State of California (Department of Personnel Administration) (California Union of Safety Employees) (PERB A246S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF 	PERSONNEL ADMINISTRATION),
Employer,
and
CALIFORNIA UNION 	OF 	SAFETY
EMPLOYEES,
Exclusive 	Representative,
and
CALIFORNIA STATE 	SAFETY 	EMPLOYEES
COUNCIL/CALIFORNIA STATE 	PEACE
OFFICERS 	ASSOCIATION/LABORERS'
INTERNATIONAL UNION 	OF 	NORTH
AMERICA,
Employee 	Organization.
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Case 	No. 	S-D-131-S
(S~SR-7)
Administrative Appeal
PERB 	Order No. 	Ad-246-S
May 	18, 	1993
Appearances: 	Carroll, 	Burdick 	& McDonough by Gary M. 	Messing,
Attorney, 	for 	California 	Union 	of 	Safety 	Employees; 	Van 	Bourg,
Weinberg, 	Roger 	& Rosenfeld 	by Stewart 	Weinberg, 	Attorney, 	for
California 	State 	Safety 	Employees 	Council/California 	State 	Peace
Officers 	Association/Laborers' 	International 	Union 	of 	North
America.
Before 	Blair, 	Chair; 	Caffrey 	and 	Carlyle, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case 	is 	before 	the 	Public 	Employment
Relations 	Board 	(PERB 	or 	Board) 	on 	appeal 	by 	the 	California 	Union
of 	Safety 	Employees 	(CAUSE) 	of 	a 	Board 	agent's 	administrative
determination. 	The 	Board agent 	concluded 	that 	the 	home 	addresses
of 	the 	employees 	in 	14 	employee 	classifications 	in 	State
Bargaining 	Unit 	7, 	for 	which 	CAUSE 	is 	the.exclusive
representative, 	must 	be 	released 	to 	the 	California 	State 	Safety

Employees
	Council/California
	State
	Peace
	Officers
Association/Laborers'
	International
	Union
	of
	North
	America
(CSSEC)
	prior
	to
	the
	decertification
	election
	sought
	by
	CSSEC.
The
	Board
	has 	reviewed
	the
	entire
	record
	in
	this
	case
	and
hereby
	reverses 	the 	decision
	of
	the
	Board
	agent
	in
	accordance
with
	the 	discussion
	below.
BACKGROUND
In
	November
	1990,
	CSSEC
	filed
	a
	decertification
	petition
with
	PERB,
	seeking
	to 	decertify
	CAUSE
	as 	the 	exclusive
representative
	of
	State
	Bargaining 	Unit
	7 	-
	Protective 	Services
and
	Public 	Safety.
	A
mail
	ballot 	election
	was
	conducted by
	PERB
between
	April
	1
	and
	April
	29, 	1991.
	The
	ballots
	were
	counted
	on
May
	2,
	1991.
	A
tally
	of 	the
	ballots
	showed
	that
	a
	majority 	of
the
	valid 	ballots
	plus 	the 	challenged
	ballots
	were
	cast 	for
CAUSE.
CSSEC
	subsequently
	filed
	objections 	to 	the
	election
	and,
after
	an 	extensive 	hearing, 	the
	PERB
	administrative
	law
	judge
(ALJ)
	issued
	a
	proposed
	decision
	on
	February
	14, 	1992. 	The 	ALJ
concluded
	that
	the
	election 	results
	should 	not
	be
	certified
because 	seasonal 	lifeguards
	were
	excluded
	from
	the 	voting
	list
and
	thus
	were
	not 	permitted 	to vote 	in 	the 	election.
	Although
	it
did 	not
	impact
	the 	election 	result,
	the
	ALJ
	also 	addressed 	the
issue 	of 	release 	of
	employee 	home
	addresses.
	The 	ALJ
	developed
	a
test 	to
	determine 	whether 	employees
	in 	specified
	employee
classifications 	participated 	in
	"law enforcement-related
2

functions"
	pursuant
	to
	Government
	Code
	section
	6254.
3 •1 	A
finding
	that
	a
	classification
	was
	law
	enforcement-related
	would
result
	in
	withholding
	the
	home
	addresses 	of
	employees
	in 	the
classification
	from
	the
	employee
	organizations.
	The
	parties
appealed 	the
	ALJ's
	decision
	and
	on
	August 	6, 	1992,
	the
	Board
itself
	adopted
	the 	decision
	of
	the
	ALJ
	and
	ordered
	that
	a
	new
election
	be
	conducted.
	(State
	of
	California
	(Department
	of
Personnel 	Administration)
	(1992)
	PERB
	Decision
	No.
	948-S
(948-S)
.)
There
	are
	approximately
	140
	job
	classifications
	included
	in
Unit 	7.
	The
	parties
	agreed
	in
	948-S
	that
	the
	application
	of 	the
1
Government
	Code
	section
	6254.3
	states,
	in pertinent
	part:
(a) 	The
	home
	addresses
	and
	home
	telephone
numbers
	of
	state
	employees 	and 	employees
	of
	a
school
	district
	or
	county
	office
	of 	education
shall
	not
	be
	deemed
	to
	be
	public
	records
	and
shall
	not
	be 	open
	to 	public 	inspection,
except
	that 	disclosure
	of
	that
	information
may
	be
	made
	as 	follows:
(3) 	To
	an
	employee
	organization pursuant
	to
regulations
	and
	decisions 	of 	the 	Public
Employment
	Relations
	Board,
	except
	that
	the
home
	addresses
	and
	telephone
	numbers
	ofemployees
	performing
	law
	enforcement-related
functions
	shall
	not
	be
	disclosed.
(b) 	Upon
	written 	request 	of
	any 	employee,
	a
state
	agency, 	school
	district,
	or
	county
office
	of 	education
	shall
	not 	disclose 	the
employee's
	home
	address 	or
	home
	telephone
number
	pursuant 	to 	paragraph
	(3)
	of
subdivision
	(a) 	and 	an 	agency
	shall
	remove
the 	employee's
	home
	address 	and
	home
telephone
	number 	from 	any mailing
	list
rnaintained·by the 	agency, 	except
	if
	the
	list
is
	used 	exclusively
	by 	the 	agency 	to 	contact
the 	employee. 
3

