State Center Community College District (PERB 1471E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, STATE CENTER
CHAPTER 379,

Charging Party, Case No. SA-CE-1908-E

Vv. PERB Decision No. 1471

STATE CENTER COMMUNITY COLLEGE December 12, 2001

DISTRICT,

Respondent.

Appearances: California School Employees Association by Alan S. Hersh, Attorney, for
California School Employees Association, State Center Chapter 379; Law Firm of Zampi and
Associates by Elizabeth Plavan, Attorney, for State Center Community College District.
Before Amador, Baker and Whitehead, Members.
DECISION

BAKER, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the State Center Community College District
(District) to an administrative law judge's (ALJ) proposed decision (attached). The unfair

practice charge alleged that the District violated section 3543.5(a), (b) and (c) of the

Educational Employment Relations Act (EERA) ' by refusing to provide certain requested

'EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code. Section 3543.5
provides, in pertinent part:

It shall be unlawful for a public school employer to
do any of the following:

information to the California School Employees Association, State Center Chapter 379
(CSEA). The ALJ found a violation.
After reviewing the entire record in this case, including the proposed decision, the
District's exceptions2, and CSEA's response, the Board adopts the decision
of
the ALJ as the
decision
of
the Board itself in accordance with the following discussion. The Board also
modifies the ALJ's proposed order to reflect that an employee's expression that their
information not be disclosed at all is sufficient to extinguish CSEA's right to the information.
DISCUSSION
The District argues in its exceptions to the proposed decision that the ALJ made
numerous factual errors which, in the aggregate, are prejudicial and warrant reversal
of
the
proposed decision. The eight alleged errors were: (1) the date post-hearing briefs were filed;
(2) the number oflabor relations representatives assigned to the District in 1997; (3) the
'insinuation' that Derek Pullinger is not experienced with labor relations with the District; (4)
failure to note that the 1997 roster provided to CSEA also included social security numbers; (5)
(a) 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. For purposes
of
this subdivision,
"employee" includes an applicant for employment
or reemployment.
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
(c) Refuse or fail to meet and negotiate in good
faith with an exclusive representative.
2 The District has requested oral argument. The request is denied as the record and
briefs adequately present the issues and positions of the parties.
2

an
inaccurate triggering event for Dr. Henry Padden's May 3, 1999 letter; (6) failure to note
that the District directory also lists employees' names in addition to home addresses, home
telephone numbers and facility locations; (7) failure to note that the District directory form also
contains a third option for non-disclosure
of
both the employees address and telephone number
(not just two options: one for non-disclosure
of
the address and one for non-disclosure
of
the
telephone number); and (8) a statement that the District refused to give CSEA home addresses.
It is not necessary to make a determination on the veracity
of
the statements in dispute
because none
of
the eight alleged factual errors are prejudicial, individually or in the aggregate.
Only District allegation number 8 warrants discussion. The District is correct that the ALJ
erroneously stated that the District failed to provide CSEA with home addresses. The unfair
practice charge in this case is very clearly only about the failure to provide home telephone
numbers. 	The Board does not adopt the ALJ's erroneous statement that the District refused to
provide CSEA with home addresses. The remainder
of
the ALJ's proposed decision accurately
reflects that this case is about a failure to provide home telephone numbers. As such, it is clear
that this misstatement was not prejudicial.
The District argues in its exceptions to the proposed decision that the ALJ erred
in
finding that the charge in this matter was timely filed, erred in finding that the settlement
agreement and withdrawal
of
a prior unfair practice charge does not act as collateral estoppel
barring relitigation
of
the same issue in the instant case and erred in finding that CSEA did not
waive by contract its right to the home telephone numbers. These same arguments were
presented to and rejected by the ALJ. The dissent in this case would reverse the ALJ's
proposed decision based upon collateral estoppel and contractual waiver stemming from the
3

filing and settlement
of
the previous unfair practice charge. Consistent with the following, the
Board rejects the District's exceptions and adopts the rationale and conclusions
of
the ALJ.
The first PERB case (SA-CE-1795) concerned the District's refusal to provide
employees' home addresses and home phone numbers. The parties entered into a settlement
agreement in that case which was drafted by the District. The language
of
the settlement
agreement reads that the District will provide bargaining unit names, addresses, home
telephone numbers and date
of
hire with the District "except that telephone numbers will not be
provided in any case where the unit member has requested such information not be disclosed
by the District." As the settlement language arose in the context
of
a dispute over the release
of
information to CSEA, the Board interprets that language to mean in any case where the
employee has specifically requested such information not be disclosed to CSEA or not
disclosed to anyone. The District home directory form at the center
of
this case does neither.
The dissent reads "in any case" in the settlement agreement too broadly and out
of
context when it includes, as an exception to disclosure by the District, instances where a unit
member seeks to keep his or her home phone number out
of
an employee home directory
distributed to all District employees. It is a very different decision to keep your home phone
number (and/or address) out
of
a quasi-public directory than keeping your home phone number
from your exclusive representative who is charged with representing you in your employment
relations with your employer.
Each year the District distributes to its employees, including the bargaining unit
employees in this case, a District data entry form which includes boxes to be checked
by
the
employee to signify that the employee does not want his/her home address, home phone
number or either to be published in the District directory. The form, titled 1999 District
4

directory Data Entry Form, very clearly on its face concerns nothing more than the District
Directory which includes home addresses and phone numbers. 	Nowhere
on
this form is there
an indication that an employee's expression on this form intends to express his or her statutory
right to withhold this information from CSEA or from anywhere other than the District
home
directory. 	There is no evidence
in
the record to support the notion that the 112 employees
desired to withhold this information from either CSEA or from anyone else ( except readers
of
the home directory)
by
checking a box on what is very clearly only a home directory form.
It is absolutely true that
if
the 112 employees in this case indicated they did not
want
their information to go to CSEA or
if
they said they did not want the informationreleased to
anyone, they would have expressed a desire to keep the information private, as the statutory
scheme allows them to do.3 However, the Board views the home directory form as insufficient
to express such a desire and therefore insufficient to extinguish CSEA's right to the
information. As such, the District's withholding
of
the unit members' home telephone numbers
is in violation
of
the EERA following the Board's precedent in Bakersfield City School District
(1998) PERB Decision No. 1262.
ORDER
Based on the foregoing findings
of
fact, conclusions
of
law, and the entire record in
this
case, it is found that the State Center Community College District (District) violated
the
Educational Employment Relations Act (EERA), Government Code section 3543.5(a), (b) and
(c).
It is not necessary for an employee to say specifically thatthey do not want the
information released to CSEA. 	Saying they do not want the information released toanyone
also extinguishes CSEA's right to the information. 	As such, the Board has modified the ALJ's
proposed order in this case by including the phrase "or not given to anyone."
5

Pursuant to section 3541.S(c)
of
the BERA, it is hereby ORDERED that the District and
its representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Denying the California School Employees Association, State Center
Chapter 379 (CSEA) its right to home telephone numbers
of
bargaining unit members, unless
such members have requested that the District not release such information to CSEA or have
requested the information not be released to anyone.
2.	
Denying bargaining unit members their right to be represented
by
CSEA.
3. 	Interfering with CSEA's right to bargaining unit home telephone
numbers.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE BERA:
1.	
Within ten (10) workdays
of
service
of
this decision, give to CSEA the
home telephone numbers
of
bargaining unit members, except for those members who have
requested that such information not be given to CSEA or not be given to anyone.
2. 	Within ten (10) workdays
of
the service
of
this decision, post at all work
locations where notices to employees customarily are posted in the District, copies
of
the
Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent
of
the District, indicating that the District will comply with the terms
of
this Order. Such posting
shall be maintained for a period
of
thirty (30) consecutive workdays. Reasonable steps shall be
taken to ensure that the Notice is not reduced in size, altered, defaced or covered with any
other material.
6

3.	
Upon issuance
of
this decision, make written notification
of
the actions
taken to comply with this Order to the Sacramento Regional Director
of
the Public
Employment Relations Board in accord with the director's instruction.
Member Whitehead joined in this Decision.
Member Amador's dissent begins on page
8.
7

AMADOR, Member, dissenting: I would dismiss the unfair practice charge and
complaint
in
this case because the State Center Community College District (District),
in
withholding home telephone numbers
of
unit members, did exactly what the parties agreed to.
The unfair practice charge alleged that the District violated section 3 543. 5(a), (b) and
(c)
of
the Educational Employment Relations Act
by
refusing to provide certain requested
information to the California School Employees Association, State Center Chapter 379
(CSEA).
This is not the first time that the District has declined to provide CSEA with that same
information. Years prior to the filing
of
the instant unfair practice charge, upon a request from
CSEA, the District refused such a request. At that point, CSEA filed unfair practice charge
number SA-CE-1795.
After an exchange
of
letters in October
of
1997, the parties agreed to the following
language to settle the unfair practice charge:
The District will provide to CSEA upon an annual request from
CSEA, Chapter 379, bargaining unit member names, addresses,
home telephone numbers and date
of
hire with the District, except
that telephone numbers will not be provided in any case where
the unit member has requested such information not be disclosed
by the District. [Emphasis added.]
Although this language was more restrictive than the language originally proposed by
CSEA, it nevertheless accepted the District's terms and signed the settlement agreement in
October 1997. Subsequently, CSEA withdrew unfair practice charge SA-CE-1795
with
prejudice, referencing the settlement agreement. In addition to resolving the immediate
dispute, union representative Derek Pullinger (Pullinger) later testified in the case at
bar
that
the settlement agreement constituted an amendment to the collective bargaining agreement
(CBA) provisions with respect to CSEA's right to information.
8

