Colton Joint Unified School District/Rialto Unified School District/San Bernardino City Unified School District (PERB A113E)

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
COLTON 	JOINT 	UNIFIED SCHOOL 	DISTRICT,
Charging 	Party,
v.
ASSOCIATION 	OF 	COLTON EDUCATORS,
Respondent.
Case 	No. 	LA-C0-136
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RIALTO 	UNIFIED 	SCHOOL 	DISTRICT,
Charging 	Party,
v.
RIALTO 	EDUCATION 	ASSOCIATION, 	CTN/NEA,
Respondent.
Case 	No. 	LA-C0-137
PERB 	Order 	No. 	Ad-11
Administrative 	Appea
, July 	22, 	1981
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SAN 	BERNARDINO 	CITY 	UNIFIED 	SCHOOL
DISTRICT,
Charging 	Party,
v.
SAN 	BERNARDINO 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Respondent.
Case 	No. 	LA-C0-138
____________________ )
Appea~ances: 	James 	C. 	Romo, 	Attorney 	(Atkinson, 	Andelson, 	Ruud
& 	Romo) 	for 	Colton 	Unified 	School 	District, 	Rialto 	Unified
School 	District, 	San Bernardino 	City 	Unified 	School 	District;
A. 	Eugene 	Huguenin, 	Jr., 	Attorney 	(California 	Teachers
Association) 	and 	Edward B. 	Hogenson, 	Attorney 	{Citrus 	Belt,
UniServ) 	for 	Association 	of 	Colton 	Educators, 	Rialto 	Education
Association, 	CET/NEA, 	San 	Bernardino 	Teachers 	Association,
CTA/NEA.
Before 	Gluck, 	Chairperson; 	Moore 	and 	Tovar, 	Members.

DECISION
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(hereafter 	PERB 	or 	Board) 	on 	interlocutory 	appeal 	of 	a 	hearing
officer's 	evidentiary 	ruling 	jointly 	certified 	to 	PERE 	by 	the
Association 	of 	Colton 	Educators, 	Rialto 	Education 	Association,
CTA/NEA, 	and 	San 	Bernardino Teachers 	Association, 	CTA/NEA
(hereafter 	respectively 	referred 	to 	as 	the 	Colton 	Chapter, 	the
Rialto 	Chapter, 	and 	the 	San 	Bernardino 	Chapter, 	and
collectively 	referred 	to 	as 	Respondents 	or 	CTA) 	and 	the 	hearing
officer, 	pursuant 	to 	PERB 	rule 	32200.1
lpERB 	rules 	are 	codified 	at 	California Administrative
Code, 	title 	8, 	section 	31000 	et 	seq. 	All 	statutory 	references
are 	to 	the 	Government 	Code 	unless 	otherwise 	specified. 	PERB
rule 	32200 	provides:
Objection 	to 	Ruling 	on 	Motions. 	A party 	may
object 	to 	the 	ruling 	on 	a 	motion 	by 	the
Board 	agent 	and 	request 	a 	ruling 	by 	the
Board 	itself. 	The 	request 	shall 	be 	made 	in
writing 	to 	the 	Board 	agent 	and 	a 	copy 	shall
be 	sent 	to 	the 	Board 	itself. 	The 	board
agent 	may 	refuse 	the 	request 	or 	join 	in 	the
request 	and 	thereby 	certify 	the 	matter 	to
the 	Board 	itself. 	The 	Board 	agent 	may 	join
in 	the 	request 	only 	where 	all 	of 	the
following 	apply:
(a) 	The 	issue 	involved 	is 	one 	of 	law;
(b) 	The 	issue 	involved 	is 	controlling 	in
the 	case; 	and
(c) 	An 	immediate 	appeal 	will 	materially
advance 	the 	resolution 	of 	the 	case.
2

