Community Learning Center Schools, Inc. (PERB A448E)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
NEA ALAMEDA COMMUNITY LEARNING
CENTER UNITED,
Charging Party,
v.
COMMUNITY LEARNING CENTER SCHOOLS,
INC.,
Respondent.
Case No. SF-CE-3105-E
PERB Order No. Ad-448
June 29, 2017
Appearances: California Teachers Association by Laurie Burgess, Attorney, for NEA
Alameda Community Learning Center United; Law Offices of Young, Minney & Corr by
Maryisa S. Okreglak and Chastin Pierman, Attorneys, for Community Learning Center
Schools, Inc.
Before Gregersen, Chair; Winslow and Banks, Members.
DECISION
GREGERSEN, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on a request pursuant to PERB Regulation 32150, subdivision (f),1 by a
PERB Administrative Law Judge (ALJ) to the Office of the General Counsel to seek
enforcement of a subpoena duces tecum (Subpoena). The NEA Alameda Community Learning
Center United’s (NEA) Subpoena seeks disclosure of documents from the Community
Learning Center Schools, Inc.’s (CLCS) legal counsel Young, Minney & Corr, LLP (YMC).
Based on the facts and relevant legal authority, the Board denies the request for enforcement of
1 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

________________________
the Subpoena, and remands the matter to the ALJ for clarification as to each request prior to
the Board seeking court enforcement of the Subpoena consistent with the analysis below.
Background
CLCS is a public school employer. NEA is the exclusive representative of two
bargaining units: one of certificated employees and one of classified employees at CLCS. On
behalf of the certificated bargaining unit, on December 22, 2014, NEA filed an unfair practice
charge alleging that CLCS both retaliated against and interfered with employee rights to be
represented, and NEA’s rights to represent the employees by removing teachers from the
CLCS governing board (CLCS Board) because of NEA’s unionization efforts in violation of
EERA section 3543.5, subdivision (a).2 On August 19, 2015, NEA filed a first amended
charge. On October 20, 2015, the Office of the General Counsel issued a complaint solely on
the interference allegation.3 After the parties met for an informal conference and failed to
reach an agreement, the matter was scheduled for formal hearing. The formal hearing in this
matter was heard on February 26, May 31, June 1 and August 15, 2016.
At the formal hearing, CLCS presented evidence showing that it had sought a legal
opinion from YMC (YMC Opinion) regarding the legality of teachers serving on the CLCS
2 EERA is codified at Government Code section 3540 et seq. Unless otherwise
specified, all statutory references herein are to the Government Code.
3 Though unclear, it appears as though the retaliation allegation was never addressed by
the Office of the General Counsel. The charging party is entitled to a warning letter
identifying any deficiencies before the charge is dismissed. (PERB Regulation 32620, subd.
(d); Hartnell Community College District (2015) PERB Decision No. 2452, p. 31; County of
San Joaquin (2003) PERB Decision No. 1570-M, p. 8.) While charge allegations that are not
investigated before dismissal must be remanded either for further investigation or for issuance
of a complaint (Trustees of the California State University (2014) PERB Decision No. 2384-H
(Trustees of CSU), pp. 4-5; County of Alameda (2006) PERB Decision No. 1824-M, pp. 4-5),
this matter has not come before us on either an appeal of a dismissal or on exceptions to a
proposed decision. Therefore, we do not, at this stage opine as to whether this allegation should
be remanded back to the Office of the General Counsel for further investigation.
2

Board following recognition of NEA as the exclusive representative. The YMC Opinion was
then admitted into evidence by CLCS and a partner of the firm testified regarding the YMC
Opinion. The YMC Opinion discusses issues relating to conflict of interest provisions under
the Political Reform Act, Corporations Code, and Government Code section 1090. In addition,
CLCS witnesses testified that the principal factor in their decision to remove teachers from the
CLCS Board was the YMC Opinion, and was not based on anti-union animus.
On or about July 29, 2016, after three days of formal hearing, NEA served YMC with a
Subpoena seeking the disclosure of various documents relating to the YMC opinion, as well as
documents that may demonstrate that YMC—in preparing the legal opinion—harbored anti-
union animus. The documents requested in NEA’s Subpoena included advice, counsel and
opinion documents provided by, sought from, or received by YMC regarding conflict of
interest issues, teachers serving on charter school boards, and union avoidance strategies.
Thereafter, YMC filed objections and a motion to revoke and/or quash the Subpoena,
and NEA filed briefs in support of enforcing the Subpoena. The parties also filed
supplemental briefing regarding enforcement of the subpoena following a hearing before the
ALJ.
On September 30, 2016, the ALJ issued an order denying YMC’s motion to quash in
part as further explained below. The ALJ ruled that PERB had jurisdiction to issue the
requested Subpoena, finding only those documents generated or received after June 2014 to be
materially irrelevant. On September 28, 2016, YMC filed a response to the ALJ order.
Because it claims the Subpoena requires disclosure of privileged materials, YMC refuses to
comply with the ALJ order. On September 30, 2016, the ALJ transmitted a request to the
3

