Los Angeles Unified School District (PERB 1061E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LOS ANGELES 	CITY AND 	COUNTY SCHOOL
EMPLOYEES UNION, 	LOCAL 99, 	SERVICE
EMPLOYEES 	INTERNATIONAL UNION,
AFL-CIO,
Charging 	Party,
v.
LOS ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3189
PERB Decision No. 	1061
October 	6, 	1994
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Appearances: 	Taylor, 	Roth, 	Bush & Geffner by Hope J. 	Singer,
Attorney, 	for Los Angeles 	City and County School 	Employees 	Union,
Local 	99, 	Service Employees International Union, 	AFL-CIO; 	Jesus
Estrada-Melendez, 	Attorney, 	for Los Angeles Unified School
District.
Before Caffrey, 	Carlyle and Garcia, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case 	is before the Public Employment
Relations Board 	(PERB 	or Board) 	on exceptions 	filed by the
Los Angeles Unified School District 	(District) 	to a PERB
administrative 	law judge's 	(ALJ) 	proposed decision. 	The ALJ
found that the District violated section 3543.5(a), 	(b) 	and 	(c)
of 	the Educational 	Employment 	Relations Act 	(EERA)1 when 	it
1EERA is 	codified at 	Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 	states, 	in pertinent
part:
It 	shall 	be unlawful 	for a public 	school 	employer
to do any of 	the 	following:
(a) 	Impose 	or threaten to 	impose 	reprisals 	on
employees, 	to discriminate or threaten to

