State of California (Department of Personnel Administration) (PERB 1601S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

STATE OF CALIFORNIA (DEPARTMENT OF
PERSONNEL ADMINISTRATION),

Charging Party, Case No. SA-CO-237-S

Vv. PERB Decision No. 1601-S

CALIFORNIA STATE EMPLOYEES February 24, 2004

ASSOCIATION, SEIU LOCAL 1000,

Respondent.

Appearances: Howard L. Schwartz, Chief Counsel, for State of California (Department of
Personnel Administration); Steven B. Bassoff, Attorney, for California State Employees
Association, SEIU Local 1000.
Before Baker, Whitehead and Neima, Members.
DECISION

BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the California State Employees Association, SEIU Local 1000
(CSEA) to a proposed decision (attached) of an administrative law judge (ALJ). The ALJ
found that CSEA violated the Ralph C. Dills Act (Dills Act)! by unilaterally changing its past
practice for authorizing its members to be on union leave. Specifically, the ALJ found that
CSEA failed to meet and confer in good faith with the State of California (Department of
Personnel Administration) (DPA) when on January 29, 2001, it advised DPA that henceforth

only the general manager of CSEA was authorized to request permission for a CSEA member

to go on union leave.

'The Dills Act is codified at Government Code section 3512 et seq.

The Board has reviewed the entire record, including the proposed decision,
CSEA's
exceptions and
DPA's
response. 	Subject to the discussion below, the Board finds the proposed
decision to be free
of
prejudicial error and adopts it as the decision
of
the Board itself.
BACKGROUND
DP A and CSEA are parties to nine memoranda
of
understanding (MOU) each
containing a provision for union leave. The union leave provision in all the relevant
MOUs
provides that,
"A
Union leave may
...
be granted during the term
of
this Contract at the
discretion
of
the affected department head or designee in accordance with" certain specifically
listed conditions. Among the conditions is a requirement that CSEA:
...
reimburse the affected department(s) for the full amount
of
the affected employee's salary, plus an additional amount equal
to 35 percent (35%)
of
the affected employee's salary, for all the
time the employee is
off
on a Union leave. [DPA Ex.
l.]
The MOUs do not identify which CSEA officer(s) is authorized to make requests for
union leave on behalf
of
a member. It states only that "[t]he Union shall have the choice
of
requesting an unpaid leave
of
absence or a paid leave
of
absence
....
" The word "Union" is
not defined in the contract other than in the recognition clause. Over the years, CSEA officers
at different levels
of
authority have signed requests for members to receive union leave. 	These
have included the director and deputy director
of
the civil service division and the general
manager
of
CSEA. Historically, there has been no practice
of
restricting to only one person
within CSEA, the authority to make requests for union leave on behalf
of
members.
On or about January 29, 2001, Steven Basso ff (Basso ff), an attorney representing
CSEA, wrote to DP A Director, Marty Morgenstern (Morgenstern) and advised him that
henceforth only the general manager of CSEA would have the authority to make a union leave
2

request on behalf
of
CSEA. Basso
ff
stated that CSEA would not reimburse DP A for union
leaves not requested by the general manager. The letter specifically stated that Jim Hard
(Hard) and Cathy Hackett (Hackett) were not authorized to request union leave for members.
Hard is the Director and Hackett is the Deputy Director
of
CSEA's civil service division, the
division
of
CSEA that represents rank and file bargaining unit employees
of
the state. They
are the two highest ranking officers
of
the civil service division.
By letter
of
February 6, 2001, DPA General Counsel, Howard Schwartz (Schwartz)
asked Hard for his "reaction" to the assertion that he had no authority to approve union leave
requests. In relevant part, Schwartz wrote:
If
you have concerns, please let us know.	
If
you anticipate
requesting union leave without the approval
of
the CSEA General
Manager, please specify what procedures you will follow to
ensure that the State is reimbursed for this time. 	[CSEA Ex. A.]
In his reply
of
February 8, 2001, Hard asserted that the civil service division director
and deputy director are:
...
the only two individuals with authority to request Union leave
for CSEA/SEIU Local 1000 members
of
the Civil Service
Division. That authority is in no way limited by the CSEA
General Manager.
Review
of
managements' records for the past
18
years will verify
this fact.
....
Furthermore, the Bylaws
of
CSEA state that the Director and
Deputy Director constitute the Civil Service Division Committee
of
the CSEA Board
of
Directors with final authority to act on
behalf
of
CSEA in all matters within the scope
of
representation.
There is no provision within any CSEA Bylaws or Policy giving
the CSEA General Manager any authority over actions
of
the
CSD Director or Deputy Director in regard to Union leave
requests.
3

Please be assured that Cathy Hackett and I will take all actions
within our means to honor the letter and the spirit
of
the current
contract. I hope this again clarifies our position and that no one
is able to induce state management into committing an unfair
labor practice by refusing to honor Union leave requests
authorized
by
Cathy Hackett or myself. [DPA Ex. 3.]
Hard and Hackett also gave their personal assurances to DP A that the state would be
paid
for
any union leave approved by them. In a March meeting with Morgenstern they assured
him
"that they were the ones that had the authority to approve the union leave, and that any
of
the
union leave that they approved would be paid," according to DP A
Chief
of
Labor Relations,
Gloria Moore Andrews, who attended the meeting.
Faced with these competing demands, DP A advised CSEA that it would continue
to follow the past practice on approvals
of
union leave and it expected CSEA to do the
same. Schwartz set out this position by letter
of
March 20, 2001. In relevant part,
Schwartz's
1etter reads:
The DP A, for its part, views CSEA and its Civil Service Division
as one entity. Director Morgenstern, myself, and others at DP A
have repeatedly stated to CSEA officials that the State does not
intend to take sides in an internal union dispute. It is for CSEA
alone to decide who, within its organization, has the authority to
request union leave and to communicate that decision clearly to
DP A. Threats that reimbursements will be withheld or unfair
practice charges will be filed against the State for siding with one
faction against another are inappropriate and are themselves
unlawful.
Over the past few weeks the DP A has had several conversations
with Mr. Bassoff, Mr. Hard and other CSEA officials.
Unfortunately, we find no consensus among CSEA
representatives as to whom and how union leave may be
requested. Pending receipt from CSEA
of
a clearly stated
position, the State intends to abide by the past practice
of
honoring union leave requests that are submitted by an authorized
CSEA representative, including those authorized by the Civil
Division Director or Deputy Director alone.
(DPA Ex. 7.)
4

