Privacy Issues in the Workplace

3. U NION A CCESS TO P ERSONNEL F ILE AND C ONTACT I NFORMATION A union is generally entitled to see an employee’s personnel file if the employee consents to the disclosure. If the employee does not consent to the disclosure, a balancing test is applied. In Detroit Edison Co. v. NLRB , 373 the United States Supreme Court held that an employer did not commit an unfair labor practice by refusing to disclose, without a written consent from individual employees, aptitude test scores linked with employees’ names in light of the sensitive nature of the testing information. The court stated:

A union’s bare assertion that it needs information to process a grievance does not automatically oblige the employer to supply all the information in the manner requested. The duty to supply information under Section 8(a)(5) [of the NLRA] turns upon the circumstances of the particular case, and much the same may be said for the type of disclosure that will satisfy the duty. 440 U.S. at 314-15, 99 S.Ct. at 1131 (citations omitted).

Thus, a balancing is required between the union’s need to have information so that it can effectively carry out its functions as bargaining representative of the employees and the employee’s legitimate right to privacy and the employer’s interest in maintaining the confidentiality of his or her personnel file. The relevancy of the information sought by the union, the employee’s privacy interest in the information sought and the safeguards provided to the employer to protect that privacy interest are the principal elements to be considered. 374 Regarding employee home addresses, the California Supreme Court determined in County of Los Angeles v. Los Angeles County Employee Relations Commission that a public employer must disclose home contact information for all bargaining unit members (even non-union members) to the representatives for the bargaining unit. 375 It held that the failure to provide relevant information about non-member employees violated the County’s obligation under the Meyers- Milias-Brown Act (MMBA) to bargain in good faith. The Court noted that the parties could negotiate or the Commission could adopt specific procedures to allow non-members to opt-out of providing their home contact information. A public entity is required to disclose the work locations of various members even if the work location reveals that the member was under disciplinary and/or criminal investigation. In the PERB Decision Los Angeles Unified School District 376 , the district temporarily assigned employees under disciplinary and/or criminal investigation to one of its Educational Service Centers (“ESCs”). The union demanded to bargain the working conditions of the ESCs and as part of the bargaining over this, asked the district to identify all unit members who were temporarily assigned to either an ESC or their home while under investigation, and the specific ESC to which they were assigned. The district provided the information but only after it gave the employees the opportunity to opt-out of the disclosure. Fifteen of the 276 employees opted - out of the disclosure. The union filed an unfair practice charge for not receiving all of the

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 114