discriminate against 	employees, 	or otherwise 	to
interfere with, 	restrain, 	or coerce employees
because 	of 	their 	exercise 	of 	rights 	guaranteed by
this 	chapter.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse 	or fail 	to meet 	and negotiate 	in good
faith with an 	exclusive 	representative.
denied 	the 	request 	of 	the 	Los Angeles 	City and 	County School
Employees Union, 	Local 99, 	Service Employees International Union,
AFL-CIO 	(SEIU) 	to 	review certain magazines 	in preparation 	for an
appeal 	of 	a 	disciplinary action before 	the 	District 	Personnel
Commission.
The 	Board has 	reviewed 	the 	entire 	record 	in this 	case,
including the proposed decision, 	transcript, 	exhibits, 	the
District's 	statement 	of 	exceptions 	and SEIU's 	response 	thereto.2
Based upon this 	review, 	the Board reverses 	the 	decision of 	the
ALJ and dismisses 	the 	complaint 	and unfair practice 	charge 	in
accordance 	with 	the 	following 	discussion.
FACTUAL 	SUMMARY
SEIU and 	the 	District 	are 	employee 	organization and public
school 	employer respectively, 	as defined in the EERA. 	SEIU is
the 	exclusive 	representative 	of Unit 	C, 	Operations-Support
Services 	within 	the District.
Roberta DiMarco 	(DiMarco) 	provides 	custodial 	services 	as an
employee 	of 	the District. 	As 	a result 	of an alleged use 	of
profanity directed at her supervisor on April 	15, 	1991, 	DiMarco
2The 	Board denied the District's 	request 	for oral 	argument
in this 	case.
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was notified of 	the District's 	intent 	to suspend her 	for 20 	days.
During 	a 	pre-disciplinary meeting 	with District 	and 	SEIU
representatives, 	DiMarco 	claimed her outburst was 	provoked by
repeated acts 	of 	sexual 	harassment by her 	supervisor, 	Joe
Guerrero 	(Guerrero), 	the plant manager at Canoga Park Elementary
School. 	DiMarco alleged 	that 	those 	acts 	included 	requiring 	her
to view pornographic magazines. 	As 	a 	result 	of DiMarco's
allegations, 	Sue Campbell 	(Campbell), 	a District personnel
representative, 	went 	to Guerrero's 	office and took possession of
three magazines 	from the 	file 	cabinet maintained by Guerrero.3
When 	the 	District 	refused 	to modify 	the proposed 	suspension,
DiMarco 	appealed 	the 	disciplinary action 	to 	the 	Personnel
Commission.4 Hope Singer 	(Singer) 	was 	retained by SEIU to 	serve
as 	counsel 	for DiMarco 	in 	the 	appeal 	before 	the 	Personnel
Commission. 	At Singer's direction, 	late 	in 1991 	or early in
1992, 	Jim Oliver 	(Oliver), 	a SEIU field organizer, 	went to
Campbell's 	office and asked 	to 	look at 	the magazines. 	Campbell
made 	the magazines 	available 	for Oliver's 	inspection. 	Oliver
viewed 	them briefly and 	stated 	that 	he 	would want 	to 	look at 	them
3A 	forth magazine 	was 	obtained 	by 	SEIU 	representative
William Freeman 	from a unit member who, 	concerned 	that 	children
might 	find 	it, 	retrieved 	it 	from a 	trash can located on the
school 	grounds. 	The magazine was 	turned over to 	the District
during 	a 	pre-disciplinary meeting 	with DiMarco.
4Pursuant 	to 	the Education Code, 	disciplinary actions 	in
this District 	are appealed to 	the 	Personnel 	Commission.
Accordingly, 	the parties' 	collective bargaining agreement 	(CBA)
specifically provides 	that 	appeals 	of 	disciplinary actions 	"are
beyond the 	scope" 	of 	the 	CBA grievance procedures. 	(Article V
Section 	1.1.)
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again. 	Campbell 	indicated 	that 	further 	review would not 	be 	a
problem.
Beginning 	in mid-March 1992, 	Singer made various 	requests 	to
the District 	for an 	opportunity 	to 	review the magazines 	in
preparation for the April 	30, 	1992 	Personnel 	Commission hearing.
Singer 	insisted 	that 	she be 	allowed 	to view 	the magazines 	in
private with DiMarco. 	There 	is 	some dispute as 	to whether Singer
actually viewed the magazines 	prior to 	the hearing. 	Singer
testified 	that 	she 	did not 	see 	them prior 	to 	the 	Personnel
Commission hearing. 	Campbell 	testified 	that 	Singer viewed 	the
magazines 	on March 25, 	1992 	during a meeting attended by Singer,
Campbell and counsel 	for the District, 	Jesus Estrada-Melendez, 	at
which time Singer also reviewed DiMarco's personnel 	file. 	The
ALJ 	resolved 	this 	conflict 	by 	crediting 	Singer's 	testimony.
The 	District 	responded 	to 	Singer's 	requests 	by 	reminding her
of 	the 	Personnel 	Commission's 	procedure 	for obtaining access 	to
the magazines by subpoena. 	In its 	letter of April 	7, 	1992, 	the
District 	asserted 	that 	Singer's 	requested 	review of 	the magazines
in preparation 	for 	the 	Personnel 	Commission hearing was 	not
necessary and 	relevant 	to 	SEIU's 	collective 	bargaining
obligations 	under 	EERA. 	The District 	further 	explained 	its
refusal 	to voluntarily turn over 	the magazines 	in 	the absence 	of
a 	Personnel 	Commission subpoena, 	by 	expressing 	concern that 	if
Singer and DiMarco were 	to 	review the magazines 	privately before
the 	hearing, 	DiMarco's 	testimony might be unduly 	influenced or
altered. 	The District was 	also 	concerned with maintaining 	the
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proper 	chain of 	evidence 	in 	the 	event 	of 	additional 	litigation
which 	could 	involve 	the magazines.
Singer did not 	seek access 	to 	the magazines 	through a
subpoena 	from the 	Personnel 	Commission. 	The District brought 	the
magazines 	to 	the 	Personnel 	Commission hearing where 	Singer had
access 	to them. 	After several 	days 	of hearings, 	the 	Personnel
Commission 	hearing 	officer 	recommended 	that 	DiMarco's 	suspension
be 	reduced to one day. 	Before 	the 	Personnel 	Commission acted on
that 	recommendation, 	the District 	withdrew the proposed
disciplinary 	action.
On May 5, 	1992, 	SEIU filed the 	instant unfair practice
charge. 	The 	PERB general 	counsel 	issued a 	complaint 	against 	the
District 	on November 23, 	1992, 	alleging that 	the District 	failed
to bargain 	in good 	faith when 	it 	refused 	to provide 	the 	requested
magazines 	to SEIU.
ALJ'S 	DECISION
In 	finding 	that 	the 	District 	unlawfully refused 	to provide
the magazines 	in the absence 	of 	a 	Personnel 	Commission subpoena,
the ALJ 	rejected 	the District's 	contention 	that 	SEIU's 	request
for 	information was 	not made 	in 	its 	EERA-based 	representational
capacity. 	The ALJ 	found 	that 	regardless 	of whether SEIU had a
duty under EERA to 	represent 	DiMarco before 	the 	Personnel
Commission, 	SEIU 	"had an 	ongoing duty and 	responsibility 	to
represent Ms. 	DiMarco 	in her employment 	relationship with 	the
District."
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The 	ALJ also 	found 	that 	although SEIU did not 	specifically
request 	the magazines 	for EERA-based 	representation purposes,
they would be 	useful 	"for monitoring 	the 	contractual 	provisions
of 	the 	contract 	relevant 	to 	sex discrimination." 	In summary, 	the
ALJ 	stated:
Although 	these 	reasons 	for production were
not 	specifically 	stated 	in 	Singer's
correspondence, 	the relevance of 	the material
for 	that purpose 	is 	obvious 	and the District
never 	challenged relevancy. 	The union 	is 	not
required to show the precise 	relevance 	of
information unless 	the 	employer 	rebuts 	the
presumption of 	relevance.
DISTRICT'S 	EXCEPTIONS
On appeal, 	the District 	asserts 	that 	SEIU's 	review of 	the
magazines 	requested 	to prepare 	for DiMarco's 	Personnel 	Commission
hearing was 	not 	necessary and 	relevant 	to 	its 	representation 	of
employees within the 	terms 	of 	EERA. 	The District argues 	that
SEIU's 	obligations 	and rights 	under EERA do not 	extend 	to 	its
representation of members 	in 	extra-contractual 	proceedings
involving a 	separate 	administrative 	agency 	such as 	the 	Personnel
Commission.
The District 	contends 	that 	SEIU's 	requests 	for the magazines
were made 	solely 	for the purpose of preparing 	for 	the 	Personnel
Commission hearing. 	SEIU did not 	inform the District 	that 	the
magazines were needed for any other purpose, 	such as
administration of 	the collective bargaining agreement. 	Thus, 	the
District 	argues, 	SEIU did not 	request 	the magazines 	for general
representational 	purposes 	in 	"meaningful 	and clear terms."
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The District also contends 	that 	SEIU's 	requests 	to 	inspect
the magazines 	in private 	with DiMarco would break 	the 	chain 	of
custody and 	thereby breach applicable 	laws 	of 	evidence 	as 	well 	as
federal 	and 	state 	guidelines 	and 	regulations 	on 	sexual 	harassment
complaints.5
SEIU'S 	RESPONSE
SEIU rejects 	the District's 	arguments 	and 	concurs 	in 	the
findings 	of 	the ALJ.6 Based on Lane v. 	I.O.U.E. 	Stationary
Engineers 	(1989) 	212 Cal.App.3d 164 	[260 Cal.Rptr. 	634] 	(Lane),
SEIU contends 	that 	it 	has 	a duty of 	fair representation to
DiMarco 	since 	it 	elected 	to 	represent 	her at 	the 	Personnel
Commission hearing, 	an extra-contractual 	forum. 	SEIU argues 	that
once 	this duty attaches 	to the union, 	it 	creates a duty on the
part 	of 	the 	employer 	to 	treat 	the union as 	it 	would 	in situations
involving 	any 	EERA 	or 	contractually-based 	representational 	forum.
Thus, 	SEIU contends 	that 	to enable 	SEIU to 	fulfill 	its 	elective
representational 	obligation 	to DiMarco 	in 	the 	Personnel
Commission hearing, 	EERA requires 	the 	employer to provide 	the
union with 	information just 	as 	it 	does when the 	representation
occurs 	in an 	EERA-based 	setting 	such as 	a 	grievance proceeding.
Therefore, 	SEIU asserts 	that 	the District was 	obligated to
5The 	District 	offered 	other alternative 	arguments 	in 	its
exceptions. 	The Board finds 	it unnecessary to address 	these
arguments 	in deciding this 	case.
66I	In	n Lo	LossAngele	Angele	s Unifie	s Unifie	d Schoo	d Schoo	l l 	District 	(1993) 	PERB Order
No	No.	. 	Ad-249	Ad-249,, 	th	thee Boar	Boardd grante	grantedd SSEIU	E 	an extension of 	time 	to 	file a
response 	to 	the District's 	statement 	of 	exceptions.
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provide 	the 	information without 	requiring 	SEIU to 	seek 	it 	through
the 	Personnel 	Commission procedures.7
DISCUSSION
This 	case presents 	the 	issue 	of 	whether the District
violated EERA section 3543.5(a), 	(b) 	and 	(c) 	when it 	failed and
refused 	to provide 	SEIU with access 	to magazines 	which 	it
requested 	for use 	in 	representing 	a bargaining unit 	member 	in an
appeal 	before 	the 	Personnel 	Commission.8
It 	is 	well 	established 	that 	under EERA an 	exclusive
representative 	is 	entitled to 	information sufficient 	to 	enable 	it
to 	understand and 	intelligently discharge 	its 	duty 	to 	represent
bargaining unit members. 	"Necessary and relevant" 	information
must 	be 	furnished 	for purposes 	of 	representing 	employees 	in
negotiations 	for a 	future 	contract 	and 	for policing 	the
administration of 	an existing 	agreement. 	(Stockton Unified
School District 	(1980) 	PERB Decision No. 	143; 	Chula Vista City
School District 	(1990) 	PERB Decision No. 	834; 	Zerger, 	Cal. 	Public
Sector Labor Relations 	(1989) 	Ch. 	30, 	sec. 	30.03, 	p. 	12.) 	Absent
a valid excuse, 	an employer's 	refusal 	to provide necessary and
'Following the filing deadline, 	on December 6, 	1993, 	the
District 	filed a 	supplemental 	brief 	in 	reply to 	SEIU's 	response.
On December 28, 	1993, 	SEIU also filed a supplemental 	response
consisting 	of 	a motion urging 	the 	Board 	to 	reject 	the 	District's
supplemental brief. 	In 	its motion, 	SEIU also responded to 	the
arguments 	raised 	in 	the District's 	brief. 	The 	Board declines 	to
consider 	either party's 	supplemental 	brief.
8It 	is 	undisputed 	that 	the 	Personnel 	Commission had a
procedure which provided SEIU with access 	to 	the magazines 	in
question. 	This 	fact 	is 	irrelevant 	to the 	issue of whether the
District 	was 	mandated by EERA to provide 	SEIU with 	the 	requested
information.
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relevant 	information 	is 	evidence 	of 	bad 	faith bargaining.
(Stockton Unified School District, 	supra. 	PERB Decision No. 	143.)
Certain 	information 	requested by 	an 	exclusive 	representative
is 	presumed to be 	relevant. 	The Board has 	found various 	specific
types 	of 	information 	relevant 	when 	requested 	for purposes 	of
collective bargaining 	or 	contract 	administration. 	(Stockton
Unified School District, 	supra. 	PERB Decision No. 	143 	(health
insurance data); 	Trustees of the California State University
(1987) 	PERB Decision No. 	613-H 	(wage survey data); 	Newark Unified
School District 	(1991) 	PERB Decision No. 	864 	(staffing and
enrollment projections).) 	If 	the 	relevance 	of 	the 	requested
information 	is 	rebutted by the 	employer, 	the 	exclusive
representative must 	establish how the 	information 	is 	relevant 	to
its 	EERA-based 	responsibilities 	such as 	collective bargaining 	or
administration of 	the 	CBA. 	(Trustees 	of 	the 	California State
University, 	supra. 	PERB Decision No. 	613-H; 	San Diego Newspaper
Guild v. 	NLRB 	(9th Cir. 	1977) 	548 	F.2d 863 	[94 	LRRM 2923]
(San Diego Newspaper Guild).)
Applying this precedent 	to the 	instant 	case, 	it 	is apparent
that 	the magazines 	requested by SEIU, 	while 	relevant 	to SEIU's
representation of DiMarco before 	the 	Personnel 	Commission, 	do not
carry with 	them the 	presumptive 	relevance 	to 	SEIU's 	EERA-based
obligations 	of 	information such as wage 	or health 	insurance 	data.
The ALJ's 	conclusion that 	the 	relevance 	of 	the magazines 	to
SEIU's 	monitoring 	of 	sex discrimination provisions 	of 	the 	CBA 	"is
obvious," 	is 	simply 	incorrect. 	The District balked at providing
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the magazines 	to 	Singer precisely because 	it was 	not 	obvious 	how
they were 	relevant 	to SEIU's 	EERA-based 	responsibilities 	in 	the
area 	of 	contract 	administration or collective bargaining.
SEIU responded 	to 	the District, 	not 	by addressing 	the 	issue
of 	relevance, 	but by insisting 	that 	it was 	entitled to access 	to
the magazines under EERA, 	and was not 	required to utilize 	the
Personnel 	Commission procedures 	to obtain them. 	In 	its 	letter of
April 	7, 	1992, 	the District contested SEIU's assertion, 	arguing
that 	EERA does 	not 	require 	the 	disclosure 	of 	information 	for use
in a 	forum outside 	of 	an 	exclusive 	representative's 	contractual
jurisdiction. 	The District 	reiterated that 	the magazines 	were
accessible 	through the procedures 	of 	the 	Personnel 	Commission.
Therefore, 	contrary to the ALJ's 	finding 	that 	"the District
never 	challenged 	relevancy," 	the 	record 	is 	clear 	that 	the
District 	did so 	in 	these 	communications with SEIU. 	The Board
concludes 	that 	the District 	thereby 	rebutted any presumption 	of
relevance which could be attributed to 	the magazines, 	and the
burden shifted 	to 	SEIU to 	establish 	that 	access 	to 	them was
necessary and 	relevant 	for EERA-based purposes 	such as 	developing
proposals 	for 	collective bargaining 	or administering 	the
provisions 	of 	the 	existing agreement.
In San Diego Newspaper Guild, 	the 	court described 	this
burden 	stating:
. 	. 	. 	the showing by the union must be more than a
mere 	concoction of 	some 	general 	theory which
explains 	how the 	information would be useful 	to
the union 	in determining 	if 	the 	employer has
committed 	some unknown 	contract violation.
10

