State Employees Caucus for a Democratic Union (California State Employees Association, et al.) (PERB 1399S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION, 	PERRY KENNY, 	STEVEN
K. 	ALARI AND BARBARA GLASS,
Charging Parties,
v.
STATE 	EMPLOYEE 	CAUCUS 	FOR A
DEMOCRATIC UNION, 	AND 	ITS AGENTS
JIM HARD, 	CATHY HACKETT AND
DOES 	1-100,
Respondents.
)
)
)
)
) 	Case No. 	SA-CO-216-S
PERB Decision No. 	1399-S
August 	4, 	2000
)
)
)
)
)
)
)
)
)
Appearance: 	Michael P. 	White, 	Attorney, 	for California State
Employees Association.
Before Dyer, 	Amador and Baker, 	Members.
DECISION
DYER, 	Member: 	This 	case 	comes before 	the 	Public Employment
Relations 	Board 	(Board) 	on appeal 	from a Board agent's 	dismissal
(attached) 	of 	an unfair practice 	charge 	filed by the 	California
State Employees Association, 	Perry Kenny, 	Steven K. 	Alari and
Barbara Glass 	(CSEA). 	CSEA alleges that 	the State Employee
Caucus 	for a Democratic Union and its 	agents, 	Jim Hard, 	Cathy
Hackett 	and Does 	1-100 	(CDU), 	engaged in unfair practices 	in
violation of the Ralph C. 	Dills Act 	(Dills Act), 	Government Code
sections 3515.5,1 3519(b) 	and 	(d),2 and 3519.5 (a) 	and 	(b).3
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq.
Section 3515.5 provides:
Employee 	organizations 	shall 	have 	the 	right
{
e

The 	Board 	has 	reviewed 	the 	entire 	record 	in 	this 	case,
including 	the 	original 	and 	amended 	unfair 	practice 	charge, 	the
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. 	Employee
organizations 	may 	establish 	reasonable
restrictions 	regarding 	who 	may 	join 	and 	may
make 	reasonable 	provisions 	for 	the 	dismissal
of 	individuals 	from membership. 	Nothing 	in
this 	section 	shall 	prohibit 	any 	employee 	from
appearing 	in 	his 	own 	behalf 	in 	his 	employment
relations 	with 	the 	state.
2Section 	3519 	provides, 	in pertinent 	part:
It 	shall 	be 	unlawful 	for 	the 	state 	to 	do 	any
of 	the 	following:
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
(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.
3 Section 	3519.5 	provides, 	in pertinent 	part:
It 	shall 	be 	unlawful 	for 	an 	employee
organization 	to:
(a) 	Cause 	or 	attempt 	to 	cause 	the 	state 	to
violate 	Section 	3519.
(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.
22

warning 	and dismissal 	letters 	and 	CSEA's 	appeal.4 The 	Board
hereby adopts 	the 	dismissal 	letter 	and pages 	1-10 	of 	the 	warning
letter as 	the decision of 	the Board 	itself. 	The Board does 	not
adopt 	the 	remainder of 	the warning 	letter.5
ORDER
The unfair practice 	charge 	in Case No. 	SA-CO-216-S 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members Amador 	and Baker 	joined 	in this 	Decision.
4CSEA's 	request 	for consolidation of 	this 	case with PERB
Case Nos. 	SA-CO-199-S and SA-CO-2 0.1-S 	is hereby denied.
5In the 	adopted portion of 	the warning letter, 	the 	Board
agent 	rejected CSEA's 	claim that 	CDU is 	a 	"competing
organization" 	within the meaning of 	the Dills Act. 	Based upon
the 	facts presented, 	the Board agrees with this 	conclusion.
However, 	each case must 	turn on 	its own facts.
33

