capsfightingunioncaucus

Rank and File Scientists Demanding our Rights

CAPS PRESIDENT DAVID MILLERS DECLARES MEMBERSHIP MEETINGS RIDICULOUS

CAPS PRESIDENT DAVID MILLERS DECLARES MEMBERSHIP MEETINGS RIDICULOUS

On January 9th, 2014,  during the hearing at PERB in case # SACO 4645, CAPS President David Miller was asked why the organization’s Bylaws and Policy Manual were changed in 2011 and why they had been disregarded for over a decade.  President Miller explained the changes were made to make the document clearer.  When pressed on what clarity the board was trying to arrive at, Miller explained that it was “ridiculous” to hold regular annual membership meetings.  He explained that member’s concerns could be freely addressed to the board at the quarterly executive board meetings in person, in writing, or via a district representative.

What Miller was not able to escape from is the fact that, ridiculous or not, the current leadership of CAPS in collusion with and under the advice of the executive director (Blanning and Baker LLC) and legal counsel (Gerald James) have, for years, denied the membership regular and annual meetings, which have been required by the CAPS Bylaw, the CAPS Policy Manual and the California Corporate Code (CCC).  In fact, a careful reading of the revised 2011 bylaws and policy manual reveals that regular membership meetings  are still required (which conforms with the CCC, although annual meetings were erased from the Bylaws and Policy Manual in February 2011.)   The requirement for regular membership meetings in the CCC indicates 15 months as the first of regular intervals for “regular membership meetings.”

Were it not for the long term inability of the CAPS leadership and CAPS agents to protect Unit 10 members’ salaries from the consequences of compounded inflation vs. years with no cost of living adjustments, members would hardly be concerned with how CAPS is run.  But today, two weeks before negotiations open, Unit 10 rank and file members are expressing their lack of confidence in the CAPS leadership and the CAPS agents and legal team. Workers, long denied regular membership meetings, are booking rooms and meeting on their own without the leadership.  Workers have initiated letter writing and petition campaigns: workers have openly discussed decertification, rescission, and severance as options.  Workers are no longer waiting for CAPS to act; they are beginning to act on their own.  This is a promising sign.  It will take the democratic participation of the rank and file to sweep away the dead wood and build an organization that can win the workers’ demands in negotiations.   If that organization will be CAPS or a new formation is truly in the hands of the current leadership.  As of now workers do not see CAPS as a worker’s organization.  Indeed, one 28-year CAPS member wrote us saying, “we need a union to protect us from the union!”

If the leadership continues to play footsie with the Democratic Party (and in cases with the Republicans), giving gobs of our dues dollars to the candidates, the lobbyists and the lawyers while neglecting to build rank and file organization and democracy, the consequent  defeat (in the upcoming negotiations) will drive Unit 10 members to seek alternatives and other organizational  affiliations.

To turn the situation around, CAPS must convene immediate emergency membership meetings at all campuses, form up action committees at each  section and unit where Unit 10 members work and prepare united job actions to impress on HR how serious our members are.   Without the serious threat of job actions by the membership our negotiators look like beggars with their hands out, rather than our true advocates convinced of the resolve of the membership and prepared to exert our collective strength.

January 9th the Governor released his proposed budget and there were no raises for the Unit 10 rank and file indicated.  Supervisors, on the other hand, found some indication that their pay parity concerns would be met.   For the rank and file to win it requires that we act now to assure that the CAPS negotiators do not come back to us with a Tentative Agreement equivalent to the SEIU 1000 concessionary contract that gained only 1.6% per year, and which does not cover the losses to pension and medical insurance premium increases, and will leave many workers with smaller checks than before the furloughs started 4 years ago.

Membership meetings are not ridiculous!  Membership meetings are where members chart their course, develop strategy and organize the membership for action.  What is ridiculous is the long-term failed strategy of the CAPS leadership, which has resulted in most Unit 10 members being 30% behind their peers in municipal employment and private industries.  What is ridiculous is to think that a board that sequesters itself out of sight of the membership for decades, which demobilizes the membership, denies the members their rights, and is oblivious to the fact that most members hate the organization, can win us our long overdue pay parity.

Rachlis went to PERB not only to get the second illegal expulsion expunged, but to learn from CAPS President David Miller the true belief of the current leadership-that worker’s democracy-that holding regular membership meetings is “ridiculous”!

But if history is a guide playing footsie with the politicians will not win our demands; it will take a rank and file upsurge to win!  Time is working against us but if CAPS acts now it could convene membership meetings at every job site next week and have informational pickets and press conferences across the state immediately in preparation for the negotiations.    For Unit 10 to win pay parity the rank and file must run the organization themselves!

January 11, 2014 Posted by | CAPS 2013 Contract negotiations | , , , , , , , , | Leave a comment

CAPS DOG AND PONY SHOW COMES TO CDPH: OLD SONG AND DANCE DOES NOT CUT IT WITH THE MEMBERS!

In a sadly comic rendition of “We’ve got plenty of nothing” sung in three part harmony by the CAPS leadership, President David Miller sang back up for  Blanning and Baker LLC. Partners (and CAPS Agents) Chris Voight and Matt Austin.  They put on the old song and dance for a weakly attended (less than 10% of membership) pre-contract negotiations informational meeting in Richmond at the CDPH auditorium on June 4th.

We will ponder the reasons for the weak attendance and offer a strategy for how State Scientists can gain pay parity, advancement opportunity, stable pensions and regular COLA’s after considering the strategy and tactics the President and the highly experienced Blanning and Baker team had to offer.