PROCEDURAL
	HISTORY
On
	September
	24, 	1980,
	Colton
	Joint
	Unified
	School
District,
	Rialto
	Unified
	School
	District,
	and 	San
	Bernardino
City
	Unified
	School
	District
	(hereafter
	jointly
	referred 	to
	as
Districts
	or
	Charging
	Parties)
	filed
	unfair
	practice
	charges
against
	Respondents
	which 	were
	subsequently
	amended 	and
consolidated 	for 	hearing.
	The
	common
	thrust
	of 	the 	charges
	is
that,
	in 	preparation 	for 	the
	1980
	negotiations
	with
	the
Districts,
	Respondents
	entered
	into
	a
	mutual
	aid
	commitment
with
	one
	another
	which
	provided,
	inter
	alia,
	that
	none 	would
enter 	into
	an
	agreement
	with
	its
	respective
	District 	until
	each
of
	the
	others
	had
	arrived
	at
	an 	agreement 	and,
	further,
	that
each
	would
	enter 	into
	a
	coordinated
	work
	stoppage 	with
	the
others
	as
	part
	of 	the
	allegedly
	unlawful 	mutual
	aid
commitment.
	All 	of
	the
	above
	conduct
	is
	alleged 	as
	a
	violation
of 	section
	3543.6(c)
	of 	the 	Educational
	Employment
	Relations
Act.2
2The
	Educational
	Employment
	Relations
	Act
	(hereafter
EERA)
	is
	codified
	at
	Government 	Code
	sections
	3540
	et
	seq.
Section
	3543.6
	states,
	in 	pertinent 	part:
It
	shall
	be
	unlawful 	for
	an 	employee
organization 	to:
. 	. . 	. 	. . . . 	. 	. 	. . . . 	. 	. 	. 	. 	. 	. 	.
(c) 	Refuse 	or
	fail
	to
	meet 	and
	negotiate 	in
good
	faith
	with
	a
	public 	school 	employer
	of
any
	of 	the
	employees
	of
	which
	it
	is
	the
exclusive 	representative.
3

On
	Monday,
	January 	19,
	1981,
	a
	hearing
	was
	held
	on
	the
amended
	consolidated
	complaint 	before
	Hearing
	Officer
Bruce Barsook.
	The
	parties
	made
	preliminary 	statements
	setting
forth 	their
	respective 	theories.
	Then,
	the
	Districts 	called	
as
their
	witness
	Joann 	Kuiper,
	a
	certificated
	employee
	in
	the
Rialto
	Unified
	School
	District.
After
	several
	foundational 	questions
	regarding
	Kuiper's
background
	as
	a
	long-time
	employee
	and
	negotiating
	committee
member,
	counsel
	for 	the
	Districts
	established
	that
	Kuiper
	was 	a
member
	of
	the
	Rialto 	Chapter's 	negotiating
	team
	for 	the
	1980
negotiations
	which
	are 	the
	subject of
	the
	instant
	charge=
	He
then
	proceeded
	to
	inquire 	into
	CTA
1 s 	1980
	negotiating
	strategy,
with
	a
	particular
	focus
	on
	alleged 	coordinated
	negotiating
	by
Respondents. 	Before 	the 	matter
	could
	be
	inquired
	into
	in
depth,
	counsel 	for
	Respondent
	objected
	on
	the
	grounds
	that
Charging
	Parties
	were
	seeking
	to
	impermissibly 	query 	an
employee
	witness 	regarding
	internal
	union
	matters
	such
	as
formulation 	of 	negotiating
	strategies
	and
	the 	nature 	of
employee
	participation
	in
	that
	process.
The
	hearing
	was
	adjourned
	at
	that 	point 	to
	enable
	the
parties
	to
	submit
	briefs
	to 	the 	hearing
	officer
	on
	the 	matters
raised
	by
	the 	objection.
	On
	January 	21, 	1981,
	when
	the 	hearing
was 	resumed,
	the 	hearing
	officer
	overruled 	Respondents'
objection
	and
	stated 	his 	intention 	to 	allow 	the
	Districts 	to
pursue 	the 	line 	of 	questioningc 	Respondents 	excepted 	to 	that
4