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
July 15, 	1999
Michael P. 	White, 	Attorney
Law Offices 	of 	Michael 	Philip White
2230 	"L" 	Street
Sacramento, 	CA 95816
Re: 	NOTICE OF DISMISSAL AND REFUSAL TO 	ISSUE 	COMPLAINT
California State Employees Association, 	Perry Kenny, 	Steven
K. 	Alari, 	and Barbara Glass v. 	State Employee Caucus 	for a
Democratic Union 	(CDU), 	and its Agents, 	Jim Hard, 	Cathy
Hackett 	and 	Does 	1-100
Unfair Practice 	Charge No. 	SA-CO-216-S
Dear Mr. 	White:
The 	above-referenced 	unfair practice 	charge 	was 	filed with 	the
Public Employment 	Relations Board 	(PERB 	or Board) 	on April 	6,
1999, 	and amended on May 21, 	1999. 	Charging Parties 	in this
matter are the California State Employees Association 	(CSEA), 	and
Perry Kenny, 	Steven K. 	Alari 	and Barbara Glass, 	CSEA's president,
executive 	vice 	president 	and 	secretary-treasurer, 	respectively.
The 	named Respondents 	are 	the 	State 	Employee 	Caucus 	for 	a
Democratic Union 	(CDU) 	"and its 	agents, 	Jim Hard, 	Cathy Hackett
and Does 1-10 0 . "
I 	indicated to you, 	in my attached letter dated June 	15, 	1999,
that 	the 	above-referenced 	charge 	did not 	state 	a 	prima 	facie
case. 	You were 	advised that, 	if 	there were 	any factual
inaccuracies 	or 	additional 	facts 	which would correct 	the
deficiencies 	explained 	in that 	letter, 	you 	should amend the
charge. 	You were 	further advised that, 	unless you amended the
charge 	to 	state 	a prima 	facie 	case 	or withdrew 	it 	prior 	to 	June
25, 	1999, 	the 	charge would be dismissed. 	An extension of 	time to
July 15, 	1999, 	was later granted.
I 	have 	not 	received either an amended charge 	or a 	request 	for
withdrawal. 	On July 14, 	1999, 	you informed me that 	the charge
would not be amended or withdrawn. 	Therefore, 	I 	am dismissing
the 	charge 	based on 	the 	facts 	and 	reasons 	contained 	in my June
15, 	1999 letter.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	you
may 	obtain 	a 	review of 	this 	dismissal 	of 	the 	charge 	by 	filing
an appeal 	to 	the 	Board 	itself 	within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code Regs., 	tit. 	8,
sec. 	32635(a).) 	Any document 	filed with the 	Board must 	contain

Dismissal 	Letter
SA-CO-216-S
Page 	2
the 	case name and number, 	and the original 	and five 	(5) 	copies of
all 	documents 	must 	be provided 	to 	the 	Board.
A 	document 	is 	considered 	"filed" 	when 	actually 	received before
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 Regs., 	tit. 	8,
sec. 	32130.)
A document 	is 	also 	considered 	"filed" 	when 	received by 	facsimile
transmission before 	the 	close 	of 	business 	on 	the 	last 	day 	for
filing 	together 	with 	a 	Facsimile 	Transmission 	Cover 	Sheet 	which
meets the requirements of Cal. 	Code Regs., 	tit. 	8, 	sec. 	32135(d),
provided the 	filing party also places 	the 	original, 	together with
the required number of 	copies and proof 	of 	service, 	in the U.S.
mail. 	(Cal. Code. Regs., tit. 8, secs. 32135 (b), 	(c) 	and (d) ;
see also Cal. 	Code Regs., 	tit. 	8, 	secs. 	32090 and 32130.)
The Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th 	Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
If you 	file 	a 	timely appeal 	of 	the 	refusal 	to 	issue 	a 	complaint,
any 	other party may 	file 	with 	the 	Board 	an 	original 	and 	five
copies 	of 	a 	statement 	in opposition within 	twenty 	(20) 	calendar
days 	following the date of 	service of the appeal. 	(Cal. 	Code
Regs., tit. 	8, 	sec. 	32635(b).)
Service
All 	documents 	authorized to be 	filed herein must 	also be 	"served"
upon all 	parties 	to 	the proceeding, 	and a 	"proof 	of 	service"
must 	accompany each 	copy of 	a 	document 	served upon a party or
filed with the Board itself. 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32140 	for the 	required contents 	and a 	sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when personally
delivered or deposited 	in the 	first-class 	mail, 	postage paid and
properly addressed. 	A document 	filed by 	facsimile 	transmission
may be 	concurrently 	served via 	facsimile 	transmission 	on 	all
parties to the proceeding. 	(Cal. 	Code Regs., 	tit. 	8, 	sec.
32135 (c) .)

Dismissal 	Letter
SA-CO-216-S
Page 3
Extension 	of 	Time
A 	request 	for 	an extension of 	time, 	in which to 	file 	a 	document
with 	the 	Board 	itself, 	must 	be 	in writing 	and 	filed with the
Board 	at 	the 	previously noted 	address. 	A 	request 	for 	an
extension must 	be 	filed at 	least 	three 	(3) 	calendar days 	before
the 	expiration of 	the 	time 	required 	for 	filing 	the 	document.
The 	request 	must 	indicate good cause 	for and, 	if known, 	the
position 	of 	each other party 	regarding 	the 	extension, 	and 	shall
be 	accompanied by proof 	of 	service 	of 	the 	request 	upon 	each
party. 	(Cal. 	Code Regs., 	tit. 	8, 	sec. 	32132.)
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal 	will 	become 	final 	when the 	time 	limits 	have 	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy General 	Counsel
Les 	Chisholm
Regional 	Director
Attachment
cc: 	Christopher W. 	Katzenbach
Bradley G. 	Booth

