California State Employees Association (Hard and Hackett) (PERB A304S)

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STATE OF CALIFORNIA
DECISION OF THE oo
PUBLIC EMPLOYMENT RELATIONS BOARD

JIM HARD AND CATHY HACKETT,

Charging Parties, Case No. SA-CO-211-S

v. Administrative Appeal

CALIFORNIA STATE EMPLOYEES PERB Order No. Ad-304-S

ASSOCIATION,
September 15, 2000

Respondent.

ee ee es fe es es es es

Appearance: Michael D. Hersh, Attorney, for California State
Employees Association.

Before Dyer, Amador and Baker, Members.
DECISION

AMADOR, Member: This case comes before the Public
Employment Relations Board (PERB or Board) on exceptions filed by
the California State Employees Association (CSEA) concerning an
order (attached) by a PERB administrative law judge (ALJ) denying
CSEA’s motion to seal documents in the underlying unfair practice
charge. CSEA also requests the Board to re-open the record.*

After a review of the entire record in this case, the Board
finds the ALJ’s order to be proper and adopts it, consistent with
the following discussion.

DISCUSSION

Exceptions to Order Denying Motion to Seal Documents

‘The ALJ’s decision dimissing the underlying unfair practice
charge became final on March 20, 2000. (CSEA (Hard, et al.) (2000)
PERB Decision No. HO-U-747-S.) ‘

CSEA's
	exceptions
	restate
	the
	arguments
	which
	it
	presented
to 	the
	ALJ
	in
	support
	of
	its
	motion
	to 	seal
	do.cuments.
	Lengthy
discussion
	of 	these
	arguments
	is
	unnecessary, 	as 	the
	Board
	finds
that 	the
	ALJ's
	ruling
	is
	well
	founded.
Additionally,
	CSEA
	asserts 	that
	the
	ALJ
	erroneously
	refers
to
	a 	memo
	from
	Michael
.Hersh 	(Hersh)
	dated
	March
	15, 	1995.
	CSEA
states 	that
	the
	memo
	in
	question
	was
	actually
	from 	Rosmaire 	Duffy
Hersh,
	and
	claims
	that
	this 	error
	fected 	the
	ALJ's
	legal
analysis
	of
	the
	document.
The
	Board
	has
	read 	the
	memo
	in
	question,
	and
	it
	is
	evident
that 	the
	ALJ
	merely 	switched
	the
	name
	of 	the
	recipient
	and
sender.
	This
	inadvertent
	error
	does
	not
	affect
	the 	substance
	of
the 	ALJ's
	analysis, 	in
	which 	he
	concludes
	that
	the
	document
	does
not
	qualify 	for 	protection
	under
	the
	attorney-client 	privilege,
as
	a
	trade 	secret,
	or
	under
	any
	other
	theory
	offered
	by
	CSEA.
	In
discussing 	the
	March
	15,
	1995
	memo,
	the
	ALJ
	correctly
	notes
	that
the
	memo
	does 	not 	involve
	or 	contain 	attorney
	advice;
	he
describes
	it
	as 	the
	writer's
	speculation
	about 	whether
	persons
who
	attended
	a
	certain
	meeting
	were
	members
	of
	Caucus
	for
	a
Democratic 	Union.
	This
	description
	is
	accurate
	and
	the 	ALJ's
legal 	conclusion
	is
	unaffected
	by
	the 	fact 	that
	the
	memo
	was
written 	to
	an
	attorney 	rather
	than
	by 	an
	attorney.
	The
	Board,
therefore, 	adopts 	the 	ALJ's 	denial 	of 	the
	motion
	to 	seal
documents.
2
2
The 	Board 	adopts 	the 	entire
	Order 	Denying 	Motion 	to 	SealDocuments 	with 	the 	exception 	of 	the 	following 	text: 	the
	lastparagraph 	on 	page 	14 	and 	the
	first
	6
	lines
	on 	page 	15. 	The 	Board
2

Request
	for
	Order
	to
	Re-ooen 	Record
CSEA
	also 	requests
	the
	Board
	to
	re-open
	the 	record
	to
take
	j4dicial
	notice
	of
	the 	Board's
	own
	records
	under
	PERB
Regulation
	32320
3 •	
That
	regulation
	permits 	the
	Board
	to	
11
order
record
	re-opened
	for
	the 	taking
	of
	further
	evidence,
	or
	take
such
	other 	action
	as
	it
	considers 	proper.''
	Although
	this
regulation
	piovides 	the
	Board
	with
	broad
	discretion,
	there
	is
	no
compelling 	reason
	to 	exercise
	that 	scretion
	here.
	The
	ALJ
thoroughly 	considered
	a
	voluminous
	factual
	record,
	and
	his 	legal
conclusions 	are
	consistent
	with 	precedent.
	CSEA
	presents
	no
persuas 	reason
	that
	''further
	evidence
11	
of
	any
	kind
	will
	assist
the
	Board
	in
	resolving
	this
	case.
The
	Board,
	therefore,
	denies
	CSEA's
	request 	to 	re-open 	the
record.
ORDER
The
	Board
	hereby
	AFFIRMS
	the
	ALJ's 	Order
	Denying 	Motion
to 	Seal
	Documents
	and
	DENIES
	California 	State
	Employees
Association's
	Request
	to
	Re-open
	the
	Record
	in
	Case
No.
	SA-CO-211-S.
Members
	Dyer 	and 	Baker
	joined
	this
	Decision.
makes 	no
	ruling 	with 	regard 	to
	PERB's
	ability 	to 	seal
	documents
which
	are 	in
	wide
	circulation.
3 PERB
	regulations 	are 	codified 	at 	California
	Code
	of
Regulations,
	title
	8, 	section
	31001
	et 	seq.
3