law
	enforcement-related
	test
	would
	apply 	only
	to
	those
classifications
	for
	which
	evidence
	was
	presented. 	Sixty-one
classifications
2
were
	identified
	as
	law
	enforcement-related
	for
which
	all
	home
	addresses
	must
	be
	excluded
	from
	the
	voter
	list.
The
	ALJ
	determined
	that
	14
	classes
3
were
	not
	comprised
	of
employees
	performing
	law
	enforcement-related 	functions
	and
	thus
the
	home
	addresses 	of
	these
	employees
	could
	be
	released
	to
	the
competing
	employee
	organizations.
In 	preparation 	for
	the
	new
	election,
	the
	Board
	agent
requested
	that
	the
	parties
	submit
	written 	positions
	concerning
the
	application
	of 	the
	law
	enforcement-related
	test
	to 	the
remaining
	65
	classifications.
	In 	response,
	CAUSE
	asserted 	that
all
	of 	the
	remaining
	65
	classifications
	should
	be
	deemed
	law
enforcement-related
	and
	the
	home
	addresses 	should
	be
	withheld
pursuant 	to 	section
	6254.3.
	Under
	another 	theory,
	CAUSE
	asserted
that
	all
	classifications 	in
	Unit
	7
	should
	have
	home
	addresses
withheld
	under
	the
	"likely 	to
	be 	harmful"
	standard 	contained
	in
PERB
	Regulation
	32726(b)
. 4
2
This
	number
	includes 	classes 	stipulated	
by 	the
	parties
	as
law
	enforcement-related during 	the 	course 	of 	the 	hearing.
3
The 	14
	classifications 	are 	identified
	as:
	Brand
	Inspector;Senior
	Brand
	Inspector; 	Conservationist
	I
	and
	II,
	CaliforniaConservation
	Corps; 	Dairy
	Foods
	Specialist;
	Deputy
	Registrar 	of
Contractors
	I
	and
	II;
	Fire 	Fighter; 	Inspector,
	Department
	of
Motor
	Vehicles; 	Licensing-Registration
	Examiner, 	Department
	of
Motor
	Vehicles; 	Seasonal 	Lifeguard
	I
	and
	II;
	Motor
	Carrier
Specialist 	I, 	California
	Highway
	Patrol;
	and 	Program
Representative 	I,
	Bureau 	of 	Automotive 	Repair.
4PERB
	regulations 	are 	codified 	at 	California
	Code
	of
Regulations,
	title
	8,
	section
	31001
	et 	seq.
	PERB
	Regulation32726
	states, 	in 	pertinent 	part: 
4

(a) 	At 	a 	date 	established 	by 	the 	Board, 	the
employer 	shall 	file 	with 	the 	regional 	office
a 	list 	of 	names 	of 	all 	employees 	included 	in
the 	voting unit 	as 	of 	the 	cutoff 	date 	for
voter 	eligibility.
(b) 	A list 	of 	eligible 	voters 	which meets
the 	requirements 	of 	subsection 	(a) 	above 	but
which 	contains 	in 	lieu 	of 	the 	home 	address 	a
mailing 	address 	for 	each 	eligible 	voter 	shall
be 	concurrently 	served by 	the 	employer 	on
each 	other party 	to 	the 	election. 	Proof 	of
service 	shall 	be 	filed 	with 	the 	regional
office. 	For purposes 	of 	this 	subsection.
mailing 	address 	means 	the 	home 	address 	of
each 	eligible 	voter, 	except 	in 	the 	case 	where
the 	release 	of 	the 	home 	address 	of 	the
employee 	is 	prohibited by 	law. 	or 	if 	the
Board 	shall 	determine 	that 	the 	release 	of
home 	addresses 	is 	likely 	to 	be 	harmful 	to 	the
employees.
(Emphasis 	added.)
Following 	further 	meetings 	and 	discussions, 	the 	parties
agreed 	that 	the 	remaining 	65 	classifications 	should be 	designated
law 	enforcement-related 	to 	prohibit 	release 	of 	the 	home
addresses. 	The 	sole 	issue 	remaining 	in 	dispute 	was 	whether 	the
home 	addresses 	of 	the 	employees 	in 	the 	14 	classifications 	found
not 	to 	be 	law 	enforcement-related 	in 	948-S, 	should 	otherwise 	be
withheld because 	their 	release 	is 	"likely 	to 	be 	harmful" 	to 	such
employees 	pursuant 	to 	PERB 	Regulation 	32726(b).
BOARD 	AGENT'S 	DETERMINATION
In 	recognition 	of 	the 	fact 	that 	the 	"likely 	to 	be 	harmful"
standard 	in 	PERB 	Regulation 	32726 	has 	never 	been 	interpreted 	or
applied 	by 	the 	Board 	itself, 	the 	Board agent 	provided 	an
extensive 	review 	of 	the 	history 	of 	the 	regulation.
5