In this 	case, 	Singer testified in response 	to questions 	of 	the
ALJ 	that 	she 	and Oliver had 	generally 	discussed 	sexual 	harassment
issues 	in the District around the 	time 	of DiMarco's 	Personnel
Commission hearing. 	Singer also testified, 	however, 	that 	the
union had 	recently 	come 	out 	of 	receivership and 	SEIU's 	primary
focus was to address 	its backlog of 	cases. 	It 	is 	evident 	from
the 	record 	that 	SEIU's 	goal 	was 	to handle 	the backlog of 	its
bargaining unit members' 	cases, 	assisted by outside 	counsel,
rather 	than 	research and develop bargaining proposals. 	Singer
stated 	repeatedly 	that 	the 	review of 	the magazines 	was 	requested
solely 	to prepare 	for DiMarco's 	disciplinary hearing 	before 	the
Personnel 	Commission. 	The 	record 	is 	devoid of 	any evidence 	that
the District was made aware 	of 	any need or desire by SEIU to
acquire 	the magazines 	for purposes 	of monitoring 	sexual
harassment 	issues 	in the District 	in accordance with 	the parties'
CBA, 	for preparing bargaining proposals 	for presentation to 	the
District, 	or 	for use 	in other EERA-based 	representational
activity.
SEIU's 	response 	to 	the ALJ during 	the hearing 	that 	the
magazines 	were 	essential 	to 	its 	monitoring 	of 	sex discrimination
provisions 	of 	the 	CBA is 	clearly pretextual. 	An exclusive
representative must 	advise 	the 	employer of 	the 	relevance 	of
requested information, 	once 	that 	relevance 	is 	rebutted. 	This
burden 	is 	not met by advancing an argument 	for 	the 	relevance 	of
the 	information 	in dispute 	for the 	first 	time during a 	PERB-
conducted hearing. 	It 	is 	evident 	in this 	case 	that 	SEIU failed
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to demonstrate 	the 	relevance 	of 	the magazines 	to 	its 	EERA-based
representational 	responsibilities 	when 	challenged 	by 	the
District, 	and thus 	failed to meet 	the burden described in
San Diego Newspaper Guild.9
- -
Alternatively, 	SEIU cites 	Los Angeles Unified School
District 	(1990) 	PERB Decision No. 	835 	(Los Angeles USD) 	to
support 	its 	assertion that 	an 	employer's 	duty 	to provide
requested 	information 	for 	collective 	bargaining 	and 	grievance
proceedings 	has 	been extended by 	the 	Board 	to proceedings
involving 	the 	representation 	of bargaining unit members 	in 	extra-
contractual 	forums. 	Thus, 	SEIU asserts 	that the District was
required 	to provide 	the 	requested magazines 	for use 	in DiMarco's
hearing before 	the 	Personnel 	Commission, 	an extra-contractual
forum, 	without 	SEIU bearing 	the burden of 	demonstrating 	their
relevance 	to 	SEIU's 	bargaining 	or 	CBA administration
responsibilities.
The 	reliance 	on Los Angeles USD 	is misplaced. 	In that 	case,
the 	Board affirmed a Board agent's 	dismissal 	of 	an unfair
practice 	charge which alleged, 	among other things, 	that 	the
employer 	failed 	to provide 	information necessary 	for 	a 	Skelly10
9The 	Board 	emphasizes 	that 	information 	requested by an
exclusive 	representative 	for use 	in 	representing an 	employee 	in
an 	extra-contractual 	forum can be 	relevant 	to 	its 	EERA-based
responsibilities, 	thereby requiring 	the 	employer to 	furnish 	the
information absent 	a valid excuse. 	It 	is 	the 	relevance 	of 	the
requested 	information and not 	the nature 	of 	the 	forum for which
it 	is 	requested, 	which determines whether the employer is
mandated by 	EERA to provide 	it.
10Skelly v. 	State Personnel Bd. 	(1975) 	15 Cal. 3d 194
[124 Cal.Rptr. 14] .
12