-

STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
JIM
	HARD
	AND
	CATHY
	HACKETT,
Charging
	Parties,
v.
CALIFORN"IA STATE
	EMPLOYEES
ASSOCIATION,
Respondent.
)
)
)
)
)
)
)
)
)
)
___________________ )
Unfair
	Practice
Case
	No.
	SA-CO-211-S
ORDER
	DENYING
	MOTION
TO
	SEAL
	DOCUMENTS
Appearances: 	Jim
	Hard 	and 	Cathy
	Hackett,
	in
	pro
	per;
	Michael
	P.
White,
	Attorney,
	for 	California 	State
	Employees
	Association.
NOTICE
	hereby
	is
	given
	that
	the
	motion
	of 	the
	California
State
	oyees
	Association
	(CSEA)
	to 	seal
	certain
	documents
filed
	as 	attachments
	to
	the
	above
	unfair 	practice
	charge
	and
introduced 	as
	exhibits
	the 	hearing	
DENIED.
Throughout
	this
	proceeding,
	CSEA
	sought
	an
	order
	to 	seal
certain
	documents
	contained
	in
	the 	record.
	These 	documents 	were
attached 	to
	the
	charge
	and
	then
	became
	exhibits
	during 	the
hearing.
	CSEA
	made
	its 	initial
	motion 	on
	May
	24, 	1999,
	to 	seal
certain
	documents
	attached 	to 	the 	charge. 	This 	motion
	was
	denied
by
	the 	undersigned
	on
	July
	15, 	1999.
	The
	motion
	was
	renewed
	at
the 	hearing
	and 	expanded
	to 	include
	Charging
	Party 	Exhibit
	4.
The
	motion
	was
	again	
CSEA
	refiled
	the
	motion
	in
	a 	much
abbreviated
	form 	on November
	8, 	1999.
Described 	below
	is
	of 	the
	documents
	identified
CSEA's 	November 	8, 	1999, 	motion
	to 	seal, 	together 	with
	a 	summary
of 	the 	testimony 	of
	CSEA's
	custodian 	of 	documents,
	Controller
1
See 	Reporter's 	Transcript,
	Vo,lume
	I, 	at 	pp. 	43-48.

Pat
	9k 	Haagensen,
	about
	the
	documents:
---Memo
	from
	Barbara Glass
	to
	Mr.
	Haagen~en,
	dated
December
	3, 	1992,
	authorizing
	and
	setting
	out
	justification
	for
Perry
	Kenny's
	housing 	allowance.
2	
Mr.
	Haagensen
	testified
	that
the
	document
	is
	a
	business 	record,
	not
	available 	to
	the
membership
	because
	it
	concerns
	"the
	reimbursement
	or
	expense
transaction
	which, 	by
	CSEA
	policy,
	is
	confic;lential.
11
	The
	memo
	is
not
	marked
	11
confidential.u
--Memo
	from
	Ms.
	Glass
	to
	Mr.
	Haagensen,
	dated
	November
	9,
1994,
	authorizing
	an
	increase
	in
	Mr.
	Kenny's
	housing
	lowance.
3
Mr.
	Haagensen
	testified
	that
	the
	document
	is
	a
	business 	record,
not
	available 	to
	the
	membership
	because
	it
	concerns
	a
"confidential 	transaction,
	monetary
	transaction.
11
	The
	memo
	is
not
	marked
	"confidential."
--Memo
	from
	Ms.
	Glass
	to
	Mr.
	Haagensen,
	dated
	June 	7, 	1996,
discontinuing
	Mr.
	Kenny's 	housing 	allowance.
4	
Mr.
	Haagensen
testified
	that
	the
	document
	is
	a
	business 	record, 	not
	available
to 	the
	membership
	because
	it
	concerns
	a
	"confidential
	monetary
transaction.
11
	The
	memo
	is
	not
	marked
	"confidential.
11
---Memo
	from
	Mr. 	Kenny
	to
	the 	Executive
	Committee
	of 	the
CSEA
	Board
	of 	Directors, 	dated 	October
	19, 	1998, 	by 	which 	he
transmitted 	copies 	of 	the 	contracts 	of
	two
	prior
	CSEA
	general
managers,
	a
	proposed
	contract 	for
	Mr.
	Haagensen 	and
	certain 	other
2
Charging 	Party 	Exhibit
	4
	at
	p. 	47.
3
Charging 	Party 	Exhibit
	4
	at 	p. 	48.
4
Charging 	Party 	Exhibit
	4
	at 	p. 	51.
2

related
	documents.
5	
Mr.
	Haagensen
	testified
	that
	the
	document
is
	a
	business 	record,
	not
	available 	to
	the
	me!l1bership
	because
	it
concerns
	a
	!!confidential 	personnel
	transactions."
	The
	memo
	is
marked
	"confidential."
---Memo
	from
	Jim
	Hard
	to
	the
	Civil
	Service 	Division
	Council,
dated
	October
	22, 	1998, 	by 	which 	he
	analyzed
	and
	critiqued
	the
proposed
	contract
	of
	Mr.
	Haagensen
	to
	secure
	his
	service 	as
general
	manager
	CSEA. 6	
Mr.
	Haagensen
	testified
	that
	the
document
	is
	a
	business 	record, 	not
	available 	to
	the
	membership
because
	it
	concerns
	a
	"confidential
	personnel
	transactions.
11	
The
memo
	is
	not
	marked
	11
confidential.n
-Memo
	from
	Bill
	Cook,
	CSEA
	staff
	employee,
	to
	Tut
	Tate,
CSEA
	Civil
	Service 	Division Administrator, 	dated
	July
	24, 	1992,
describing 	the
	distribution
	of
	leaflets
	in 	front
	of
	a
	State
building.
7	
Mr.
	Haagensen
	testified
	that
	the
	document
	is
	a
business 	record, 	not
	available 	to
	the
	membership
	because
	it
11
[h]as
	to
	do
	with
	internal 	strategies,
	with 	regard
	to
	CSEA
	and
its
	bargaining
	units.
11
	The
	memo
	is
	not
	marked
	"confidential."
---Memo
	from
	Mr. 	Cook
	to
	Bob
	Zenz,
	former
	CSEA
	general
manager,
	dated
	August 	24, 	1992,
	describing 	conversations 	with
5
Charging
	Party Exhibit
	4
	at
	p.
	60. 	The 	documents
	described
in 	the
	memo
	as 	attachments 	are 	not
	a
	part 	of 	Exhibit 	4.
6
Charging 	Party 	Exhibit
	4
	at
	pp.
	61
	and 	62.
7
Charging 	Party 	Exhibit
	4
	at 	p. 	69. 	The
	leaflet 	discussed
in 	the
	memo
	is
	a
	Caucus
	for
	a
	Democratic 	Union
	(CDU)
	flier
	and
	is
p.
	70
	of 	Exhibit 	4. 
3