Prior 	to
	December
	1979,
	PERB
	had
	no
	regulation
	which
required 	the
	disclosure
	of
	employee
	home
	addresses
	to
	employee
organizations.
	The
	practice
	of
	the
	agency,
	however,
	had
	been
	to
require 	disclosure
	of
	home
	addresses
	in
	accordance
	with
	the
"Excelsior"
	rule
	of 	the 	National
	Labor
	Relations
	Board.
5
The
	Board
	proposed Regulation
	32726
	in
	December 	1979
	in
preparation 	for 	the
	initial
	representation 	elections
	in
	the
	state
bargaining
	units 	established
	under
	the 	provisions 	of 	the
	State
Employer-Employee
	Relations
	Act
	(SEERA)
. 6 As
	originally
proposed, 	Regulation
	32726
	provided
	for 	disclosure
	of
	home
addresses 	to
	campaigning
	employee
	organizations 	"unless
prohibited
	by
	law."
	At
	that
	time,
	there
	was 	no
	specific
	statute
which
	limited 	the 	disclosure
	of 	the 	addresses 	of
	peace
	officers
or
	law 	enforcement
	personnel
	to
	employee
	organizations.
	The
	only
applicable
	statutory
	provision
	which
	provided
	restrictions
	on
employee
	address
	disclosure
	was
	contained
	in 	Civil
	Code
	section
1798.62,
7	
which
	prohibited 	disclosure
	only
	if
	an
	employee
	had
specifically
	requested
	that 	his 	or 	her 	address 	not
	be
	released.
5
See
	Excelsior
	Underwear.
	Inc.
	(1966) 	156
	NLRB
	1236,
	61
	LRRM
1217;
	NLRB
	v.
	Wyman-Gordon 	Co. 	(1969) 	394
	U.S. 	759, 	70
	LRRM
	3345.
6SEERA,
	later 	retitled
	the
	Ralph
	C.
	Dills
	Act,
	is
	found
	at
Government 	Code
	section
	3512
	et
	seq.
7
Civil
	Code
	section
	1798.62
	states:
Upon
	written 	request 	of
	any
	individual,
	any
agency 	which maintains
	a
	mailing
	list
	shall
remove
	the 	individual's
	name 	and 	address
	from
such
	list,
	except 	that
	such 	agency 	need 	notremove
	the 	individual's
	name
	if
	such 	name
	isexclusively 	used 	by 	the 	agency
	to 	directlycontact 	the 	individual.
6

In
	response
	to
	concerns
	from
	law
	enforcement
representatives,
	the
	Board added
	the
	"likely
	to
	be
	harmful"
provision 	to
	Regulation
	32726,
	providing 	the
	Board
	with
discretion
	to
	determine
	on
	a
	case-by-case
	basis
	whether
	release
of
	certain
	home
	addresses
	to
	parties
	in
	a
	representation
	election
would
	be
	harmful.
In
	1984,
	Government
	Code
	section
	6254.3
	was
	enacted
	to
prohibit
	the
	release
	of
	home
	addresses
	of
	"employees
	performing
law
	enforcement-related 	functions"
	and
	those 	of
	employees
	who
request
	that
	their
	addresses 	not
	be
	released 	to
	employee
organizations.
	In
	1985,
	PERE
	adopted
	Regulation
	40165
8	
which
8PERB
	Regulation
	40165
	states:
(a)
	Except
	as
	prohibited
	by 	law,
	the
	state
employer
	shall 	release 	to
	an
	exclusive
representative
	a
	mailing
	list
	of
	home
addresses 	of
	state
	employees
	it
	representspursuant
	to
	a
	written
	request
	by
	the
exclusive 	representative.
	The
	mechanics
	of
such
	release,
	including 	but 	not
	limited 	to
(1)
	timing, 	frequency,
	and manner
	of
disclosure,
	(2)
	maintenance 	of
	names
	or 	the
mailing
	list,
	and
	(3)
	cost 	of 	production
shall
	be
	subject 	to 	the
	collective
	bargaining
process.
(b)
	Except
	as 	prohibited
	by 	law,
	the
	state
employer
	shall
	not
	be
	precluded
	from
releasing
	a
	mailing
	list
	of
	home
	addresses 	of
state
	employees
	as 	defined
	in
	Government 	Code
section
	3513(c)
	or 	section
	3522.1,
	who
	arenot
	in 	units 	represented
	by 	an 	exclusive
representative 	to
	an 	employee
	organization as
defined 	in
	Government 	Code
	section 	3513(a).
The
	mechanics 	of 	such
	release, 	including 	but
not 	limited 	to
	(1)
	timing, 	frequency, 	and
manner 	of 	disclosure,
	(2)
	maintenance 	ofnames
	or 	the 	mailing
	list,
	and
	(3)
	cost 	of
production 	shall
	be 	determined by 	the 	stateemployer. 
7

governed 	the 	release 	of 	home 	addresses 	to 	employee 	organizations
for 	purposes 	other 	than 	representation 	elections. 	In 	comparing
the 	two 	regulations, 	the 	Board agent 	noted 	that 	Regulation 	40165
limits 	release 	only 	"as 	prohibited by 	law," 	but 	does 	not 	also
contain 	the 	"likely 	to 	be 	harmful" 	provision.
(c) 	As 	provided 	by Government 	Code 	section
6254.3, 	and 	upon 	written 	request 	of 	a 	state
employee, 	the 	state 	employer 	shall 	remove 	the
state 	employee's 	home 	address 	from 	the
mailing 	lists 	referenced 	in 	subsection 	(a)
and 	(b) 	prior 	to 	the 	release 	of 	such 	lists.
In 	consideration 	of 	the 	history 	of 	PERB 	Regulation 	32726 	and
the 	fact 	that 	Regulation 	40165 	did 	not 	contain 	the 	likelihood 	of
harm 	language, 	the 	Board agent 	concluded 	that 	the 	"likely 	to 	be
harmful" 	provision applies 	only 	to 	employees 	who 	are 	either 	in
law 	enforcement-related positions 	or 	who 	request 	nondisclosure 	of
their 	home 	addresses. 	Since 	the 	14 	classifications 	at 	issue 	had
previously 	been 	determined 	not 	to 	be 	law enforcement-related, 	the
Board 	agent 	concluded 	that 	except 	for 	individual 	employees 	who
requested 	nondisclosure 	of 	their 	home 	addresses, 	the 	addresses 	of
all 	of 	the 	employees 	of 	the 	14 	specified 	classifications 	must 	be
released.
Following 	issuance 	of 	the 	administrative 	determination 	the
Board 	agent 	issued a 	directed 	election 	order. 	The 	directed
election 	order, 	among 	other 	things, 	set 	a 	new 	election 	date 	and
directed 	the 	state 	employer 	to 	provide 	a 	list 	of 	eligible 	voters,
including 	either 	a 	home 	or 	work 	address 	for 	each 	employee,
8