ruling 	by 	means 	of 	this 	interlocutory 	appeal, 	and 	the 	hearing
was 	adjourned 	pending 	resolution 	thereof. 	For 	the 	reasons 	set
forth 	below, 	we 	hereby 	overrule 	the 	hearing 	officer 	and 	sustain
Respondents' 	objection.
DISCUSSION
In 	support of 	their 	objection, 	Respondents 	raise 	a
constitutional 	argument 	regarding 	rights 	to privacy 	and
associational 	freedom.
While 	we 	are 	mindful 	of 	our 	duty 	to 	interpret 	and
administer 	our 	statute 	in 	a 	manner 	consistent 	with 	relevant
constitutional principles,3 	the 	agency 	lacks 	jurisdiction 	to
adjudicate 	constitutional 	claims 	per 	se. 	Rather, 	our
jurisdiction 	herein 	derives 	wholly 	from 	our 	mandate 	to 	enforce
the 	EERA. 	We 	find 	ample 	guidance 	in 	the 	provisions 	and
policies 	set 	forth 	in 	the 	EERA 	upon 	which 	to 	rule 	on 	the
instant 	objection.
The 	State 	has 	expressed 	an 	interest 	in 	the 	promotion 	of
improved 	employer-employee 	relations 	within 	the 	public 	school
system. 	The 	Legislature 	has 	determined 	that 	this 	interest 	will
be 	furthered 	by 	the 	scheme 	of 	collective 	negotiations 	set 	forth
at 	section 	3540 	of 	EERA.
The 	establishment 	of 	goals 	for 	negotiations, 	and 	the
process 	of 	communication 	involved 	in mapping 	out 	the 	strategy
3Goldin 	v. 	Public 	Utilities 	Commission 	(1979) 	23 	Cal.3d
638 	[153 	Cal.Rptr. 	802].
5

and 	tactics 	for 	the 	attainment 	of 	those 	goals, 	is 	activity
which 	is 	of 	crucial 	importance 	to 	the 	entire 	scheme 	of
employer-employee 	relations 	as 	established 	by 	the 	EERA. 	As
noted 	recently 	by 	an Administrative 	Law Judge 	of 	the 	National
Labor 	Relations 	Board, 	in 	Berbiglia, 	Inc., 	(1977) 	233 	NLRB
1476, 	1495 	[98 	LRRM 1522]:
If 	collective 	bargaining 	is 	to 	work, 	the
parties 	must 	be 	able 	to 	forumulate 	their
positions 	and 	devise 	their 	strategies
without 	fear 	of 	exposure. 	This 	necessity 	is
so 	self-evident 	as 	apparently 	never 	to 	have·
been 	questioned.
Negotiating 	team members 	should 	generally 	not 	be 	compelled
to 	disclose 	the 	content 	or 	substance 	of 	communications
regarding 	planning 	of 	strategy 	and 	tactics 	for 	negotiations.4
In 	the 	instant 	case, 	Charging 	Parties 	allege 	that 	each 	of
Respondents' 	chapters 	unlawfully 	agreed 	with 	the 	others 	to
condition 	the 	execution 	of 	an 	agreement 	by 	any 	Chapter 	with 	its
respective 	District 	upon 	the 	reaching 	of 	an 	agreement 	by 	the
other 	two 	chapters 	with 	their 	respective 	Districts 	and,
further, 	agreed 	to 	combine 	with 	the 	others 	in 	an 	allegedly
unlawful 	strike 	should 	any 	one 	of 	the 	chapters 	fail 	to 	reach 	an
agreement 	with 	its 	District. 	Negotiating 	in 	a manner
consistent with 	the 	placement of 	such 	a 	precondition 	upon 	the
4The 	rationale 	expressed 	here 	is, 	of 	course, 	applicable
to 	compelled 	disclosure 	by 	members 	of 	negotiating 	teams 	of
districts 	and 	employee 	organizations 	alike.
6

