California State Employees Association (Hard and Hackett) (PERB 1411S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PAUL GONZALEZ-COKE,
Charging 	Party,
v.
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	SA-CO-199-S
PERB Decision No. 	1411-S
October 10, 	2000
JIM HARD AND 	CATHY 	HACKETT,
Charging 	Parties,
v.
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	SA-CO-201-S
Appearance: 	Michael 	P. 	White, 	Attorney, 	for California State
Employees Association.
Before Dyer, 	Amador and Baker, 	Members.
DECISION
DYER, 	Member: 	These 	cases 	come before 	the 	Public 	Employment
Relations 	Board 	(PERB 	or Board) 	on appeal 	by the 	California 	State
Employees Association 	(CSEA or Association) 	to 	an administrative
law judge's 	(ALJ) 	proposed decision which 	found 	that 	CSEA had
unlawfully 	retaliated 	against 	charging parties 	Paul 	Gonzales-Coke
(Gonzales-Coke), 	Jim Hard 	(Hard) 	and Cathy Hackett 	(Hackett) 	by
sustaining 	an 	internal 	union 	complaint 	filed 	against 	charging
parties 	with CSEA. 	This 	complaint 	involved distribution of 	The
Union 	Spark, 	the 	newspaper of 	an 	internal 	CSEA group widely known
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as 	the Caucus 	for a Democratic Union 	(CDU), 	at 	a work site 	in
San Jose. 	Charging parties 	allege 	that 	such action arose 	from
their exercise of protected conduct, 	in violation of Ralph C.
Dills Act 	(Dills Act) 	section 3519.S(b).1
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case,
including the unfair practice charges, 	the briefs 	of 	the parties,
the proposed decision, 	and CSEA's 	exceptions. 	The Board affirms
the ALJ's 	denial 	of 	a protective 	order 	regarding 	the 	"Spy
Memos."2 The 	Board additionally affirms 	the ALJ's 	findings 	that
PERB does not 	fall 	within the 	definition of 	"state," 	as 	that 	term
is 	set 	forth 	in the Dills Act, 	and that 	CDU was not 	an employee
organization under 	the provisions 	of 	the Dills Act. 	The Board
reverses 	the 	proposed decision with 	regard 	to 	its 	finding 	that 	an
unfair practice had occurred, 	and 	it 	dismisses 	the unfair
practice 	charges 	and complaints.
1The Dills Act 	is 	codified at 	Government 	Code 	section 3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are 	to the Government 	Code. 	Section 3519.5(b) 	states:
It 	shall 	be 	unlawful 	for an employee
organization to:
(b) 	Impose or threaten to 	impose 	reprisals 	on
employees, 	to discriminate or threaten to
discriminate 	against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by 	this 	chapter.
2As 	will 	be 	discussed more 	fully below, 	the 	"Spy Memos" 	were
a 	number 	of 	internal 	CSEA memoranda 	introduced 	as 	exhibits 	by
charging parties 	at 	the 	time 	of 	the 	formal 	hearing.
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PROCEDURAL 	HISTORY
Gonzalez-Coke 	commenced the 	action 	in Case No. 	SA-CO-199-S
on October 16, 	1997, 	by filing an unfair practice 	charge against
CSEA. 	The charge, 	as amended, 	alleges 	that 	CSEA refused to
reimburse 	Gonzalez-Coke 	for 	travel 	expenses 	in 	retaliation 	for
his protected 	conduct. 	The 	charge 	also 	alleges 	that 	CSEA agents
filed 	internal 	union 	complaints 	against 	Gonzalez-Coke 	in
retaliation 	for protected 	conduct.
The 	PERB general 	counsel 	issued a 	complaint 	on March 	19,
1998. 	The 	complaint 	alleges 	that 	Gonzalez-Coke 	engaged in
protected 	activity 	in 	supporting 	a 	group 	seeking 	to 	reform CSEA.
As 	retaliation, 	the 	complaint 	continues, 	CSEA agents 	filed
internal 	union 	charges 	against 	him and 	CSEA 	refused 	to 	reimburse
him for travel 	expenses. 	These actions, 	according to the
complaint, 	violate Dills Act section 3519.5(b).
Hackett 	and Hard 	filed unfair practice 	charge 	Case 	No.
SA-CO-201-S against 	CSEA on October 17, 	1997. 	The charge, 	as
amended, 	alleges 	that 	CSEA agents 	engaged 	in a pattern of
harassment 	against 	Hard and Hackett 	in 	retaliation 	for 	their
protected 	conduct.
The 	PERB general 	counsel 	issued a 	complaint 	on March 	19,
1998. 	The 	complaint 	alleges 	that 	Hackett 	and Hard participated
in protected activity through a group 	seeking 	to 	reform CSEA, 	and
that 	several 	CSEA agents 	retaliated with a 	campaign 	of 	harassment
by 	filing 	a number of 	internal 	union charges 	against 	them. 	The
complaint 	alleges 	that 	these 	retaliatory acts 	violated Dills Act
33

