State of California (Department of Personnel Administration) (PERB 0948S)

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,
Petitioner.
Case 	No. 	S-OB-108-S
(S-D-131-S)
(S-SR-7)
PERB 	Decision No. 	948-S
August 6, 	1992
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CALIFORNIA 	STATE 	SAFETY EMPLOYEES
COUNCIL/CALIFORNIA 	STATE 	PEACE
OFFICERS 	ASSOCIATION,
Charging 	Party,
v.
CALIFORNIA 	UNION OF 	SAFETY
EMPLOYEES,
Respondent.
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Case No. 	S-CO-123-S
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.
Before Camilli, 	Caffrey and Carlyle, 	Members.
DECISION
CARLYLE, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal by California 	Union of
Safety Employees 	(CAUSE) 	to a proposed decision 	(attached hereto)
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of 	a PERB administrative law judge 	(ALJ). 	The ALJ 	found that an
selection 	objection 	filed by 	the 	California 	State 	Safety 	Employees
Council/California 	State Peace Officers Association 	(CSSEC) 	was
valid as 	the voter 	list 	failed to 	contain the names 	of 	eligible
seasonal 	lifeguards. 	The ALJ 	ordered the 	Sacramento 	Regional
Director 	not 	to 	certify 	the 	results 	of 	the 	election 	conducted 	on
May 2, 	1991, 	and to conduct a new election. 	CAUSE requested oral
argument which was 	heard by the 	Board on June 	3, 	1992.
The Board has 	reviewed the 	entire 	record, 	and 	finds 	the
ALJ's 	findings 	of 	fact and conclusions 	of 	law to be 	free 	of
prejudicial 	error and therefore 	adopts 	them as 	the decision of
the 	Board 	itself.
DISCUSSION
On appeal 	to 	the Board, 	CAUSE 	raises 	numerous 	exceptions 	to
the ALJ's 	findings. 	Most 	importantly, 	CAUSE excepts to the ALJ's
finding 	that 	the 	seasonal 	lifeguards 	were 	improperly 	excluded
from the 	list of 	eligible voters. 	In furtherance of 	its
position, 	CAUSE 	argues 	that CSSEC had 	stipulated that 	seasonal
lifeguards 	are not 	eligible voters. 	CAUSE also argues 	that 	even
if CSSEC had not made the 	stipulation, 	CSSEC had waived any
objection because of 	its 	failure to 	file a timely appeal.
First, 	the Board agrees with the ALJ's 	finding that a 	letter
written by CSSEC to CAUSE, 	whereby CSSEC 	agreed that 	seasonal
employees 	not 	on the 	state payroll 	at 	the time CSSEC 	filed 	its
petition would not be counted 	for proof 	of 	support purposes, 	was
not 	a 	stipulation as 	to 	the 	eligibility of 	those 	employees 	to
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vote 	in the decertification election. 	The 	letter at 	issue 	came
about after PERB had 	issued a 	notice of 	the 	filing of 	the
decertification petition. 	CAUSE 	responded by 	arguing 	that
signature 	cards 	and the proof 	of 	support that 	came 	from 	seasonal
employees 	not on the payroll 	at that time 	should be discounted.
CSSEC 	on December 	2, 	1990 	responded by 	stating, 	in part:
. 	. 	. 	although it is irrelevant whether or
not 	these 	employees 	have voting rights within
the unit, 	the petitioner would agree that
seasonal 	employees 	not 	on the 	state payroll
at 	the time petitioners 	filed 	should be 	not
counted 	for proof 	of 	support purposes.
However, 	our information and belief 	if that
half 	of these 	500 	seasonals 	are 	still being
listed by the 	state 	as 	current 	employees.
(Emphasis 	added.)
Neither 	in 	form nor 	substance was 	this 	letter a 	stipulation
as 	to the voter eligibility of these 	employees. 	The 	letter
itself 	discussed 	nothing 	about 	voting 	rights 	and 	clearly 	stated
that the 	issue of voting rights was 	irrelevant. 	Therefore the
ALJ's 	finding 	is upheld.
CAUSE 	argues 	extensively 	that CSSEC 	should have 	challenged
the 	exclusion of 	the 	seasonal 	lifeguards 	from the voter's 	list 	at
the time of the regional director's directed election order, 	as
it 	constituted an administrative decision. 	CAUSE 	argues 	that
CSSEC 	failed 	to 	comply with PERB 	Regulation 	323601 which 	requires
1PERB Regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 	et seq. 	PERB Regulation
32360 states:
(a) 	An appeal 	may be 	filed with the Board
itself 	from any 	administrative 	decision,
except as 	noted 	in 	section 32380.
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an appeal 	of 	an administrative decision to be 	filed within 	10
days.
(b) 	An original and 	5 	copies 	of the appeal
shall 	be 	filed with 	the 	Board 	itself 	in the
headquarters 	office within 	10 days 	following
the date 	of 	service 	of 	the decision or 	letter
of determination.
(c) 	The appeal must be 	in writing and must
state the 	specific 	issue(s) 	of procedure,
fact, 	law or rationale that is 	appealed and
state the grounds 	for the appeal.
(d) 	Service and proof of 	service of 	the
appeal pursuant 	to 	section 	32140 	are
required.
PERB Regulation 	32350, 	Definition of an Administrative
Determination 	states:
(a) 	An administrative decision is 	any
determination made by 	a 	Board 	agent 	other
than:
(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.
CAUSE relies 	on subsection 	(a) 	claiming the Regional
Director 	made 	an administrative 	decision when he 	issued 	the
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directed election order. 	However, 	subsection 	(b) 	requires 	that
an administrative 	decision must be 	in written 	form and 	contain
issues, 	facts, 	law and rationale for reaching the determination.
Nowhere 	does 	the directed 	election order 	contain the 	requirements
of 	subsection 	(b) 	in regards 	to the 	exclusion of 	the 	seasonal
lifeguards. 	Therefore, 	the directed 	election order 	in this 	case
is 	not an administrative decision within the meaning of 	PERB
Regulation 32350. 	Further, 	the regulation does 	not place a
burden upon 	either party 	to 	request 	the 	Board 	agent 	to 	make 	an
administrative 	decision.
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CAUSE'S 	reading of 	the regulation is 	overly broad. 	In
CAUSE'S 	view every decision of 	a 	Board 	agent would be 	an
administrative 	decision 	except 	those 	specifically 	excluded 	by
subsection 	(a). 	Such a result would require a party to
immediately 	appeal 	a 	board 	agent's 	ruling on matters 	including
evidentiary and procedural 	issues. 	This would cause unnecessary
delays 	in the processing of 	cases 	or 	conducting of 	elections 	as
each 	appeal would have 	to 	be 	reviewed 	separately by 	the 	Board.
The Board 	finds 	that 	to undertake 	such a process would 	neither be1
in the best 	interest of 	the parties 	nor promote 	judicial 	economy.
CAUSE'S 	argument 	that CSSEC waived 	any 	objection to 	the 	exclusion
of 	seasonal 	lifeguards 	from the 	eligible 	voter 	list 	by 	failing 	to
file a timely appeal 	is 	rejected.
As 	to the eligibility of the 	seasonal 	lifeguards, 	CAUSE
contends 	the 	test 	employed by the ALJ 	in determining 	eligibility
is 	unworkable 	and 	that 	the 	Board 	should 	follow PERB 	regulation
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327282 which provides, 	in part, 	that an eligible voter must be
working 	on the 	voter 	eligibility 	cut-off 	date 	and 	on the date 	of
the 	election.
Seasonal 	lifeguards 	are members 	of 	the 	civil 	service 	and
thus 	are 	covered under the 	Dills Act definition of 	"state
employee" 	under State of 	California 	(Department of 	Personnel
Administration) 	(1990) 	PERB Decision No. 	787-S. 	In the past,
PERB 	has 	limited 	the 	right 	to 	vote 	among part-time 	and 	temporary
workers 	to 	those 	employees 	"with an 	established 	interest 	in
employment relations" 	with the employer. 	In Palo Alto Unified
School District, 	et al. 	(1979) 	PERB Decision No. 	84, 	the Board
found an 	"established interest" 	existed 	among 	substitute 	school 	.
teachers who met certain guidelines. 	Further, 	workers must 	"have
a 	reasonable 	expectation 	of 	continued 	employment." 	(Oakland
Unified School District, 	et al. 	(1988) 	PERB Order No. 	Ad-172.)
Although no test 	is perfect, 	the Board agrees with the ALJ's
standards 	and 	findings.
2PERB Regulation 32728 	states 	in full:
Voter Eligibility. 	Unless 	otherwise directed
by the Board, 	to be eligible to vote 	in an
election, 	employees must be 	employed in the
voting unit as 	of 	the 	cutoff date 	for voter
eligibility, 	and 	still 	employed on the date
they 	cast 	their ballots 	in the 	election.
Employees who are ill, 	on vacation, 	on leave
of absence or sabbatical, 	temporarily laid
off, 	and employees who are in the military
service of 	the 	United States 	shall be
eligible to vote. 	Mailed ballots 	may be
utilized 	to maximize 	the 	opportunity 	of 	such
voters 	to cast their ballots.
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Relying 	on PERB precedent 	the ALJ 	then 	set 	out 	the 	following
standard 	to determine 	those 	seasonal 	lifeguards who 	are 	eligible
to vote:
(1) 	Have worked 	for the 	State 	in two or more 	consecutive
seasons, 	the most recent of which was 	the 	season closest to 	the
voter 	eligibility 	cut-off 	date;
(2) 	Have worked a minimum of 	10 percent of the work year of
a 	full-time 	lifeguard 	in the 	12 	months 	immediately preceding 	the
voter eligibility cut-off date; 	and
(3) 	Have 	a 	reasonable 	expectation of 	continued 	employment
in 	the 	next 	season 	after 	the 	voter 	eligibility 	cut-off 	date.
The ALJ 	determined 	that 	seasonal 	lifeguards 	will 	have 	a
reasonable 	expectation of 	continued 	employment 	if 	they 	intend 	to
return to work 	in the 	next 	season after 	the 	voter 	eligibility
cut-off 	date 	and 	remain capable 	of performing 	lifeguard duties.
However, 	an individual 	seasonal 	lifeguard's 	eligibility 	to vote
could be 	subject 	to 	challenge 	if 	the party 	can demonstrate 	that
the 	lifeguard does 	not have 	a 	reasonable 	expectation of 	continued
employment.
In applying this test, 	the ALJ 	found that 	2 92 	additional
seasonal 	lifeguards 	should be 	included on the voter 	list. 	When
the 	292 	seasonal 	lifeguards 	are 	added to 	the voter 	eligibility
count, 	it alters 	the number of votes 	needed by CAUSE 	to win the
election. 	The 	Board 	is 	cognizant 	that under this 	test 	certain
persons 	will 	be 	excluded 	from voting who were placed 	on the
voter's 	list 	and are 	still 	employed 	at 	the time of 	the 	election.
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However, 	the Board 	finds 	that to ensure the fairness 	of a
decertification election,. . persons who have a reasonable
expectation of 	employment 	in the 	future, 	and have worked
continually 	in the past, 	should not be outnumbered by persons
working 	a minimal 	amount 	of 	time and/or with no 	expectation of
returning in the 	future. 	Since the omission of 	292 	seasonal
lifeguards 	could have 	affected the 	election result, 	the Board
affirms 	the ALJ's 	findings 	that the 	election result must be 	set
aside.
CAUSE 	also 	takes 	exception to 	the ALJ's 	finding that 	certain
Unit 	7 	classifications 	do 	not perform 	law enforcement-related
functions, 	thus permitting the home addresses 	of those employees.
to be released to 	an employee 	organization. 	CAUSE 	asserts 	that
[Government Code 	section 	6254.33 	prohibits 	the 	release 	of 	home
3Government Code section 62 54.3 	states, 	in pertinent part:
(a) 	The home addresses 	and home 	telephone
numbers 	of 	state employees 	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 	adopted 	by the 	Public 	Employment
Relations 	Board, 	except that the home
addresses 	and home 	telephone numbers 	of 	state
employees 	performing 	law 	enforcement-related
functions 	shall 	not be disclosed.
(b) 	Upon written request of any employee, 	a
state agency 	shall 	not disclose the
employee's 	home 	address 	or home 	telephone
number pursuant to paragraph 	(3) 	of
subdivision 	(a) 	and a 	state agency 	shall
remove 	the 	employee's 	home 	address 	and home
telephone 	number 	from 	any 	mailing 	list
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addresses 	for 	employees 	performing 	law 	enforcement-related work.
CAUSE 	argues 	that 	the ALJ 	narrowly 	interpreted 	"law 	enforcement-
related functions," prohibiting the 	release 	of 	home 	addresses 	of
only those 	classifications 	that 	enforce 	criminal 	statutes. 	CAUSE
contends 	that all 	of 	the 	classifications 	in Unit 	7 	enforce 	laws
and regulations 	and release 	of 	all 	employee 	home addresses 	should
be 	prohibited.
maintained by the agency, 	except 	if the 	list
is 	used 	exclusively by 	the 	agency 	to 	contact
the employee.
CAUSE'S 	assertion that all 	of 	the 	classifications 	in Unit 	7
enforce 	laws 	and regulations 	and thus 	fall 	under the definition
of 	"law enforcement-related" 	is 	much too broad an 	interpretation.
Further, 	CAUSE provides 	no authority 	in 	support of 	its
contention. 	The ALJ, 	however, 	relying on a 	judicial
interpretation of 	law enforcement 	in an 	employment 	context
(Crumpler v. 	The Board of Administration. 	PERS, 	et al. 	(1973)
32 Cal.App.3d 567, 	577 	[108 Cal.Rptr 293]), 	determined that
active 	law enforcement 	should be 	defined 	to 	include 	only 	those
positions 	which have 	the 	responsibility 	to 	investigate 	crimes,
pursue 	and arrest 	criminals, 	or which directly assist 	those
officials. 	The 	Board concurs 	in this 	interpretation and thus
rejects 	this 	exception.
Finally, 	CAUSE excepts 	to the ALJ's 	finding that a 	statement
made by a CAUSE 	representative 	constituted a threat. 	After
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review of 	the record, 	the Board finds 	there 	is 	sufficient
evidence to 	support this 	conclusion. 	Therefore, 	this 	exception
is rejected.
ORDER
The ALJ's decision is 	affirmed. 	It 	is 	hereby ORDERED that
the 	Sacramento Regional 	Director not certify the. results 	of 	the
election tallied on May 	2, 	1991 	and that 	a new election be
conducted.
Member Caffrey 	joined 	in this 	Decision.
Member Camilli's 	concurrence begins 	on page 	11.
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Camilli, 	Member, 	concurring: 	I concur that the
administrative 	law 	judge's 	findings 	of 	fact and 	conclusions 	of
law are 	free 	of prejudicial 	error and are 	therefore 	adopted 	as
the decision of 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or
Board) 	itself. 	I 	also concur with the majority decision on the
handling of 	all 	the various 	exceptions.
However, 	the Board's 	finding on the administrative decision
exception 	should be 	resolved 	solely by 	the 	statement 	that 	the
directed 	election order 	in this 	case 	is 	not an administrative
decision within the meaning of 	PERB 	Regulation 	32350. 	The
discussion in the majority opinion 	is 	not necessary and
potentially 	leads 	to 	the 	idea 	that 	a 	directed 	election order
could be 	an administrative decision.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
In the Matter of:
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
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) 	Representation
Case No. 	S-OB-108-S
(S-D-131-S)
(S-SR-7)
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OFFICERS ASSOCIATION,
Petitioner.
CALIFORNIA 	STATE 	SAFETY EMPLOYEES
COUNCIL/CALIFORNIA 	STATE 	PEACE
OFFICER	v.S ASSOCIATION,
Charging Party,CALIFORNIA 	UNION OF 	SAFETY
EMPLOYEES,
Respondent.
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Unfair 	Practice
Case No. 	S-CO-123-S
PROPOSED 	DECISION
(2/14/92)
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Appearances: 	Van Bourg, Weinberg, 	Roger & Rosenfeld by Stewart
Weinberg 	for 	the 	Petitioner and Charging Party; 	Carroll, 	Burdick
& McDonough by Gary M. Messing for the Exclusive Representative
and Respondent; 	M. 	Jeffrey Fine, 	Attorney, 	for the Employer.
Before Ronald E. 	Blubaugh, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
In these consolidated cases, a union that failed to win a
majority vote in a state employee decertification election seeks
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted bv the Board.
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to 	have 	the 	election 	set aside 	and a 	new election ordered. 	This
request 	is 	based on alleged 	interference with 	employee 	choice
and 	alleged 	irregularities 	in the 	conduct 	of 	the 	election. 	The
challenging union has 	advanced 	its 	election 	challenge 	through
objections 	to 	the 	conduct 	of 	the 	election and an unfair practice
charge 	against 	the 	incumbent 	exclusive 	representative.
The 	election under 	attack was 	conducted by mail 	ballot
between April 	1 	and April 	29, 	1991, 	for the 	5,700 	employees 	in
State of 	California bargaining Unit 	7, 	Protective 	Services 	and
Public 	Safety. 	The 	incumbent 	exclusive 	representative was 	and
remains 	the California Union of Safety,Employees 	(CAUSE). 	The
" u n i o n 	attempting 	the 	decertification was 	the 	California 	State
Safety 	Employees 	Council/California 	State 	Peace 	Officers
Association 	(CSSEC), 	an affiliate of the Laborers' 	International
Union of North America 	(LIUNA or Laborers' 	Union).
Ballots were 	counted on May 	2, 	1991. 	The tally of ballots
produced 	the 	following 	result:
Void 	Ballots 	78
Votes 	for CAUSE 	2122
Votes 	for 	CSSEC/CSPOA 	1699	. . . .
Votes 	for no 	representation 	199	.
Valid votes 	counted 	4020
Challenged 	ballots 	50
Valid votes 	plus 	challenges 	4070	.
Challenges were 	insufficient 	to 	affect 	the 	result 	of 	the
election. 	A majority of 	the valid votes 	counted plus 	challenged
ballots were 	cast 	for CAUSE.
The 	CSSEC 	challenges 	to 	election-related 	conduct 	began prior
even to the commencement of voting. 	On March 6, 	1991, 	CSSEC
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filed 	an unfair practice 	charge 	against 	the 	State 	of 	California
(State).1 This 	charge attacked the 	State's 	refusal 	to provide
CSSEC with home addresses 	of Unit 	7 members. 	Next, 	on March 20,
came 	an unfair practice 	charge 	against 	CAUSE.2 This 	charge
alleges 	that 	CAUSE 	distributed 	campaign 	literature which
threatened and coerced 	employees. 	After the ballot 	count, 	on
May 8, 	1991, 	CSSEC 	filed objections 	to the conduct of the
election.
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3 The 	objections 	incorporated 	the 	allegations 	in 	the
two 	unfair practice 	charges 	and 	added 	certain new grounds 	for
setting aside the 	election.
The 	Office of 	the General 	Counsel 	of 	the 	Public 	Employment
Relations 	Board 	(PERB 	or Board) 	issued 	complaints 	on both unfair
practice 	charges. 	In case 	S-CE-483-S, 	the complaint alleged that
the 	State 	interfered with 	organizational 	rights 	by refusing 	to
provide CSSEC with 	the home 	addresses 	of 	employees who do 	not
perform 	law enforcement 	related 	functions.4 In 	case.S-CO-123-S,
the 	complaint 	alleges 	that CAUSE 	interfered with protected
. .. . .
1The charge became unfair practice 	case no. 	S-CE-483-S.
2The 	charge became unfair practice 	case no. 	S-CO-123-S.
3The 	grounds 	and procedure 	for 	filing 	objections 	to 	an
election are 	set out 	in the California Code of Regulations,
title 8, 	section 32738.
4This 	action was 	alleged to be 	in violation of 	section
3519(b) 	of the Ralph C. 	Dills Act 	(Dills Act). 	(All references
are to the Government Code unless 	otherwise 	indicated.) 	In
relevant part, 	section 3519 provides as 	follows:
It shall be unlawful for the state to 	. 	. 	. 	:
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
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employee 	rights 	by 	distributing 	literature which 	threatened
employees 	through a 	general 	atmosphere 	of violence.5
Subsequently, 	the 	Sacramento Regional 	Director of 	the PERB
scheduled 	a hearing 	on 	certain of 	the 	objections 	filed by 	CSSEC
and dismissed the others. 	His 	dismissal was 	not 	appealed. 	The
two 	unfair practice 	charges 	and 	the 	objections 	to 	election were
consolidated 	for hearing. 	In sum, 	the objections 	to the 	election
set 	out 	the 	following allegations:
1) 	The 	State refused to provide to CSSEC
the home addresses 	of 	those Unit 	7 members
who do 	not perform 	law enforcement 	related
functions.6
2) 	Although CSSEC was 	given only employee
work addresses, 	certain departments with
employees 	in Unit 	7 	refused to deliver the
organization's mail.
3) 	The voter 	list provided by the 	State
omitted the names 	of 	approximately 	300 	to 	400
seasonal 	lifeguards who 	are 	civil 	service
employees 	and 	eligible voters.
5 5This 	action was 	alleged to be 	in violation of 	section
3519(b) 	of the Dills Act. 	(The correct section is 	3519.5(b). 	An
amendment 	correcting 	the 	complaint was 	made 	during 	the 	hearing.
See Reporter's Transcript, 	Vol. 	14, 	pp. 	1-2.) 	In relevant part,
section 3519.5 provides 	as 	follows:
It 	shall be unlawful 	for an employee
organization to:
(b) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because of 	their exercise 	of 	rights
guaranteed by 	this 	chapter.
6This 	is 	the 	election objection that parallels 	the
allegation 	set 	out 	in unfair practice 	case 	S-CE-483-S.
44