After telling us what we already know: our pay and benefits are 30% behind both local county and city benchmarks, that the 3% “won” in the last contract barely offset the pension give back, they acknowledged that this years’ negotiations are all about the money; that we’ve been waiting for a long time, that we “shared the pain”, that we’ve done more than our share for this governor and then Voight lamented that we have a stingy governor .

The following refrain was played over and again to a dwindling audience: You can help!  Yes you can! Go to your managers, tell them to write the need for salary pay parity into the strategic plan, that is the only way it will go up through the chain of command of the state executive across to the legislative and create receptivity at the negotiating table.

They then referred to sympathetic Branch Chiefs like Barbara Materna who favor pay parity, admonishing the membership to be proactive and shoot this concept up the chain of command.  This ignores the fact that many at the level above the Rank and File are Unit 10 supervisors*, many of whom are voluntary CAPS dues payers and should have been pushing this up the chain of command, according to the Blanning and Baker theory, for over a decade now.  Additionally, if this is the strategy of the CAPS leadership they wouldn’t just drop it haphazardly at an informational meeting.  They are not serious about this kind of campaign because if they were, they would be writing and calling the membership about it, they would provide informational packages to create template letters and petitions and provide a structure to run the campaign, either on paper or online, creating a record of the struggle for pay parity.  But they are not serious.  They threw this sop out because they have nothing else to offer.  With this game plan the blame for the failure is assigned to the membership.

Their big negotiating ploy is to bring a young new employee to tell HR that he cannot afford to work for the State and if they do not fix the pay structure they will not be able to retain him.  Blanning and Baker base this strategy on the false premise that HR cares if the departments fall apart.  HR does not care; HR already knows.  The Governor has drawn the line.  Unions and programs that serve the people are on the chopping block.  He is committed to imposing austerity at the expense of the state workers and the public who depend on state services.  He will not be swayed by logic, mutual benefit schemes, or pleas from the underpaid.  There is only one tool workers have which can win back what we lost and that is the All Public Workers Strike.  To win, labor must also strike out independently of the bosses’ politicians and political parties, be they Democrats or Republicans and only run our own candidates in a workers party.

CAPS members were solicited to send any relevant Pay Parity information (ads for comparable jobs) to the negotiating team.

As benchmarks have been established for years, and considering that Blanning and Baker have staff already doing nothing for us, why don’t they run the Google searches for new employment and benchmark information?  All this was a poorly presented song and dance obligatorily delivered without any pretense that CAPS (as organized today) can win!

What they did not mention was:  that they choose to give “this stingy governor” $53K in his election campaign, that CAPS supported prop. 30 and No on prop.32 with the highest per capita contribution of any state workers, that we dropped our fight for reimbursement for the illegal furloughs, that they forgot to say anything about when we would get the money for the 2 stolen holidays that we worked, or that lack of COLAS have impacted our  purchasing power >20% over the past decade, or that by accepting a two tier medical retirement benefit a wedge is driven between the various tiered workers, or that they have been denying the membership democracy for over a decade,  or that Blanning and Baker partners took no cuts during the furloughs, or that the membership is purposefully demobilized to keep the  strategy of partnership with management in place, and to keep subsidizing politicians, lawyers and lobbyists, which ultimately gets us nothing but keeps the dues dollars flowing to the coffers of the Blanning and Baker LLC. partnership.

Why then did this pathetic trio play to an empty opera house?  Because the members have been alienated from their organization by design.  We know their record, we know how they have done it, we know how they violated the bylaws and the promises to hold meetings and when the last real meeting was.  We know and can show that their installation of officers has been illegal under the CCC.  So who would want to go down the block to see these guys?  What have they ever done for us?  We know that our final pay it tied more to the SEIU 1000 contract than to anything Blanning and Baker and the CAPS leadership negotiating team will supplicate for at the table.

Because all their strategies fail the workers, because they are never going to mobilize the membership and because they are in bed with management, the politicians and lobbyists, it is time for us to turn out the current leadership, fire Blanning and Baker LLC., and form a democratic union politically independent of the Democrats and Republicans.

*For over a decade the plan for pay parity has ridden a one trick pony,  to win parity first for the supervisors by forcing the executives hand in court which presumably would result in corresponding Rank and File raises although the logic of this assumption would escape anyone who has ever worked for wages.  The failure and future of this strategy was not even addressed at the meeting.  Without this plan Blanning and Baker alongside Miller were grasping at straws telling us to beg management to fight for us in the strategic plan!  Is this a joke or what?

June 6, 2013 Posted by | CAPS 2013 Contract negotiations | , , , , , , , , , , , , , , , , | Leave a comment

CAPS LEADERSHIP HAS NO STRATEGY TO WIN BACK WHAT THEY LOST

BROWN DEMANDS A COST NEUTRAL BUDGET-READ WAGE FREEZE!

CAPS LEADERSHIP IS NOT PREPARED TO WIN BACK WHAT THEY LOST IN THE LAST TWO CONTRACTS…LET ALONE MAKE PROGRESS.

CAPS LEADERSHIP HAS NO WINNING STRATEGY.

ONLY YOU CAN ORGANIZE TO WIN A FAIR CONTRACT.

 

-CAPS LEADERSHIP’S TRACK RECORD:

  • GAVE AWAY 15% FOR TWO YEARS AND 5% FOR ONE YEAR TO FURLOUGHS
  • NO COLA, PUTTING US BACK 25% OVER 10 YEARS
  • LOST TWO HOLIDAYS FOR TWO YEARS
  • GAVE AWAY AN INCREASED PENSION CONTRIBUTION AND INCREASED MEDICAL CONTRIBUTION WITHOUT ANY COMPENSATORY WAGE INCREASE. AND THEN ACCEPTED ATWO TIER PENSION
  • THEY REFUSE TO ORGANIZE CONTRACT WORKERS
  • LOSING STRATEGY FOR PAY PARITY (IT BENEFITS LAWYERS, NOT US)
  • INCOMPETENT BACK-STABBING GRIEVENCE MEDIATORS
  • GIVE  $$ TO POLITICIANS WHO STAB US IN THE BACK
  • HISTORIC BLANNING & BAKER LOSING LEGAL STRATEGY EXPOSED https://capsfightingunioncaucus.wordpress.com/category/capspecg-lawsuits/

 

Their strategy is to depend on politicians, lawyers and judges instead of the rank and file. Their practice is to demobilize the membership, disassociate from the labor movement, to deny members their legal right to regular membership meetings and to illegally expel members who stand up for membership rights.