As
of
the last day
of
hearing, there were still two employees' union leave where CSEA
had refused to reimburse the state. There were at least two others for whom payment had not
yet been denied but who had taken leave without the approval
of
the general manager
of
CSEA.
DISCUSSION
CSEA first excepts to the ALJ's modification
of
the test for negotiability set forth in
Anaheim Union High School District (1981) PERB Decision No. 177 (Anaheim). In the
proposed decision, the ALJ set forth the following test to determine whether a subject is
negotiable as to a union:
[A] subject is negotiable under section 3516 if: (1) it is logically
and reasonably related to wages, hours or other terms and
conditions
of
employment, (2) the subject is
of
such concern to
both management and employees that conflict is likely to occur
and the mediatory influence
of
collective negotiations is the
appropriate means ofresolving the conflict, and (3) obliging the
union to negotiate would not specifically abridge the union's
freedom to exercise those managerial prerogatives (including
matters
of
fundamental policy) essential to the achievement
of
the
union's mission. 	[Proposed dee., pp. 15-16.]
CSEA notes that in the third prong, the ALJ uses the term "specifically" instead
of
"significantly." CSEA argues that by using the term "specifically," the ALJ applied a more
stringent standard to a union than to an employer.
The Board does not attach any significance to the use
of
the term "specifically" as
opposed to "significantly" in the third prong
of
Anaheim. In the past, decisions
of
the Board
have used these two terms interchangeably. The modified Anaheim test set forth in the
proposed decision was not intended, and does not, apply a different standard to unions versus
employers. The test was only modified to recognize that unions also have interests that may be
subject to negotiation.
5

Second, CSEA excepts to the proposed decision as an unnecessary infringement into
internal union policies. CSEA argues that DPA should not be able to dictate the internal
governance structure of a union. The Board agrees that an employer may not dictate to a union
its internal governance structure. However, this decision does not go that far.
The issue here is simply whether the procedures for determining who approves union
leave are negotiable. Applying the Anaheim test, the Board agrees with the ALJ that such
procedures are negotiable because there is a direct impact on the employment relationship. In
this case, DPA cannot obtain monetary reimbursement for state employees on union leave
unless such leave is approved by CSEA. Thus, where there is an impact on the employment
relationship, as with the unique circumstances of this case, an employer may propose for
negotiation a requirement that the union identify those of its officers authorized to act on its
behalf. Limited to these unique situations, the majority respectfully disagrees with the dissent
that the identity of the individual(s) authorized to approve union leave is solely an internal
union matter.
Contrary to CSEA's contentions, having to negotiate over the procedures for
authorizing union leave will not abridge its fundamental managerial prerogatives. Indeed,
having to negotiate such procedures is no different than requiring an employer to negotiate
over procedures for filing a grievance. For example, the MOUs between CSEA and DPA
contain a grievance procedure whereby grievances at a certain level are presented to
department heads while grievances at another level are presented to the director of DPA. The
fact that these procedures are negotiable does not mean that CSEA can dictate to DPA its
management structure. Similarly, negotiations over the procedures for union leave will not
abridge CSEA's fundamental rights. Accordingly, CSEA's exceptions must be rejected.
6

ORDER
Based on the foregoing findings
of
fact, conclusions
of
law, and the entire record in this
case, it is found the California State Employees Association, SEIU Local 1000 (CSEA),
violated the Ralph
C.
Dills Act (Dills Act), Government Code section 3519.S(c). CSEA
violated the Dills Act when on or about January 29, 2001, CSEA informed the State
of
California (Department
of
Personnel Administration) (DPA) that henceforth it would
reimburse the state for only those union leave requests that were made by the general manager
of
CSEA. This policy was a change from the past practice whereby both the director and
deputy director
of
the civil service division
of
CSEA also had the authority to request union
leave. The change resulted in the failure
of
CSEA to reimburse DP A for union leave approved
by officers
of
the civil division, but not the general manager.
Pursuant to section 3514.S(c)
of
the Dills Act, it hereby is ORDERED that CSEA and
its representatives shall:
A. 	CEASE AND DESIST FROM:
Unilaterally changing the past practice whereby CSEA officers in addition to the
general manager had the authority to make union leave requests on behalf
of
CSEA members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE DILLS ACT:
1.	
Effective immediately upon service
of
a final decision in this matter
reinstate the prior practice whereby CSEA officers in addition to the general manager have the
authority to make union leave requests on behalf
of
CSEA members.
2. 	Reimburse the State of California for all union leave which DP A granted
to CSEA members in accord with the prior practice but whose leave requests were not signed
7

by the CSEA general manager. The reimbursement shall include interest at the rate
of
seven (7) percent accrued beginning 30 days after the first date on which DPA submitted
invoices to CSEA that were subsequently denied because the union leave request forms had not
been signed by the CSEA general manager.
3.	
Within ten ( 10) workdays following the date this decision is no longer
subject
to
appeal, post at all locations where notices are customarily posted, copies
of
the
notice attached hereto as an Appendix.
4.	
Written notification
of
the actions taken to comply with this Order shall
be made to the Sacramento regional director
of
the Public Employment Relations Board
in
accordance with the director's instructions. Continue to report, in writing, to the regional
director thereafter as directed. All reports to the regional director shall be concurrently served
onDPA.
Member Whitehead joined in this Decision.
Member Neima's dissent begins on page
9.
8