STATE OF CALIFORNIA 	• 	GRAY DAVIS. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
June 15, 	1999
Michael P. 	White, 	Attorney
Bradley G. 	Booth, 	Attorney
2230 	"L" 	Street
Sacramento, 	CA 95816
Re: 	WARNING LETTER
California State Employees Association, 	Perry Kenny, 	Steven
K. 	Alari, 	and Barbara Glass v. 	State Employee Caucus 	for a
Democratic Union 	(CDU), 	and its Agents, 	Jim Hard, 	Cathy
Hackett 	and Does 	1-10 0
Unfair 	Practice 	Charge No. 	SA-CO-216-S
Dear Messrs. 	White 	and Booth:
The 	above-referenced 	unfair practice 	charge 	was 	filed with 	the
Public 	Employment 	Relations 	Board 	(PERB 	or Board) 	on April 	6,
1999, 	and amended on May 21, 	1999. 	Charging Parties 	in this
matter are the California State Employees Association 	(CSEA), 	and
Perry Kenny, 	Steven K. 	Alari 	and Barbara Glass, 	CSEA's president,
executive 	vice 	president 	and 	secretary-treasurer, 	respectively.
The 	named Respondents 	are 	the 	State 	Employee 	Caucus 	for 	a
Democratic Union 	(CDU) 	"and its 	agents, 	Jim Hard, 	Cathy Hackett
and Does 	1-100." 	As 	more 	fully 	explained below, 	Jim Hard and
Cathy Hackett 	are 	also officers 	of 	CSEA.
CSEA 	is 	a 	large 	employee 	organization 	that 	represents 	nine
bargaining units 	of 	the 	State pursuant 	to 	the Ralph C. 	Dills
Act,1 and 	several 	units 	of 	the 	California 	State University 	(CSU)
under 	the 	Higher 	Education 	Employer-Employee 	Relations 	Act
(HEERA).2 CSEA's membership also 	includes 	State 	employees who
are 	excluded 	from coverage 	of 	the Dills Act, 	and retired
employees. 	Organizationally, 	CSEA is 	divided into 	four parts.
The 	Civil 	Service Division 	(CSD), 	comprising the 	rank and file
employees 	in state bargaining units; 	the Retirees Division; 	the
Supervisors Affiliate; 	and the 	State University Division. 	CSEA
is 	governed by its 	General 	Council, 	a delegate body with
representation 	from all 	divisions 	and 	affiliates 	which meets 	once
a year, 	and by a Board of Directors. 	The Board of Directors
includes 	four officers 	elected at 	large, 	two officers 	elected by
and 	from each 	division/affiliate, 	and 	regional 	directors 	elected
at large.
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq.
2HEERA 	is 	codified at 	Government 	Code 	section 	3560 	et 	seq.

Warning 	Letter
SA-CO-216-S
Page 	2
The 	CSD 	is 	governed 	by 	the 	Civil 	Service 	Division 	Council
(Council 	or 	C S D C ) . 	Hard 	is 	currently 	the 	director of 	the 	CSD 	and
Hackett 	is 	the 	deputy 	director. 	By virtue 	of 	their 	election 	to
these 	positions, 	Hard 	and 	Hackett 	also 	occupy 	seats 	on 	the
Association 	Board 	of 	Directors. 	Both 	have 	held 	these 	positions
since 	1996 	and were 	reelected 	in 	1998. 	Kenny, 	the 	former 	CSD
director, 	has 	served as 	CSEA president 	since 	1996. 	Hackett 	and
Hard 	are 	also 	among 	the 	founders 	and 	leaders 	of 	the 	CDU.
The 	relationship 	between 	Hard, 	Hackett 	and 	other 	CDU 	adherents,
on 	the 	one 	hand, 	and Kenny and other 	leaders 	of 	CSEA, 	on 	the
other, 	has 	been a 	contentious 	one 	in recent 	years. 	The 	two
factions 	have 	contended 	for 	elective 	office 	within 	CSEA, 	internal
charges 	have 	been 	filed within 	CSEA, 	civil 	litigation 	has 	been
pursued, 	and various 	unfair practice 	charges 	have 	been 	filed with
PERB.
The 	Instant 	Charge
Charging 	Parties 	summarize 	the 	issues 	and 	allegations 	in 	their
charge 	as 	follows:
a) 	CDU is 	an 	"employee 	organization" 	with one
of 	its 	primary purposes 	to 	represent 	state
employees 	in 	their 	employment 	relations 	with
the 	state 	and 	is 	therefore 	unlawfully
competing 	with 	CSEA 	and 	is 	subject 	to 	the
Dills 	Act 	and 	PERB 	sanction 	for 	violation 	of
the 	same;
b) 	Hard 	and Hackett 	have 	admitted 	their
founding 	member 	role 	and 	continued 	agency 	on
behalf 	of 	the 	CDU;
c) 	CDU and 	its 	agents 	Hard, 	Hackett 	and
others 	have 	intentionally 	and 	continually
misrepresented 	the 	purposes 	of 	CDU 	to 	the
state 	employer 	and 	CSEA 	so 	as 	to 	fraudulently
induce 	the 	state 	to 	violate 	Government 	Code
section 	3519(b)(d) 	and 	thereby 	allow 	CDU 	to
unlawfully 	compete 	against 	CSEA 	from 	within
and 	to 	dominate 	CSEA 	and 	interfere 	with 	its
exclusive 	rights 	under 	Government 	Code
section 	3515.5 	to 	its 	detriment, 	harm which
is 	irreparable 	and 	harm which 	will 	continue
unless 	and 	until 	enjoined 	by 	PERB;
d) 	CDU and 	its 	agents 	Hard, 	Hackett 	and
others 	have 	admittedly 	usurped 	CSEA's

