Decision A448E – Community Learning Center Schools, Inc.

SF-CE-3105-E

Decision Date: June 29, 2017

Decision Type: Administrative Appeal

Description:  PERB ALJ requested that the Office of the General Counsel seek enforcement of NEA’s subpoena duces tecum seeking disclosure of documents from the Community Learning Center Schools, Inc.’s legal counsel.

Disposition:  The Board declined to seek enforcement of the subpoena in its current state and remand this matter back to the ALJ for greater clarification on the scope of the subpoena and any potential waivers as well, as the proper time span of the subpoena as a whole.

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Perc Vol: 42
Perc Index: 16

Decision Headnotes

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

Although motive is not relevant to a prima facie interference allegation, it may be part of the respondent’s affirmative defense, such as a legitimate business purpose. In such cases, PERB analyzes the proffered defense similar to a “mixed motive” discrimination case, by determining not only whether the employer’s stated justification is legitimate, but also whether it was the reason for the employer’s action. Thus, motive and specifically whether a respondent’s proffered motive is pretextual, may be an issue relevant to an employer’s defense to an interference allegation.

1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
1104.02000 – Motions

The Board affirmed the ALJ’s partial denial of a motion to quash a subpoena duces tecum seeking, among other items, advice, counsel and opinion documents provided by, sought from, or received by the respondent’s attorneys regarding conflict of interest issues, teachers serving on charter school boards, and union avoidance strategies. The Board found the requested documents relevant because the respondent had asserted its reliance on advice of counsel as a defense. The Board remanded the matter to the ALJ to address the scope of any waiver of attorney-client or attorney work-product privileges with respect to the requested documents.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.15000 – 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.

1106.00000 – CASE PROCESSING PROCEDURES; DISCOVERY
1106.02000 – Subpoenas; Investigatory Subpoenas; Refusal to Obey; Contempt

PERB Regulation 32150, subdivision (d), governing motions to quash a subpoena state that the Board “shall revoke the subpoena if the evidence requested to be produced is not relevant to any matter under consideration in the proceeding or the subpoena is otherwise invalid.” The Board affirmed the ALJ’s partial denial of a motion to quash a subpoena duces tecum seeking, among other items, advice, counsel and opinion documents provided by, sought from, or received by the respondent’s attorneys regarding conflict of interest issues, teachers serving on charter school boards, and union avoidance strategies. The Board found the requested documents relevant because the respondent had asserted its reliance on advice of counsel as a defense.

1106.00000 – CASE PROCESSING PROCEDURES; DISCOVERY
1106.02000 – Subpoenas; Investigatory Subpoenas; Refusal to Obey; Contempt

Under PERB Regulation 32150, subdivision (f), the Board must seek court enforcement of a subpoena upon recommendation of the General Counsel unless in the judgment of the Board the enforcement of such subpoena or notice would be inconsistent with law or the policies of the applicable Act. The Board declined to seek enforcement of a subpoena duces tecum seeking, among other items, advice, counsel and opinion documents provided by, sought from, or received by the respondent’s attorneys regarding conflict of interest issues, teachers serving on charter school boards, and union avoidance strategies. The Board instead remanded the matter to the ALJ to clarify the scope of any potential waiver of the attorney-client or attorney work-product privileges, as well as the proper time span and scope of the subpoena as a whole.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.03000 – Regulations Considered (By Number) (Continued)

PERB Regulation 32150, subdivision (d), governing motions to quash a subpoena state that the Board “shall revoke the subpoena if the evidence requested to be produced is not relevant to any matter under consideration in the proceeding or the subpoena is otherwise invalid.” The Board affirmed the ALJ’s partial denial of a motion to quash a subpoena duces tecum seeking, among other items, advice, counsel and opinion documents provided by, sought from, or received by the respondent’s attorneys regarding conflict of interest issues, teachers serving on charter school boards, and union avoidance strategies. The Board found the requested documents relevant because the respondent had asserted its reliance on advice of counsel as a defense.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.03000 – Regulations Considered (By Number) (Continued)

Under PERB Regulation 32150, subdivision (f), the Board must seek court enforcement of a subpoena upon recommendation of the General Counsel unless in the judgment of the Board the enforcement of such subpoena or notice would be inconsistent with law or the policies of the applicable Act. The Board declined to seek enforcement of a subpoena duces tecum seeking, among other items, advice, counsel and opinion documents provided by, sought from, or received by the respondent’s attorneys regarding conflict of interest issues, teachers serving on charter school boards, and union avoidance strategies. The Board instead remanded the matter to the ALJ to clarify the scope of any potential waiver of the attorney-client or attorney work-product privileges, as well as the proper time span and scope of the subpoena as a whole.