NEIMA, Member, dissenting: The majority's decision departs from two fundamental
principles
of
labor law: the internal organization
of
an employee organization is not a matter
for review by the Public Employment Relations Board (PERB or Board) and each party
decides the identity
of
its own representative. It is in support
of
these two principles that I
dissent from the majority's findings.
Each union is empowered to decide the internal structure
of
its own organization.
Whether the union membership desires to have a board
of
directors, executive board or general
manager is determined by them not by the employer. Here, the employer bargained with the
California State Employees Association, SEIU Local 1000 (CSEA) to provide union leave to
certain employees. 	Such union leave was conditioned on approval
of
the employee's
department head and reimbursement
of
the cost by CSEA. The memorandum
of
understanding
does not specify which CSEA officer was responsible for requesting union leave and over the
years various CSEA officials signed such requests. There is nothing in the record indicating
any problems with this arrangement prior to January 29, 2001. On that date, CSEA informed
the State
of
California (Department
of
Personnel Administration) that it would reimburse union
leave only
if
it had been approved by the general manager.
The question
of
who approves CSEA expenditures is a matter for CSEA and its
members to decide. These issues are internal to the union and are not to be negotiated at the
bargaining table. Although the mechanism for providing union leave may be a negotiable
subject, the union alone decides who will request union leave for CSEA members.
This Board has found that an employer may not dictate which union representatives
appear at the bargaining table on behalf of the union. (Yolo County Superintendent of Schools
9

(1990) PERB Decision No. 838.) The majority's decision deviates from this labor law
principle by suggesting that the identity
of
the CSEA officer responsible for approving union
leave may be a negotiable matter. I dissent from this possible interpretation and based on the
above reasoning would dismiss this unfair practice complaint.
10

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. SA-CO-237-S, State
of
California
(Department
of
Personnel Administration)
v.
California State Employees Association, SEIU
Local 1000, in which all parties had the right to participate, it has been found that the
California State Employees Association, SEIU Local 1000 (CSEA) violated the Ralph
C.
Dills
Act (Dills Act), Government Code section 3519.S(c). CSEA violated the Dills Act when on or
about January 29, 2001, CSEA informed the State
of
California (Department
of
Personnel
Administration) (DP A) that henceforth it would reimburse DP A for only those union leave
requests that were made by the general manager
of
CSEA. This policy was a change from the
past practice whereby both the director and deputy director
of
the civil service division
of
CSEA also had the authority to request union leave. The change resulted in the failure
of
CSEA to reimburse DP A for union leave approved by officers
of
the civil service division, but
not the general manager.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
Unilaterally changing the past practice whereby CSEA officers in addition to
the general manager had the authority to make union leave requests on behalf
of
CSEA
members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE DILLS ACT:
1.	
Effective immediately upon service
of
a final decision in this matter
reinstate the prior practice whereby CSEA officers in addition to the general manager have the
authority to make union leave requests on behalf
of
CSEA members.
2.	
Reimburse the State
of
California for all union leave which DP A granted
to CSEA members in accord with the prior practice, but whose leave requests were not signed
by the CSEA general manager. 	The reimbursement shall include interest at the rate
of
seven

(7) percent accrued beginning 30 days after the first date on which DPA submitted invoices to
CSEA that were subsequently denied because the union leave request forms had not been
signed by the CSEA general manager.
Dated: --------- CALIFORNIA STATE EMPLOYEES
ASSOCIATION, SETIJ LOCAL 1000
By: ------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE OF CALIFORNIA (DEPARTMENT OF
PERSONNEL ADMINISTRATION),
Charging Party,
V.
CALIFORNIA STATE EMPLOYEES
ASSOCIATION, SEIU LOCAL 1000,
Respondent.
UNFAIR PRACTICE
CASE NO. SA-CO-237-S
PROPOSED DECISION
(4/23/02)
Appearances: Howard L. Schwartz, Chief Counsel, for State of California (Department of
Personnel Administration); Steven B. Bassoff, Attorney, for California State Employees
Association, SEIU Local 1000.
Before Ronald E. Blubaugh, Administrative Law Judge.
PROCEDURAL HISTORY
This case presents the unusual situation of an employer accusation that an exclusive
representative has made a unilateral change. Specifically, the employer contends that the
union unilaterally changed the past practice for authorizing its members to be on union leave.
This action, the employer contends, has put it in the position of having to choose sides in an
internal union fight. 	The union rejects this contention, asserting that its general manager has
the authority to decide who goes on union leave and who does not. In the union's view, the
employer has inserted itself into the internal union dispute.
This action was commenced on March 15, 2001, when the State of California
(Department of Personnel Administration) (State) filed an unfair practice charge against the
California State Employees Association, SEIU Local 1000 (CSEA or Union). The charge
alleged that on or about January 30, 2001, Steven Bassoff, an attorney representing CSEA,

notified Marty Morgenstern, director of the Department of Personnel Administration (DPA)
that henceforth only CSEA General Manager Frank Guilelmino was authorized to request
Union leave for CSEA members. The charge alleged further that on or about February 8,
2001, Jim Hard, director of the CSEA Civil Service Division, asserted in a letter to
Mr. Morgenstern that only he and the Civil Service Division deputy director had authority to
authorize Union leave. The charge alleged that by putting the State in the position of choosing
between the competing positions, CSEA was attempting to cause the State to commit an unfair
practice in violation of section 3519.5(a) of the Ralph C. Dills Act (Act). 1 On August 16,
2001, the State withdrew its allegation that the Union had violated section 3519.5(a) and
amended its charge to allege a violation of section 3519.5(c).
On August 17, 2001, the General Counsel of the Public Employment Relations Board
(PERB or Board) issued a complaint alleging that prior to January 30, 2001, it was CSEA's
policy to reimburse the State for the costs of employees on Union leave when the leave "had
been granted pursuant to the request of [CSEA]'s officers including the Civil Service Division
1 Unless otherwise indicated, all statutory references are to the Government Code. 	The
Dills Act is codified at section 3512 et seq. Section 3519.5 provides in relevant part:
It shall be unlawful for an employee organization to:
(a) Cause or attempt to cause the state to violate
Section 3519.
(b) Impose or threaten to impose reprisals on employees,
to discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter.
(c) Refuse or fail to meet and confer in good faith with a
state agency employer of any of the employees of which it is the
recognized employee organization.
2