Following the settlement described above, in 1997 and 1998 the District provided
CSEA with a roster containing a list
of
employees' names, addresses, home phone numbers,
and hire dates. On each
of
those lists, roughly a third
of
the employees' home telephone
numbers were redacted.
After receiving the redacted lists in 1997 and 1998, Pullinger did not question the
District or the local chapter officers about redacted home telephone numbers, despite the fact
that the phone numbers
of
two CSEA officers were redacted.
On February 11, 1999, CSEA made the annual information request. The District
complied shortly thereafter by providing a roster which again had close to a third
of
the
telephone numbers redacted. Upon inquiry from Pullinger as to the reason for the redactions,
Henry Padden (Padden) told Pullinger that he had used the directory consent form for a
number
of
years to guide him in releasing telephone numbers to CSEA.
Padden later elaborated by letter, stating that:
...
in light
of
the Collective Bargaining Agreement
...
the
District will comply with your request and produce the name and
hire date, primary classification and primary job site for each
bargaining unit member. This information has previously been
deemed by the parties to be adequate for the CSEA to effectively
represent the classified unit in collective bargaining and labor
relation issues.
Because the District declined to provide home telephone numbers, CSEA filed the
instant unfair practice charge.
Identification
of
the precise issue in this case is critical to understanding why dismissal
is appropriate. The issue is not simply whether the District had an obligation to provide CSEA
with the home telephone number of certain unit members; more precisely, the issue is whether
the parties' settlement agreement modified the union's right to receive that information. 	Had
9

there been no prior unfair practice charge challenging the District's refusal to provide
home
telephone numbers, followed by a negotiated settlement that is clear on its face, an agreement
which CSEA concedes modified the parties' CBA, this would be a very different case.
It is beyond dispute that a public school employer has an obligation to provide
the
exclusive representative with information that is necessary and relevant to discharge its duty to
represent employees. The Public Employment Relations Board (PERB) has held that unit
members' home telephone numbers are presumptively relevant information. 	(Bakersfield City
School District (1998) PERB Decision No. 1262.) The employer's refusal to supply necessary
and relevant information is a refusal to negotiate in good faith, unless the employer can
provide adequate justification for the refusal. 	Thus, this case hinges on the validity
of
the
District's defenses.
Collateral Estoppel Defense
The District argues that dismissal
of
this charge is required because the underlying
matter is barred by collateral estoppel.
Collateral estoppel bars relitigation
of
an issue if: (1) the issue is identical to
one
necessarily decided at a previous proceeding; (2) the previous proceeding resulted in a final
judgment on the merits; and (3) the parties against whom collateral estoppel is asserted was a
party or in privity with a party at the prior proceeding. (State
of
California (Department
of
Developmental Services) (1987) PERB Decision No. 619, proposed dee. at p. 14, citing
People v. Sims (1982) 32 Cal. 3d 468 at 484.) The District asserts that the settlement and
withdrawal
of
the earlier unfair practice charge compels dismissal
of
this case on the grounds
of collateral estoppel.
10

Identical Issues
CSEA filed an earlier unfair practice charge, Case No. SA-CE-1795, which dealt with
the District's authority to delete home telephone numbers from the classified roster it
forwarded to CSEA. The issue presented in the instant unfair practice charge is whether the
District can withhold employee home telephone numbers from the classified roster to be
forwarded to CSEA. The complaint in the prior charge is almost identical to that in the current
case. Therefore, the issue is the same and it was necessarily decided when the parties settled
the dispute underlying the prior unfair practice charge.
Settlement and Withdrawal With Prejudice Constituted a Final Judgment on the Merits
In October 1997, PERB issued a notice of withdrawal and closure of case for Case
No. SA-CE-1795. This letter notified the parties that CSEA had withdrawn the charge with
prejudice and PERB had dismissed the complaint. Where a dismissal is by consent or
stipulation of both parties after a compromise or settlement of the case, the judgment, entered
with prejudice, will bar a new action. (B.E. Witkin, California Procedure (4th ed. 1997),
Judgment, sec. 321, p. 873; see Arciniega v. Bank of San Bernardino (1997)
52 Cal.App. 4th 213, 228.)
When CSEA withdrew the prior unfair practice charge with prejudice based upon the
parties' settlement agreement, the effect is a final judgment on the merits. Therefore, the
second element of collateral estoppel has been satisfied.
11

Identical Parties
The third element that must be present in order for collateral estoppel to preclude
relitigation
of
an issue is that the party against whom the doctrine
of
collateral estoppel is
asserted must have been a party to the prior proceeding. Here, the parties are identical to those
in the prior unfair practice charge. As a result, all three elements
of
collateral estoppel have
been met and the charge could be dismissed on this ground alone. Even
if
this were not the
case, however, I also find that CSEA waived its right to employees' home telephone numbers
through the negotiated settlement agreement that, as CSEA concedes, modified the parties'
CBA in this regard.
Waiver
The relevant language
of
the settlement reads as follows:
The District will provide to CSEA upon an annual request from
CSEA, Chapter 379, bargaining unit member names, addresses,
home telephone numbers and date
of
hire with the District, except
that telephone numbers will not be provided in any case where
the unit member has requested such information not be disclosed
by the District. [Emphasis added.]
Waiver may be found where there is clear and unmistakable language or demonstrative
behavior waiving a reasonable opportunity to bargain over a decision not already firmly made
by the employer. (Los Angeles Community College District (1982) PERB Decision No. 252.)
Such a waiver must be an intentional relinquishment
of
statutory rights. (Id.)
It is very clear that the parties negotiated the issue
of
CSEA's right to home telephone
numbers. Pullinger testified that the parties engaged in a give-and-take whereby CSEA's
proposal was met by a counter-offer from the District. The result
of
those negotiations was that
CSEA signed an agreement that limited the situations in which the District was obligated to
provide employee home telephone numbers to CSEA.
12

By negotiating this language, the parties superseded all other language in their
CBA
which dealt with this issue. Waiver by contract will only be found when there is an intentional
relinquishment
of
rights, expressing clear and unmistakable terms. (Grossmont Union High
School District (1983) PERB Decision No. 313 (Grossmont).) The Board in Grossmont stated
that:
Every contract requires mutual assent or consent. There must be
an agreement
of
definite terms. [Citation omitted.] But
ordinarily (in the absence
of
fraud, mistake, etc.) the outward
manifestation or expression
of
assent is controlling. Mutual
assent is gathered from the reasonable meaning
of
the words and
acts
of
the parties, and not from their unexpressed intentions or
understanding.
The unambiguous meaning
of
the plain language
of
the parties' agreement is that
nin
any case," i.e., whenever and in whatever form the employee's request for the District to
suppress the home telephone number takes, that number will not be disclosed. Applying the
principles
of
contract law which PERB has long followed, the plain language leads to a finding
that CSEA waived its right to unfettered access to employee home telephone numbers. 	It
should also be noted that the language the parties ultimately agreed to was proposed
by
the
District as a more limited counteroffer to CSEA's broader proposal. Therefore, the fact that
CSEA signed the settlement agreement furnishes evidence that it consented to the restrictions
inherent in the narrower language.
In order for CSEA's position to be persuasive, we must accept its argument that "in any
case" does not mean "in any case." I am not prepared to second-guess the parties' intentions
when the plain meaning
of
the settlement language is available as a guide. For that reason, I
find that by signing the settlement agreement, CSEA waived its right to obtain from the
District the home telephone number of any employee who requests the District not to disclose
13

it. To conclude otherwise would effectively nullify the parties' settlement agreement. As the
District has a valid defense for withholding the information in question under the terms
of
the
parties' mutually negotiated settlement, I would dismiss the unfair practice charge.
14

