County of Los Angeles v. Los Angeles County Employee Relations Commission , 56 Cal. 4th 905 ( 2013 )

Filed 5/30/13
IN THE SUPREME COURT OF CALIFORNIA
COUNTY OF LOS ANGELES, )
)
Plaintiff and Appellant, )
)
v. ) S191944
)
LOS ANGELES COUNTY EMPLOYEE ) Ct.App. 2/3 B217668
RELATIONS COMMISSION, )
) Los Angeles County
Defendant and Respondent; ) Super. Ct. No. BS116993
)
SERVICE EMPLOYEES )
INTERNATIONAL UNION, LOCAL 721, )
)
Real Party in Interest and )
Respondent. )
____________________________________)
This case involves the balance between an employee‟s right of
informational privacy1 and a union‟s right to obtain information it needs to
represent the employee in collective bargaining. The Service Employees
International Union, Local 721 (SEIU) is the exclusive bargaining representative
of all Los Angeles County (County) employees. The question here is whether
SEIU is entitled to obtain the home addresses and phone numbers of all
represented employees, including those who have not joined the union. We agree
with both courts below that it is so entitled but reverse the Court of Appeal‟s
imposition of procedural requirements limiting disclosure.
1 See Pioneer Electronics (USA) Inc. v. Superior Court (2007) 40 Cal.4th
360, 372-373 (Pioneer Electronics).
1
State and federal labor decisions have long held that unions are
presumptively entitled to contact information for all employees they represent.
These decisions, and applicable labor laws, generally obligate the County to give
SEIU the requested information. Whether the right to privacy under article I,
section 1 of the California Constitution prohibits disclosure is a question of first
impression. We conclude that, although the County‟s employees have a
cognizable privacy interest in their home addresses and telephone numbers, the
balance of interests strongly favors disclosure of this information to the union that
represents them. Procedures may be developed for employees who object to this
disclosure. However, the Court of Appeal exceeded its authority in this
administrative mandate proceeding by attempting to impose specific procedures
on the parties.
I. BACKGROUND
SEIU is the certified majority representative for County employees in
several bargaining units. County employees have a collective right to unionize but
an individual right to refuse to join or participate in a union. (Gov. Code, § 3502;2
L.A. County Code, § 5.04.070.) To accommodate these rights, a public agency
may enter into an “agency shop agreement” with the organization recognized as
the employees‟ exclusive or majority bargaining agent. (§ 3502.5, subd. (a).) An
“agency shop” is “an arrangement that requires an employee, as a condition of
continued employment, either to join the recognized employee organization or to
pay the organization a service fee . . . .” (Ibid.)
Each of the County‟s bargaining units has a memorandum of understanding
(MOU), with SEIU. Most of these MOUs have an agency shop provision that
gives County employees four options: (1) join SEIU and pay dues; (2) decline to
join and pay a fair share fee; (3) decline to join, object to the fair share fee, and
2 All statutory references are to the Government Code unless otherwise
specified.
2
instead pay an agency shop fee; or (4) decline to join, claim a religious exemption,
and pay the agency shop fee to a nonreligious, nonlabor charitable fund. A
recognized bargaining agent acts on behalf of all employees in a bargaining unit,
whether the employees are union members or not.
Teachers v. Hudson (1986) 475 U.S. 292 (Hudson) requires that SEIU send
County employees an annual notice to collect fees from nonmembers. The
Hudson notice sets out membership options, applicable fees, and the reasons for
these fees.3 SEIU‟s notice packet also includes forms allowing the employee to
join or decline to join the union. Those who decline are asked to provide their
name, home address, and home telephone number. Employees who do not return
any form are, by default, considered “fair share fee payers.” As of 2007, nearly
12,000 of the County‟s approximately 14,500 nonmember employees were fair
share fee payers. SEIU has home addresses for about half of these nonmembers.4
Historically, the County provided lists of nonmembers‟ names, worksites,
office addresses, and supervisors, but has never given SEIU home addresses or
telephone numbers. Consequently, SEIU has not sent Hudson notices directly to
County employees. Instead, since at least 1994, SEIU has delivered Hudson
notice packets to the Los Angeles County Employee Relations Commission
(ERCOM), an independent body that manages relations between the County and
3 In Hudson, the United States Supreme Court held that the First Amendment
rights of nonunion employees require that, before an agency fee is collected,
employees must receive “an adequate explanation of the basis for the fee, a
reasonably prompt opportunity to challenge the amount of the fee before an
impartial decisionmaker, and an escrow for the amounts reasonably in dispute
while such challenges are pending.” (Hudson, supra, 475 U.S. at p. 310; see also
Knox v. Service Employees Internat. Union, Local 1000 (2012) 567 U.S. __ [132
S.Ct. 2277, 2292-2293] [Hudson notice must also be provided when public-sector
union imposes a special assessment or dues increase].)
4 SEIU also has contact information for approximately 46,000 County
employees who are members.
3
its employees under the Meyers-Milias-Brown Act (MMBA). (§§ 3507, 3509.)5
ERCOM would then mail the Hudson notices, using address labels provided by
the County.
During negotiations in 2006, SEIU proposed amending the MOU as
follows: “To facilitate the carrying out of this responsibility [to provide Hudson
notices], each year the County shall furnish the Union with the names and home
addresses of employees in [the] bargaining units covered by agency shop
provisions.” SEIU also sought contact information for other reasons. As the
exclusive bargaining representative, SEIU wanted to communicate with all County
employees, members or otherwise, about union activities and events.6 It also
wanted the information for recruitment7 and investigation of grievances.
The County rejected the amendment, contending contact information was
not relevant to any collective bargaining issue and disclosure would violate
nonmembers‟ privacy rights. The County proposed either to continue the current
arrangement or to negotiate a procedure for employees to release their own data.
SEIU opposed these alternatives, withdrew its proposal to modify the Hudson
notice provision, and filed a charge with ERCOM alleging an unfair employee
relations practice.
After a three-day hearing, an administrative hearing officer concluded the
County‟s refusal to provide the contact information was an unfair labor practice.
Relying on decisions by the Public Employment Relations Board (PERB) and the
National Labor Relations Board (NLRB), the hearing officer held the contact
information was presumptively relevant (see post, at p. 9) to SEIU‟s
5 ERCOM performs the same function for Los Angeles County as the Public
Employment Relations Board performs for other public employers in California.
(See post, at p. 8.)
6 Some communication with nonmembers is possible through bulletin boards
at County worksites.
7 A union representative testified: “If we had the chance to talk to [the non-
members], we could have them as members.”
4
representation. While acknowledging that privacy interests were at stake, the
hearing officer found the County had not met its burden to show that the
nonmembers‟ privacy interest outweighed SEIU‟s need for the information.
ERCOM adopted the hearing officer‟s findings and ordered disclosure.
The County sought a writ of administrative mandate, urging that
nonmembers had a constitutional privacy right that justified nondisclosure.8
(Code Civ. Proc., § 1094.5.) Although the superior court concluded nonmember
County employees had a legally protected privacy right and disclosure of their
contact information constituted a “non-trivial” invasion of that right, it also held
that SEIU needed the information to fulfill its duty to represent all County
employees in collective bargaining. The court then balanced those competing
interests. It observed that labor law precedents, while not dispositive, establish a
strong public policy in favor of union access to the information. On balance, the
public policy favoring collective bargaining outweighed any privacy interest
nonmember County employees might have in nondisclosure. Because disclosure
did not violate California law, the court denied the County‟s petition for relief
from ERCOM‟s order.