Director, General Manager and others." On or about January 30, 2001, the complaint alleges,
CSEA changed this policy
by
refusing to reimburse the State for the cost
of
employees
on
Union leave unless such leave had been authorized
by CSEA's general manager. This change,
the complaint alleges, was made without prior notice to the State and without affording the
State the opportunity to meet and negotiate over the decision. By these acts, the complaint
alleges, CSEA failed to bargain in good faith in violation
of
section 3519.S(c).
The hearing was conducted in Sacramento on January
15
and 16, 2002. With the filing
of
briefs, the matter was submitted for decision on April 2, 2002.
FINDINGS OF FACT
DP A is the State employer within the meaning
of
section 3513(j). CSEA is an
employee organization within the meaning
of
section 3513(a) and is the recognized employee
organization within the meaning
of
section 3513(b)
of
nine appropriate units
of
State
employees. At all times relevant there were collective bargaining agreements in effect between
the State and CSEA for all nine units represented by CSEA.
The collective bargaining agreements in effect throughout the relevant period all
contain provision for Union leave. The Union leave provisions in all material respects are
identical for all nine units. The contracts provide that "A Union leave may
...
be granted
during the term
of
this Contract at the discretion
of
the affected department head or designee in
accordance with" certain specifically listed conditions. Among the conditions is a requirement
that the Union:
...
reimburse the affected department(s) for the full amount
of
the affected employee's salary, plus an additional amount equal
to 35 percent (35%)
of
the affected employee's salary, for all the
time the employee is off on a Union leave;
...
3

Under the contract, the State is not responsible for Worker's Compensation expenditures for
any employee injured while on Union leave.
Employees who are on Union leave complete monthly time sheets which they tum into
their State departments. They declare the number of hours they have worked during the month
just as they would have done at their regular State positions, indicating that they were absent
on Union leave. They receive their regular State paychecks and the full State benefit package.
Union members are absent varying amounts of time on Union leave. Some are absent several
days in a month. 	Others may be on Union leave for several weeks or months. Still others who
hold high positions in CSEA may be absent on Union leave for years.
There is no centralized system by which the State secures reimbursement from CSEA
for employees on Union leave. Each department with employees on leave bills CSEA
according to its own schedule. Bruce Arbuckle, the labor relations officer for the Department
of Motor Vehicles, testified that in his department the claims are submitted to CSEA in
batches. He said that at times there is a lengthy period between when the employee is absent
on Union leave and the claim is submitted to CSEA. David Brubaker, chief of labor relations
for the Department of Transportation, testified that the department bills CSEA only once a year
for persons such as Civil Service Division Deputy Director Cathy Hackett who has been on
CSEA leave for four or five years.
Requests that employees be released to serve on collective bargaining committees are
made directly to DP A. All other requests for an employee to be released on Union leave are
made to the labor relations officer of the department where the affected employee works. 	The
labor relations officer contacts the employee's immediate supervisor to determine whether
work requirements will permit release of the employee for the requested period. If there is no
4

problem, then the leave is approved. If department work requirements indicate that the
employee cannot be released for the requested period, an attempt will be made to find mutually
agreeable alternative dates. If the department ultimately denies the request, the Union can
appeal the denial to DP A, which has the authority to overrule the department's denial.
Requests for Union leave are made in writing and must identify the employee to be
released and the dates. There is no place on the leave request form for the Union to state the
purpose of the requested leave or reveal what the employee will be doing when working for the
Union. The collective bargaining agreement does not address the question of whether the State
can deny requests for Union leave because it does not approve of what the employee will be
doing while on leave and it has not been the practice for the State to inquire.
Often, employees go on personal leave and then, after-the-fact, request to have the
absence reclassified as Union leave. In such situations, if Union leave is not approved the
absence will remain as a charge against the employee's personal leave balances.
The contract between the parties does not identify which CSEA officer is authorized to
make requests for Union leave on behalf of a member. It states only that "[t]he Union shall
have the choice of requesting an unpaid leave of absence or a paid leave of absence .... " 	The
word "Union" is not defined in the contract other than in the recognition clause. Over the
years, CSEA officers at different levels of authority have signed requests for members to
receive Union leave. These have included the director and deputy director of the Civil Service
Division and the general manager of CSEA. At least one former staff employee of CSEA, the
late Tut Tate, also has signed requests for Union leave. Historically, there has been no practice
ofrestricting to only one person within CSEA the authority to make requests for Union leave
on behalf of members.
5

In 2001, Ms. Hackett was a candidate to fill a vacant seat on the Sacramento City
Council. At a meeting on January 6-7, 2001, the CSEA Governmental Affairs Committee
failed to adopt a resolution supporting her candidacy. On January 22, 2001, Steven Basso ff, an
attorney representing CSEA, wrote to Ms. Hackett and warned her that as a full-time officer of
CSEA her "work-time is supposed to be entirely devoted to fulfilling [her] specific duties to
CSEA." The letter continued:
CSEA must inform you that conducting any campaign-related
activities during work hours is prohibited .... [,I] This letter is to
caution you to monitor carefully your time so that neither you nor
CSEA are subjected to any sanctions whatsoever for your
activities related to your campaign ....
Ms. Hackett did not reply to the letter.
In response to reports to CSEA that Ms. Hackett and perhaps others were using Union
leave to work on her campaign, CSEA directed its attorney to put the State on notice that if
CSEA General Manager Frank Guilelmino's signature "was not on the union leave request
form that CSEA would not honor it and would not reimburse the State." Accordingly, on
January 29, 2001, Mr. Bassoff wrote to DPA Director Marty Morgenstern and advised him that
henceforth only the general manager of CSEA would have the authority to make a Union leave
request on behalf of CSEA. Mr. Basso ff stated that CSEA would not reimburse the State for
Union leaves not requested by the general manager. The letter reads in part as follows:
... Neither Jim Hard nor Cathy Hackett is authorized to request
union leave for a member without the approval of CSEA's
General Manager. ... [i[J It is my understanding that Mr. Hard
has sought union leave for at least two individuals - Van Evans
and Lyle Hintz without the approval of the General Manager.
Please be advised that CSEA is not requesting union leave for
these individuals and will not reimburse the State for any union
leave that was granted by the State without the signature of
CSEA' s General Manager.
6