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. SA-CE-1908, California School Employees
Association, State Center Chapter 3
79
v.
State Center Community College District,
in
which
all parties had the right to participate, it has been found that the State Center Community
College District (District) violated the Educational Employment Relations Act (EERA),
Government Code section 3543.S(a), (b) and (c), by withholding home telephone numbers
of
bargaining unit members.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.
Denying the California School Employees Association, State Center Chapter
379 (CSEA) its right to home telephone numbers
of
bargaining unit members, unless such
members have requested that the District not release such information to CSEA or have
requested the information not be released to anyone.
2. 	Denying bargaining unit members their right to be represented
by
CSEA.
3. 	Interfering with CSEA's right to bargaining unit home telephone numbers.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED
TO
EFFECTUATE THE POLICIES OF THE EERA:
1.	
Within ten (10) workdays
of
service
of
the decision in this matter, give
to CSEA the home telephone numbers
of
bargaining unit members, except for those members
who have requested that such information not be given to CSEA or not be given to anyone.
Dated:
----------
STATE CENTER COMMUNITY
COLLEGE DISTRICT
By:------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORK.DAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED, OR COVERED WITH ANY OTHER
MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION, 	STATE 	CENTER
CHAPTER 	379,
Charging 	Party,
V.
STATE 	CENTER 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
______________ )
Unfair 	Practice
Case 	No. 	SA-CE-1908
PROPOSED 	DECISION
(6/7/2000)
Appearances: 	Tim 	Liermann, 	Senior 	Labor 	Relations
Representative, 	for 	California 	School 	Employees 	Association,
State 	Center 	Chapter 	379; 	Zampi 	and Associates, 	by 	Joseph 	P.
Zampi 	and 	Elizabeth 	Plavan, 	Attorneys, 	for 	State 	Center 	Community
College 	District.
Before 	Gary M. 	Gallery, 	Administrative 	Law 	Judge.
PROCEDURAL 	HISTORY
The 	exclusive 	representative 	of 	classified 	employees
requested 	and 	was 	denied 	the 	home 	telephone 	numbers 	of 	some
bargaining 	unit 	employees. 	The 	district 	contends 	those 	employees
had 	directed 	the 	district 	not 	to 	disclose 	that 	information.
This 	case 	commenced 	on 	June 	21, 	1999, 	when 	the 	California
School 	Employees 	Association, 	State 	Center 	Chapter 	379 	(CSEA)
filed 	an 	unfair 	practice 	charge 	against 	the 	State 	Center
Community 	College 	District 	(District). 	After 	investigation, 	and
on 	July 	29, 	1999, 	the 	general 	counsel 	of 	the 	Public 	Employment
Relations 	Board 	(PERE 	or 	Board) 	issued a 	complaint 	against 	the
District. 	The 	complaint 	alleges 	that 	on 	or 	about 	February 	11,
1999, 	CSEA 	requested 	the 	following 	information 	which 	is 	relevant
and 	necessary 	to 	discharge 	its 	duty 	to 	represent 	employees:

name, 	classification, 	home 	address, 	home 	phone 	number 	and 	hire
date 	for 	each 	bargaining 	unit 	member. 	It 	is 	further 	alleged 	that
on 	February 	25, 	1999, 	the 	District 	refused 	to 	provide 	the
information 	requested. 	This 	refusal 	is 	alleged 	to 	constitute
failure 	and 	refusal 	to 	meet 	and 	negotiate 	in 	good 	faith 	with 	CSEA
in violation 	of 	the 	Educational 	Employment 	Relations 	Act 	(EERA 	or
Act) 	section 	3543.5(c) . 1 	This 	same 	conduct 	is 	alleged 	to
interfere 	with 	the 	rights 	of 	unit 	members 	to 	be 	represented 	by
CSEA 	in 	violation 	of 	section 	3543.5(a) 	and 	denied 	CSEA 	its 	right
to 	represent 	unit 	members 	in violation 	of 	section 	3543.5(b).
The 	District 	filed 	its 	answer 	on 	September 	8, 	1999, 	denying
any 	violation 	of 	the 	Act. 	The 	District 	also 	filed 	a 	motion 	to
dismiss 	based upon 	the 	statute 	of 	limitations. 	That 	motion 	was
denied.
A settlement 	conference 	did 	not 	resolve 	the 	dispute. 	Formal
hearing 	was 	held 	on 	January 	26, 	2000, 	in 	Fresno, 	California. 	At
1 Unless 	otherwise 	indicated, 	all 	statutory 	references 	are 	to
the 	Government 	Code. 	EERA 	is 	codified 	at 	section 	3540 	et 	seq.
In 	relevant 	part, 	section 	3543.5 	provides 	that 	it 	is 	unlawful 	for
the 	public 	school 	employer 	to:
(a) 	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. 	For 	purposes 	of
this 	subdivision, 	"employee" 	includes 	an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
2

hearing, 	the 	District 	raised 	a 	second motion 	to 	dismiss 	on
collateral 	estoppel 	grounds. 	This 	will 	be 	discussed 	below. 	The
District 	also 	moved 	to 	dismiss 	the 	case 	on 	the 	grounds 	of 	the
statute 	of 	limitations 	at 	the 	conclusion 	of 	CSEA's 	case. 	The
motion 	was 	denied. 	Post-hearing 	briefs 	were 	filed 	on March 	8,
2000, 	and 	the 	matter was 	then 	submitted 	for 	decision.
FINDINGS 	OF 	FACT
The 	District 	is 	a 	public 	school 	employer 	within 	the 	meaning
of 	the 	Act. 	CSEA 	is 	the 	exclusive 	representative 	of 	an
appropriate 	unit 	of 	employees 	within 	the 	meaning 	of 	EERA.
In 	1997, 	the 	State 	Center 	CSEA 	local 	chapter 	had 	two 	labor
relations 	representatives, 	Derek 	Pullinger 	(Pullinger) 	and 	Denise
Blassingame 	(Blassingame) 	It 	was 	Pullinger's 	first 	year 	to
serve 	the 	District.
On 	February 	11, 	1997, 	Pullinger 	wrote 	to 	District 	Chancellor
Bill 	Stewart 	requesting 	bargaining 	unit 	information,
specifically, 	the 	social 	security number, 	name, 	address, 	phone
number 	and 	hire 	date 	for 	each 	bargaining 	unit 	member 	represented
by 	CSEA 	and 	those 	employees 	in 	the 	unit 	who 	were 	not 	union
members.
The 	District 	provided 	only a 	list 	of 	names 	and 	hire 	dates 	of
employees 	in 	the 	unit. 	It 	refused 	to 	provide 	home 	addresses,
telephone 	numbers 	or 	the 	social 	security number 	of 	CSEA's 	unit
3

members. 2 	CSEA 	filed 	an 	unfair 	labor 	practice 	charge 	against
the 	District 	(PERB 	Case 	No. 	SA-CE-1795).
On 	October 	2 1 	1997 1 	Pullinger wrote 	to 	Doctor 	Henry 	Padden
(Padden) 1 	vice 	chancellor 	of 	personnel 	3
1 	offering 	to 	settle 	the
unfair 	practice 	charge 	by 	the 	following:
Upon 	request 	by 	[CSEA] 	and 	its 	Chapter 	379 1
that 	bargaining 	unit 	information would
comprise 	employees 	name 1 	address 1 	home
telephone 	number, 	and 	their 	date 	of 	hire 	with
the 	district, 	that 	the 	district 	would 	honor
our 	request.
Padden 	responded 	on 	October 	8 1 	1997 1 	as 	follows:
The 	District 	will 	provide 	to 	CSEA upon 	an
annual 	request 	from 	CSEA 1 	Chapter 	379 1
bargaining 	unit 	member 	names, 	addresses, 	home
telephone 	numbers 	and 	date 	of 	hire 	with 	the
District 1 	except 	that 	telephone 	numbers 	will
not 	be 	provided 	in 	any 	case 	where 	the 	unit
member 	has 	requested 	such 	information 	not 	be
disclosed 	by 	the 	District. 	[Emphasis 	added.]
Pullinger 	accepted 	the 	District 1 s 	terms 	on 	October 	8 1 	1997 1
and 	withdrew 	the 	unfair 	practice 	charge 	with 	prejudice. 	As 	a
result 1 	PERB 	closed 	the 	case 	file.
At 	the 	formal 	hearing 1 	Pullinger 	agreed 	this 	agreement
constituted 	an 	amendment 	to 	the 	collective 	bargaining 	agreement
(CBA) 	provisions 	on 	CSEA's 	right 	to 	information. 	Article 	7 	of
that 	agreement 	gives 	CSEA 	the 	right 	to 	receive 	all 	"materials 	and
data 	available 	to 	the 	public."
2At 	some 	point 1 	CSEA 	abandoned 	its 	request 	for 	employee
social 	security numbers. 	It 	is 	not 	an 	issue 	in 	this 	case.
3 Padden 	is 	the 	chief 	negotiator 	for 	the 	District.
4

