Modesto City Schools and School District (PERB A117E)

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.
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____________________
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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.
3