capsfightingunioncaucus

Rank and File Scientists Demanding our Rights

CAPS BOARD INSTALLATION-IN VIOLATION OF P&P & CCC

From: Rachlis, Charles

Sent: Mon 10/31/2011 4:26 PM
To: CAPS
Subject: NOTICE: CAPS operating in violation of 2011 Policy Manual

NOTICE TO CAPS BOARD:

YOU ARE OPPERATING IN VIOLATION OF THE POLICY AND PROCEDURES FOR CAPS.  THE BYLAWS CHANGE OF FEBRUARY 2011 WAS MADE ILLEGALLY AND THE CURRENT MOU WAS SIGNED BY OFFICERS NOT DULY INSTALLED AS PER BYLAWS AND CAPS CURRENT POLICY.  CONTINUATION OF THESE VIOLATIONS ARE CRIMES AGAINST THE MEMBERSHIP AND HAVE RESULTED IN THEFT OF SERVICES AND RACKETEERING.

I have discovered that the installation of officers planned for this Saturday will be done in violation of the 2011 Policy and Procedures for CAPS.

Page 18 of the CAPS Policy manual dated February 2011. Section V. MISCELLANEOUS, B.ELECTIONS 2. States:  “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).

This is a continuation of the long term violation of the Bylaws  which  (until February 2011) required both an Annual Membership meeting and that the officers will be installed at that meeting.  This required Annual meeting has not been held in over 10 years.  When I brought this to the attention of the Board last November the board did not respond to me directly.  You seemingly ignored my complaint that the sitting board was sitting illegally but then you did go ahead and change the bylaws in February 2011 to abolish the Annual Membership meeting.

But the staff did not closely cross check the Policy Manual which supplements the bylaws and guides the organization.  If they had, they would have had to hide the evidence of past democratic practices by changing  Policy Manual Section V.B.2.  but they did not.  Therefore this planned installation meeting Saturday next will commit acts against the intention of the Policy Manual and in violation of the old bylaws.

In the same vain the new bylaws (passed in February 2011) were put in place by a board which was (as were the last 5 boards) illegally installed.  In fact the MOU itself is an illegal document because it was signed by officers who were installed illegally in violation of the bylaws.  This is the consequence of ignoring the bylaws and trying to hide the member’s rights from the membership.  The entire edifice upon which CAPS is governed collapses in a sea of violations of CAPS bylaws, and policies.  Even if CAPS’ overseers at B&B caught Policy V.B.2. and changed it the organization would still be in violation of California Corporate Code which requires that Regular Meetings be held at a set time and place, not at a time and place to be set by the board as is written the new 2011 (illegally drafted, passed and implemented) Bylaws.

Charles Rachlis

November 1, 2011 Posted by | CAPS BYLAWS ISSUES, CAPS election 2011, CAPS HISTORY | , , , , , | Leave a comment

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

September 22, 2011 Posted by | CAPS BYLAWS ISSUES | , , , , , , , , | Leave a comment

REPORT ON CAPS INFORMAL MEETING NOV 8 2010 at DTSC

REPORT ON CAPS MEETING OF NOVEMEBER 8, 2010 at DTSC

I just attended the CAPS meeting at DTSC. I distributed the attached document to the members and got one “thank you” for speaking up as I left the building.

Highlights:

1)       We won the holidays that were stolen…it sounded like we are supposed to get 20 hours per day stolen but we were not told if that would come as cash, CTO or what other format. This case was won in front of  Judge Tim Folly of superior court.

2)       The room was polled after a presentation of the SEIU agreement to ask if we will agree to a similar agreement. The room was unanimous in their rejection of the SEIU agreement as a basis for our negotiation.

3)       Regarding continuing furlough we are going back to court arguing that as they are applied now they are unequal, unfair and possibly illegal.  This case will be heard by Judge Brick who was favorable before.

4)       Salary parity case progressing to final oral arguments this is only for supervisors and a similar case could not be made for the rank and file, we are told, because the law is written that way.

The meeting commenced Matt Austin introduced the board members and Chris Voight.  In attendance were John Budroe (at large rep), Valarie Brown (VP) , David Miller  and Chris Rodgers .

Valarie Brown started speaking and asked if there were site representatives in the room.  None were identified.