4) 	The 	State denied access 	to CSSEC
representatives 	attempting 	to visit 	Unit 	7
employees 	at 	certain work 	locations.
5) 	On or about November 	9 and 	10, 	1990,
agents 	of 	CAUSE 	threatened 	individual 	Unit 	7
employees 	with physical 	harm.
6) 	CAUSE, 	by the distribution of 	certain
campaign 	literature, 	coerced 	employees
through 	the 	establishment 	of 	a 	general
atmosphere 	of 	fear 	and 	violence which
inhibited 	employee 	free 	choice.7
A 	hearing 	in 	the 	consolidated 	unfair 	practice 	and 	objections
to 	election 	cases 	was 	conducted 	over 	16 	nonconsecutive 	days
commencing on June 	12, 	and concluding on November 	6, 	1991. 	At
the 	start of 	the 	fourth day of hearing, 	on July 	19, 	CSSEC
withdrew the 	unfair practice 	charge 	against 	the 	State 	and 	asked
that 	the 	complaint be dismissed.8 However, 	CSSEC 	did 	not
withdraw the 	parallel 	objection 	to 	election 	and 	the 	underlying
contention remains 	at 	issue.
With the 	filing of briefs, 	the matter was 	submitted 	for
decision on February 4, 	1992.9
FINDINGS 	OF 	FACT
Threats 	and Atmosphere 	of 	Violence
The 	objections 	to 	election 	set 	out 	two 	allegations 	involving
threats 	and an atmosphere of 	violence: 	1) 	that agents 	of 	CAUSE
threatened 	individual 	Unit 	7 	employees 	with physical 	harm 	and
7This 	is 	the 	election objection that parallels 	the
allegation 	set 	out 	in unfair practice 	case 	S-CO-123-S.
8See Reporter's Transcript, Vol. 	4, pp. 	2-3.
9The 	State did not 	submit 	a brief.
5

2) 	that CAUSE, 	by the distribution of certain literature, 	coerced
employee 	through 	a 	general 	atmosphere 	of 	fear 	and 	violence.
The alleged threats were made 	at 	a 	South Lake Tahoe 	meeting
of 	the CAUSE Board of Directors 	on November 	9-10, 	1990. 	Some 	20
CAUSE directors 	were present 	at 	the 	meeting which was 	conducted
before an audience of approximately 	30 	to 	40 CAUSE members.
During 	a discussion about 	the pending decertification 	effort,
CAUSE 	President 	Cecil 	Riley 	expressed 	a 	belief 	that 	CSSEC 	had
somehow obtained a 	copy of 	the CAUSE mailing list. 	Mr. 	Riley
stated 	further that he believed the 	list, 	which 	contains 	home
addresses, 	had been 	secured 	in an unauthorized manner. 	He 	stated
that 	some action would be 	taken 	soon, 	a 	statement 	interpreted by
one witness 	to mean that 	a 	lawsuit would be 	filed 	against 	the
suspected 	transgressors.
At that point, 	according to 	several witnesses, 	CAUSE Vice
President Mike 	Nadeau became 	quite 	agitated 	about 	the 	disclosure
of the home addresses. 	Stephen D. 	Johnson, 	who at the time was 	a
vice president of CAUSE, 	testified of Nadeau:
He went on to 	say that his 	agents were 	armed
with automatic 	weapons 	and 	flak 	jackets 	and
that 	they were 	looking 	for 	the person who
distributed the 	list.
Ralph Martin, 	also a CAUSE vice president at the time, 	testified
of Nadeau:
He was 	very excited about 	it. 	He was very
upset 	and 	stated 	that 	his 	his members, 	the
DOJ agents, 	narcotics 	enforcement people
as 	I 	recall, 	he 	said 	something to the effect
that they carry automatic weapons, 	they are
the first person[s] 	through the door, 	and if
66

they 	ever 	found out who 	gave 	out 	their home
addresses, 	those people would be 	sorry.
Jose 	Phillips, 	who was then a CAUSE 	contract negotiations
chairman, 	testified of Nadeau:
Basically I 	recall 	the 	fact that he described
his 	agents 	as 	having 	such 	items 	and that they
were pissed off. 	I 	recall the 	flight 	[sic]
jackets 	and uzis 	or 	something 	like that.
No 	officer of 	CAUSE 	repudiated the 	statement 	at 	the 	time or
later.
Several 	of 	those 	in attendance 	immediately took the 	comment
as 	a threat against Vic 	Trevisanut, 	the 	former president of a
CAUSE 	affiliate who had defected to become 	a 	leader 	in the
decertification campaign. 	Mr. 	Trevisanut, 	a State park ranger,
was 	not present at the meeting but was 	told about 	the 	remark by 	a
number of people. 	Mr. 	Trevisanut quoted one person as 	telling
him his 	life was 	in danger. 	Several witnesses 	also testified
that 	they believed 	the threat was 	broad 	enough 	to 	include
Mr. 	Trevisanut's wife, 	Sue, 	who was employed in the
'decertification 	campaign.
Stephen Johnson testified 	that 	he 	took the 	threat 	very
seriously. 	He 	said Mr. 	Nadeau was 	angry and was 	not 	joking when
he made 	the 	comment. 	He 	said he 	interpreted the 	statement to
imply that 	agents were angry 	enough to 	kill people 	or at 	least 	to
inflict 	some 	bodily 	harm 	on whoever 	distributed 	the 	membership
list. 	Mr. 	Trevisanut 	said that although he did not take the
threat 	seriously 	at 	first, 	his wife did 	and he 	eventually decided
not 	to 	go anywhere without 	a 	gun for a period of 	about 	two
r .
. . . 17 .. ' 4
. . . ..
7

- -
months. 	Ms. 	Trevisanut ultimately reported the 	incident to the
Department of Justice, 	Mr. 	Nadeau and other Department of
Justice 	agents 	do have access 	to automatic weapons 	and 	flak
jackets.
The 	election objection regarding 	an atmosphere 	of 	violence
is 	based upon CAUSE 	campaign 	literature which 	attempts 	to 	link
the Laborers' 	Union with organized crime. 	CAUSE 	literature 	is
replete with 	references 	to 	the 	alleged Mafia 	influence within 	the
Laborers' 	Union. 	Articles 	describing the 	alleged 	link between
the Laborers' 	Union and the Mafia appear throughout The CAUSE
Report of January, 	February-March and April 	1991. 	The
publication/a monthly magazine, 	is distributed by CAUSE 	to all .
Unit 	7 	members 	for whom the union has 	addresses.
......
In the January 	1991 	edition, 	CAUSE President Cecil 	Riley
wrote 	that 	"LIUNA is 	the 	same group 	that doesn't 	even try to 	hide
its 	involvement with organized 	crime or La 	Cosa 	Nostra." 	He
quoted 	an article 	from The 	Reader's 	Digest which 	asserts 	that 	the
business 	agent of 	one LIUNA local 	is 	a Mafia member who had
served 	"20 	years 	for killing two police 	officers." 	He 	observed
that peace 	officers 	face 	enough danger 	in their 	jobs without
having 	"to worry 	about 	organized 	crime 	members 	having 	access 	to
your home 	address." 	He 	then accused Vic 	Trevisanut 	"and 	a 	small
group of 	individuals" 	of betraying CAUSE 	and 	its 	members 	"when he
exposed 	our 	addresses 	to 	LIUNA." 	The 	same 	issue 	reprinted 	an
article 	from The 	Sacramento 	Bee which described 	the purported
link between the Laborers' 	Union and organized crime.
8

The 	February-March CAUSE 	Report has 	numerous 	articles 	and
cartoons 	depicting a 	link between the Laborers' 	Union and
organized crime. 	One page of 	the magazine 	sets 	out a 	list of
LIUNA officers 	who 	have been 	convicted of 	various 	crimes 	and
sentenced to prison. 	Another page purports 	to 	list 	the 	salaries
of 	certain 	LIUNA officers 	and 	to disclose 	their 	relationship 	to
the union president. 	One article 	is 	a 	four-page reprint 	from a
portion of 	a 	report by The 	President's 	Commission on Organized
Crime which alleges 	a 	series 	of 	links between the Laborers' 	Union
and organized crime. 	Another article, 	reprinted 	from The
Reader's 	Digest, 	is 	entitled 	"A Union in Bondage to the Mob;
Beating 	or murdering anyone 	in their way, 	racketeers 	are
plundering the hard-earned 	funds 	of America's 	laborers." 	The
headline 	is 	descriptive of 	the 	contents 	of the 	article and the
single union discussed in the article 	is 	the Laborers' 	Union.
The April 	CAUSE 	Report 	contains 	more 	cartoons 	and articles
alleging a 	link between the Laborers' 	Union and organized 	crime.,,.
2. -
Access
The 	objections 	to 	election allege 	two 	types 	of 	interference
with access: 	1) 	refusal to admit CSSEC representatives 	to
certain work 	locations 	and 	2) 	refusal 	to deliver organizational
mail 	addressed 	to 	employees 	at 	certain work 	sites.
The 	official 	State policy regarding access 	to work 	sites 	and
delivery of organizational mail was 	set out 	in a March 	12, 	1991,
memorandum written by Rick McWilliam, 	Department 	of 	Personnel
Administration chief of 	labor relations. 	The memorandum
. .
9

generally directed 	the 	various 	departments 	affected by 	the 	Unit 	7
election to permit 	organization access 	and 	to 	deliver
organization mail.
Regarding access 	to 	facilities, 	the 	memorandum directed 	the
departments 	to permit organization 	representatives 	to 	visit 	State
employees 	during non-work time 	in non-work areas. 	Non-work time
was 	defined 	to mean 	lunch, 	rest breaks 	and the 	time 	before 	and
after work. 	Non-work areas were defined as 	cafeterias, 	break
rooms, 	building 	foyers 	and other 	locations 	generally accessible
to the public.
Regarding mail 	delivery, 	the memorandum directed the
departments 	to deliver 	all 	mail 	which was 	properly posted 	and
addressed to Unit 	7 	employees. 	The departments were directed not
to 	release 	mail 	to union representatives 	for delivery to
employees 	but 	to deliver the 	mail 	themselves 	in accord with
normal procedures. 	The departments were 	advised that 	they need
not 	accept mail with postage due. 	The 	cutoff date 	for delivery
of mail was 	set at 	12:00 noon on April 29, 	1991, 	the last day of
voting 	in the 	election.
CSSEC 	introduced 	evidence 	about 	restrictions 	placed 	on
attempts 	by 	its 	representatives 	to visit 	the 	following 	State work
sites: 	the Department of Justice at 	4949 	Broadway in Sacramento,
Department 	of 	Motor Vehicles 	offices 	in Lodi 	and Placerville,
California 	Highway 	Patrol 	offices 	in 	San Francisco 	and 	Oakland,
the 	Department 	of 	Health office 	on Sutterville 	Road 	in
10
,:,