section 3519.5(b).
CSEA filed answers 	to the complaints on April 	8, 	1998,
generally denying 	the 	allegations 	and 	asserting 	a 	number 	of
affirmative 	defenses. 	A 	settlement 	conference 	was 	conducted by a
PERB ALJ, 	but 	the 	disputes were not 	resolved. 	A prehearing
conference was 	conducted on May 29, 	1998.
Prior 	to hearing, 	these 	complaints 	were 	consolidated 	for
decision. 	A 	formal 	hearing was 	conducted 	in Sacramento between
October 	13 	and October 27, 	1998. 	With the receipt 	of 	the 	final
brief on March 30, 	1999, 	the cases were 	submitted for a proposed
decision.
FACTUAL 	HISTORY
Charging parties 	in 	these 	consolidated 	cases 	are 	high
elected officials 	in CSEA. 	Hard 	is 	the 	director of 	the 	Civil
Service Division 	(CSD). 	Hackett 	is 	the CSD deputy director of
finance. 	Gonzalez-Coke 	is 	the executive vice president 	of
CSEA.3
At 	the 	same 	time, 	charging parties are 	supporters 	of CDU.
The professed goal 	of 	CDU is 	to 	"reform" 	CSEA as 	an employee
organization. 	In its brief, 	charging parties describe 	CDU as a
3Much 	of 	the 	testimony 	in 	this 	proceeding 	centered on 	the
manner 	in which 	internal 	union 	complaints 	against 	charging
parties were processed by CSEA. 	It was 	charging parties'
contention 	that 	CSEA 	and 	its 	agents 	manipulated 	union procedures
in 	a manner 	that 	suggested an unlawful 	motive 	and 	retaliation.
The main contention 	in this 	regard was 	that 	the 	internal 	union
complaints 	were 	wrongfully 	filed with 	the 	CSEA president 	and
processed at 	the Association 	level 	by 	individuals 	who 	have 	openly
opposed 	the protected conduct 	of 	charging parties, 	rather 	than at
the division level, 	where Hackett 	and Hard serve 	as 	elected
officials.
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reform movement 	to 	"change 	the 	rules 	and promote 	progressive
unionists 	for office, 	to build a militant 	Union run by elected
rank 	and 	file 	members." 	CSEA 	in 	turn has 	long maintained 	that
CDU is not 	a reform movement, 	but 	is 	in fact 	a competing employee
organization under 	the 	Dills Act.4
In addition to 	their elected offices 	in CSEA, 	charging
parties 	are 	among the principal 	activists 	in CDU. 	Hard 	is 	a
founding member 	and 	former 	statewide 	coordinator 	of 	CDU. 	Hackett
is 	also 	a 	founding member and a 	long 	time 	CDU activist.
Gonzalez-Coke 	is 	a 	founding member of 	CDU and 	continues 	as 	a
participant 	in CDU activities.
It 	can 	thus 	be 	seen 	that 	charging parties 	occupy unique
positions. 	They serve as 	elected officials 	in the 	CSEA
administration, 	while 	seeking to 	reform the 	administration using
CDU as 	a vehicle 	to do 	so. 	An 	increasingly long 	line 	of 	PERB
cases 	confirms 	that 	these 	circumstances 	have 	led 	to 	a 	highly
contentious 	relationship 	between 	CSEA 	and 	CDU.
CSEA members 	who 	filed the 	internal 	union charges 	at 	issue
here 	are 	members 	of 	a 	competing 	organization within 	CSEA known as
4As 	set 	forth below, 	CSEA renews 	this 	claim in the 	instant
appeal. 	Section 3515.5 provides, 	in relevant part:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their members 	in their
employment 	relations with the 	state, 	except
that 	once 	an employee 	organization is
recognized 	as 	the 	exclusive 	representative 	of
an appropriate unit, 	the 	recognized employee
organization 	is 	the 	only organization 	that
may represent 	that 	unit 	in 	employment
relations with the 	state.
5

the Advocates. 	The Advocates 	are made up of members 	whose
philosophy about 	the 	direction of 	CSEA generally 	is 	at 	odds 	with
that 	advanced by CDU. 	Members 	of 	the Advocates 	occupy elected
and 	appointed positions 	in 	the 	CSEA hierarchy.
One witness who 	is 	a member of 	the Advocates 	testified that
its purpose 	is 	to 	"develop 	leadership within CSEA." 	Another
member of 	the Advocates 	testified that 	its 	purpose 	is 	to 	"push
the union ahead, 	while keeping 	it 	together." 	The 	same witness
said the 	purpose 	is 	to prevent 	the 	kind of 	fragmentation within
CSEA divisions 	that 	has 	occurred with 	frequency 	in 	recent 	times.
ALJ's 	PROPOSED DECISION
During the hearing 	in October, 	1998, 	evidence was 	received
regarding eight 	different 	internal 	union 	complaints, 	which
charging 	parties 	alleged were 	filed against 	them by union members
acting as 	agents 	of 	CSEA. 	These 	complaints 	were 	designated by
the ALJ 	in the proposed decision as 	the 	Ferrasci-Wilson, 	Robles,
Monahan, 	Arbuckle, 	Kernan, 	Wilson, 	Arbuckle-Kernan and Ferrasci
complaints, 	named 	for the various 	CSEA members 	who 	filed the
internal 	union charges 	against 	Gonzales-Coke, 	Hard and Hackett.
During the 	course of 	the hearing, 	evidence was 	also received
with regard 	to 	a 	number 	of 	so-called 	CSEA 	"Spy Memos." 	These
were 	introduced by the 	charging parties 	over the 	objection of
CSEA, 	in an attempt 	to 	show a history of 	CSEA animus 	towards 	CDU.
The ALJ 	rejected 	a 	subsequent 	request 	by 	CSEA 	to 	seal 	the 	"Spy
Memos" 	from public view, 	such request 	being made 	on the grounds
that 	the 	memos 	were 	confidential, 	and that 	they constituted trade
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secrets 	of 	CSEA.
The 	cases were 	submitted for decision on March 30, 	1999, 	and
the proposed decision issued on April 	12, 	1999. 	In his proposed
decision the ALJ dismissed 	seven of 	the 	eight 	complaints: 	the
Ferrasci-Wilson, 	Robles, Monahan, Arbuckle, 	Kernan, 	Wilson and
Arbuckle-Kernan complaints. 	In these dismissals, 	the ALJ found
that 	the 	charging parties 	had 	failed 	to 	carry 	their burden of
showing 	that 	the 	individual 	union members 	who 	filed 	the
complaints 	did 	so 	as 	agents 	of 	CSEA, 	or that 	CSEA ratified these
actions 	in 	a manner 	that 	created 	an 	agency relationship 	between
the 	union and 	the 	complainants.5
As 	to the eighth complaint, 	the 	Ferrasci 	complaint, 	the ALJ
found 	that 	CSEA 	had 	unlawfully 	retaliated 	against 	charging
parties 	by 	sustaining 	an 	internal 	union 	complaint 	filed 	against
them. 	This 	internal 	complaint 	alleged 	that 	Ferrasci 	was 	the
"focal 	point" 	in an article which appeared 	in The Union 	Spark,
and that 	her work 	site was 	"targeted" 	for distribution.
The 	article, 	entitled 	"The 	Kangaroo Court 	of 	Perry and
Company," 	begins with the 	following paragraph:
The 	Perry gang 	is 	up 	to 	their old tricks.
Since 	they have 	only minimal 	support 	among
state 	workers 	the 	anti-union group 	consisting
of 	staff management, 	some 	rank-and-file 	staff
and 	the 	likes 	of 	Marilyn 	Ferrasci 	. . . 	is
thrashing 	about 	attempting 	to 	stem the 	tide
of 	reform through administrative 	measures.
The 	article 	criticized an earlier 	internal 	grievance 	filed
5Included 	in 	these 	dismissals 	was 	the 	claim 	involving 	CSEA's
refusal 	to 	reimburse 	Gonzalez-Coke 	for 	expenses 	he 	incurred while
attending a union conference 	in Washington, 	D.C.
77