consistent
	with 	the
	conclusion
	of
	the
	administrative
detennination.
CAUSE'S 	APPEAL
CAUSE
	initially
	asserts 	that
	by
	considering 	the 	appeal
	of
the
	Board
	agent's
	administrative
	determination,
	PERB
	is
	acting
pursuant
	to
	an 	improperly 	adopted
	regulation.
	CAUSE
	explains
that
	in
	948-S
	the
	Board 	found
	that
	determinations 	regarding
release
	of
	home
	addresses
	constituted
	the
	"mechanics"
	of 	an
election,
	and
	as
	such.are
	not
	subject 	to
	appeal.
	By
	changing
positions
	now
	and
	allowing
	this
	appeal,
	CAUSE
	contends
	PERB
	is
"proceeding
	by
	way
	of
	some
	'underground'
	regulation.
11
CAUSE
	also
	argues
	that
	the
	Board
	agent 	ignored 	the
	plain
language 	of
	PERB
	Regulation
	32726(b) 	by
	concluding
	that
	the
likelihood
	of
	harm
	consideration
may
	be
	applied
	only
	to
	those
employees
	whose
	home
	addresses
	are 	already 	prohibited
	from
disclosure
	either
	because 	they
	are
	law
	enforcement-related 	or
employees
	requesting 	nondisclosure.
	CAUSE
	argues
	that
	the
	Board
agent
	failed 	to 	properly 	apply 	Regulation 	32726(b),
	as.
both 	these
limitations 	are 	prohibited
	by 	law
	under
	section
	6254.3.
Further,
	CAUSE
	asserts 	that
	the
	Board
	agent
	failed 	to 	take
into
	account 	the 	language
	in
	Regulation
	32726(b) 	which
	grants 	the
Board
	discretion 	to
	determine
	likelihood 	of
	harm. 	The
	Board
agent's
	conclusion 	eliminates
	any 	Board
	discretion
	by
	applying
	it
only 	to 	circumstances 	already 	prohibited
	by 	law.
Addressing 	the 	"likely 	to
	be 	harmful" 	standard,
	CAUSE
contends 	that 	the 	possibility 	of 	harm
	to 	even 	one 	employee
9

justifies 	withholding 	employee 	addresses 	for 	the 	employees 	in 	all
classifications. 	Because 	of 	the 	nature 	of 	the 	job 	functions
performed by Unit 	7 	employees, 	CAUSE 	argues 	that 	the 	release 	of
home 	addresses 	is 	likely 	to 	be 	hai::mful 	to 	those 	employees. 	CAUSE
reasons 	that 	many 	of 	the 	classifications 	have 	access 	to
confidential 	or 	sensitive 	information which 	the 	criminal 	element
desires, 	and 	disclosure 	of 	home 	addresses 	would 	subject 	these
employees 	to 	pressure 	to 	force 	information 	from 	them. 	CAUSE
asserts 	Regulation 	32726(b) 	is 	designed 	to 	protect 	against
precisely 	this 	type 	of 	possible 	retaliation 	or 	harassment.
CAUSE 	also 	states 	that 	these 	classifications 	enforce
licensing 	statutes 	and 	regulations 	which 	necessarily 	involve
denial 	or 	revocation 	of 	various 	licenses 	or 	permits. 	CAUSE
insists 	that 	the 	enforcement 	of 	regulations 	subjects 	these
employees 	to 	the 	same 	potential 	for 	harassment 	or 	retaliation 	as
employees 	in 	peace 	officer 	classifications. 	Further, 	CAUSE
maintains 	that 	there 	is 	a 	strong 	community 	of 	interest 	among 	all
of 	the 	classifications 	in 	Unit 	7, 	a 	perception 	characterized 	by
the 	designation 	of 	the 	unit 	as 	the 	"protective 	services 	and
public 	safety" 	unit.
CSSEC'S 	RESPONSE
CSSEC 	believes 	CAUSE 	should be 	barred 	from 	challenging 	the
home 	address 	issue 	now because 	it 	did not 	raise 	the 	issue 	prior
to 	the 	original 	election. 	CSSEC also 	asserts, 	under 	the 	doctrine
of 	res 	judicata, 	that 	a 	party 	cannot 	relitigate 	an 	issue, 	and
that 	this 	matter 	was 	previously 	resolved 	by 	the 	Board 	in 	948-S.
10