Sacramento, 	a Bureau of Automotive 	Repair office 	in Sacramento
and Atascadero 	State 	Hospital
The 	Department 	of 	Justice 	building 	in 	Sacramento 	had 	the
largest 	number of 	Unit 	7 	employees 	of 	any 	facility where CSSEC
reported access problems. 	Of 	the 	approximately 	2,500 	persons
employed in the building, 	some 	400 belong to Unit 	7. 	Joe
Manzella, 	one of 	two CSSEC organizers who testified about 	access
difficulties, 	said he attempted to 	enter the building on April 	9,
1991, 	but he was denied access. 	He 	said a guard told him that he
could not 	enter unless 	someone 	from 	"upstairs" 	escorted 	him 	into
the 	facility. 	He 	asked the 	guard to 	call 	someone but 	the 	guard
said there was 	no 	one 	for him to 	talk to. 	The 	guard 	suggested
that Mr. 	Manzella distribute material 	to 	employees 	as 	they
entered 	or 	left 	the building or while 	in the parking 	lot.
The 	Department of Justice building 	in Sacramento 	is 	a 	secure
facility. 	Access 	is 	restricted to 	employees 	and 	escorted
visitors. 	All persons in the building, 	including employees, 	must
wear an 	identification badge. 	The 	entry 	to 	the building 	is
enclosed in glass, 	behind which 	sits 	a guard who 	controls 	access.
Wayne Heine, 	labor relations 	officer for the Department of
Justice, 	testified 	that with prior arrangements 	employee
organizations 	are 	allowed 	access 	to 	the 	lunch 	room and 	an
adjoining 	courtyard 	located 	in the 	center 	of 	the 	building.
Mr. 	Heine testified that arrangements 	are to be made 	through him
and that he told CSSECs principal 	organizer, 	Pat Hallahan, 	early
in the election how to make the arrangements. 	Mr. 	Manzella
11

testified 	that 	he 	believed 	someone 	from CSSEC 	had 	made
arrangements for him but he did know with whom. 	Mr. 	Hallahan
testified that 	he 	exchanged 	several 	telephone 	calls 	with
Mr. 	Heine during April of 	1991 	but never was 	able 	to reach him
for a 	conversation about 	the 	access 	problem.
Mr. 	Manzella also 	encountered access problems 	at 	the
Department of Motor Vehicles 	(DMV) 	office 	in Lodi. 	The office
was 	one of 	six DMV offices 	Mr. 	Manzella visited on the 	same day
in March of 	1991 	and the 	only one where he 	encountered
difficulty. 	He was 	on a 	sweep of visitations 	and had made 	no
prior arrangements 	at any of the offices. 	In Lodi, 	he 	spoke with
a person he believed to 	be 	the 	supervisor 	of 	license 	registration,
examiners whom he 	asked to visit. 	He was 	told the 	facility was 	a
State building and he was 	not allowed to go 	inside. 	He was 	told
to 	try 	to meet with 	the 	employees 	as 	they 	entered 	and 	left 	the
building.
Despite Mr. 	Manzella's difficulties, 	another CSSEC
representative, 	Hector Bermea, 	visited the Lodi DMV office 	in the
same month and did meet with three 	examiners. 	Mr. 	Bermea
testified that he 	asked 	to 	go 	to 	the 	employee 	lunchroom. 	The
supervisor 	refused 	him access 	to 	the 	room but 	brought 	three
examiners 	to 	a public 	counter where he was 	able 	to 	speak with
them.
On April 	17, 	Mr. 	Manzella visited the DMV office 	in
Placerville where he believed there were 	three 	or 	four 	examiners.
He 	asked a 	supervisor 	for access 	to 	the break room 	so he 	could
.. . .
12

meet with 	examiners. 	Despite 	assuring the 	supervisor he 	had been
admitted 	in other DMV offices, 	he was 	told he 	could not have
access 	because he was 	not a DMV employee. 	The 	supervisor told
him he would have 	to wait 	in the parking 	lot to meet 	employees
after work. 	He did encounter one 	examiner 	in the parking 	lot 	but
that 	employee 	told him he 	already had voted 	in the 	election
Mr. 	Manzella also 	encountered access problems 	at a
Department 	of 	Health 	office 	on Sutterville 	Road 	in 	Sacramento.
He went to the office on April 	5, 	1991, 	to see departmental
investigators. 	He had 	spoken by 	telephone with 	a 	supervisor 	in
advance 	of his 	visit. 	She told him to 	come 	in the 	front door and
then proceed 	to 	the 	lunch 	room.
When he 	arrived at the building, 	he 	could not determine
which was 	the 	front door. 	One of 	the 	investigators 	encountered
him at 	the 	Side door and took him 	into 	the building, 	At 	that
point, 	a woman who 	identified herself 	as 	a 	supervisor overheard
the 	discussion, 	remarked that 	she had told him to 	enter by the
front door and directed him to 	the 	lunch room. 	He 	sat 	there 	for
two hours but no one 	showed up. 	Later, 	he encountered an
investigator who 	told him that 	investigators 	use 	a 	different
break room. 	On another occasion, 	he returned to the office 	and
encountered the 	same woman. 	He 	asked to 	see the 	investigators
but 	she 	told him none were 	there.
On April 	9, 	1991, 	Mr. 	Manzella went to the Bureau of
Automotive 	Repair office 	in Sacramento where he believed
approximately 	seven Unit 	7 	employees worked. 	He was 	denied
- :
-
13

access 	by a person named 	"Jerry" 	who 	claimed to be 	a 	supervisor.
Mr. 	Manzella 'stood at the door, and tried to catch Unit 7
employees 	as 	they 	entered and 	left 	the building.
Hector Bermea, 	who 	organized on behalf of CSSEC 	in the Bay
Area, 	visited 	two offices 	of 	the California 	Highway Patrol 	(CHP)
where he 	encountered 	some difficulty. 	At 	2 	a.m. 	on a morning 	in
November, 	he went to the CHP office 	in San Francisco to 	speak to
some 	of 	the 	14 	to 	16 	communications 	clerks he believed to work 	in
that office. 	A CHP officer refused to admit Mr. 	Bermea, 	telling
him that 	no 	one 	in the 	office wanted to 	speak to him.
Mr. 	Bermea 	returned to the office 	in March or April 	and
although 	the 	dispatch 	supervisor 	initially 	refused 	him 	admission,
she 	ultimately allowed him access 	to 	the 	employee 	lounge.
Mr. 	Bermea 	also visited the Oakland CHP 	office where 	he was
admitted 	to 	the 	break room but 	told no 	one wanted to 	speak 	to
him. 	He made no prior arrangements 	to visit any of 	the offices.
During the second week of April, 	1991, 	Mr. 	Bermea made
arrangements 	to 	visit Atascadero 	State 	Hospital 	to 	speak with
hospital peace officers. 	He was told he 	could use the 	employee
break room and 	speak with officers 	at 	the 	shift 	change. 	He
successfully used 	the room 	for 	the 	6 	a.m. 	shift 	change where he
met with 	seven to 	eight peace officers.
However, 	just prior to the 2 p.m. 	shift change, 	he was
evicted 	from the room by 	the 	janitorial 	supervisor. 	The
supervisor 	said 	the 	room was 	scheduled 	for waxing 	and 	floor
polishing. 	The 	supervisor 	said he 	knew nothing about 	the 	room
. . .
14

being reserved 	for a union meeting and told Mr. 	Bermea 	to 	go 	to
at the office. Mr. Bermea said by the time he was evicted from the
room 	it was 	too 	late to make alternate arrangements.
The 	other 	access problems 	about which 	CSSEC 	complains
involved 	refusals 	by 	several 	State 	agencies 	to deliver the
organization's mail. 	In substantial part, 	the refusals to . . I -
deliver mail were due to deficiencies 	in work addresses 	used by
CSSEC, 	addresses which were 	supplied by the 	State.
The 	largest 	amount 	of 	mail 	returned to CSSEC 	from any
address was 	from the Department of 	Justice at 	4949 	Broadway. 	The
organization brought 	several bundles 	o	- ' 	f 	such mail 	to 	the hearing
and Sue 	Trevisanut, 	a CSSEC agent who 	supervised the mailing,
testified that this was 	just a 	sample.
Department 	labor relations 	officer 	Heine 	testified 	that
CSSEC 	used 	addresses 	which were 	not 	correct 	and often not
cognizable to 	employees 	in the departmental mail 	room. 	The
address 	problem was 	discovered with 	the 	arrival 	of 	the 	first
large mailing of CSSEC materials. 	He 	said he was 	called by 	an
employee 	in the mail 	room who 	asked 	for advice on how to handle 	a
large bundle 	of 	CSSEC materials with unusable 	addresses.
Mr. 	Heine directed the mail 	room employees 	to take the time 	to
sort 	the mail, 	determine the 	correct routings 	and make 	every
effort 	to deliver 	it.
Thereafter, 	on March 25, 	1991, 	Mr. 	Heine called Patrick
Hallahan, 	the organizer 	in charge of 	the 	campaign 	for the
Laborer's 	Union. 	He told Mr. 	Hallahan about the problems with
15

the 	list and, 	on March 26, 	sent him a copy of a work address 	list
for all 	Unit 	7 	members 	employed by the 	Department of Justice.
The 	department 	earlier had provided 	the 	same 	list 	to 	the
Department of 	Personnel Administration 	(DPA) 	but 	it was 	not
forwarded to 	the 	employee 	organizations.
Mr. 	Hallahan testified that by 	the 	time he 	received 	the 	list
it was 	too 	late to use. 	He 	said other materials 	already had been
prepared 	for mailing with 	the 	old 	addresses 	and the 	organization
did 	not 	have 	the 	time or resources 	that 	late 	in the 	election
campaign to make the change. 	CSSEC, 	therefore, 	continued to use
the work addresses 	originally 	supplied by DPA. 	Mr. 	Heine
testified that 	after he provided the 	corrected 	list, 	the
Department 	of 	Justice 	refused 	to 	deliver 	CSSEC mailings 	that were
addressed 	incorrectly 	and 	returned 	them 	to 	the 	sender.
CSSEC 	introduced 	evidence 	about 	the 	return 	of 	smaller
amounts 	of 	mail 	addressed to unit members 	employed at various
work 	sites. 	These 	included the 	State Office 	Building at 	107
South Broadway 	in Los Angeles, 	California Conservation Corps
Centers 	in South Lake Tahoe and 	in San Luis 	Obispo, 	and
Metropolitan and Atascadero 	State 	Hospitals. 	In the 	case 	of 	the
mailing 	to South Lake Tahoe, 	the address provided to CSSEC by 	the
State was 	simply faulty. 	In the other cases, 	there was 	no
evidence 	that 	any 	State 	department had 	overtly 	refused 	to 	deliver
the organization's mail. 	The evidence 	suggested, 	rather, 	that
the 	employees 	were unknown at 	the 	address where 	the mail was
sent.
16

Typical 	of 	the 	testimony about 	the mailings 	to 	other 	State
work 	sites was 	that of 	Richard Holland, 	a hospital peace officer
employed at Agnews 	Developmental 	Center 	in San Jose. 	Mr. 	Holland
made 	10 	to 	15 	mailings 	of CSSEC campaign mail to hospital peace
officers. 	He produced 	fewer than 	10 pieces 	of mail 	that were
returned, 	several 	of 	those marked 	"Returned 	to 	Sender Can't
Identify" 	and 	"Return to Sender Not at this Address."
Home Address 	List
The 	objections 	to 	election allege 	that 	the 	State 	failed 	to
provide CSSEC with the home addresses 	of 	those Unit 	7 	members who
do 	not perform 	law enforcement-related 	functions. 	The 	statement
of 	objections 	does 	not 	specifically 	identify the 	job
classifications 	for which CSSEC believes 	home 	addresses 	were
improperly withheld. 	However, 	on the 	fourth day of 	the hearing,
the parties 	stipulated 	that 	the 	State 	acted properly when 	it
withheld the home 	addresses 	of 	all 	employees 	in peace 	officer
classes.10 The 	total 	number of peace 	officer unit members
covered 	by 	the 	stipulation 	is 	3,015.
There was 	no 	stipulation regarding 	the 	remaining 	classes 	and
CSSEC 	introduced testimony about 	13 	of 	them.11 The 	testimony
1 °The 	56 peace officer classes which the parties 	stipulated
as 	performing 	law enforcement-related duties 	are 	set out 	in 	Joint
Exhibit no. 	6. 	The 	stipulation may be found at pp. 	1-3 	of Vol. 	4
of 	the reporter's 	transcript 	of 	the hearing.
II The 	classes 	about which no 	evidence was 	offered 	remain 	in
dispute. 	In order to shorten the hearing, 	however, 	CSSEC
determined 	to present 	evidence 	only 	about 	a 	limited 	number 	of
those classes. 	It was 	agreed 	in an off-the-record discussion
that 	this 	proposed decision would not 	specifically pass 	on
whether 	the 	State 	should 	have 	released 	the home 	addresses 	of
17

revealed 	that 	these 	job 	classes 	can be 	loosely 	grouped 	into 	three
broad 	categories. 	One group 	is 	composed of 	employees who, 	as 	a
major portion of their duties, 	provide regular and direct
assistance to 	law enforcement 	employees. 	Another group provides
occasional 	assistance to 	law enforcement. 	The 	third 	group has
only 	remote 	involvement with 	law enforcement 	employees.
those 	classes 	for which 	no 	testimony was 	offered.
The 	job 	classes 	that provide 	regular and direct 	assistance
to 	law enforcement 	employees 	have 	a 	daily 	involvement with peace
officers 	or the 	criminal 	justice 	system. 	These 	classes 	are
composed 	of 	employees who 	occupy 	their work 	shifts 	communicating
with peace officers 	or preparing 	information for them. 	Their
focus 	is 	on law enforcement, 	not regulatory duties. 	In this
group 	are 	communications 	operators 	for 	the California 	Highway
Patrol 	and the California 	State 	Police12 and Department of
Justice 	criminal 	identification 	specialists.13
^Communications 	operators 	for both 	the 	Highway 	Patrol 	and
the 	State 	Police 	spend their 	entire work 	shifts 	in direct 	contact
with peace officers. 	The 	sole 	focus 	of 	their duties 	is 	on
providing 	support and assistance 	to peace 	officers. 	They relay
reports 	of accidents 	and crimes 	to officers, 	dispatch officers 	to
crime and accident 	scenes, 	dispatch backup officers, 	and 	search
computer 	records when requested 	for 	criminal 	or vehicular
information. 	Occasionally, 	communications 	operators 	are 	subject
to 	threats 	from telephone 	callers who 	are 	dissatisfied with 	a
peace 	officer contact.
13 Criminal identification specialists work for the
Department of 	Justice. 	They work 	in 	support of 	law enforcement
by 	classifying and 	identifying 	fingerprints. 	It 	is 	their duty 	to
compare 	fingerprints 	of 	known persons 	or of 	crime perpetrators 	to
criminal 	records, 	looking for a match. 	Some 	specialists 	also
keep 	records 	on 	stolen property. 	Not 	all 	criminal 	identification
specialists have direct 	contact with peace officers, 	although all
of 	them perform duties 	in 	support 	of peace 	officers. 	They 	all
. . ..
18
·:"
'.;.,'	 «-:;,;,-~