execution 	of
	an
	agreement
	could
	constitute 	failure
	to
	negotiate
in
	good
	faith
	within 	the
	meaning
	of
	section
	3543.G(c)
.5
However,
	we
	note
	that
	the
	statute
	does
	not
	proscribe 	the
disposition
	to
	engage
	in
	such
	conduct
	in
	and	
ot	
itself~ 	rather,
it
	renders
	i-t 	"
...
	unlawful
	for
	an
	employee
	organization
to
	•••
	(c)
	refuse
	or
	fail
	to
	meet
	and
	negotiate 	in
	good
	faith
with
	a
	public
	school
	employer
	•...
"6	
It
	is
	the
	conduct
	of
bad
	faith
	negotiating,
	not 	the
	agreement
	to
	engage
	therein
without
	any
	act
	in 	furtherance
	thereof,
	which
	is 	statutorily
proscribed.
Charging
	parties 	traditionally
	demonstrate
	a
	failure
	to
negotiate 	in
	good
	faith
	by
	evidence
	of
	a
	respondent's 	course 	of
conduct
	in 	negotiations,
	which
	is
	available 	to
	charging
	parties
and
	may 	be
	developed 	through
	introduction of
	documents 	and
testimony 	of
	their
	own,
	neutral,
	and
	adverse
	witnesses.7
Ssee, 	for
	example,
	Standard
	Oil
	Co.
	v. 	N.L.R.B.
(6th
	Cir.
	1963) 	322
	F.2d
	40 	[54
	LRRM
	2076].
6section 	3543.6(c},
	supra~
7charging
	Parties
	argue
	that
	the
	fact 	that
	PERB's
procedures 	require
	them
	to 	prosecute
	their
	own
	unfair 	practice
charges 	without 	the 	aid 	of
	an
	independent
	prosecutorial
	arm
	of
the
	Board
	militates 	in
	favor 	of 	allowing
	them
	to
	probe
	intothese 	evidentiary 	areas
	which
	are 	outside 	their 	control.
	We
disagree.
	Labor
	boards
	and
	courts 	infer
	the 	lack 	of 	the
requisite 	intent 	to 	bargain 	in
	good
	faith
	from
	affirmativeevidence 	regarding
	a
	respondent's 	overall
	course 	of 	negotiatingconduct, 	evidence 	which
	is 	available 	to	
the 	Charging
	Partiesherein.
	For 	example, 	see 	N.L.R.B.	
v.	
Almeida Bus
	Lines 	(1st
Cir.
	1964) 	333
	F.2d
	729 	[56
	LRRM
	2548].
7

Evidence 	of 	the 	agreement 	alleged 	here 	would 	tend 	to 	explain
the 	character 	of 	Respondents' 	conduct 	and 	thus 	be 	indicative 	of
bad 	faith. 	However, 	given 	the 	present 	state 	of 	the 	evidence,
with 	no 	showing 	as 	to 	Respondents' 	negotiating 	conduct, 	there
is 	nothing 	to 	be 	explained 	or 	characterized.
In 	the 	instant 	case, 	Charging 	Parties 	have 	not 	introduced
evidence 	of 	Respondents' 	negotiating 	conduct 	which 	would 	tend
to 	demonstrate 	the 	alleged 	existence 	of 	an 	unlawful
pre-negotiations 	agreement. 	Thus, 	no 	showing 	has 	been made
that, 	for 	example, 	Respondents 	merely 	went 	through 	the 	motions
of 	negotiating, 	or 	that 	one 	of 	Respondent 	chapters 	reached
apparent 	agreement 	and 	then 	delayed 	execution 	thereof 	pending
the 	reaching 	of 	an 	agreement 	in 	the 	other 	Districts, 	or 	that 	a
concerted 	work 	stoppage 	or 	slowdown 	was 	called 	for 	or 	carried
out 	by 	Respondents. 	Without 	some 	affirmative 	showing 	of
conduct 	by 	Respondents 	tending 	to 	indicate 	the 	lack 	of 	good
faith, 	we 	are 	not 	prepared 	to mandate 	testimonial 	disclosure 	of
their 	private 	communications 	relating 	to 	negotiations
strategy. 	Under 	the 	circumstances 	of 	this 	case, 	it 	is 	our 	view
that 	to 	compel 	such 	disclosure 	would 	drastically 	chill 	the
exercise 	of 	parties' 	negotiating 	rights 	established 	by 	the 	EERA.
ORDER
Upon 	the 	foregoing 	decision 	and 	the 	record 	as 	a 	whole, 	the
Public 	Employment 	Relations 	Board 	ORDERS 	that:
8