________________________
Office of the General Counsel recommending enforcement of the Subpoena, pursuant to PERB
Regulation 32150, subdivision (f).4
The ALJ’s Order
The ALJ summarized NEA’s requests as follows, noting that all the requests were for
the time period of January 1, 2009 to the present:5
Request No. 1: advice, counsel, and opinion documents provided
by, sought from, or received by YMC regarding conflict of
interest issues (i.e., law firms, government agencies, California
Charter School Association, etc.). For example, NEA seeks a
YMC letter to the law firm of Best, Best and Krieger that
prompted an opinion letter from the latter firm on the conflict of
interest issue, which letter was offered into evidence. It also seeks
other “non-privileged” communications between YMC and other
third parties regarding the subject.
4 PERB Regulation 32150, subdivision (f) provides:
Upon the failure of any person to comply with a subpoena, the
Board may apply to an appropriate superior court for an order
requiring such person to appear and produce evidence and give
testimony regarding the matter under investigation or in question.
Requests for compliance with a subpoena shall be made to the
Board agent assigned the case. If the Board agent deems it
appropriate, he or she shall promptly recommend to the General
Counsel that the Board seek enforcement of the subpoena. A
request that the Board apply for an order may be made by the
General Counsel at any stage of the proceedings. The Board shall
seek enforcement on 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. If the request is granted, the record will
remain open in the matter until the Board determines that the
court order will not be forthcoming, or that further delay would
frustrate the policies of the applicable Act, or until the testimony
sought is included in the record.
5 The original subpoena identified six categories of documents. The ALJ consolidated
those six requests into five. For purposes of providing clarity and consistency, we discuss the
requests as renumbered by the ALJ.
4

________________________
Request No. 2: determination and opinion documents regarding
teachers serving on charter school governing boards (i.e., YMC
internal memoranda, email communications, letters, advisories,
and Powerpoint materials). NEA seeks to explore the extent of
YMC's knowledge of the trend for charter schools to affirm the
right of teachers to serve on charter school governing boards.
Request No. 3: advice, counsel and opinion documents
transmitted between CLCS and YMC relating to conflict of
interest issues (i.e., including but not limited to the issue of
teachers serving on governing boards).
Request No. 4: documents generated, received or circulated
internally among YMC attorneys regarding union avoidance
strategies. NEA seeks communications and discussions leading to
the drafting of communications and publications regarding union
avoidance.
Request No. 5: documents regarding union avoidance strategies
in the form of lectures, presentations, trainings, continuing legal
education, meetings, publications, inter-office memoranda,
emails, etc.
(ALJ Order Denying Motion to Quash Subpoena Duces Tecum dated September 15, 2016,
p. 3; footnotes omitted (ALJ Order Denying).)
The ALJ denied, in part, the motion to quash, but restricted the time period for the
documents requested from January 1, 2009 to June 2014. The ALJ found, however, that NEA
stated a viable claim under a “cat’s paw” theory,6 and that the information sought by NEA in
the subpoena was relevant to test that theory. The ALJ further noted that CLCS had introduced
evidence disputing anti-union animus, thereby placing that matter at issue. Regarding the
relationship between CLCS and its law firm YMC, the ALJ found that although YMC is not an
6 The “cat’s paw” refers to a fable, likely Aesop’s, about a cat and a monkey watching
some chestnuts roasting on a fire. (Reeves v. Safeway Stores (2004) 121 Cal.App.4th 95, 116, fn.
14.) The monkey convinced the unwitting cat to swipe the chestnuts off the fire, burning its paw
in the process. When the cat turned to retrieve its bounty, it saw that the monkey had already
opened and eaten all of the chestnuts. (Ibid.) In legal parlance, the “cat’s paw” doctrine allows
for imputation of retaliatory animus where “an intermediary, for whatever reasons, simply
carried out the will of the actuator.” (Ibid.)
5