Warning 	Letter
SA-CO-216-S
Page 	3
resources 	for 	their 	illegal 	purposes 	of
interfering 	with 	and/or 	dominating 	CSEA 	by
organizing 	CDU at 	CSEA's 	expense 	and 	to
CSEA's 	detriment, 	harm which 	is 	irreparable
and 	harm which 	will 	continue 	unless 	and 	until
enjoined 	by 	PERB 	[reference 	to 	attached
evidence omitted];
e) 	CDU and its agents Hard, 	Hackett, 	the CDU
controlled 	Civil 	Service 	Division 	Council 	and
others 	are 	using 	the 	unfair 	labor practice
charging 	apparatus 	of 	the 	State 	of
California, 	Public 	Employment 	Relations 	Board
to 	perpetrate 	unlawful 	retaliation against
charging parties 	CSEA and 	it's 	[sic] 	Board of
Directors, 	many of whom are 	state 	bargaining
unit 	employees 	covered by the 	Dills Act, 	and
CSEA members 	Perry Kenny, 	Steven Alari 	and
Barbara 	Glass 	for 	exercising 	their 	respective
protected 	rights 	to 	participate 	in 	their
union's 	activities 	and 	disagree 	with 	CDU and
its 	agents 	Hard, 	Hackett 	and others 	in the
manner 	in 	which 	they have 	insisted upon
administering 	the 	Civil 	Service 	Division
(CSD) 	of 	the CSEA, 	in large part 	in violation
of 	CSD policies;
f) 	CDU and its agents Hard, 	Hackett, 	the CDU
controlled 	Civil 	Service 	Division 	Council 	and
others 	are 	taking unlawful 	acts 	of 	reprisals
against 	the 	lawfully 	elected 	and 	currently
empowered 	Civil 	Service 	Division 	Bargaining
Unit 	Negotiation Committee 	(BUNC) 	members
because 	of 	their 	exercise 	of 	rights
guaranteed 	to 	them under 	the 	Dills Act 	to
participate 	in 	CSEA's 	collective 	bargaining
activities 	and because 	of 	their 	dissent
against 	the 	political 	ideology of 	the 	CDU and
its 	agents, 	Jim Hard, 	Cathy Hackett 	and Does
1 - 100. 	. 	. 	.
Charging 	Parties 	also 	plead 	their 	charge 	allegations 	in 	four
parts3 as 	follows:
3Charge 	One, 	Two 	and Three 	were 	contained 	in the 	original
charge; 	Charge 	Four was 	added 	in 	the 	amended charge.

