capsfightingunioncaucus

Rank and File Scientists Demanding our Rights

PERB COMPLAINT: supplemental information to UPC SF-CO-60-S

Supplemental information for the PERB complaint Unfair Practice Charge SF-CO-60-S

1)      We argued previously that the violation of the bylaws as regards annual membership meetings has harmed myself and the membership but we did not elaborate on how this violation harmed the membership in its relationship with our employer.  We assert that denial of the mechanisms of democracy assured in the Bylaws of the organization is not only a theft of services (as the Bylaws are a contract with the member-we pay dues and expect the process in the Bylaws to be adhered to) but results in the organization failing to fairly represent not only this employee but the entire membership for a period extending back over ten years.  We also assert that this organization has disciplined this member for asserting his rights guaranteed under California Corporate Code (CCC), for running a campaign against the entrench self perpetuating board and the corporation which acts as the organizations agent, for filing a PERB complaint and for exposing the crimes against the membership to as many members as he could reach.

To Elaborate:

It is our contention that the denial of the right to the annual membership meeting prevented the membership from discussing, among itself, all the possibilities, the strategies and tactics the union could employ to win a fair contract.  As CCC guaranteed regular membership meetings and the Bylaws guaranteed Annual membership meetings have been denied us for over a decade,  as we have no internal venue for intra-membership communication, as our job sites are spread across the entire state and as Unit 10 and CAPS members work for numerous Branches of the State Government we have no other venue than the annual or regular meetings, to have a democratic discussion of the strategy and tactics we collectively want to utilize in negotiations with our employer.  This denial of our right to participate in the negotiation process is a direct violation of our right to fair representation and makes it impossible for the organizations leading bodies or their agents to fairly represent the employees in dealing with our employer.

CAPS argues that this violation of CCC and the violations of the Bylaws are an internal matter.   We must ask who in CAPS is making this argument?  Are they legally installed officers of the organization or are they a self perpetuating board which has usurped power from the membership by allowing the agents to misrepresent themselves as a law firm and convince members they have no rights in the CCC or the Bylaws to which they are obliged to abide?

Our contention is that without convening regular membership meetings as guaranteed by CCC and without convening the Annual Meetings, as described in the old Bylaws and the current Policy Manual (PM), the cabal of self perpetuating board members, under undue influence of the Blanning and Baker LLC (B&B), operate outside both the letter of the law and the intent of the Bylaws and thus are not legal representatives of our Rank and File and have no right to negotiate on our behalf.  Thus those negotiating for the membership can not fairly represent the employees in dealing with our employer.  Ultimately every contract signed by this team since one year after the last convocation of an Annual membership meeting (over ten years ago) has been signed by officers not installed under the Bylaws of the organization and should be found to be null and void.  The negotiation of Unit 10 contract by a negotiating team which is not legitimately installed as per CAPS Bylaws has harmed my and the memberships conditions of employment by negating our right to input into our negotiations via the Annual Membership meeting or the regular meeting. 

2)      In the response to our UPC it was stated “that CAPS has always elected its Board of Directors by mail ballot, which is the same manner in which it conducts all its business.  In the past, CAPS held an annual meeting of the members in conjunction with its organizational meeting of the Board following each Board’s election. It has discontinued this practice for approximately the past ten years.”

Yet according to the CAPS policy Manual Feb 2011 Page 18 of 31 Section V. B.2. States that “Elections are held in October of each odd numbered year, with new officers being installed at the corresponding Annual Meeting to be held in November (Revised  01/10/04).

Despite the use of the term Annual Meeting in the 2011 PM that term “Annual Meeting” has been written out of, and no longer appears in the 2011 revision of the CAPS bylaws.

