PERB Order No. A117E•Modesto City Schools and School District (PERB A117E)
Modesto City Schools and School District (PERB A117E)
PERB Order No. A117ECalperb15 oct. 1981
Texte intégral
STATE OF CALIFORNIADECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD MODESTO TEACHERS ASSOCIATION CTA/NEA, Charging Party, APPELLANT V • MODESTO CITY SCHOOLS AND SCHOOL DISTRICT, Respondent. ) ) ) ) ) ) ) ) ) ) ) ____________________ ) Case NO. S-CE-402 Request to subpoena Board Agent Administrative Appeal PERB Order No. Ad-117 October 15, 1981 Appearances: Kenneth w. Burt II, Attorney for Modesto Teachers Association; Patricia w. Mills, Attorney (Breon, Galgani & Godino) for Modesto City Schools and School District. Before Gluck, Chairperson; Jaeger and Moore, Members. DECISION The Modesto Teachers Association (hereafter MTA or Association) appeals a hearing officer's refusal to subpoena the chief administrative law judge of the Public Employment Relations Board (hereafter PERB or Board). The Association asserts that his testimony as to certain discussions which took place during a pre-hearing informal conference would corroborate evidence offered by its witness and therefore is essential to establish its defense against the Modesto City Schools and School District's (hereafter District) motion to dismiss.
PERB rule 32150(e) provides:l Upon a finding of the Board itself that a Board agent or a Board document is essential to the resolution of a case and that no rational decision of the Board can be reached without such agent ••• the Board itself shall willingly produce the agent ••• if subpoenaed to do so by any party to the dispute. MTA has not stated the factual basis for its assertion that the testimony of the agent is essential to the resolution of the case nor described the subject matter of the chief administrative law judge's expected testimony. we conclude from the District's statements supporting the request for the subpoena that the testimony would go to the settlement discussions which took place between the parties at the informal conference. We deny charging party's request for the subpoena. The Association has not demonstrated that the agent's testimony is essential to the resolution of the Motion to Dismiss nor that a rational decision cannot be reached without the testimony. Indeed, it merely asserts that his testimony would only corroborate that which is already in the record. Because there are other witnesses from whom credibility determinations can be made, we do not view the agent's testimony as "essential." 1PERB rules are codified at California Administrative Code, title 8, section 31000 et seq. 2
Moreover,
public policy
favoring the
confidentiality
of
settlement discussions
persuades
us
that
it
would be
improper
to
issue
the
subpoena
in
this
case.2
To
expose
the
content
of
settlement negotiations to
the
light
of
a
public
hearing
may
well discourage the
parties
from
sincerely
engaging
in
such
discussions.3
The
role
of
a Board
agent
in
the
settlement
process
is
similar to
that
of
a
mediator
in
that
he/she
assists
the
parties
in
attempts to resolve
their
disputes
without
resort
to
a
formal
hearing.
Participation
in the informal conference
without
protection against
forced
disclosure
of the
content of
discussions occurring there
would
defeat
the
very purpose
of
the process
and
the
agent's participation.4
The
appeal
is
therefore
DENIED.
PER CURIAM
2
nuties of
the agent
presiding
at
the informal conference
include to "Explore the
possibility
of
and
facilitate
the
voluntary resolution
and
settlement of the case through
informal conferences or other
means.
11
PERB
rule
32620 (b) (7) .
3
see
California
Evidence Code
section
1152.
4
see
Tomlinson
of
High
Point, Inc.
{1947) 74
NLRB
681.
Also
California tabor
Code
section
65.
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