by Ferrasci 	and 	another member of 	CSEA, 	and accused 	them of
lying. 	It 	stated that 	the 	majority of 	the 	CSD 	"repudiate
[Ferrasci 	and her] 	anti-union whining." 	The Union 	Spark also
criticized 	the 	hearing 	panel 	appointed 	in 	an 	earlier 	complaint
involving Ferrasci. 	It 	stated, 	"[T]he 	charges were deemed valid
by 	the 	chair 	of 	the Association Hearing 	Officer 	Panel 	. . . 	a
long-time 	anti-CDU anti-reform 	individual. 	The 	Hearing Officer
Panel, 	likewise, 	is made up of 	two long time anti-CDU individuals
Hard 	acknowledged 	that 	The 	Union 	Spark might 	damage
Ferrasci's 	credibility with members 	and possibly have 	an 	adverse
impact 	on her 	in a 	subsequent 	election. 	Asked 	if 	this was his
intent, 	Hard responded, 	"that was the general 	hope."
Ferrasci 	is 	a 	CSEA member who 	has 	long opposed Hard,
Hackett, 	and CDU in a number of 	internal 	union matters. 	Ferrasci
had 	filed 	other 	internal 	union 	complaints 	against 	Hard 	and
Hackett, 	seeking 	their removal 	from CSEA office 	and withdrawal 	of
their membership privileges.
At 	the 	time 	of 	the 	distribution at 	Ferrasci's 	work 	site,
Hard, 	Hackett, 	and Gonzalez-Coke were 	in San Jose as 	CSEA
officials 	to 	attend 	the 	Western Conference 	of 	the 	Service
Employees 	International 	Union. 	They distributed The 	Union 	Spark
from 7 	a.m. 	to 	8 	a.m., 	prior to the 	start 	of the 	conference.
They also displayed The Union Spark on a 	table 	at 	the 	conference.
In her initial 	letter of complaint, 	Ferrasci wrote, 	"I 	am sure my
building was 	specifically targeted 	for this 	activity," 	and 	"I
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have 	a 	right 	to 	expect 	members 	of 	the 	CSEA Board 	of 	Directors 	to
be 	above 	reproach 	and 	not 	bring 	discredit 	to 	the 	Association, 	to
a 	DLC 	President 	or 	to 	a 	member 	of 	this 	Association."
The 	Ferrasci 	complaint 	was 	referred 	to 	an 	investigative
committee 	under 	provisions 	of 	the 	CSEA 	Policy 	File. 	Hard,
Hackett 	and 	Gonzalez-Coke 	declined 	to 	respond 	specifically 	to
written 	interrogatories 	put 	to 	them by 	the 	committee. 	Rather,
they 	submitted 	a 	summary 	response 	which 	did 	not 	address 	the
questions 	and 	instead 	claimed 	the 	investigation 	was 	an 	unlawful
interference 	with 	their 	rights 	as 	union 	activists 	under 	PERB 	case
law.
Following 	its 	investigation, 	the 	committee 	concluded 	Hard,
Hackett, 	and 	Gonzalez-Coke 	had 	violated 	section 	1A2.00 	of 	the
CSEA 	Policy 	File.6 The 	committee 	made 	the 	following 	findings:
6 CSEA 	Policy 	File 	section 	1A2.00 	reads, 	in 	pertinent 	part
LEADERSHIP 	CONDUCT
(a) 	The 	Association 	leader 	informs
himself/herself 	of 	Association 	policies 	and
procedures 	by 	reading 	Association
publications 	and 	participating 	in 	training
and 	informational 	meetings.
(b) 	The 	Association 	leader 	respects 	his/her
fellow activists 	regardless 	of 	race, 	color,
sex, 	religion, 	national 	origin, 	sexual
orientation, 	ancestry, 	disability, 	age,
occupation 	or 	job 	classification.
(c) 	The 	Association 	leader 	conducts
himself/herself 	in 	a 	manner 	so 	as 	to 	bring
respect 	to 	the 	Association.
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For leaders[7] in 	CSEA to 	publicly,
intentionally 	and wilfully participate 	in 	an
activity that 	is 	intended to 	embarrass,
malign and 	defame 	a 	fellow member 	clearly
violates 	the Association 	Policy File 	with
respect 	to 	duties 	and responsibilities 	of
leaders 	in CSEA. 	The distribution of 	the
"Union Spark" 	in front of Ms. 	Ferrasci's
building 	with 	defamatory 	material 	certainly
has 	the 	appearance 	to embarrass, 	malign and
defame 	the character of Ms. 	Ferrasci 	and is
evidence 	of the violation. 	The documentation
of 	travel 	expense 	claims 	shows 	the purpose 	of
their presence 	in San Jose, 	and the 	letters
of 	the 	two witnesses 	supports 	the 	claim filed
by Marilyn 	Ferrasci.
The 	committee 	recommended 	that 	the 	charged officials 	be
advised of 	their 	leadership 	roles 	in CSEA and 	directed 	to 	"cease
and desist" 	from participating 	in activities 	that 	violate 	the
CSEA Policy File. 	The recommendation concluded, 	"it 	should be
made 	clear 	to 	each 	that 	any 	further violations 	of 	Policy File
section 	1A2.00 	will 	result 	in more 	severe 	sanctions 	by the
Association." 	On February 27, 	1997, 	the Board of Directors
adopted 	the 	recommendation.8
7CSEA policy 	file 	section 	1A3.01 	states 	that 	"Members 	that
are 	considered 	leaders 	are 	those 	elected 	to positions 	in the
Association."
8The 	Board notes 	that 	the 	CSEA 	investigative 	committee 	found
that 	Hard, 	Hackett 	and Gonzales-Coke 	had violated 	two 	sections 	of
the CSEA Policy File, 	section 1A2.00, 	supra, 	and section 1A3.03.
Section 1A3.03, 	in relevant part, 	prohibits 	"incompatible
activities," 	such as using an Association office 	or using
Association 	"facilities, 	equipment 	or supplies" 	for private gain
or advantage. 	However, 	a review of 	the 	exhibit 	which documents
the 	action 	taken by 	the 	CSEA Board of 	Directors 	shows 	that 	the
investigative 	committee 	found 	that 	charging 	parties 	should be
admonished only 	for the 	section 	1A2.00 	violation. 	It 	was 	this
finding 	that 	was 	adopted by the 	Board of 	Directors.
10