She then said she was going to review the SEIU contract to ask for our opinion.

At this point I intervened calling for the orders of the day.  Which is how, according to Robert’s Rule of Order, you ask for the agenda.  She said this was the agenda. I said I had not been provided an agenda and she said she would read the agenda after presenting the SEIU contract….I was dismissed after noting that the By Laws calls for meetings to run under Robert’s Rules and that we need an agenda and a chairperson otherwise the membership does not know how and when to raise issues and participate.  I was dismissed without objection.

The membership as noted rejected the SEIU contract as a basis for our negotiations.  Then one member (Marty) asked that we ask the new governor to make the rescission of the furlough his first act. The leadership then explained all the reasons Jerry can’t do that because he is accused of being in the pockets of the unions etc…and then they went on and explained this will probably take months.

Based on Marty opening a discussion of strategy and tactics I entered the discussion with the first motion on the leaflet.  After explaining that we needed to consider other strategy I made the motion: “Whereas a one hour annual meeting is not sufficient to address the strategy and tactics of our union in the fight for a fair contract; therefore, be it resolved that it is the decision of this meeting that the board convene a state wide convention of CAPS in mid January.”

As there was no real chairperson and no procedure and the membership was not responding I explained that a motion was on the floor and that it needed to be seconded or it would be dropped…  Marty seconded the motion but said the meeting should did not have to be in January and made the point that a convention could get us press.

Then the leadership all explained how we didn’t need a demonstration to get press and that we had plenty of opportunity to meet and discuss and that the board meetings are open and no one ever shows up and that it is expensive to have meetings all over the state and the members are complaining about how many doughnuts the board buys already.    Then the discussion got tangential and the motion got covered by other inquiry,  I mentioned again that there was a motion on the floor, but did not press for a vote.  Mat Austin tried to assuage Marty saying, “Marty if you feel you need another meeting just call me and we will set up a meeting you… can do that any time.”

I stood for a point of inquiry and asked if this was the Annual meeting. I  had presumed from the notice of the meeting that it was the annual meeting which was proscribed by the By-Laws Article III Section I.  Much to my amusement I was told by David Miller that the annual meeting is a board meeting to install officers and directors.

After a few moments I spoke to a point of clarification  during which I read the actual section of By-Laws to the meeting David Miller told-us that no one wants to know what’s in the by laws.

They clearly state:  Article III Meetings of Members  Section 1- Annual Meetings of members  (a) An annual meeting of the 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.

Based on point (c) I was hoping we could transact other business such as calling for a State wide convention to discuss strategy and tactics etc.  But it turns out that this set of meetings are called site meetings and are not the Annual meeting which are called for in the By-laws.

My next point of inquiry was if this was not the annual meeting when is the annual meeting.  When was the last annual meeting?  None of these questions could be answered because they are not following the By-Laws.   There have not been annual meetings of the membership as described in the By Laws and board member (David Miller) actually thinks that their meetings replace the right of the membership to have its meetings to “transact other business”.  There is no mechanism for the membership to fully participate in and make this a democratic union in the By-Laws other than the Annual Meeting provision and that is not sufficient.

Bottom line according to the board these site meetings are not any more than informational meetings and you the members have no input into the day to day, week by week direction of the organization other than to vote for the board and answer when a straw poll is floated (such as was done at the beginning of the meeting).

The board presented no minutes of the last meeting or of the meeting of the board from this week end, no financial report  was presented to the review of the membership, none of the normal organizational information that is part of tens of thousands of union meetings across the country every month were presented.  This is how Blanning and Baker with an obsequious board control the union and keep our membership quiet, demoralized and stuck on the dead end strategy of depending on the courts and politicians instead of building a strong fighting union based on solidarity, unity and action.

As we approach the next site meetings, next week,  members should consider:

Do we want a mechanism to participate and make decisions in our union?  Do we even think that we had to have a real democratic union meeting where the membership can advance its viewpoints and reach decisions or do we think the board and Blanning and Baker should be the decision makers?  Presently there is no mechanism for the membership to seriously discuss strategy and tactics and through democratic discussion make decisions about the direction of the organization.  Only you can change this!

Charles Rachlis

Associate Industrial Hygienist/

September 2, 2011 Posted by | CAPS BYLAWS ISSUES | , , , , | Leave a comment