At the November 2010 (non-binding) informational meeting held without quorum the charging party informed both the leadership, the agents of CAPS  and the assembled Rank and File that our right to an Annual Membership Meeting had been denied for  ten years and that without this right there is no place (other than a special meeting) in the Bylaws where members can exert their rights according to the 2007 Bylaws Article III Section 1 ( c) and in such a meeting transact business other than installation of officers.  To be more concise the Annual Membership and the Special meeting are the only venue provided by the laws or Bylaws guiding the organization for a member to put items on the agenda before the assembled membership (either in a room or a digitally enhanced meeting or in a letter) in the presence of a quorum thus empowered to make decisions for the organization.   

As CAPS has already told us they ceased to hold the Annual Membership meeting over 10 years ago.  And in following up on my notice, of this violation, both of the Bylaws and California Corporate Code, the board met in February 2011 and wrote any mention of the Annual Membership meeting out of the Bylaws but left its mention in the PM which was revised at the same time (I presume by mistake) practice as they tried to hide the members’ rights from the Rank and File.  They subsequently refused to notice the membership of the changes, not posting or distributing the new Bylaws or PM and not even mentioning the changes in the monthly newsletter.  This change left only one venue open and that venue was the Special Meeting which requires a petition of the membership to convene.  Yet as stated in the  UPC (we submitted on 9/20/2011) the refusal to allow the access to the membership list (with names and addresses as is our right detailed in CCC) CAPS leadership prevents its membership from accessing each other and accumulating the signatures to petition for a Special Meeting.  Thus all means to address the membership on questions of fair representation have been denied or curtailed to the extent that all such attempts are impossible.  As the members have been denied all remedy to the board and our agents denial of our rights to annual, regular and special meetings the organization’s leading bodies  has insulated itself from ever having to abide the democratic discussion and decision making process of the membership and has thus failed to allow itself the exposure necessary to fairly represent the employees in dealing with our employer.

We therefor assert that without a democratic discussion among the membership the negotiating committee and the organizations agents in Blanning and Baker LLC (B&B) were free to conduct negotiations on our behalf, impacting the conditions of our employ without any oversight by the membership because there was never any annual, regular or special meeting to discuss the content of the tentative agreement or the course of the negotiations, rather the vote on the Tentative Agreement (TA) was held by ballot (which would not be a major violation of democracy had a regular meeting been convened to discuss the TA before the membership, prior to the mailing of the ballots).  This failure of process has extended for a decade calling into question every contract signed by CAPS for the duration.

Furthermore the negotiations were held between parties who acted on behalf of a Governor with whom the agents of CAPS have a special relationship.  The agents of CAPS represent a number of other labor organizations.  On behalf of CAPS and these other organizations, B&B have delivered hundreds of thousands of dues payer’s dollars to the campaigns of the legislators and the Governor, who are our employer. 

The cozy relationship, greased with buckets of cash, between the CAPS negotiating team, the agents of CAPS and the politicians to whom the CAPS negotiators faced across the negotiating table, though not technically illegal, can only be held in check by democracy in the organization.  When the negotiators for the membership have just given the employer (the Governors campaign) tens of thousands of dollars one would have to be blind and ignorant not to conclude that these negotiators are not capable of fairly representing the employees in dealing with the employer.

On might say, “well that’s how government works”, but if we look not only at the act but at the result we have to wonder who it works for?  If it were possible to give money to a politician and get your way (as Halliburton does for example) you would expect a quid pro quo, we CAPS members could expect that the politicians would look upon our contract negotiations in light of the fat envelopes we passed on to them, but that would be illegal (even though it worked for Halliburton and they got the Halliburton exemption which protects them from litigation in fracking water contamination cases).  So if  quid pro quo is illegal what is the purpose of the fat envelopes which passed from the CAPS agents to the politicians they would soon sit across the negotiating table from? 