CSSEC
	otherwise 	supports 	the
	conclusions 	of 	the
administrative
	determination.
	However,
	if
	the
	Board
	disagrees
with
	the 	findings
	of
	the
	Board
	agent,
	CSSEC
	proposes
	a
	standard
by
	which
	to
	measure
	the
	"likely 	to
	be 	harmful"
	requirement
	in
Regulation
	32726(b).
	CSSEC
	argues
	that
	there
	must
	be
	actual
evidence
	from 	which
	the
	likelihood
	of
	harm
	can be
	ascertained.
This
	will
	only
	be 	found
	in
	unique
	circumstances,
	such
	as,
	threats
made
	during 	the
	course 	of
	an
	election
	against 	individuals
supporting
	rival
	organizations.
	Under
	these
	circumstances,
	CSSEC
argues
	that
	PERB
	could 	determine
	that
	harm
	could
	likely 	result
from
	release
	of
	an
	employee's
	home
	address.
DISCUSSION
On
	appeal,
	CSSEC
	argues
	that
	CAUSE
	should
	be
	barred
	from
contesting 	the
	release
	of 	the
	home
	addresses
	now
	because
	it
	did
not
	raise
	the
	issue
	prior
	to 	the
	original 	election.
	In
	a
	related
argument,
	CAUSE
	argues
	that
	PERB
	has 	improperly
	changed
	its
procedures
	by
	allowing
	an 	appeal 	of
	the
	Board
	agent's
determination
	of 	the
	home
	address
	issue
	prior 	to 	the
	second
election.
	CAUSE
	contends
	that 	in
	948-S
	the
	Board 	found
	that
determinations 	regarding 	release
	of
	home
	addresses
	constituted
the
	mechanics 	of 	an
	election,
	and
	as 	such
	are 	not 	subject 	to
appeal.
PERB
	Regulation
	32350
9	
defines 	an 	appealable 	administrative
9PERB
	Regulation
	32350
	states:
(a) 	An
	administrative 	decision 	is
	any
determination
	made 	by
	a
	Board 	agent 	otherthan:
11

decision 	as 	a 	determination by a 	Board agent 	which 	contains 	"a
statement 	of 	the 	issues, 	fact, 	law and 	rationale 	used 	in 	reaching
the 	determination." 	In 	contrast, 	a 	directed 	election 	order
provides 	the 	mechanics 	of 	conducting 	an 	election. 	PERB
Regulation 	3238010 prohibits 	an 	appeal 	of 	an 	administrative
determination 	regarding 	the 	mechanics 	of 	an 	election. 	In 	948-S,
the 	Board 	stated 	that:
(1) 	a 	refusal 	to 	issue 	a 	complaint 	in 	an unfair
practice 	case 	pursuant 	to 	section 	32630,
(2) 	a 	dismissal 	of 	an unfair 	practice 	charge,
(3) 	· a 	determination 	of 	a 	public 	notice 	complaint, 	or
(4) 	a 	decision which 	results 	from 	the 	conduct 	of
a 	formal 	hearing 	or 	from an 	investigation which
results 	in 	the 	submission 	of 	a 	stipulated 	record
and a 	proposed 	decision 	written 	pursuant 	to
section 	32215.
(b) 	An 	administrative 	decision 	shall 	contain a
statement 	of 	the 	issues, 	fact, 	law 	and 	rationale
used 	in 	reaching 	the 	determination.
Neither 	a 	directed 	election 	order 	nor a 	home
address 	list 	are 	administrative
determinations 	that 	may 	be 	challenged under
PERB 	regulations. 	Election mechanics, 	which
certainly 	includes 	the 	preparation 	of 	a 	home
address 	list, 	are 	specifically 	not 	appealable
to 	the 	Board. 	[Footnotes 	omitted.]
10PERB 	Regulation 	32380 	states, 	in pertinent 	part:
The 	following 	administrative 	decisions 	shall
not 	be 	appealable:
(a) 	A decision by 	a 	Board 	agent 	regarding 	the
mechanics 	of 	an 	election 	provided 	the 	decision
does 	not 	affect 	standing 	of 	a 	party 	to 	appear 	on 	a
ballot;
12

Prior
	to
	the
	original 	election,
	PERE
	issued
	a
	directed
election
	order
	pursuant
	to
	PERE
	Regulation
	32724
11	
which
	directed
the
	mechanics
	of
	the
	representation
	election.
	Specific
instructions
	concerning
	the
	conduct
	of
	the
	election,
	such
	as 	the
date 	of 	the
	election,
	the
	method
	of
	the
	mailed
	ballots,
	and
	voter
eligibility
	and
	address
	lists
	were
	set
	by
	the
	directed
	election
order.
The
	matter 	presently
	before 	the
	Board
	involves
	the 	appeal 	of
a
	Board
	agent's
	administrative
	determination
	in
	which 	he
	fully
sets
	out 	the
	facts, 	issues,
	law 	and
	rational 	in
	determining
	which
employee
	home
	addresses
	are 	subject
	to 	release
	under
	the
	law.
The
	directed 	election
	order 	issued
	prior 	to
	the
	original 	election
simply
	directed 	that
	the
	home
	addresses 	of 	the
	employees
	in
Unit
	7
	classifications
	not
	be
	disclosed.
	As
	the
	directed
election
	order
	was
	not
	an
	appealable 	administrative
determination, 	both
	parties
	were
	barred
	from
	appealing 	the
directed 	election
	order
	prior
	to 	the
	original 	election,
prohibiting
	any
	challenge
	at 	that
	time
	to 	the 	release 	of
	home
addresses.
	CSSEC's
	argument
	is
	therefore 	rejected.
CAUSE'S
	argument
	that
	PERE
	improperly
	changed
	its
	procedures
by
	allowing
	this
	appeal 	of
	the 	administrative 	determination
	prior
to 	the
	second
	election 	is
	also 	without 	merit.
	The
	distinction
11
PERB
	Regulation
	32724
	states, 	in pertinent 	part:
(a)
	When
	the
	Board has 	determined
	that
	an
	election
is
	required, 	the 	Board
	shall 	serve
	on
	the 	employer
and 	the 	parties
	a
	Directed 	Election Order
containing 	specific 	instructions 	regarding 	the
conduct 	of 	the 	election.
13