various
	CSEA
	managers
	about
	the
	distribution
	of
	a
	CDU
	flyer.
8
The
	memo
	is
	marked
	11
confidential.
11
	Mr.
	Haagensen
	testified
	that
the
	document
	is
	a
	business 	record, 	not
	available 	to
	the
membership
	because
	it
	is
	marked
	confidential
	and
	because
	it
	"is
about
	the
	Caucus
	for
	a
	Democratic
	Union
	and
	suspicions
	on
	the
staff
	that 	this
	is
	a
	decertification
	effort.
11
--Memo
	from
	Virginia
	Guadiana,
	CSEA
	manager,
	to
	CSEA
	area
managers,
	dated
	October
	29, 	1992,
	directing
	the
	staff
	to
	perform
closer 	surveillance
	of
	CDU
	activity.
9	
The
	memo
	is
	marked
"confidential."
	Mr.
	Haagensen
	testified
	that
	the
	memo
	is
	not
available 	to
	membership
	because
	it
	is
	marked
	"confidential"
	and
nalso
	addresses
	some
	internal
	organizing
	that
	was
	going
	on
	by
	the
Caucus
	for
	a
	Democratic
	Union
	and
	the
	staff
1 s
	concern 	about
	it
being
	a
	decertification 	fort."
- 	-Memo
	from 	"Committee
	Assigned
	to
	CDU"
	to
	Ms.
	Tate,
	dated
December
	15, 	1992,
	in
	which
	CSEA
	staff
	managers
	on
	the
	committee
set
	out
	their
	analysis
	of
	CDU,
	its
	operation
	and
	goals
	and
appropriate
	responses
	from
	CSEA.
10	
The
	memo
	is
	marked
"confidential."	
Mr.	
Haagensen
	testified 	that
	the
	memo
	is
	not
available 	to 	the
	membership
	because
	11
[i]t's
	marked
	confidential
and
	addresses
	CSEA's
	concern
	that
	. 	.
	there
	was
	a 	move
	by
	CDU
to 	decertify.
11
8
Charging 	Party Exhibit
	4
	at
	p. 	73.
9
Charging 	Party 	Exhibit
	4
	at 	p. 	74.
::.ocharging
	Party 	Exhibit
	4
	at
	pp. 	75-82.
4

--Memo
	from 	Rosmarie
	Duffy,
	a 	CSEA
	staff
	employee,
	to
Mr.
	Zenz,
	dated 	January
	13,
	1993,
	reporting
	a:p.
	increase
	in
	member
questiqns
	about
	legations
	made
	in
	CDU
	publications.
11	
The
memo
	is
	marked
	11
confidential.
11
	Mr.
	Haagensen
	testified
	that
	the
memo
	is
	not
	available 	to
	the
	membership
	because	
0
it
	is
	marked
confidential
	and
	addresses 	the
	activities
	CDU,
	which
.CSEA
believed
	was
	attempting
	to
	decertify
	it."
--Memo
	from
	the
	11
Know
	Your 	Union
11
	Committee
	to
	Ms.
	Tate,
dated
	January
	25,
	1993,
	reporting
	on
	plans
	to
	increase
	CSEA
educational
	efforts
	with
	members
	as
	a
	way
	of
	combatting
	CDU.
12
The
	memo
	is
	marked
	"confidential 	report.
11
	Mr.
	Haagensen
testified
	that
	the
	memo
	is
	not
	available 	to 	the
	membership
because
	it
	is
	"identif
	as
	a
	confidential 	report,
	and
	similarly
addresses
	CDU
	activities
	within
	CSEA,
	and
	CSEA's
	suspicion
	that
the
	CDU
	was
	attempting
	to 	decertify
	it.
11
11
	---
	Confidential 	Report," 	dated April
	26, 	1993, 	by 	"an 	ad
hoc
	committee
11
	that
	met
	to 	deliberate
	about
	activities
	of 	the
CDU.
13	
Neither 	author(s) 	or 	recipient(s)
	of 	the 	report 	are
identified.
	Mr.
	Haagensen
	testified
	that
	the 	report
	is
	a
business 	record 	of
	CSEA
	but
	also
	acknowledged
	the
	possibility
that
	it
	is
	not
	a
	business 	record.
---Memo
	from 	Hernandez,
	CSEA
	staff,
	to
	Mr.
	Zenz,
	dated
April
	27, 	1993, 	recommending
	the 	preparation of
	a
	legal 	analysis
11
Charging 	Party 	Exhibit
	4
	at
	p. 	83.
12
Charging 	Party Exhibit
	4
	at
	pp. 	84-88.
13
Charging 	Party Exhibit
	4
	at
	pp. 	89-90.
5