CSEA'S 	EXCEPTIONS
CSEA's 	excepted 	to 	the 	ALJ's 	proposed 	decision 	on 	the
following 	grounds:
(1) 	that 	the 	ALJ 	erred 	in 	finding 	CSEA had 	identified 	no
valid 	basis 	for 	a 	protective 	order 	sealing 	the 	"Spy Memos";
(2) 	that 	the 	ALJ 	erred 	in 	finding 	PERB 	is 	exempt 	from the
Dills 	Act, 	and 	does 	not 	fall 	under 	the 	definition 	of 	"state," 	as
set 	forth 	in 	section 	3519;9
(3) 	that 	CDU 	is 	not 	an 	employee 	organization 	or 	subject 	to
regulation 	under 	the 	Dills 	Act;
(4) 	that 	the 	unfair 	practice 	finding 	on 	the 	Ferrasci
complaint 	was 	not 	supported 	by 	the 	record.
DISCUSSION
1. 	"Spy Memos"
-
At 	the 	hearing 	Hard 	testified 	that 	a 	packet 	of 	documents,
referred 	to 	by Hard 	as 	the 	"Spy Memos," 	was 	delivered 	to 	him
anonymously 	in 	his 	personal 	post 	office 	box. 	Charging 	parties
contended 	that 	these 	documents 	showed 	a 	history 	of 	anti-CDU
animus 	on 	the 	part 	of 	CSEA, 	and 	therefore 	supported 	their 	claim
that 	CSEA 	had 	unlawfully 	retaliated 	against 	them.
9 Section 	3519 	states, 	in pertinent 	part:
It 	shall 	be 	unlawful 	for 	the 	state 	to 	do 	any
of 	the 	following:
(d) 	Dominate 	or 	interfere 	with 	the 	formation
or 	administration 	of 	any 	employee
organization, 	or 	contribute 	financial 	or
other 	support 	to 	it, 	or 	in 	any way encourage
employees 	to 	join 	any 	organization 	in
preference 	to 	another.
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Teresa 	Squier 	(Squier) 	is 	an employee 	of 	the 	State 	of
California 	(Board of 	Equalization) 	and a member of 	CSEA.
Although 	she 	is no 	longer active 	in CSEA, 	she 	has been a CSEA
steward, 	District Labor Council 	(DLC) 	President, 	and member of
the 	CSD Policy File 	committee, 	as 	an appointee of 	current 	CSEA
President 	Perry Kenny. 	Squier held 	these positions 	during 	the
late 	1980's 	and early 1990's.
Squier was 	called as 	a witness 	in connection with 	the 	"Spy
Memos." 	She 	testified as 	to a 	series 	of 	events which took place
in the 	early 	1990's, 	while 	she was 	on union leave 	and paid by
CSEA. 	It was 	during this general 	time 	frame, 	Squier testified,
that 	CDU began 	to 	draw attention within 	CSEA and 	that 	rumors 	were
circulating 	that 	CDU would attempt 	to 	decertify CSEA 	in Unit 	1.
Squier participated 	in 	an 	effort 	with 	then 	CSEA General
Manager Bob Zenz 	(Zenz) 	and Geri 	Conway 	(Conway), 	who worked for
CSEA on special 	assignment 	from Zenz, 	to develop 	a newsletter to
attack CDU. 	She 	said she was 	"put 	up" 	in the 	Clarion Hotel 	in
Sacramento 	to work on 	the 	newsletter 	and given 	$1500 	"underneath
the 	table, 	by 	[Zenz], 	in an envelope" 	to pay for 	it. 	In
addition, 	she 	said, 	other newsletters 	attacking CDU were produced
using DLC 	funds. 	These 	newsletters were written with 	the
assistance 	and 	encouragement 	of 	CSEA 	staff.
One of Conway's 	special 	assignments, 	Squier testified, 	was
to 	conduct 	surveillance 	on Hackett's personal 	residence. 	Squier
said 	Conway 	showed her polaroid pictures 	of 	Hackett's 	residence.
Pursuant 	to Conway's 	request, 	Squier said she went 	through
12