The County sought review, and the appellate court reframed the issue. It
agreed with the trial court that nonmember employees had a reasonable
expectation of privacy in their home addresses and phone numbers. However, the
court did not balance this expectation of privacy against SEIU‟s need for the
information. Instead, it characterized the question as whether a nonunion
employee “has a reasonable expectation under California privacy laws that he or
she will be provided notice and an opportunity to object before” contact
information is disclosed to the union.
8 The trial court held the privacy claim had not been exhausted because the
County had not relied on it at the administrative hearing. Nevertheless, the court
considered the claim on its merits.
5
The court acknowledged the question it framed was one of first impression.
It sought guidance by analogizing SEIU‟s request to a class action discovery
request for consumers‟ personal information. Importing a procedure from class
action litigation, the court held nonmember employees were entitled to notice and
an opportunity to opt out before their home addresses and telephone numbers
could be disclosed to SEIU. (See, e.g., Pioneer Electronics, supra, 40 Cal.4th at
pp. 372-373.) In this analysis, the appellate court assumed the privacy rights of
objecting employees would always outweigh SEIU‟s need for the information and
that SEIU only had a right to contact information for those nonmember employees
who failed to object. We granted SEIU‟s petition for review.
II. DISCUSSION
A. Employer’s Duty to Provide Information Relevant to Collective Bargaining
As a threshold matter, apart from privacy concerns, the County contends no
applicable law requires that it give SEIU the requested information. We hold to
the contrary. Under the MMBA and applicable labor law precedents, the failure to
provide relevant information violated the County‟s obligation to bargain in good
faith. Before turning to the good faith question, we explore the interrelation
between federal and state labor laws.
1. Overview of Applicable Labor Laws
The National Labor Relations Act (NLRA) governs collective bargaining in
private sector employment. (1 Castagnera et al., Termination of Employment
(2002) § 1:131; see Department of Defense v. FLRA (1994) 510 U.S. 487, 503
(Dept. of Defense); Teledyne Economic Development v. N.L.R.B. (4th Cir. 1997)
108 F.3d 56, 59.) However, the NLRA leaves states free to regulate labor
relationships with their public employees. (29 U.S.C. § 152(2); Davenport v.
Washington Ed. Assn. (2007) 551 U.S. 177, 181.)
Public employees in California do not have the right to bargain collectively
absent enabling legislation. (American Federation of State etc. Employees v.
County of Los Angeles (1975) 49 Cal.App.3d 356, 358 (American Federation).)
6
Rather than fashion a single overarching employment relations law, like the
NLRA, our Legislature has passed several different statutes covering specific
categories of public employees. (See Coachella Valley Mosquito & Vector
Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th
1072, 1084-86 (Coachella Valley).) In 1968, the Legislature enacted the MMBA,
authorizing collective bargaining for employees of most local governments,
including Los Angeles County. (§ 3500 et seq., added by Stats. 1968, ch. 1390,
pp. 2725-2729.) State employees and those of school districts were excluded from
the MMBA (Coachella Valley, at p. 1083), but separate statutes were later enacted
to cover these government workers.9 “The MMBA imposes on local public
entities a duty to meet and confer in good faith with representatives of recognized
employee organizations, in order to reach binding agreements governing wages,
hours, and working conditions of the agencies‟ employees. (Gov. Code, § 3505.)”
(Coachella Valley, at p. 1083.)
The MMBA is administered by PERB, a quasi-judicial administrative
agency modeled after the NLRB. (See Coachella Valley, supra, 35 Cal.4th at
pp. 1084-1085; § 3540.) Although the Legislature initially created PERB in 1975
to enforce a different employment relations statute,10 PERB‟s jurisdiction has
expanded as the Legislature passed new laws addressing specific realms of public
9 Employment relations between the State of California and certain
categories of its employees are governed by the Ralph C. Dills Act. (§ 3512 et
seq., added by Stats. 1986, ch. 103, § 1, p. 237.) School district employment
relations are covered by the Educational Employment Relations Act. (§ 3540 et
seq.)
10 The Legislature created the Educational Employment Relations Board
(EERB) in 1975 to administer the Educational Employment Relations Act
(EERA). (Coachella Valley, supra, 35 Cal.4th at pp. 1084-1085.) In 1977 the
Legislature expanded the EERB‟s jurisdiction to encompass unfair practice
charges under the State Employer-Employee Relations Act (§ 3512 et seq. [now
the Ralph C. Dills Act]) and renamed the entity PERB. (Coachella Valley, at
p. 1085.)
7
employment. (Coachella Valley, at p. 1085.) In 2000, the Legislature brought the
MMBA within PERB‟s authority (Coachella Valley, at p. 1085; Stats. 2000,
ch. 901, § 8, p. 6607 [adding § 3509]), giving PERB exclusive initial jurisdiction
over complaints alleging unfair labor practices violating the MMBA. (§ 3509;
City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597,
605.) However, the statute does not apply to Los Angeles County. (§ 3509,
subd. (d).)
In the same year the MMBA was enacted, the County passed its own
ordinance conforming to the legislative policies expressed in the MMBA.
(American Federation, supra, 49 Cal.App.3d at p. 358.) The ordinance created
ERCOM to administer its provisions. (Ibid.; Los Angeles County Employees
Assn., Local 660 v. County of Los Angeles (1973) 33 Cal.App.3d 1, 3.) In giving
PERB jurisdiction over MMBA disputes, the Legislature made an express
exception for ERCOM. Section 3509, subdivision (d) states that, notwithstanding
PERB‟s jurisdiction to administer the MMBA, ERCOM retains the power to
consider and resolve employment relations matters “consistent with and pursuant
to the policies of this chapter.” Allegations of unfair labor practices by the County
must be brought to ERCOM, not PERB. In essence, ERCOM is a separate agency
empowered to resolve public employment labor disputes in Los Angeles County
just as PERB does for all other counties in California.
ERCOM must exercise its authority in a manner “consistent with and
pursuant to” the policies of the MMBA as interpreted and administered by PERB.
(§ 3509, subd. (d).) Accordingly, the County‟s ordinance must be construed to
avoid any conflict with the MMBA, and decisions from PERB interpreting the
MMBA are highly persuasive when interpreting the County‟s ordinance. As we
discuss, PERB decisions have uniformly given unions the right to obtain employee
home contact information. Federal administrative decisions interpreting
analogous provisions of the NLRA are also persuasive authority supporting
disclosure of the information sought here.
8
2. Labor Law Precedents Hold Contact Information Presumptively
Relevant
Decisions under the NLRA and corresponding California laws have long
held that employers must generally give unions the home addresses and telephone
numbers of employees the union represents. These holdings stem from the general
principle that an employer‟s duty to bargain in good faith encompasses an
obligation to provide information the union needs in order to represent employees.