 

They bet your pay parity on a failing decade-long show trial for supervisors pay parity!

CAPS represent both management and labor in grievances!  Like in a fascist union.  How can CAPS grieve against your supervisor when your supervisors pay CAPS and are invested in CAPS winning pay parity?  How can a worker expect CAPS to protect them from management when the supervisors pay CAPS voluntarily while rank and file must pay (at least) fair share!

 

President Dennis Miller promised regular membership meetings in his 2011 campaign. Yet he continues to violate both California Corporate Code section 7510 and the CAPS 2007 Bylaws Article III Section 1 and the illegally updated 2011 Bylaws by refusing to convene regular membership (not just informational) meetings.  The only meetings CAPS holds are informational-not regular membership meetings!

 

PERB’s finding exposed CAPS leadership and Blanning and Baker LLC. to be scofflaws. The leadership illegally expelled Rachlis and illegally suspended Cosentino.  The expulsion and suspension were overturned by PERB.

 

CAPS LEADERSHIP THEN EXPELLED RACHLIS AGAIN!  TWO TIMES IN 2012 ON TRUMPED UP CHARGES!  REINSTATE RACHLIS! TURN OUT THE SCOFFLAWS!

WE NEED REGULAR MEMBERSHIP MEETINGS RUN BY THE MEMBERS!  WE NEED FAIR ELECTIONS WITHOUT CENSORSHIP!

WE NEED A NEW STRATEGY WHICH DOES NOT DEPEND ON POLITICIANS, LAWYERS OR JUDGES, BUT ON THE MOBILIZED RANK AND FILE UNITING WITH ALL PUBLIC WORKERS TAKING JOINT ACTION TO WIN!

TO WIN A DEMOCRATIC UNION AND A FAIR CONTRACT SCIENTISTS NEED TO INITATE UNIT TEN ACTION COMMITTEES AT EACH WORK PLACE!

TAKE ACTION: JOIN THE INTER-UNION ORGANIZING COMMITTEE AND PROTEST FOR A FAIR CONTRACT AT NOON, JUNE 5TH, AT THE FRONT GATE!

 

ASK: When was the last COLA

Answer:  2006 (but it was insufficient; it did not catch us up). Today your pay check buys only 3/4s of what it did in 2000!

ASK: Why were the Bylaws changed in February, 2011?

Answer:  To deny members rights enshrined in the 2007 Bylaws for annual membership meetings. Rachlis revealed in Nov., 2010 that this right was being knowingly violated by Blanning and Baker LLC., the CAPS board and Gerald James Esq., for over a decade.  Without the annual meetings the membership  has been denied any semblance of democracy.  The annual meeting was the only legal venue for installing officers and putting members concerns on the agenda or  for addressing the assembled membership.  Thus all officers elected for over 12 years now were not legally installed and all their actions have been illegal. This denial of regular meetings is a denial of CAPS contractual duty (based on the dues for bylaws exchange) to the membership and is thus the basis for the 15 million dollar theft of services charge against Blanning and Baker.

ASK: Why did the new Bylaws eliminate the annual membership meeting?

Answer: Because Rachlis exposed the leadership for not holding legally mandated (CCC & bylaws) annual meetings.

ASK: When was the last regular membership meeting?

Answer:  Over 12 years ago. Disregarding the Bylaws and CCC, members have been denied an annual regular membership meeting for over a decade.

ASK: Why are members not allowed to hold and run their own regular meetings?

Answer:  Because Blanning and Baker LLC. don’t want the membership to control their own organization. They like keeping their fingers on the purse strings.

ASK:  What is Blanning and Baker LLC. (the CAPS agents.)?

Answer: It is not a law firm as members have been led to believe.  It is a Labor Consultation firm.  Their project is not to make you money but to make money for their partnership!  Their method is schmoozing with politicians and keeping you under control.

ASK: Why do we need a profit making labor consultant to run our affairs?

Answer: Considering their track record, we don’t!

ASK: Can CAPS be reformed:

Answer: Only if a rank and file slate with a class struggle strategy and program runs for office and wins, removes Blanning and Baker LLC. as agent and charts a politically independent course of action based on a mobilized membership.

ASK: What can I do?

Answer: Form Unit 10 action committees, talk to other Unit 10 members and listen to their experiences with failed representation by Blanning and Baker LLC., and discuss the failed CAPS steward system. Run for office to replace the entrenched team, remove Blanning and Baker and reclaim CAPS for the rank and file of Unit 10.

 

Unit 10 Action Committee                              contact Charles Rachlis (415) 205-0359

Labor Donated                                                June 1, 2014

 

The Unit 10 Action Committee met on 5/21/13 and adopted the following principles and demands both on the State and on ourselves/our organization.

We will build the action committee at the CAPS informational meeting on June 4th.

We will build for inter-union solidarity action to win back what was taken from us in the last contract on June 5thduring lunch at the front gate of CDPH in conjunction with labor demonstrations in Sacramento.