Hackett's 	and Hard's garbage 	cans.
At 	the 	time 	the 	"Spy Memos" 	were offered as 	evidence, 	the
ALJ had not 	yet 	read 	them. 	The 	documents 	were 	received 	into
evidence, 	over the objection of CSEA, 	subject 	to 	the ALJ
assigning weight 	to 	the 	exhibit 	after 	fully considering 	it 	in the
context 	of 	the record as 	a whole. 	Following his 	review, 	the ALJ
concluded that 	the 	"Spy Memos" 	were 	not 	sufficiently probative 	of
the 	issues 	before 	him, 	and they were 	not 	considered by him in
reaching 	his 	proposed decision.
More 	than two months 	after the 	conclusion of 	the hearing, 	in
its post-hearing brief, 	CSEA requested that 	the 	"Spy Memos" 	be
sealed 	from public view. 	This 	request 	was 	based on the 	claim
that 	the documents were 	the 	"confidential, 	proprietary, 	and trade
secret property of 	CSEA, 	and that 	[CSEA] 	has 	a protectable
property 	interest 	in 	keeping 	such 	documents 	from 	the 	public's
view."
CSEA argued, 	inter alia, 	that 	the 	conduct 	reflected in the
"Spy Memos" 	directly related 	to 	the 	fear 	that 	CDU represented an
internal 	threat 	to decertify CSEA, 	and that 	CSEA's 	reaction to
the 	threat 	was 	made 	in good 	faith and consistent 	with 	its 	right
to do so under PERB case law. 	In response, 	charging parties
argued 	that 	the 	memos 	show 	that 	CSEA 	improperly 	expended union
resources 	to 	spy on 	its members, 	and that 	CSEA sought 	to 	seal
them because 	they were 	an 	embarrassment 	to 	CSEA.
A. 	Confidentiality of 	the Memos
In ruling on the question of 	confidentiality, 	the ALJ
13

initially 	found 	that 	evidence 	of 	a 	number of 	events 	reflected 	in
the 	"Spy Memos" came 	primarily through 	the 	testimony of
witnesses, 	and not 	through 	the 	alleged confidential 	documents
themselves. 	He 	then ruled that 	this 	testimony 	stood on 	its 	own,
and that 	it 	would 	serve 	no purpose 	to 	issue 	a protective 	order
for 	documents 	that 	had already been described 	in 	the 	testimony,
especially where 	there was 	no 	request 	for 	a 	similar protective
order 	regarding 	the 	testimony 	itself.
The ALJ went 	on to 	find the 	"Spy Memos" 	included documents
that 	arguably tended 	to prove 	a pattern of 	harassment 	against 	CDU
and 	surveillance 	of 	CDU activists, 	even though he 	gave 	them no
weight. 	He 	also 	found that 	the 	documents 	represented 	the 	kind of
relevant 	evidence 	that 	is 	routinely 	admitted 	in unfair practice
hearings 	conducted by PERB, 	and that 	they were 	not 	deserving of 	a
protective 	order 	in 	that 	they 	"cannot 	realistically be 	described
as 	confidential 	in any way." 	CSEA now raises 	the 	same 	issue
before 	the 	Board.
The 	Board has 	reviewed the 	"Spy Memos." 	They consist 	of 	22
internal 	CSEA memoranda--seven of 	which are 	marked
"confidential," 	plus 	one 	handwritten note 	and one 	handwritten
union motion.
The 	Board agrees 	with the ALJ's 	denial 	of 	CSEA's 	claim that
the 	"Spy Memos" 	are 	"confidential 	business 	information" 	that must
be 	sealed 	from public 	view 	to permit 	CSEA 	to 	"maintain 	its
membership base 	and competitive 	position 	in 	the 	labor
representation market." 	The 	Board 	finds 	that 	CSEA has 	cited no
14

applicable 	caselaw, 	nor 	any 	statutory provisions, 	that 	would
justify 	the 	sealing 	of 	these 	documents 	on 	the 	basis 	of
confidentiality. 	Nor 	has 	the 	Board 	found 	any 	cases 	or 	statutes
that 	would 	justify 	the 	protective 	order 	sought 	by 	CSEA.10 The
ALJ 	properly 	found 	that 	the 	mere 	assertion 	of 	confidentiality 	is
insufficient 	to 	compel 	the 	relief 	requested 	by 	CSEA 	in 	an 	unfair
practice 	proceeding.
B. 	The 	Memos 	as 	Trade 	Secrets
The 	Board 	additionally 	agrees 	with 	the 	ALJ's 	rejection 	of
CSEA's 	claim that 	the 	"Spy Memos" 	constitute 	a 	trade 	secret 	under
the 	California 	Uniform Trade 	Secrets 	Act 	(UTSA), 	California 	Civil
Code, 	section 	3426 	et 	seq. 	As 	defined 	in 	Civil 	Code 	section
3426.1:
(d) 	"Trade 	secret" 	means 	information,
including a 	formula, 	pattern, 	compilation,
program, 	device, 	method, 	technique, 	or
process, 	that:
(1) 	Derives 	independent 	economic 	value,
actual 	or 	potential, 	from not 	being 	generally
known 	to 	the 	public 	or 	to 	other 	persons 	who
can 	obtain 	economic 	value 	from 	its 	disclosure
or use; 	and
(2) 	Is 	the 	subject 	of 	efforts 	that 	are
reasonable 	under 	the 	circumstances 	to
maintain 	its 	secrecy.
CSEA's 	claim 	that 	the 	"Spy Memos" 	fall 	under 	the 	UTSA 	is
unconvincing. 	Initially, 	the 	Board 	observes 	that 	the 	documents
contain no 	"formula, 	pattern, 	compilation, 	program, 	device,
10 See 	e.g., 	California 	Evidence 	Code 	section 	911 	et 	seq.
See 	also 	Witkin, 	B.E., 	Summary of 	California 	Law, 	Ninth 	Ed.
(1990) 	11 Equity, 	secs. 	103-118, 	pp. 	784-799.
15