The
	hearing
	officer's
	ruling
	on
	Respondents'
	objection 	to
Charging
	Parties' 	line
	of
	questioning 	regarding
	bargaining
strategy
	and
	tactics
	and
	communications
	relating 	thereto
	is
hereby
	OVERRULED.
	The
	objection
	is
	thus
	SUSTAINED,
	for
	the
reasons
	set
	forth
	in
	this
	decision.
Barbara
	D.
	Moore 	Irene·-!!'ovar
Harry 	Gluck, 	Chairman,
	concurring
	and
	dissenting:
The
	majority 	finds 	that
	a
	pre-negotiation
	agreement
	on
strategy
	and
	tactics 	is
	not 	"conduct" 	under
	the
	EERA.
Apparently,
	however,
	they
	would
	nevertheless 	permit
	a
	charging
party
	to
	compel
	the
	parties
	to
	such 	an
	agreement
	to
	testify
	as
to
	its
	content
	where
	the 	purpose 	of
	such
	inquiry
	is
	to
"explain" 	actual
	conduct
	which 	may 	be
	unlawful
	and
	concerning
which 	some
	foundation 	evidence 	has 	been
	offered.
	I
	find
	it
unnecessary 	to 	decide 	whether 	the
	distinction 	is 	valid 	since,
9

in 	any 	event, 	I 	would 	deny 	a 	party's 	request 	to 	compel
disclosure 	of 	this 	sort.
Appellant 	organizations 	argue 	that 	their 	negotiating
agreement 	is 	entitled 	to 	confidentiality 	as 	a 	matter 	of 	the
internal 	affairs 	of 	their 	respective 	organizations. 	In
essence, 	they 	claim 	a 	privilege 	against 	enforced 	testimony.
Sections 	930-1070 	of 	the 	California 	Evidence 	Code 	set 	forth
those 	privileges 	which 	are 	available 	in 	an 	adjudicatory
hearing. 	The 	"privilege" 	claimed 	by 	appellants 	is 	not 	among
those 	listed 	an~ except 	as 	otherwise 	provided 	by 	statute, 	no
person 	has 	a 	privilege 	(sec. 	911). 	The 	courts 	have 	held 	that
none 	may 	be 	fashioned 	by 	the 	judiciary.l 	Further, 	even 	where
the 	forum 	is 	not 	subject 	to 	the 	provisions 	of 	the 	Code; 	it 	is
bound 	by 	section 	911 	(sec. 	910). 	The 	question, 	then, 	is
whether 	PERB 	can 	properly 	exclude 	testimony 	of 	the 	type 	sought
by 	the 	Districts. 	I 	believe 	that 	EERA, 	read 	in 	its 	entirety,
permits 	such 	a 	finding.
PERB, 	as 	a 	state 	agency, 	must 	administer 	the 	statutes
entrusted 	to 	it 	as 	it 	finds 	them. 	EERA 	section 	3541.3(n)
directs 	this 	Board:
To 	take 	such 	other 	action 	as 	the 	board 	deems
necessary 	to 	discharge 	its 	powers 	and 	duties
and 	otherwise 	to 	effectuate 	the 	purposes 	of
th is 	chapter. 	(Emphasis 	added.)
lMontebello 	Rose 	Co., 	Inc. 	v. 	Agricultural 	Labor
Relations 	Board 	(1981) 	119 	Cal.App.3d 	l; 	Valley 	Bank 	of 	Nevada
v. 	superior 	Court 	(1975) 	15 	C.3d 	652 	(125 	CaLRptr. 	553]. 	-
10