After 	the 	settlement 	agreement 	referred 	to 	above, 	and 	for
three 	years 	thereafter, 	the 	District 	provided 	CSEA with 	a 	roster,
consisting 	of 	a 	list 	of 	employees 	by 	name, 	address, 	home 	phone
number 	and 	date 	of 	hire. 	On 	each 	of 	the 	three 	lists 	were 	a
number 	of 	employees 	with 	home 	telephone 	numbers 	redacted.
The 	roster 	provided 	on 	October 	8, 	1997, 	just 	following
settlement 	of 	the 	above-referenced 	unfair 	practice 	case, 	had 	120
employee 	telephone 	numbers 	redacted 	out 	of 	345 	employees 	listed.
The 	roster 	for 	the 	next 	year, 	dated 	February 	11, 	1998, 	had
121 	employee 	home 	telephone 	numbers 	redacted 	out 	of 	344 	employees
listed.
On 	February 	11, 	1999, 	Blassingame 	made 	the 	annual
informational 	request. 	The 	District 	complied 	around 	February 	25,
1999. 	This 	roster 	had 	112 	employees 	telephone 	numbers 	blacked
out 	of 	362 	employees 	listed.
Pullinger 	testified 	initially 	that 	it 	was 	noticed 	on 	this
roster 	that 	"there 	were 	an 	exorbitant 	number 	of 	telephone 	numbers
that 	were 	blacked 	out 	on 	the 	roster." 	Pullinger 	also 	testified
that 	he 	noticed 	the 	CSEA 	executive 	board 	officers 	telephone
numbers 	were 	blacked 	out 	on 	the 	list.
In 	fact, 	phone 	numbers 	of 	two 	CSEA officers, 	Cathy 	Johnson
and 	Jerry 	Loheide, 	were 	blanked 	out 	not 	only 	on 	this 	list, 	but,
as 	pointed 	out 	below, 	on 	all 	three 	rosters 	provided 	by 	the
District. 	Until 	1999, 	Pullinger 	never 	asked 	Johnson 	or 	Loheide
why 	their 	telephone 	numbers 	were 	redacted.
5

On 	May 	3, 	1999, 	Padden wrote 	to 	Pullinger 	in 	reply 	to 	the
February 	11 	request.
Under Article 	7.4 	of 	the 	Collective
Bargaining Agreement, 	upon 	written 	request
not 	more 	than 	every 	twelve 	(12) 	months, 	CSEA
shall 	be 	supplied with 	a 	complete 	"hire 	date"
seniority 	roster 	of 	all 	bargaining 	unit
employees. 	Under 	the 	CBA 	this 	roster 	shall
also 	indicate 	the 	employee's 	present
classification and 	primary 	job 	site.
If 	Article 	7.4 	is 	the 	section 	of 	the 	CBA
under 	which 	you 	are 	making 	your 	request,
information 	such 	as 	the 	social 	security
number, 	address 	and 	phone 	number 	are 	not
specifically 	enumerated 	in 	the 	mutually
agreed 	upon 	list 	of 	acceptable 	information
and 	therefore 	appear 	to 	be 	outside 	the 	scope
of 	Article 	7. 	CSEA 	also 	has 	access 	to 	all
materials 	and 	data 	made 	available 	to 	the
public 	under Article 	7.7. 	However, 	the
District 	has 	never 	made 	it 	a 	practice 	to
provide 	personal 	information 	such 	as 	social
security numbers 	or 	home 	phone 	numbers 	to 	the
public. 	In 	addition, 	there 	are 	a 	number 	of
cases ,supporting 	the 	position 	that 	the
disclosure 	of 	certain 	information 	such 	as
social 	security numbers 	would 	be 	considered
an 	invasion 	of 	the 	employees' 	privacy 	rights.
Los 	Rios 	Community 	College 	District 	12 	PERC
19083.
Therefore, 	in 	light 	of 	the 	Collective
Bargaining Agreement, 	Article 	7, 	Subsection 	4
and 	the 	employees' 	rights 	to 	privacy, 	and 	to
the 	extent 	this 	information 	has 	not 	been
previously provided 	earlier 	this 	year, 	the
District 	will 	comply with 	your 	request 	and
produce 	the 	name 	and 	hire 	date, 	primary
classification 	and 	primary 	job 	site 	for 	each
bargaining 	unit 	member. 	This 	information 	has
previously been 	deemed 	by 	the 	parties 	to 	be
adequate 	for 	the 	CSEA 	to 	effectively
represent 	the 	classified unit 	in 	collective
bargaining 	and 	labor 	relation 	issues.
6

The 	Public 	Records 	Act 	(Section 	6254.3)
A part 	of 	the 	Public 	Records 	Act, 	section 	6254.3, 	provides:
(a) 	The 	home 	addresses 	and 	home 	telephone
numbers 	of 	. 	. 	employees 	of 	a 	school
district 	. 	. 	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,
(b) 	Upon 	written 	request 	of 	any 	employee, 	a 	.
school 	district 	. 	. 	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
maintained by 	the 	agency, 	except 	if 	the 	list
is 	used 	exclusively by 	the 	agency 	to 	contact
the 	employee.
The 	District 	Directory
The 	District 	annually 	publishes 	a 	directory 	listing 	every
District 	employee 	by 	name, 	department 	classification 	and 	District
telephone 	number. 	Included 	in 	this 	directory 	is 	an 	employee 	home
directory. 	This 	directory 	lists, 	alphabetically, 	District
employees' 	home 	address, 	home 	telephone 	number 	and 	facility
location.
The 	employee's 	home 	information will 	not 	be 	placed 	in 	the
home 	directory 	if 	the 	employee 	so 	directs 	the 	District. 	This
option 	is 	accomplished 	by 	a 	annual 	survey 	conducted 	by 	the
District. 	In August 	of 	each year, 	prefatory 	to 	issuing 	the
District 	directory, 	the 	District 	distributes 	to 	all 	employees 	a
7

District 	directory 	data 	entry 	form 	which 	includes 	boxes 	to 	be
checked 	by 	the 	employee 	to 	signify 	that 	the 	employee 	does 	not
want 	his/her 	home 	address, 	or 	home 	phone 	number 	or 	either 	to 	be
published 	in 	the 	home 	directory.
If 	an 	employee 	marks 	either 	the 	home 	address 	or 	home 	phone
as 	not 	to 	be 	listed 	in 	the 	Directory, 	the 	District 	will 	not 	list
that 	information 	in 	the 	home 	directory.
The 	gist 	of 	this 	case 	is 	that, 	based upon 	the 	employee
signifying 	he 	or 	she 	does 	not 	want 	home 	information 	in 	the 	home
directory, 	as 	reflected 	in 	this 	annual 	survey, 	the 	District 	also
refuses 	to 	give 	CSEA 	the 	unit 	member's 	home 	address 	or phone
number. 4
Johnson, 	a 	CSEA member, 	and 	a 	CSEA officer 	for 	the 	last 	two
years, 	completed 	the 	Directory data 	form 	during 	the 	1998-99
school 	year, 	indicating 	she 	did 	not 	want 	her 	home 	phone 	or
address 	to 	be 	placed 	in 	the 	school 	home 	directory. 	She 	testified
that 	she 	did 	not 	intend, 	nor 	indicate 	that 	CSEA was 	not 	to 	get
such 	information. 	She 	made 	no 	other 	restriction 	on 	the
information. 	She 	works 	in 	the 	financial 	aid 	office 	and 	does 	not
want 	students 	calling 	her 	at 	home.
Loheide, 	president 	of 	CSEA 	since 	January 	1999 	and 	an
employee 	of 	the 	District, 	also 	filled 	out 	the 	information
4 The 	District's 	position 	on 	the 	evidence 	is 	inconsistent 	on
this 	point. 	Both 	Johnson 	and 	Loheide 	testified 	that 	they
completed 	the 	directory 	form 	indicating 	that 	neither 	their 	home
addresses 	or 	telephone 	numbers 	be 	listed 	in 	the 	home 	directory.
Yet, 	on 	the 	roster 	provided 	to 	CSEA, 	both 	of 	their 	home 	addresses
were 	listed, 	and 	only 	their 	home 	phone 	numbers 	were 	redacted.
8

declining 	to
	have
	his
	home
	address
	or
	home
	phone
	number
	in
	the
District
	directory.
	No
	one
	indicated 	to
	him
	that
	this
restriction
	would
	also
	apply
	to 	releasing
	the 	information
	to
CSEA. 	He
	made
	no
	other 	requests
	that
	such
	information 	should
	not
go
	to
	CSEA.
	Loheide
	served 	as
	chief
	job 	steward
	for
	two
	years
prior
	to
	assuming
	the
	CSEA
	presidency. 	In
	1998,
	the
	chief
	job
steward
	position
	was
	designated
	an
	executive
	officer
	in
	the
	CSEA
organization.
Pullinger
	did
	not 	ask
	Loheide
	about
	his
	listing
	in
	the
	two
years 	preceding
	1999,
	because,
	he
	testified,
	Loheide
	was
	not 	then
president.
	He
	did 	inquire
	of
	Loheide
	why
	his
	phone
	was
	blacked
out
	in
	1999,
	as
	he
	was
	then 	chapter
	president.
In
	early
April
	1999,
	Pullinger 	received
	a
	copy
	of 	the
	1999
roster,
	Charging
	Party Exhibit
	2, 	from
	the
	District.
	It
	had,
	in
his
	judgement, 	an
	nexorbitant
	number
	of 	telephone
	numbers
blackened
	out.
11
	He
	spoke
	to
	Pat 	Taylor,
	an 	employee
	in 	the
District's
	personnel 	department.
	She
	explained 	the 	process 	of
blackening 	out 	those 	telephone
	numbers
	of
	employees
	who
	had
completed
	the
	form
	relating 	to 	the
	District 	directory.
On
	April
	12, 	1999,
	the
	District
	sent 	to 	Pullinger
	a
	copy 	of
the 	data
	form
	used
	for 	the 	directory. 	Pullinger
	testified 	that
this
	was
	the
	first
	he
	knew
	that 	the
	District
	used
	this
	form
	as
	a
basis 	for 	not 	providing
	CSEA
	with
	home
	phone 	numbers
	of
	unit
members.
9