pre-disciplinary action meeting. 	The Board held, 	as 	a 	threshold
matter, 	that 	a 	request 	for 	information 	is 	required before any
duty 	to provide 	information attaches 	to 	the 	employer. 	In 	the
absence 	of 	a proper request 	by the 	employee 	organization, 	the
charge 	in Los Angeles USD was 	dismissed. 	The Board did not 	reach
the 	issue and did not 	conclude 	in that 	case 	that 	an employer 	is
required 	to provide 	information 	for use 	in an 	extra-contractual
setting 	if 	it 	has 	been properly 	requested by an 	employee
organization, 	regardless 	of 	its 	relevance 	to EERA-based
responsibilities. 	Accordingly, 	this argument 	is without merit
and 	is 	rejected.
SEIU further argues 	that 	although 	it 	has 	no 	duty under 	EERA
to represent DiMarco before 	the 	Personnel 	Commission, 	under Lane.
it 	acquired a 	duty equivalent 	to 	the 	EERA duty of 	fair
representation when 	it 	voluntarily undertook DiMarco's
representation before 	the 	Personnel 	Commission. 	SEIU argues 	that
once 	this 	duty attaches 	to 	the union under Lane, 	a 	concurrent
duty attaches 	to 	the 	employer 	to provide 	to 	the union all 	its
rights as 	an exclusive 	representative under EERA. 	Therefore,
SEIU asserts 	that 	once 	it 	assumed the 	representation of DiMarco
before 	the 	Personnel 	Commission, 	the District was 	required under
EERA to provide 	the magazines..
The 	Board 	has 	previously determined 	that 	an 	EERA duty 	of
fair 	representation does 	not 	apply 	to 	a union's 	representation 	in
an 	extra-contractual 	forum because 	that 	forum 	is 	unconnected 	to
any aspect 	of 	negotiation or administration 	of 	a 	collective
13

bargaining 	agreement 	and 	the 	union 	does 	not 	exclusively 	control
the means 	to 	the particular remedy. 	(San Francisco 	Classroom
Teachers Association, 	CTA/NEA 	(Chestangue) 	(1985) 	PERB Decision
No. 	544.) 	The Board has not 	ruled on what 	duty or standard of
care, 	if any, 	attaches to union representation in an extra-
contractual 	forum, 	and 	finds 	it 	unnecessary to 	reach that 	issue
in 	this 	case. 	(California Union of 	Safety Employees 	(Coelho)
(1994) 	PERB Decision No. 	1032-S.)
Lane 	originated 	in 	the 	context 	of 	the Meyers-Milias-Brown
Act.11 In ruling on the appeal 	of a demurrer to a complaint, 	the
court 	in Lane 	determined that 	the union 	in 	that 	case 	owed a duty
"akin" 	to that 	of 	fair representation when 	it voluntarily
undertook 	representation 	of 	a bargaining unit member 	in an extra-
contractual 	forum. 	While 	it 	addressed the union's
representational 	duty to 	its 	own bargaining unit member, 	Lane
categorically did not 	extend 	to 	the 	employer all 	its
corresponding 	collective 	bargaining 	obligations 	simply because
the 	exclusive 	representative 	voluntarily undertook 	a
representational 	responsibility 	in excess 	of 	its 	obligation.
Consequently, 	the Board rejects 	SEIU's 	contention that 	the
District 	is 	obligated under Lane 	to provide 	an 	exclusive
representative 	with 	information 	requested 	for use 	in 	representing
a member 	in an extra-contractual 	forum regardless 	of 	its
relevance 	to 	EERA-based 	responsibilities 	such as 	collective
bargaining or administration of 	the 	CBA. 	To 	rule 	otherwise would
11Government Code section 3500 	et 	seq.
14

potentially 	extend 	an 	employer's 	EERA obligation 	to provide
information 	to 	situations 	normally 	outside 	of 	the 	collective
bargaining realm, 	such as workers' 	compensation insurance and
unemployment 	insurance appeals, 	and Equal 	Employment 	Opportunity
Commission 	or 	Fair 	Employment 	and Housing 	Commission proceedings,
simply because 	the 	exclusive 	representative 	voluntarily undertook
representation.
In summary, 	the record clearly indicates, 	and SEIU
emphasizes 	in its 	response 	to the District's exceptions, 	that 	it
requested access 	to 	the magazines 	for use 	in representing DiMarco
before 	the 	Personnel 	Commission. 	The District, 	contesting the
assertion 	that 	EERA requires 	disclosure 	of 	information 	for use
solely 	in an extra-contractual 	forum, 	rebutted the 	relevance 	of
the magazines 	to 	SEIU's 	collective bargaining 	or CBA
administration responsibilities. 	Faced with the burden of
demonstrating 	the 	relevance 	of 	the magazines 	to 	its 	EERA-based
responsibilities, 	SEIU failed to do so. 	Therefore, 	the Board
reverses 	the ALJ's 	finding 	that 	the District violated EERA
section 3543.5(a), 	(b) 	and 	(c) 	when it refused to provide the
magazines 	to SEIU.
ORDER
The 	complaint 	and unfair practice 	charge 	in Case
No. 	LA-CE-3189 	is hereby DISMISSED.
Member Garcia's 	concurrence begins 	on page 	16.
Member Carlyle's dissent begins 	on page 22.
15