between 	the 	directed 	election 	order 	and 	the 	administrative
determination which 	is 	the 	subject 	of 	this 	appeal, 	clearly
establishes 	that 	PERB 	has 	properly 	applied 	its 	own 	regulations 	in
this 	case.
CSSEC 	contends 	the 	issue 	of 	the 	release 	of 	employee 	home
addresses 	was 	resolved 	by 	the 	Board 	in 	948-S 	and 	under 	the
doctrine 	of 	res 	judicata 	a 	party 	cannot 	relitigate 	an 	issue.
The 	doctrine 	of 	res 	judicata 	involves 	two 	general 	concepts
addressing 	the 	relitigation 	of 	prior 	decisions. 	"Claim
preclusion" 	is 	considered 	the 	primary aspect 	of 	res 	judicata.
Collateral 	estoppel 	is 	a 	subsection 	of 	res 	judicata 	and 	involves
"issue 	preclusion." 	Under 	the 	rule 	of 	issue 	preclusion, 	a 	prior
decision 	"operates 	as 	an 	estoppel 	or 	conclusive 	adjudication 	as
to 	such 	issues 	in 	the 	second 	action as 	were 	act~ally 	litigated
and 	determined 	in 	the 	first 	action." 	(Todhunter v. 	Smith 	(1934)
219 	Cal. 	690, 	695 	[28 	P.2d 	916] .) 12
In 	deciding 	whether 	employee 	home 	addresses 	must 	be
released, 	the 	Board 	in 	948-S 	considered whether 	employees 	in
14 	specified 	employee 	classifications 	participated 	in 	"law
enforcement-related 	functions" 	pursuant 	to 	Government 	Code
section 	6254.3. 	The 	Board 	established a 	test 	and 	applied 	it
against 	the 	classifications 	for 	which 	evidence 	had been
presented. 	Having 	resolved 	that 	issue, 	the 	Board 	is 	presented
with 	a 	new 	issue 	in 	this 	appeal, 	requiring 	application 	of 	a
12State 	of 	California 	(Department 	of 	Personnel
Administration) 	(1991) 	PERB 	Decision No. 	871-S.
14

different
	standard
	set
	out
	in
	PERB
	Regulation
	32726(b),
	to
determine
	whether
	the
	release
	of
	home
	addresses
	is
	likely 	to
	be
harmful
	to
	the
	employees
	in
	the
	14
	classifications.
	Because
	the
Board
	is
	faced 	with
	a
	new
	legal
	question, 	the 	doctrine
	of
	res
judicata
	does
	not 	apply.
On
	the 	merits
	of
	the
	appeal,
	CAUSE
	contends
	that
	the
	Board
agent 	ignored
	the
	plain
	language
	of
	PERB
	Regulation
	32726(b) 	by
concluding
	that
	the
	likelihood
	of
	harm
	consideration
may
	be
applied
	only
	to
	those
	employees
	whose
	home
	addresses
	are 	already
prohibited
	from
	disclosure
	either
	because
	they
	are
	law
enforcement-related 	or
	they 	requested 	nondisclosure.
It
	is
	appropriate 	to
	apply 	the
	rules
	of
	statutory
construction 	to
	determine
	the
	meaning
	of
	regulations 	(State 	of
California
	(Department
	of 	Personnel 	Administration)
	(1991)
	PERB
Order
	No.
	Ad-221-S), 	and
	when
	the
	meaning
	of
	terms
	are
	ambiguous
(Hacienda
	La
	Puente
	Unified
	School
	District
	(1988)
	PERB
	Decision
No.
	685).
Government
	Code
	section
	6254.3
	prohibits 	release
	of
	employee
addresses
	when
	the
	employee:
	1)
	performs 	law
	enforcement-related
functions; 	or
	2)
	requests 	nondisclosure 	of
	his 	or 	her
	home
address.
	The
	clear
	and 	unambiguous 	meaning
	of 	these
	two
provisions 	constitute
	circumstances
	when
	release
	of 	an 	employee's
home
	address
	is
	prohibited
	by 	law.
	PERB
	Regulation
	32726(b)
prohibits 	release 	of
	home
	addresses 	to 	parties 	in
	a
representation 	election 	in
	two
	distinct
	circumstances:
	1) 	when
release 	is 	prohibited
	by 	law; 	and 	2) 	when
	the 	Board 	determines
15

that 	release 	is 	likely 	to 	be 	harmful 	to 	the 	employees. 	Since
section 	6254.3 	describes 	situations 	in which 	release 	of 	employee
home 	addresses 	is 	prohibited by 	law, 	the 	second 	element 	of
Regulation 	32726(b), 	the 	likelihood 	of 	harm consideration, 	must
encompass 	other 	circumstances 	related 	to 	release 	of 	employee 	home
addresses 	in 	representation 	elections.
This 	finding 	is 	further 	supported by 	the 	language 	in
Regulation 	32726(b) 	which 	grants 	the 	Board 	discretion 	to
determine 	likelihood 	of 	harm. 	A contrary 	conclusion would
eliminate 	the 	Board's 	discretion 	by applying 	it 	only 	to
circumstances 	already 	prohibited by 	law.
In 	reaching 	his 	conclusion, 	the 	Board 	agent 	reviewed
Regulation 	40165 	which 	permits 	release 	of 	employee 	home 	addresses
to 	an 	exclusive 	representative 	for 	purposes 	other 	than
representation 	elections. 	Regulation 	40165 	contains 	a 	limitation
on 	address 	disclosure 	as 	"prohibited by 	law," 	but 	does 	not 	also
contain 	the 	nlikely 	to 	be 	harmful" 	requirement. 	The 	Board 	agent
concluded 	that 	it 	must 	have 	been 	intended 	that 	Regulations 	32726
and 	40165 	be 	applied 	in 	the 	same 	manner 	by 	prohibiting 	release 	of
only 	law enforcement-related 	employee 	addresses 	and 	employee
nondisclosure 	requests.
The 	Board 	finds 	a. different 	result. 	Regulation 	40165 	allows
for 	release 	of 	employee 	home 	addresses 	to 	the 	exclusive
representative, 	unless 	otherwise 	prohibited by 	law, 	for 	purposes
other 	than 	representation 	elections. 	This 	permits 	an 	exclusive
16