PRINCIPLES OF UNITY FOR ACTION COMMITTEE
1) Turn CAPS into a union run by the democratically organized, mobilized and assembled rank and file.
2) For political independence of labor. Fund only labor candidate.
3) Unite with workers organizations (public & private), employed and unemployed, to defeat the austerity and win a fair contract.
4) Run candidates committed to political independence, to class struggle tactics, based on organizing, assembling and mobilizing the membership to develop and struggle for  their own program.

DEMANDS ON THE STATE
1) No Give Backs No Take Aways!  WE ALREADY “SHARED THE PAIN”
2) COLAS back 10 years 23%
3) Pay Parity, Geographical Pay
4) NO GIVE BACK OF HOLIDAYS!   Holidays were accepted years ago in exchange for wage demands not granted, PDD’s were granted after they stole 2 holidays.
5) Make up pay for increased worker contribution to medical and pensions.
6) State should make up for years it refused to pay into CALPERS (based on good market)
7) Overturn new retirement requirement. Pits new workers against old workers.  No two tier system.  Equal benefits for all!  No extended vestment periods.
8) Health and Safety protection, promotions, & PERS fiduciary responsibility

DEMANDS ON OURSELVES (CAPS)
1) Hold regular membership meetings, not informational meetings.
2) Regular meetings at every job site (monthly or quarterly, more often in lead up to contract talks), linked by web for broadest democratic discussion.
3) Initiate CAPS members e-forum for democratic discussion of the membership.
4) Build unity with the broader labor movement for actions against the austerity.
5) Organize the unorganized.  End contract labor.  Defend the contract workers. Demand equivalent service time and state jobs for regular contract workers.
6) Supervisors out of the union.
7) For an active steward system that communicates, mobilizes and defends the membership.
8) Elevate the strategy of membership mobilization and assembly over that of  lobbying and lawsuits.
9) Reverse the expulsion of Charles Rachlis

Adopted at the Unit 10 Action Committee meeting on May 21, 2013

 

 

June 3, 2013 Posted by | 2013 Contract | , , , , , , , , , , , , , , , , , , , , , | Leave a comment

CAPS: Kangaroo Court to Expel Rachlis Again-Rachlis responds to false charges

Response to the Budroe grievance against Rachlis to be heard by the MDRC on October 9th, 2012

 1)    The ossified self perpetuating CAPS board works obediently to maintain the subservience of CAPS to its agents (the labor profiteers at Blanning and Baker LLC,) Democratic and (on occasions) Republican Party politicians and ultimately the ruling class which profit by the demobilization of organized labor.

 2)    By denying members their right to annual/regular membership meetings, under California Corporate Code and under the 2007 CAPS Bylaws, for over ten years many members of the current board have participated in an ongoing theft of services.  The bylaws (literally second law) are a contract between the members and the organization; the members pay dues dollars and the organization is obliged to follow the bylaws.  Yet CAPS denied members their right to annual membership meetings for over 10 years and when I brought it to the attention of the board in a November 2010 letter, the board under the guidance of B&B wrote our right to an annual membership meeting out of the 2011Bylaws.  This may come as a surprise to CAPS but as far as I have been able to ascertain only corporate, fascist, and business unions deny their members the right to hold regular meetings where the members can discuss the business of the organization.

 3)    Adherence to the Bylaws and Policy Manual (PM) is not the practice of this leadership.  Had it been, CAPS would have held regular/annual membership meetings for the last twelve years (where members’ agenda points can be put before the entire membership,) Rachlis and Cosentino would not have been illegally thrown out and the CAPS leadership team would not have lost to Rachlis in the PERB decision # HO-U-1064-S which required CAPS to reinstate Rachlis retroactively to the date of his expulsion.  Playing fast and loose with the rules, are lawyer’s games and they may work to control and organization but they come  at the expense of worker’s democracy which is systematically denied.

 4)    The failure of the CAPS/B&B leadership team to deliver on the economic front and the ongoing denial of members rights has created a breech between the leadership team and the rank and file of CAPS.  By refusing to hold regular meetings CAPS leadership assured that the B&B method of filling the politicians campaign coffers with our dues dollars, and the filling of the partners of B&B’s retirement funds with millions from State Workers dues dollars would not be challenged by any attempt to mobilize the membership around a winning strategy and tactics similar to that which worked for the Chicago Teachers last month, and the Marikana miners last week.  Indeed the lack of workers’ democracy, the failure to take workers’ side in grievances with management, the multiple denials of legal counsel by B&B for workers attacked by management has left the rank and file with the feeling that CAPS/B&B work hand in hand with management instead of working for the members.  This is why an opposition slate running, of relatively unknowns, despite censored campaign statements and limited access to the ear of the membership won 25% in the last election by running on a class struggle-action program.  This type of rank and file response to such a campaign is unheard of in recent labor history.  Indeed the fact that the CAPS-Fighting Union Caucus (CAPS-FUC) won 25% in the last election has the ruling clique running scared and for that reason B&B’s stooges have launched a smear campaign to drive me out of the organization.  Miller/Chatsworth-Brown in their grievance of September 19, 2011accused us of running a campaign for the decertification of CAPS (which was not true then and is not true now) but consider the implication that if it were a campaign for decertification and 25% of the members voted for it B&B’s profit taking days and failed methods would clearly be numbered.

 5)    The current leadership team employs the so-called team concept of labor management relations assuring the supine obsequiousness of labor before management.  This method has left the membership with declining spending power for our shrinking dollar (uncompensated for by COLA’S), cuts in hours and wages due to two years of furloughs and two years of PLD’s, increased employee contribution to medical, to pensions, we lost holidays and have suffered increase of supervisory harassment, as well as racial, ethnic, age and gender discrimination expressed through arbitrary application of unreasonable work and reporting rules.  The membership, 2/3’s of which did not vote in the last election and of the remaining 1/3 who voted 25% voted for the opposition, is clearly not inspired by the leadership which reigns by the combination of inertia and denial of workers’ democracy.