Mr. Hard is the director and Ms. Hackett the deputy director of CSEA' s Civil Service Division,
the division of CSEA that represents rank and file bargaining unit employees of the State.
They are the two highest ranking officers of the Civil Service Division.
By letter of February 6, 2001, DPA General Counsel Howard Schwartz asked Mr. Hard
for his "reaction" to the assertion that he had no authority to approve Union leave requests. In
relevant part, Mr. Schwartz wrote:
... If you have concerns, please let us know. If you anticipate
requesting union leave without the approval of the CSEA General
Manager, please specify what procedures you will follow to
ensure that the State is reimbursed for this time.
In his reply of February 8, 2001, Mr. Hard asserted that the Civil Service Division
Division director and deputy director are
... the only two individuals with authority to request Union leave
for CSEA/SEIU Local 1000 members of the Civil Service
Division. That authority is in no way limited by the CSEA
General Manager.
Review of managements' records for the past 18 years will verify
this fact. ... [ii] Furthermore, the bylaws of CSEA state that the
Director and Deputy Director constitute the Civil Service
Division Committee of the CSEA Board of Directors with final
authority to act on behalf of CSEA in all matters within the scope
of representation. There is no provision within any CSEA
Bylaws or Policy giving the CSEA General Manager any
authority over actions of the CSD Director or Deputy Director in
regard to Union leave requests.
Please be assured that Cathy Hackett and I will take all actions
within our means to honor the letter and the spirit of the current
contract. I hope this again clarifies our position and that no one
is able to induce state management into committing an unfair
labor practice by refusing to honor Union leave requests
authorized by Cathy Hackett or myself.
This exchange of correspondence must be understood in the context of an internal
struggle that has gone on within CSEA for a decade. This struggle has resulted in the filing of
7

numerous unfair practice charges with the PERB.2 Unlike most unions, CSEA is a non-profit,
mutual benefit corporation with four quasi-autonomous divisions. The internal fight for the
most part has been waged over the relationship between CSEA, the parent organization, and its
Civil Service Division, the largest
of
the four divisions.3 The Civil Service Division is
composed
of
active State civil service employees who are represented in the nine State
employee bargaining units for which CSEA is the exclusive representative. As is made clear in
previous PERB decisions, Mr. Hard and Ms. Hackett are leaders
of
the faction that favors
greater independence for the Civil Service Division. CSEA President Perry Kenny and a
majority
of
the board
of
directors favor continuation
of
the existing relationship.
CSEA followed its January letter to Mr. Morgenstern with a February 23, 2001, letter
addressed to the labor relations officers
of
all State departments. The February letter warned
that CSEA would not reimburse the State for Union leave not requested by Mr. Guilelmino.
The letter advised that "any union leave after January 29, 2001 is not authorized unless
approved by CSEA's General Manager, and that CSEA will not honor any invoices from state
2 A partial listing
of
cases includes: California State Employees Association (Hackett
et al.) (1993) PERB Decision No. 979-S and 979(a)-S; California State Employees Association
(Hackett) (1993) PERB Decision No. 1012-S; California State Employees Association
(Hackett) (1995) PERB Decision No. 1126-S; California State Employees Association (Hard et
al.) (1999) PERB Decision No. 1368-S; State Employee Caucus for A Democratic Union
(Kenny et al.) (2000) PERB Decision No. 1399-S; California State Employees Association
(Gonzales-Coke et al.) (2000) PERB Decision No. 1411-S; California State Employees
Association (Hard et al.) Case No. SA-CO-225-S, currently on appeal to the Board; California
State Employees Association (Hackett) (1995) PERB Decision HO-U-599-S; and California
State Employees Association (Hard et al.) (2000) PERB Decision HO-U-747-S.
3 The other CSEA divisions are: the California State University Division which
represents university employees and whose members are all active university workers; the
Supervisors' Division which through the Association of California State Supervisors represents
State supervisory members in a non-collective-bargaining relationship with the State; and the
Retiree Division with members retired from State or university employment.
8

departments for any unauthorized leaves." The CSEA letter was signed by CSEA Controller
Patrick Haagensen and displayed a sample signature
of
Mr. Guilelmino.
In a letter dated March
9,
2001, Christopher
W.
Katzenbach, an attorney representing
Mr. Hard and Ms. Hackett, asserted to Mr. Morgenstern that CSEA bylaws do indeed grant to
Civil Service Division officers authority to approve Union leave. He asserted further that the
division bylaws give division officers the authority to withdraw money from division bank
accounts to pay budgeted expenses such
as
Union leave.
	If
necessary, Mr. Katzenbach wrote,
"Mr. Hard and Ms. Hackett can exercise this authority to ensure that the State is reimbursed for
Union leave as the contract requires."
Mr. Hard and Ms. Hackett also gave their personal assurances to DP A that the
State would be paid for any Union leave approved by them. In a March meeting with
Mr. Morgenstern they assured him "that they were the ones that had the authority to approve
the union leave, and that any
of
the union leave that they approved would be paid," according
to Gloria Moore Andrews, State chief
of
labor relations who attended the meeting.
Faced with these competing demands, DP A advised CSEA that it would continue
to follow the past practice on approvals
of
Union leave and it expected CSEA to do the
same. Mr. Schwartz set out this position by letter
of
March 20, 2001. In relevant part,
Mr. Schwartz's letter reads:
The DP A, for its part, views CSEA and its Civil Service Division
as one entity. Director Morgenstern, myself, and others at DP A
have repeatedly stated to CSEA officials that the State does not
intend to take sides in an internal union dispute. It is for CSEA
alone to decide who, within its organization, has the authority to
request union leave and to communicate that decision clearly to
DP A. Threats that reimbursements will be withheld or unfair
practice charges will be filed against the State for siding with one
faction against another are inappropriate and are themselves
unlawful.
9

