed amending its Memorandum of Understanding (MOU) to require the County to provide SEIU on an annual basis with the names and home addresses of all employees – including nonmembers – for the purpose of communicating with employees about union activities and events, sending Hudson notices (to nonmember “fair share fee payers” explaining membership options, applicable fees, and the reasons for the fees), as well as for recruitment purposes and investigation of grievances. The County rejected SEIU’s proposal on the ground that the contact information was not relevant to any collective bargaining issue and such disclosure would violate nonmembers’ privacy rights. The County proposed that the then-current arrangement be retained, or that the parties negotiate a procedure for employees to release their own personal information to SEIU. SEIU withdrew its proposal and filed an unfair labor practice charge.
Ultimately, the case made its way to the California Supreme Court, where the Court addressed two issues in its decision: (1) whether the MMBA and/or labor law precedent required the County to provide the addresses and telephone numbers to SEIU, and (2) whether such disclosure violated the employees’ constitutional right to privacy. In addressing the first issue, the Court conducted a lengthy review of legal precedent under the MMBA, PERB decisions regarding the California labor relations statutes it administers, and federal labor relations precedent under the National Labor Relations Act (NLRA). The Court concluded that SEIU’s request for home addresses and phone numbers of County employees it represented – including nonmembers within the bargaining unit – asked for information that was presumptively relevant to the union’s representation of its employees. Presumptively relevant information must be disclosed to the union unless the employer proves a lack of relevance or gives adequate reasons why the information cannot be supplied. Additionally, the Court noted, that a union’s ability to obtain relevant information may be tempered by measures to accommodate privacy concerns.
The Court then reviewed the employee privacy interests raised by the County in refusing to provide the nonmember employee home addresses and phone numbers. While agreeing that County employees had a legally protected privacy interest in their home addresses and phone numbers, the Court concluded that the reasonableness of the employees’ expectations, however, were somewhat reduced in light of what the Court viewed as a common practice of other public employers giving unions this information. Ultimately, the Court determined that the union’s interest in obtaining residential contact information for all employees it represents was both legitimate and important, and favored disclosure. In this regard, the Court focused on the fact that a union’s duty of fair representation to employees includes the duty to keep employees informed about the status of negotiations or changes in contractual terms, and that the union was required to send employees the annual Hudson notice. The Court noted that other means of union communication (bulletin boards, union meetings, worksite visits) were often inadequate. In response to the concern that nonmember employees’ privacy would be subjected to increased contact with the union by mail and “other means,” the Court explained that if harassment is a concern, employers may bargain for procedures that allow nonmember employees to opt out and prevent disclosure of their contact information.
Finally, in finding that the court of appeal had overstepped its authority in imposing an opt-out procedure on the parties, the Court advised that employers remain free to bargain for notice and opt-out procedures in negotiating collective bargaining agreements, and can also draft employment contracts that will notify employees that their home contact information is subject to disclosure to the union and permit employees to request nondisclosure. The Court also left open the option for PERB to adopt notice and opt-out procedures.
Significance: This case has made clear that unions representing public employees are entitled to employee personal contact information and that employees in positions within a bargaining unit (including employees who are non-union members) should not expect their personal contact information to remain private when the employer is faced with a union’s request for information.