capsfightingunioncaucus

Rank and File Scientists Demanding our Rights

PERB COMPLAINT AGAINST CAPS

September 20, 2011

TO:PERB

COMPLAINT ATTACHMENT

  1. Failure of California Association of Professional Scientist’s (CAPS) leadership to fairly represent the class of UNIT 10 employee in dealings with our employer, the State of California is the basis for this complaint .  Fair representation must be based on rigorous adherence to mechanisms which provide for the union membership to guide and inform the leadership and negotiating committee so that their actions truly reflect the memberships’ preferences.  Bylaws are enacted to guide organizations and in part to assure that the intention of the membership is reflected in the decisions of the leadership, particularity in negotiations and in pursing grievances.  Democracy is therefore a guiding principle of union bylaws and policies and should therefore assure the membership’s right to put items of concern to the membership on the agenda of regular membership meetings in order to set the strategy and tactics the union will take in its dealing with the employer.  Without a mechanism for democratic discussions and due to long term disregard for bylaws mandated annual membership meetings the membership of CAPS has no mechanism to ensure the leadership fairly represents the membership in all matters from contract negotiations though the filing of grievances .  In the case of CAPS a long term disregard of the bylaws mandated annual membership meeting and disregard for the California Corporate Codes which provide the legal framework for Mutual Benefit Non-Profit Corporations has left the membership with out a mechanism to assure fair representation in dealings with our employer.  All mechanisms for internal review of this issue are shut down as members have not had the bylaws mandated annual membership meeting for ten years.  It is therefore incumbent upon PERB to consider the laws and bylaws which are being violated. Even assuming PERB accepts the argument that such violations are not addressed by the Dills act directly, they certainly violate the spirit and intent of the Dills Act, which is to ensure fairness for all parties in matters relating to collective bargaining by State employees.  Having seen that many of the PERB complaints by workers against their unions have been rejected by PERB with the admonition that they are internal issues, that should be addressed through internal mechanisms, does not apply in this case as that the CAPS leadership, under the direction of its agent Blanning and Baker LLC, has for years disregarded and has thus made null and void all internal mechanisms for workers to have democratic recourse, as outlined in this complaint.
  2. Violation of CCC 8330-8338(e).  In attempt to reach the membership of our union for the upcoming (October 3rd 2011) election, both myself and another candidate initiated a series of requests to examine and copy or obtain the membership list (as defined at CCC 8338(e)) so that we could mail or e-mail the membership with our campaign materials.  In a letter from CAPS counsel Gerald James dated August 31st   (Exhibit #1a & 1b) in which he quoted the California Association of Professional Scientists (CAPS) Memorandum of Understanding (MOU) with the State of California which “requires CAPS to maintain address confidentiality of home addresses…”.  I was told that I would not receive a membership mailing list but that I would have the same opportunity as all other candidates to reach the membership with campaign material.  I was told: “The existing process by which candidates can communicate with members regarding their candidacy very reasonably balances candidates’ interest in communication, members’ interest in receiving information related to the election, members’ interest in maintaining the privacy of their personal information, and the CAPS obligations under the MOU with the State.”  I was subsequently sent a list of members’ names which included the department but not the site at which members work and their job title.  However I was not provided home addresses or phone numbers as required in CCC 8330-8338.  Subsequently I noticed CAPS president of their violation of CCC 8338 and suggested a compromise which would protect the members privacy rights.  I suggested that I be provided the members work e-mail addresses or their work mail stop.  This request has, to date been ignored.  The Dills Act section 3509 (g) does not countenance violation of CCC 8330-8338, as was done by CAPS consul Gerald James’ reference to the MOU between CAPS and the State.  This denial of access to the membership has further implications than just the elections.  As there has not been a membership meeting in ten years we would like to petition the membership, as is our right (see attached 2011 CAPS bylaws  Article III Section 2 (a) Exhibit  #  2) in order to convene a regular membership meeting.  However the Executive director denies emphatically that this provision of the bylaws was ever intended to be operational as evidenced in attached emails from Chris Voight to Giorgio Cosentino (Exhibit # 3a&3b read oldest e-mail at bottom of exhibit 3b first as e-mail threads are in reverse chronological order).
  3. Suppression of freedom of speech and a pattern of denial of membership access to our fellow union members to carry out union business.  As was explained in point #2 above, candidates are to be afforded access to the membership by the organizations distribution of one 8.5”x11” sheet of campaign material.  I submitted my campaign statement to the election committee which then returned it in redacted form claiming that the election committee had determined that portions of my statements were defamatory and do not comply with CAPS election rules.  In examination of the CAPS election rules we observe that justification given for the practice of campaign censorship is based a bogus interpretation of  Corporation Code Section 7525.  The bylaws states, “…Pursuant to Corporations Code Section 7525, CAPS will not publish or distribute any campaign statement which may expose CAPS, its agents, officers, or directors to liability for material contained in said statement.  Also CAPS will not publish or distribute any campaign statement that is, in the opinion of its legal counsel defamatory, obscene, or profane.”  However CCC 7525(b) states that “…(b)Neither the corporation, nor its agents, officers, directors, or employees, may be held criminally liable, liable for any negligence (active or passive) or otherwise liable for damages to any person on account of any material which is supplied by a nominee for director and which it mails or publishes in procedures intended to comply with Section 7520 or pursuant to Section 7523 or 7524 but the nominee on whose behalf such material was published or mailed shall be liable and shall indemnify and hold the corporation, its agents, officers, directors, and employees and each of them harmless from all demands, costs, including reasonable legal fees and expenses, claims, damages and causes of action arising out of such material or any such mailing or publication.”  This indicates that CAPS cannot be held liable for distribution of candidates statements.  CAPS censored my and my two co-candidates statements claiming we made defamatory statements but that claim is only the opinion of the ostensibly independent election committee counsel.  I responded to the notice of censorship by explaining that according to the 2009 Black’s Law dictionary, which defines defamation, that none of my redacted statements meet those definitions.   See attached letter to Ms. Mason (exhibit # 4a -4e) in which I showed that the election committee had not proved that my campaign statement defamed our organization or any CAPS members or staff.  In the spirit of compromise  in this exhibit I suggested minor revisions I could make and live with.  This compromise was rejected by the election committee.  The censored statement which does not fully convey my message is now scheduled to be sent to the membership on October 3rd.  This censorship hides significant information from the membership under a phony guise of defamation and is a violation of the memberships freedom of speech.
  4. I sugget the following reference to the decision of the PERB in Case No. LA-DP-333-E to be germane to our current situation.