have access 	to criminal 	records. 	Generally, 	they are not the
subjects of threats.
The 	job 	classes 	that have 	only 	incidental 	contact with 	law
enforcement 	are 	composed 	of 	employees 	who 	enforce 	regulatory 	and
licensing 	laws. 	While the violation of 	certain of 	the 	regulatory
laws 	may be criminal 	in nature, 	the 	focus 	of these employees 	is
not with 	the 	criminal 	justice 	system. 	These classes 	are 	composed
primarily of 	employees who work as 	examiners, 	inspectors 	and
licensing 	representatives. 	Only 	incidentally do 	they become
involved 	in 	law enforcement 	activities. 	In this 	group 	are motor
carrier specialists, 4 deputy registrars of contractors,1 5
14Motor 	carrier 	specialists 	inspect the 	facilities, 	vehicles
and records 	of 	freight 	carriers 	to 	ensure 	they meet 	state 	safety
standards. 	Specialists point out to carriers 	any defects 	they
find 	in any part 	of 	the 	carrier's 	safety program, 	from problems
with 	a particular vehicle 	to problems 	with 	supporting paperwork.
If 	a 	specialist 	finds a carrier's 	safety program unsatisfactory,
the 	carrier must bring 	it up 	to 	standard within a 	specified time.
If 	the necessary corrections 	are not made, 	the 	specialist 	can
recommend to 	supervisors 	that 	action be 	taken to 	remove 	the
carrier's 	license. 	Occasionally, 	specialists have been
threatened by 	employees 	of 	carriers.
15 Deputy registrars of contractors investigate consumer
complaints 	about 	contractors. 	Deputy registrars 	also 	investigate
applications 	for contractor's 	licenses. 	Deputy registrars 	go 	to
construction 	sites, 	interview property owners 	and 	contractors 	and
attempt 	to mediate disputes. 	Depending upon the 	circumstances,
they 	can recommend 	an administrative 	action against 	a
contractor's 	license. 	Some 	actions 	by contractors 	can 	constitute
criminal 	conduct. 	The Contractors' 	Licensing Board employs
several peace 	officers whose duty 	it 	is 	handle 	such 	criminal
actions. 	Occasionally, 	deputy registrars 	may write reports which
lead to 	criminal 	action against a 	contractor. 	When this 	happens,
someone 	else makes 	the decision to pursue 	the 	criminal 	complaint.
Occasionally, 	deputy registrars 	also are 	threatened by
contractors 	or their 	employees.
19

licensing 	inspectors 	for the Department 	of Motor Vehicles16 and
program representatives17 for 	the 	Bureau 	of Automotive 	Repair.
The 	third 	group 	has 	only 	rare 	involvement with 	law
enforcement. 	Employees 	in some of 	these 	classes 	are 	involved 	in
licensing and 	inspection. 	Employees 	in other 	classes 	work
primarily with the public. 	What 	the 	evidence 	shows 	about 	these
employees 	is 	that 	their 	involvement with 	law enforcement 	is
highly 	infrequent. 	They do 	not 	enforce 	the 	criminal 	laws 	and
their contact with criminal activity, 	if it occurs at all, 	is
incidental 	to their regular duties. 	In this 	category are the
brand inspector,
18
conservationist,
19
dairy 	foods 	specialist,
?
16 The licensing inspector assures compliance with licensing
requirements for vehicle dealers, 	manufacturers, 	distributors,
dismantlers, 	remanufacturers, 	vehicle verifiers, driving schools,
traffic 	violator 	schools 	and 	agencies 	authorized 	to 	provide
registration 	services 	outside 	the 	Department of Motor Vehicles.
Inspectors 	visit 	business 	locations 	to determine whether persons
seeking 	to 	operate 	licensed 	activities 	satisfy 	regulatory
requirements. 	Inspectors 	can recommend 	license 	cancellations 	for
businesses 	that do 	not 	comply with requirements. 	Inspectors
occasionally 	assist 	department peace 	officers 	investigating
criminal 	activity. 	Inspectors 	are 	occasionally 	subject 	to
threats.
11 Program representatives 	for the 	Bureau of Automotive
Repair perform inspections 	of 	repair 	shops 	that 	issue 	smog, 	lamp
and brake 	certifications. 	They also 	inspect 	shops 	to 	ensure 	they
are appropriately 	licensed by 	the 	State. 	Where 	a pattern of
violations 	is 	found, 	the representatives 	can recommend that
administrative 	action be 	taken against 	the 	licenses 	of 	shop
operators. 	They also occupy a 	good portion of 	their time 	in
mediating disputes 	between consumers 	and repair 	shops. 	Program
representatives 	have 	no 	authority 	to 	initiate 	criminal 	action,
although reports 	they make may be 	the basis 	for 	criminal 	action
in 	some 	situations. 	Occasionally, 	program representatives 	have
been threatened by 	shop 	owners.
18The brand 	inspector 	is 	employed by 	the 	State 	Department 	of
Agriculture 	to 	inspect 	livestock brands 	at points 	of 	sale 	or
transfer of 	ownership. 	Although the ultimate purpose 	of 	the 	job
20

licensing 	and 	registration examiner121 for 	the 	Department 	of 	Motor
Vehicle's, 	fire 	fighter 	and 	seasonal 	lifeguard. "
is 	to prevent cattle theft, 	the brand 	inspector has 	scant
involvement 	in the apprehension of 	cattle thieves. 	The brand
inspector who 	testified 	at 	the 	hearing has 	not been 	involved 	in a
cattle theft 	investigation in three years. 	When he 	is 	involved
in theft 	investigations, 	it is only as 	a person knowledgeable
about 	livestock who 	can provide 	information to 	the 	local 	sheriff.
19The 	conservationist works 	for the 	California 	Conservation
Corps 	(CCC).Conservationists 	monitor 	the work 	of 	CCC 	members,
do monthly 	evaluations 	of 	corps 	members 	and help 	train 	them.
Conservationists 	II 	develop 	safety programs 	for corps 	members 	and
have 	contact with public 	agency heads, 	attempting to 	arrange
reimbursable contracts 	for the CCC. 	Neither Conservationists 	I
or 	II 	have 	any discernable 	contact with 	law enforcement 	agencies.
The dairy 	foods 	specialist works 	for the 	Department 	of
Food 	and Agriculture. 	The primary function of 	the dairy 	foods
specialist 	is 	to 	conduct 	sanitation 	inspections 	at milk plants
and 	dairy 	farms. 	The 	specialist 	samples 	milk and dairy products
which 	are then tested 	for bacteria 	and 	chemical 	contents. 	The
specialist 	also 	tests 	pasteurizing 	equipment 	for accuracy 	and
function. 	The dairy 	specialist 	can 	impound or condemn tainted
dairy products. 	He 	can issue a 	citation to a dairy that 	fails 	to
meet 	sanitation requirements. 	The 	specialist would 	report 	any
suspected 	criminal 	activity 	that 	he 	observes 	but has 	no 	authority
to take action against it.
21Licensing 	and 	registration 	examiners 	conduct 	driver's
license 	examinations. 	This 	includes written and behind-the-wheel
drive 	tests. 	They have no 	authority to 	issue 	citations 	either
for traffic 	violations made by test 	takers 	or 	for vehicular
violations 	such as 	expired registrations. 	At times, 	they will
suspend driver's 	licenses 	if 	instructions 	to make 	the 	suspension
are 	contained 	in department 	records. 	The 	only contact 	examiners
have with 	law enforcement 	is 	the 	occasional 	situation when 	they
must 	seek the 	assistance 	of police 	to 	control persons who become
disruptive 	in DMV offices. 	Examiners 	are 	occasionally threatened
by persons who 	fail 	driver's 	licensing examinations.
22Fire 	fighters 	engage primarily 	in the 	suppression of 	fires
in 	state 	facilities. 	The 	fire 	fighter about whom testimony was
taken works 	for the 	Department 	of 	Developmental 	Services 	at
Camarillo 	Developmental 	Center. 	Fire 	fighters 	also 	inspect 	fire
extinguishers, 	buildings, 	alarms, 	safety equipment and fire
suppression 	systems. 	They operate 	ambulances 	and coordinate
disaster relief. 	The 	fire 	fighter reports 	to 	law enforcement 	any
illegal 	activity he/she might 	encounter. 	However, 	evidence 	at
21

the hearing 	suggests 	that 	the 	fire 	fighter's 	involvement with 	law
enforcement officers 	is 	infrequent.
Although the 	evidence 	shows 	that 	the 	State 	refused 	to
provide 	CSSEC with the 	home 	addresses 	of 	certain 	Unit 	7 	members,
there 	is 	no 	showing this 	omission prevented CSSEC 	from
distributing 	its 	literature. 	Numerous witnesses were 	asked
during 	the 	hearing whether 	they 	received 	campaign 	literature 	from
CSSEC during 	the 	election period. 	Virtually all 	said 	they had
received 	literature 	either 	at home 	or at work or both. 	The 	CSSEC
mailing 	list, 	which was 	introduced 	into 	the 	record,24 contains
numerous 	home addresses. 	Although there are 	some names which
have no mailing address, 	these are 	few.
F ... .
Voter 	List
Finally, 	the objections 	to 	election 	set out an allegation
that the voter list omitted the names 	of 	some 	300 	to 	400 	seasonal
lifeguards, 	all of them eligible voters.
The 	State 	Department 	of 	Parks 	and Recreation hires 	two
categories 	of 	temporary 	lifeguards 	to work at 	its 	beaches 	and
recreation facilities. 	These are Lifeguard 	I 	(Seasonal) 	and
Lifeguard II 	(Seasonal); 	both employed to work at ocean
23Seasonal 	lifeguards 	monitor beach 	and water 	safety 	and
make rescues, 	either through the 	surf or by boat. 	They enforce
beach rules, 	such as prohibitions 	against drinking or having dogs
loose 	on the beach. 	They 	enforce these 	rules 	by 	requesting
compliance. 	If the violators 	are recalcitrant, 	they request
assistance 	from the permanent 	lifeguards who are peace officers.
All 	arrests 	are made by the permanent 	lifeguards. 	Occasionally,
a 	seasonal 	lifeguard 	is 	threatened by persons 	on the beach.
24CAUSE Exhibit no. 	5.
22

beaches," 	and Pool Lifeguard 	(Seasonal), 	employed to work at
State-operated 	swimming pools. 	The vast majority of 	the
temporary 	lifeguards 	are 	those 	employed 	to work at 	the 	ocean
beaches 	and 	testimony at 	the 	hearing primarily 	concerned 	them.
Although 	there 	are 	seasonal 	lifeguards 	employed 	at 	all 	times
of 	the year, 	most work during the warm weather months, 	primarily
from Memorial 	Day 	through 	Labor 	Day. 	Seasonal 	lifeguards 	also
work during Christmas and 	spring vacations, 	if the weather 	is
warm 	enough to draw 	substantial 	numbers 	of 	visitors 	to 	the
beaches. 	At all times, 	their primary duty is 	to monitor beach
and ocean 	safety, 	make 	rescues 	both through the 	surf 	and by boat.
They administer 	first aid, 	using oxygen as 	appropriate. 	They
also 	ensure that park visitors 	obey park rules.26
Seasonal 	lifeguards 	must hold 	various 	lifesaving
certifications 	from the 	Red Cross. 	In order to be hired 	the
first 	time, 	a 	candidate 	for a 	seasonal 	lifeguard position must
'successfully 	complete 	a 	1,000 	yard 	swim 	in 	the 	ocean within 	20
minutes. 	After a 	15 minute break, 	the candidate must then run
200 yards, 	swim 400 yards 	in the ocean and then run 200 more
yards, 	all within 	10 minutes. 	Candidates who succeed, 	then must
pass 	a 	screening 	interview and, 	if 	selected, 	a 	lifeguard training
program.
25Seasonal 	Lifeguards 	I 	and 	II 	perform 	similar duties 	except
that the 	Lifeguard 	II 	is 	a 	lead worker. 	The Lifeguard 	II 	also
participates 	in and directs 	major 	rescues 	and decides 	when 	to
move 	or 	close 	lifeguard towers.
26One witness 	joked 	that 	it 	is 	the duty of 	the 	lifeguard 	"to
protect 	the people 	in the park, 	and the park from the people."
23

Seasonal 	lifeguards 	are 	hired 	for 	limited 	term appointments,
known in State personnel 	jargon as 	Temporary Authorization 	(TAU).
Their appointments 	are 	limited to 	1,500 	hours 	a year, 	although 	on
an emergency basis 	the 	Department 	can 	increase 	this 	by 	200
additional 	hours. 	No 	seasonal 	lifeguard 	is 	guaranteed 	full-time
work. 	The number of hours 	seasonal 	lifeguards work 	is 	affected.
by State 	budget 	considerations, 	the weather and water 	temperature
and the 	size of the crowds 	on the beach. 	The 	summer of 	1991, 	for
example, 	was unusually cool 	in Southern California. 	This 	limited
the 	numbers 	of persons who visited 	State 	beaches which 	in turn
limited 	the 	number of hours worked by 	seasonal 	lifeguards.
Each district of the 	Department 	of 	Parks 	and Recreation
maintains 	some type of 	list containing the name, 	address 	and
phone number of 	each 	seasonal 	lifeguard. 	In late winter,
seasonal 	lifeguards 	are 	surveyed 	about 	their 	interest 	in
returning 	for the 	subsequent 	summer. 	They must 	complete 	a health
questionnaire 	and 	state 	their preferences 	about 	the 	amount 	of
hours 	they wish 	to work 	and 	any 	scheduling preferences.
The 	contract between the 	State and CAUSE 	requires 	the 	State
"to 	consider 	service 	credits 	as 	one means 	of 	recalling 	seasonal
lifeguards."2727 The 	effect of this provision is 	that the more
senior 	lifeguards 	are the 	first 	to be 	offered reemployment.
Other 	factors 	include 	"annual performance 	test 	evaluations,
on-the-job performance, 	employee availability, 	and desire to be
. .
27The memorandum of understanding is CSSEC Exhibit no. 	1.
The 	applicable 	contract provision 	is 	section 	18.7.
24

recalled." 	The 	annual performance 	test 	is 	a 	1,000-yard
requalification 	swim in the ocean given on a pass-fail 	basis. 	In
early 	spring, 	seasonal 	lifeguards who 	express 	interest 	in
returning to work are 	scheduled 	for the 	swim. 	Candidates 	for
rehire rarely fail to pass. 	When they do 	fail, 	they usually
succeed 	on a 	second 	attempt.
It 	is 	common 	for 	seasonal 	lifeguards 	to return 	season after
season. 	Pat Higginson, 	a 	10-year veteran seasonal 	lifeguard,
testified that 	in 	the 	Pendleton Coast 	District 	(San Clemente)
where he works 	there 	is 	one 	seasonal 	lifeguard with 	20 	years 	of
service. 	There are others with 16, 	15, 	11 and 	10 years of
service. 	He 	estimated that 	the average 	seasonal 	lifeguard works
5 	to 	6 years 	in the Pendleton Coast District. 	Kirk Sturm, 	a
lifeguard 	supervisor in the Channel Coast 	District 	(Ventura),
testified that in his District there are 	lifeguards with 	17, 	13,
8, 	7 	and 	6 years of 	service. 	He estimated the average length of
service at 4 to 5 years.
Following 	each 	season, 	the Department of Parks 	and
Recreation notifies 	the Office 	of 	the 	State Controller to
separate the 	seasonal 	lifeguards 	from the 	State payroll. 	This
occurs 	in late September or 	early October. 	Typically, 	although
not 	always, 	only those 	seasonal 	lifeguards who 	continue to work
into 	the 	fall 	and winter are 	retained 	in 	the records 	as 	current
employees. 	This practice by the Department of 	Parks 	and
Recreation 	contrasts 	with 	the practice 	of 	the 	California 	State
Fair. 	The 	State Fair employs 	peace 	officers who work only during
25

the 	18 	day run of 	the 	fair but their names 	are retained as
current 	employees 	throughout 	the 	remainder of 	the year.
The 	result of 	this 	different 	treatment by the 	two
departments 	had an effect 	on the voter 	list. 	The 	voter
eligibility 	list 	contained 	only 	the 	names 	of 	those 	seasonal
lifeguards 	actually working on the 	voter 	eligibility 	cutoff 	date.
However, 	the names 	of State Fair police not working on the 	cutoff
date were contained on the voter 	list. 	Howard Ballin, 	a 	State
Fair police officer called as 	a witness 	by CSSEC, 	identified 	27
State Fair police officers whose 	names were 	on the voter 	list
even though the officers work only during the 	18 	days 	of 	the
fair.
The 	question of whether the 	names 	of 	seasonal 	lifeguards
would be 	on 	the 	voter 	list was 	discussed 	at 	the pre-election
conference. 	A representative 	of 	the 	State Controller advised 	the
participants 	that, 	depending upon the voter eligibility date 	that
was 	chosen, 	some 	intermittent 	and 	seasonal 	employees would be
left off the list. 	Patrick Hallahan, 	who represented CSSEC,
stated 	that 	he wanted 	the 	seasonal 	employees 	to 	be 	included 	on
the 	voter 	list. 	CAUSE representative 	Sam McCall 	opposed 	this.
No 	specific 	direction to 	include 	the 	seasonal 	employees was 	given
to 	the 	State Controller and only the names 	of 	those 	on the
payroll 	on the 	eligibility 	cutoff 	date were 	included 	on the 	list.
. .'..
26
co 0no0
I 	credit 	the 	testimony 	of Arle 	Simon 	and 	Patrick Hallahan
on this point. 	Insofar as Mr. 	McCall testified differently, 	I
conclude 	that his 	recollection was 	incorrect.
.;t,	
·,
f	
r~