in 	order 	to
	11
formulate
	a
	just
	and
	proper
	method
	to
	combat
the
	actions
	of
	CDU.
1114	
The
	memo
	is
	marked
	11
copfidenti
	"
Mr.
	Haagensen
	testified
	that
	the
	memo
	is
	not
	available
	to 	the
membership
	because
	11
[i]t's
	addressed
	--
	marked
	confidential
	and
the
	subject
	matter 	of
	CDU
	activities,
	CSEA
	believed
	CDU
	was
attempting
	to 	decertify
	it.
11
-Ideas
	from
	CSEA
	central
	area
	office
	staff
	meeting,
	of
March
	22, 	1993.
15 	The
	document
	consists
	of
	brief
	statements,
most
	of
	them
	six
	words
	or
	fewer
	consisting
	ideas 	for
	improving
the
	visibility
	and
	internal
	operations 	of
	CSEA.
	Neither 	the
author(s)
	nor
	the
	recipient(s)
	is
	(are)
	identified.
	The
	document
is
	not
	marked
	11
confidential.
1'
	Mr.
	Haagensen
	testified
	the
document
	is
	not
	available 	to
	the
	membership
	because"
[i]t
addresses 	the 	subject 	of
	CDU
	activit
	; 	CSEA
	believed
	CDU
	was
attempting
	to 	decertify
	it,
	it's
	a
	strategy 	related 	to
	that.
11
---Ideas
	from
	CSEA
	coastal 	area
	office
	staff
	meeting,
	of
March
	26, 	1993.
16 	The 	document
	consists
	of
	brief
	statements,
most
	of
	them
	six
	words
	or
	fewer
	consisting 	of 	ideas 	for
	improving
the
	visibility
	and
	internal 	operations 	of
	CSEA.
	Neither 	the
author(s) 	nor 	the 	recipient(s)
	is
	(are)
	identified.
	The
	document
is
	not
	marked
	nconfidential.
11
	Mr.
	Haagensen
	testified
	the
document
	is
	not
	available 	to 	the
	membership
	because
	it
14
Charging 	Party 	Exhibit
	4
	at
	pp. 	91-93.
15 Charging 	Party 	Exhibit
	4
	at
	pp. 	94-96.
16
Charging 	Party 	Exhibit
	4
	at
	pp. 	97-98.
6 	I

11
[p]ertains 	to
	CSEA's
	perception
	that
	CDU
	was
	attempting
	to
decertify
	it
	and
	its
	strategies 	related 	to 	th~t."
---Ideas
	from
	CSEA
	joint
	meeting
	of
	staff
	members
	from
Fullerton
	and
	Los
	Angeles,
	January
	23, 	1993. 17	
The
	document
consists
	of
	brief
	statements,
	most
	of
	them
	six
	words
	or
	fewer
consisting
	of 	ideas
	for
	improving
	thevisibility
	and
	internal
operations
	of
	CSEA.
	Neither 	the 	author(s)
	nor
	the
recipient(s)
	is
	(are)
	identified.
	The
	document
	is
	not
	marked
nconfidential.n
	Mr.
	Haagensen
	testified
	the
	document	
is	
not
available 	to
	the
	membership
	because
	it
	11
[p]ertains 	to
	CSEA's
perception
	that
	CDU
	was
	attempting
	to
	decertify
	it
	and
	its
strategies 	related
	to
	that.
11
---Memo
	from
	CSEA
	sta
	employee
	Anna 	Kammerer
	to
	Mr.
	Cook
dated
	May
	26, 	1993, 	and
	forwarding
	memo
	to
	Mr.
	Zenz
	regarding
	CDU
leafleting 	activities
	outside
	a
	State 	building
	in
	Sacramento.
18
The
	forwarding
	memo
	is
	marked
	"confidential"
	although 	the
	memo
from
	Ms.
	Kammerer
	is
	not
	so
	marked.
	Mr.
	Haagensen
	testified
	the
Kammerer
	memo
	and
	cover
	memo
	to
	Mr.
	Zenz
	were
	not
	available 	to
the
	membership
	because
	11
[i]t's
	marked
	confidential
	and
	we
	don't
distribute
	things 	to
	the
	membership
	at 	large
	marked
	confidential.
It
	also
	has
	a
	reference 	to
	CDU
	activity;
	CSEA
	believed
	CDU
	was
attempting 	to 	decertify
	it.
11
---Memo 	from 	Karen 	Cole
	to
	Mr. 	Cook,
	dated 	June 	24, 	1993,
regarding 	questions 	she
	was
	asked 	during
	a
	meeting 	with
	State
17
Charging 	Party 	Exhibit
	4
	at 	p.
	99.
18
Charging 	Party 	Exhibit
	4
	at
	pp. 	102-103.
7 	'