 6)    Budroe bases his grievances on a ‘damning’ blog post at http://wp.me/p1OGRw-2Y published on August 25th (while Rachlis was still expelled) and claims it violated the PM’s rule against advocating for decertification.  The MDRC must reject this.

 7)    Budroe twists and misrepresents the meaning of the statements made in the ‘damning’ blog post. The following quote is lifted directly from the blog. We have highlighted key controversial phrases and will comment on their meaning further below.

 8)    “We also opposed launching a campaign to decertify CAPS without first testing the nature of the organization through assertion of membership rights as guaranteed by the bylaws, the Policy Manual, and the California Corporate Code.  Today we are convinced that CAPS can not be reformed without getting rid of B&B.  We have proved that CAPS makes contact between members a near impossibility thereby ensuring the perpetuation of the insider’s incumbency (Ms. Velez has been on the board for 17 years during 23 years as a member,) puts another weight on the scale of reform vs. decertification.  The combination of a self perpetuating board, the denial of regular membership meetings, and the vested interest of B&B’s partnership (they take between 800k-and 1.5million from unit 10 CAPS members annually and closer to 6 million annually from Unit 9 PECG members,) may require the formation of a new union and the decertification of CAPS and PECG.”

 9)    Budroe and the CAPS /B&B leadership team flummoxed from their defeat at PERB again overstretch the limits of logic as they try to fit a square peg in a round hole; the statement reproduced above is merely a statement of facts.  The facts are: there is no internal democracy in CAPS, the organization has illegally expelled me and illegally suspended Mr. Cosentino (thus establishing a track record as scofflaws) in turn it is reasonable for members of units 9 & 10 to consider that in order to establish democracy in our organizations B&B’s contract must be severed and to accomplish this objective necessity, internal remedy mechanisms may not be adequate.  May is used while expressing possibility as in “It may rain this afternoon.”  That it may not rain this afternoon is unstated yet implied by the very nature of possibility.  The statement from the blog reprinted above merely states a possibility, something scientists are often known to do; we call it stating a hypothesis.

 10) The recent denial of democratic procedure and other failures of the leadership indeed put new weights on the scale; commenting on this fact is not an indictable violation of the PM.  Indeed I am not alone at weighing the options before CAPS.  And there is no statute in the Bylaws or PM that denies members the right to talk about or write about weighing options.  Weighing options is not the same as choosing options.  Contrary to its own intention by expelling Rachlis twice in one year the CAPS board would be putting more weight on the scale that the membership is currently looking at.

 11) Budroe claims that our blog posting makes it clear that we do not advocate ‘reform from within’ and that rather we call for decertification.  Again the enmeshment between the entrenched and ossified leadership of CAPS can not disassociate itself from B&B.  The ‘damning’ blog stated “Today we are convinced that CAPS can not be reformed without getting rid of B&B”.  Without overstating the obvious we do not see the contract between CAPS and B&B as carved in stone-it must be renewed on a regular basis.  The CAPS relationship with B&B is based on a contract that the CAPS membership can, if it so chooses, not renew!  This would open the road to reform of CAPS and would shift the weight on the scale toward the possibility transforming CAPS into a fighting rank and file class-struggle organization.

 12) We’re not lawyer pussyfooters.  If we wanted to call for decertification there would be no question about the language.  It would be unambiguous and our whole record of the CAPS Fighting Union Caucus (CAPS-FUC) demonstrates this.

13) In his frantic quest to expel Rachlis twice in one year Budroe, makes additional attempts to falsify the content of the ‘damning’ blog.  For the CAPS-FUC the principle of not taking workers’ organizations to the bosses’ courts is inviolate and as such we have rejected the idea of taking CAPS to superior court to force compliance with California Corporate Code. However, as we explained in the blog, “…we can clearly see that CAPS is not a workers organization but a captive corporate run union fleecing the membership for the profits of B&B the working class principle of ‘labor cleaning its own house’ no longer applies.”  In his grievance, Budroe lifts the quote, “no longer applies,” out of context.  Budroe ascribes it to our arguments against decertification rather than to the clearly stated issue of using the courts to force some modicum of democracy (adherence to CCC-regular membership meeting, fair elections, the right to examine and copy the membership list, etc.)

14) It is time for CAPS to begin to function in a democratic manner and stop its illegal denial of membership rights and this witch hunt against members who demand our rights be respected.  If the MDRC reduces itself to the level of a kangaroo court dutifully and uncritically participating  in the Budroe witch hunt, a witch hunt which began with red baiting by Matt Austin in Superior Court, was followed up with addition red baiting by Budroe and Miller during the campaign last year and was reintroduced in the Miller/Brown grievance of September 19, 2011, then this august body will itself be soiled by its actions reducing its respectably in the world of adjudication one akin the McCarthyite House Un-American Activities Committee, the Spanish Inquisition, and the Moscow show trials which sentenced the best working class militants of the 20c to death.

15) In conclusion the MDRC has a choice. You can expel Rachlis on false charges and further expose the undemocratic nature of CAPS.  This action would confirm for many that CAPS is not Workers’ Organization but is truly a captive corporate controlled union reduced to being nothing more than a profit center for B&B and the dutiful enforcer of the capitalist austerity on the backs of the workers of unit. 10.  Or you can reject this witch hunt and open the road to workers democracy in our organization.

Charles Rachlis October 4, 2012

October 9, 2012 Posted by | CAPS WITCH HUNT | , , , , , , , , , , , , , , , , , | 1 Comment

CAPS Leadership Ignored CAPS Rules

The following letter was sent to the board of CAPS on 09/14/12.