Over the past few weeks, the DPA has had several conversations
with Mr. Bassoff, Mr. Hard and other CSEA officials.
Unfortunately, we find no consensus among CSEA
representatives as to whom and how union leave may be
requested. Pending receipt from CSEA
of
a clearly stated
position, the State intends to abide by the past practice
of
honoring union leave requests that are submitted by an authorized
CSEA representative, including those authorized by the Civil
Service Division Director or Deputy Director alone.
On March 22, 2001, Ms. Andrews sent to all State employee relations officers a copy
of
Mr. Schwartz's letter to CSEA. In an attached memo, she notes the possible problem
of
securing reimbursement for wages paid to employees on Union leave. She suggests that the
departments might seek payment for requested Union leave prior to the commencement
of
the
requested leave. This advice left the Department
of
Motor Vehicle's Mr. Arbuckle unclear
about what the departments were to do. "We were looking for a positive, straightforward
direction from DPA," he testified. "Either
...
we approve it or we don't, and they tended not
to go in that direction."
Despite Mr. Bassoff's warning to Ms. Hackett that she should not engage in campaign
activities during hours covered by her Union leave, Mr. Guilelmino continued to receive
reports regarding the use
of
Union leave for campaign activity. These reports pertained not
only Ms. Hackett but to others on Union leave. Mr. Guilelmino asked Mr. Basso ff to "find out
if
there was any truth to the rumor that there were people actively campaigning for Cathy
Hackett while on union leave." Pursuant to this request, Mr. Bassoff hired a private detective
agency to investigate whether any
of
the persons working in Ms. Hackett's campaign were
State employees on Union leave. Mr. Guilelmino testified that reports prepared by the
detective agency established to his satisfaction that Ms. Hackett and three CSEA members on
Union leave were all working on her campaign during business hours.
10

Mr. Guilelmino testified that his purpose in requiring that his signature be on all
requests for Union leave was to ensure that leave was used properly.
We felt it was our obligation, to ensure that the members' dues
are used for representation and for the purpose
of
strictly
governance work within CSEA. And that we had a fiduciary
responsibility to make sure that this was what was occurring.
On April 2, 2001, Mr. Hard moved to end the impasse within CSEA. In an electronic
mail message to Mr. Guilelmino, Mr. Hard wrote:
To further the interests
of
our Civil Service Division members in
the fight for a good contract, to avoid additional grievances and
possible hardships on our volunteer member organizers I am
agreeing to allow Union Leave Forms to be signed by you along
with myself or Cathy Hackett so as to comply with recent
demands made by various departments
of
the State
of
California.
This in no way resolves the dispute over the proper authority
of
the CSD Officers and General Manager in regard to Union Leave.
The following day, Mr. Bassoff sent a copy
of
Mr. Hard's message to DPA Chief Counsel
Schwartz. Mr. Basso
ff
wrote that "Mr. Hard's acknowledgement
of
the General Manager's
authority puts this dispute to rest." Mr. Basso ff also asserted a belief that "this resolution
renders DP
A's
unfair practice charge moot."4 Ms. Andrews testified, however, that it
remained DPA's position that "[w]e wouldn't change our practice, 	" Therefore, in
DPA's
view the dispute was not resolved by Mr. Hard's e-mail message.
As
of
the last day
of
hearing, there were two employees for whose Union leave CSEA
had refused to reimburse the State. There were at least two others for whom payment had not
yet been denied but who had taken leave without the approval
of
Mr. Guilelmino. CSEA
requested that the State provide copies of the timesheets submitted by four members who
4 CSEA does not argue in its brief that the question of who has authority to authorize
Union leave was made moot by Mr. Hard's letter and I do not consider that issue.
11

claimed Union leave. DP A refused to turn over the timesheets, asserting employee rights
of
privacy. Several timesheets were provided to CSEA by department labor relations officers
who apparently were unaware
of
DPA' s position.
LEGAL ISSUE
Did CSEA fail to meet and confer in good faith when on January 29, 2001, it advised
the State that henceforth only the General Manager
of
CSEA was authorized to request
permission for a CSEA member to go on Union leave?
CONCLUSIONS OF LAW
Unions, like employers, are obligated by the Dills Act to meet and confer in good faith.
It is a violation
of
section 3519.5(c) for a union to "[r]efuse or fail to meet and confer in good
faith with a state agency employer
of
any
of
the employees
of
which it is the recognized
employee organization." The contention here is that by failing to bargain with the State prior
to changing the practice for seeking Union leave, CSEA made a unilateral change and thereby
failed to meet and confer in good faith.
Charges by an employer that a union has made a unilateral change are not common.
This apparently is because
of
the "relative inability [
of
unions] to effect unilateral changes. "5
The PERB has considered this issue only once, in University Council-American Federation
of
Teachers (1992) PERB Decision No. 922-H. In that case, the Board applied the same
unilateral change analysis that it employs in cases against employers. 	The Board dismissed the
charge and complaint upon a finding that the change at issue did not involve a matter within
the scope
of
representation.
5 The Developing Labor Law (4 th ed., 2001) BNA, Vol. I, Chapter 13, pp. 781-782.
12

To prevail on a complaint
of
unilateral change, the charging party must establish
by
a
preponderance
of
the evidence that (1) the respondent breached or altered the parties' written
agreement or own established past practice; (2) such action was taken without giving the other
party notice or an opportunity to bargain over the change; (3) the change was not merely an
isolated breach
of
the contract, but amounts to a change
of
policy (i.e., has a generalized effect
or continuing impact upon the terms and conditions
of
employment); and (4) the change in
policy concerns a matter within the scope
of
representation. (Grant Joint Union High School
District (1982) PERB Decision No. 196 (Grant); State
of
California (Department
of
Forestry
and Fire Protection) (1993) PERB Decision No. 999-S.)
Under the standard the Board has adopted, to be binding a past practice:
...
must be (1) unequivocal; (2) clearly enunciated and acted
upon; and (3) readily ascertainable over a reasonable period
of
time as a fixed and established practice accepted by both
parties. [Citation.] The Board has
...
described a valid past
practice as one that is "regular and consistent" or "historic and
accepted." . . .[6]
The facts are largely undisputed. Although the negotiated agreement does not specify
which agent within CSEA is authorized to request Union leave, the practice has been that
several officers and staff employees have had the authority. Among those who in the past
could request Union leave were the director and deputy director
of
the CSD.
It
is undisputed
that on January 29, 2001, CSEA by letter to DPA changed this practice and restricted to the
general manager
of
CSEA the sole authority to request Union leave.	
It
is undisputed that this
action was taken unilaterally, without any prior notice to the State.	
It
also is clear from the
wording in the correspondence sent by CSEA to the State that this change will be continuing
6 Hacienda La Puente Unified School District (1997) PERB Decision No. 1186 adopting the
administrative law judge decision at p. 13.
13