employees
	about
	statements
	made
	in
	CDU
	flyers.
19	
The
	memo
	is
not
	marked
	11
confidential.
11
	Mr.
	Haagensen
	tes_tif
ied
	that
	the
	memo
is
	not
	available 	to
	the
	membership
	because
	it
	11
[h]as
	to
	do
	with
CSEA 1 s
	strategy
	with 	regard
	to
	opposing
	what
	it
	perceived
	to
	be
an
	effort
	by
	CDU
	to 	decertify
	it.
11
-Letter
	dated
	September 	14, 	1993, 	from
	Frank
	Guilelmino
	to
Burton
	Oliver, 	executive
	director
	of 	the
	Sta,te 	Board
	of
Equalization
	(BOE),
	complaining 	about
	the
.distribution
	of
literature
	by
	Mr.
	Hard 	and
	Cathy
	Hackett
	in
	the
	lobby
	of 	the
BOE
	building.
20	
The
	letter 	is
	not
	marked
	"confidential.
11
Mr.
	Haagensen
	testified
	that
	CSEA
	would
	not
	consider 	the
	letter
public
	although
	he 	acknowledged
	that
	Mr.
	Oliver
	might
	do
	so.
Mr.
	Haagensen
	also
	testified
	that
	he
	did
	not
	know
	if
	the
	letter
would
	be
	available 	to
	CSEA
	members. 	But 	he
	said
	it
	was
	11
a
strat
	and
	could
	be
	lumped
	with 	those
	others
	.
	where
	we
	are
not 	prone
	to 	disclose
	our
	strategy
	with 	regard
	to
	stopping
decertification 	efforts."
---Memo 	from
	Ms.
	Tate
	to
	Mr. 	Zenz 1	
dated 	October
	26, 	1993
1
entitled
	11
Preparation 	for
	Meeting
	with
	Loren
	McMaster,
11
	an
attorney
	who
	had 	been
	hired 	to 	represent
	CSEA
	in 	dealings 	with
CDU.
21
The 	memo
	is
	not
	marked
	11
confidential.
11
	Mr.
	Haagensen
testified 	that
	the
	memo
	is
	not
	available 	to 	the
	membership
because
	it
	11
[h)as
	to
	do
	with preparation 	for
	a
	meeting 	with
19 Charging 	Party 	Exhibit
	4
	at 	p. 	114.
2
°Charging 	Party Exhibit
	4
	at
	pp. 	123-124.
21 Charging 	Party Exhibit
	4
	at 	pp. 	125-126.
8

counsel.
11
	He
	said
	its
	release 	to
	members
	would
	reveal
	CSEA
strategies.
---Notes
	from
	executive
	session
	of 	the
	CSEA
	Board
	of
Directors,
	May
	1,
	1993,
	setting
	out
	a
	motion
	adopted
	by
	the
	board
regarding
	discipline
	or
	legal 	action 	against
	any
	member
	whose
activities
	"could
	adversely
	affect
	CSEA.
1122	
The
	notes 	are
	not
marked
	11
confidential.
11
	Mr.
	Haagensen
	testified
	that
	the 	notes
were
	a
	record
	of
	what
	occurred
	at
	an
	executive
	session
	of
	the
Board
	of 	Directors
	which
	are
	confidential
	and
	are 	not
	reported 	in
the
	det
	1
	the
	document.
---Memo
	from
	Judie
	O'Nan-Roth
	to
	Ms.
	Guadiana,
	dated
February
	14, 	1994, 	which
	describes 	events
	at
	a
	CDU
	meeting
	held
on
	February
	8, 	1994,
	at
	a
	State 	building
	in
	Sacramento.
23 	The
memo,
	which
	is
	not
	marked
	11
confidential,
11
	quotes
	Mr.
	Hard
	as
stating 	that
	CDU
	did
	not
	want
	to
	replace
	CSEA
	but 	supported
	CSEA
and wanted
	to
	reform
	CSEA. 	Mr.
	Haagensen
	testified
	that
	the
	memo
is
	a
	business 	record,
	not
	available 	to
	the
	membership
	because
	it
uhas
	to
	do
	with
	CSEA's
	strategy 	in
	watching
	CDU
	for
	a
	potential
decertification
	attempt.
11
---Memo 	from
	Isaac
	Gonzalez
	to
	Ms.
	Guadiana,
	dated
February
	15, 	1994, 	which
	describes 	events
	at
	a
	CDU
	meeting
	held
on
	February
	10, 	1994,
	at
	a
	State 	building 	in	
Sacramento.
24	
The
memo
	was
	not
	marked
	11
confidential.
11
	Mr.
	Haagensen
	testified 	that
22
Charging 	Party 	Exhibit
	4
	at
	p. 	128.
23
Charging 	Party 	Exhibit
	4
	at
	p. 	143.
24
Charging 	Party 	Exhibit
	4
	at 	p. 	144.
9

the
	memo
	is
	a
	business 	record
1
	not
	available 	to
	the
	membership
because
	it
	11
[p]ertains 	to
	CSEA's
	strategy
	regarding
	opposing
CDU
1 s
	decertification
	attempt."
---Memo
	from
	Jeff
	Young
	to
	Ms.
	Guadiana 	and
	Mr.
	Guilelmino,
dated
	February
	24, 	1994, 	which
	describes
	events
	at
	a
	CDU
	meet
held
	on
	February
	9,
	1994,
	at
	a
	State 	building 	in
	Sacramento.
25
The
	memo
	was
	not
	marked
	"confidential.
11
	Mr.
	Haagensen
	testified
that
	the
	memo
	is
	a
	business 	record,
	not
	available 	to
	the
membership
	because
	it
	u
[p]
	ains 	to
	CSEA's
	strategy
	with 	regard
to
	opposing
	CDU
	as
	a
	potential 	decertification."
---Memo
	from
	Maria
	Basulto
	to
	Ms.
	Guadiana 	and
Mr.
	Guilelmino,
	dated
	March
	1,
	1994,
	about
	a
	conversation
	she
	had
with
	a
	member
	about
	comments
	by
	Mr.
	Hard
	at
	a
	CDU
	meeting
	on
February
	15, 	1994,
	at
	a
	State 	building
	in
	Sacramento.
26	
The
memo
	was
	not
	marked
	"confidential."
	Mr.
	Haagensen
	testified
	that
the
	memo
	is
	a
	business 	record, 	not
	available 	to 	the
	membership
because
	it
	11
[h)as
	to
	do
	with
	CSEA's
	strategy 	in
	opposing
	CDU
	as
	a
potent
	decertification
	attempt."
---Memo
	from
	Mike
	Hirsch,
	CSEA
	staff
	attorney, 	to
	Ms.
	Duffy,
dated
	March 	15, 	1995,
	regarding
	whether
	certain
	persons
	who
attended
	a 	CSEA
	committee 	meeting
	on
	February 	10, 	1995, 	were
members
	of
	CDU.
27
The
	memo
	was
	marked
	"confidential.
11
Mr.
	Haagensen
	testified 	that 	the
	memo
	is
	a
	bus	
s	
record, 	not
25
Charging 	Party 	Exhibit	
4	
at
	p. 	145.
26
Charging 	Party 	Exhibit	
4	
at
	p. 	146.
27
Charging 	Party 	Exhibit
	4
	at
	p. 	147.
10 ,