Warning 	Letter
SA-CO-216-S
Page 	4
Charge One. 	On March 5, 	1999, 	Hard issued a notice convening a
ng of 	the CSDC for March 21, 	1999, 	ostensibly to
discuss 	postponing 	the 	election 	of 	district 	bargaining unit
representatives 	in order 	to 	avoid an 	interruption of 	contract
negotiations.4 However, 	at 	the CSDC meeting, 	the elections were
not 	postponed but 	instead 	the 	schedule 	was 	accelerated. 	In
addition, 	the 	CSDC 	approved a motion 	to 	suspend 	funding 	for
negotiations 	by the 	BUNCs 	until 	after the 	election of 	new BUNCs.
special 	meeti
Charging 	Parties 	allege 	that 	the 	CSDC 	actions 	were 	instigated 	and
carried out 	by CDU, 	through 	its 	agents 	Hard 	and Hackett 	and other
members 	holding membership both 	in CSEA and CDU, 	as 	reprisals
against 	those 	BUNC 	chairs 	and members 	who 	do 	not 	agree 	with 	CDU's
approach 	to 	negotiations. 	Charging 	Parties 	further contend 	that
Respondents 	have 	thus 	interfered with CSEA members' 	protected
activities 	related 	to 	carrying 	out 	negotiations 	with 	the 	State
employer, 	subjected CSEA to potential 	claims 	of bad 	faith
bargaining by 	the 	State 	employer, 	and 	interfered with 	CSEA's
representation of 	its members.
In addition, 	Charging 	Parties 	allege that 	CDU, 	by 	"unlawfully"
competing with CSEA 	(from within CSEA), 	has 	caused or 	attempted
to 	cause 	the 	state 	to violate 	the Dills Act 	by allowing a
competing 	employee 	organization 	to 	exist 	within 	CSEA which
dominates 	and/or 	interferes 	with CSEA. 	With respect 	to 	this
latter allegation, 	it 	is understood that, 	by reference 	to the
"state," 	Charging Parties 	refer to 	PERB 	itself.
Charge 	Two. 	Following 	the 	conclusion of 	negotiations 	on the
short 	term interim agreements, 	Hard and Hackett, 	and others,
participated 	in 	contract 	ratification meetings 	at 	CSEA work 	sites
around the 	state. 	These meetings, 	and the 	travel 	required,
utilized 	CSEA 	resources.
Charging 	Parties 	allege 	that 	CDU's 	agents, 	including Hard and
Hackett, 	"encouraged bargaining unit 	members 	to 	join CSEA for 	the
sole, 	limited and temporary purpose of voting 	to reject 	the
proposed MOU's." 	This 	conduct 	is 	also 	alleged to 	constitute
retaliation 	against 	CSEA and 	those 	of 	its 	members 	and officers
who 	disagree 	with 	CDU 	and 	interference 	with protected 	activity.
Further, 	the 	conduct 	is 	alleged to 	subject 	CSEA to bad faith
4After 	a 	period of 	nearly 	four years 	without 	an 	agreement,
the 	State 	employer 	and 	CSEA had 	reached 	agreement 	on 	short 	term
interim contracts, 	effective March through June 	1999.
Negotiations 	on behalf 	of 	CSEA are 	carried out 	by elected
bargaining unit 	negotiations 	councils 	(BUNCs).

Warning 	Letter
SA-CO-216-S
Page 	5
bargaining 	charges 	by 	the 	State 	employer 	and 	sanctions 	by 	PERB
for 	failure 	to bargain 	in good 	faith.
Charge Three. 	Charging Parties 	allege 	that, 	on September 24,
1998, 	Hard, 	Hackett, 	"the CDU controlled Civil 	Service Division
Council 	and 	others" 	violated 	CSEA bylaws 	by making public
confidential 	internal 	CSEA documents 	concerning 	a 	personnel
transaction between Kenny and 	CSEA. 	They 	further 	allege 	that, 	by
the 	same 	conduct, 	Respondents 	violated Kenny's 	privacy rights 	and
defamed 	Kenny by 	falsely accusing 	him of 	a 	crime. 	This 	conduct
is 	alleged 	to 	have been undertaken as 	a 	reprisal 	against 	Kenny
because of his 	opposition to CDU. 	In support 	of 	this 	claim,
Charging 	Parties 	cite 	various 	publications 	and 	letters 	which
refer 	to 	Kenny as 	a 	criminal 	and as 	"anti-union." 	Charging
Parties 	also 	note 	that 	the 	September 24 	distribution of 	documents
occurred 	just 	prior 	to 	the 	election of 	statewide 	CSEA officers.
On December 4, 	1998, 	Alari 	and Glass 	filed charges within CSEA
against 	Hard because 	he 	had 	failed to prevent 	the 	distribution of
the 	above-described 	confidential 	documents 	at 	the 	September 	24
CSDC 	meeting.
A 	separate violation was 	committed, 	according 	to 	Charging
Parties, 	when Hard and Hackett 	attached 	the 	same 	confidential
internal 	CSEA documents 	to 	their unfair practice 	charge 	in 	PERB
Case No. 	SA-CO-211-S, 	which was 	filed on January 20, 	1999, 	and
did 	so without 	first 	seeking 	a protective 	order 	from PERB 	to 	seal
these 	confidential 	records. 	The 	filing of 	SA-CO-211-S 	also
constitutes 	a violation of 	the Dills Act, 	according to Charging
Parties, 	because Hard and Hackett 	allege 	therein that Alari 	and
Glass, 	acting as agents of CSEA, 	were engaged in retaliatory
conduct 	when they filed the December 4 	internal 	charges. 	Thus,
under 	the 	theory being pursued by Charging 	Parties, 	Hard 	and
Hackett 	engaged 	in unlawful 	retaliation 	against 	Alari 	and 	Glass
when 	they 	filed 	a 	charge 	alleging 	retaliation 	by CSEA.
Charge 	Four. 	Charging Parties 	allege 	that, 	following the 	filing
of 	the 	instant 	charge, 	Hard, 	Hackett 	and CDU further retaliated
against 	and 	interfered with CSEA and 	its 	BUNCs 	by 	stripping 	the
BUNC members 	of 	all 	authority 	to 	continue 	to 	negotiate 	with 	the
State 	employer, 	and by communicating with 	the 	State 	employer with
the 	intent 	to 	cause 	the 	State 	employer 	to violate 	CSEA's 	Dills
Act 	rights.
On May 	6, 	1999, 	the 	CSDC 	took action regarding 	the powers 	and
responsibilities 	of 	BUNCs 	during 	the period between 	the
ratification of 	a 	contract 	and the 	election of 	new BUNC members.
The 	policy 	adopted by 	the 	CSDC 	provides 	that 	BUNC 	members
continue 	in office 	until 	the 	election of 	new members 	and have 	the