The United States Supreme Court has observed, “There can be no question of the
general obligation of an employer to provide information that is needed by the
bargaining representative for the proper performance of its duties.” (NLRB v.
Acme Industrial Co. (1967) 385 U.S. 432, 435-436, citing Labor Board v. Truitt
Mfg. Co. (1956) 351 U.S. 149.)
Some information is so intrinsic to the core of the employer-employee
relationship that it is considered “presumptively relevant.” (Retlaw Broadcasting
Co. v. N.L.R.B. (9th Cir. 1999) 172 F.3d 660, 669; San Diego Newspaper Guild,
Local No. 95 v. NLRB (9th Cir. 1977) 548 F.2d 863, 867 (San Diego Newspaper
Guild).) Presumptively relevant information must be disclosed unless the
employer proves a lack of relevance or gives adequate reasons why the
information cannot be supplied. (San Diego Newspaper Guild, at p. 867; The
Kroger Company (1976) 226 NLRB 512, 513-514.)11 Moreover, in appropriate
cases, a union‟s ability to obtain relevant information may be tempered by
measures to accommodate privacy concerns. “Upon a clear showing of need for
confidentiality, courts have found less than complete disclosure justified.
[Citations.]” (Press Democrat, supra, 629 F.2d at pp. 1326-1327; see also Detroit
Edison Co. v. NLRB (1979) 440 U.S. 301, 317-320.)
11 Conversely, when the information requested is not ordinarily pertinent to
collective bargaining, the union has the burden of establishing relevance. (Press
Democrat Pub. Co. v. NLRB (9th Cir. 1980) 629 F.2d 1320, 1324 (Press
Democrat); San Diego Newspaper Guild, supra, 548 F.2d at pp. 867-868.)
9
A union elected as an exclusive bargaining agent owes a duty of fair
representation to all employees in the bargaining unit. (See Jones v. Omnitrans
(2004) 125 Cal.App.4th 273, 283; Lane v. I.U.O.E. Stationary Engineers (1989)
212 Cal.App.3d 164, 169; see also Vaca v. Sipes (1967) 386 U.S. 171, 177 [same
rule under NLRA].) Accordingly, state and federal decisions have consistently
held that the employer‟s obligation to provide relevant information extends to
information about employees who are not union members.
a. NLRB Decisions
The NLRB has held that employees‟ home addresses and phone numbers
are presumptively relevant to the union‟s role as bargaining agent. (Harco
Laboratories (1984) 271 NLRB 1397, 1398.) An evolving line of cases
establishing this point began in 1966, just two years before the MMBA was
enacted. In Excelsior Underwear, Inc. (1966) 156 NLRB 1236, 1239-1240, the
NLRB ruled that private employers must provide unions with the names and
addresses of all employees before an election to choose a bargaining
representative. The NLRB reasoned that an employer can easily communicate
with employees to oppose union representation, but labor organizers generally
have limited access to worksites. Thus, without a list of employee names and
addresses, labor unions cannot be certain of reaching all employees with
arguments supporting representation. (Id. at pp. 1240-1241.) Although the union
might have other means of communicating with some employees, these
alternatives are not always adequate. The NLRB stressed that “the access of all
employees to such communications can be insured only if all parties have the
names and addresses of all the voters. . . . [B]y providing all parties with
employees‟ names and addresses, we maximize the likelihood that all the voters
will be exposed to the arguments for, as well as against, union representation.”
(Id. at p. 1241, fn. omitted.) The United States Supreme Court later observed that
the disclosure requirement established in Excelsior Underwear promotes the goal
of fair elections “by encouraging an informed employee electorate and by
10
allowing unions the right of access to employees that management already
possesses.” (NLRB v. Wyman-Gordon Co. (1969) 394 U.S. 759, 767.)
Nearly 30 years ago, this court applied the Excelsior Underwear rule in the
agricultural context. In Carian v. Agricultural Labor Relations Bd. (1984) 36
Cal.3d 654, we upheld a regulation requiring employers to provide a list of
employee names, street addresses, and job classifications to a union seeking to
organize agricultural employees. We noted that employers had long been required
to furnish unions with lists of employee names and addresses under Excelsior
Underwear and that facilitating communication between employees and union
organizers aided the administration of union elections. (Carian, at pp. 665-667.)
The Excelsior Underwear decision was later extended beyond the election
context. In Prudential Insurance Company of America v. N.L.R.B. (2d Cir. 1969)
412 F.2d 77, 81 (Prudential), the Second Circuit Court of Appeals held that an
employer‟s duty of disclosure “applies with as much force to information needed
by the Union for the effective administration of a collective bargaining agreement
already in force as to information relevant in the negotiation of a new contract.
[Citations.]” As the exclusive bargaining agent for all employees, a union has a
statutory duty to represent the interests of nonmembers. (Humphrey v. Moore
(1964) 375 U.S. 335, 342.) The Prudential court remarked, “It seems manifest
beyond dispute that the Union cannot discharge its obligation unless it is able to
communicate with those in whose behalf [it] acts.” (Prudential, at p. 84.) A
union must be able to tell employees about negotiations and obtain their views on
bargaining priorities. (Ibid.) “Further, in order to administer an existing
agreement effectively, a union must be able to apprise the employees of the
benefits to which they are entitled under the contract and of its readiness to
enforce compliance with the agreement for their protection.” (Ibid.)
The Prudential court observed that other types of information, such as
wage data, are considered presumptively relevant. (Prudential, supra, 412 F.2d at
p. 84.) It went on to conclude that employee contact information “has an even
11
more fundamental relevance” to the union‟s role. (Ibid.) The union needs contact
information “to bargain intelligently on specific issues of concern to the
employees. But 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 the employees. In this instance it is urgent
so that the exclusive bargaining representative of the employees may perform its
broad range of statutory duties in a truly representative fashion and in harmony
with the employees‟ desires and interests. Because this information is therefore so
basically related to the proper performance of the union‟s statutory duties, . . . any
special showing of specific relevance would be superfluous.” (Ibid.)
b. PERB Decisions
As noted, NLRA cases are persuasive authority for interpreting similar
provisions of state law, including the MMBA. (Fire Fighters Union v. City of
Vallejo (1974) 12 Cal.3d 608, 617; see also Los Angeles County Civil Service
Com. v. Superior Court (1978) 23 Cal.3d 55, 63-64 [relying on NLRB precedent
in construing MMBA provision regarding layoffs].) Based on Prudential and
similar cases decided under the NLRA, PERB decisions have held that employee
contact information is presumptively relevant under California‟s labor statutes and
subject to disclosure upon a representative union‟s request.
When such a request threatens to violate a constitutionally protected
privacy interest, PERB decisions have also followed the NLRB in applying a
balancing test. (Modesto Teachers Assn. (1985) PERB Dec. No. 479; Los Rios
Classified Employee Assn. (1988) PERB Dec. No. 670; see Detroit Edison Co. v.
NLRB, supra, 440 U.S. at pp. 317-320 [establishing the federal balancing test].)