________________________
employee of CLCS, it is an agent because CLCS retained YMC to provide a legal opinion and
relied on YMC in its decision-making process. 	The ALJ found that there was a waiver of
attorney-client privilege because “CLCS ha[d] disclosed and interjected a privileged
communication into the record, thereby waiving the privileges.” (ALJ Order Denying, p. 5.)
After the Subpoena issued, NEA withdrew its requests for communications between
YMC and clients other than CLCS. The ALJ acknowledged this action and stated in his order
that NEA now sought only communications amongst YMC’s attorneys and between YMC and
other law firms or entities on the conflict of interest issue, and other documents circulated
within the firm that do not involve representation of specific clients.7
DISCUSSION
The powers granted to the Board under EERA section 3541.3, subdivision (h), include
the power “[t]o hold hearings, subpoena witnesses, administer oaths, take the testimony or
deposition of any person, and in connection therewith, to issue subpoenas duces tecum to
require the production and examination of any employer’s or employee organization’s records,
books, or papers relating to any matter within its jurisdiction.” (See also PERB Regulation
32150, subd. (a) [the Board may issue at the request of any party a subpoena for production of
documents at the hearing].)8 Upon a motion to revoke a subpoena, the Board shall revoke the
7 NEA has not objected in any way to this characterization by the ALJ.
8 We note here CLCS’s initial argument to the ALJ that PERB lacks jurisdiction to
issue a subpoena requesting documents from a third party, in this case YMC, because the
language in EERA section 3541.3, subdivision (h) identifies only an “employer’s or employee
organization’s records.” We do not read this portion of the statute as restricting PERB’s ability
to issue a subpoena requesting documents only from either “an employer” or “an employee
organization.” We view EERA section 3541.3, subdivision (h), instead as an illustration of the
broader language that precedes it, an interpretation that is apparent from the language in
subdivision (i), which grants PERB the power to “investigate unfair practice charges or alleged
violations of this chapter, and take any action and make any determinations in respect of these
6

________________________
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. (Id. at subd. (d).)
A Board agent in the conduct of a hearing has the authority to inquire fully into all
issues and obtain a complete record upon which the decision can be rendered, to issue
subpoenas, and to rule upon petitions to revoke subpoenas. (PERB Regulation 32170, subds.
(a) and (c).) In unfair practice case hearings, rules of privilege apply. (PERB Regulation
32176.)
If a witness refuses to comply with a subpoena, PERB may bring an action in superior
court or other court of competent jurisdiction for an order to enforce compliance with a
subpoena. (EERA, § 3541.3, subd. (j); PERB Regulation 32150, subd. (f).)
Under PERB Regulation 32150, subdivision (f),
A request that the Board apply for an order may be made by the
General Counsel at any stage of the proceedings. The Board shall
seek enforcement on 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 scope of a court’s inquiry in an agency subpoena enforcement proceeding is
narrow. (United States v. Morton Salt Co. (1950) 338 U.S. 632, 653; Okla. Press Pub. Co. v.
Walling (1946) 327 U.S. 186, 208; National Labor Relations Board v. International
Medications Systems Ltd. (9th Cir. 1981) 640 F.2d 1110, 1114; National Labor Relations
Board v. Frederick Cowan & Company, Inc. (2d Cir. 1975) 522 F.2d 26, 28; see also Public
Employment Relations Bd. v. Superior Court (1993) 13 Cal.App.4th 1816, 1824-1825.) While
charges or alleged violations as the board deems necessary to effectuate the policies of this
chapter…” Moreover, such a limitation on PERB’s jurisdiction to issue a subpoena requesting
documents from a third party would hinder PERB’s ability to fulfill it’s a core duty of
“[i]nquir[ing] fully into all issues and obtain a complete record upon which the decision can be
rendered.” (PERB Regulation 32170, subd. (a) (emphasis added).)
7