Padden 	told 	Pullinger 	he 	had 	used 	the 	directory 	consent 	form
for 	a 	number 	of 	years 	to 	guide 	him 	in 	releasing 	telephone 	numbers
to 	CSEA.
The 	parties 1 	CBA 	contains 	a 	waiver 	provision, 	Article 	6,
that 	provides:
1. 	This 	Agreement 	shall 	constitute 	the 	full 	and
complete 	commitment 	between 	both 	parties. 	This
Agreement 	may 	be 	altered, 	changed, 	added 	to, 	deleted
from, 	or modified, 	only 	through 	the 	voluntary, 	mutual
consent 	of 	the 	parties 	in 	a 	written 	and 	signed
amendment 	to 	this 	Agreement.
2. 	Except 	as 	otherwise 	provided 	in 	this
Agreement, 	the 	District 	and 	CSEA expressly
waive 	and 	relinquish 	the 	right 	to 	bargain
collectively on 	any matter:
(a) 	Whether 	or 	not 	specifically 	referred 	to
or 	covered 	in 	this 	Agreementi
(b) 	Even 	though 	not 	within 	the 	knowledge 	or
contemplation 	of 	either 	party 	at 	the 	time 	of
negotiationsi
(c) 	Even 	though 	during 	negotiations 	the 	matters 	were
proposed 	and 	later 	withdrawn.
3. 	All 	federal 	and 	state 	laws 	or 	rules,
mandatorily 	affecting 	classified 	employees
and 	not 	included 	in 	this 	contract 	will 	have
the 	same 	force 	and 	effect 	as 	those 	spelled
out 	in 	full.
In 	addition, 	Article 	26 	provides, 	in part:
CSEA 	recognizes 	and 	agrees 	that 	the
District 1 s 	powers, 	rights, 	authority, 	duties
and 	responsibilities 	include, 	but 	without
limiting 	the 	generality of 	the 	foregoing, 	the
exclusive 	right 	to 	manage, 	plan, 	organize,
staff, 	direct 	and 	control; 	to 	decrease 	and
increase 	the 	work 	force; 	to 	establish 	and
change 	standardsi 	to 	determine 	soley 	the
extent 	to 	which 	the 	facilities 	of 	any
department 	therefore 	shall 	be 	operated, 	and
the 	outside 	purchase 	of 	products 	or 	services
(such 	purchases 	of 	products 	or 	services 	shall
10

not
	be
	the
	reason
	for
	a
	reduction
	in
	present
allocated 	positions
	held
	by members);
	the
right
	to
	introduce
	new,
	or
	improved methodsand
	facilitates;
	and,
	to
	otherwise 	take
	any
action 	desired 	to
	run
	the
	entire
	operation
efficiently,
	except 	as 	modified
	by
	this
Agreement.
	[Emphasis
	added.]
ISSUE
Did
	the
	District
	violate
	the
	Act
	when
	it
	refused 	to
	provide
CSEA
	with
	the
	home
	telephone
	number
	of
	certain unit
	members?
CONCLUSIONS
	OF
	LAW
PERB
	has 	determined
	that
	the
	duty
	to 	bargain
	in
	good
	faith
requirement 	of
	section
	3543.5(c)
	carries
	with
	it
	an
	obligation
	to
provide 	the 	exclusive
	representative
	with 	information
	that
	is
necessary
	and
	relevant 	to
	discharge
	its
	duty
	to 	represent
employees.
	(Stockton 	Unified
	School
	District
	(1980)
	PERB
Decision
	No.
	143
	(Stockton).)
	PERB
	has
	expressly 	held
	that
	unit
members'
	home
	telephone
	numbers
	are 	presumptively
	relevant.
(Bakersfield 	City
	School
	District
	(1998)
	PERB
	Decision
	No.
	1262
(Bakersfield).)
	The
	employer's
	refusal 	to
	supply
	information
	is
a
	refusal 	to 	negotiate 	in
	good
	faith,
	unless 	the
	employer
	can
provide 	adequate
	justification
	for 	the
	refusal.
	(Stockton.)
The
	Statute
	of 	Limitations
The
	District 	filed
	a
	pre 	hearing
	motion
	to 	dismiss 	the
complaint 	based
	upon
	the
	statute
	of
	limitations.
	The
	motion
	was
formally 	denied
	on
	the 	grounds
	it
	was
	premature. 	Evidence 	was
necessary 	to
	show 	CSEA knew
	or 	should 	have
	known
	the
	District
1
s
refusal 	to 	release
	home
	telephone 	numbers
	of 	unit 	employees.
11

At
	hearing,
	upon
	the 	conclusion 	of
	CSEA's
	case-in-chief,
	the
District
	again
	moved
	to
	dismiss 	the
	complaint
	on
	the
	grounds
	of
the
	statute
	of
	limitations.
The
	statute
	of
	limitations
	is
	found
	in 	section
	3541.S(a)
(1)
and
	provides,
	in 	relevant
	part, 	that
	the
	Board
	shall
	not:
Issue
	a
	complaint
	in
	respect
	of
	any
	charge
based
	upon
	an
	alleged
	unfair 	practice
occurring
	more
	than
	six
	months
	prior
	to 	the
filing
	of 	the
	charge.
This
	provision
	is
	jurisdictional.
	In
	Regents
	of 	the
University 	of
	California
	(1990)
	PERB
	Decision
	No.
	826
	H, 	PERB
stated:
.
	The
	statute
	of
	limitations
	begins
	to
run
	on
	the 	date 	the
	charging
	party
	has
	actualor 	constructive 	notice
	of 	the 	respondent's
clear 	intent 	to
	implement
	a
	unilateral
	change
in
	policy, 	providing
	that
	nothing 	subsequent
to
	that
	date 	evinces
	a
	wavering
	of
	that
intent.
Here
	the
	charge
	was
	filed
	on
	June 	21, 	1999. 	Thus,
	any
violation
	must 	have
	occurred
	on
	or
	after
	January
	21, 	1999,
	to
	be
timely
	filed.
CSEA
	argues
	that
	the 	refusal 	to
	provide 	the 	telephone
numbers
	was
	a
	"stand 	alone"
	right,
	and
	that 	this
	was
	not
	a
unilateral
	change.
	Under
	the 	Bakersfield 	analysis, 	the 	''stand
alone"
	right,
	was
	denied 	within 	the 	six-month
	statute
	of
limitations 	period.
The
	District 	disputes 	that
	its
	conduct
	is
	of
	a
	"continuing
nature."
	It
	argues 	under 	El 	Dorado 	Union High 	School
	District
(1984) 	PERB
	Decision
	No. 	382 	(El 	Dorado)
	that 	this 	is
	not
	a
12

continuing
	violation.
	There,
	PERB
	recited
	its
	holding
	in 	the
precedential
	case 	regarding
	a
	continuing
	violation 	that:
. 	a
	continuing
	violation
	would
	only
	be
found
	where
	active
	conduct
	or 	grievancesoccurred within 	the
	limitations
	period
	that
independently
	constituted
	an
	unfair 	practice.
[Citation.]
	However,
	a
	continuing
	violation
would
	not
	be 	found
	where
	the
	employer
1 s
conduct
	during 	the
	limitations
	period
constituted
	an
	unfair 	practice
	only
	by
	its
relation
	to
	the
	original
	offense.
[Citation.]
	Where
	the 	underlying 	theory 	of
the
	charge
	is
	an
	alleged
	unilateral
	change
occurring 	outside
	the
	limitations
	period, 	the
employer
	must
	engage
	in
	conduct
	during 	the
limitations
	period
	"such
	as 	reimplementation
or
	subsequent
	refusals 	to 	negotiate
	.
[which]
	revive[s] 	the
	viability
	of
	the
	unfair
practice.
11
	San
	Dieguito
	[Union High
	School
District
	(1982)
	PERB
	Decision
	No.
	194].
In
	El 	Dorado
	the
	District
	implemented
	a
	new
	teaching
assignment
	in
	March
	and 	September 	1978.
	The
	union
	had
	actual
notice
	prior 	to
	the
	commencement
	of 	the
	limitations
	period, 	but
did 	not
	file
	its
	unfair 	practice
	charge
	until
	more
	than
	six
months
	later.
The
	District
	also
	relies
	on
	UCLA
	Labor
	Relations 	Division
(1989)
	PERB
	Decision
	No.
	735-H.
	It
	contends
	that
	conduct
consistent
	with
	and
	constituting
	an
	unfair 	practice
	charge 	only
in 	relation 	to 	the 	original 	offense 	occurring 	outside 	the
	six-
month
	time
	period will
	not
	be
	a
	continuing
	violation.
	Here,
contends 	the
	District,
	it
	has 	maintained 	the
	same
	stance 	from 	the
beginning, 	to 	protect 	the 	employee's 	request 	for 	privacy.
	If 	it
had 	committed
	a
	violation,
	it
	was
	only 	at 	the 	time
	it
	originally
adopted
	its 	practice 	of 	withholding 	the 	information based 	upon
the 	District 	directory 	data 	form.
13

