Decision A490E – Pasadena Area Community College District
LA-CE-6601-E
Decision Date: January 27, 2022
Decision Type: Administrative Appeal
Description: This case came before the Board on an interlocutory appeal filed by the Pasadena Area Community College District to an administrative law judge’s (ALJ) order compelling it to produce an e-mail to the Pasadena City College Faculty Association that the District claims must be partially redacted.
The parties’ dispute involves a single e-mail that the District asserted includes internal bargaining strategy and is thus protected from disclosure by PERB precedent. The District provided the Association with a partially redacted version of the e-mail, together with a privilege log covering the e-mail and several other items. After the parties reached agreement regarding the other privilege log entries, they asked the ALJ to decide whether the District had to produce the e-mail in unredacted form. The Association asked the ALJ to review the unredacted e-mail in camera before ruling. The ALJ denied the Association’s request for in camera review and ordered the District to produce the e-mail without redactions. The District appealed the part of the ALJ’s order directing production, and the ALJ certified the interlocutory appeal directly to the Board.
The District raised two legal questions for Board review: (1) whether the qualified negotiations protection may be overcome by weighing the asserted protection against the need for disclosure; and (2) whether the qualified negotiations protection is intended to be narrowly construed only to maintain confidentiality of each party’s collective bargaining strategy during pending negotiations. The Board relied on PERB and federal precedent, and incorporated important policy considerations to (1) hold that the qualified negotiations protection is not limited to maintaining confidentiality for pending negotiations; and (2) explain the balancing test for the qualified negotiations protection.
Disposition: The Board granted the District’s appeal, reversed the ALJ’s order that the District disclose unredacted records to the Association, and directed the ALJ to review the relevant records in camera, then apply the balancing test set forth in the Board’s Order and provide the parties with a new ruling.
Perc Vol: 46
Perc Index: 109
Decision Headnotes
1104.01000 – In General; Conduct of Hearing
When discovery disputes surrounding allegedly protected documents arise under the current regulatory scheme, ALJ’s may undertake in camera review of the disputed documents, apply the balancing test, and ultimately rule on whether the records should be disclosed. PERB Regulation 32170, subdivision (b)(12) resolves any ambiguity about Board agents’ ability to conduct in camera review that may have arisen from State of California (Department of Corrections) (2009) PERB Order No. Ad-382-S.
1105.15000 – 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].)
1105.15000 – 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.
1106.01000 – In General
A subpoena that merely asks for all documents relevant to a claim or defense is overbroad and must be modified.
1106.01000 – In General
When discovery disputes arise under the current regulatory scheme, ALJ’s may undertake in camera review of the disputed documents, apply the balancing test, and ultimately rule on whether the records should be disclosed. PERB Regulation 32170, subdivision (b)(12) resolves any ambiguity about Board agents’ ability to conduct in camera review that may have arisen from State of California (Department of Corrections) (2009) PERB Order No. Ad-382-S.