method or process." 	Most 	of 	the 	documents 	are 	internal 	CSEA
memoranda which 	address 	how CSEA 	should 	react 	to 	a perceived
decertification 	attempt 	by 	CDU.
Furthermore, 	no 	evidence was 	presented 	that 	these 	documents
have 	any economic value. 	Although CSEA claims 	that 	the memos
could assist 	another union 	in 	its 	attempts 	to 	decertify CSEA, 	the
Association 	does 	not 	explain how the 	memos 	would 	so benefit 	an
opposing union. 	All 	that 	the 	documents 	reveal 	is 	how CSEA
gathered 	and 	reacted 	to 	information 	regarding 	a 	group 	of
individuals 	which 	CSEA was 	concerned would 	attempt 	to 	decertify
it. 	Surely such a tactic 	or strategy is 	not peculiar to 	CSEA.
Finally, 	with regard to 	the 	efforts 	of 	CSEA to maintain
secrecy, 	the Board notes 	that 	the memos, 	the 	first 	of which is
dated 	in July of 	1992, 	and the 	last 	of which is 	dated in January
of 	1994, 	appear to have been widely distributed prior to 	their
introduction into evidence 	in October of 	1998. 	Additionally, 	it
was Hard, 	a member of CDU, 	who 	introduced the 	"Spy Memos" 	into
evidence. 	The 	Board 	sees 	no protection 	from CDU which will 	inure
to CSEA from the 	sealing of 	the Board's 	records. 	There 	is
nothing 	in the memos 	which would constitute 	a 	trade 	secret.
The 	ALJ properly 	found 	that 	CSEA has 	identified 	no 	valid
basis 	for a protective 	order 	covering 	the 	"Spy Memos" 	or 	the
related testimony, 	and we 	affirm his 	denial 	of 	the 	request 	by
CSEA to 	seal 	the documents.
2. 	PERB as 	"The 	State" 	Under the Dills Act
In addressing 	the 	unfair practice 	charges 	filed by Gonzales-
16

Coke, 	Hard and Hackett 	against 	CSEA, 	the ALJ noted:
. 	. 	. 	CSEA advances the novel claim that
charging 	parties 	have 	purposely misled 	PERB
and have 	attempted 	"to 	cause 	the 	state 	(PERB)
to violate 	section 3519 	against 	CSEA by-
dictating 	to CSEA how 	it 	will 	interpret 	and
apply 	its 	own policies 	to 	charging parties,
thereby 	dominating 	and 	interfering 	with
CSEA's 	rights 	to 	form and 	administer 	itself
pursuant 	to Govt. 	Code 	section 3519." 	It 	is
true that 	section 3519(d), 	among other
things, 	prohibits 	the 	State 	from interfering
with the 	administration of 	an employee
organization. 	However, 	because PERB 	is
exempt 	from the Dills Act 	and does 	not 	fall
under the definition of 	State 	employer, 	there
can be 	no 	section 3519 	violation on the
theory 	advanced 	by 	CSEA.
The 	Board agrees with the 	findings 	of 	the ALJ. 	Section
3513 (j) 	confirms that, 	for purposes of the Dills Act, 	PERB itself
was 	not 	intended by 	the 	legislature 	to 	be 	encompassed within 	the
term 	"employer." 	As 	section 3513 (j) 	explains:
"State employer," 	or 	"employer," 	for the
purposes 	of 	bargaining 	or meeting 	and
conferring 	in good faith, 	means 	the Governor
or his 	or 	her 	designated 	representatives.
Nor does 	the 	Board agree with CSEA's 	claim that 	PERB 	is
encompassed within the 	term 	"state," 	as 	set 	forth 	in 	section
3519. 	Section 3512 	shows 	that 	the 	"state," 	for purposes of
application of 	the Dills Act, 	pertains 	to the 	state as 	an
employer.11 It 	does 	not 	pertain to 	all 	agencies 	of 	the 	state,
1:1Section 3512 	states, 	in relevant part:
It 	is 	the purpose of 	this 	chapter to promote
full 	communication between 	the 	state 	and 	its
employees 	by providing 	a 	reasonable 	method 	of
resolving disputes 	regarding wages, 	hours,
and other 	terms 	and conditions 	of 	employment
between 	the 	state 	and public 	employee
17

- -
such as 	PERB, 	which may jurisdictionally 	interface 	with either
the 	state 	as 	an employer or with 	state 	employee 	organizations.
3. 	CPU As An Employee Organization
In his 	proposed decision the ALJ, 	citing 	to 	California 	State
Employees Association 	(Hackett, 	et al.) 	(1995) 	PERB Decision
No. 	1126-S 	(Hackett), 	found:
CSEA has 	advanced 	the 	novel 	argument 	that
charging parties' 	conduct 	is not protected
because 	CDU is 	an unlawful 	employee
organization competing with 	CSEA 	in 	a way
that 	undercuts 	CSEA's 	right 	to 	represent 	its
members 	on an exclusive basis. 	This 	argument
finds no 	support 	in the 	record, 	is 	squarely
at 	odds with PERB case 	law, 	and ultimately is
unconvincing. 	PERB has 	never ruled that 	CDU
is 	an employee 	organization under 	the 	Dills
Act. 	Quite the opposite 	is true. 	In
concluding 	that 	activity of 	the 	type 	at 	issue
here 	is protected, 	PERB 	in Hackett 	recognized
that 	CDU is 	a 	reform organization only and
found that Hard, 	Hackett, 	and CDU represent 	a
challenge 	to the 	current 	leadership 	-- 	not
the union itself. 	(Hackett 	at p. 	6.) 	There
is 	no basis 	in this 	record to reach a
different 	conclusion.
Citing Hackett, 	CSEA again argues 	before 	the 	Board that 	PERB
has 	previously determined 	CDU 	is 	an employee 	organization within
the meaning of 	the Dills Act. 	This 	argument 	is based upon a
misreading of 	the Board's 	decision in Hackett.12 In that
decision the Board, 	based upon the 	facts before 	it, 	determined
that 	the 	conduct 	of 	Hackett, 	Hard and others 	demonstrated that
organizations.
12Following 	the 	filing of 	the proposed decision, 	exceptions
and response 	in this 	case, 	Hackett 	was 	overruled on other grounds
in California State Employees Association 	(Hard, 	et 	al.) 	(1999)
PERB Decision No. 	1368-S 	(Hard, 	et al.).
18