there is no direct case law regarding the standard for enforcement of PERB subpoena duces
tecum, California cases regarding general administrative subpoenas provide that a superior
court will enforce a subpoena when: (1) the inquiry is one that the agency demanding
production is authorized to make; (2) the demand is sufficiently definite to enable a
respondent’s ability to comply; and (3) the information sought is relevant. (Agricultural Labor
Relations Bd. v. Richard A. Glass Co. (1985) 175 Cal.App.3d 703; Board of Medical Quality
Assurance v. Hazel Hawkins Memorial Hospital (1982) 135 Cal.App.3d 561, 565; Brovelli v.
Superior Court of Los Angeles County (1961) 56 Cal.2d 524, 529.)
Overbroad
The ALJ determined the requests as written in the Subpoena were overly broad with
respect to documents generated or received after June 2014, the time of the decision to remove
employee board members, finding such subsequent documents were not materially relevant.
However, the requests, as modified by the ALJ, still span a period of nearly five years, from
January 2009 through June 2014. According to the initial charge, CLCS was not created until
approximately June 2012, yet this fact appears not to have been considered by the ALJ. We
find this fact relevant to properly constraining the time span of the Subpoena. We therefore
find the time span of the Subpoena, even as modified by the ALJ, overbroad and decline to
seek enforcement in its current state.
Furthermore, in his description of NEA’s requests, the ALJ acknowledged that NEA
had withdrawn its request for YMC communications with clients other than CLCS thereby
narrowing the scope of the requests in Requests Nos. 1 and 2. However, nothing in the ALJ’s
findings appears to narrow the scope of the Subpoena in this manner. To the extent the
Subpoena continues to seek disclosure of documents pertaining to conflicts of interest
8

involving other entities or clients of YMC other than CLCS, such request is overbroad and we
likewise decline to seek enforcement of the Subpoena in its current state.
Relevance
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.” (Emphasis added.) Although relevance, by itself, does not end the inquiry of
whether a matter is discoverable, generally, discovery depends in first instance on whether the
requested information is even relevant to a subject matter of the litigation, such as a claim or
defense of a party to the action. (Code Civ. Proc., § 2017.010; Greyhound Corp. v. Superior
Court In and For Merced County (1961) 56 Cal.2d 355, 390; Doak v. Superior Court for Los
Angeles County (1968) 257 Cal.App.2d 825, 830.)
Although motive is not relevant to a prima facie interference allegation (Carlsbad
Unified School District (1979) PERB Decision No. 89, pp. 10-11), it may be part of the
respondent’s affirmative defense, such as a legitimate business purpose. (State of California
(Department of Corrections & Rehabilitation) (2012) PERB Decision No. 2285-S, pp. 8-9;
Regents of the University of California (2012) PERB Decision No. 2300-H, p. 29.) 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. (Regents of the University of California
(1984) PERB Decision No. 470-H, adopting proposed decision at pp. 49-50.) 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. (Ibid.)
9

CLCS asserts that it relied in good-faith on legal advice provided by YMC when it
removed teachers from the CLCS governing board. Whether good-faith reliance on legal
advice is available as a defense to an interference (or discrimination) allegation is unclear. We
have located no PERB decision recognizing this defense to either an interference or
discrimination allegation. Nevertheless, unless a claim or defense is patently frivolous, the fact
that it may not ultimately prevail does not preclude discovery of the facts necessary to test or
refute it. (Public Employment Relations Bd. v. Superior Court, supra, 13 Cal.App.4th 1816,
1824.)
Assuming that a defense of good-faith reliance on the advice of counsel can be
considered at this stage of the preceding, a respondent asserting that defense has the burden of
proving both that it was in fact advised by counsel to take a particular action or refrain from
taking a particular action, and that it did so in good faith. (Regents of the University of
California, supra, PERB Decision No. 470-H, adopting proposed decision at pp. 49-50.) As a
result, the charging party cannot be denied information designed to test an element of that
defense, including whether the respondent acted in good faith, by objecting to the relevance of
the information. If information is relevant to one party’s claim or defense, it is relevant for all
parties to the proceeding, and must be disclosed upon proper request unless subject to privilege
or protection.
NEA seeks information that it believes will reveal that the legal opinion prepared by
YMC was a pretext for anti-union animus. NEA asserts that the case is proceeding under both
an interference and a retaliation/discrimination theory, the latter of which requires
demonstration of animus. As an affirmative defense, CLCS has argued that it was not
motivated by animus, but instead relied on the advice of YMC in deciding to remove teachers
10

