All notes for Subtopic 1105.15000 – Privileged Communications
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| A448E | Community Learning Center Schools, Inc. 1105.15000: CASE PROCESSING PROCEDURES; EVIDENCE; Privileged Communications Rules of privilege apply in unfair practice hearings. By asserting its reliance on advice of counsel as a defense to interference and retaliation allegations, the respondent waived the attorney-client and attorney work-product privileges with respect to that advice. However, because the scope of any waiver of privilege must be narrowly construed, the Board remanded the matter to the ALJ for greater clarification of the scope of any potential waiver as to documents sought from the respondent’s attorneys by the charging party via a subpoena duces tecum. more or view all topics or full text. | 42 | 16 | 06/29/17 |
| A448E | Community Learning Center Schools, Inc. 1105.15000: CASE PROCESSING PROCEDURES; EVIDENCE; Privileged Communications Rules of privilege apply in unfair practice hearings. By asserting its reliance on advice of counsel as a defense to interference and retaliation allegations, the respondent waived the attorney-client and attorney work-product privileges with respect to that advice. However, because the scope of any waiver of privilege must be narrowly construed, the Board remanded the matter to the ALJ for greater clarification of the scope of any potential waiver as to documents sought from the respondent’s attorneys by the charging party via a subpoena duces tecum. more or view all topics or full text. | 42 | 16 | 06/29/17 |
| A490E | Pasadena Area Community College District 1105.15000: CASE PROCESSING PROCEDURES; EVIDENCE; Privileged Communications The qualified negotiations protection is not narrowly construed to maintain confidentiality only for pending negotiations, though PERB may consider the status of negotiations as part of all circumstances in its balancing test. more or view all topics or full text. | 46 | 109 | 01/27/22 |
| A490E | Pasadena Area Community College District 1105.15000: CASE PROCESSING PROCEDURES; EVIDENCE; Privileged Communications PERB has repeatedly recognized a protection for both public employers’ and unions’ internal negotiation strategy communications. (See, e.g., County of Tulare (2020) PERB Decision No. 2697-M, pp. 14-15, fn. 9 [an “employer benefits . . . from the . . . limited privilege that protects both unions and employers from being forced to reveal to the other party their internal collective bargaining strategies or tactics”]; Cal Fire Local 2881 (Tobin) (2018) PERB Decision No. 2580-S, p. 4 [PERB follows Berbiglia, supra, 233 NLRB 1476 by protecting certain confidential bargaining communications].) more or view all topics or full text. | 46 | 109 | 01/27/22 |
| 2797E | Carpinteria Unified School District 1105.15000: CASE PROCESSING PROCEDURES; EVIDENCE; Privileged Communications To the extent the requested records include notes covering internal union meetings or caucuses in which no District representatives were present, they are subject to a qualified protection. In Colton Joint Unified School District/Rialto Unified School District/San Bernardino City Unified School District (1981) PERB Order No. Ad-113 (Colton), PERB found that a bargaining party generally need not disclose its internal strategy discussions regarding negotiations or grievance handling. (Id. at p. 6, citing Berbiglia, Inc. (1977) 233 NLRB 1476, 1495; see also County of Tulare (2020) PERB Decision No. 2697-M, pp. 14-15, fn. 9; Cal Fire Local 2881 (Tobin) (2018) PERB Decision No. 2580-S, p. 4.) Pursuant to this qualified protection, we balance the negotiating party’s interest in maintaining confidentiality versus the competing interests in disclosure, if any. (Colton, supra, PERB Order No. Ad-113, p. 8.) CAUSE’s internal notes from bargaining sessions fall under this protection, particularly as the District’s tenuous arguments for relevance weigh against disclosure. more or view all topics or full text. | 46 | 86 | 11/16/21 |
| 2782M | Operating Engineers Local Union No. 3, AFL-CIO (Wagner et al.) 1105.15000: CASE PROCESSING PROCEDURES; EVIDENCE; Privileged Communications Because the statutory litigation privilege is not an evidentiary privilege, it does not bar a court from admitting into evidence statements made during an official proceeding. (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1168 [noting that the statutory litigation privilege “does not create an evidentiary privilege” and that “when allegations of misconduct properly put an individual’s intent at issue in a civil action, statements made during the course of a judicial proceeding may be used for evidentiary purposes in determining whether the individual acted with the requisite intent”].) more or view all topics or full text. | 46 | 35 | 07/26/21 |
| 2580S | Cal Fire Local 2881 1105.15000: CASE PROCESSING PROCEDURES; EVIDENCE; Privileged Communications Although PERB follows federal precedent protecting certain communications under specified circumstances (see, e.g., State of California (Department of Corrections) (1995) PERB Decision No. 1104-S, pp. 16-20 [endorsing quasi-privileges/protections under Cook Paint and Varnish Co. v. NLRB (D.C. Cir. 1981) 648 F.2d 712 and Johnnie's Poultry Co. (1964) 146 NLRB 770]; Colton Joint Unified School District/Rialto Unified School District/San Bernardino City Unified School District (1981) PERB Order No. Ad-113, p. 6 [endorsing protections under Berbiglia, Inc. (1977) 233 NLRB 1476]), the California Evidence Code presently includes no privilege protecting communications between a grievant and a non-attorney union representative. (American Airlines, Inc. v. Superior Court (2003) 114 Cal.App.4th 881, 888–896.) more or view all topics or full text. | 43 | 43 | 08/17/18 |
| 2558E | Children of Promise Preparatory Academy 1105.15000: CASE PROCESSING PROCEDURES; EVIDENCE; Privileged Communications Statements made in settlement conferences convened by PERB are inadmissible as evidence in an administrative hearing. more or view all topics or full text. | 42 | 124 | 03/27/18 |
| 1411S | California State Employees Association (Hard and Hackett) 1105.15000: CASE PROCESSING PROCEDURES; EVIDENCE; Privileged Communications CSEA cited no applicable case law, nor any statutory provisions, that would justify the sealing of the so-called "Spy Memos" on the basis of confidentiality. The mere assertion of confidentiality is insufficient to compel the relief requested by CSEA in an unfair practice proceeding; pp. 13-15. The "Spy Memos" did not constitute a trade secret under the California Uniform Trade Secrets Act. The documents contain no "formula, pattern, compilation, program, device, method or process." Furthermore, no evidence was presented that these documents have any economic value. Finally the memos appear to have been widely distributed prior to their introduction into evidence here; pp. 15-16. more or view all topics or full text. | 25 | 32006 | 10/10/00 |
| A113E | Colton Joint Unified School District/Rialto Unified School District/San Bernardino City Unified School District 1105.15000: CASE PROCESSING PROCEDURES; EVIDENCE; Privileged Communications Employer may not inquire into union's negotiating strategy in order to show illegal agreement by several unions. Proof that unions conspired not to settle with their separate employers until all had reached agreement can be made through evidence of conduct. Absent an affirmative showing of conduct to indicate lack of good faith, there is no basis for compelled testimony about union's negotiating strategy. more or view all topics or full text. | 5 | 12100 | 07/22/81 |
| 0778E | Carlsbad Unified School District 1105.15000: CASE PROCESSING PROCEDURES; EVIDENCE; Privileged Communications School board may not rely on confidentiality of closed meetings for personnel decisions to avoid proving nondiscriminatory intent in discrimination case. more or view all topics or full text. | 14 | 21004 | 11/21/89 |