County of Los Angeles v. Los Angeles County Employee Relations Commission (Cal. Supreme Court Case No. S191944) (Issued on 5/30/13)
The California Supreme Court has finally issued its decision in this case. The issue is one of first impression: whether California’s constitutional right of privacy limits a union’s ability to obtain the home addresses of bargaining unit members from the employer.
SEIU represents several bargaining units in the County of Los Angeles. As of 2007, SEIU had contact information for approximately 46,000 union members but did not have that information for about half of the 14,500 non-union members in the various bargaining units. Historically, the parties’ Memorandum of Understanding (MOU) required that SEIU provide its Hudson notice to the County Employee Relations Commission which would then mail the notice to all bargaining unit members. During negotiations in 2006, SEIU proposed changing the MOU to require the County to provide home addresses for all bargaining unit members directly to SEIU. The County refused. One of the arguments raised by the County was that non-members have a constitutional right to privacy which outweighed any need by SEIU for the information.
The Supreme Court rejected the County’s argument. First, the Court held that under the MMBA, employee contact information is presumptively relevant. In making this holding the Court relied heavily on NLRB and PERB precedent. Because PERB is the expert agency in the field of public sector labor relations, the Court stated that it would follow PERB precedent unless it is “clearly erroneous.” Under PERB’s decision in Golden Empire Transit Dist. (2004) PERB Dec. No. 1704-M, employee contact information must be disclosed absent a compelling need for privacy because such information is necessary to allow the union to communicate with employees. Therefore the burden was on the County to demonstrate why the contact information should not be provided to SEIU.
Next, the Court considered whether California’s constitutional right to privacy affected the SEIU’s right to employee contact information under the MMBA. To decide this issue the Court applied the balancing test set forth in Hill v. National Collegiate Athletic Assn.(1994) 7 Cal.4th 1. Applying that test, the Court held that employees do have a legally protected reasonable expectation of privacy in their home contact information. However, the Court held that providing home contact information to a union was not a serious invasion of that privacy and that the balance of interests favored disclosure. Accordingly, the Court concluded that:
[A]lthough 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 also cautioned that:
“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.” (Emphasis added.)
In terms of what procedures can be developed, the Court rejected the lower courts order that the County utilize an opt-out procedure modeled after civil class actions. Instead, the Court held that the development of such procedures should be left to the employers and unions.
- This is a clear victory for PERB. There was a question in my mind about how much consideration a court would give to a PERB decision in a case where PERB was not directly involved (for example, a case involving peace officers or the City/County of Los Angeles). The answer is quite a lot. Here, even though PERB did not issue the decision being contested, the Court deferred to PERB precedent. It will be interesting to see if this decision prompts the groups—particularly the cops—still not under PERB’s jurisdiction to reconsider whether they should be. After all, if you’re going to be bound by PERB precedent wouldn’t you want some opportunity to influence it?
- This decision appears to allow for procedural safeguards to protect employee privacy rights but does not specify what those safeguards might be. The Court mentions that safeguards can be bargained between the employer and union. That’s obviously true. But let’s say you can’t reach agreement with the union. Can you impose a set of procedural safeguards? Or can you adopt a local rule that sets forth procedural safeguards? Under the MMBA, any local rule must be reasonable. But that just begs the question of what is reasonable under this decision.
- In my humble opinion, any reasonable local rule would have to incorporate an opt-out system, as opposed to an opt-in system. This is because the Court has made it clear that there is a strong presumption that the union is entitled to employee contact information. Indeed, the Court strongly suggests that any assertion of privacy must be initiated by the employee, and not the employer. Even with an opt-out system (for example, allowing an employee to check a box on a form asking the employer not to share the home address with the union) there is a question in my mind whether the employee must articulate some specific reason for opting out. For example, the Court mentioned that fear of harassment might be a concern. So must the employee cite to a concern, like harassment, or is checking off a box sufficient? It’s not clear.
- All-in-all, while this decision provides guidance on how a union’s right to contact bargaining unit members intersects with the right of privacy, it does not address how these principles are to be implemented in the real world. So there will still be some growing pains in this area going forward.