As 	CSEA noted, 	this 	is 	not 	a 	unilateral 	change 	case.
Rather, 	the 	union's 	right 	to 	necessary 	and 	relevant 	information
is 	based 	upon 	the 	District's 	obligation 	to 	bargain 	in 	good 	faith,
and 	with 	that 	obligation 	is 	the 	duty 	to 	respond 	to 	requests 	for
necessary 	and 	relevant 	information. 	As 	noted, 	PERE 	has 	found
unit 	members 	home 	telephone 	numbers 	presumptively 	relevant.
On 	February 	11, 	1999, 	CSEA 	requested 	the 	telephone 	numbers
of 	unit 	members. 	The 	District 	refused 	on May 	3, 	1999. 	This
refusal 	was 	not 	predicated upon 	a 	unilateral 	change 	made 	in 	1997,
as 	the 	District 	had 	never 	before 	provided 	the 	home 	phone 	numbers.
Rather, 	the 	refusal 	was 	a 	continuing 	rejection 	of 	CSEA's 	right 	to
the 	telephone 	numbers. 	CSEA 	filed 	its 	charge 	on 	June 	21, 	1999,
well 	within 	the 	six-month 	limitations 	period.
The 	District's 	defense 	on 	the 	statute 	of 	limitations 	is
rejected.
Collateral 	Estoppel
The 	District 	next 	raises 	the 	defense 	of 	collateral 	estoppel.
It 	asserts 	that 	the 	filing, 	settlement 	and 	withdrawal 	of 	the
earlier unfair 	practice 	charge 	is 	dispositive 	of 	this 	case.
In 	State 	of 	California 	(Department 	of 	Developmental
Services) 	(1987) 	PERE 	Decision No. 	619-S, 	PERE 	adopted 	an
administrative 	law 	judge's 	explanation 	of 	collateral 	estoppel:
The 	doctrine 	of 	collateral 	estoppel 	precludes
a 	party 	to 	an 	action 	from 	relitigating 	in 	a
second 	proceedings 	matters 	litigated 	and
decided 	in 	a 	prior 	proceeding. 	People 	v.
Sims 	(1982) 	32 	Cal.3d 	468, 	477 	[186 	Cal.Rptr.
77]. 	Collateral 	estoppel 	is 	an 	aspect 	of,
but 	not 	coextensive 	with, 	the 	broader 	concept
of 	res 	judicata. 	Where 	res 	judicata 	operates
14

to 	prevent 	relitigation 	of 	a 	cause 	of 	action
once 	adjudicated, 	collateral 	estoppel
operates 	. 	. 	to 	obviate 	the 	need 	to
relitigate 	issues 	already 	adjudicated 	in 	the
first 	action." 	Lockwood v. 	Superior 	Court
(1984) 	160 	Cal.App.3d 	667, 	671 	(206 	Cal.Rptr.
785]. 	The 	purpose 	of 	the 	doctrine 	is 	"to
promote 	judicial 	economy by minimizing
repetitive 	litigation, 	to 	prevent
inconsistent 	judgments 	which 	undermine 	the
integrity 	of 	the 	judicial 	system, 	[and] 	to
protect 	against 	vexatious 	litigation."
(Ibid.)
Collateral 	estoppel 	traditionally 	has 	barred
relitigation 	of 	an 	issue 	if 	(1) 	the 	issue 	is
identical 	to 	one 	necessarily 	decided 	in 	a
previous 	proceeding; 	11 (2) 	the 	previous
[proceeding] 	resulted 	in 	a 	final 	judgment 	on
the 	merits; 	and 	(3) 	the 	party 	against 	whom
collateral 	estoppel 	is 	asserted was 	a 	party
or 	in 	privity with 	a 	party 	at 	the 	prior
[proceeding] . 11
. 	Thus, 	collateral 	estoppel 	effect 	will
be 	granted 	to 	an 	administrative 	decision 	made
by 	an 	agency 	(1) 	acting 	in 	a 	judicial
capacity, 	(2) 	to 	resolve 	properly 	raised
disputed 	issues 	of 	fact 	where 	(3) 	the 	parties
had 	a 	full 	opportunity 	to 	litigate 	those
issues.
Here, 	the 	District 	argues 	the 	issues 	were 	the 	same, 	the
parties 	were 	the 	same, 	and 	CSEA had 	full 	opportunity 	to 	litigate
the 	issue 	when 	it 	filed 	the 	first 	unfair 	practice 	charge.
The 	District 	argues 	that 	a 	final 	judgement 	was 	reached 	in
this 	case 	by 	CSEA's 	withdrawal 	of 	the 	charge, 	with 	prejudice,
under 	the 	concept 	of 	"Retraxit. 11 	Citing 	Blackstone 	Commentaries
296, 	it 	is, 	says 	the 	District, 	11 	an 	open 	and 	voluntary
renunciation 	of 	his 	suit 	in 	court 	and 	by 	this 	he 	for[]ever 	loses
his 	action. 11
A retraxit 	has 	always 	been 	deemed 	a 	judgment
on 	the 	merits 	against 	the 	plaintiff,
15

estopping 	him 	from 	subsequently maintaining
an 	action 	for 	the 	cause 	renounced. 	(Freeman,
A Treatise 	of 	the 	Law 	of 	Judgments 	(1925)
757, 	p. 	1595.)
The 	District 	also 	relies 	on Arciniega 	v. 	Bank 	of 	San
Bernardino 	(1997) 	52 	Cal.App.4th 	213 	[60 	Cal.Rptr.2d 	495], 	for
the 	proposition 	that,
where 	a 	dismissal 	is 	by 	the 	consent
or 	stipulation 	of 	both parties 	after 	a
compromise 	or 	settlement 	of 	the 	case, 	it 	is
intended 	to 	operate 	as 	a 	retraxit 	and 	the
judgment, 	entered with 	prejudice, 	will 	bar 	a
new 	action.
In 	Roybal 	v. 	University 	Ford 	(1989) 	207 	Cal.App.3d 	1080 	[255
Cal.Rptr. 	469], 	the 	court 	stated:
A dismissal 	with 	prejudice 	by plaintiff 	of
its 	action 	is 	a 	bar 	to 	a 	subsequent 	action 	on
the 	same 	cause; 	otherwise 	there 	would 	be 	no
meaning 	to 	the 	1 with prejudice 1 	feature.
In 	addition, 	the 	District 	cites 	two 	California 	appellate
cases 	extending 	the 	concept 	of 	settlement 	agreements 	foreclosing
further 	litigation on 	the 	same 	issues. 5 	Here, 	contends 	the
District, 	the 	1997 	settlement 	agreement 	by which 	CSEA withdrew
its 	unfair 	practice 	charge, 	with prejudice, 	results 	in 	the 	issue
having 	been 	fully 	litigated 	and 	collateral 	estoppel 	is 	satisfied.
The 	District 	may be 	correct 	that 	the 	issue 	of 	CSEA's
entitlement 	to 	bargaining 	unit 	employee's 	home 	phone 	numbers 	has
been 	resolved 	by 	the 	four 	corners 	of 	the 	settlement 	agreement 	to
5 Citizens 	for 	Open Access 	to 	Sand 	& Tide 	v. 	Seadrift 	Assn.
(1998) 	60 	Cal.App.4th 	1053 	[71 	Cal.Rptr.2d 	77] 	and 	Stonewall 	Ins.
Co. 	v. 	Palos 	Verdes 	Estates 	(1996) 	46 	Cal.App.4th 	1810 	[54
Cal.Rptr.2d 	176].
16

the 	earlier 	unfair 	practice 	charge, 	and 	that 	issue 	may 	not 	be
relitigated. 	However, 	unresolved 	by 	the 	settlement 	agreement 	is
the 	District 1 s 	authority 	to 	withhold 	employee 1 s 	home 	telephone
from 	CSEA 	on 	the 	basis 	of 	a 	general 	form 	stating 	that 	an 	employee
chose 	not 	to 	include 	his/her 	telephone 	number 	in 	the 	District 1 s
employee 	home 	directory publication.
Clearly, 	the 	language 	in 	the 	agreement 	"in 	any 	case 	where
the 	unit 	member 	has 	requested 	such 	information 	not 	be 	disclosed
by 	the 	District" 	creates 	an 	ambiguity 	unaddressed 	by 	the
settlement 	agreement. 	As 	Pullinger 	believed, 	where 	the 	unit
employee 	advised 	the 	District 	it 	was 	not 	to 	release 	the 	home
address 	specifically 	to 	CSEA, 	then 	CSEA was 	not 	entitled 	to 	the
home 	telephone 	number. 	This 	is 	the 	logical 	result 	of 	the
language 	in 	the 	settlement 	agreement, 	which was 	provided 	by 	the
District. 	The 	District 1 s 	interpretation 	that 	"in 	any 	case" 	means
and 	includes 	the 	form 	associated 	with 	publication 	of 	information
in 	the 	District 	directory 	is 	an 	stretch 	of 	the 	language.
The 	District 	offered 	no 	evidence 	in 	support 	of 	its 	position
that 	the 	parties 	understood 	at 	the 	time 	the 	agreement 	was
negotiated 	that 	the 	"home 	directory 	form" 	would 	be 	the 	basis 	for
authorizing 	the 	District 	to 	withhold 	unit 	members 	home 	telephone
numbers 	from 	CSEA. 	Padden 1 s 	explanation 	that 	the 	District 	always
withheld 	such 	information 	on 	the 	basis 	of 	the 	directory 	form 	does
not 	defeat 	CSEA 1 s 	right 	to 	unit 	member 	home 	phone 	numbers, 	unless
the 	employee 	specifically 	told 	the 	District 	not 	to 	release 	the
information 	to 	CSEA.
17