Open letter to the Board of CAPS,

Find attached and in the e-mail below a grievance filed by Charles Rachlis against David Miller and Patty Velez on January 9th 2012 for violation of California Corporate Code and denial of members rights to examine and copy the membership list (http://wp.me/p1OGRw-21.) To our knowledge the Membership Disciplinary Review Committee (MDRC) ignored and took no action to adjudicate this grievance, neither has the MDRC made any report to the membership on the submittal of this grievance, nor have they responded to the author of the grievance.

This lack of action on the part of the board and the MDRC stands in violation with the rules (bylaws and Policy & Procedures Manual) of the organization and thereby denies members just rights. This grievance was submitted prior to the illegal Kangaroo court which expelled Rachlis and suspended Cosentino. The leadership acting under the inept guidance of councel provided by Blanning and Baker LLC, Gerald James Esq. and Lisa Crevich Esq., decided to place this grievance in the circular file.

In the PERB adjudication of Charles Rachlis V. CAPS UPC# SF-CO-60-S PERB has recently found against CAPS and demanded that CAPS cease and desist from: “Unreasonably or refusing to apply internal disciplinary procedures to its members,” and from “Interfering with the protected rights of members to join and participate in the activities of CAPS by unreasonably or refusing to apply internal disciplinary procedures to its members.”

The PERB decision also demands that CAPS “Rescind the termination of Rachlis’ membership and reinstate him to active member status with all the rights and privileges thereof back to the effective date of the termination.”

Therefore Rachlis had and still has the right to have this grievance heard! The CAPS board and the MDRC must take action to address the violation of membership rules and the denial of the rights and privileges of rank and file member Rachlis to file and have the grievance submitted on January 9th,2012 (see attached) heard. We demand that the CAPS board take action to address the violation of membership rights by the decisions of the President (the sitting chair person of the MDRC.)

I demand that the CAPS board remove David Miller from the role as chair of the MDRC. I demand that the Board convene a meeting of a new MDRC to address the violation of memberships rights by the last seated MDRC which was convened to adjudicate the Miller/Brown v. Rachlis and Miller/Brown v. Cosentino grievances. I demand that the new MDRC address the violations of members rights carried out by the MDRC convened under the Chair of V.P. Patty Velez. This new MDRC must address the grievance (see attached) submitted on January 9th 2012. As that Charles Rachlis has had all rights of membership restored by the finding of illegal activity on the part of the MDRC/CAPS by PERB I demand the board assure those rights are respected and the grievance submitted on January 9th, 2012 be fairly adjudicated by an impartial MDRC without interference from the Blanning and Baker LLC, or any of the members who sat on the previous MDRC.

Charles Rachlis

From: Rachlis, Charles (CDPH-ADM-PSB-FMS)
Sent: Monday, January 09, 2012 12:02 PM
To: CAPS; capsfightingunioncaucus@gmail.com
Subject: CAPS: Rachlis grievance against Miller & Velez RE: violation of CCC as regards access to membership list

Date January 9, 2012

To: Membership Discipline Review Committees c/o CAPS Board

From: Charles Rachlis and Giorgio Cosentino

Subject: Charges against President David Miller, Vice President Patty Velez,

CAPS is organized as a mutual benefit non profit corporation which must abide California Corporate Code. CAPS must provide a venue for membership to convene a special meeting. That venue is provided pursuant to CCC and outlined Bylaws Article III Section 2(a); in which, a members’ right to petition the membership to hold a special meeting is enshrined. In order to reach the membership for the purpose of distributing the petition, a list of the members’ names addresses and voting rights must be made available with in ten days of demand. Due to the actions of President David Miller and Ex President Velez CAPS stands in violation of CCC 8330. Their reckless disregard for the law under which CAPS is mandated to function opens the organization to liabilities for denial of services, theft of dues, and denial of dues payers rights.

In order to accomplish the petitioning of the membership I requested from the CAPS board that they abide CCC and render a membership list for the stated use. See e-mail request to the board:

From: Charles Rachlis []
Sent: Wednesday, December 28, 2011 6:19 PM
To: CAPS
Cc: Giorgio Cosentino; Subject: Petition for special membership meeting

To the CAPS board,

According to the by-laws I need 5% membership signatures to call for a special membership meeting. I would like to circulate a petition to call for a special membership meeting. To do so I will need the list of the membership including their e-mail addresses, home addresses and phone numbers as is my right according to California Corporate Code which governs Mutual Benefit Non Profit Corporations such as CAPS. Please submit the list to this email address or let me know when I can pick it up at the CAPS office in San Francisco. I can be at the office this Friday at 11:00 does this work for you?

Charles Rachlis

President David Miller responded on behalf of the current board and refused to comply with California Corporate code thereby making it impossible for me to reach the membership to gather a petition to hold a special membership meeting. See David Millers’ e-mail of December 29th, 2011.

From: David Miller
To: ‘Charles Rachlis’
Sent: Thursday, December 29, 2011 2:54 PM
Subject: RE: Petition for special membership meeting
Dear Mr. Rachlis,

You have requested that CAPS provide you a “list of the membership including their e-mail addresses, home addresses and phone numbers”.

I respectfully deny your request.

I have instructed CAPS staff provide no such list to you, or to anyone else.

The CAPS Board is aware of your request and my response.

Sincerely,

David Miller
CAPS President

In a follow up e-mail I asked how to go about petitioning the membership as is our right. No response has been received to date.