from the CLCS Board. NEA has, therefore, raised a viable theory of liability and it should be
allowed to test that theory by obtaining relevant documents that may support it unless such
request is subject to privilege or protection.
Attorney-Client Privilege/Attorney Work Product
Attorney-client privilege, codified at Evidence Code, section 954, provides that a client
“has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential
communication between client and lawyer.” The confidential communication subject to the
attorney-client privilege is defined as “information transmitted between a client and his or her
lawyer in the course of that relationship . . . and includes a legal opinion formed and the advice
given by the lawyer in the course of that relationship.” (Fireman’s Fund Ins. Co. v. Superior
Court (2011) 196 Cal.App.4th 1263, 1273 (internal quotations omitted; italics omitted), citing
Evid. Code, § 952.) Protected confidential communications include the legal opinions of the
attorney, even if they have not been communicated to the client (ibid.), and the protection
applies to legal advice regardless of whether litigation is contemplated (Wellpoint Health
Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 119-120 (Wellpoint)).
The work-product protection is separate and distinct from attorney-client privilege and
may still protect documents upon the client’s waiver of attorney-client privilege. (Handgards,
Inc. v. Johnson & Johnson (N.D. Cal. 1976) 413 F.Supp. 926, 929.) Absolute work product is
defined as a “writing that reflects an attorney’s impressions, conclusions, opinions, or legal
research or theories” and provides that absolute work product “is not discoverable under any
circumstances.” (Code Civ. Proc., § 2018.030, subd. (a).) Absolute work product is entitled to
absolute protection unless the privilege is waived. (Fireman’s Fund Ins. Co. v. Superior
Court, supra, 196 Cal.App.4th at p. 1281.) Qualified work product is defined as the work of
11

an attorney that does not qualify as absolute, and is subject to discovery only if it is determined
that “denial of discovery will unfairly prejudice the party seeking discovery in preparing that
party’s claim or defense or will result in an injustice.” (Code Civ. Proc., § 2018.030, subd.
(b).) Work-product protection encompasses both the written and unwritten work of attorneys,
and prohibits discovery of an attorney’s “statements [that] are likely to reveal the attorney’s
mental impressions, opinions and theories of the case.” (Fireman’s Fund Ins. Co. v. Superior
Court, supra, 196 Cal.App.4th at pp. 1280.)
Waiver
Waiver of the attorney-client privilege occurs where the holder of the privilege,
“without coercion, has disclosed a significant part of the communication or has consented to
disclosure made by anyone.” (Evid. Code, § 912, subd. (a).) Waiver of the attorney-client
privilege may be implied when a holder of the privilege places the contents of the privileged
communications at issue in the case and that disclosure is required for a fair adjudication of the
action. (Wellpoint, supra, 59 Cal.App.4th at p. 128; Handgards, Inc. v. Johnson & Johnson,
supra, 413 F.Supp. at p. 929 [“deliberate injection of the advice of counsel into a case waives
the attorney-client privilege as to communications and documents relating to the advice”].)
Work-product protections may be waived in the same manner as attorney-client privilege.
(Wellpoint, at p. 128; State of California (Department of Veterans Affairs) (2004) PERB
Decision No. 1686-S, p. 5.)
When a waiver of attorney-client and/or work product privilege occurs, the scope of
waiver will be narrowly construed. (Wellpoint, supra, 59 Cal.App.4th at p. 128; Transamerica
Title Ins. Co. v. Superior Court (1987) 188 Cal.App.3d 1047, 1052; 2,022 Ranch, L.L.C. v.
Superior Court (2003) 113 Cal.App.4th 1377, 1395 (disapproved on other grounds).) As such,
12

“[p]rivileged communications do not become discoverable simply because they are related to
issues raised in the litigation.” (Transamerica Title Ins. Co. v. Superior Court, citing
Schlumberger Limited v. Superior Court (1981) 115 Cal.App.3d 386, 393.) In cases examining
the scope of a client’s waiver of privilege, courts have found that particular relevant
communications with the client, or the client’s litigation file were subject to disclosure, but not
other privileged documents not directly placed at issue in the case. (See Merritt v. Superior
Court (1970) 9 Cal.App.3d 721, 730 [client’s placement of attorney’s mental state directly at
issue in bad faith claim waived privilege over relevant communications and work product
demonstrating attorney’s state of mind while handling the particular case].) It is not the case
that when a litigant places at issue a certain mental state or belief, that the “source and
substance of all information” leading to that mental state then becomes discoverable. (Mitchell
v. Superior Court (1984) 37 Cal.3d 591, 608-9.) Instead, “the scope of the waiver [is]
determined primarily by reference to the purpose of the privilege,” which in the case of a
client’s “deliberate injection of the advice of counsel into a case[,] the attorney-client privilege
as to communications and documents relating to the advice” will be waived. (Transamerica
Title Inc. Co. v. Superior Court, supra, 188 Cal.App.3d at pp. 1052-1053 (emphasis added).)
With those principles in mind, we now turn to a discussion of privilege/protection and waiver
as to each of the outstanding categories of requested information.
With respect to Request Nos. 1 and 2, the ALJ determined that both requests involved
the same issues and sought “non-privileged” documents related to conflict of interest and
charter school governing board issues, which are relevant to the NEA’s theory of liability. We
recognize that opinions formed outside the attorney-client relationship, such as a pre-existing
document expressing the opinion of another person or entity, do not become attorney-client
13