and will affect all CSEA members in all nine units represented by the Union. The critical
question here, as is made clear in the briefs
of
the parties, is whether this change affected a
matter within the scope
of
representation.
The State cites PERB cases holding that released time is a mandatory subject
of
bargaining. The State reasons that Union leave is simply a form
of
reimbursed released time.
Because Union leave involves hours
of
work, the State contends, it is a negotiable subject.
Noting that what specifically is at issue is the procedure under which Union leave is requested,
the State applies the analysis adopted by the Board in Anaheim Union High School District
(1981) PERB Decision No. 177 (Anaheim).7 Proceeding through each
of
the elements in the
test, the State concludes that the procedures for authorization
of
Union leave are negotiable and
consequently, the Union has failed to negotiate in good faith.
CSEA argues that "who at CSEA is authorized to sign union leave requests is not
negotiable" under the Anaheim test. The matter is not logically related to hours or any other
condition
of
employment, CSEA contends. Moreover, CSEA continues, the subject is not
of
such a concern that the mediatory effects
of
collective bargaining are needed. Finally, CSEA
concludes,
if
CSEA is required to negotiate about the subject its freedom to exercise its
prerogative over fundamental matters
of
association policy would be significantly abridged.
The question
of
which person within CSEA has the authority to incur financial liability against
the Union is not a matter that should be subjected to the collective bargaining process, CSEA
asserts. 	"The State is not permitted to become involved in matters
of
such fundamental
7 This test was approved in San Mateo City School District v. PERB (1983) 33 Cal.3d 850
[191 Cal.Rptr. 800].
14

financial policy
of
a labor union," CSEA concludes. "Therefore, the matter is not within
scope."
As noted by the parties, the issue here is not the negotiability
of
Union leave. 	The
parties have negotiated provision for Union leave in their agreement and there is no assertion
here that Union leave is outside the scope
of
representation. The question here is the
negotiability
of
procedures for determining who approves Union leaves. The PERB has never
considered this issue.
Under Dills Act section 3516, the scope ofrepresentation
...
shall be limited to wages, hours, and other terms and
conditions
of
employment, except, however, that the scope
of
representation shall not include consideration
of
the merits,
necessity, or organization
of
any service or activity provided by
law or executive order.
The Union is obligated therefore to "meet and confer in good faith" 8 regarding "wages, hours
and other terms and conditions
of
employment." Refusal to meet about these mandatory
subjects, or to make a unilateral change, is an unfair practice.
The Union would not violate the Act, however,
if
it refused to negotiate about, or
makes a unilateral change affecting, a matter outside the scope
of
representation. Both parties
to the negotiations process have an absolute right to take unilateral actions regarding matters
that are not mandatory subjects
of
bargaining.
The PERB' s test for negotiability was written from the perspective
of
what an employer
is obligated to negotiate about. Because the test as written does not recognize the union
interests that are involved here, I will apply a modified version. I conclude that as to a union, a
subject is negotiable under section 3516 if: 	(1) it is logically and reasonably related to wages,
8 See section 3519.5(c).
15

hours or other terms and conditions
of
employment, (2) the subject is
of
such concern to both
management and employees that conflict is likely to occur and the mediatory influence
of
collective negotiations is the appropriate means ofresolving the conflict, and (3) obliging the
union to negotiate would not specifically abridge the union's freedom to exercise those
managerial prerogatives (including matters
of
fundamental policy) essential to the achievement
of
the union's mission. 9
Union leave is related to both hours and wages. When employees go on Union leave
they are excused from hours and their wages and benefits are maintained. Thus, Union leave
impacts both. Yet Union leave could not exist without some procedure under which the leave
can be taken. There has to be a method agreed upon by the parties whereby leaves can be
requested, approved or denied and the State reimbursed for the lost time. Without a procedure,
there would be no way for the option
of
Union leave to be exercised. The procedural method
is directly related to Union leave and, accordingly, related to hours and wages. Indeed, these
parties have negotiated just such a procedure. The procedure they negotiated identifies who at
the State shall have the authority to approve Union leaves: "the affected department head or
designee." It does not identify who at the Union shall have the authority to request a Union
leave. Yet had the parties chosen to negotiate about who at the Union would make the request
for Union leave, the relationship to Union leave would have been apparent.
As the facts
of
this case illustrate, the question
of
who at the Union has the authority to
request Union leave is a subject
of
such concern to both parties that the mediatory influence of
collective bargaining is an appropriate means of resolving the conflict. The State has
9 The Anaheim test was adopted for application under the Dills Act in State of California
(Department of Transportation) (1983) PERB Decision No. 361-S.
16

expressed no interest in controlling who at CSEA has the authority to seek Union leaves.
Indeed, in his letter
of
March 20, 2001, Mr. Schwartz asserted that "[i]t is for CSEA alone to
decide who, within its organization, has the authority to request union leave and to
communicate that decision clearly to DPA." But what the State has asserted is the need for an
unequivocal statement from CSEA about who has the authority to approve leaves. When
CSEA changed the prior practice and substituted a centralized authority for the diffused
authority
of
the past, the State was confronted with the rival factions at CSEA each asserting
that organizational bylaws and rules gave it the sole authority to request Union leave. 	The
State was not in a position to choose sides. However,
if
the matter were put at the bargaining
table the State could insist that CSEA designate an approving authority and place that
designation in the agreement so the State would not again be caught between the rival factions
within CSEA.
The final question is whether negotiations would abridge CSEA's freedom to exercise
its prerogatives over matters
of
fundamental policy essential to the achievement
of
the union's
mission. CSEA sees any requirement that it bargain over the question
of
who may seek
authorization for Union leave as an intrusion into the Union's control over its financial
decisions. "Taken to its extreme conclusion," CSEA argues, "the State could dictate to CSEA
who would be responsible for making these decisions and incurring significant financial
liability for CSEA. The State is not permitted to become involved in matters
of
such
fundamental financial policy
of
a labor union."
Good faith bargaining does not encompass the idea of one side being able to dictate to
the other any term or condition. Good faith bargaining rests on the idea that the two sides will
bargain toward a mutually agreeable result. The question here is whether the identity
of
who is
17