—– Forwarded Message —–
From: Charles Rachlis
To: David Miller
Cc: Giorgio Cosentino ; “3risksys@gmail.com”
Sent: Thursday, December 29, 2011 4:56 PM
Subject: Re: Petition for special membership meeting
Dear David Miller,

Please explain how a member is to petition the membership to convene a special meeting of the organization without a way of knowing who the members are.

Charles Rachlis

“The working class and the employing class have nothing in common.”
IWW founding congress opening statement
________________________________________

Refusal to abide the CCC 8330 is violation of the law as enforced by the attorney general of the state of California. The Membership Disciplinary Review Committee may review the law below. For violation of members’ rights, for violation of the bylaws, and for violation of CCC in the name of CAPS we request that David Miller and Patty Velez’s membership in CAPS be terminated.

Submitted to the CAPS Board by Charles Rachlis on January 9, 2012

Submittal #1
CALIFORNIA CODES
CORPORATIONS CODE
SECTION 8330-8338
8330. (a) Subject to Sections 8331 and 8332, and unless the
corporation provides a reasonable alternative pursuant to subdivision
(c), a member may do either or both of the following as permitted by
subdivision (b):
(1) Inspect and copy the record of all the members’ names,
addresses and voting rights, at reasonable times, upon five business
days’ prior written demand upon the corporation which demand shall
state the purpose for which the inspection rights are requested; or
(2) Obtain from the secretary of the corporation, upon written
demand and tender of a reasonable charge, a list of the names,
addresses and voting rights of those members entitled to vote for the
election of directors, as of the most recent record date for which
it has been compiled or as of a date specified by the member
subsequent to the date of demand. The demand shall state the purpose
for which the list is requested. The membership list shall be made
available on or before the later of ten business days after the
demand is received or after the date specified therein as the date as
of which the list is to be compiled.
(b) The rights set forth in subdivision (a) may be exercised by:
(1) Any member, for a purpose reasonably related to such person’s
interest as a member. Where the corporation reasonably believes that
the information will be used for another purpose, or where it
provides a reasonable alternative pursuant to subdivision (c), it may
deny the member access to the list. In any subsequent action brought
by the member under Section 8336, the court shall enforce the rights
set forth in subdivision (a) unless the corporation proves that the
member will allow use of the information for purposes unrelated to
the person’s interest as a member or that the alternative method
offered reasonably achieves the proper purpose set forth in the
demand.
(2) The authorized number of members for a purpose reasonably
related to the members’ interest as members.
(c) The corporation may, within ten business days after receiving
a demand under subdivision (a), deliver to the person or persons
making the demand a written offer of an alternative method of
achieving the purpose identified in said demand without providing
access to or a copy of the membership list. An alternative method
which reasonably and in a timely manner accomplishes the proper
purpose set forth in a demand made under subdivision (a) shall be
deemed a reasonable alternative, unless within a reasonable time
after acceptance of the offer the corporation fails to do those
things which it offered to do. Any rejection of the offer shall be in
writing and shall indicate the reasons the alternative proposed by
the corporation does not meet the proper purpose of the demand made
pursuant to subdivision (a).

Charles Rachlis

September 14, 2012 Posted by | Grievance vs CAPS leadership, Uncategorized | , , , , , , , , , | 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

Track Record of Lawsuits Brought by CAPS and PECG

Track Record of Lawsuits Brought by CAPS and PECG

Under Management of Blanning & Baker, 1991-present

Status as of September 1, 2011

NOTE: Gerald A. James is listed as counsel for CAPS and/or PECG in some of the more recent cases outlined below. Mr. James was admitted to the California State Bar in 1995. His address of record with the State Bar is at the Blanning & Baker office in Sacramento. Blanning & Baker’s website states that he is general counsel to Blanning & Baker’s clients. The website does not reveal whether Mr. James’s legal services are included in the fees Blanning & Baker’s clients pay for general management, or are charged to clients separately, or some combination of the two.

Case Title and Court Docket Number: PECG v. Department of Transportation, A131449

Court, Date of Decision, and Legal Citation: First District Court of Appeal, 8/8/11, 198 Cal.App.4th 17

Lawyers for PECG: Jennifer T. Buckman of Somach Simmons & Dunn, and Gerald A. James

Result and Current Status: PECG loses; PECG could still seek review by California Supreme Court, but has not yet done so.

Description: PECG contended that the engineering work on the replacement of Doyle Drive in San Francisco was supposed to be handled by state employee engineers. The court rejected this position and held that the engineering work could be contracted out because the project qualified as a public-private partnership under the changes to section 143 of the Streets and Highway Code made by the Legislature in 2009.

Case Title and Court Docket Number: CAPS v. Department of Finance, C063118

Court, Date of Decision, and Legal Citation: Third District Court of Appeal, 5/25/11, 195 Cal.App.4th 1228

Lawyer for CAPS: Gerald A. James

Result and Current Status: CAPS loses; California Supreme Court denied review on 8/10/11; decision is final.

Description: CAPS contended that the Department of Finance was required to seek funding from the Legislature for salary increases that the Department of Personnel Administration found were needed in order to give CAPS members salary parity with comparable positions in other agencies. The court rejected this position, and held that neither the Department of Finance nor the governor were required to ask the Legislature to appropriate enough money to pay the increases, and that the increases do not have to be paid if they are not included in the budget. (Note that even if CAPS had won this case, this would only have required the Department of Finance to tell the Legislature that it should appropriate money to fund the increases; it would not have required the Legislature to actually provide the money.)

Case Title and Court Docket Number: PECG [and CAPS] v. Schwarzenegger, S183411

Court, Date of Decision, and Legal Citation: California Supreme Court, 10/4/10, 50 Cal.4th 989

Lawyer for CAPS/PECG: Gerald A. James

Result and Current Status: State employee unions (including CAPS and PECG) lose; California Supreme Court decision is final

Description: The California Supreme Court upheld the legality of mandatory furloughs based on implied approval of them by the Legislature in the 2008 state budget.