B&B (the CAPS agents’) parade around Sacramento with envelopes full of checks which they dole out to the political campaigns.  It should also be noted that Matt Austin CFO of B&B ran for office in San Francisco in the same political party to which the majority of the checks were doled out to.  And David Miller (currently President of CAPS) received fifteen thousand dollars from CAPS for his failed attempt to win a seat on the CALPERS board.  Thus the insiders in B&B and members on the Board use our dues to further their own personal ends (as was Miller’s case with his run for the CALPERS board) and so B&B can cozy up with the political elite in SF (as was the case with Matt Austin’s run for party representative in his home Marina district in).  When all the politicians are arrayed against state workers interests and our agents have a personal interest in not burning those bridges it is impossible to say they can fairly represent me or the members in negotiations with those they are ultimately playing footsie with!

Again there was nothing illegal (as far as I know or am claiming) about either of their campaigns, nor was the fact that CAPS gave money to Miller’s campaign without being consulted a crime, but it sets up a pattern of behavior where we see the board and the agents of CAPS treating the organization and its resources as their own personal fiefdom which they can draw upon with the votes of a handful of illegally installed officers and do not have to answer to the membership as they pursue their own political careers at our expense (both in dollars and in political influence).  In short the board and B&B can not be an objective negotiator sitting across from the table from those who they hand out checks to every election cycle unless the membership has a democratic venue with which to rein them in.

Who can deny that the corporation B&B gains clout be being able to deliver stacks of checks to politicians?  And again while it is not illegal we must consider that in the real world no one give thousands of dollars to anyone without expecting something in return (except CAPS members who shell it all over to B&B).  As the B&B and CAPS board had no reason to expect anything in return, in the way of better terms, from the incumbents to whom they contributed our dues dollars (in particular because all the candidates ran on a program of austerity and making the workers not the billionaires pay for the crisis), these players acted to assure their clout would be enhanced for their future political aims.  As we all know brushing shoulders with politicians does not win favor, but greasing the palm does.  So as we (CAPS membership) got nothing for all the grease we must ask what is the Quid pro Quo.  What did the $500,000 distributed in the last election cycle buy the likes of Matt Austin, Chris Voight and David Miller?   Because it brought the membership of CAPS nothing but a rotten contract full of give backs and empty coffers.  Ultimately with democracy denied the negotiators and the agents of CAPS signed a TA with the Governor’s representative which was substantially the same as the one rejected by the membership in (non binding) straw polls conducted across the state in the summer of 2010.

We therefore assert that the CAPS leadership (illegally installed for lack of annual membership meetings) and the CAPS agents denied fair representation to the membership and negotiated in bad faith (they gave our money to the boss of the CAPS opponent across the negotiating table).  By putting more value in their relationship with the politicians, than in the rights of the members, whose dollars they liberally distributed to the politicians, we assert that these crooks and illegally seated board members harmed our conditions of employ accepting the conditions of those whom they helped put in office rather than fighting for the wishes of the membership.

Thus due to the theft of the membership’s right to meet annually for 10 years, due to the denial of the right to access the membership and convene a special meeting, and the subsequent censoring of candidates campaign statements the rank and file has been harmed in its relationship with our employer.   As demonstrated we collectively believed and demonstrated, in straw polls in 2010, that we could achieve a better deal than that which was finally agreed upon.   Without the right to internal discussion, without the annual meeting, without a venue to organize, under the pressure of ongoing furloughs (which our co-workers in SEIU had gotten out from under) the membership became demoralized, and accepted the recommendation of the negotiating team six months after the SEIU had signed their contract.

Due to the inability of CAPS members to chart our own course, we were not able to demand and fight for our rights and found ourselves on furlough for six months longer than the SEIU workers.  As has been argued by CAPS since the furloughs commenced much of our work is funded from outside sources and not the General Fund our placement on the furloughs was and remains illegal yet the leadership and B&B refuse to fight; rather they drained the memberships patience, drained by bank books with hopeless lawsuits and refused the members their right to convene a meeting an chart a new course.  And as CAPS did not accept or press to accept the SEIU master contract when it was reached in the summer of 2010 (due to our straw poll) the refusal to reimburse our lost time by the new Governor was both vindictive and grandstanding which did not save the tax payers of CA a single dime.  Thus the membership lost an additional 18 days of pay (beyond what SEIU workers lost) as our furloughs continued during the period we did not have a contract.  And as we ultimately accepted a contract with ongoing Personal Leave Days (in lieu of furlough) we lost another 12 days of pay.  Had we the freedom to hold our negotiating team in check, to conduct business at regular and annual membership meetings we could have organized the membership to take another course which may have lead to another outcome.  With that right denied we will never know if an alternate course would have been chosen or would have had alternate results but we would have had the opportunity to choose and that is what freedom and democracy is about.