Once the union has established the relevance and need for certain information, the
burden is on the employer to prove that disclosure would compromise the right of
privacy. (Modesto Teachers Assn., at p. 10.) If the employer carries this burden,
the court balances the conflicting interests of confidentiality and discovery. (Id. at
pp. 11-13.) However, if the employer fails to show that disclosure would violate a
12
protected privacy interest, no balancing is necessary and the court will simply
order the information disclosed. (Id. at p. 12.)
In Stockton Unified School Dist. (1980) PERB Dec. No. 143 (Stockton), a
school district refused to provide information about health insurance benefits paid
to union members. Relying on NLRB cases, PERB ruled that a union is entitled to
obtain all information necessary and relevant to representing employees in
collective bargaining. (Id. at p. 22.) Because the health insurance information
was presumptively relevant, the district‟s failure to provide it constituted a refusal
to bargain in good faith under the EERA. (§ 3543.5; see Stockton, at pp. 18-19.)12
Two years later, PERB extended Stockton to a request for employee addresses. In
Mt. San Antonio Community College Dist. (1982) PERB Dec. No. 224 (Mt. San
Antonio), a union sought home addresses of certain instructors who no longer
worked for a community college district but were potentially entitled to benefits
under a recent decision of this court. (Id. at p. 11.)13 The hearing officer
concluded that the requested names and addresses were reasonably related to the
union‟s representational duties. (Mt. San Antonio, at p. 11.) PERB agreed and
ordered disclosure. (Id. at p. 12.)
After Mt. San Antonio, PERB decisions have squarely held that the names
and addresses of public employees are presumptively relevant and subject to
disclosure as part of the duty to bargain in good faith. In Bakersfield City School
Dist. (1998) PERB Dec. No. 1262 (Bakersfield), a union representing school
district employees wanted their home addresses and telephone numbers to send
Hudson notices and communicate with nonmembers about other collective
12 The EERA is one of several public employment statutes administered by
PERB. (Coachella Valley, supra, 35 Cal.4th at p. 1089.) Like the MMBA
(§ 3505), the EERA requires public school employers to “meet and negotiate in
good faith” with their employees‟ exclusive bargaining representatives. (§ 3543.5,
subd. (c).)
13 Peralta Federation of Teachers v. Peralta Community College Dist. (1979)
24 Cal.3d 369.
13
bargaining issues. Alternate means of communication were not consistently
reliable or confidential. (Bakersfield, at p. 15 [hearing officer‟s proposed
order].)14 Citing Mt. San Antonio and NLRB decisions, PERB concluded the
employee contact information was presumptively relevant to collective bargaining
and the district‟s failure to provide it violated the EERA, both as a refusal to
bargain in good faith (§ 3543.5, subd. (c)) and as an interference with the union‟s
right to represent unit members (§ 3543.5, subd. (b)). (Bakersfield, at p. 22; see
also San Bernardino City Unified School Dist. (1998) PERB Dec. No. 1270 at
pp. 75-79.)
These principles also apply to claims arising under the MMBA. In Golden
Empire Transit Dist. (2004) PERB Dec. No. 1704-M (Golden Empire), a bus
drivers‟ union requested employees‟ home addresses and phone numbers. The
transit district refused, citing confidentiality concerns. (Id. at p. 2.) Instead, the
district sent a consent form to all employees allowing them to agree to disclosure.
Contact information would only be released to the union if the employee gave
express permission. (Id. at pp. 2-3.) PERB concluded the district violated the
MMBA (§§ 3503, 3505, 3506) by refusing to give the information “and by
unilaterally changing the mechanics of providing such information” to the union.
(Golden Empire, at p. 9.) Because a union‟s ability to communicate with those it
represents is fundamental to its role in collective bargaining, employee contact
information must be disclosed absent a compelling need for privacy. (Golden
Empire, at p. 8.) The union‟s need for the information was strong. Its inability to
communicate with employees in their homes had “severely hindered” the capacity
to fulfill its obligations as their bargaining representative. (Id. at p. 7.) For
example, the union could not advise employees of new union security
requirements, dues increases, and workplace problems. (Ibid.) With home
14 PERB adopted the hearing officer‟s findings of fact and conclusions of law
as the decision of the board itself. (Bakersfield, supra, PERB Dec. No. 1262 at
p. 2.)
14
address and telephone information, the union could directly inform employees
about union meetings and negotiations and quickly contact employees who were
potential witnesses in grievance investigations. (Ibid.) The union could not
adequately communicate through alternate means, such as bulletin board postings
or personal meetings at the jobsite, because the employees were bus drivers who
worked different shifts and were frequently on the road. (Ibid.) The employer did
not show that the need for privacy outweighed these substantial interests.
While recognizing that PERB decisions “are due some deference,” the
County asserts they are not persuasive because they draw upon precedents decided
under the NLRA. As explained, however, federal authorities are relevant and
properly examined for guidance in interpreting similar provisions in our state‟s
labor laws. The Golden Empire analysis provides persuasive guidance here.
Courts generally defer to PERB‟s construction of labor law provisions
within its jurisdiction. (See San Mateo City School Dist. v. Public Employment
Relations Bd. (1983) 33 Cal.3d 850, 856 [EERA]; Paulsen v. Local No. 856 of
Internat. Brotherhood of Teamsters (2011) 193 Cal.App.4th 823, 830 [MMBA].)
“PERB is „one of those agencies presumably equipped or informed by experience
to deal with a specialized field of knowledge, whose findings within that field
carry the authority of an expertness which courts do not possess and therefore
must respect.‟ [Citation.]” (Banning Teachers Assn. v. Public Employment
Relations Bd. (1988) 44 Cal.3d 799, 804.) We follow PERB‟s interpretation
unless it is clearly erroneous. (Ibid.) Here, it is not. PERB‟s conclusion that the
duty of good faith bargaining generally requires disclosure of employee contact
information is consistent with the language and purpose of the MMBA, its own
decisions interpreting it, and long-standing precedent under the NLRA. Nothing
in the language or legislative history of the MMBA persuades us to upset this
settled understanding.
15
3. The MMBA Requires Disclosure of Contact Information
The County makes several arguments to counter this analysis. None is
availing. First, the County relies on two MMBA provisions to argue against
disclosure.
Section 3505 requires public employers to “meet and confer in good faith
[with union representatives] regarding wages, hours, and other terms and
conditions of employment . . . .” The statute states that the duty to meet and
confer includes a duty to negotiate “to exchange freely information, opinions, and
proposals, and to endeavor to reach agreement on matters within the scope of
representation . . . .” (§ 3505.) The County asserts that the phrase “matters within
the scope of representation” pertains only to the terms and conditions of
employment and that employee addresses and phone numbers are not information
that must be freely exchanged.
Initially, the County‟s position is inconsistent with the language of the
statute. The meet and confer duty requires parties “to exchange freely
information . . . . and to endeavor to reach agreement on matters within the scope
of representation . . . .” (§ 3505, italics added.) The phrase “matters within the
scope of representation” describes the subjects on which the parties must seek
agreement. It does not modify, or limit, the information that must be freely
exchanged.
Further, the County‟s narrow interpretation is not supported by precedent.