Warning 	Letter
SA-CO-216-S
Page 6
authority to negotiate 	tentative 	agreements, 	but 	subject 	to
certain restrictions, 	as 	follows:
a. 	The CSD Director or Deputy Director 	(Finance), 	or
the Director's designee, 	must be present 	at 	any
negotiations.
b. 	All 	bargaining proposals 	or other 	correspondence
relating 	to 	negotiations 	must 	have 	the 	prior 	approval 	of 	the
CSD Director, 	and only the 	CSD Director or designee 	has 	the
authority to 	schedule 	bargaining meetings.
c. 	All 	tentative 	agreements must 	be 	submitted to 	the
CSD 	Director 	and 	approved by the 	"Division 	Committee" 	before
any 	further 	action may be 	taken. 	The 	Division 	Committee 	may
defer 	action until 	election of 	new BUNC members 	and 	resubmit
the 	tentative 	agreement 	for 	approval 	by the 	new BUNCs.
There 	followed 	an exchange 	of 	correspondence 	between Hard and 	the
State 	employer, 	with Kenny also writing 	to 	the 	State 	employer
concerning 	the 	relative 	authority of 	the BUNCs. 	In brief, 	Hard
communicated 	the 	policies 	described 	above 	and 	the 	requirement
that 	his 	designee 	attend any bargaining 	sessions 	held, 	and Hard
also 	suggested postponing 	further bargaining 	sessions 	until 	new
BUNC 	members 	were 	elected 	(which 	he 	indicated 	would 	occur by May
21, 	1999). 	The 	State employer wrote expressing concerns that
CSEA was 	attempting 	to unilaterally change 	certain mutually-
agreed 	to 	ground 	rules 	and potentially was 	proposing 	to 	send
negotiators 	to 	the 	table 	without 	the 	requisite 	authority, 	asking
that 	CSEA 	communicate 	a 	unified position 	concerning 	the
composition and authority of CSEA's bargaining 	teams, 	and
expressing 	its 	willingness 	to meet 	and negotiate 	with CSEA's
bargaining 	teams. 	Kenny wrote 	indicating 	that 	the 	existing
BUNCs 	still 	have 	full 	authority to negotiate 	and denying 	that
CSEA was 	seeking 	to 	change 	any ground rules.
Over 	the 	same 	time period, 	Hard also appointed persons 	to various
committees, 	such as 	joint 	labor-management 	safety committees,
over the 	opposition of 	certain BUNC 	chairs, 	and also 	informed
certain BUNC 	members 	that 	they had 	not 	been 	properly 	appointed
under 	CSEA policies.
Status 	of Named 	Parties 	as 	Respondent
As 	discussed above, 	Charging 	Parties 	filed the 	instant 	charge
against 	CDU and 	certain named 	individual 	state 	employees 	(Jim
Hard and Cathy Hackett, 	as well as 	"Does 1 	- 	100") . 	However, 	the
Dills 	Act 	only defines 	unlawful 	actions 	by 	the 	state 	(section
3519) 	and unlawful 	actions 	by employee 	organizations 	(section