representative 	to 	contact 	its 	members 	in 	the 	course 	of 	conducting
its 	business 	and 	keep 	its 	members 	informed 	of 	its 	activities.
Regulation 	32726 	provides 	for 	release 	of 	employee 	home
addresses 	within 	the 	unique 	circumstances 	of 	a 	representation
election. 	An 	additional 	basis 	for 	nondisclosure 	of 	employee 	home
addresses 	was 	included 	in 	this 	regulation 	to, 	among 	other
reasons, 	allow 	the 	Board broad 	discretion 	in 	dealing 	with 	events
which 	could 	arise 	in 	the 	sometimes 	highly 	charged atmosphere 	of
representation 	elections. 	Thus, 	Regulation 	32726(b) 	grants 	the
Board 	the 	authority 	to 	determine 	on a 	case-by-case 	basis 	whether
release 	of 	employee 	home 	addresses 	is 	likely 	to 	be 	harmful 	within
a 	specific 	election 	context.
CAUSE 	suggests 	that 	the 	possible 	harm 	to 	even 	one 	employee
justifies 	a 	finding 	that 	release 	of 	all 	employee 	addresses 	in 	the
unit 	is 	likely 	to 	be 	harmful. 13 	CSSEC 	contends 	that 	the 	Board
may 	prohibit 	disclosure 	only when 	presented 	with 	evidence 	of
actual 	harm, 	such 	as 	threats 	or violence 	occurring 	during 	the
course 	of 	the 	election.
13 Citing 	Black 	Panther 	Party v. 	Kehoe 	(1974) 	42 	Cal.App.3d
645, 	656-657, 	CAUSE 	argues 	that 	by 	permitting 	the 	disclosure 	of
the 	home 	addresses 	to 	the 	employee 	organizations, 	the
confidentiality 	of 	these 	addresses 	is 	destroyed, 	making 	them
available 	for 	inspection by 	the 	general 	public. 	This 	case 	is
inapposite 	here. 	The 	Public 	Records 	Act 	section 	interpreted 	by
the 	court 	in 	this 	case 	permits 	discretionary 	release 	of
information 	otherwise 	exempt 	from 	public 	inspection. 	The
provisions 	in 	question 	here, 	Government 	Code 	section 	6254.3 	and
PERB 	Regulation 	32726, 	provide 	no 	similar 	discretion. 	These
provisions 	only 	provide 	the 	Board with 	discretion 	to 	withhold 	the
release 	of 	additional 	employee 	addresses.
17

In 	exercising
	its
	discretion 	in
	this
	area,
	the
	Board
	must
consider
	all
	of
	the
	circumstances 	surrounding
	the
	specific
representation 	election
	to
	determine
	the
	potential
	for
	harm.
	The
fervor
	of
	a
	contested
	election
may
	cause
	intense
	debate
	and
disagreement
	among
	the
	members
	of
	the
	unit,
	and
	as
	a
	result,
concern
	for
	employee
	safety
	may
	arise
	during 	the
	course
	of
	an
election.
	Under
	these
	circumstances
	harm
may
	be
	demonstrated
	in
a
	physical
	sense,
	such
	as 	with violence 	or
	threats
	of
	harm,
prompting
	the
	Board
	to
	conclude
	that
	nondisclosure
	of
	some
	or
	all
employee
	home
	addresses
	is
	appropriate.
But
	harm
	other
	than
	physical
	harm
may
	occur
	in
	the 	context
of
	a
	representation 	election.
	An
	example
	of 	non-physical
	harm
would
	be
	the
	inconsistent 	or
	unequal
	treatment 	of
	an 	employee
	or
group
	of
	employees
	without
	clear
	and
	distinguishable
	grounds
	to
do
	so.
	To
	compromise
	the
	consistent, 	equitable
	treatment 	of
	all
employees,
	particularly 	in
	a
	contested
	election 	situation,
	is
	to
increase 	the 	likelihood
	of
	harm
	to
	those
	employees.
The
	present
	case 	involves
	a
	contested
	election 	in
	which
	the
parties
	have
	agreed
	by
	stipulation 	that,
	with 	the 	exception 	of
the
	14
	classifications 	in 	dispute, 	the
	home
	addresses 	of
	all
employees
	in
	Unit
	7's
	approximately
	140
	job
	classifications 	will
be
	withheld
	from
	disclosure
	because 	they 	are
	law enforcement-
related 	classes.
	The
	Board 	has 	determined
	that 	in 	this 	situation
the
	parties
	have
	created 	inconsistent
	and unequal 	treatment 	for
the 	employees
	in 	the
	14
	classifications,
14	
since 	the
	home
Msee
	Footnote 	3, 	ante. 
18