privileged, simply because they are communicated to the client. (Wellpoint , supra, 59
Cal.App.4th at p. 119.) And, to the extent that any documents included in Request Nos. 1 and
2 include truly non-privileged documents, CLCS would be required to produce such
documents. However, Request Nos. 1 and 2 on their face appear to seek privileged
communications in that they seek “advice, counsel, and opinion” (Request 1), and YMC’s
“determinations and/or opinions” (Request 2), yet the ALJ’s order does not address the scope
of any waiver as to privileged materials in relation to these requests. Because Request Nos. 1
and 2 seek potentially privileged documents, we decline to seek enforcement of Request Nos. 1
and 2 as they are presently written.
With respect to Request No. 3, the ALJ determined that the request specifically did not
violate the attorney-client and attorney work-product privileges because CLCS had “disclosed
and interjected a privileged communication into the record, thereby waiving the privileges,”
but limited the request to documents related to the “issue of employee membership on the
governing board.” (ALJ Order Denying, p. 5.) In cases where implied waiver is found, the
courts have allowed disclosures of privileged information where the client places into issue a
matter that is normally privileged, or when the client, the holder of the privilege, places into
issue the decisions, conclusions, and mental state of the attorney. (Transamerica Title Ins. Co.
v. Superior Court, supra, 188 Cal.App.3d at pp. 1052-53.) In Mitchell v. Superior Court,
supra, 37 Cal.3d at p. 609, the Court in recognizing the theory of implied waiver, determined
that the party seeking to discover privileged information can show waiver by demonstrating
that the client has placed the privileged communication at issue and fairness requires
disclosure. By placing the opinion letter into evidence, and by introduction of testimony by a
14

________________________
YMC attorney, both CLCS and YMC waived attorney-client privilege and work product.9
Therefore, with respect to Request No. 3, we agree with the ALJ’s findings, including the
limitation that CLCS need only produce documents related to the issue of employee
membership on the governing board.
Request No. 4 is for documents “generated, received, or circulated” both internally to
YMC, and provided to third parties by YMC in the conduct of lectures and presentations that
relate to union avoidance strategies. Request No. 5 is for documents “generated, received, or
circulated” both internally to YMC, and provided to third parties by YMC in the conduct of
lectures and presentations that relate to union avoidance strategies. While these requests may
present significant problems of attorney-client privilege and attorney work product protections,
the issue before us is YMC’s representation at hearing that it has no documents responsive to
these requests. The ALJ’s order instructs CLCS to have an attorney for YMC provide a
declaration, executed under penalty of perjury, supporting its assertion. The ALJ order does
not instruct CLCS to produce documents. Since the ALJ’s order addressing these two requests
is limited, we need not engage here in a discussion of whether Request Nos. 4 and 5 include
privileged communications. If no documents responsive to Requests No. 4 and 5 exist, it is
incumbent on YMC to provide a declaration to that effect.
Conclusion
We decline to seek enforcement of the Subpoena in its current state and remand this
matter back to the ALJ for greater clarification of the scope of any potential waiver as to
9 Because CLCS and its attorneys deliberately chose to put the attorney’s legal advice
and their communications with CLCS at issue by asserting as CLCS’s defense that it relied in
good faith on the legal advice provided by its attorneys, we do not see the Board’s decision as
opening up PERB proceedings to attempt to discover another party’s privileged
communications or its attorney’s work product.
15

Request Nos. 1 and 2, as well as the proper time span and scope of the Subpoena as a whole
prior to the Board’s seeking enforcement of the Subpoena.
Order
The Board hereby REMANDS this matter to the Public Employment Relations Board
(Board) Office of Administrative Law to reexamine the scope of the subpoena duces tecum
consistent with the analysis set forth herein.
Members Winslow and Banks joined in this Decision.
16
----