Warning 	Letter
SA-CO-216-S
Page 	7
3519.5), 	and nowhere defines 	unlawful 	actions by an individual
state 	employee. 	Thus, 	to 	the 	extent 	this 	charge 	is 	filed against
Hard, 	Hackett 	and Does 	1 	- 	100 	as 	individuals, 	the charge must be
dismissed.
Further, 	the 	charge 	may be 	treated as 	a proper 	filing 	against 	CDU
only 	if 	it 	is 	determined 	that 	CDU is 	an 	"employee 	organization"
within 	the 	meaning 	of 	the 	Dills Act. 	The 	Dills Act 	defines
"employee 	organization" 	at 	section 3513(a) 	as meaning 	"any
organization which 	includes 	employees 	of 	the 	state 	and which has
as 	one 	of 	its 	primary purposes 	representing 	these 	employees 	in
their 	relations 	with the 	state."
In 	State 	of 	California 	(Department 	of 	Developmental 	Services)
(1982) 	PERB Decision No. 	228-S 	(often referred to as Monsoor,
after the name of 	the 	charging party), 	the Board held that, 	in
applying 	the 	statutory definition of 	"employee 	organization," 	it
is 	"unnecessary 	for a group of 	employees 	to 	have 	a 	formal
structure, 	seek exclusivity, 	or be 	concerned with all 	aspects 	of
the 	employment 	relationship." 	The 	central 	focus 	in the Monsoor
analysis, 	and all 	other Board decisions 	which address 	the
definition of 	employee organization, 	is whether the group 	in
question 	exists 	"for 	the 	purpose 	of 	furthering 	the 	interests 	of
employees 	by dealing with 	the 	employer on a matter of 	employer-
employee relations." 	(Id. ; 	emphasis added.)
Charging 	Parties 	first 	argue 	that 	PERB 	has 	previously determined
that 	CDU 	is 	an 	employee 	organization within 	the 	meaning of 	the
Dills Act, 	citing California 	State 	Employees Association
(Hackett, 	et al.) 	(1995) 	PERB Decision No. 	1126-S 	(Hackett).
This 	argument 	appears 	to 	be 	based on a misreading 	of 	the Board's
decision. 	Therein, 	the Board did determine that Hackett, 	Hard
and 	others 	had 	engaged 	in protected 	conduct 	when 	engaged 	on
behalf 	of 	CDU, 	but 	the 	decision clearly relies 	on 	facts
demonstrating 	that 	Hackett 	and Hard were 	thereby participating 	in
CSEA. 	As 	the 	hearing officer observed 	in his proposed decision:
What Ms. 	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.
The 	Board concurred, 	noting 	that 	Hard and Hackett 	(not 	yet
elected to 	their current 	offices 	in CSEA) 	were 	involved 	in a
challenge 	to 	the 	then-current 	leadership 	of 	CSEA and not 	to 	CSEA
itself. 	(Id.) 	Thus, 	Charging Parties' 	assertion that 	the Board
-	has 	previously 	found CDU 	to 	be 	an 	employee 	organization within
the 	meaning 	of 	the 	Dills Act 	is 	not 	supported by applicable
precedent. 	In fact, 	Hackett 	supports 	a 	finding that 	CDU

Warning 	Letter
SA-CO-216-S
Page 	8
constitutes 	a 	political 	faction 	within 	CSEA 	and 	not 	a 	separate
employee 	organization.5 For 	these 	reasons, 	an 	analysis 	of 	the
first 	prong 	of 	Charging 	Parties' 	argument 	results 	in 	the
conclusion 	that 	the 	instant 	charge 	is 	improperly 	filed 	for 	lack
of 	a 	properly-named 	respondent.
DPA's 	Designation 	of 	CDU
The 	second prong 	of 	Charging 	Parties' 	argument 	on 	this 	point
asserts 	that 	the 	Department 	of 	Personnel 	Administration 	(DPA),
exercising 	its 	exclusive 	authority 	under 	Dills 	Act 	section
3 520.7, 	has 	already determined 	that 	CDU 	is 	an 	"employee
organization." 	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 	and 	associations 	as 	employee
organizations 	or 	bona 	fide 	associations.
(c) 	Identifying 	the 	officers 	and
representatives 	who 	officially 	represent
employee 	organizations 	and 	bona 	fide
associations.
5 This 	analysis 	is 	consistent 	with 	that 	of 	Administrative 	Law
Judge 	(ALJ) 	D'Orazio, 	who 	issued 	a proposed 	decision 	on April 	12,
1999, 	in 	the 	consolidated matter 	of 	Paul 	Gonzalez-Coke 	v. 	CSEA
(SA-CO-199-S) 	and 	Jim Hard 	and 	Cathy Hackett 	v. 	CSEA 	(SA-CO-201-
S) . 	ALJ D'Orazio, 	whose 	decision is 	now on appeal 	to 	the 	Board
itself, 	considered 	and 	rejected 	CSEA's 	argument 	that 	CDU 	is 	an
unlawful 	employee 	organization 	competing 	with 	CSEA 	in 	a 	way 	that
undercuts 	CSEA's 	right 	to 	represent 	its 	members, 	finding 	"no
support 	in 	the 	record" 	and 	finding 	the 	argument 	"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." 	Although ALJ 	decisions 	are
not 	precedential 	(see 	PERB' Regulation 	3 2 3 2 0 ) , 	such 	findings 	are
instructive.