available 	to
	the
	membership
	because
	"it's
	marked
	confidential"
is
	a
	"communication between
	a
	staff
	membe-r
	and
	an
	attorney."
~-Memo
	from
	Ms.
	Duffy,
	to
	Joan
	Bryant,
	CSEA
	manager
	of
bargaining
	services,
	dated
	June
	161
	1995,
	regarding
	positions
	on
lective
	bargaining 	proposals
	that
	Ms.
	Duffy
	expected
	unit
	1
negotiators 	to
	take
	at
	a
	forthcoming 	meeting.
28
The
	memo
	was
marked
	11
conf
ideritial.
11
	Mr.
	Haagensen
	testified
	that
	the
	memo
	is
a
	business 	record,
	not
	available 	to 	the
	membership
	because
	"it's
marked
	confidential"
	and
	11
has
	to
	do
	with bargaining
	strategy.
11
---Letter
	from
	CSEA
	attorney
	Loren
	McMaster
	to
	Caucus
	for
	a
Democratic
	Union,
	dated
	November
	2, 	1993,
	asking
	CDU
	to
	respond
to
	certain
	questions
	and
	make 	a
	specific 	financial
	accounting.
29
The
	letter
	was
	not
	marked
	11
confidential.n	
Mr.	
Haagensen
testified
	that
	although
	his
	opinion 	the
	letter
	was
	not
	a
business 	record,
	would
	not
	available 	to
	the
	membership
	because
11
[p]ertains 	to
	CSEA's
	concerns
	and
	strategy
	with 	regard 	to
keeping
	the
	Caucus
	for
	a
	Democratic
	Union 	from
	participating 	in
activities
	which
	it
	believes
	is
	not
	within 	the
	SEIU
	constitution
and
	other 	matters.
11
CSEA
	argues
	that
	the
	documents
	identified
	above
	are 	trade
secrets
	which
	CSEA
	is 	entitled
	to
	keep
	confidential
	under
Evidence
	Code
	section
	1060.
	CSEA
	asserts 	that
	the 	Public
Employment
	Relations
	Board
	(PERB
	or
	Board)
	is
	permitted 	to 	seal
the
	documents 	under
	section
	6254
	of 	the 	California 	Public 	Records
28
Charging 	Party 	Exhibit
	4
	at
	p. 	149.
29 Charging 	Party 	Exhibit
	4
	at
	pp. 	150-151.
11,

Act.
	Citing
	an
	opinion 	of 	the
	California
	At~orney General
30
CSEA	
argues	
that
	a
	public
	record
	may	
be	
withheld
	11
where,
	on
	the
facts
	of
·the
	particular
	case, 	the
	public
	interest
	s~rved
	by
	not
making
	the 	record 	public
	clearly
	outweighs
	the 	public
	interest
served
	by
	disclosure."
Citing
	the
	testimony 	of
	Mr.
	Haagensen,
	CSEA
	argues
	it
	must
keep	
the	
documents
	private 	in
	order
	nto
	effectively
	maintain
	its
membership
	base
	and
	its
	competitive
	position 	in
	the 	labor
representation
	market,
	and
	in
	order 	for
	it
	to
	better
	serve
	its
members."
	CSEA
	describes
	the
	documents 	and
	private
	records
	of
individual
	members,
	privileged
	communications 	between
	itself
and
	its
	attorneys
	and
	confidential 	internal
	correspondence
and
	business 	records
	between
	management
	and
	staff.
	CSEA
characterizes
	the
	documents
	as
	"relating 	to
	business
	strategies
to
	defend
	itself
	against
	what
	it
	believes 	to
	be
	competitive
threats
	to
	its
	continued
	effectiveness 	or 	existence.
11
When
	such
	information
	is
	submitted 	as
	part
	of
	a
	public
record,
	CSEA
	contends,
	it
	may
	be
	sealed
	upon
	a
	proper
	showing,
pursuant 	to
	a
	countervailing 	public 	policy 	or
	statute.
	Citing
the
	Uniform Trade
	Secrets
	Act,
31	
CSEA
	argues
	PERB
	like
	a
	court
is
	required 	to 	preserve	
the	
secrecy 	of
	nan
	allegedn 	trade 	secret
by
	reasonable
	means
	including 	the 	sealing 	of 	the 	records.
	CSEA
argues
	that
	the
	documents
	at 	issue
	have	
11
economic
	value 	to
	any
competitor 	of
	CSEA, 	a
	value
	which
	CSEA
	will 	lose
	if 	it
	is
30
53
	Ops.Atty.Gen 	258.
31
Civil
	Code
	section
	3426
	et 	seq.
12