http://www.perb.ca.gov/decisionbank/pdfs/A310E.pdf

  • “The campaign flyer on CSEA letterhead which urges employees to vote for CSEA “to ensure that the Tentative Agreement will be implemented” does not rise to the level of a misrepresentation under the Pasadena standard. (See also Santa Clara Unified School District(1993) PERB Order No. Ad-244.) There is no evidence of fraud but rather an opinion as to what might happen if CSEA does not win the election. This election flyer does render an employee unable to ascertain the truth.” P.12
  • Violation of members’ rights as per Dills Act Section 3519.5(b).  It is unlawful to, “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” In an e-mail exchange between Blanning and Baker CFO Matt Austin (agent for CAPS) and Chris Voight, executive director of CAPS, Lisa Crvarich counsel for Blanning and Baker and CAPS president Patty Valdez, dated April 5th 2010 prejudicial statement was made about Charles Rachlis which create a discriminatory attitude toward myself by defaming my person and negating the fiduciary responsibility of staff to maintain objectivity toward the members.  Without objectivity a member can not be represented fairly by their agent.  (See Exhibit # 5)
  • Violation of CCC 7510-7517: Failure to hold regular meeting of the members for ten years.  This violation discriminates against memberships’ right to the annual membership meeting and suppresses members freedom of speech.