3)      As it became apparent to me that the CAPS leadership and the B&B profiteers had locked democracy out of the organization I came to the conclusion that the only mechanism left to assert democracy was to run for office with the hope that the electoral process would allow us to address the membership as regards the strategic, tactical and organizational shortcomings of the organization. In our original UPC we outlined how our statements were censored by the election committee and how we were denied any reasonable access to the membership to explain our viewpoint.

Without free and fair elections the membership is denied its right to choose its own course of action as regards the upcoming negotiations in 2013.  The new board will serve as or pick the negotiating committee for the next round of negotiations and as such the only input the membership has into those negotiations are in choosing those who will serve as their representatives during the interim.  As the next negotiations will effect our terms of employ and as the election (last October) choose the team which will go into those negotiations and as that election was held in an undemocratic manner the members relationship with their employers is effected.  We do not have a team that was chosen democratically, nor do we have any venue to influence that team by asserting the collective voice of the membership.

4)      In an attempt to assert my rights (as outlined in the original UPC) and guaranteed by CCC,  I took action to gain access to the membership by requesting the membership list.  First I asked for it, then I noticed the CAPS staff that I would come to the office for it, then I went to the office only to be hit in the chest by Matt Austin when he unlocked the door to the union office and challenged with the question “what are you doing here”.  To which I stated I am here for the list.  Moments later Austin said oh Mr. Rachlis come in.  At which point I realized Matt Austin had hit at which point I shouted at him “Hey expletive you expletive hit me.”  After a series of back and forth Austin got up in my faces and sneered, “Listen Buster you don’t know who you’re messing with!”  Soon after I was escorted out of the office under threat of arrest still without access to the list.  And within a week I found Austin had placed a restraining order on me preventing me from coming to the union office.  His charge against me was harassment, and when he tried to have the restraining order extended for three years the judge in the superior court rejected his claim and all his assertions and testimony.  But before the ink was dry on the court decision. Candidate for President David Miller (and then board member) drew up charges against me and Giorgio Cosentino (my slate mate in our campaign) which would ultimately see me expelled from CAPS.

In a clear act of retribution, for exposing the current cabal running the organization, Miller used the very same testimony and charges which the San Francisco Superior Court judge rejected, to assert that I had hit Matt Austin and not visa versa.  The CAPS’ Membership Disciplinary Review Committee (MDRC) accepted Austin’s testimony ultimately giving the profit taking CFO of B&B LLC the benefit of a doubt over the testimony of a rank and file dues payer. 

It was further charged that I had undertaken a decertification effort against CAPS; which is, according to the PM against the CAPS rules.  I objected to these charges with six arguments:

 1) First I argued that no Just Cause existed to charge me with anything in the PM because the policy manual is not readily available to the membership and;

 2) that I requested the PM both on phone and in writing prior to and during the election campaign and that I was not given a copy of the PM until the date of the ballot count about a month after the charges against me were drawn up and two months prior to my notification of those charges, and;

3) that the document submitted into evidence (to prove I called for decertification) did not launch a campaign for or advocate decertification it merely asked the rhetorical question, in a general manner, “Is it time to decertify the State public workers unions?” The leaflet asserted that we needed to have one big union to stand strong in our fight for a fair contract.  No where could the accusers point to any statement calling on workers to decertify CAPS, to sign a petition to decertify CAPS, to join a committee to decertify CAPS, and:

4) I objected to the inclusion of the leaflet in the charges as it was over a year old and charges need to be brought within six weeks of the alleged violation as per the Policy Manual Section K. 6.a. and;