It has long been held that “[o]ne aspect of the duty to bargain „collectively in good
faith with labor organizations‟ [citation] requires the employer to make a
reasonable and diligent effort to comply with the union‟s request for relevant
information. [Citation.]” (Cardinal Distributing Co. v. Agricultural Labor
Relations Bd. (1984) 159 Cal.App.3d 758, 762.) Doing so serves the MMBA‟s
underlying policy of fostering informed collective bargaining. Accordingly,
appellate courts have held that an employer‟s failure to provide such information
constitutes a refusal to bargain in good faith. (Cardinal Distributing Co., at
16
p. 762.) The County argues the employee information at issue here is not relevant.
Yet NLRB and PERB decisions undermine that assertion. (See, e.g., Bakersfield,
supra, PERB Dec. No. 1262 at pp. 17-18.)
The County next argues that another MMBA provision, section 3507, does
not compel disclosure of employees‟ home addresses and phone numbers.
Section 3507 lists several subjects on which a public employer may adopt rules to
govern employment relations. Among these topics, the statute allows employers
to adopt a rule for “[f]urnishing nonconfidential information pertaining to
employment relations to employee organizations.” (§ 3507, subd. (a)(8).) Relying
on the statutory construction canon expressio unius est exclusio alterius,15 the
County argues that because a rule may be adopted for the furnishing of
nonconfidential information, the Legislature must have intended to bar the
disclosure of confidential information, including home addresses and telephone
numbers. This assertion begs the next question we will address because it assumes
the information is confidential. Moreover, PERB decisions interpreting the
MMBA make it clear that section 3507 is not the source of the duty to disclose.
Rather, a public employer‟s disclosure obligation arises from sections 3503,
concerning unions‟ right to represent employees, and 3505, concerning employers‟
obligation to bargain in good faith. (See Golden Empire, supra, PERB Dec.
No. 1704-M at p. 19.)
The County further contends the MMBA‟s legislative history shows that it
was not intended to require the disclosure sought here. However, the County
points to nothing in the legislative history that even mentions the issue. First, the
County cites committee reports describing general opposition to codifying
collective bargaining rules for public sector employees. But strong sentiments
were also expressed in favor of collective bargaining (see, e.g., Assem. Interim
15 This phrase means “[e]xpression of one thing is the exclusion of another.”
(Black‟s Law Dict. (4th rev. ed. 1968) p. 692, col. 1; see Imperial Merchant
Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 389.)
17
Com. on Industrial Relations, Final Rep. on Assem. Bill No. 607 (1959 Reg.
Sess.), and the MMBA was ultimately enacted.16
Second, the County claims the legislative history demonstrates resistance to
importing NLRA requirements into public sector collective bargaining.
Specifically, one committee report observed that an amendment to the MMBA‟s
“meet and confer” requirement was not intended to replicate the same procedure
for collective bargaining in the private sector. (Assem. Com. on State
Employment, Retirement, and Military Affairs, Summary of Major 1968
Legislation (1967 Reg. Sess.).) Whereas good faith under the NLRA requires
“sincere attempts by both sides to reach agreement,” the meet and confer provision
of the MMBA was intended primarily to formalize and improve communications
between the bargaining parties. (Assem. Com. on State Employment, Retirement,
and Military Affairs, Summary of Major 1968 Legislation, p. 4.) The County cites
this discussion as evidence that the Legislature did not intend to import all
collective bargaining practices under the NLRA into the state law governing
public employment relations. We need not resolve that question. Even if the
County‟s interpretation is correct, it does not follow that the Legislature intended
that California‟s courts and regulatory bodies ignore settled law under the NLRA
when interpreting identical provisions in the MMBA. On the contrary, we have
expressly approved of reference to the NLRA and cases interpreting it for
guidance in construing our state‟s labor laws. (Fire Fighters Union v. City of
Vallejo, supra, 12 Cal.3d at p. 617.) Nor does it follow that the Legislature
intended to exempt public employers from the obligation to disclose employee
contact information when the statutory language and legislative history of the
MMBA are completely silent on the point.
16 At the County‟s request, we have taken judicial notice of legislative
materials for several bills, from 1959 through 1968, that the Legislature
considered in enacting the MMBA.
18
Notably, the Legislature has expressly approved the disclosure of contact
information for some public employees. Section 6254.3 creates an exception to
the Public Records Act for state, school district, and county office of education
employees. Under this statute, employees‟ home addresses and telephone
numbers are generally exempt from public inspection, except that the information
may be disclosed to “an employee organization pursuant to regulations and
decisions of the [PERB]. . . .” (§ 6254.3, subd. (a)(3).)17 Accordingly, although
the contact information for state employees and certain county and local
employees is generally to be kept private from the public at large, the Legislature
has specifically authorized its disclosure to unions in accordance with PERB
precedent.18
In a related point, the County asserts its conduct was appropriate under a
local ordinance. The ordinance states, in relevant part: “To facilitate negotiations,
the county shall provide to certified employee organizations concerned the
published data it regularly has available concerning subjects under
negotiation . . . .” (L.A. County Code, § 5.04.060, subd. A.) The County contends
it had no obligation to disclose addresses and phone numbers because they were
not published and do not concern a subject under negotiation. However, the
agency charged with enforcing the ordinance concluded otherwise. The ERCOM
hearing officer observed that the agency had never limited the information to be
disclosed to the material described in the ordinance. The ordinance simply
17 The statute makes an exception to this exception for law enforcement
employees, whose home addresses and telephone numbers are not to be disclosed.
(§ 6254.3, subd. (a)(3).)
18 A regulation implementing this provision requires that the state provide
employee unions with the home addresses of all represented employees. (Cal.
Code Regs., tit. 8, § 40165.) Amicus curiae California Department of Personnel
Administration states that it has provided home addresses to various employee
unions in accordance with section 6254.3 since 1984.
19
describes a type of information the County must provide to the union; it does not
purport to limit or prohibit additional disclosures.
In any event, even if the County‟s interpretation of the ordinance were
correct, it would have no effect because local rules cannot conflict with the
MMBA. “The MMBA deals with a matter of statewide concern, and its standards
may not be undercut by contradictory rules or procedures that would frustrate its
purposes. [Citations.] Local regulation is permitted only if „consistent with the
purposes of the MMBA.‟ [Citation.]” (International Federation of Prof. &
Technical Engineers v. City and County of San Francisco (2000) 79 Cal.App.4th
1300, 1306.) Thus, the ordinance could not absolve the County of its broader duty
under the MMBA to provide the information requested by the union.
4. Conclusion
Consistent with PERB‟s long-standing interpretation of the MMBA and
similar labor law provisions, SEIU‟s request for home addresses and phone
numbers of the County employees it represented called for presumptively relevant
information. The burden was therefore on the County to prove that the contact
information was not relevant or to supply adequate reasons why the information
could not be supplied. (San Diego Newspaper Guild, supra, 548 F.2d at p. 867;
see also Modesto Teachers Assn., supra, PERB Dec. No. 479 at p. 10 [burden is
on employer to show that disclosure would violate a right of privacy].) Because
the County failed to do so, its refusal to provide the information violated the duty
to meet and confer in good faith. (§ 3505; see Golden Empire, supra, PERB Dec.
No. 1704-M at pp. 6-8; Bakersfield, supra, PERB Dec. No. 1262 at p. 22.)