The old 2007 bylaws (see attached exhibit # 6) in ARTICLE III  Section 1 Annual Meeting of Members paragraph (a) An annual meeting of members shall be held. (b) The purpose of the annual meeting of the members shall be to install Officers and Directors.  (c) Association business other than the installation of Officers and Directors may be transacted.

When I found out that there has not been an annual membership meeting in ten years and brought it to the attention of the board that all their actions, including distribution of funds, signing of contracts etc. have been done by persons not duly installed as officers, and that denial of the members right to the bylaws mandated meeting was a breach of contract by the organization to the members and a breach of fiduciary responsibility of the agent (Blanning and Baker LLC) to the members, the board decided to do something about it.  They decided to bury it.  At the board meeting in February 2011, they amended the bylaws and as yet have not noticed the membership of the change nor have they posted the bylaws at the web site.

The 2011 amendment to the bylaws wrote the right to an annual membership meeting out of the bylaws altogether in an attempt to codify their long term undemocratic and illegal denial of the memberships right to membership meetings.

The new bylaws passed by the current board reads:

ARTICLE III MEETINGS OF MEMBERS.  Section 1-Regular Meetings of Members  (Exhibit # 2)

(a)           Regular meetings of the members may be held at times determined by the Board. (Revised 02/12/2011)

(b)           The purpose of the regular meeting of the members shall be to transact any business which may be brought before the meeting. (Revised 02/12/11)

So what they did here was make the regular membership meeting the prerogative of the board and they displaced the installation of the Officers and Directors to another section of the bylaws to make a fait accompli of a ten year reign of uninstalled Officers and Directors conducting the members business.  The only other place in the bylaws where the task of installation of officers could possibly be construed as legitimate  is ARITICLE 6 POWERS OF THE BOARD  Section 2-General Authority of the Board paragraph (a) All Association powers shall be exercised by, or under the authority of the Board. The business and affairs of the Association shall be controlled by the board.

But Corporation Code 7510(b) states: “A regular meeting of members shall be held on a date 
and time, and with the frequency stated in or fixed in accordance with the bylaws, but 
in any event in each year in which directors are to be elected at that meeting for the 
purpose of conducting such election, and to transact any other proper business which may 
be brought before the meeting.”

This new 2011 bylaws amendments is in contradiction to 7510(b)) is that a regular meeting shall be held, not as the  bylaws amended clause states,  “may be held   upon statement of time and place by the board.”  Rather a regular meeting must be held as per CCC 7510, with a stated frequency stated in or fixed in accordance with the bylaws.

STATEMENT OF REMEDY SOUGHT:

1)    Require that CAPS publish candidates statements as they are written as there is no liability to CAPS for the statements of candidates.

2)    Provide a mechanism to abide CCC 8330-8338 so that candidates can send as much informational and campaign material to members as they may desire and so that members can petition the membership. Either by distribution of mailing list, mailing labels, restricted privacy protected application of mailing labels to candidates material as is done by other organizations concerned with privacy, or distribute work e-mail addresses in an Exel/spread sheet format.

3)    Direct CAPS to hold Annual membership meetings in order to convene the body of the whole and to provide members a mechanism to address concerns of the organization.

4)    Stay the current election (scheduled for October 3rd 2011) until mechanisms put in place to assure distribution of candidates entire statements a access to membership addresses (as stated before with respect to privacy) has been administered.

Submitted Respectfully,

Charles Rachlis

CAPS member  Candidate for Vice President

THE EXHIBITS THAT GO WITH THIS COMPLAINT ARE IN PDF FORMAT AND WILL BE SENT TO ANYONE WHO REQUESTS THEM FROM capsfightingunioncaucs@gmail.com

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September 22, 2011 - Posted by | CAPS BYLAWS ISSUES | , , , , , , , ,

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