GARCIA, 	Member, 	concurring: 	I concur in the lead opinion's
conclusion 	that 	the 	Los 	Angeles 	Unified School 	District
(District) 	did not violate section 3543.5(a), 	(b) 	or 	(c) 	of the
Educational 	Employment Relations Act 	(EERA or Act) 	when it
refused 	to provide 	certain magazines 	to 	the 	Los Angeles 	City and
County School 	Employees Union, 	Local 	99, 	Service Employees
International Union, 	AFL-CIO 	(SEIU). 	However, 	my reasons for
this 	conclusion differ 	from those 	of 	the 	lead 	opinion.
SEIU argued 	that under Los 	Angeles 	Unified School 	District
(1990) 	PERB Decision No. 	835 	(Los Angeles USD). 	an employer's
duty 	to 	provide 	requested 	information 	for 	collective 	bargaining
and grievance proceedings 	extends 	to proceedings 	involving 	the
representation 	of 	bargaining unit 	members 	in extra-contractual
forums. 	Member Caffrey's 	opinion states 	that 	Los Angeles USD is
not 	applicable 	to 	this 	case because 	the 	Public 	Employment
Relations 	Board 	(PERB or Board) 	never reached that 	issue. 	I
disagree; 	as 	I 	read Los Angeles USD, 	that 	case and other PERB
cases1 establish that 	an exclusive 	representative has 	a 	right
under 	EERA to 	information necessary and 	relevant 	to 	fulfill 	its
representation obligations. 	The National 	Labor Relations 	Board
(NLRB) 	and United States 	Supreme Court have made 	this 	clear 	in
isee 	Los Angeles USD at p. 	3, 	citing Stockton Unified School
District 	(1980) 	PERB Decision No. 	143 at p. 	13, 	that the
exclusive 	representative 	is 	entitled to all 	information that 	is
"necessary and 	relevant" 	to discharging 	its 	duty 	to 	represent
unit 	employees; 	an employer's 	refusal 	to provide 	such 	information
evidences 	bad 	faith bargaining unless 	the 	employer 	can 	supply
adequate 	reasons why it 	cannot 	supply the 	information.
16

cases under their jurisdiction2 and with respect 	to that point, 	I
agree with Member Carlyle's 	dissent. 	Under 	the 	federal
precedent, 	the 	employer's 	duty to 	furnish 	information extends
beyond 	the period of 	contract 	negotiations 	and applies 	to 	labor-
management 	relations 	during 	the 	term of 	an agreement.3
Los Angeles 	USD 	is 	consistent with NLRB precedent 	in that 	an
employer's 	duty 	to 	supply 	the 	exclusive 	representative 	with
information is 	subject 	to certain limitations. 	The duty does 	not
arise until 	the union makes 	a 	request 	or demand that 	the
information be 	furnished.4 Once 	the 	union makes 	a good-faith
demand 	for 	relevant 	and necessary 	information, 	the 	employer must
2PERB has previously noted that 	federal 	precedents 	are
relevant 	for guidance 	in 	interpreting EERA language when 	the
statutes 	are 	similar. 	(Sweetwater Union High School 	District
(1976) 	EERB Decision No. 	4 	(prior to Jan. 	1, 	1978, 	PERB was known
as 	the Educational 	Employment Relations Board), 	and see Fire
Fighters Union v. 	City of Vallejo 	(1974) 	12 	Cal.3d 608
[116 Cal.Rptr. 	507]. 	Both the federal National Labor Relations
Act 	(NLRA) 	and EERA establish the 	duty to negotiate 	in good
faith. 	Section 8(a)(5) 	of 	the NLRA and section 3543.5(c) 	of 	the
EERA make 	it 	an unfair practice 	for an employer to 	fail 	to meet
and negotiate 	in good 	faith with an 	exclusive 	representative.
3See NLRB v. 	Acme Industrial Co. 	(1967) 	385 U.S. 	432
[64 LRRM 2069], 	which held:
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.
4NLRB v. 	Boston Herald-Traveler Corp. 	(1st Cir. 	1954)
210 	F.2d 134 	[33 	LRRM 2435], 	enforcing 	(1953) 	102 NLRB 627
[31 LRRM 1337]; Westinghouse Elec. 	Supply Co. v. 	NLRB 	(3rd Cir.
1952) 	196 	F.2d 	1012 	[30 	LRRM 2169].
17

make 	a diligent 	effort 	to provide 	the 	information 	in a 	reasonably-
prompt manner and useful 	form.5
With these principles 	in mind, 	I 	read Los Angeles USD as
placing 	a burden 	on 	the 	party requesting 	the 	information 	to
explain 	the 	necessity and 	relevance 	of 	the 	information 	so 	that
the potential 	supplier 	of 	the 	information 	can understand 	its
obligation when 	that 	is 	not 	clear.6 When 	it 	receives 	such a
request, 	the supplier of 	the 	information has a duty to make the
information available 	in a manner 	that 	is useful 	to 	the
requester, 	yet may safeguard the documents 	themselves;7 the 	exact
conditions 	of 	access 	should be 	determined on a 	case-by-case
basis.
In this 	case, 	in late 	1991 	or early 	1992 	an SEIU Field
Organizer, 	Jim Oliver 	(Oliver) 	went 	to 	the District 	office where
the magazines were being kept and requested to 	see 	the magazines.
Oliver's 	stated purpose was 	to verify 	some dates 	to make 	certain
that 	the magazines 	seized were 	the 	ones 	Roberta DiMarco 	(DiMarco)
5General Elec. 	Co. 	(1988) 	290 NLRB 1138 	[131 LRRM 1230];
Quaker Oats Co. 	(1983) 	NLRB Gen. 	Counsel Advice Memo., 	Case No.
4-CA-13849 	[114 	LRRM 1277].
6Szabo v. 	U.S. 	Marine Corp. 	(1987) 	819 	F.2d 714 	[125 LRRM
2572].
7For example, 	if 	the documents are unique or could be used
for 	other purposes 	not 	contemplated by EERA, 	it 	would not be
unreasonable 	to arrange 	for 	the 	documents 	to be viewed under
controlled circumstances. 	See E.W. 	Buschman Co. 	v. 	NLRB 	(6th
Cir. 	1987) 	820 F.2d 206 	[125 LRRM 2642]; 	Detroit Edison Co. 	v.
NLRB 	(1979) 	440 U.S. 	301 	[100 LRRM 2728].
18

had allegedly been 	forced 	to view.8 District 	personnel
representative 	Sue 	Campbell 	(Campbell) 	made 	the magazines
available 	to Oliver. 	He made 	note 	of 	some 	information and
indicated he would want 	to 	look at 	them again; 	Campbell 	indicated
that 	would not 	be 	a problem.
On or about March 25, 	1992, 	SEIU's attorney made another
request 	for the magazines 	to prepare 	for the April 	30, 	1992
Personnel 	Commission disciplinary hearing. 	The 	District
responded 	that 	it 	would 	comply 	fully with a 	subpoena9 to produce
the magazines at 	the hearing; 	alternately, 	it offered to provide
the documents 	earlier if 	SEIU agreed 	to 	certain 	conditions.10
8Under Stockton Unified School District, 	supra, 	(1980) 	PERB
Decision No. 	143, 	and Acme, 	supra. 	385 U.S. 	432, 	I find that this
is 	a valid reason since 	it 	is necessary and relevant 	to 	the
union's 	duty 	to properly 	represent 	unit 	employees.
9The proposed decision states 	that, 	under the 	Personnel
Commission process, 	subpoenas 	for documents 	are 	returnable 	the
first 	day of a hearing only. 	Thus, 	the administrative 	law judge
found 	that 	use 	of 	a 	Personnel 	Commission 	subpoena would not 	have
permitted SEIU 	to prepare 	for 	the 	hearing.
10By letter dated April 	3, 	1992, 	the District offered to
comply 	"promptly" 	with the union's 	request:
. 	. 	. 	if you 	[SEIU attorney Hope Singer] 	can
articulate 	in writing 	the purpose 	of your
request 	to 	review them and 	if 	you 	agree
unconditionally and also 	in writing 	to 	treat
this matter as 	having no precedential 	value.
In 	other words 	neither your office 	nor any of
your clients, 	present or future, 	will refer
to 	this matter 	for any purpose whatsoever.
(Emphasis 	in original.)
19

