MERC: No PERA Violation When Employer Refuses to Disclose Questions

MERC recently ruled that neither the Freedom of Information Act (“FOIA”) nor the Public Employment Relations Act (“PERA”) requires an employer to provide a union with confidential interview questions used in making a promotion determination, even if the union claims the information is necessary for processing a grievance. County of Macomb, Case No. C11 L-215 (September 26, 2014).

In November 2010, Macomb County posted an opening for a Custodial I position. This position was considered a promotion for certain bargaining unit employees. The county interviewed five applicants and used confidential written interview questions and forms to select a candidate.

The county did not select the bargaining unit employee with the highest seniority. The union challenged the selection process and requested a copy of all interview questions and notes related to the process. The union argued that: (1) the interview questions were subjective, which violated the parties’ master agreement; and (2) the questions and notes were necessary to process a grievance on the employee’s behalf.

Section 10(1)(e) of PERA requires a public employer to provide information upon a union’s request that will permit the union to engage in collective bargaining and administer the contract. Information relating to discipline, wages, work hours, or working conditions is presumptively relevant and must be ordi­narily disclosed upon request. The employer also has a duty to disclose requested information if there is a reasonable probability the information will be of use to the union in meeting its statutory duties. MERC has previously ruled that an employer does not have a duty to provide information that is either confidential or readily available to the union from other sources.

The county complied with all aspects of the union’s request for information under PERA and FOIA, except that it did not provide a copy of the interview questions. The county offered to allow the union leadership to review the questions, but refused to provide a physical copy, asserting the questions were confidential and would be used in future interviews.

The Administrative Law Judge (“ALJ”) concluded that the county breached Section 10(1)(e) of PERA by refusing to give the union a copy of the questions. MERC reversed the ALJ’s decision and determined that the county’s refusal was appropriate because the interview questions fell within PERA’s “confidential” information exception. In reaching this conclusion, MERC relied on two FOIA exemptions to support nondisclosure.

First, FOIA exempts test questions, answers, scoring keys, and other examination data from disclosure. MERC found that this FOIA exemption supported the county’s position that inter­view questions were confidential information.

Second, FOIA exempts from disclosure communi­cations and notes within a public body of an advisory nature that are preliminary to a final determination. When relying upon this exemption, the public body must show that the public interest in encouraging frank communication between public officials clearly outweighs the public interest in disclosure. MERC con­cluded that the county’s interview questions were preliminary to its final determination concerning which employees to promote.  Further, the county’s interest in keeping the interview questions confiden­tial outweighed the union’s interest in disclosure.

MERC found that the county’s response to the union’s request was reasonable. Citing a prior deci­sion, MERC stated: “Nothing in PERA requires a respondent to provide physical copies of [confidential] information to satisfy its duty to bargain.”  MERC fur­ther found that FOIA does not require the requested documents to be both disclosed and copied.

This case illustrates the importance of paying close attention to PERA requests for information sup­porting grievances. Information must be disclosed during the grievance process if requested. While MERC has not determined a specific time within which em­ployers must respond to a union’s information request under PERA, the information must be provided within a reasonable time so that union representatives have sufficient time to prepare. Written requests from the union also should be treated as a request under FOIA in most circumstances. A union’s PERA request and written FOIA request should be reviewed concurrently for an appropriate and timely response.