Instructions 	were 	posted 	in 	State 	Parks 	and 	Recreation
offices 	regarding 	how employees, could vote 	in 	the 	election 	even
if 	they were 	not 	sent a 	ballot. 	Since 	this 	was 	during 	the 	off
season, 	few 	seasonal 	lifeguards were 	in a position to 	see 	the
posted notices. 	Nevertheless, 	there were 	33 	seasonal 	lifeguards
who 	did 	find 	out 	about 	and 	use 	the 	challenged 	ballot 	procedure 	to
request ballots. 	Of these, 	21 	returned ballots. 	None were
counted.
.' .. .
LEGAL 	ISSUES
1) 	Did CAUSE 	threaten and 	coerce 	employees 	in violation of
Dills 	Act 	section 	3519.5(b) 	through 	the 	distribution 	of 	campaign
literature 	that 	established 	a 	general 	atmosphere 	of 	violence 	and
threats 	of 	violence?
2) 	Should 	the 	election result 	be 	set 	aside 	because 	the
free 	choice 	of 	employees 	was 	interfered with 	and/or 	the 	election
was 	conducted with 	serious 	irregularity 	through:
A) 	Threats 	and 	the 	creation of 	an atmosphere 	of
violence 	by 	CAUSE?
B) 	Restrictions 	by 	the 	State 	on CSSEC 	access 	to 	unit
members 	through 	limitations 	on 	CSSEC 	organizers 	and 	refusal
to 	deliver 	CSSEC 	mail 	at 	the work 	site?
C) 	Denial 	to 	CSSEC by 	the 	State 	of 	the 	home 	addresses
of 	unit 	members 	who 	do 	not 	perform 	law 	enforcement-related
duties?
D) 	Omission 	from the 	voter 	list 	of 	a 	sufficient
number 	of 	eligible 	voters 	to 	affect 	the 	election 	result?
27

CONCLUSIONS 	OF 	LAW
Introduction
PERB regulations 	set 	out 	two 	grounds 	for objections 	to 	the
conduct of 	an election:
1) 	The conduct complained of 	interfered
with the employees' 	right to 	freely choose a
representative, or
2) 	Serious 	irregularity 	in the 	conduct of
the election.
Since 	its 	very first decision, 	the Board has 	consistently
held that 	for 	election objections 	to be 	sustained, 	some 	effect 	on
the 	election result must 	either be 	shown or 	logically 	inferred.
In that 	first decision,30 the Board wrote:
In the absence of 	evidence that voters were
discouraged 	from voting, 	we would 	sustain the
Association's 	. 	. 	. 	objections only on [a]
finding that 	those 	events 	had 	the 	natural 	and
probable 	effect 	of 	discouraging voter
participation 	in the 	representation 	election.
In that 	case, 	the Board 	eschewed the per 	se rules 	often 	followed
in National 	Labor Relations 	Board 	(NLRB) 	decisions 	and dismissed,
the objections 	to 	election.
In 	subsequent 	cases, 	the Board has 	held that 	even the
demonstration of 	unlawful 	conduct 	in the 	election environment 	is
but 	"a 	threshold question." 	(State of 	California 	(Department 	of
Personnel Administration et al.) 	(1986) 	PERB Decision
1 . . . :" :
See California Code of Regulations, 	title 8, 	section
32738.
on
Tamalpais 	Union High School 	District 	(1976) 	EERB Decision
No. 	1. 	Prior to 	1978, 	the Public Employment Relations 	Board was
known as 	the Educational 	Employment 	Relations 	Board.
28

No. 	601-S.)31 The Board will not in every situation where
ct 	tantamount 	to an unfair practice 	has 	been demonstrated,
order that the 	election be rerun. 	The basic 	question 	is whether
taken collectively 	the 	various 	unlawful 	activities 	establish 	a
"probable 	impact on the 	employees' 	vote." 	(Jefferson Elementary
School District (1981) PERB Decision No. 	164. ) 3 2
In deciding whether to 	set aside the election result, 	the
Board will 	look 	"upon the 	totality 	of 	circumstances 	raised 	in
each case and, 	when appropriate, 	the cumulative effect of 	the
conduct which 	forms 	the 	basis 	for the relief requested." 	(Clovis
Unified School District 	(1984) 	PERB Decision No. 	389.) 	Thus,
even where 	some 	impact on voters 	can be 	inferred, 	the 	election
result 	in 	some 	circumstances 	still may not be 	set 	aside.
It 	is 	against these 	standards 	that 	Petitioner's 	contentions
must 	be 	tested.
Threats 	and Atmosphere 	of Violence
State employees have the protected right to 	"form, 	join, 	and
participate 	in the activities 	of 	employee 	organizations 	of 	their
own choosing 	for 	the purpose 	of 	representation on all 	matters 	of
employer-employee relations." 3 It 	is unlawful 	for an employee
of skirtcondu
31See 	also, 	San Ramon Valley Unified 	School 	District 	(1979)
PERB Decision No. 	Ill 	and Clovis 	Unified School 	District 	(1984)
PERB Decision No. 	389.
32It 	is 	unnecessary that actual 	impact be proven. 	(San
Ramon Valley Unified School District, 	supra; 	Clovis 	Unified
School District, 	supra.)
"Section 3515.
29

organization to 	"impose 	or threaten to 	impose 	reprisals 	on
employees" because of their exercise; of these protected rights.34
Threats which 	interfere with 	employee 	rights 	to participate 	in an
election 	can be 	both 	an unfair practice 	and 	grounds 	for
sustaining objections 	to 	the 	outcome of 	that 	election.
In the private 	sector, 	the NLRB will 	set aside an election
where there 	is 	an atmosphere of violence or threats 	of violence.
Such an atmosphere, 	the NLRB holds, 	is 	inimical to employee free
choice because 	it destroys 	the 	laboratory 	conditions 	needed 	for a
fair 	election.35 The 	test 	for determining whether 	the 	election
should be 	set 	aside 	is 	"whether the 	election was 	held with a
general atmosphere among the employees of 	confusion, 	violence,
and threats 	of violence, 	such as 	might reasonably be 	expected to
generate 	anxiety and 	fear of 	reprisal, 	and to render 	impossible a
rational 	uncoerced 	expression of 	choice 	as 	to bargaining
representative."
The 	test 	is 	objective 	and not determinative upon the 	effects
of 	the particular 	statement 	upon a particular 	employee 	or
employees. 	The PERB, 	in following federal precedent, 	looks to
see whether 	the particular threat 	"may 	reasonably 	tend 	to 	coerce
or 	intimidate 	employees 	in the 	exercise 	of 	their rights."
(Fresno Unified School District 	(1982) 	PERB Decision No. 	208 	and
-. ..i. . .
34Section 3519. 5(b) .
35See Morris, 	The Developing Labor Lawf 	BNA, 	1983, Vol. 	1,
pp. 	330-331, 	and cases cited therein.
36	36Id	Id.	. ,	, 	quotin	quotingg IPoinsett Lumber & Mfg. 	Co. 	(1956) 	116 NLRB
-
1732 	[39 	LRRM 	1083].
30

cases 	cited therein; 	see also, 	Clovis 	Unified School 	District
(1984)PERB 	Decision No: 389.)
"Threats 	of 	physical 	violence 	and bodily 	injury 	are
generally 	always 	found 	to 	be 	coercive." 	(Fresno 	Unified 	School
District. 	supra. 	and cases 	cited therein.) 	Under federal 	cases
involving election objections, 	it 	is 	"immaterial that 	fear and
disorder may 	have been created by 	individual 	employees 	or
non-employees 	and 	that 	their 	conduct 	cannot be 	attributed 	to
either the 	employer or to the union. 	The 	significant 	fact 	is
that 	such 	conditions 	existed and that 	a 	free 	election was 	thereby
rendered 	impossible."37	37
CSSEC makes 	two central 	allegations. 	As 	one of 	the 	grounds
for objection, 	CSSEC 	contends 	that CAUSE 	agent Mike Nadeau
threatened CSSEC advocate Victor Trevisanut. 	Secondly, 	as 	both a
ground 	for objection and unfair practice, 	CSSEC 	contends 	that
CAUSE 	through 	the 	distribution of 	campaign 	literature 	created
such 	an atmosphere 	of 	fear of 	violence that 	a 	fair 	election was
impossible.
CAUSE 	contends 	that 	nothing 	in the 	record 	supports 	the
contention that Mike Nadeau's 	comment was 	a 	threat. 	CAUSE 	argues
that 	the 	only possible way one 	could 	find a 	threat 	is 	if 	one
believed that Mr. 	Nadeau had the power to order the 	"agents" 	to
take action against Mr. 	Trevisanut. 	Citing the testimony of
various witnesses, 	CAUSE 	contends 	that the 	statement was 	more of
4 . . .. ..
37Id. , 	quoting Al Long. 	Inc. 	(1968) 	173 NLRB 447 	[69 LRRM
1366].
31

an expression of displeasure, 	voiced 	"in rather dramatic 	and
vulgar terms," 	or an 	"attention getter."
CAUSE makes 	too 	little of 	the Mike Nadeau 	statement. 	The
comment 	that 	special 	agents 	armed with 	automatic 	weapons 	were
looking 	for whoever 	turned 	over 	to 	CSSEC 	the CAUSE 	home 	address
list was 	plainly a 	threat. 	A reasonable person hearing that
comment 	could draw no other 	inference 	but 	that 	bodily harm would
be done to that person, 	if 	found. 	The evidence also makes 	it
clear 	that persons 	who 	heard 	the 	comment 	understood 	it 	to 	mean
Victor Trevisanut. 	Any ambiguity 	about 	the 	target 	of 	the 	comment
was 	clarified 	in the January CAUSE 	Report where Mr. 	Trevisanut
was 	accused by name as being the person who turned over to CSSEC.......
the CAUSE home address 	list.
At the time Mr. 	Nadeau made the 	statement he was 	a CAUSE
officer. 	The 	statement was 	made during a meeting of CAUSE
officers, 	not one of whom at the time or 	later repudiated the
comment. 	Given this 	context, 	the 	statement can be 	imputed to
CAUSE 	as 	an organization.
Mr. 	Nadeau's 	threat would have 	the 	natural 	and probable
effect 	of 	discouraging 	the person against whom the 	threat was
made 	from 	further participation 	in protected activity. 	It 	is
irrelevant 	that Mr. 	Trevisanut was 	not discouraged because 	the
standard against which the threat 	is 	measured 	is 	objective. 	It
is 	irrelevant 	also 	that 	CAUSE may have had what 	it 	considered
good grounds 	for believing 	that Mr. 	Trevisanut had taken the
mailing 	list. 	Theft of 	such a 	list would not entitle CAUSE 	as 	an
32

organization 	to 	threaten grave bodily harm to 	the person
suspected of taking 	it.
If 	the 	complaint had 	alleged that Mike Nadeau's 	threat was
an unfair practice, 	such a 	finding would have been warranted.
CSSEC, 	however, 	advanced this allegation only as one of the
grounds 	for objection. 	As a ground for objection, 	the proof, of a
threat meets 	only the threshold 	showing. 	The question, 	in the
context of 	an objection, 	is whether the threat was 	sufficient 	to
have 	interfered with 	free 	choice. 	An approach 	for 	analyzing 	the
effect of 	a threat upon an election is 	set out 	in 	Zeiglers 	Refuse
Collectors v. 	NLRB 	(3d Cir. 	1981) 	639 F.2d 	1000 	[106 LRRM 2331],
a 	case cited by the Petitioner. 	There, 	the Court wrote:
In determining whether a 	fair 	and 	free 	choice
by the 	employees was 	impossible 	the 	Board
must 	consider many 	factors. 	These 	include:
the number of 	the threats, 	the 	severity of
the 	threats 	and whether 	those 	threatened were
put 	in fear, 	the number of workers
threatened, 	whether the threats were made
close 	to 	the 	election and whether they
persisted 	in the minds 	of 	the 	employees 	at
the time of the 	election, 	whether the reports
of 	the 	threats were widely 	circulated,
whether the 	effect 	of pro-union threats were
cancelled out by pro-management threats, 	the
closeness 	of the 	vote 	. . . . 	[106 	LRRM 	2334-
2335]
There was 	one 	very grave 	threat 	of 	bodily 	harm directed
principally at Mr. 	Trevisanut, 	although it possibly also 	included
a 	small group of his 	associates. 	Mr. 	Trevisanut 	for awhile was
fearful, 	as would have been any reasonable person in like
circumstances. 	But, 	as CAUSE points out, 	the threat was remote
in time to the 	election, 	occurring almost 	five months prior to
. . .
33

the mailing of ballots. 	There 	is 	no 	evidence that reports 	of 	the
t h r e a t were widely 	circulated or 	that 	a 	substantial 	number 	of
voters 	even knew about 	it. 	There 	is 	no 	evidence that knowledge
about 	the 	threat persisted 	in the minds 	of 	those who 	knew about
it by the time of 	the election.
It 	should be noted, 	moreover, 	that unlike the typical 	case
involving election threats, 	Mr. 	Nadeau's 	threat was 	not directed
at 	influencing voter choice. 	There 	is no evidence, 	for example,
that 	he 	or anyone warned 	that 	there would be 	"smashed 	faces" 	or
that 	CAUSE 	organizers 	"would kick ass 	and 	take names 	if we don't
38
win the 	election." 	There was 	no 	threat 	that harm would 	come 	to
any particular 	employee 	or 	employees 	if 	they voted 	for 	CSSEC 	and
there 	is 	no 	evidence 	anyone was 	discouraged 	from voting by 	the
Mike Nadeau threat. 	There is, 	therefore, 	no evidence that the
threat had an actual 	impact on the 	election.
Since 	there 	is 	no 	evidence that 	any 	significant 	number of
unit 	members 	knew about 	the 	threat made 	at 	the 	Lake Tahoe
I meeting, 	it 	is 	similarly impossible to 	infer an impact. 	If 	this
were a 	small 	school district, 	one might assume that Mr. 	Nadeau's
comments were known by most unit members. 	But this 	is 	a
bargaining unit 	of 	5,700 	members 	employed 	in many 	State
departments 	spread throughout California. 	In the 	absence 	of
evidence 	that 	the 	threat was widely known among members 	of 	the
bargaining unit, 	an 	impact 	on the 	election cannot be 	inferred.
38See NLRB v. 	Urban Telephone Corporation 	(7th Cir 	1974) 	499
F.2d 239 	[86 	LRRM 2704 at 	2706], 	a case cited by the Petitioner.
•
. ..
34