SEIU did not 	accept 	those 	conditions, 	and the District 	continued
to 	refuse 	to provide 	the magazines 	in advance 	of 	the hearing.11
SEIU contends 	that 	Lan
- e v. 	I.U.O.E. 	Stationary Engineers
(1982) 	212 Cal.App.3d 164 	[260 Cal.Rptr. 	634] 	(Lane) 	created an
obligation 	to 	represent 	employees 	and 	the 	information 	is
necessary and 	relevant 	to meet 	that 	judicially 	created
obligation. 	SEIU's view of 	Lane 	is 	erroneous 	and represents 	a
misinterpretation of 	the 	case 	which 	seems 	to be 	shared by many
contestants before 	PERB. 	This 	is a good time 	to 	clear the air.
Simply put, 	Lane 	is not 	a labor law case and represents
precedent 	only on 	the 	issues 	of pleading, 	demurrer and the
standard 	of 	care 	to be 	employed when measuring 	liability 	in
implied 	contract 	cases.12 Lane 	is 	not 	an applicable precedent 	to
cite 	in any 	case before 	PERB.
11The District 	representative 	testified 	that 	this 	refusal 	was
based on a 	concern 	that 	if 	Hope Singer 	(Singer) 	and DiMarco had
an 	opportunity 	to 	review the magazines 	before 	the 	hearing,
DiMarco's 	testimony might 	be 	created 	or 	fabricated.
12A1though 	it arose 	in a labor context, 	Lane was a breach of
-contract 	case 	in which a member sued his union 	for negligence 	in
representation. 	The union was 	not 	obliged to 	represent 	the
member but volunteered to undertake 	representation. 	On appeal,
the 	court 	held 	that 	a duty of 	care 	could arise when 	the union
assumed 	representation and 	then went 	on 	to define 	the 	standard 	of
care 	that would apply if 	the duty arose. 	The 	court held that 	the
standard of 	care, 	where the duty exists, 	is 	to be 	the same that
applies to fair representation when unions represent members 	- -
the 	representative must 	act 	fairly, 	honestly and 	in good 	faith,
and must 	refrain 	from acting arbitrarily, 	discriminatorily, 	or 	in
bad faith. 	In Lane, 	the 	court 	did not 	find that 	the 	facts and
circumstances 	created a 	contract 	or duty to 	represent. 	Instead,
the 	court 	reversed 	the 	decision of 	the 	lower 	court 	on pleading
issues 	and 	returned 	the 	case.
20

The 	record 	shows 	that 	the District made 	the magazines
available 	to SEIU on at 	least 	two occasions: 	to Oliver 	several
months before 	the hearing, 	and to Singer on the 	first 	day of 	the
disciplinary hearing.13 Therefore, 	the District 	did provide
access 	to the documents 	in a useful 	form, 	under controls 	that
were 	reasonable, 	consistent with PERB and NLRB 	case 	law discussed
above. 	Thus, 	there was no violation of EERA since the
information was 	available 	and SEIU 	failed to establish 	that 	the
District 	refused 	to provide 	the material 	or unduly 	limited
access.
13See proposed decision, 	p. 	8. 	As discussed above, 	SEIU
could have 	subpoenaed 	the 	documents 	pursuant 	to 	the 	Personnel
Commission process 	in their collective bargaining agreement, 	but
the 	District 	apparently provided 	them without 	being 	subpoenaed.
21

CARLYLE, 	Member, 	dissenting: 	For the reasons 	set 	forth
herein, 	I would affirm the proposed decision of 	the
administrative 	law judge 	(ALJ) 	in holding 	that 	the 	Los Angeles
Unified School District 	(District) 	violated section 3543.5(a),
(b) 	and 	(c) 	of 	the Educational 	Employment Relations Act 	(EERA)
when 	it 	denied 	the 	Los Angeles 	City and County School 	Employees
Union, 	Local 99, 	Service Employees International Union, 	AFL-CIO's
(SEIU or Local 	99) 	request 	to 	review certain magazines 	in
preparation 	for an appeal 	of 	a disciplinary action before 	the
District 	Personnel 	Commission. 	Accordingly, 	I 	issue this
dissent.
I 	disagree with 	the 	lead 	opinion's 	incorrect 	holding and
with 	the myopic 	analysis 	which 	lead 	to 	that 	holding.
The 	issue as phrased by the ALJ on page 	12 	of 	the proposed
decision was 	the 	one properly before her 	then and 	is 	the 	one
properly before 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or
Board) 	now:
Did the District violate section 3543.5(a),
(b) 	and 	(c) 	of the EERA when it 	failed and
refused 	to provide 	Local 	99 	with an opportunity
to 	review certain magazines, 	which were 	relevant
to 	settlement 	discussions 	concerning 	a 	disciplinary
action and which were 	needed 	to prepare 	for 	the
representation of 	an employee before 	the 	Personnel
Commission.
I 	note 	that 	the 	collective bargaining agreement 	(CBA)
between 	the District 	and Local 	99 	specifically defined grievance
and the procedure 	to be utilized, 	exempting 	from its 	coverage:
. 	. 	. 	those matters for which other methods
of 	adjustment 	are provided by 	the District,
such as reductions of 	force, 	performance
evaluations, disciplinary matters. 	. 	. 	.
(CBA, Art. V, 	sec. 	1.1.)
22