they 	were 	participating 	in 	CSEA. 	As 	the 	ALJ held 	in 	his 	proposed
decision 	in 	Hackett, 	a 	holding 	which 	the 	Board 	recently 	cited
with 	approval 	in 	California 	State 	Employees 	Association, 	et 	al.
v. 	State 	Employee 	Caucus 	for a Democratic 	Union, 	et 	al. 	(2000)
PERB Decision N o . 	1399-S 	(CSEA/CPU):
What 	M s . 	Hackett, 	Mr. 	Hard and others 	have
underway 	is 	an 	attempt 	to 	take 	over 	CSEA, 	not
destroy 	it. 	What 	they 	seek 	to 	do 	is 	to
convert 	CSEA 	to 	their 	view 	of 	unionism.
Thus, 	in both Hackett 	and 	CSEA/CPU, 	the 	Board 	found 	that
Hard 	and 	Hackett 	were 	involved 	in 	a 	challenge 	to 	the 	then-current
leadership 	of 	CSEA, 	and 	not 	to 	CSEA 	itself. 	CSEA's 	claim that
the 	Board 	has 	previously 	found 	CPU 	to 	be 	an 	employee 	organization
within 	the 	meaning 	of 	the 	Dills 	Act 	is 	unsupported 	by 	our
caselaw. 	To 	the 	contrary, 	those 	decisions 	support 	a 	finding 	that
CPU, 	based 	on 	the 	record presented 	in 	those 	cases, 	constituted 	a
political 	faction 	within 	CSEA, 	and 	not 	a 	separate 	employee
organization.
CSEA 	additionally 	claims 	that 	the 	State 	of 	California
(Department 	of 	Personnel Administration) 	(DPA), 	exercising 	its
exclusive 	authority 	under 	Pills 	Act 	section 	3520.7,1 3 has
13 Section 	3520.7 	provides 	as 	follows:
The 	state 	employer 	shall 	adopt 	reasonable
rules 	and 	regulations 	for 	all 	of 	the
following:
(a) 	Registering 	employee 	organizations, 	as
defined by 	subdivision 	(c) 	of 	Section 	1150,
and bona 	fide 	associations, 	as 	defined 	by
subdivision 	(d) 	of 	Section 	1150.
(b) 	Determining 	the 	status 	of 	organizations
19

determined 	that 	CDU 	is 	an 	"employee 	organization." 	Such 	a
determination, 	CSEA claims, 	is 	based on DPA's 	"findings" 	that 	CDU
is 	not 	a 	bona 	fide 	association 	under 	Government 	Code 	section
1150,1 4 in 	that 	CDU has 	as 	a primary purpose 	"representation 	of
rank 	and 	file 	employees 	on matters 	within 	the 	scope 	of
bargaining" 	and 	that 	CDU 	is 	"in 	actual 	fact 	affiliated 	with
CSEA." 	Contrary 	to 	the 	argument 	of 	CSEA, 	such 	findings 	by DPA
are 	not 	inconsistent 	with 	the 	Board's 	conclusion 	in 	Hackett 	that
CDU, 	at 	least 	at 	the 	time 	of 	the 	Hackett 	decision 	in 	1995,
and 	associations 	as 	employee 	organizations 	or
bona 	fide 	associations.
(c) 	Identifying 	the 	officers 	and
representatives 	who 	officially 	represent
employee 	organizations 	and 	bona 	fide
associations.
14 Government 	Code 	section 	1150, 	which 	deals 	with 	issues
relating 	to 	salary 	and wage 	deductions 	for 	state 	employees,
includes 	the 	following 	definitions:
(c) 	"Employee 	organization" 	means 	an
organization 	which 	represents 	employees 	of
the 	state 	or 	the 	California 	State 	University
in 	their 	employer-employee 	relations, 	and
which 	is 	registered 	with 	the 	Department 	of
Personnel 	Administration 	or 	the 	Trustees 	of
the 	California 	State 	University, 	or 	which 	has
been 	recognized 	or 	certified 	by 	the 	Public
Employment 	Relations 	Board.
(d) 	"Bona 	fide 	association" 	means 	an
organization 	of 	employees 	and 	former
employees 	of 	an 	agency 	of 	the 	state 	and 	the
California 	State 	University, 	and which 	does
not 	have 	as 	one 	of 	its 	purposes 	representing
these 	employees 	in 	their 	employer-employee
relations.
20