Case Title and Court Docket Number: PECG v. Kempton, S139917

Court, Date of Decision, and Legal Citation: California Supreme Court, 4/12/07, 40 Cal.4th 1016

Lawyers for PECG: Kelley Stimpel Martinez and James E. McGlamery

Result and Current Status: PECG loses; California Supreme Court decision is final

Description: PECG challenged DOT’s procedures for contracting out engineering work after the passage of Proposition 35 in the 2000 election. The California Supreme Court held that DOT’s contracting out procedures were valid.

Case Title and Court Docket Number: CAPS v. Schwarzenegger, C049928

Court, Date of Decision, and Legal Citation: Third District Court of Appeal, 3/6/06, 137 Cal.App.4th 371

Lawyer for CAPS: Gerald A. James

Result and Current Status: CAPS loses; California Supreme Court denied review; decision is final.

Description: CAPS challenged the adoption of a two-tier retirement system excluding new hires from PERS for the first two years of their employment. The court rejected CAPS’s claims that the new law was unconstitutional and/or violated the CAPS MOU.

Case Title and Court Docket Number: PECG v. State Personnel Board, C028402

Court, Date of Decision, and Legal Citation: Third District Court of Appeal, 7/11/01 (modified 8/10/01), 90 Cal.App.4th 678

Lawyers for PECG: Dennis F. Moss and Steven Bassoff

Result and Current Status: PECG loses in part; California Supreme Court denied review; decision is final.

Description: PECG (and other state employee unions not listed by name in the opinion, which may or may not have included CAPS) challenged the legality of the Career Executive Assignment program for filling high-level executive positions. The court rejected the claim that the program as a whole violated civil service law, but held that competitive (ranked) examinations must be held for transfers into CEA positions by non-CEA personnel, and the appointing authority must consider the results of those examinations.

Case Title and Court Docket Number: CAPS v. Department of Fish & Game, C023075 & C023184

Court, Date of Decision, and Legal Citation: Third District Court of Appeal, 4/10/00, 79 Cal.App.4th 935

Lawyer for CAPS: Dennis F. Moss

Result and Current Status: CAPS wins; California Supreme Court denied review; decision is final.

Description: An individual challenged a statute imposing a flat fee for environmental impact reviews of proposed projects, and setting a higher fee for reviews of projects that are claimed not to have any significant environmental impact. The individual settled with the Department of Fish & Game, and CAPS intervened, seeking to require the Department to continue collecting the fees. The court sided with CAPS, rejecting the individual’s claim that the fee was a tax that had to be adopted by a two-thirds vote in the Legislature. (Note that this case had no direct effect on the salaries, benefits, or rights of CAPS members. It may have had an indirect effect by maintaining Fish & Game’s ability to collect the fees, thereby adding to the budget. It is not clear from the court opinion, however, why CAPS felt it necessary to take on the burden of defending the employer’s right to charge money for its services.)

Case Title and Court Docket Number: PECG v. Wilson, C023360 & C023368

Court, Date of Decision, and Legal Citation: Third District Court of Appeal, 2/25/98 (modified 3/19/98), 61 Cal.App.4th 1013

Lawyers for PECG: Loren E. McMaster (and Harry J. Gibbons for CSEA)

Result and Current Status: PECG loses (mostly). Decision is final.

Description: PECG (joined by CSEA) claimed that funds in the State Highway Account (SHA) could not be transferred to the general fund in order to repay bonds issued for the development of passenger railways and public transit. (The transfers had contribute to budget shortfalls at the Department of Transportation (DOT), resulting in layoffs of some PECG and CSEA members who worked at DOT.) The court rejected PECG’s arguments for the most part, ruling that SHA funds not derived from gasoline taxes could properly be used to pay the bonds. As to SHA funds derived from gasoline taxes, the court agreed with PECG that these could not be used to pay the bonds. However, the court also held that PECG had only proved that a relatively small portion of the funds used to make payments on the bonds actually came from gasoline taxes. The court only ruled in PECG’s favor as to that portion of the funds ($12.3 million out of $77 million). (Note that this case had no direct effect on the salaries, benefits, or rights of PECG members. At best, it helped avoid a few layoffs by requiring the gasoline taxes to be returned to DOT’s budget.)

Case Title and Court Docket Number: PECG v. Department of Transportation, S042591

Court, Date of Decision, and Legal Citation: California Supreme Court, 5/15/97, 15 Cal.4th 543

Lawyer for PECG: Loren E. McMaster

Result and Current Status: PECG wins, but the effect of the court decision was later overturned by Proposition 35, passed in 2000.

Description: After the Legislature passed a statute allowing the Department of Transportation (DOT) to contract out work when necessary to get it done on time, DOT asked the court to set aside an earlier order prohibiting DOT from contracting out certain highway construction functions. The Supreme Court agreed with PECG that under the civil service laws, DOT was not allowed to contract out the work, and held that the new statute did not change that.

Case Title and Court Docket Number: PECG v. Department of Transportation, A057897

Court, Date of Decision, and Legal Citation: First District Court of Appeal, 2/17/93, 13 Cal.App.4th 585

Lawyer for PECG: Dennis F. Moss.

Result and Current Status: PEGC loses. California Supreme Court denied review; decision is final.

Description: PECG challenged DOT’s authority to lease rights-of-way to private companies to construct and operate toll roads. The court held that the law permitting DOT to enter into contracts for private toll roads was not unconstitutional and did not violate the civil service laws.

September 4, 2011 Posted by | CAPS HISTORY, CAPS/PECG lawsuits | , , , , | Leave a comment