I 	also note 	that 	notwithstanding 	the 	lead 	opinion's 	uncited
assertion to 	the 	contrary,1 the parties 	did have 	the 	ability to
have 	work-related 	suspensions 	of 	employees 	covered by a procedure
contained in the CBA but 	chose not 	to do so. 	First, 	Education
Code section 45260(a) 	states 	in relevant part:
The commission shall prescribe, 	amend, 	and
interpret, 	subject to this article, 	such rules
as may be 	necessary 	to 	insure 	the 	efficiency of
the 	service and the 	selection and retention of
employees 	upon a basis 	of merit and 	fitness.
The 	rules 	shall 	not 	apply to bargaining unit
members 	if 	the 	subject matter 	is within the
scope 	of 	representation, 	as defined in Section
3543.2 	of 	the Government 	Code, 	and is 	included
in a negotiated agreement 	between 	the 	governing
board and 	that 	unit.
Second, 	EERA section 3543.2 	clearly includes 	such a 	concept 	under
"[t]erms 	and conditions 	of 	employment" 	because 	it 	contains as a
subject 	"procedures 	to be used 	for 	the 	evaluation of 	employees"
as 	well 	as 	specifically mentioning 	"procedures 	for processing
grievances." 	A process 	to 	ensure 	that 	work-related discipline
can be properly challenged so 	that, 	if unwarranted, 	an employee's
record 	can be 	kept 	in proper order when 	evaluations 	are
performed, 	would clearly appear to be 	an 	integral 	part 	of
"procedures 	to be used for evaluation of 	employees." 	Finally,
the 	language 	contained in Education Code 	section 453 05 	also gives
no 	comfort 	to 	the position that 	all 	disciplinary actions,
including suspensions, 	are appealed to a 	Personnel 	Commission.
Now, 	with the preliminaries 	out 	of 	the way so that 	the
proper foundation and position has 	been laid, 	what 	this 	case
1Footnote 4 	in 	the 	lead opinion makes 	no sense as written.
I 	am unable 	to 	find a 	section 	in 	the 	Education Code 	which 	stands
for 	the unsupported statement 	contained 	in that 	footnote.
23

really 	turns 	on 	is 	the 	language 	in Stockton Unified 	School
District 	(1980) 	PERB Decision No. 	143 	(Stockton) 	and its
subsequent 	application/interpretation. 	The 	other 	PERB 	cases
cited by 	the 	lead 	opinion are premised 	on 	this 	case 	and 	the
language 	contained on page 	13 	in that 	decision:
In general, 	the exclusive representative 	is
entitled 	to all 	information that 	is
necessary 	and 	relevant 	to 	discharging 	its
duty to 	represent unit 	employees.
Stockton went 	on 	to determine 	that 	"necessary and 	relevant" 	would
certainly 	include 	information 	pertaining 	immediately 	to mandatory
subjects 	of bargaining; 	hence, 	the beginning of a path of 	cases
relying upon 	Stockton 	in a 	collective 	bargaining 	table 	atmosphere
as 	cited in the lead opinion. 	All 	of 	those 	cases are 	fine, 	but
none 	stand 	for 	the 	proposition 	that 	the 	information 	or documents
must 	be 	turned 	over when 	requested 	or violate 	EERA only when
pursuant 	to negotiations 	or only 	in carrying out 	the 	terms 	of 	the
collective bargaining agreement as 	signed. 	Similarly, 	the
discussion on 	"rebutting 	the 	relevance" 	contained 	in 	the 	lead
opinion 	is also not dispositive of 	the 	real 	issue 	in this 	case.
Accordingly, 	I 	am unpersuaded that 	the 	"duty to 	represent"
unit 	employees 	is 	confined to 	the negotiating 	table 	or 	to 	the
"four corners" 	of 	the 	collective bargaining agreement. 	In Chula
Vista City School District 	(1990) 	PERB Decision No. 	834 	(Chula
Vista), 	the Board cited NLRB v. 	Acme 	Industrial 	Company 	(1967)
385 U.S. 	432, 	437-438 	[64 LRRM 2069] 	for the proposition that
requested 	information must 	be provided 	in 	the processing 	of
grievances:
24

. 	. 	. 	if it likely would be relevant and
useful 	to 	the union's 	determination of 	the
merits 	of 	the grievance and 	to 	their
fulfillment 	of 	the union's 	statutory
representation duties.
Some may point 	out 	that 	this 	case 	is 	not 	overly helpful
because 	even though 	it 	introduces 	the 	concept 	of 	a union's
statutory 	representation duties 	in a 	setting 	other 	than 	the
negotiating 	table, 	it presumably 	involved the 	carrying out 	of 	the
terms 	of 	the 	signed collective bargaining agreement. 	However,
two weeks 	after deciding Chula Vista, 	the Board decided
Los Angeles Unified School 	District 	(1990) 	PERB Decision
No. 	835 	(Los Angeles USD). 	In this case, 	as properly noted by
the ALJ, 	the 	non-exclusive 	representative maintained that 	it 	had
a 	right 	to 	obtain 	from management 	copies 	of 	statements 	relevant
to a 	Personnel 	Commission disciplinary proceeding 	(clearly, 	an
"extra-contractual" 	forum). 	In a unanimous 	3-0 	decision in which
all 	three members were also 	on 	the panel 	deciding Chula Vista,
the Board did not 	even question the 	right 	of 	the material 	to be
produced under 	EERA even 	though 	the 	forum 	involved was 	the
Personnel 	Commission. 	It 	found no violation of 	EERA because 	the
union had not made 	a 	request 	for copies 	of 	the 	documents.
If 	the nature 	of 	the 	forum was 	the 	deciding and critical
factor, 	certainly the Board would have 	commented upon 	it,
especially 	since 	all 	three 	PERB members 	had 	just 	decided
Chula Vista two weeks earlier. 	In other words, 	it appears under
PERB 	statutes 	and case 	law that 	the 	"duty to represent"
(Stockton) 	and the 	"fulfillment 	of 	the union's 	statutory
representation duties" 	(Chula Vista) 	are not necessarily limited
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to 	the negotiating 	table 	or 	to what 	is 	solely 	contained 	in a
signed collective bargaining agreement 	(Los Angeles USD).
Local 	99, 	in an attempt 	to perhaps give an additional
argument 	for 	its position, 	unfortunately 	cited Lane v. 	I.O.U.E.
Stationary Engineers 	(1989) 	212 	Cal.App.3d 164 	[260 	Cal.Rptr.
634] 	for the proposition that when 	it 	exercised its duty to
represent, 	it 	arguably exposed 	itself 	to a 	liability should 	it
back out 	or do an extremely poor job, 	and 	thus 	in order 	to
"balance 	the 	scales" 	it 	should be 	entitled to 	the 	requested
documents. 	Lane 	or any other case 	or theory relative 	to 	the
union's 	liability 	should 	it 	have backed out 	or 	faltered 	in 	its
representational duties 	is, 	with all due respect, 	irrelevant to
this 	case 	since 	those actions did not occur. 	Accordingly, 	it 	is
not 	necessary 	to 	decide 	or opine 	in any 	fashion 	on 	the 	accuracy
of 	the union's 	additional 	argument 	involving potential 	liability
and thus 	the 	right 	to obtain 	the necessary documents.
Finally, 	I would proffer 	in addition to the previously cited
statutes 	and 	case 	law reasoning, 	the 	compelling public policy
argument 	as 	to why the lead opinion is 	simply wrong. 	A
collective bargaining agreement 	is 	just 	that, 	a bargained
document 	which 	collectively deals 	with 	the 	differences 	between
management and represented employees. 	Once signed, 	it 	should be
the 	one 	document 	utilized 	in 	resolving 	such differences 	or
disputes 	to 	the maximum extent possible. 	Once 	signed, 	one 	of 	the
most 	common, 	if not 	the most 	common, 	difference or dispute
involves 	work-related discipline 	of 	employees.
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It 	is unquestioned that 	the 	exclusive 	representative has 	the
right, 	nay, 	the statutory duty if 	it 	chooses 	to exercise 	it and
the employee 	is willing, 	to represent 	its members before
tribunals/forums 	involving 	work-related 	discipline 	imposed 	by
management. 	To have a lead opinion which short-sightedly, 	if not
blindly, 	holds 	that 	any tribunal/forum not 	specifically part 	of
the 	collective 	bargaining agreement 	means 	that 	the 	exclusive
representative 	is 	not 	entitled 	to 	relevant 	documents 	under 	EERA
(or any other Act under PERB's 	jurisdiction for that matter) 	in
representing 	its 	union members 	in a 	work-related 	disciplinary
hearing before 	that 	tribunal/forum means 	only one 	thing:
At 	every opportunity 	in 	the 	future, 	management will 	"take
out" 	of 	every collective bargaining agreement 	as many 	forums 	as
it 	can. 	It will 	seek to 	limit 	the scope of 	the grievance
procedure, 	thus requiring more 	"extra-contractual" 	forums. 	It
won't 	agree 	to 	retain or put 	in 	existing 	language 	on 	such
subjects 	in 	the 	future, 	thus preventing 	their 	inclusion 	in 	the
next 	collective 	bargaining 	agreement.
Some might 	say such a view is 	given to hyperbole. 	But 	just
look at 	what 	happened 	in 	the 	instant 	case. 	The District
suspended 	the affected employee 	for 	twenty days. 	It 	wouldn't
give Local 	99 	the 	requested documents 	under EERA so 	that 	the
union 	could defend 	its member, 	instead 	insisting 	that 	the 	clearly
relevant 	material 	be 	obtained 	through 	the 	Personnel 	Commission.
After 	finally getting 	the 	information 	and having 	it 	introduced at
the 	hearing, 	the 	Personnel 	Commission ruled against 	the District
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and reduced the 	suspension 	from twenty days 	to one. 	The District
never 	even 	imposed 	the 	one-day 	suspension. 	Hyperbole? 	No way.
Some might 	say such a view misses 	the point 	of 	footnote 	9 	in
the lead opinion. 	Again, 	no way. 	The disingenuous proposition
contained 	therein deserves 	comment. 	The 	operative phrase 	in
attempting 	to 	take 	focus 	away 	from extra-contractual 	forums 	in
said 	footnote 	is 	if 	such 	requested 	information by 	the 	union 	is
"relevant 	to 	its 	EERA-based responsibilities." 	However, 	the 	lead
opinion has 	defined such 	"relevance" 	as 	limited to 	"purposes 	of
collective bargaining or contract 	administration." 	And, 	if
representing union members 	in disciplinary hearings 	is 	not 	in the
collective bargaining agreement, 	then it 	is, 	by lead opinion
definition, 	not within 	"contract administration." 	Accordingly,
footnote 	9 	in the 	lead opinion does 	nothing 	to 	lessen or negate
this portent of 	things to come.
Instead of 	a document 	designed to be 	inclusive, 	the 	lead
opinion 	can 	only 	result 	in 	future 	agreements 	containing 	the bare
minimum since such agreements will 	lessen, 	if not eliminate, 	the
obligation of management 	to produce 	documents 	under 	laws 	within
PERB's 	jurisdiction. 	Why? 	Because 	if 	the union's 	ability to
represent 	its membership 	is 	not 	in the 	collective bargaining
agreement, 	then 	that 	representation cannot 	qualify as 	"contract
administration." 	Let 	the 	exclusive 	representative 	fend 	for
itself 	in the 	other tribunal/forum. 	Maybe 	there will 	be 	a
procedure 	to get 	the 	requested information, 	maybe not. 	Maybe the
procedure will 	be 	extremely onerous 	and 	time 	consuming, 	maybe
not. 	The 	lead opinion does 	not make 	these aspects 	a deciding
28