Article 	6, 	Section 	5
The 	District 	cites 	Article 	6, 	section 	5, 	of 	the 	CBA, 	which
gives 	the 	District 	"the 	exclusive 	right 	to 	determine 	the 	impacts
and 	effects 	of 	matters 	outside 	the 	scope 	of 	representation 	as
permitted by 	the 	Educational 	Employment 	Relations 	Act." 	Based
upon 	EERA's 	limitation 	of 	scope 	of 	representation 	to 	"matters
relating 	to 	wages, 	hours 	of 	employment 	and 	other 	terms 	and
conditions," 	the 	District 	leaps 	to 	an 	assertion 	that 	the 	District
rightly 	has 	determined 	to 	uphold 	the 	"privacy 	interests 	of 	their
employees" 	and 	which 	is 	a 	matter 	outside 	the 	scope 	of
representation. 	The 	District 	concedes 	that 	it 	may 	have 	an
obligation 	to 	negotiate 	over 	the 	impact 	of 	such 	decision, 	but
contends, 	CSEA, 	by virtue 	of 	Article 	6, 	section 	5, 	has 	"waived
its 	rights 	to 	negotiate 	over 	such 	impacts 	and 	effects." 	By 	this
waiver, 	urges 	the 	District, 	any 	impact 	of 	the 	decision 	to 	"uphold
employee 	privacy 	rights 	caused by 	the 	District's 	decision 	to 	use
the 	District 	Directory Data 	Entry 	Form 	is 	a 	decision 	left
exclusively 	to 	the 	District."
Any waiver 	of 	the 	right 	to 	bargain must 	be 	"clear 	and
unmistakable." 	(Amador 	Valley 	Joint 	Union High 	School 	District
(1978) 	PERB 	Decision No. 	74.) 	The 	waiver 	must 	indicate 	an
intentional 	relinquishment 	of 	the 	union's 	rights 	under 	the 	EERA.
(San 	Francisco 	Community 	College 	District 	(1979) 	PERB 	Decision
No. 	105.)
The 	language 	in Article 	6, 	section 	5, 	does 	not 	indicate 	a
"clear 	and 	unmistakable" 	waiver 	of 	the 	right 	to 	unit 	member's
18

home
	telephone
	numbers. 	Moreover,
	the 	settlement
	agreement
	post-
dated 	the
	CBA.
	The
	agreement
	reflects
	a
	concession
	by
	the
District
	that 	unit
	member
	home
	telephone
	numbers
	are 	negotiable,
and
	it
	ceded
	to
	CSEA
	the
	right
	to
	that
	information.
The
	District
1 s
	waiver
	argument
	is
	rejected.
Article
	7
The
	District 	asserts 	that
	CSEA,
	in
	agreeing
	to 	Article
	7
(providing
	CSEA
	the
	right
	to
	all
	information
	available 	to 	the
public),
	and
	the
	impact
	of
	section
	6254.3,
	empowers
	the
	District
to 	redact
	home
	telephone
	numbers
	of
	employees
	who
	have
	exercised
the
	section
	6254.3
	right
	not
	to
	have
	their
	home
	telephone
	numbers
released.
This
	argument
	is
	likewise
	rejected.
	The
	District
1 s
contention
	fails
	to
	acknowledge
	the
	subsequent 	agreement 	by
	the
parties
	in
	regard 	to 	the
	unfair 	practice
	charge,
	whereby
	the
	CBA
was
	amended
	by
	that
	agreement.
	The
	District
1 s
	argument
	also
erroneously
	interprets
	the 	settlement
	agreement
	as
	authority 	to
withhold 	the
	employee
	home
	telephone
	number 	where
	the
	employee
has
	indicated 	that
	such
	information
	is
	to
	be
	withheld.
As
	pointed 	out 	before, 	section
	6254.3,
	directs
	the 	school
district
	to 	withhold 	both 	the
	home
	address
	and
	telephone
	numbers
of 	employees 	upon
	written 	request.
	If
	the
	District
1 s 	home
directory
	form
	carries 	the 	import 	the
	District's 	position
asserts, 	then 	the 	District, 	to
	comply
	with 	section
	6254.3, 	should
have 	withheld 	Johnson 	and 	Loheide's
	home
	addresses 	as 	well.
However,
	the 	District 	did 	provide
	CSEA
	with 	the
	home
	addresses,
19

even 	though 	both 	employees 	had 	signed 	the 	home 	directory 	form
indicating 	their 	home 	addresses 	were 	not 	to 	be 	released. 	Thus,
the 	home 	directory 	form 	was 	not 	used 	consistently 	by 	the
District, 	to 	comply with 	section 	6254.3.
Article 	26
The 	District 	argues 	that 	Article 	26 	gives 	it 	the 	right 	to
take 	"any 	action" 	to 	run 	the 	District 	efficiently. 	Supported 	by
Padden's 	testimony 	about 	the 	use 	of 	the 	District 	directory 	form,
the 	District 	contends 	its 	practice 	of 	using 	one 	form, 	in 	an
efficient 	manner 	is 	authorized 	by 	this 	section.
The 	argument 	is 	rejected. 	The 	section 	does 	not 	constitute 	a
substantive 	waiver 	of 	the 	right 	to 	the 	information 	under
discussion. 	CSEA, 	by 	conceding 	efficiency 	to 	the 	District, 	has
not 	made 	an 	unmistakable 	waiver 	of 	its 	statutory 	right 	to 	home
telephone 	numbers 	of 	unit 	members. 	As 	discussed 	above, 	the
settlement 	agreement 	post-dated 	the 	CBA 	and Article 	26. 	Finally,
if 	the 	directory 	form 	constituted 	justification 	for 	withholding
unit 	member's 	home 	telephone 	numbers, 	it 	should 	also 	require
withholding 	home 	addresses 	as 	required 	by 	section 	6254.3. 	Here,
the 	District 	did 	not 	withhold 	home 	addresses, 	even 	though
employees 	had 	requested 	such 	information 	not 	be 	released.
The 	1997 	Settlement 	Agreement
The 	District 	contends 	that 	its 	conduct 	in 	redacting 	the 	home
telephone 	numbers 	of 	unit 	members 	is 	completely 	consistent 	with
the 	settlement 	agreement 	in 	unfair 	practice 	case
SA-CE-1795.
20

As 	noted 	before, 	however, 	the 	language 	relied 	upon 	by 	the
District 	(CSEA would 	get 	the 	home 	telephone 	number 	except 	"in 	any
case 	where 	the 	unit 	member 	has 	requested 	such 	information 	not 	be
disclosed 	by 	the 	District") 	does 	not 	mean 	CSEA has 	waived 	its
statutory 	right 	to 	such 	information. 	It 	does 	mean 	that 	the
District 	should 	not 	give 	the 	home 	telephone 	number 	to 	CSEA, 	when
the 	unit 	member 	directs 	the 	District 	to 	not 	give 	that 	information
to 	CSEA. 	The 	only 	information 	the 	District 	relies 	upon, 	however,
is 	the 	directory 	form, 	a 	document 	used 	to 	survey District
employees's 	about 	release 	of 	home 	information 	in 	the 	District's
home 	directory.
Past 	Practice
The 	District 	argues 	its 	practice 	of 	withholding 	home
telephone 	numbers 	was 	consistent 	with 	its 	practice 	for 	the 	last
fourteen 	years. 	However, 	this 	is 	not 	a 	unilateral 	change 	charge
against 	the 	District. 	It 	is 	a 	denial 	of 	the 	statutory 	right 	to
necessary 	and 	relevant 	information 	determined 	by 	PERB 	to 	be
presumptively 	relevant. 	Also, 	it 	was 	not 	until 	1997 	that 	CSEA
requested 	the 	home 	telephone 	numbers 	of 	unit 	members. 	The
District's 	practice 	prior 	to 	that 	time 	was 	and 	is 	irrelevant 	to
this 	inquiry. 	As 	discussed 	in 	the 	statute 	of 	limitations 	portion
of 	this 	decision, 	each year 	gave 	rise 	to 	CSEA's 	right 	to 	the 	home
telephone 	number 	of 	unit 	members. 	The 	District's 	past 	practice
does 	not 	undermine 	that 	right.
21