subjected 	to 	public 	disclosure." 	CSEA 	argues 	that 	as 	a
corporation 	CSEA has 	the 	right 	to 	determine 	which 	documents 	merit
confidentiality 	as 	legitimate 	business 	records 	and 	which 	can 	be
released 	publicly.
CSEA 	argues 	that 	at 	the 	time 	many 	of 	the 	documents 	were
prepared, 	it 	feared 	that 	it 	was 	facing 	a 	decertification 	threat.
The 	documents 	reveal 	the 	actions 	CSEA 	took 	to 	counter 	that 	threat
and, 	CSEA 	argues, 	would 	therefore 	be 	valuable 	information 	to 	any
competitor 	who 	might 	in 	the 	future 	seek 	to 	decertify 	CSEA.
In 	their 	opposition 	to 	the 	supplemental 	motion 	to 	seal,
Mr. 	Hard 	and 	Ms. 	Hackett 	quote 	heavily 	from 	the 	decision 	of
the 	administrative 	law 	judge 	(ALJ) 	in 	unfair 	practice 	case
SA-CO-201-S, 	Jim Hard 	and 	Cathy 	Hackett 	v. 	California 	State
Employees 	Association. 	There, 	the 	ALJ 	refused 	a 	similar 	request
by 	CSEA 	to 	seal 	these 	very 	same 	documents 	and 	other 	documents.
Reasserting 	arguments 	originally made 	in 	response 	to 	CSEA's
original 	request 	to 	seal, 	the 	charging 	parties 	argue 	that 	11 even
the 	most 	cursory 	review" 	will 	reveal 	that 	the 	documents 	are
neither 	confidential 	nor 	trade 	secrets. 	"These 	documents 	are
merely 	embarrassing 	to 	CSEA," 	Mr. 	Hard 	and 	Ms. 	Hackett 	argue.
Moreover, 	they 	continue, 	CSEA 	has 	failed 	to 	meet 	the 	requirements
of 	the 	cases 	it 	has 	cited. 	CSEA 	has 	not 	demonstrated
"exceptional 	circumstances," 	the 	charging 	parties 	assert.
"Respondent 	has 	merely 	established 	that 	revealing 	these 	documents
would 	be 	embarrassing."
13

~urthermore,
	Mr.
	Hard 	and
	Ms.
	Hackett
	continue, 	the
documents
	do
	not
	meet
	the
	statutory
	def
	tiop
	of
	a
	trade
	secret
because
	they
	have
	no
	economic
	value.
	Evin
	if
	they 	did,
	the
charging
	parties
	continue, 	the
	documents 	"were
	disclosed
	and
known
	the 	public
	domain
	and
	therefore
	lost
	any
	trade
	secret
value 	they
	might
	have
	had.
11
CSEA
	offers 	differing
	reasons
	for
	sealipg
	the
	28
	documents
identified
	in
	the
	motion.
	It
	describes 	the
	documents
	pertaining
to
	Mr.
	Kenny's
	housing 	allowance
	and
	Mr.
	Haagensen's 	proposed
contract
	as
	confidential
	personnel 	information.
	It
	describes
	the
documents
	pertaining 	to 	the
	approval
	by
	CSEA
	officers
	of
Mr.
	Kenny's 	housing 	allowance
	as
	confidential
	business 	records.
It
	describes 	various
	memoranda
	pertaining 	to
	the
	activities
	of
CDU
	as
	confidential
	business 	records.
	It
	describes
	every
	memo
and
	letter
	written
	by 	an
	attorney
	as
	a
	communication
	protected
the
	attorney-client 	privilege. 	Collectively,
	it
	describes
	1
the
	documents
	as
	trade
	secrets.
Even
	if
	I
	found
	merit
	to
	CSEA's
	arguments, 	which
	I
	do
	not,
	I
do
	not 	believe
	PERB
	can
	or
	should
	seal
	documents 	which
	already
are
	in
	wide
	circulation.
	As
	the 	charging
	parties
	observe, 	the
"spy
	memos"
	and
	the 	Perry
	Kenny
	house 	documents 	were
	widely
distributed 	at
	1998
	CSEA
	General 	Council. 	All	
or 	parts
them were
	incorporated 	into 	the 	record
	in 	other
	PERB
	cases.
	At
least
	one 	of 	the
	documents
	f
	twas
	introduced 	into
	PERB
	files
nearly 	five 	years
	ago
	in 	the 	hearing 	that 	led 	to 	the 	Board's
decision 	California 	State
	Employees
	Association 	(Hackett, 	et
14

fil..:..l.	
(1995)
	PERB
	Decision
	No.
	1126-S.
	In
	addition,
	CSEA
	itself
re-circulat
	all
	of
	documents
	when
	it
	attached
	them
	to
	the
charges
	filed
	against
	Mr.
	Hard 	by
	Mr.
	Alari
	and
	Ms.
	Glass.
	To
c 	irn
	at
	this 	late
	date
	that
	CSEA
	will
	suffer
	harm
	if
	PERB
	does
nots
	them
	ignores
	the
	fact 	that
	the
	documents
	ready
	are
irret
	evably
	in 	circulation.
I
	conclude,
	moreover,
	that
	hone
	of 	the
	documents
	identified
by
	CSEA
	in
	its
	motion
	qualify 	for 	protection
	under
	the 	attorney-
client
	privilege
	or
	as
	trade
	secrets.
	There
	are
	two
	documents
written
	by 	an
	attorney,
	a
	March
	15, 	1995,
	memo
	from
	CSEA
	staff
attorney
	Hirsch
	to
	Ms.
	Duffy,
	and
	a
	November
	2,
	1993,
	letter
	from
attorney
	McMaster
	to
	CDU.
	The
	Hirsch
	memo
	contains
	no
	attorney
advice
	to
	a
	client;
	it
	is
	an
	attorney
	staff
	mernber
1 s
	speculation
about 	whether 	persons
	who
	attended
	a
	certain
	meeting
	were
	members
CDU.
	The 	McMaster
	ter
	was
	sent 	to
	CDU,
	not
	to
	the
	client
CSEA
	and
	thus
	is
	not
	an
	attorney-client
	communication.
It 	is
	equally
	apparent
	that
	the 	disputed
	documents 	do
	not
quali
	as
	trade 	secrets.
	A
	"trade 	secret"
	is
	defined 	in 	Civil
Code
	section
	3426.l(d) 	as 	information,
including
	a
	formula,
	pattern,
	compilation,
program,
	device,
	method,
	technique, 	orprocess
	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 	arereasonable 	under 	the 	circumstances 	tomaintain
	its
	secrecy.
15