5) the charges against me were written and delivered to the MDRC in Mid September (the 19th  I believe) but the charges were not delivered to my address until December 24th a full three months after they were delivered to the committee.  This delaying tactic was in violation of PM K.6.f. which states: “This hearing shall be in person, or by conference call, or a combination of each, to begin within 30 days of the Committees receipt of charge(s).  The Committee, after hearing, shall make a determination whether the charges are valid and if so whether the charged party should be issued a written admonition, suspended from membership for a finite period of time or dismissed from membership.” When I objected to the delay of three months the MDRC cited the elections as reason for the delay although no statute of the PM points to reasons for such a delay.

6) I demanded that members of the MDRC , who were my opponents in the campaign (the ex-president now vice-president Patty Valez ) and who had been recipients of the April 2010 email from Matt Austin (and who did not admonish him at the time), recuse themselves or be challenged for cause.  Those members of the MDRC refused to recuse themselves and when I challenged them for cause as per PM K.6.e. the rest of the MDRC voted to retain them on the committee thus the die was caste and the accused were terminated.

They further cited a statement made and later withdrawn by another candidate,Mr. Cosentino, which was posted on our campaign blog which did call for decertification and based on its placement on our blog claimed that I was responsible for another person’s statement because we were on a slate together.  When asked why the third candidate on the slate was not charged as well (as his statement was also on the blog) the accusers claimed it was their choice who to expel and who not to expel.

This selective and prejudicial behavior goes directly to the point, made in the UPC  that the minds of the board had been poisoned against me and Mr. Cosentino by Matt Austin, where I cited (and delivered to PERB in the UPC) his e-mail  of April 2010 in which he claimed that I was  in the shadows manipulating Mr. Cosentino.  Members of the CAPS MDRC who adjudicated my expulsion were recipients of the Austin letter which poisoned my reputation and shows a pattern of collusion between the ex-president (now vice president who presided over the MDRC and other on the board) and their lack of objectivity that has been compromised over a long period of time during which they take the guidance of and accept the viewpoint of the profit takers of B&B over the testimony (submitted under penalty of perjury to the superior court)of this dues payers.

As I did not hit Matt Austin, as I did not launch a campaign to decertify CAPS, as the claim that my campaign statement appeared on a blog with the statement of another was prejudicially applied to me and not to our slates Presidential candidate, there can only be one reason why I was expelled from CAPS and why Giorgio Cosentino was suspended and that reason is we polled 25% of the voting membership as two unknowns running against a slate of recycled incumbents after being extremely vocal in exposing their crimes against the membership, their lack of a winning strategy and tactics and their inability to prepare the organization for the upcoming negotiations.

This expulsion puts me and the entire membership at a disadvantage in our relationship with our employer.  1) For me I have no venue for input into the direction of the upcoming negotiations.  2) I can not attend the (totally inadequate) informational meetings (which are rarely if ever held) and which are the only place one can count on meeting the interested Unit 10 members assembled.  I am therefore denied a way to prepare a united strategy and tactics with my co-workers to achieve a fair contract with my employer.  Without this right I am subject to the decisions reached without my input (as my right to speak to the membership and vote on the contract will be denied) and decisions that affect me will continue to be made without my participation.  3) As for the class of all CAPS members my expulsion and the suspension of Mr. Cosentino serves as a warning to all members to shut up, not to step out of line, not to run for office, not to demand ones rights under CCC or the Bylaws, not to oppose their cozy relationship with the politicians whom our dues flow to even while they negotiate against us.  .

If PERB exists to defend workers rights they will nullify the CAPS election, reinstate my membership and the membership of Mr. Cosentino, and assure that a fair election be held where-in the candidate have access to the membership as per CCC and their statements are not censored.

Charles Rachlis 2/27/2012

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March 19, 2012 Posted by | PERB Unfair Practice Charge | , , , , , , , , | Leave a comment