B. Disclosure Does Not Violate the Constitutional Right of Privacy
The foregoing analysis is based on settled labor law principles. Whether
California‟s constitutional right of privacy requires a different resolution is a novel
question.
In 1972, Californians, by initiative, added an explicit right to privacy in the
state‟s Constitution: “All people are by nature free and independent and have
20
inalienable rights. Among these are enjoying and defending life and liberty,
acquiring, possessing, and protecting property, and pursuing and obtaining safety,
happiness, and privacy.” (Cal. Const., art. 1, § 1, italics added.)
In Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 (Hill), this
court established a framework for analyzing constitutional invasion of privacy
claims. An actionable claim requires three essential elements: (1) the claimant
must possess a legally protected privacy interest (id. at p. 35); (2) the claimant‟s
expectation of privacy must be objectively reasonable (id. at pp. 36-37); and
(3) the invasion of privacy complained of must be serious in both its nature and
scope (id. at p. 37). If the claimant establishes all three required elements, the
strength of that privacy interest is balanced against countervailing interests. (Id. at
pp. 37-38.) In general, the court should not proceed to balancing unless a
satisfactory threshold showing is made. A defendant is entitled to prevail if it
negates any of the three required elements. (Id. at p. 40; see Pioneer Electronics,
supra, 40 Cal.4th at p. 373.) A defendant can also prevail at the balancing stage.
An otherwise actionable invasion of privacy may be legally justified if it
substantively furthers one or more legitimate competing interests. (Hill, at p. 40.)
Conversely, the invasion may be unjustified if the claimant can point to “feasible
and effective alternatives” with “a lesser impact on privacy interests.” (Ibid.)
The question in Hill was whether California Constitution article I, section 1
supports a cause of action for invasion of privacy. Here, the question is somewhat
different. The County claims it is obligated to assert employees‟ privacy rights
and that this obligation relieves it of any duty to honor the union‟s requests.
Nevertheless, Hill provides a useful framework for examining how competing
interests are managed in the privacy context.
“[I]n applying the Hill balancing test, trial courts necessarily have broad
discretion to weigh and balance the competing interests. (Hill, supra, 7 Cal.4th at
pp. 37–38.)” (Pioneer Electronics, supra, 40 Cal.4th at p. 371.) The trial court
here found that County employees who are not union members have a substantial
21
interest in maintaining the privacy of their home addresses and telephone numbers.
The court gave this interest additional weight because the employees had
exercised their constitutional right not to associate with the union. However, on
balance, the court concluded SEIU‟s interest in contacting the employees it
represents “significantly outweighs” nonmembers‟ interest in preventing
disclosure of the information. After examining each of the Hill factors, we agree
with the trial court that disclosure was required.
1. Legally Protected Privacy Interest
Legally recognized privacy interests include “interests in precluding the
dissemination or misuse of sensitive and confidential information,” which Hill
described under the umbrella term “ „informational privacy.‟ ” (Hill, supra, 7
Cal.4th at p. 35.) The parties agree that County employees have a legally
protected privacy interest in their home addresses and telephone numbers. “Courts
have frequently recognized that individuals have a substantial interest in the
privacy of their home. [Citations.]” (Planned Parenthood Golden Gate v.
Superior Court (2000) 83 Cal.App.4th 347, 359.) In particular, the “privacy
interest in avoiding unwanted communication” is stronger in the context of an
individual‟s home than in a more public setting. (Hill v. Colorado (2000) 530
U.S. 703, 716.) Accordingly, home contact information is generally considered
private. The next question is whether nonmember employees could reasonably
expect that their contact information would be shielded from the union.
2. Reasonable, Although Reduced, Expectation of Privacy
“A „reasonable‟ expectation of privacy is an objective entitlement founded
on broadly based and widely accepted community norms.” (Hill, supra, 7 Cal.4th
at p. 37.) The reasonableness of a privacy expectation depends on the surrounding
context. We have stressed that “customs, practices, and physical settings
surrounding particular activities may create or inhibit reasonable expectations of
privacy.” (Id. at p. 36.)
22
The practice followed for many years in Los Angeles County contributed to
a reasonable expectation of privacy. The County employs approximately 55,000
people. Of this group, 14,500 employees have chosen not to join the union.
Throughout the decades that SEIU has been the exclusive bargaining
representative of these employees, the County has not given their home contact
information to the union. Since 1994, the County and SEIU have used ERCOM,
or a third party clearinghouse, to mail Hudson notices to nonmember employees.
It is undisputed that the County has never disclosed the employees‟ home
addresses or telephone numbers to the union. Considering this long-standing and
consistent practice, it was reasonable for nonmember employees to expect that the
County would continue to keep their home contact information private.
Nonmember employees gave their home addresses and telephone numbers
to the County for the limited purpose of securing employment. A job applicant
who provides personal information to a prospective employer can reasonably
expect that the employer will not divulge the information outside the entity except
in very limited circumstances. For example, various laws require employers to
disclose information to governmental agencies, such as the Internal Revenue
Service and Social Security Administration, and disclosure may also be necessary
for banks or insurance companies to provide employee benefits. (See Belaire-
West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554, 561
(Belaire-West).) But beyond these required disclosures, it is reasonable for
employees to expect that their home contact information will remain private “in
light of employers‟ usual confidentiality customs and practices.” (Ibid.) The
County followed its long-standing custom and practice when it refrained from
disclosing the home addresses and telephone numbers of nonunion employees.
Moreover, as the trial court observed, employees who exercised their right
not to associate with the union have a somewhat enhanced privacy expectation.
The record reflects that just over half of the approximately 14,500 nonmember
employees voluntarily gave home contact information to SEIU when completing
23
their annual Hudson notice forms. The remaining 7,222 nonmember employees
chose not to disclose this information, although in most cases they had numerous
opportunities to do so.
Both courts below determined that County employees had a reasonable
expectation of privacy in their home addresses and phone numbers. For the
reasons discussed, we agree. However, we note that the reasonableness of this
expectation was somewhat reduced in light of the common practice of other public
employers to give unions this information.
Custom and practice can reduce reasonable expectations of privacy in
information typically considered even more sensitive than addresses and phone
numbers. In International Federation of Professional & Technical Engineers,
Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 327 (IFPTE), a
group of reporters filed a Public Records Act (§ 6250 et seq.) request for the
names, job titles, and gross salaries of City of Oakland employees earning over
$100,000. We acknowledged that “many individuals, including public employees,
may be uncomfortable with the prospect of others knowing their salary and . . .
would share that information only on a selective basis, even within the
workplace.” (IFPTE, at p. 331.) We also acknowledged that public disclosure of
salary information could cause discomfort and embarrassment. (Ibid.)
Nonetheless, we concluded the city‟s employees lacked a reasonable expectation
of privacy in light of the Attorney General‟s long-standing opinion that
government payroll information is public, the widespread practice of state and
local governments to disclose this information, and the strong public policy
favoring transparency in government. (IFPTE, at pp. 331-332, 338.)
As in IFPTE, disclosure of employees‟ home contact information to their
union “ „is overwhelmingly the norm.‟ ” (IFPTE, supra, 42 Cal.4th at p. 332.)