Thus, 	if 	EERA 	intends 	that 	negotiation· planning 	be 	protected
from 	disclosure, 	PERB 	must 	exercise 	its 	adjudicatory 	powers
accordingly.
In 	determining 	whether 	such 	is 	the 	Act's 	intent, 	it 	is 	well
to 	recognize 	that 	EERA 	is 	the 	product 	of 	almost 	fifty 	years 	of
pragmatic 	experience 	with 	labor 	relations 	legislation.2
While 	contemplating 	the 	voluntary 	joint 	resolution 	of
employer-employee 	disputes 	which 	tend 	to 	disrupt 	the 	public
educational 	process, 	the 	Act, 	nonetheless, 	rings 	with
adversarial 	overtones. 	Thus, 	it 	balances, 	often 	precariously,
on 	the 	scales 	of 	competing 	interests.
It 	is 	inherent 	and 	inescapable 	that 	there 	be 	"gamesmanship"
in 	the 	negotiating 	process. 	Contract 	settlements 	are
demonstrations 	of 	the 	fact, 	if 	not 	always 	the 	art, 	of
compromise. 	But 	compromise 	does 	not 	result 	solely 	from 	the
reciprocal 	acts 	of 	reducing 	demands 	and 	increasing 	offers. 	It
is 	both 	an 	aspect 	and 	a 	consequence 	of 	strategy, 	the 	track
along 	which 	the 	process 	moves 	towards 	agreement.
Certainly 	the 	Legislature 	understood 	this 	when 	it 	provided
for 	the 	use 	of 	mediation 	and 	advisory 	factfinding 	after 	both
2The 	Wagner 	Act 	(1935) 	29 	U.S.C. 	Sections 	151-168, 	as
amended 	by 	Pub. 	L. 	No. 	101 	(Taft - Hartley Act). 	See 	San 	Diego
Teachers 	Association 	v. 	Superior 	Court 	(1979) 	24 	Cal.3d 	1 	and
Fire 	Fighters 	Union 	v. 	City 	of 	Vallejo 	(1974) 	12 	Cal.3d 	608
(116 	Cal.Rptr. 	507; 	87 	LRRM 	2453] 	in 	which 	the 	California
Supreme 	Court 	held 	that 	the 	federal 	law 	was 	an 	appropriate
source 	of 	guidance 	in 	the 	interpretation 	of 	comparable
California 	statutes.
11

parties
	had
	reached
	their
	respective
	"final" 	positions.3
PERB
	may
	have
	recognized
	this
	when
	it
	directed
	the
	parties
	to
resume
	negotiations,
	albeit
	on
	limited 	matters,
	even 	where
factfinding
	had
	been
	completed.4
But
	it
	is
	clear 	that
	forced
	exposure
	of
	a
	party's
	strategy
is
	inimical 	to 	the
	negotiating
	process.
	Without
	protection
from
	such
	disclosure,
	parties
	proceeding
	to
	actual 	negotiations
could 	not
	be
	assured
	that,
	by
	complying
	with 	the
	statutory
mandate
	to
	do
	so,
	they
	would
	not
	be
	required 	to 	reveal
	their
objectives
	and
	tactics
	to 	the
	kind
	of 	prying
	inquiry.sought
here.
	Any
	apparent 	delay 	in
	meeting
	at
	the
	table,
	any
	proposal
made 	which
	is
	arguably
	outside 	of
	scope:
	any
	harsh 	language
uttered
	under
	the 	emotional
	tensions
	of
	negotiations,
	could
thus
	be
	characterized
	by 	a
	charging
	party
	as
	"unfair"
	and
thereby
	open
	the
	door
	to 	"explanatory"
	intrusion 	into 	th~
respondents
1
	internal
	plans
	and
	strategies.5	
Caucuses, 	taken
during 	the 	course 	of
	negotiations,
	would 	be
	vulnerable 	to
	such
3EERA
	sections
	3548 	and
	3548.1.
4Modesto
	City
	Schools 	(3/12/80)
	PERB
	Decision
	No.
	IR-12.
Srt 	is
	claimed 	here
	that 	appellants
	bypassed 	the
employer's 	negotiating
	committees
	and 	met
	directly
	with
individual 	school 	board 	members 	on
	negotiable 	matters, 	attendedimpasse 	proceedings 	in
	bad
	faith
	by
	refusing 	to 	cooperate 	with
the 	mediator's 	request 	for
	a
	face-to-face
	meeting 	between 	the
parties, 	filed 	spurious 	unfair 	practice 	charges 	to
	frustratenegotiations
	and
	directed 	harsh
	and
	inflamatory 	remarks
	at
	the
employers.
12

