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Non-Union Member Employees Must be Given Notice of Personal Information Disclosed to Unions

Legal Alerts

Court Says Chance to Object Must be Offered

MARCH 1, 2011

The Court of Appeal has held that in light of employees’ right to privacy pursuant to the California Constitution, non-union member employees must be provided a notice and the opportunity to object to the disclosure of their names, home addresses and telephone numbers disclosed to the union. The opinion was issued last week in County of Los Angeles v. Los Angeles County Employee Relations Commissions, et al.

Service Employees International Union, Local 721 (Union), which has a statutory duty to represent even the non-Union member County employees, sought the names, addresses and home telephone numbers of non-Union member employees of Los Angeles County (County) during collective bargaining.  The County refused, and the Union filed an unfair labor practice charge with the Los Angeles County Employee Relations Commission (Commission).  In accordance with decisions from  the National Labor Relations Board and the California Public Employment Relations Board, the Commission ruled that the Union was entitled to the personal information of non-Union member employees who are part of the bargaining unit.  The Commission also relied on federal law in determining that disclosure of the personal information of non-Union members would not violate any privacy rights.

Pursuant to a writ of mandate sought by the County, the Superior Court decided that the Commission had erroneously relied on traditional labor law in ordering the disclosure of the non-Union members’ personal information.  The Superior Court concluded that pursuant to California’s constitutional right to privacy, (1) the County employees had a legally protected privacy interest in their personal information, (2) the County employees had a reasonable expectation of privacy that their personal information would not be further disseminated by their employer, the County, and (3) a serious invasion of privacy would occur if the non-Union members’ personal information were disclosed.  Therefore, the Superior Court applied the Hill test established by the California Supreme Court which balances the serious invasion of a legally protected privacy interest against any countervailing interest.  The Superior Court, in deciding whether the Union’s need for the information outweighed the non-Union members’ right to privacy, concluded that the public policy interests favoring collective bargaining outweighed any privacy interest of the non-Union member employees. 

The Court of Appeal reversed the Superior Court’s decision ordering outright disclosure of the non-Union member’s personal information in light of the procedural protections afforded to third parties whose Constitutional right to informational privacy is at stake. The Court of Appeal concluded that “County employees have a reasonable expectation that the personal information they provide to their employer will remain confidential and not be disseminated without notice.  These employees do not forfeit their privacy rights by accepting employment with a public agency whose employees have a collective right to unionize but an individual right not to join.”  Because the names, addresses and home telephone numbers of non-Union members implicate their privacy interest in the sanctity of the home and in order to limit the intrusion of privacy, the Court of Appeal remanded the case to the Superior Court to direct the County to provide notice and an opportunity for the non-Union members to object before their personal information is disclosed to the Union, a procedure previously utilized in class actions to obtain potential class members’ information and in the discovery process in employment litigation.

Accordingly, employers should be mindful of the privacy rights of non-union member employees when deciding to disclose personal information to unions and consider first providing notice and an opportunity to object or obtaining the consent of the non-union member employees prior to disclosure.  Upon an objection to disclosure by a non-union member employee, where the employer does not have an employee relations commission, the union would likely challenge the objection through PERB as an unfair practice charge or by filing a court action.

If you have any further questions regarding this court decision, please contact William Floyd, Nicole Elemen or any attorney in the Best Best & Krieger’s Labor and Employment practice group.

Disclaimer: BB&K e-Bulletins are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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