CSSEC would couple 	the threat 	against Mr. 	Trevisanut with
what 	it 	describes 	as 	CAUSE'S -"unrelenting 	campaign 	linking CSSEC
to the 	'mob' 	and to 	incidents 	of violence perpetrated by Laborers
Union officers 	elsewhere 	in the 	country." 	Played 	against 	an
insinuation that home addresses would be 	given to the 	Mafia,
CSSEC argues, 	CAUSE 	created an atmosphere of 	fear and violence
which destroyed 	a 	free 	and 	fair 	election 	choice.
CAUSE 	rejects 	all 	attempts 	to 	link the Nadeau 	comment 	to 	its
campaign material. 	CAUSE 	argues 	that the 	content of 	the Nadeau
statement was 	entirely dissimilar 	and unrelated 	to 	the 	content 	of
the 	campaign 	literature. 	CAUSE 	contends 	that 	the 	election cannot
be 	set aside on the basis 	of 	the truthfulness 	of 	its 	campaign
material. 	CAUSE argues 	that 	its 	literature was 	nothing more 	than
campaign propaganda 	and there 	is 	no 	evidence 	that 	any voters 	saw
it as anything else. 	Certainly, 	CAUSE asserts, 	there is no
evidence 	that 	anything 	distributed 	by 	CAUSE 	had 	any 	negative
effect 	on voter participation.
If 	accepted, 	CSSECs 	attack on the 	CAUSE 	campaign 	literature
would preclude 	CAUSE 	from raising 	as 	an 	election 	issue 	the
alleged 	connection between the 	Laborers' 	Union and organized
crime. 	CSSEC's 	argument 	also would preclude any 	campaign
discussion of 	the Laborers' 	alleged participation in violent
activities 	elsewhere 	in the 	country. 	CSSEC reasons 	that by
accusing the Laborers' 	Union of 	a track record of violence CAUSE
is 	itself 	creating an atmosphere of 	violence.
35

PERB 	cases 	do 	not 	assume 	a 	lack of 	sophistication or
on the part of the voters. 	There 	is 	no 	showing that
employees were 	afraid to vote because of 	this 	alleged 	link to
organized 	crime. 	Nor can 	it be 	inferred that 	just because 	such
an 	accusation was 	made 	that 	employees would 	automatically believe
it and drop out of the election process. 	Accordingly, 	I 	cannot
conclude that 	the threat against Mr. 	Trevisanut and the CAUSE
campaign 	literature were 	sufficient 	to 	affect 	the 	outcome 	of 	the
election.
Access
The 	Dills Act 	is 	silent about rights 	of 	access 	for employee
39
organizations. 	Nevertheless, 	since one of 	its 	earliest
decisions 	enforcing the 	statute, 	the Board has 	held 	"that a 	right
of 	access 	is 	implicit 	in the purpose and 	intent" 	of 	the 	law.
(State of California 	(Department of Corrections) 	(1980) 	PERB
Decision No. 	127-S.) 	This right, 	according to the Board, 	is
inherent 	in the 	required 	nature 	of public 	access 	to 	the
functioning of 	government. 	Since 	a public 	employer cannot
exclude 	members 	of 	the public 	from 	its place of 	operation,
neither 	can 	it 	exclude 	employee 	organizations.
A public 	employer can, 	however, 	"reasonably regulate access
where necessary to assure 	the 	safety of 	its 	employees, 	wards 	and
facilities 	and the 	efficient 	operation of 	its 	official 	business."
andtimidity
39
In this 	regard, 	the 	statute differs 	from the other two
laws 	administered by the 	PERB. 	See 	section 	3543.l(b) 	of 	the
Educational 	Employment Relations Act 	and 	section 	3568 	of 	the
Higher 	Education Employer-Employee 	Relations Act.
36

. . . .
(Ibid.) 	The right to reasonable regulation extends 	to mail 	as
well as 	to physical access. 	(See, State of California 	(Department
of Transportation et al.) 	(1981) 	PERB Decision No. 	159b-S.) 	It
is 	against this 	rule of 	reasonableness 	that 	infringements 	on
access 	must be measured.
CSSEC presented 	evidence 	about 	two 	types 	of 	interference
with access, 	refusal 	to admit CSSEC representatives 	to 	certain
work 	locations 	and refusal 	to deliver CSSEC 	mail 	at 	some 	sites.
CSSEC 	acknowledges 	that 	the 	number of 	undelivered pieces 	of 	mail
"is 	not 	large." 	But 	it 	contends 	that because the votes
separating it 	from CAUSE 	is 	small, 	even a 	small number of
returned pieces 	of 	mail 	and denials 	of 	access 	to work 	sites 	is
sufficient to 	invalidate the 	election. 	"Since 	it 	cannot be 	said
that 	the 	outcome would 	not 	have 	been different 	had 	CSSECs
efforts 	to communicate not been frustrated," 	CSSEC argues, 	"a new
election 	should be 	held."
CAUSE 	replies 	that 	a 	"cannot-be-said-the-outcome-would-not- ;
have been different" 	test 	is 	not the 	standard applied by PERB.
Citing various 	PERB 	cases, 	CAUSE 	argues 	that the Petitioner must
show that 	alleged denials 	of 	access 	and 	interference with 	mail
had a probable 	impact on the employees' 	vote. 	CAUSE argues 	that
among the hundreds 	of Unit 	7 work sites, 	the evidence
demonstrates only marginal access problems. 	Indeed, 	CAUSE
contends, 	the evidence shows 	that CSSEC had access 	to the
overwhelming majority of 	Unit 	7 	employees 	and only 	"minuscule"
problems 	with 	returned mail.
37

I 	agree with CAUSE. 	If there had been widespread denials 	of
ls , Phy access 	or interference with, mail delivery, 	one might 	infer that
these actions had a 	"probable 	impact on the employees' 	vote."
(Jefferson Elementary School District, 	supra. 	PERB Decision
No. 	164.) 	But it is highly speculative that any of CSSEC's
access 	or mail 	delivery problems 	had an 	impact on the 	election.
The 	interference with 	access 	occurred 	at 	a 	few 	isolated
State 	offices 	due mostly to 	the 	failure 	of 	the CSSEC 	organizer to
make 	advance arrangements. 	At 	the 	tightly 	secured Department 	of
Justice 	building 	the 	CSSEC 	organizer 	simply 	showed 	up 	and
expected 	to be 	admitted. 	No member of 	the public 	could gain
entry to the building in that manner. 	At a CHP, 	a CSSEC
organizer attempted to gain entry 	in the middle of the 	night. 	It
is 	unreasonable 	to believe 	the 	State would allow anyone 	into 	the
office at that time of the night. 	Moreover, 	when the 	same
organizer returned during daylight hours, 	he was 	admitted. 	While
a 	CSSEC 	organizer who 	had made prior 	arrangements 	was 	removed
a 	meeting 	room by 	a 	janitorial 	crew at Atascadero 	State
Hospital, 	the number of affected employees were 	few.
The problems with mail 	delivery were more 	significant. 	In
most 	instances, 	these were due to faulty work addresses 	given to
CSSEC by 	the 	State. 	Particularly 	egregious were the 	faulty work
addresses 	given to CSSEC 	for the 	Department of 	Justice.
Department 	of 	Justice 	labor 	relations 	officer Wayne 	Heine
testified that he had given the DPA a better address 	list.
wel
. . .
38

However, 	this 	list was 	not given to CSSEC by DPA and by the 	time
Mr. 	Heine got it to CSSEC, 	the election was well underway.
While 	some 	effect 	from the 	faulty work addresses 	was
demonstrated, 	there 	is 	no basis 	for concluding that because of
the bad addresses CSSEC was unable 	to get 	its 	message to voters.
Numerous 	witnesses 	were 	asked during the hearing whether 	they
received 	campaign 	literature 	from CSSEC 	during 	the 	election
period. 	Virtually 	all 	said 	they had 	received 	literature 	either
at home 	or at work or both. 	Indeed, 	for many 	if not most unit
members 	CSSEC 	had home 	addresses 	acquired 	through other means.
There is 	insufficient evidence, 	therefore, 	to conclude that
the 	faulty 	addresses 	supplied 	to 	CSSEC 	by 	DPA were 	sufficient 	to
have a 	"probable 	impact" 	upon the outcome of the election.
Home Address 	List
PERB 	regulations 	require 	the 	State 	employer to 	file with 	the
regional 	office 	a pre-election 	list 	of voters 	containing among
other things 	the 	"home 	address 	of 	each eligible voter."40 The
regulations 	require 	the 	employer 	to 	concurrently 	serve 	copies 	of
the 	list 	on each 	other party 	to 	the 	election. 	The 	regulation
continues:
. 	. 	. 	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
.. ..
.E. .. . .
40See California Code of Regulations, 	title 8, 	section
32726.
39

home addresses 	is 	likely to be harmful to the
employees .41
This 	language 	appeared 	in 	interim PERB 	regulations 	issued 	in
1980 	just prior to 	the 	commencement 	of 	the 	first 	elections 	under
the 	State 	Employer-Employee 	Relations Act 	(as 	the 	Dills Act was
then known). 	There 	is 	no PERB decision which describes 	the
circumstances 	under which the 	release 	of 	home addresses 	"is
likely to be harmful" 	to employees. 	Nor is 	that provision
applicable here. 	No party, 	prior to the election, 	raised to the
Regional 	Director 	a 	contention that 	disclosure 	of 	home 	addresses
of 	Unit 	7 	employees was prohibited under PERB regulations 	as
"likely 	to be harmful 	to 	the 	employees."42 The 	Board made 	no
such 	determination prior 	to 	the 	election and 	no party 	can 	assert
that 	justification now.
It 	is 	uncontested that the 	State 	refused to disclose 	the
home 	addresses 	of 	any member of 	Unit 	7 	to either of the
contesting 	employee 	organizations. 	In refusing to 	turn over the
addresses, 	the 	State acted on the request of CAUSE 	and relied
solely upon Government Code 	section 	6254.3.43
41California Code of Regulations, 	title 8, 	section 32726,
subsection (b).
42On February 	5, 	1991, 	CAUSE 	filed a 	statement of opposition
to 	release of home addresses. 	Although this document advances
many reasons why home addresses 	should not be 	released, 	it does
not 	rely 	on 	the 	PERB 	regulatory provision against 	address 	release
if 	"likely to be harmful to the employees." 	Rather, 	the 	filing
relies 	upon 	the prohibition against 	release 	of 	addresses 	where
"prohibited by 	law," 	citing Government Code 	section 	6254.3.
43Government Code 	section 	6254.3 	provides:
40

This 	section, 	while 	setting out a general rule of
confidentiality 	for the home 	addresses 	of 	State 	employees,
permits 	address 	disclosure 	for 	employees 	in PERB-conducted
(a) 	The home 	addresses 	and home telephone
numbers 	of 	state employees 	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:
(1) 	To an agent, 	or a family
member of 	the 	individual 	to whom
the 	information pertains.
(2) 	To an officer or employee of
another 	state 	agency when 	necessary
for the performance 	of 	its 	official
duties.
(3) 	To an employee organization
pursuant 	to 	regulations 	adopted 	by
the 	Public 	Employment 	Relations
Board, 	except that the home
addresses 	and home 	telephone
numbers 	of 	state 	employees
performing 	law 	enforcement-related
functions 	shall 	not be disclosed.
(4) 	To an agent or employee of a
health 	benefit 	plan providing
health 	services 	or 	administering
claims 	for health 	services 	to 	state
employees 	and 	their 	enrolled
dependents, 	for the purpose of
providing 	the 	health 	services 	or
administering 	claims 	for 	employees
and 	their 	enrolled dependents.
(b) 	Upon written request of any employee, 	a
state 	agency 	shall 	not disclose 	the
employee's 	home 	address 	or home 	telephone
number pursuant to paragraph 	(3) 	of
subdivision 	(a) 	and a 	state 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.
41

elections. 	But even in elections, 	the 	statute maintains the
confidentiality 	of 	home 	addresses 	for 	employees 	"performing 	law
enforcement-related 	functions." 	The 	section also precludes
disclosure 	of home 	addresses 	for 	employees who 	request 	in writing
that 	their addresses 	not be disclosed.
This 	section, 	which became 	law as 	chapter 	1657 	of the
Statutes 	of 	1984, 	has 	never been 	judicially 	interpreted.
Extensive 	legislative histories, 	placed 	into the record by
CSSEC44 and the 	State,45 show that the phrase 	"law enforcement-
related 	functions" 	was 	contained 	in the 	measure virtually 	from
the beginning.46 But 	these histories 	provide virtually no
guidance 	about the meaning of the phrase. 	There 	is 	no definition
of 	"law enforcement-related 	functions" 	in the 	statute 	and there
is 	nothing 	in the 	legislative history 	in which the 	author or 	any
supporter of 	the measure 	advances 	a definition.
Several 	of 	the bill 	analyses 	cite a Sacramento Court order,
which 	required 	the 	State Controller to release home 	addresses 	to.
a non-recognized organization, 	as 	the reason for the bill.47 The
14 . . 23 .
44Judicial Notice Exhibit no. 	1.
45Judicial Notice Exhibit no. 	2.
46Assembly Bill 	3100 	began as 	a measure 	concerning
pre-retirement 	counseling 	for State 	employees. 	With an amendment
of April 	12, 	1984, 	the subject of the bill was 	changed to public
records. 	That 	first 	amendment 	inserted a prohibition against 	the
disclosure of 	the home addresses 	of 	State 	employees 	performing
law 	enforcement-related 	functions.
47A bill 	analysis 	from the Senate Republican Caucus, 	dated
August 	17, 	1984, 	offers the following explanation:
42
"

. ' :. '. .
California 	Highway Patrol, 	in urging 	former Governor Deukmejian
Since 	the 	enactment 	of 	collective 	bargaining
legislation affecting State agencies, 	several
lawsuits 	have been brought 	by 	employee
organizations 	against State agencies, 	seeking
disclosure of 	employee home 	addresses 	to
enable 	the 	organizations 	to 	contact 	employees
directly. 	The decisions 	rendered 	in these
lawsuits 	have 	not provided 	any uniformity 	of
interpretation.
Most recently, 	the Sacramento 	Superior Court
ordered 	the 	State 	Controller 	to 	release home
addresses 	of 	specified 	groups 	of 	employees 	to
an organization of 	State workers 	State
Employees 	for 	Democratic 	Choice 	(SEDC) 	v.
Cory, 	et al. 	While the Controller has been
providing 	the 	exclusive 	bargaining 	agents
with the 	names 	and home 	addresses 	of 	State
Employees 	in their respective units, 	SEDC 	is
not a 	recognized bargaining unit. 	The
Court's 	order 	sets 	a precedent 	in that 	if
employee 	home addresses 	are 	accessible 	to
such an organization, 	they might be
accessible to anyone, 	under any conditions.
This 	case 	is not on appeal.
sign the measure, 	wrote that,., restriction on release of home
addresses would 	"decrease the 	chances 	of 	a member of 	the 	criminal
element 	gaining access 	to 	a peace 	officer's 	home 	address 	and
phone 	number." 	A 	similar message 	urging the Governor 	to 	sign the
bill was 	sent by the 	Franchise Tax 	Board.
CSSEC 	argues 	that 	the phrase 	"law enforcement-related
functions" 	includes 	only those Unit 	7 	occupations 	that perform
peace 	officer duties 	or duties 	intimately 	related to 	those 	of 	a
peace officer. 	"These would be functions," 	CSSEC argues, 	"where
the 	individual 	employee 	is 	called upon to 	exercise discretion and
independent 	judgment relative 	to the application of 	a 	statute
which has 	a 	criminal 	sanction 	and without whose participation 	the
43

law enforcement 	officer 	or peace 	officer 	could 	not 	do 	his 	or her
job." 	CSSEC describes 	these,functions 	as 	"tasks 	which 	a 	law
enforcement 	officer would have 	to perform 	in the 	absence 	of 	such
persons." 	CSSEC argues 	that none of the 	13 	job classes 	about
which 	it presented 	evidence meet 	this 	test.
CAUSE 	asserts 	first 	that CSSEC has 	waived 	its 	right 	to
challenge 	the 	election on the basis 	of 	not 	receiving home
addresses because 	it did not 	timely raise 	the 	issue. 	CAUSE
argues 	that the address 	list was prepared 	in response 	to a
directed 	election order 	and was 	thus 	an 	appealable 	administrative
determination. 	Since CSSEC did not 	file 	an appeal 	of 	the
omission of 	names 	within 	the 	10-day period required 	in 	PERB
regulations, 	CAUSE continues, 	the contention was lost.
This 	argument 	is 	simply incorrect. 	Other than to 	file 	an
unfair practice charge, 	which it did, 	CSSEC had no means 	of
challenging the home address 	list at the 	time 	it was 	issued.
Neither a directed 	election order nor a 	home address 	list 	are
administrative 	determinations 	that 	may 	be 	challenged 	under 	PERB
regulations.48 Election mechanics, 	which certainly 	includes 	the
preparation of 	a home address 	list, 	are 	specifically not
appealable 	to the 	Board.49 The only avenue 	open to CSSEC 	to
challenge the voter 	list was 	the one 	it 	chose, 	an unfair practice
charge 	followed by objections 	to 	the 	conduct of 	the 	election.
48	48 Administrative 	determinations 	may 	be 	appealed 	to 	the
Board. 	(See California Code of Regulations, 	title 8, 	sections
32350 	through 	32380.)
49California Code of Regulations, 	title 8, 	section 32380.
44