factor; 	nor can it, 	since they were not an issue in this 	case and
thus 	were not 	litigated before 	the ALJ.2
The 	"parade 	of 	horribles" 	scenario on extra-contractual
forums envisioned by the lead opinion, 	on the other hand, 	is.
given to hyperbole. 	The 	facts 	in this 	case do not 	just deal 	with
an 	"extra-contractual" 	forum. 	They deal 	with such a 	forum for
work related discipline. 	The 	reason why 	the parties 	are 	in 	the
forum is 	just as 	critical, 	if not more so, 	than the 	forum itself.
Similar 	to 	the 	reasoning utilized 	on pages 	16-17 	in 	California
Union of 	Safety Employees 	(Coelho) 	(1994) 	PERB Decision
No. 	1032-S, 	the District 	initiated this 	forum by its 	suspension
of 	an 	employee 	and 	should 	therefore be 	required 	to produce 	the
relevant 	documents under EERA. 	After all, 	but 	for the actions 	of
the 	District 	in 	imposing what 	turned out 	to be 	an unwarranted
suspension to begin with, 	the parties would have never been
before 	the 	Personnel 	Commission.
Outside 	of 	a union representing 	its members 	at 	the
bargaining table, 	there 	is 	nothing more basic 	than the ability of
the 	union 	to 	represent 	its 	members 	in work-related disciplinary
hearings 	if 	that 	is 	the joint desire, 	regardless 	of what 	the
tribunal/forum is 	called. 	Remember, 	this 	case deals 	only with
work-related disciplinary hearings. 	A decision which 	impedes 	and
dilutes 	that 	basic 	statutory 	right 	through misapplication 	of 	the
facts and law and through hyperbole 	of 	consequences 	is wrong. 	It
2If 	anything, 	it appears 	from footnote 	8 	in the 	lead opinion
that whether such a procedure 	is onerous, 	time 	consuming, 	or even
exists would be 	irrelevant 	to whether 	or not 	EERA could be
invoked.
29

is 	wrong based on PERB 	statutes. 	It 	is 	wrong based on PERB 	case
law, 	and 	it 	is wrong based on sound public policy.
Fortunately, 	while 	there are 	two votes holding 	that 	there
was 	no violation 	of 	EERA when 	the District 	refused 	to provide 	the
magazines 	to Local 	99, 	the 	reasoning of Member Garcia's
concurring 	opinion clearly means 	that 	the 	lead opinion 	is 	in a
minority of 	one 	on the 	issue 	that 	really counts: 	The 	employer's
duty 	to 	furnish 	information extends 	beyond 	the period of 	contract
negotiations 	and applies 	to 	labor-management 	relations 	during 	the
term of 	an agreement 	and 	that 	duty 	is 	not 	limited 	solely by 	the
words 	contained 	in 	said 	collective 	bargaining 	agreement.
In other words, 	Member Garcia 	concluded no EERA violation
because 	he 	concluded 	that 	the 	District 	had 	complied with 	EERA,
not 	because 	EERA did not 	apply. 	While 	I 	do not 	agree with Member
Garcia's 	"totality of 	circumstances" 	approach 	in analyzing
whether or not a violation had occurred, 	what 	is most 	important
is 	his 	reasoning and mine 	in determining 	that 	there was 	such an
EERA based obligation on behalf 	of 	the District. 	Perhaps 	the
light 	at 	the 	end of 	the 	tunnel 	for the union is 	not 	just yet 	the
proverbial 	oncoming 	train.
30