For nearly 50 years, private employers have been required to disclose contact
information to employees‟ unions. (See Prudential, supra, 412 F.2d at p. 84;
Excelsior Underwear, Inc., supra, 56 NLRB at p. 1241.) Based on these federal
24
precedents, we remarked almost 30 years ago that requiring employers to furnish
lists of employee names and addresses to facilitate communication with a union
“is hardly novel in the arena of labor relations.” (Carian v. Agricultural Labor
Relations Bd., supra, 36 Cal.3d at p. 665.) As discussed, PERB has held that the
same disclosure rules apply to public employment under various California labor
statutes, including the MMBA. (See Golden Empire, supra, PERB Dec.
No. 1704-M, at pp. 6-8; Bakersfield, supra, PERB Dec. No. 1262, at p. 22.) Thus,
when the information is requested, established precedent requires that all private
employers and most public employers provide unions with contact information for
all employees in the represented bargaining unit. Although we have concluded
that, on balance, it was reasonable for County employees to expect that their
information would not be disclosed to SEIU because of the long-standing practice
in Los Angeles County, the reasonableness of this privacy expectation was
reduced in light of the widespread, settled rules requiring disclosure elsewhere.
(See Pioneer Electronics, supra, 40 Cal.4th at p. 372 [customers who had given
their contact information to a manufacturer in connection with a product complaint
had a “reduced” expectation of privacy].)
3. Serious Invasion of Privacy
“Actionable invasions of privacy must be sufficiently serious in their
nature, scope, and actual or potential impact to constitute an egregious breach of
the social norms underlying the privacy right.” (Hill, supra, 7 Cal.4th at p. 37.)
The disclosure contemplated in this case was more than trivial. It rose to the level
of a “serious” invasion of privacy under Hill.
In Dept. of Defense, supra, 510 U.S. 487, the Supreme Court considered a
union request similar to the one SEIU makes here. The court observed: “Perhaps
some of these individuals have failed to join the union that represents them due to
lack of familiarity with the union or its services. Others may be opposed to their
union or to unionism in general on practical or ideological grounds. Whatever the
reason that these employees have chosen not to become members of the union or
25
to provide the union with their addresses, however, it is clear that they have some
nontrivial privacy interest in nondisclosure, and in avoiding the influx of union-
related mail, and, perhaps, union-related telephone calls or visits, that would
follow disclosure.” (Id. at pp. 500-501, fn. & italics omitted.)
In Pioneer Electronics, supra, 40 Cal.4th at pages 372-373, we found that
disclosure of customer contact information to a class action plaintiff would not
impose a serious invasion of privacy. There, however, the customers had already
disclosed their contact information to the manufacturer when complaining about
an allegedly defective product. The question was whether a second disclosure of
that information to a class action plaintiff asserting the same complaint would
constitute a serious invasion of privacy. (Ibid.) In finding it would not, we
observed that the rules of civil discovery generally permit plaintiffs to discover
contact information for potential class members in order to identify additional
parties who might assist in prosecuting the case. (Id. at p. 373.) Courts of Appeal
have regularly allowed the release of contact information sought in class action
discovery. (See, e.g., Crab Addison, Inc. v. Superior Court (2008) 169
Cal.App.4th 958, 974; Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325, 1336-
1338; Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1426-1427; Puerto v.
Superior Court (2008) 158 Cal.App.4th 1242, 1245; Belaire-West, supra, 149
Cal.App.4th at p. 562.) Indeed, “it is only under unusual circumstances that the
courts restrict discovery of nonparty witnesses‟ residential contact information.”
(Puerto v. Superior Court, supra, 158 Cal.App.4th at p. 1254.) The context here is
different. The party seeking the information is a union the employees have chosen
not to join and have declined in the past to give their contact information. Under
these circumstances, disclosure to the union would create a more significant
invasion of privacy than disclosure in the class action context.
Moreover, the release of contact information contemplated in Pioneer
Electronics would have occurred only after the customers had been given notice of
the proposed disclosure and an opportunity to object. (Pioneer Electronics, supra,
26
40 Cal.4th at pp. 372-373.) These protections mitigated any privacy invasion
caused by the disclosure.
4. Balancing of Interests Favors Disclosure
Because the County made a sufficient showing on the essential elements of
a privacy claim, we next consider whether the invasion of privacy is justified
because it would further a substantial countervailing interest. (See Hill, supra, 7
Cal.4th at p. 40.) “Invasion of a privacy interest is not a violation of the state
constitutional right to privacy if the invasion is justified by a competing interest.
Legitimate interests derive from the legally authorized and socially beneficial
activities of government and private entities. Their relative importance is
determined by their proximity to the central functions of a particular public or
private enterprise. Conduct alleged to be an invasion of privacy is to be evaluated
based on the extent to which it furthers legitimate and important competing
interests.” (Id. at p. 38.) Here, the balance favors disclosure.
SEIU‟s interest in obtaining residential contact information for all
employees it represents is both legitimate and important. As discussed, a union
elected as an exclusive bargaining agent owes a duty of fair representation to all
employees in the bargaining unit it represents, including employees who are not
union members. (See Jones v. Omnitrans, supra, 125 Cal.App.4th at p. 283.)
A union breaches the duty of representation if it fails to inform employees
about the status of negotiations (Kern High Faculty Assn. CTA/NEA (2006) PERB
Dec. No. 1834) or changes in the contractual terms of their employment
(Teamsters Local 896 (Anheuser-Busch) (1986) 280 NLRB 565, 575). Because
the union‟s duty extends to all employees in the bargaining unit, regardless of
union membership, the union must have the means of communicating with all
employees on these important topics. In addition, a union must give nonmembers
an opportunity to express their views on bargaining matters, even if these
employees do not have a vote. (El Centro Elementary Teachers Assn. (1982)
PERB Dec. No. 232.) Direct communication between unions and all bargaining
27
unit employees is essential to ensure that nonmembers‟ opinions are heard.
Finally, as discussed, every year the union must send Hudson notices to all
employees explaining how their dues are used. (Hudson, supra, 475 U.S. 292.)
The obligation to send Hudson notices falls on the union, not the employer, and a
union commits an unfair business practice if it collects an agency fee without
providing a proper notice. (UPTE, CWA Local 9119 (2005) PERB Dec. No. 1784-
H; see also Knight v. Kenai Peninsula Borough School Dist. (9th Cir. 1997) 131
F.3d 807, 817 [employer has no duty to ensure adequacy of union‟s Hudson
notice].)
Giving SEIU this contact information will not coerce employees into
joining the union. An employee who chooses not to join a union still enjoys the
benefits of union representation. “[T]here is a clear distinction between union
membership and majority support for collective bargaining representatives.”
(N.L.R.B. v. Wallkill Valley General Hosp. (3d Cir. 1989) 866 F.2d 632, 637.)
Moreover, as several decisions on this subject have noted, alternative
means for unions to communicate with nonmembers are often inadequate.
Bulletin board postings may not meaningfully convey lengthy or complex
information, and employers often monitor the materials posted. (Prudential,
supra, 412 F.2d at pp. 81-82.) A posting provides only one-way communication
and is not an avenue for unions to receive employees‟ views. (Id. at p. 82.) Other
alternatives, such as union meetings and worksite visits by union representatives,
are inefficient and ineffective means of communicating with large and dispersed
groups of employees. (See Golden Empire, supra, PERB Dec. No. 1704-M, at
p. 7.)