inquiry
	if
	a
	party's
	conduct
	upon
	resumption
	of
	negotiation
	was
made
	to
	look
	arguably
	improper
	by 	a
	well-drawn 	charge
	and 	some
inconclusive 	preliminary
	evidence. 	Indeed, 	the 	very
	act
	of
taking
	caucuses 	could
	be
	alleged
	to
	be 	a
	delaying
	tactic.
	It
is
	not 	inconceivable
	that
	a
	party's
	"bottom
	line" 	negotiating
position
	could
	eventually
	be
	extracted.
	Here,
	for
	example,
appellants
	might
	be
	forced 	to
	reveal
	their
	alleged
	strike
	plans
and
	the 	events
	that
	would
	trigger
	them
	or 	to 	openly
	confess
that
	they
	have
	no
	such
	plans
	at
	all.
It
	seems
	clear 	that
	the
	Legislature
	recognized
	this
essential
	character 	of
	the
	negotiating 	process. 	Section
	3549.1.
of
	the
	Act
	expr~ssly
	exempts
	from
	various
	statutory
	public
meeting 	requirements
	negotiating 	sessions
	and
	meetings 	with
mediators,
	factfinders
	and
	arbitrators.6	
Section 	3549.l(d)
exempts:
Any
	executive 	session 	of 	the
	public
	school
employer
	or
	between
	the
	public
	school
employer 	and
	its
	designated
	representative
for 	the 	purpose 	of
	discussing
	its
	positionregarding
	any
	matter 	within 	the
	scope
	of
6Furthermore, 	mediators,
	who 	may 	be
	called
	in
	by 	PERB,
are
	probably
	exempt	
by	
law 	from
	examination
	on
	matters 	learned
in-
	the 	course 	of
	their 	services. 	California
	Labor 	Code
Section
	65, 	which 	makes
	records
	compiled 	by
	the 	Department
	of
Industrial
	Relations 	in 	the 	course 	of
	its
	mediation 	functions
confidential,
	has 	been
	interpreted
	by
	the 	Attorney 	General 	to
prevent 	mediators
	from
	being 	compelled 	to
	testify
	about
mediation 	meetings.
	51 	Ups.
	Cal.Atty.Gen.
	201. 	See
	also
Tomlinson 	of
	High 	Point.- 	Inc.
	(1947) 	74
	NLRB
	681,
	holding. 	in
part, 	that 	public 	policy 	requires 	federal 	mediators 	not
	be
required 	to
	testify
	on 	such 	matters.
13

representation 	and 	instructing 	its
designated 	representatives.7
It 	is 	logical 	to 	conclude 	that 	the 	Legislature 	desired 	both
parties' 	internal planning 	processes 	and 	preparation 	for
negotiations 	to 	be 	protected 	from 	disclosure 	and 	recognized
that 	existing 	law would 	have 	to 	be 	amended 	to 	permit 	the
employer 	to 	act 	in 	closed 	session. 	The 	same 	affirmative 	steps
were 	not 	taken 	with 	respect 	to 	employee 	organizations 	simply
because 	no 	existing 	statute 	requires 	them 	to 	discuss 	their
plans 	at 	public 	meetings. 	Quite 	likely, 	too, 	the 	need 	for 	such
legislation 	was 	not 	contemplated 	because
[iJf 	collective 	bargaining 	is 	to 	work, 	the
parties 	must 	be 	able 	to 	formulate 	their
positions 	and 	devise 	their 	strategies
without 	fear 	of 	exposure. 	This 	necessity 	is
so 	self· evident ·as 	apparenfiy· -ne_v_e_r_ ·fo- -h·a·ve·.
oeeti questioned. 	Berbiglia, 	Inc. 	(1977) 	2°3"3
NLRB 	1476, 	1495 	(98 	LRRM 	1522]. 	(Emphasis
added).
While 	the 	case 	before 	us 	concerns 	the 	employers' 	effort 	to
inquire 	into 	the 	plans 	of 	the 	exclusive 	representatives, 	there
is 	no 	reason 	to 	believe 	that 	employers 	should 	not 	be
concerned.a 	Strategy 	discussions 	among 	school 	officials 	and
7An 	identical 	prov1s1on 	is 	contained 	in 	the 	Higher
Education 	Employer-Employee 	Relations 	Act, 	Government 	Code
section 	3596. 	Senate 	Bill 	376, 	currently 	in 	the 	California
State 	Assembly, 	would 	amend 	the 	State 	Employer-Employee
Relations 	Act, 	Government 	Code 	section 	3512 	et 	seq. 	to 	include
an 	identical 	provision,
8see 	fn.4, 	majority 	opinion.
14