constituted 	a political 	faction within 	CSEA.15
Based on the 	facts 	of 	this 	case, 	CSEA's 	current 	claim that
CDU's 	nature 	and 	conduct 	were 	that 	of 	a 	competing 	employee
organization was 	properly 	rejected by 	the 	ALJ.16 Future
determinations 	of 	this 	question will 	turn on the 	conduct
presented.
4. 	Allegations 	of Retaliation
Turning 	to 	the 	Ferrasci 	complaint, 	the ALJ 	found that 	CSEA
retaliated 	against 	charging parties 	for 	distributing 	The 	Union
Spark, 	a CDU newspaper, 	at a work site 	in San Jose. 	The ALJ
determined that, 	unlike 	the 	other 	seven 	internal 	complaints 	which
were 	dismissed, 	the 	CSEA Board of 	Directors 	ratified the 	Ferrasci
complaint 	when 	it 	adopted 	the 	recommendation of 	the 	hearing panel
which 	found 	charging parties 	in violation of 	CSEA policies. 	The
ALJ 	concluded 	that 	this 	ratification violated Dills 	Act 	section
3519.5(b).
We 	disagree. 	Although the 	amended 	complaint 	alleges 	that
the 	internal 	grievance was 	upheld because 	of 	charging parties'
distribution of 	The Union Spark, 	the 	record 	fails 	to 	support 	this
15Nor does 	CSEA persuasively argue 	how the 	finding 	of 	DPA 	is
binding upon 	PERB.
16The ALJ also properly denied CSEA's 	claim that 	CDU, 	as 	an
employee 	organization, 	was 	subject 	to the prohibitions 	of 	section
3519.5, 	which states 	in relevant part:
It 	shall 	be unlawful 	for an employee
organization to:
(a) 	Cause or attempt 	to cause the 	state to
violate 	Section 	3519.
21

claim. 	The 	alleged 	retaliatory conduct 	by 	the 	CSEA Board of
Directors 	on 	the 	Ferrasci 	complaint 	was 	not 	predicated upon
distribution of 	The Union 	Spark. 	It 	was 	based upon disparaging
remarks 	regarding 	another union member.
A review of 	the 	action 	taken by 	the 	CSEA Board of 	Directors
shows 	that 	it 	adopted the 	recommendation of 	the 	investigative
panel 	in this 	internal 	dispute. 	The 	recommendation was 	that
Gonzales-Coke, 	Hard and Hackett 	be 	advised that 	they were
"leaders" 	in CSEA, 	and that, 	as 	such, 	they had violated CSEA
Policy File 	section 	1A2.00 	by distributing 	the 	disparaging
remarks 	directed at 	Ferrasci 	in The Union 	Spark.17
The 	Board has 	reviewed a 	copy of 	The Union 	Spark 	in
question. 	It 	is 	an eight 	page publication containing a number of
articles. 	However, 	the 	article pertaining to Ferrasci 	only
addresses matters 	of 	internal 	CSEA politics. 	(Service 	Employees
International Union, 	Local 	99 	(Kimmett) 	(1979) 	PERB Decision
No. 	106 at pp. 	15-17.) 	As a result, 	the underlying CSEA
grievance, 	upon which the 	unfair practice 	charge 	before 	the 	Board
is based, 	and upon which that 	charge must 	stand or fall, 	was a
17The Board 	finds 	it 	significant 	that 	one 	of 	the 	other
internal 	union grievances 	filed against 	the 	charging parties 	in
this matter, 	the Robles 	complaint, 	also concerned distribution of
The Union Spark. 	In this 	grievance Robles 	and eighteen other
CSEA members 	complained of 	an article 	in the 	CDU newspaper which
had 	criticized 	the 	State 	of 	California's 	bargaining proposals 	as
a 	form of 	"disrespect." 	Robles- testified that 	it 	appeared 	"they
were using our resources 	for their agenda, 	which 	I 	took objection
to." 	At 	the 	CSEA hearing on this 	complaint, 	Hard and Hackett
argued 	that 	the 	complaint 	interfered with 	their protected 	rights.
The 	hearing panel 	recommended 	that 	the 	Robles 	complaint 	be
dismissed 	for 	lack of 	evidence, 	and the 	Board of 	Directors
adopted 	this 	recommendation.
22

purely 	internal 	union matter.
Since 	the 	time 	of 	the ALJ's 	ruling, 	the Board has 	had the
opportunity 	to 	address 	its 	policy 	regarding 	cases 	which 	involve
union disputes. 	In Hard, 	et al., 	the Board affirmed that 	it will
not 	intervene 	in disputes 	which only 	involve 	the 	internal 	union
activities 	of 	an employee organization, 	unless 	those 	activities
impact employer-employee relations. 	(Id. 	at p. 	28; 	see also,
California 	State Employees Association 	(Hutchinson, 	et 	al.)
(1998) 	PERB Decision No. 	1304-S.) 	In California State Employees
Association 	(Hutchinson) 	(1999) 	PERB Decision No. 	1369-S, 	at
p. 	3, 	the Board, 	quoting Hard, 	et al., 	reiterated that:
. 	. 	. 	'the Dills Act does not protect solely
internal 	union participation 	and 	activities
of employees, which do not 	impact employer-
employee 	relations. 	The burden of proof 	is
on 	the 	charging party 	to 	demonstrate 	the
existence 	of 	such an 	impact.
The 	Board 	finds 	nothing 	to 	indicate 	that 	the 	Ferrasci
complaint 	impacted 	the 	employer-employee 	relationship. 	No 	impact
on employer-employee 	relations was 	alleged, 	no 	evidence was
introduced to prove 	such an 	impact 	occurred, 	and no 	finding of
such 	impact 	was 	made by the ALJ. 	Charging parties 	have 	therefore
failed to meet 	their burden of proof 	on this 	threshold 	issue. 	As
a result, 	the Board will 	not 	reach the merits of 	the charge. 	The
proposed decision, 	insofar as 	it 	finds 	retaliation on the part 	of
CSEA, 	is 	reversed, 	and the unfair practice charges 	are dismissed.
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ORDER
The 	proposed 	decision 	finding 	the 	California 	State 	Employees
Association unlawfully 	retaliated 	against 	the 	charging 	parties 	is
hereby REVERSED, 	and the unfair practice 	charges 	in Case Nos.
SA-CO-199-S 	and 	SA-CO-201-S 	are 	DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members Amador 	and Baker 	joined 	in 	this 	Decision.
24