In contrast, the privacy intrusion occasioned by disclosure of contact
information to the union is reduced. As discussed, County employees‟ expectation
of privacy is undermined by the common practice of disclosure in other settings.
For decades, the NLRB has required private employers to furnish unions with
employees‟ home contact information (see, e.g., Prudential, supra, 412 F.2d at
28
p. 84), and PERB has required most California public employers to make the same
disclosure (see, e.g., Golden Empire, supra, PERB Dec. No. 1704-M, at pp. 6-8).
The invasion of nonmember employees‟ privacy, while sufficiently serious to pass
muster under the Hill test, is also comparatively mild. Nonmember employees
may experience increased contact with the union by mail or other means (see
Dept. of Defense, supra, 510 U.S. at pp. 500-501), but there is no evidence SEIU
has ever engaged in any harassment of a nonmember. If harassment is a concern,
employers may bargain for, or ERCOM may adopt, procedures that allow
nonmembers to opt out and prevent disclosure of their contact information. (Cf.
§ 6254.3, subd. (b) [allowing certain employees to prevent disclosure of contact
information by written request].) Although we have concluded that a balancing of
interests generally favors disclosure, this balance might, in some cases, tip in favor
of privacy when an individual employee objects and demands that home contact
information be withheld.
C. Court May Not Impose Procedural Safeguards in a Mandate Proceeding
A final question raised by the Court of Appeal‟s decision is the availability
of what it termed “procedural safeguards,” giving employees the ability to object
and prevent disclosure. The court below imposed a notice and opt-out procedure
without balancing, or even considering, the union‟s interests in obtaining the
requested information. In creating this procedure, the court expressly ignored
labor decisions finding that unions are entitled to contact information and instead
likened this case to the discovery of third party information in the class action
context. Borrowing from Pioneer Electronics, supra, 40 Cal.4th 360, and other
class action cases, the Court of Appeal held that nonmember employees had to be
given notice and an opportunity to object before the County disclosed their contact
information to SEIU.
The parties here agree that the Court of Appeal overstepped its authority by
ordering them to implement specific notice and opt-out procedures. Code of Civil
Procedure section 1094.5, subdivision (f) expressly limits the remedies a court
29
may order when reviewing administrative orders and decisions. The court can
deny the writ or grant it and set aside the decision. If it sets aside the decision, the
court can order the agency to take further action, but it cannot “limit or control in
any way the discretion legally vested in” the agency. (Code Civ. Proc., § 1094.5,
subd. (f).) Here, rather than simply setting aside ERCOM‟s decision, the Court of
Appeal directed the trial court to order: (1) that the County and SEIU meet and
confer on a proposed notice for the trial court‟s review and approval; and (2) that
the County send the approved notice to all nonmember employees. This
disposition exceeded the court‟s codified authority because it stripped ERCOM of
all discretion regarding the manner of disclosure. Further, implementation of the
order would have required ERCOM to create new administrative procedures for
resolving disputes over notice and opt-out rights.
Although the Court of Appeal exceeded its authority by imposing a notice
and opt-out requirement, other avenues for implementing privacy safeguards are
available. Employers like the County remain free to bargain for a notice and opt-
out procedure in negotiating collective bargaining agreements with employee
unions. Public employers can also draft employment contracts that will notify
employees their home contact information is subject to disclosure to the union and
permit employees to request nondisclosure. Finally, nothing in the relevant
statutes or case law appears to prohibit agencies such as PERB or ERCOM from
developing notice and opt-out procedures that would allow employees to preserve
the confidentiality of their home addresses and telephone numbers.19
19 Such procedures have been developed in other public employment settings.
For example, employees covered by the California Public Records Act can prevent
release of their home addresses and telephone numbers by stating their objection
in writing that they do not want this information disclosed to the union. (§ 6254.3,
subd. (b); see Golden Empire, supra, PERB Dec. No. 1704-M, at p. 5; State
Center Community College Dist. (2001) PERB Dec. No. 1471, at p. 5.)
30
D. Conclusion
Long-standing case law and public policy support direct communication
between unions and the employees they represent. On balance, we conclude
SEIU‟s interest in communicating with all County employees significantly
outweighs nonmembers‟ interest in preserving the privacy of their contact
information.
III. DISPOSITION
The Court of Appeal‟s decision is reversed. The matter is remanded for
entry of judgment denying the County‟s petition for writ of mandate.
CORRIGAN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
LIU, J.
31
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion County of Los Angeles v. Los Angeles County Employee Relations Commission
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 192 Cal.App.4th 1409Rehearing Granted
__________________________________________________________________________________
Opinion No. S191944
Date Filed: May 30 , 2013
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: James C. Chalfant
__________________________________________________________________________________
Counsel:
Gutierrez, Preciado & House, Calvin House, Clifton A. Baker; Manuel A. Valenzuela, Jr., Lucia Gonzalez
Peck, Joyce M. Aiello and Rosemarie Belda, Deputy County Counsel, for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Weinberg, Roger & Rosenfeld, David A. Rosenfeld, Alan G. Crowley, Vincent A. Harrington, Jacob J.
White and Ann-Marie Gallegos for Real Party in Interest and Respondent.
Davis, Cowell & Bowe, Richard G. McCracken and Andrew J. Kahn for Union of American Physicians &
Dentists, Unite Here International Union and AFT Local 1931 as Amici Curiae on behalf of Real Party in
Interest and Respondent.
Leonard Carder, Margot Rosenberg and Arthur L. Liou for International Federation of Professional and
Technical Engineers, Local 21, as Amicus Curiae on behalf of Real Party in Interest and Respondent.
Altshuler Berzon, Scott A. Kronland and Eileen B. Goldsmith for SEIU United Long Term Care Workers,
SEIU Local 521, SEIU United Healthcare Workers West and California United Homecare Workers as
Amici Curiae on behalf of Real Party in Interest and Respondent.
Rothner, Segall & Greenstone, Glenn Rothner, Jonathan Cohen and Anthony Resnick for American
Federation of State, County and Municipal Employees, California Faculty Association, California School
Employees Association and California Teachers Association as Amici Curiae on behalf of Real Party in
Interest and Respondent.
Joan A. Markoff, Will M. Yamada, Paul M. Starkey and Jennifer M. Garten for the California Department
of Personnel Administration as Amicus Curiae on behalf of Real Party in Interest and Respondent.
M. Suzanne Murphy and Wendi L. Ross for California Public Employment Relations Board as Amicus
Curiae on behalf of Real Party in Interest and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Calvin House
Gutierrez, Preciado & House
3020 E. Colorado Blvd.
Pasadena, CA 91107
(626) 449-2300
David A. Rosenfeld
Weinberg, Roger & Rosenfeld
1001 Marina Village Parkway, Sutie 200
Alameda, CA 94501
(510) 337-1001
Alan G. Crowley
Davis, Cowell & Bowe
595 Market Street, Suite 1400
San Francisco, CA 94105
(415) 597-7200