negotiators 	outside
	the
	closed
	meeting 	would,
	undoubtedly,
	be
vulnerable
	to 	forced
	disclosure.
	Indeed,
	it
	appears
	that
	there
is
	no
	absolute
	evidentiary
	privilege
	covering 	the
	contents
	of
closed 	public
	agency
	meetings.
	Where
	testimony
	has 	been
excluded,
	the
	court
	has
	found
	other
	grounds
	for
	its
	decision.
For 	example,
	in
	County
	of
	Los
	Angeles
	v.
	superior
	Court
	(1975)
13
	Cal.3d
	721 	[119
	Cal.Rptr.
	631], 	the
	California
	Supreme
	Court
found
	impermissible
	plaintiff's
	effort
	to 	inquire
	into
	the
supervisors'
	motives
	and
	deliberations
	leading 	to
	the
	adoption
of 	certain
	negotiated
	labor
	agreements
	following
	strike 	threats
by
	various
	employee
	organizations.
	But,
	it
	is 	clear 	that
	the
Court
	based
	its
	decision
	on
	the
	constitutional
	separation 	of
powers 	between
	legislature
	and
	judiciary.
	Fermi
tting·
the
plaintiff's
	discovery
	would 	be
	inimical 	to 	the
fundamental,
	historically
	enshrined
	legal
principle 	that
	precludes
	any
	judically
authorized 	inquiry
	into 	subjective
	motives
or 	mental 	processes 	of
	legislators.
	(p. 	726) \
Yet,
	County
	of
	Los
	Angeles,
	supra,
	though
	it
	cannot
	be
	said 	to
stand
	as
	authority
	for 	the 	proposition 	put 	forth 	here, 	provides
a
	useful
	analogy.
	Just
	as 	the 	Constitution 	represents 	the
public 	interest
	in
	a
	certain
	system
	of
	state
	government, 	so
EERA
	represents 	the 	public
	interest
	in
	a
	system 	of
employer-employee
	relations
	as 	the
	means
	of 	minimizing
disruption 	of 	the 	educational 	process 	caused
	by
	labor
disputes.
	And 	even 	as
	confidentiality 	is 	essential
	to 	the
15

deliberative
	processes 	of
	the
	legislature
	and
	the
	courts,
	so
	it
is
	to
	the 	formulation
	of
	the
	parties'
	negotiating
	plans
	and
strategies.
	Indeed, 	as
	Berbiglia,
	supra, 	implies,
confidentiality 	is
	a
	"fundamental,
	historic
	principle" 	of
	labor
negotiations.9
Finally,
	I
	would
	note
	that 	rejecting
	the
	District's
	request
would
	present
	little,
	if
	any,
	damage
	to
	this
	Board's
adjudicatory
	process
	or
	to
	its
	ability
	to 	provide
	to
	a
	charging
party
	an
	effective
	means
	of 	pursuing
	its
	charge.
	Where
	the
issue
	is
	actual
	conduct, 	as
	is
	the 	case
	here,
	necessary
information
	as
	to
	the
	character 	of
	that
	conduct
	is
	almost
always
	accessible
...
	without 	delving 	deeply
	into
	specificultimate 	factual
	circumstances
	and
	such
searching
	probes 	ought
	to
	be
	avoidedwherever
	possible.IO
I
	conclude
	that
	in
	this
	combination
	of 	public 	policy,
	the
essential
	character
	of
	collective 	negotiation
	and
	legislative
action,
	one
	may
	reasonably 	find
	a
	legislative 	intent
	to 	prevent
intrusion
	by
	one
	party 	to 	negotiation 	into
	the
	other's
9rn Montebello
	Rose 	Company,
	Inc.,
	supra, 	the 	Court
required 	production 	of 	written
	communications 	between
	the
employer's 	general
	manager 	and
	its
	attorney-negotiator 	relatingto 	conduct 	of 	negotiations.
	However,
	the
	Agricultural
	Labor
Relations
	Act
	expressly
	makes
	the 	Evidence
	Code
	applicable 	to
the 	board's 	unfair 	practice 	proceedings. 	Further, 	that
	Act
contains
	no
	provision
	comparable 	to
	EERA
	section 	3549.l(d).
lOrn
	re: 	Lifschutz
	(1970)
	2.C.3d
	415 	[85
	Cal.Rptr. 	829].
16

negotiating
	plans
	and
	strategy.
	In
	furtherance 	of
	its
obligation
	to
	effectuate
	the
	legislative 	intent,
	PERB
	should
reject
	the
	Districts'
	request.
(
17