The 	Public 	Records 	Act
The 	District 	contends 	its 	practice 	is 	consistent 	with 	the
Public 	Records 	Act. 	Yet 	that 	act 	requires 	the 	employee 	to 	make 	a
specific 	written 	request 	to 	the 	District 	to 	not 	disclose 	the
information 	specifically 	to 	employee 	organizations. 	In 	this
case, 	the 	District 	surveyed 	employees 	for 	their 	position 	on
placing 	confidential 	information 	in 	the 	District 	directory.
Employee 	responses 	to 	the 	survey 	is 	not 	a 	written 	request 	from
the 	employee 	to 	the 	employer 	required 	by 	the 	Public 	Records 	Act.
Waiver
The 	District 	argues 	that 	Article 	6 	(waiver 	clause) 	of 	the
CEA, 	along 	with 	the 	specific 	right 	to 	materials 	and 	data
available 	to 	the 	public 	(Article 	7), 	precludes 	CSEA 	from 	claiming
the 	right 	to 	receive 	member 	home 	telephone 	numbers.
I 	reject 	this 	argument 	as 	well. 	Article 	7 	expressly
provides 	for 	written 	amendment 	to 	the 	CEA. 	The 	October 	8, 	1997,
settlement 	agreement 	was 	an 	amendment 	to 	the 	CEA. 	It 	added 	unit
member's 	home 	telephone 	numbers 	to 	information 	the 	District 	was
obliged 	to 	provide 	CSEA 	on 	request. 6
Not 	noted 	by 	either 	side 	is 	section 	3 	of 	Article 	6, 	which
provides 	that:
All 	federal 	and 	state 	laws 	or 	rules,
mandatorily 	affecting 	classified 	employees
and 	not 	included 	in 	this 	contract 	will 	have
6 Within 	this 	argument 	the 	District 	cites 	the 	settlement
agreement 	having 11 buttressed 11 	the 	waiver 	argument 	advanced 	by 	the
District. 	Again, 	it 	focuses 	on 	its 	interpretation 	of 	the 	phrase
"in 	any 	case," 	in 	the 	agreement 	to 	mean 	and 	include 	the 	directory
data 	form. 	I 	have 	previously 	rejected 	that 	interpretation.
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the 	same 	force 	and 	effect 	as 	those 	spelled
out 	in 	full.
The 	Public 	Records 	Act 	gives 	to 	CSEA 	the 	right 	to 	unit
member 	home 	telephone 	numbers 	except 	where 	the 	employee 	has 	given
the 	employer 	written 	direction 	to 	not 	give 	such 	information 	to
the 	union. 	This 	specific 	right 	was 	not 	abridged 	by 	the 	waiver
language 	of 	Article 	6. 	Nor 	was 	it 	abridged 	by 	the 	settlement
agreement 	of 	1997.
I 	conclude 	that 	the 	District 	has 	violated 	CSEA's 	right 	to
bargaining 	unit 	members' 	home 	telephone 	numbers 	by 	its 	refusal 	to
provide 	such 	information based upon 	a 	form 	expressly 	designed 	to
inform 	the 	District 	of 	the 	employee's 	desire 	that 	their 	home
information 	not 	be 	printed 	in 	the 	District's 	home 	directory.
REMEDY
EERA 	section 	3541.S(c) 	gives 	PERB:
. 	the 	power 	to 	issue 	a 	decision 	and 	order
directing 	an 	offending 	party 	to 	cease 	and
desist 	from 	the 	unfair 	practice 	and 	to 	take
such 	affirmative 	action, 	including 	but 	not
limited 	to 	the 	reinstatement 	of 	employees
with 	or 	without 	back pay, 	as 	will 	effectuate
the 	policies 	of 	this 	chapter.
It 	has 	been 	found 	that 	the 	District 	violated 	its 	duty 	to
bargain 	in 	good 	faith 	by 	wrongfully withholding 	bargaining 	unit
member's 	home 	telephone 	numbers 	based 	upon 	a 	directory 	data 	form,
whose 	purpose 	was 	to 	request 	the 	District 	to 	not 	place 	home
telephone 	or 	home 	addresses 	in 	the 	District's 	home 	directory.
This 	conduct 	violated 	section 	3543.S(a), 	(b) 	and 	(c). 	It 	is
appropriate 	to 	order 	the 	District 	to 	cease 	and 	desist 	in 	this
conduct. 	It 	is 	also 	appropriate 	to 	order 	the 	District 	to 	provide
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CSEA with. the 	home 	telephone 	numbers 	of 	bargaining 	unit 	members
who 	have 	not 	requested 	in 	writing 	that 	the 	District 	not 	provide
CSEA 	with 	such 	information.
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law
and 	the 	entire 	record, 	it 	is 	found 	that 	the 	State 	Center
Community 	College 	District 	(District) 	violated 	the 	Educational
Employment 	Relations 	Act 	(Act), 	Government 	Code 	section
3543. 5 (a), 	(b) 	and 	(c) . 	The 	District 	violated 	the 	Act 	when 	it
refused 	to 	give 	the 	California 	School 	Employees 	Association,
State 	Center 	Chapter 	379 	(CSEA), 	upon 	request, 	the 	home 	telephone
number 	of 	bargaining 	unit 	members 	based upon 	a 	survey 	to 	preclude
release 	of 	such 	information 	in 	the 	District 	home 	directory.
Pursuant 	to 	section 	3541.5 	of 	the 	Government 	Code, 	it 	is
hereby ORDERED 	that 	the 	District 	and 	its 	representatives 	shall:
A. 	CEASE AND 	DESIST 	FROM:
1. 	Denying 	CSEA 	its 	right 	to 	home 	telephone 	numbers 	of
bargaining 	unit 	members, 	unless 	such members 	have 	requested 	the
District 	to 	not 	release 	such 	information 	to 	CSEA.
2. 	Denying 	bargaining 	unit 	members 	their 	right 	to 	be
represented 	by 	CSEA.
3. 	Interfering 	with 	CSEA's 	right 	to 	bargaining 	unit
home 	telephone 	numbers.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE ACT:
1. 	Within 	ten 	(10) 	workdays 	of 	service 	of 	a 	final
decision 	in 	this 	matter, 	give 	to 	CSEA 	the 	home 	telephone 	numbers
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of 	bargaining 	unit 	members, 	except 	for 	those 	members 	who 	have
requested 	that 	such 	information 	be 	not 	given 	to 	CSEA.
2. 	Within 	ten 	(10) 	workdays 	of 	the 	service 	of 	a 	final
decision 	in 	this 	matter, 	post 	at 	all 	work 	locations 	where 	notices
to 	employees 	customarily 	are 	posted 	in 	the 	District, 	copies 	of
the 	Notice 	attached 	hereto 	as 	an Appendix. 	The 	Notice 	must 	be
signed by 	an 	authorized 	agent 	of 	the 	District, 	indicating 	that
the 	District 	will 	comply with 	the 	terms 	of 	this 	Order. 	Such
posting 	shall 	be 	maintained 	for 	a 	period 	of 	thirty 	(30)
consecutive 	workdays. 	Reasonable 	steps 	shall 	be 	taken 	to 	ensure
that 	the 	Notice 	is 	not 	reduced 	in 	size, 	altered, 	defaced 	or
covered with 	any 	other 	material.
3. 	Upon 	issuance 	of 	a 	final 	decision, 	make 	written
notification 	of 	the 	actions 	taken 	to 	comply with 	the 	Order 	to 	the
Sacramento 	Regional 	Director 	of 	the 	Public 	Employment 	Relations
Board 	in 	accord 	with 	the 	director's 	instruction.
Pursuant 	to 	California 	Code 	of 	Regulations, 	title 	8,
section 	32305, 	this 	Proposed 	Decision 	and 	Order 	shall 	become
final 	unless 	a 	party 	files 	a 	statement 	of 	exceptions 	with 	the
Board 	itself 	within 	20 	days 	of 	service 	of 	this 	Decision. 	The
Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals 	Assistant
1031 	18th 	Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
In 	accordance 	with 	PERB 	regulations, 	the 	statement 	of
exceptions 	should 	identify by page 	citation 	or 	exhibit 	number 	the
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portions 	of 	the 	record, 	if 	any, 	relied upon 	for 	such 	exceptions.
(Cal. 	Code 	Regs., 	tit. 	8, 	sec. 	32300.)
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.)
Any 	statement 	of 	exceptions 	and 	supporting 	brief 	must 	be
served 	concurrently with 	its 	filing 	upon 	each 	party 	to 	this
proceeding. 	Proof 	of 	service 	shall 	accompany 	each 	copy 	served 	on
a 	party 	or 	filed 	with 	the 	Board 	itself. 	(See 	Cal. 	Code 	Regs.,
tit. 	8, 	secs. 	32300, 	32305, 	32140, 	and 	32135 (c) · D
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