Warning 	Letter
SA-CO-216-S
Page 	9
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.
DPA, 	acting pursuant 	to 	its 	authority under 	Government 	Code
sections 	3520.7 	and 	19815.4(d), 	has 	adopted 	a 	regulation which
defines 	a 	bona 	fide 	association 	as 	an 	"organization 	of 	employees
and 	former 	employees 	of 	the 	State 	including 	affirmative 	action
advocacy 	groups 	and 	professional 	organizations 	which 	do 	not 	have
as 	one 	of 	their 	purposes 	the 	representing 	of 	employees 	in 	their
relations 	with 	the 	State."6 DPA's 	regulations 	require 	bona 	fide
associations 	to 	file 	a 	registration 	statement 	that 	certifies 	the
organization 	does 	not 	have 	as 	a 	purpose 	the 	representation 	of
state 	employees 	on 	matters 	within 	the 	scope 	of 	representation,
does 	not 	have 	an 	affiliation 	with 	an 	employee 	organization 	or
recognized 	employee 	organization, 	and 	is 	not 	acting 	as 	an
employee 	organization 	by 	filing 	unfair 	practice 	charges 	or
competing 	to 	be 	an 	exclusive 	representative.7
In 	1995, 	Hard 	wrote 	to 	DPA 	on 	behalf 	of 	CDU 	seeking 	designation
of 	CDU as 	a bona 	fide 	association, 	in order 	to 	enable 	CDU to
obtain payroll 	deduction of 	its 	members' 	dues. 	Hard 	asserted
that 	CDU 	does, not 	have 	as 	a 	purpose 	the 	representation 	of
employees, 	is 	not 	affiliated with 	CSEA, 	and 	does 	not 	file 	unfair
practice 	charges 	or 	seek 	to 	become 	an 	exclusive 	representative.
6 C a l i f o r n i a Code of Regulations, 	title 	2, 	section 599.866.
7 California 	Code 	of Regulations, 	title 	2, 	section 599.867.

Warning 	Letter
SA-CO-216-S
Page 	10
CDU's 	application was denied, 	by letter dated October 30, 	1995,
based on DPA's 	"findings" 	that 	CDU has 	as 	a primary purpose
representation 	of 	rank 	and 	file 	employees 	and 	that 	CDU 	is
affiliated with CSEA. 	DPA's 	letter 	further 	noted that 	it 	matters
not 	whether 	CDU exists 	to 	take 	over 	CSEA 	from within or 	to
decertify CSEA, 	as 	both purposes 	are 	inconsistent 	with the
"fraternal" 	type 	of 	organization envisioned as 	a bona 	fide
association, 	and thus 	CDU's 	goals 	were not 	consistent 	with the
"spirit" 	of 	such an association.
DPA's 	"findings", 	as noted above, 	were made pursuant 	to the
provisions 	of 	Government 	Code 	section 	1150, 	and not 	section
3513(a) 	of 	the Dills Act. 	Charging Parties 	cite no 	authority for
the 	proposition 	that 	such 	a 	finding 	is 	controlling 	on 	PERB's
exercise 	of 	its 	exclusive 	initial 	jurisdiction 	to 	interpret 	the
Dills Act. 	Moreover, 	the 	evidence 	submitted with this 	charge
supports 	the 	Board's 	earlier 	conclusion 	that 	CDU constitutes 	a
political 	faction within CSEA.8 For these 	reasons, 	and based on
Monsoor and Hackett, 	I 	conclude 	that 	CDU is 	not 	an employee
organization within 	the 	meaning 	of 	Government 	Code 	section
3513(a). 	Thus, 	the 	instant 	charge must be dismissed as
improperly 	filed.
8For example, 	in a letter dated November 18, 	1993, 	Hard
referred to CDU as 	a 	"reform movement 	in CSEA" 	(Exhibit 	C ) ; 	CDU's
publication 	titled Union 	Spark 	from July 	1997 	likewise 	described
CDU as 	"a 	reform movement 	inside 	CSEA" 	and 	stated that 	CDU's
"object 	is to strengthen 	[CSEA] 	from within" 	(Exhibit E ) ; 	and
CDU's 	membership 	application 	form describes 	CDU as 	a 	"reform
movement 	within" 	CSEA, 	asks 	the applicant whether he/she 	is 	a
member of 	CSEA or eligible 	to be one, 	and contains 	a 	slogan as
follows: 	"Dedicated to restoring the rights, 	authority, 	power,
and dignity of 	our Union's 	rank 	and 	file 	membership." 	(Exhibit
N.)