CAUSE 	next argues 	that 	the release 	of home addresses 	of
Unit 7 employees is prohibited by, law. 	Citing Section 6254.3,
CAUSE 	contends 	that 	Unit 	7 	employees 	perform 	"law enforcement-
related 	functions." 	CAUSE 	argues 	that 	this 	clause 	includes 	more
than peace officers 	and 	rejects 	CSSEC's 	interpretation as 	far 	too
narrow. 	CAUSE would include all employees whose 	job duties 	might,
subject 	them 	"to 	retaliation or harassment by members 	of 	the
public with whom they come 	in contact due 	to their 	job 	function."
Citing 	the 	PERB decision 	creating 	State 	bargaining units,50 CAUSE
argues 	that 	from the beginning Unit 	7 	members 	have been grouped
together a	F1 s performing regulatory, 	law enforcement 	and public
safety 	and protection 	services.
Despite the 	scant 	legislative history of 	Section 6254.3, 	the
words 	"law enforcement" 	are not without 	judicial 	interpretation
in an employment 	context. 	There are 	several 	cases which 	construe
a 	similar phrase, 	"active 	law enforcement 	service,"51 in the
context of 	safety retirement. 	For example, 	Government Code 	. .
section 	3.1469.,3 	for purposes 	of 	determining pension benefits
defines 	"safety member" 	as 	those 	employees 	"whose principal
duties 	consist of 	active 	law enforcement 	or active 	fire
suppression. 	. . . "
50State of California 	(1979) 	PERB Decision No. 	110-S.
51 "The phrase 	'active 	law enforcement 	service' 	appears 	in
various 	sections of the Public Employees' 	Retirement Act 	(e.g.,
secs. 	20017.5, 	20021.5) 	as well as 	in the County Retirement Law
of 1937 	(e.g., 	secs. 	31469.3, 	31470.3, 	31470.6, 	31558) 	and the
Labor Code (e.g., 	secs. 	4850, 	3212)." 	John E. 	Crumpler et al. 	v.
Board of Administration. 	Public 	Employees' 	Retirement System et
al. 	(1973) 	32 Cal.App.3d 567 at 577 	[108 Cal.Rptr. 	293].
45

This provision was 	interpreted in Crumpler et al. 	v. 	Board
Administration. 	supra . 	32 Cal. App. 3d 567. 	Quoting an opinion
of 	the Attorney General, 	the Court 	found within the 	term 	"active
law enforcement" 	those
. 	. 	. positions, the principal duties of
which pertain to 	the 	active 	investigation and
suppression of crime; 	the arrest and
detention 	of 	criminals 	and 	the 	administrative
control of such activities. 	. 	. 	.5Z
Thus, 	employees 	engaged in 	"law enforcement" 	are those whose 	job
it 	is 	to 	investigate 	crimes 	and pursue and arrest 	criminals. 	The
judicial 	construction of 	the phrase 	is 	the 	same as 	its 	common
meaning 	in everyday 	speech. 	"Law enforcement" 	does 	not mean
anyone who 	enforces 	any 	law or administrative 	regulation. 	It
means 	anyone who enforces 	the criminal 	laws. 	This 	is 	a
definition 	far 	less 	expansive 	than the 	State 	and CAUSE would
suggest 	and 	similar to 	that offered by CSSEC.
It 	follows 	that a person who performs 	"law enforcement-
f related functions" 	is a person who either engages 	in law
enforcement 	or directly 	assists 	those 	engaged 	in 	law enforcement.
By using 	the words 	"law enforcement," 	the Legislature was 	clearly
focusing on the 	investigation of 	crimes 	and the pursuit 	of
criminals. 	The words 	"law enforcement" 	are not broad enough to
include 	the 	enforcement 	of 	regulatory 	statutes 	dealing with 	the
licensing 	and 	regulation of 	various 	commercial 	activities.
But 	the phrase 	includes 	more than peace officers. 	Had the
Legislature 	intended 	to 	include 	only peace 	officers 	it would 	not
5232 Cal.App.3d at p. 	577.
46

have 	added the word 	"related" 	as 	a modifier to 	"law enforcement."
"Law enforcement-related functions"., is 	a phrase broad 	enough to
include 	those who 	as part 	of 	their regular 	job duties 	assist
peace 	officers 	in the 	investigation of 	crimes 	and pursuit 	of
criminals. 	It includes, 	as CSSEC suggests, 	"persons without
whose participation the 	law enforcement 	officer or peace 	officer
could not do his 	or her 	job."
CSSEC, 	when applying this 	test, 	does not 	find that any of
the 	job 	classes 	about which 	it presented 	evidence perform 	"law
enforcement-related functions." 	I 	do not agree. 	Nor do 	I 	agree
with 	CSSECs 	conclusion that 	in order 	to perform 	"law
enforcement-related 	functions" 	an 	employee must 	"exercise
discretion and 	independent 	judgment." 	I 	conclude 	that 	any
employee whose principal 	duty 	is 	to 	assist 	in the 	enforcement 	of
the 	criminal 	laws 	is 	an employee who performs 	"law enforcement-
related 	functions."
The parties 	stipulated that all peace officers 	in Unit 	7 	are
covered by 	the 	address 	exclusion 	for 	employees 	performing 	law
enforcement-related functions. 	The State, 	thus, 	properly
withheld their home 	addresses. 	The 	State 	also properly withheld
the home 	addresses 	of the Highway Patrol 	and State Police
communications 	operators 	and 	the 	criminal 	identification
specialists. 	These 	employees 	regularly assist peace officers 	in
their daily duties 	and do, 	therefore, 	perform law enforcement
related 	functions.
..
47

However, 	the State was 	not entitled to withhold the home
of all employees 	in the positions 	of motor 	carrier
specialist, 	deputy registrar of 	contractors, 	DMV licensing
inspector, 	DMV licensing and registration examiner, 	program
representative 	for the 	Bureau of Automotive Repair, 	brand
inspector, 	conservationist, 	dairy food specialist, 	fire fighter
and 	seasonal 	lifeguard. 	The 	only home 	addresses 	properly
withheld 	for 	employees 	in these 	classes were those 	of 	individuals
who, 	in writing, 	had invoked the privacy provision of 	section
6254.3(b).
But 	a 	finding 	that 	the 	State 	improperly withheld 	the 	home
address 	of 	certain Unit 	7 	voters 	is 	not a 	finding that 	the
election was 	therefore 	invalid. 	CSSEC takes 	it as 	a virtual
given that 	if 	it was 	denied home addresses 	to which 	it was
entitled 	that 	the 	election must be 	set aside. 	CSSEC argues 	that
since 	there were 	only 423 	votes 	separating the two 	competing
unions, 	that 	"a 	shift of half of that number could effect the
outcome." .'.. The 	union argues 	that 	if 	it had been given the home
addresses, 	"it 	could have had a more 	effective campaign which
might have resulted 	in a different outcome." 	Thus, 	CSSEC
contends, 	the failure to provide it with home addresses was 	a
"serious 	irregularity" 	that 	interfered with the 	right 	of
employees 	to 	freely 	choose.
As 	noted above, 	however, 	PERB cases 	require more than the
mere 	possibility 	that 	election misconduct 	might 	have 	changed 	the
result. 	PERB cases 	require a 	showing that, 	taken collectively
48

the various 	unlawful 	activities, 	establish a 	"probable 	impact on
the employees 	vote." 	If 	there were, evidence 	that 	CSSEC 	had 	no
addresses 	of 	any kind 	for 	a 	substantial 	number of 	unit 	members,
then one might 	infer a probable 	impact. 	But, 	as CAUSE points
out, 	CSSEC had home addresses 	for a 	substantial 	number of 	Unit 	7
members. 	Where CSSEC did not have home addresses, 	the State
supplied work addresses.
Although 	some 	of 	the 	State-supplied work addresses 	were
faulty, 	the 	evidence 	is 	insufficient to 	allow the 	inference 	that
the 	State 	thereby prevented 	CSSEC 	from getting 	its 	message 	out 	to
voters. 	Numerous witnesses, 	as CAUSE observes, 	testified to the
receipt of CSSEC mailings 	either at home or at work or both. 	On
this 	evidence, 	there 	is 	no 	showing of a probable impact on the
election.
Voter 	List
The directed election order issued on February 	14, 	1991, 	by
the 	Sacramento Regional 	Director 	sets 	out 	the 	following
requirements 	for voter 	eligibility:
Unless 	otherwise 	indicated below, 	the
eligible voters 	shall 	be 	those 	employees
within the 	unit 	described below who were
employed 	on the 	eligibility 	cutoff 	date
indicated below, 	and who are 	still 	employed
on the date they 	cast their ballots 	in the
election, 	i.e., 	the date the voted ballot is
received by PERB. 	Employees who are 	ill, 	on
vacation, 	on leave of absence or sabbatical,
temporarily 	laid off, 	and 	employees who 	are
in the military 	service 	of 	the 	United 	Sates
shall be eligible to vote. 	. 	. 	. 53	53
53The 	language 	in the 	directed 	election 	order 	substantially
duplicates 	the 	voter 	eligibility 	requirements 	set 	out 	in PERB
49

regulations. 	(See California Code of Regulations, 	title 8,
section 	32728.)
The 	cutoff 	date 	for voter 	eligibility was 	fixed at 	January 	31,
The bargaining unit 	set, out in the order was 	"[a]ll 	civil
service 	employees whose positions 	are 	included 	in Unit 	7" 	except
for management, 	supervisory and confidential 	employees. 	There
also 	were 	restrictions 	for 	employees 	who held multiple 	job
positions 	falling 	into more 	than one 	state bargaining unit.
Relying on federal precedent, 	CSSEC argues 	that 	seasonal
lifeguards 	have 	a 	reasonable 	expectation of 	reemployment 	and were
therefore 	eligible voters. 	Their omission 	from the voter 	list,
CSSEC continues, 	resulted 	in the denial 	of 	their right to vote
and 	constituted 	a 	serious 	irregularity 	in the 	election.
CAUSE 	attacks 	this 	contention with 	a 	series 	of waiver and
estoppel arguments. 	In the first of these, 	CAUSE argues that by
a 	letter of 	December 21, 	1990,54 CSSEC 	"stipulated that 	seasonal
lifeguards 	are 	not 	eligible to vote." 	CAUSE 	finds 	the 	critical
stipulation 	in the 	following 	statement 	from 	the 	CSSEC 	letter:
[Although] 	it 	is 	irrelevant whether or not
these 	employees 	have voting rights within the
unit, 	the Petitioner would agree that
seasonal 	employees 	not 	on the 	state payroll
at 	the time a petition is 	filed 	should 	not be
counted 	for proof 	of 	support purposes.
54The 	letter 	in question was 	a 	reply by counsel 	for CSSEC 	to
a document filed by CAUSE on December 6, 	1990. 	In its 	December 	6
filing, 	CAUSE 	asserted a 	belief 	that CSSEC had used 	signature
cards 	from 	ineligible 	seasonal 	employees 	to meet 	its 	proof 	of
support. 	CAUSE 	asserted that 	seasonal 	employees who had been
separated 	from 	State 	service were 	ineligible 	to 	sign
authorization cards. 	CAUSE urged that any 	signatures 	from 	such
employees 	be disregarded.
50

CAUSE argues 	it 	is 	"patently ridiculous" 	to 	suggest that 	seasonal
l i f e g u a r d s 	c a n 	b e 	i n e l i g i b l e 	t o 	s i g n 	a 	d e c e r t i f i c a t i o n 	p e t i t i o n
and yet 	eligible to vote 	in the 	subsequent election. 	If 	seasonal
lifeguards 	do 	not have 	sufficient 	employment 	interest 	to 	sign
authorization cards, 	CAUSE argues, 	they do not have 	sufficient
interest to vote.
In making this 	argument, 	CAUSE 	reads 	far too much 	into 	the
concession made by CSSEC in its December 21, 	1990, 	letter.
Neither 	in 	form nor 	in 	substance was 	the 	letter a 	"stipulation."
The 	very wording of 	the 	CSSEC 	letter yields 	nothing about 	voting
rights, 	stating that the 	issue of voting rights was 	irrelevant to
the 	challenge 	raised by CAUSE. 	As 	CSSEC notes 	in 	its 	reply
brief, 	the 	letter 	simply made 	a very narrow concession about 	the
calculation of the 	showing of 	support. 	The purpose of 	this was
to 	get 	"the parties 	past 	a possible procedural 	hurdle 	since 	CSSEC
was 	confident 	that 	even without the 	signatures 	of 	seasonals 	it
would 	still 	meet the 	30 percent requirement."5555
Moreover, 	the CAUSE argument treats 	the determination of 	the
sufficiency of a 	showing of 	support 	as 	if 	it were 	identical 	to
the determination of voter eligibility. 	It 	is 	not. 	In a card
check, 	the employer's 	list of 	employees 	is 	essentially
unassailable. 	If an employee's name is not on the list, 	the
employee's 	signature 	card will 	not be 	counted. 	By contrast,
. . . . .
55If 	CSSEC 	knew that 	it had more 	than 	sufficient 	signatures
to meet 	its 	required 	showing, 	then 	it would not be harmed by
excluding 	the 	cards 	of 	seasonal 	lifeguards 	from the 	card 	check.
Nothing 	about 	this 	concession 	is 	an agreement 	by CSSEC 	that
seasonal 	lifeguards were 	ineligible 	to vote.
51

employees whose 	names 	are 	not 	on the 	employer-prepared voter 	list
may vote a 	challenged ballot which, will 	later be 	counted 	if 	the
employee 	is 	found to be 	eligible.
The 	omission of 	the names 	of 	seasonal 	lifeguards 	from the
employer's 	list used 	for determining a 	showing of 	support, 	or
even CSSEC's decision not to rely on their names 	at all, 	has 	no
bearing on their eligibility as voters. 	Accordingly, 	I 	do not
find that by the letter of December 21, 	1990, 	CSSEC has
stipulated 	to 	the 	ineligibility of 	seasonal 	lifeguards.
CAUSE 	next 	asserts 	that CSSEC has waived 	its 	right 	to 	assert
the 	eligibility of 	seasonal 	lifeguards 	by 	its 	failure 	to 	timely
challenge 	their omission 	from the voter 	list. 	CAUSE 	argues 	that
the 	voter 	list was 	prepared under 	the 	directed 	election order 	and
when 	CSSEC 	saw that 	seasonal 	lifeguards 	were 	omitted 	from the
list 	it was 	obligated to raise the 	issue at that time. 	Since
CSSEC did not raise the 	issue then, 	CAUSE continues, 	CSSEC waived
its 	right to challenge the election on this 	basis 	later.
This argument 	is 	incorrect. 	CSSEC had no means of
challenging the voter list at the time 	it was 	issued. 	Neither a
directed 	election order 	nor 	a 	voter 	list 	are 	administrative
determinations 	that 	may be 	challenged under 	PERB 	regulations.
.A
56
Election mechanics, 	which certainly 	includes 	the preparation of 	a
voter list, 	are 	specifically not appealable to the Board.57 The
56Administrative determinations 	may 	be 	appealed 	to 	the
Board. 	(See California Code of Regulations, 	title 8, 	sections
32350 	through 	32380.)
^California Code of Regulations, 	title 8, 	section 32380.
52