Plainly,
	the
	documents
	at
	issue
	here
	contain
	no
	"formula,
pattern,
	compilation,
	program,
	device,
	method·,
	technique
	or
process.
11
•
	They
	are
	internal
	CSEA
	commentary 	and
	observations
about
	CDU
	and
	expressions 	of
	how CSEA
	should 	respond
	to
	CDU.
	The
alleged
	that
	CSEA
	has 	about
	circulation
	the
	documents
	is
that
	they 	reveal
	how 	CSEA
	would
	respond
	to
	a
	decertification
attempt.
	CDU
	ready
	is
	in
	possession 	of 	the
	documents
	and
	no
protection 	will
	come
	to
	CSEA
	from
	CDU
	by
	sealing
	PERB's
	records.
There
	is
	no
	dence
	either 	that
	the 	various
	internal
memoranda
	have 	any 	economic
	value
	to
	some
	other
	union
	or
	group.
CSEA
	makes
	generalizations
	about
	how
	the 	information
	would
	assist
another 	organization
	that
	might
	at
	some
	future 	date
	attempt
	to
decerti
	CSEA.
	How
	this
	might 	be
	is 	entirely
	unclear.
	Most
	of
the
	documents
	are
	f
	to
	seven
	years 	old
	and
	they 	reveal 	nothing
about
	current
	CSEA
	plans 	or
	strateg 	s.
	What
	they
	show
	is
	that
when
	faced
	by
	a
	possible
	decertification
	attempt
	CSEA
	seeks
	to
gather 	information
	about
	the
	potential
	adversary
	and
	those
	who
belong
	to
	That
	CSEA
	would
	take
	such
	st
	hardly
	qualif
	s
as
	a
	trade 	secret.
Neither
	does
	the 	leged personal 	information 	about
Mr.
	Kenny 	and
	Mr.
	Haagensen
	qualify
	as
	a
	protected 	trade 	secret.
CSEA
	would
	find
	some
	trade 	secret
	how
	it
	compensates
	its
managers. 	Such
	information, 	while 	obviously of 	personal
	interest
to 	affected
	employees/ 	does 	not 	qualify
	under 	the 	statutory
finition
	of
	a
	trade 	secret.
16

Accordingly,
	the
	motion
	for
	an
	order
	sealing 	confidential
documents
	contained
	in
	Charging
	Exhibi~
4
	is
	denied.
documeqts
	will
	remain
	in
	PERB
	files
	as
	open
	public 	records
	in
accord 	with
	the 	provisions
	of
	the
	California
	Public
	Records 	Act.
(Section
	6250
	et
	seq.)
Pursuant
	to 	California
	Code
	of 	Regulations,
	title
	8,
section
	32305,
	this
	Order
	shall
	become
	final
	unless
	a
	party
	files
a
	statement 	exceptions 	with
	the
	Board
	itself
	within
	20
	days
	of
service
	of
	this
	Order.
	The
	Board's 	address
	is:
Public
	Employment
	Relations
	Board
Attention:
	Appeals
	Assistant
1031
	18th
	Street
Sacramento,
	CA
	95814-4174FAX:	
(916)
	327-7960
In
	accordance 	with
	PERB
	regulations, 	the 	statement 	of
exceptions
	should
	identi
	by
	page
	citation
	or 	exhibit
	number
	the
portions
	of 	the 	record,
	if
	any,
	relied
	upon
	for
	such
	exceptions.
(Cal.
	Code
	Regs.,
	tit.
	8,
	sec.
	32300.)
A
	document
	is
	considered
	11
filed
11
	when
	actually
	received
fore 	the 	close 	of 	business
	(5
	p.m.)
	on
	the
	last
	day
	set 	for
filing
	or
	when
	mailed
	by
	certified
	or
	Express 	United
	States
	mail,
as
	shown 	on
	the 	postal 	receipt 	or
	postmark,
	or 	delivered
	to
	a
common
	carrier
	promising 	overnight 	delivery,
	as
	shown 	on
	the
carrier's
	receipt,
	not
	later
	than 	the
	last
	day
	set 	for
	filing.
(Cal.
	Code
	Regs.,
	tit.
	8,
	sec. 	32135(a); 	see 	also
	Cal.
	Code
.,
	tit.
	8, 	sec.
	32130.)
A
	document
	is 	also 	considered
	11
filed
11
	when
	received
	by
facsimile 	transmission 	before 	the 	close 	of 	business
	on
	the 	last
17:

day
	for
	filing
	together
	with
	a
	Facsimile 	Transmission
	Cover
	Sheet
which
	meets
	the 	requirements 	of
	Cal.
	Code
	Reg13.,
	tit.8,
	sec.
3213
5 (
d)
,·
	provi 	the
	filing
	party 	also
	aces
	the
	original,
together
	with
	required
	number
	of 	copies
	and
	proof 	of
	service,
in
	the
	U.S.
	mail.
	(Cal.
	Code.
	Regs.,
	tit.
	8,
	secs.
	32135
(b),
	(c)
(d); 	see
	also
	Cal.
	Code
	Regs.,
	tit.
	8,
	secs.
	32090
	and
32130.)
Any
	statement 	of 	exceptions
	and
	supporting
	brief
	must
	be
served
	concurrently
	with
	its
	filing
	upon
	party 	to
	this
proceeding.
	Proof
	of
	ce
	shall
	accompany
	each
	copy
	served
	on
a
	party 	or
	filed
	with
	the
	Board
	itself.
	(See
	Code
	Regs.,
tit.
	8,
	secs.
	32300,
	32305
1
	32140
1
	and 	32135(c) .)
DATED:
	January
	28,
	2000 
RONALD
	E.
	BLUBAUGH
Administrative
	Law
	Judge
/'
18