addresses
	of
	employees
	in 	similar
	classifications
	will
	be
withheld
	from
	disclosure
	under
	the
	stipulated
	agreements. 	For
example,
	home
	addresses
	will
	be
	withheld
	for
	employees
	in 	the
classifications
	of
	Pool
	Lifeguard 	(Seasonal);
	Fluid
Milk
	Testing
Coordinator;
	Cosmetology 	Examiner; 	Examiner
	in
	Barbering;
Inspector
	I,
	Department
	of
	Consumer
Affairs;
	and
	Conservationist
II,
	Nursery,
	California
	Conservation
	Corps.
	However,
	employees
in
	some
	of
	the
	14
	classifications
	who
	undertake 	very
	similar
duties,
	such
	as 	Lifeguard 	(Seasonal); 	Dairy
	Foods
	Specialist;
Brand
	Inspector; 	Inspector,
	Department
	of
	Motor
	Vehicles; 	and
Conservationist
	II,
	California
	Conservation
	Corps,
	could 	have
their
	home
	addresses
	released.
Under
	these
	specific
	circumstances, 	the
	inconsistent
	and
unequal
	treatment 	of
	a
	number
	of 	Unit
	7
	employees
	is 	sufficient
for 	the
	Board
	to
	conclude 	under 	Regulation
	32726(b)
	that
	it
	is
likely
	to
	be 	harmful
	to 	these
	employees
	to 	release
	their
	home
addresses. 	Therefore, 	the
	Board
	concludes,
	in
	this
	case,
	that
the
	home
	addresses 	of 	the
	employees
	in
	the
	14
	classifications
identified 	in
	Attachment
	A may
	not
	be
	released 	to
	the
	employee
organizations.
The 	Board 	emphasizes, 	however,
	that
	the 	finding
	in 	this
	case
does
	not 	preclude
	a
	different 	result
	concerning 	the 	release 	of
the
	home
	addresses 	of
	employees 	under
	other 	circumstances.
	The
Board
	will 	consider 	the 	circumstances 	presented 	in
	each
	election
setting
	on
	a
	case-by-case 	basis.
19

ORDER
Based 	on 	the 	foregoing, 	the 	Board hereby 	ORDERS 	the 	Regional
Director 	to 	amend 	the 	Directed 	Election 	Order 	issued 	on April 	30,
1993, 	to 	prohibit 	disclosure 	of 	the 	home 	addresses 	of 	the
employees 	in 	the 	14 	employee 	classifications 	identified 	in
Attachment 	A.
Chair 	Blair 	joined 	in 	this 	Decision.
Member 	Carlyle's 	concurrence 	begins 	on page 	21.
20

Carlyle,
	Member,
	concurring:
	While
	I
	agree 	with
	the
reasoning
	and
	conclusion 	of 	the 	majority 	decision,
	I
	write
	this
concurrence
	to
	specifically set
	forth
	and
	address
	the 	inherent
conflicts
	which
	I
	find
	in
	this
	case
	and
	thus 	the
	need
	to
	weigh
competing
	goals
	in 	arriving
	at
	a
	decision.
	The
	analysis
	utilized
in defining
	the
	"likely
	to
	be 	harmful"
	standard
	is,
	admittedly,
	a
departure
	from
	a 	more
	traditional
	test
	of
	physical
	harm
	or 	the
threat
	thereof.
	While
	I
	am
	not 	completely 	comfortable
	with
	such
an
	approach,
	I
	view
	it
	as
	a
	necessary
	tool 	in
	order
	to
	achieve
	a
more
	important 	goal.
In
	applying
	such
	a
	definition,
	I
	am
	aware
	of 	the
	potential
mixed
	signal 	sent 	to
	the
	parties
	who
	have
	reached agreement 	on
	65
employee
	classifications,
	thus 	leaving 	the
	14 	now
	before 	the
Public
	Employment
	Relations
	Board
	(PERB
	or
	Board).
	It
	is	
my
	view
that
	the
	reasoning
	and
	conclusion 	of 	the
	Board
	in
	this
	case
should 	not
	be
	seen 	as
	a
	disincentive 	to
	meet 	and
	resolve
differences 	for 	the 	reason
	that
	the 	unique 	circumstances 	of
	this
case 	warrant
	such
	action.
	Likewise, 	such
	reasoning
	and
conclusion 	should not
	be 	viewed 	by
	the
	parties
	as 	having
	the
ability
	to 	necessarily 	dictate
	the 	process
	utilized
	or 	the
decision 	arrived
	at
	by
	the
	Board.
This 	case 	represents 	another 	chapter 	in
	a 	30 month
	saga
	to
have
	a
	valid
	and
	final 	election held 	so 	employees 	may
	determine
who
	should
	be
	their
	exclusive 	representative.
	Nothing 	could 	be
more 	germane 	and
	relevant, 	or
	go
	to 	the 	heart 	of 	what
	PERB
	does
or 	should 	do, 	than 	to 	see 	that 	the 	rights 	of 	employees
	to 	pick
their 	exclusive 	representative 	are 	not 	undermined by unnecessary
21

delay. 	Accordingly, 	for 	me, 	the 	goal 	of 	conducting 	an 	election
which 	had 	its 	origins 	in 	November 	of 	1990 	weighs 	in 	favor 	of
adopting 	and 	utilizing 	the 	analysis 	and 	reasoning 	of 	the 	majority
decision and 	its 	necessary 	conclusion.
22

ATTACHMENT
A
UNIT 7 	- 	CLASSIFICATIONS DETERMINED
NON-"LAW ENFORCEMENT-RELATED"
Schern
Code
Class
Code	
Title
Brand
Inspector	
APS0	
0303
Conservationist
	I,
	California
Conservation
Corps	
BZ96	
1029
Conservationist
	II,
	California
Conservation
Corps	
BZ93	
1003
Dairy
Foods
	Specialist	
AY35	
0625
Deputy
Registrar
of Contractors
	I	
VS90 	8793
Deputy
Registrar
of Contractors
	II	
VS80	
8792
Fire
	Fighter	
VZ30	
8979
Inspector,
	Department
	of
Motor
Vehicles	
VWlS	
8829
Licensing-Registration
Examiner, 	Department
	of
Motor
Vehicles	
vsso	
8758
Lifeguard
I
	(Seasonal)	
BSS0	
0993
Lifeguard
II
	(Seasonal)	
BS35	
0990
Motor
Carrier Specialist I,
	California
Highway
Patrol	
IH80 	3930
Program
Representative
	I,
	Bureau
of
Automotive
	Repair	
VU35	
6840
Senior
Brand
Inspector	
AP30 	4429
,,