only avenue 	open 	for CSSEC 	to 	challenge 	the 	voter 	list was 	the
one it 	chose 	objections 	to 	the 	conduct 	of 	the 	election.58 This
is, 	of course, 	the logical result. 	Plainly, 	if a party could
challenge 	the 	content of 	a voter 	list prior to balloting and
thereby hold up 	an election, 	the 	entire 	representation process
would be 	susceptible 	to dilatory 	litigation.
CAUSE 	next 	asserts 	the 	equitable defenses 	of 	laches 	and
estoppel, 	contending that CSSEC 	is 	guilty of unreasonable delay
in 	challenging 	the 	voter 	list 	and 	that CSSEC went 	through 	the
election without voicing 	its 	objections. 	These 	contentions 	are
meritless. 	As 	noted above, 	CSSEC was unable to challenge the
voter 	list until 	it 	could 	file 	objections 	after 	the 	election was
completed. 	Moreover, 	there 	is 	convincing evidence that through
Mr. 	Hallahan, 	CSSEC plainly objected during the pre-election
conference 	to 	the 	omission 	from the voter 	list 	of 	seasonal
lifeguards. 	There 	is 	also convincing evidence that 	through
Mr. 	McCall, 	CAUSE objected to the inclusion of 	seasonal
lifeguards on the voter list. 	There is no equitable
justification 	for 	barring 	CSSEC 	from 	now 	complaining 	about 	the
omission of 	seasonal 	lifeguards 	from the 	voter 	list.
Consideration of 	the 	question on the merits 	must begin with
the 	recent decision, 	State of California 	(Department of 	Personnel
Administration) 	(1990) 	PERB Decision No. 	787-S. 	There, 	the Board
58The 	citation by CAUSE 	to 	Oakland 	Unified 	School 	District
et al. 	(1988) 	PERB Order No. 	Ad-172 	is not helpful. 	As noted by
CSSEC, 	the Board agent 	in Oakland made a 	formal 	"Administrative
Determination" 	which was 	then appealed to the Board. 	No 	such
determination was 	made here.
53

held 	that 	seasonal 	lifeguards were members 	of 	the 	civil 	service
and, 	thus; 	covered under the, Dills Act definition of 	"State
employee."59 It cannot be disputed, 	therefore, 	that 	seasonal
lifeguards 	are members 	of 	State 	employee bargaining 	Unit 	7.
. . .
Not all members of a bargaining unit, 	however, 	are eligible
to vote 	in a representation election. 	The PERB has 	long 	limited
the 	right 	to 	vote 	among part-time 	and 	temporary workers 	to 	those
employees 	"with 	an 	established 	interest 	in 	employment 	relations"
with the 	employer. 	In the context 	of 	substitute 	school 	teachers,
the 	Board will 	find 	an 	"established 	interest" 	among 	those who
have taught at 	least 	10 percent of 	the pupil 	school days 	in the
current 	or previous 	year. 	(Palo Alto 	Unified 	School 	District 	et
al. 	(1979) 	PERB Decision No. 	84.)
The purpose of 	the 	10-percent 	rule 	is 	"to prevent
substitutes without 	an 	established 	interest 	in employment
relations 	. 	. 	. 	from being able to overwhelm the votes of
full-time 	employees 	and the 	substitutes who 	. . . 	ha[ve] 	a
greater 	stake, in the outcome of collective bargaining 	. 	. 	. 	."
(Oakland Unified School District, 	supra, 	PERB Order No. 	Ad-172.)
Not 	only must 	a 	substitute 	have worked 	10-percent 	of 	the 	current
1
59Under section 3513(c), 	"State employee" 	is defined as
. 	. 	. 	any civil service employee of the
state, 	and the teaching 	staff of 	schools
under the 	jurisdiction of 	the Department 	of
Education or the 	Superintendent 	of 	Public
Instruction, 	except managerial employees,
confidential employees, 	supervisory
employees 	. . . .
54

or preceding 	school year in order to vote, 	he or 	she also must
"have" a reasonable expectation of 	continued employment." 	Id.
The 	Board has 	adopted 	a 	different 	approach 	in determining
the 	unit placement 	and voter 	eligibility 	of part-time 	community
college 	instructors. 	Rather than tie 	eligibility to 	some minimal
percentage of 	full-time hours, 	the Board instead has 	looked to
the 	length 	of 	a 	community 	college 	instructor's 	continued 	service.
"[P]ersons who 	continually, 	semester after semester, 	teach in the
community 	college have 	demonstrated 	their 	commitment 	to 	and
interest 	in 	its 	objectives." 	(Los 	Rios 	Community College
District 	(1977) 	EERB Decision No. 	18.) 	Thus, 	in community
college 	elections 	the measurement 	of 	voter 	eligibility 	is 	whether
an 	instructor has 	taught 	the 	equivalent 	of 	three 	or more
semesters 	during the 	last 	six 	semesters 	inclusive.
In many respects, 	the Board's 	formulations 	for voter
eligibility 	in 	school districts 	parallel 	the NLRB 	approach 	for
voter 	eligibility among 	seasonal, 	intermittent 	and part-time
workers. 	Under federal precedent, 	seasonal 	employees 	are
eligible 	to vote 	in representation 	elections 	if 	"they have 	a
reasonable 	expectation 	of 	reemployment 	and 	a 	substantial 	interest
in working 	conditions 	at the 	employer's place of business."60
Workers 	who do 	not meet 	these 	criteria are 	not 	eligible 	to vote
in 	an NLRB-conducted 	representation 	election.
60Morris, The Developing Labor Law. 	BNA, 	1983, Vol. 	1,
p. 	387, 	and cases cited therein.
55

In assessing whether a 	seasonal 	employee has 	"a 	reasonable
expectation 	of 	reemployment," 	the NLRB does 	not 	find 	it
determinative 	that 	a particular 	employee's 	name 	may have 	been
dropped 	from the payroll.61 Rather, 	the NLRB considers
. 	. 	. 	factors 	such as the size of the labor
force 	from which the 	seasonal 	employees 	are
recruited, 	the 	stability of the 	employer's
labor requirements 	and the 	extent 	to which
the 	employer 	is 	dependent upon 	seasonal
labor, 	the actual 	season to 	season
re-employment, 	and the employer's preference
or 	recall policy 	regarding 	re-employment 	of
seasonal employees.52
When these 	factors 	suggest 	a 	reasonable 	expectation 	of 	continued
employment, 	then the 	seasonal 	employee 	is 	an eligible voter.
As 	CSSEC argues, 	the 	seasonal 	lifeguards 	fall well within
the 	NLRB 	guidelines 	for measuring 	a 	"reasonable 	expectation 	of
reemployment." 	The 	labor 	force 	from which 	the 	seasonal
lifeguards 	are recruited is not large. 	To be eligible, 	a
candidate must meet 	a 	strenuous physical 	test which by 	its 	nature
restricts 	the 	group 	from which 	the 	State 	can draw employees. 	The
State's 	need 	for 	seasonal 	lifeguards 	is 	reasonably 	consistent,
varying 	only 	according 	to 	the weather which 	affects 	the 	size 	of
the 	crowds 	on the beaches.
Clearly, 	the State plans, 	year after year to hire 	seasonal
lifeguards 	to work during 	the 	summer 	and 	other peak usage
periods. 	Indeed, 	as 	now structured, 	the State could not provide
aww
61See Knapp-Sherrill Co. 	(1972) 	196 NLRB 	1072 	[80 LRRM
1467], 	a case cited by CSSEC.
62	62L&	L&BB Cooling	Cooling..Inc.	Inc..(1981120	. 	(1983]) 	267 NLRB 1 	[113 LRRM 1119 at
1120], 	a case cited by CSSEC.
56

lifeguard services 	in peak periods 	without 	the 	seasonal
employees. 	Finally 	the 	State, 	prefers 	to 	rehire 	persons 	who
previously have worked as 	seasonal 	lifeguards 	over new hires.
Rehiring 	former employees 	saves 	time and training 	costs.
CAUSE 	makes 	much of 	the 	requirement 	that 	seasonal 	lifeguards
must past 	a 	requalification test 	in order to be 	rehired 	each
season. 	There 	can be no reasonable expectation of reemployment,
CAUSE 	argues, 	because no 	individual 	can be certain that he or 	she
will 	be 	able to pass 	the 	test. 	But the 	evidence 	shows 	that very
few, 	if 	any, 	candidates 	for reemployment are denied 	jobs because
of 	failure on the 	swim test. 	Given this 	experience, 	seasonal
lifeguards who have worked 	for the 	State 	in one 	season can
reasonably 	expect 	that 	they will 	pass 	the 	test 	and be 	rehired.
If 	the 	PERB had never dealt with the 	question of voter
eligibility 	for 	intermittent 	employees; 	it would be 	appropriate
to decide this 	case 	solely on the basis 	of NLRB practice.
However, 	the Board has passed on 	similar voter 	eligibility
questions 	in the public 	school 	context. 	Although CSSEC 	eschews
any attempt 	to decide voter 	eligibility on the basis 	of 	a 	minimum
number of 	qualifying hours, 	this 	is 	precisely how the PERB has
approached the 	issue 	in previous 	cases. 	CSSEC has 	offered no
reason why 	the 	voter 	eligibility 	rules 	set 	out 	by 	the 	Board 	in
the public 	school 	and community 	college 	cases 	are 	inapplicable
here. 	The policy 	interests 	the Board 	sought to protect 	in those
cases 	are applicable 	in State 	employment. 	In both contexts,
voter 	eligibility 	rules 	should 	aim 	at 	the widest possible
: :.. . ... ..
57

election 	participation 	consistent 	with 	a 	requirement 	that 	voters
have 	a 	substantial 	stake 	in 	the 	outcome 	of 	bargaining.
To 	be 	eligible voters, 	therefore, 	seasonal 	lifeguards 	must
possess 	more 	than 	a 	transitory 	relationship with 	the 	State. 	They
must 	have 	a 	continuing 	and 	substantial 	employment 	relationship.
Such 	a 	relationship 	must 	be 	shown 	by 	an 	employment 	history
lasting 	more 	than 	one 	season 	at 	a 	level 	sufficient 	to 	justify 	an
interest 	in 	the 	outcome 	of 	collective 	bargaining. 	This 	means
they 	must 	work 	enough 	hours 	that what 	happens 	at 	the 	bargaining
table 	has 	an 	actual 	impact 	on 	them. 	In 	the 	substitute 	teacher
cases, 	the 	Board has 	fixed 	this 	level 	at 	10 percent 	of 	a
full-time position. 	I 	will 	apply the 	same 	standard, 	here.
Thus, 	seasonal 	lifeguards 	are 	eligible voters 	if 	they:
1) 	Have worked 	for the 	State 	in two 	or more
consecutive 	seasons, 	the 	most 	recent 	of which was 	the 	season
closest 	to 	the 	voter 	eligibility 	cutoff 	date;
2) 	Have worked 	a 	minimum of 	10 	percent 	of 	the work
year 	of 	a 	full-time 	lifeguard63 in 	the 	12 	months 	immediately
preceding 	the 	voter 	eligibility 	cutoff 	date; 	and
3) 	Have 	a 	reasonable 	expectation of 	continued
employment 	in 	the 	next 	season 	after 	the 	voter 	eligibility 	cutoff
date.
63The work 	year 	for 	a 	permanent, 	full-time 	lifeguard 	is 	2080
hours. 	(Fifty-two weeks 	times 	40 	hours.) 	See 	testimony 	of 	Kirk
Sturm, 	Reporter's Transcript, 	Vol. 	4, 	p. 	148. 	Thus, 	seasonal
lifeguards 	must 	have worked 	a 	minimum 	of 	208 	hours 	in 	the 	12
months 	prior 	to 	the 	voter 	eligibility 	cut 	off 	date.
58

Seasonal 	lifeguards will 	have 	a 	reasonable 	expectation of
continued 	employment 	if 	they 	intend 	to 	return to work 	in 	the 	next
season after 	the 	voter 	eligibility 	cutoff 	date 	and 	remain 	capable
of performing 	lifeguard duties. 	Normally, 	seasonal 	lifeguards
who 	meet 	the 	two-season and 	10 	percent 	requirements will 	be
considered 	eligible 	voters. 	An 	individual 	seasonal 	lifeguard's
eligibility to vote will be 	subject to challenge, 	however, 	by any
party 	that 	can demonstrate 	that 	the 	lifeguard does 	not have 	a
reasonable 	expectation of 	continued 	employment.
Application of 	this 	test 	to the 	1991 	election in Unit 	7
produces 	the following result. 	There were 	3 30 	seasonal
lifeguards who, 	by the voter eligibility cutoff date of
January 31, 	1991, 	met the two-season and 208-hour requirements.64
Of these, 	38 were 	listed as 	eligible voters on the voter list.65
Thus, 	there were 2 92 	seasonal 	lifeguards who were eligible voters
but whose names were 	not 	contained on the voter eligibility 	list.
For purposes 	of determining impact 	on the election, 	it must
be 	assumed that 	all 	of 	the 	eligible 	292 	seasonal 	lifeguards 	would
have voted 	if 	afforded the opportunity. 	When 	292 	is 	added to 	the
number of valid votes plus 	challenged ballots, 	the number of
votes 	CAUSE 	needs 	to win is 	increased to 	2182. 	Since CAUSE
received 2122 	votes, 	it 	is 	clear that the omission of eligible
-. .
64This 	calculation was 	made by an analysis 	of 	Hearing
Officer Exhibit no. 	2.
65This 	calculation was 	made by an analysis 	of 	Joint 	Exhibit
no. 	1.
59

seasonal 	lifeguards 	from the ballot had an effect on the 	election
result. 	The election result mus	. . .t 	therefore, 	be 	set aside.
Insofar as 	the directed 	election order 	conflicts with this
determination, 	the directed election order was wrong and
constituted a 	"serious 	irregularity 	in the 	conduct 	of 	the
election."
PROPOSED 	ORDER
Based upon the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law and 	the 	entire record 	in this 	matter, 	the 	election objection
filed by 	the 	California 	State 	Safety Employees 	Council/California
State 	Peace Officers Association on the 	failure of 	the 	voter 	list
to 	contain the names 	of 	eligible 	seasonal 	lifeguards 	is
sustained. 	The omission of 	these 	eligible voters 	from the voter
list was 	sufficient 	to affect 	the 	election result 	and warrants
setting aside the election in case no. 	S-D-131-S. 	Accordingly,
the 	Sacramento 	Regional 	Director 	is 	ORDERED not 	to 	certify the
results 	of the election tallied on May 2, 	1991, 	and to conduct a
new 	election.
All 	other 	election objections 	and unfair practice 	case
S-CO-123-S, 	California 	State 	Safety 	Employees 	Council/California
State Peace Officers Association v. 	California Union of 	Safety
Employees, 	and companion PERB 	complaint are hereby DISMISSED.
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 	at 	the headquarters 	office 	in Sacramento within 	20
60

days 	of 	service of 	this 	Decision. 	In accordance with PERB
Regulations, 	the 	statement of 	exceptions 	should 	identify by page
citation or exhibit number the portions 	of 	the record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32300.) 	A document is considered 	"filed" when
actually received before 	the 	close 	of 	business 	(5:00 	p.m.) 	on the
last day 	set 	for 	filing 	".•. 	. o r when 	sent by telegraph 	or
certified 	or Express 	United 	States 	mail, 	postmarked not 	later
than the 	last day 	set 	for filing 	. . . " 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	Proc. 	sec. 	1013 shall apply.) 	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 of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
Dated: 	February 	14, 	1992
Ronald E. 	Blubaugh
Administrative Law Judge
61