authorized to request Union leave is a matter
of
fundamental policy. 	I do not find it so. 	I
would note that the agreement between these parties already specifies who on the management
side can approve Union leaves: "the affected department head
or
designee." One can imagine
a discussion at the bargaining table over whether authority for approvals
of
Union leave should
be centralized or diffused. Negotiating about centralized or diffused approval authority would
not interfere with the Union's fundamental interests which are negotiating agreements and
representing employees in grievances.
This conclusion is not affected
by
the possible financial implications
of
approvals for
Union leave. Many subjects negotiated in collective bargaining have financial implications.
That a negotiating proposal might involve the expenditure
of
funds, or a determination
of
who
is authorized to expend funds, does not mean that it encroaches upon a fundamental interest.
All that is involved here is the procedure for making and approving requests for Union leave.
The Board has found procedural arrangements to be negotiable when they do not usurp an
employer's rights or involve core managerial decisions that go to the heart
of
an employer's
ability to formulate policy and carry out its overall mission. (Fremont Unified School District
(1997) PERB Decision No. 1240-E at pp. 35-37
of
the adopted decision
of
the administrative
law judge.) I conclude that the same principle is applicable here and that CSEA's January 29,
2001, change in the past practice regarding who was authorized to request Union leave did
involve a matter within the scope
of
representation.
CSEA presented considerable evidence during the hearing to demonstrate that its action
was motivated by a desire to stop what it considered to be an abuse
of
Union leave. However,
good motivation is not a defense to an allegation of unilateral change. A party may have very
good reasons for wanting to implement a particular change. Nevertheless,
if
the change
18

involves a negotiable matter, the party wishing to make the change must take it to the
bargaining table. In the meantime, the prior practice must remain in effect.
Accordingly, I conclude that CSEA failed to meet and confer in good faith when on or
about January 29, 2001, it notified the State that henceforth only the general manager
of
CSEA
was authorized to request permission for a CSEA member to go on Union leave.
REMEDY
The PERB in section 3514.5(c) is given:
...
the power to issue a decision and order directing an offending
party to cease and desist from the unfair practice and
to
take such
affirmative action, including but not limited to the reinstatement
of
employees with or without back pay, as will effectuate the
policies
of
this chapter.
Here, CSEA unilaterally changed the past practice regarding who in CSEA had the
authority to request Union leave for CSEA members. This change had the effect
of
requiring
the State to choose which among two competing factions at CSEA had the authority to speak
for the Union. The change also resulted in the failure
of
CSEA to reimburse the State for
Union leave approved by one, but not both,
of
the competing factions. This action was a
violation
of
section 3519 .5(c).
The ordinary remedy in a case involving a unilateral change is an order reinstating the
past practice and directing the party that made the change to make the injured party whole for
any losses caused by the change. It also is appropriate to order the party that made the change
to cease and desist from making a unilateral change. These remedies will be granted here.
It is further appropriate that CSEA be directed to post a notice incorporating the terms
of the order. Posting
of
such a notice, signed by an authorized agent of CSEA, will provide
employees with notice that CSEA has acted in an unlawful manner, is being required to cease
19

and desist from this activity, and will comply with the order. It effectuates the purposes of the
Dills Act that employees be informed of the resolution of this controversy and CSEA's
readiness to comply with the ordered remedy. (Placerville Union School District (1978) PERB
Decision No. 69.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record in the
case, it is found that the California State Employees Association, SEIU Local 1000 (CSEA or
Union), violated the Ralph C. Dills Act (Act), Government Coed section 3519.S(c). CSEA
violated the Act when on or about January 29, 2001, CSEA informed the State of California
(Department of Personnel Administration) (State) that henceforth it would reimburse the State
for only those Union leave requests that were made by the general manager of CSEA. 	This
policy was a change from the past practice whereby both the director and deputy director of the
Civil Service Division of CSEA also had the authority to request Union leave. This change
had the effect of requiring the State to choose which among two competing factions at CSEA
had the authority to speak for the Union. The change also resulted in the failure of CSEA to
reimburse the State for Union leave approved by one, but not both, of the competing factions.
Pursuant to section 3514.S(c) of the Government Code, it hereby is ORDERED that CSEA and
its representatives shall:
A. 	CEASE AND DESIST FROM:
Unilaterally changing the past practice whereby CSEA officers in addition to the
general manager had the authority to make Union leave requests on behalf of CSEA members.
R 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
20

1. 	Effective immediately upon service of a final decision in this matter
reinstate the prior practice whereby CSEA officers in addition to the general manager have the
authority to make Union leave requests on behalf of CSEA members.
2. 	Reimburse the State of California for all Union leave which the State
granted to CSEA members in accord with the prior practice but whose leave requests were not
signed by the CSEA general manager. 	The reimbursement shall include interest at the rate of
7 percent accrued beginning 30 days after the first date on which the State submitted invoices
to CSEA that were subsequently denied because the Union leave request forms had not been
signed by the CSEA general manager.
3. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations, throughout the State of California, where CSEA customarily posts
notices to its members, copies of the Notice attached hereto as an Appendix. The Notice must
be signed by an authorized agent of CSEA, indicating that CSEA will comply with the terms of
this Order. Such posting shall be maintained for a period of thirty (30) consecutive workdays.
Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced
or covered with any other material.
4. 	Upon issuance of a final decision, make written notification of the
actions taken to comply with the Order to the Sacramento Regional Director of the Public
Employment Relations Board in accord with the director's instructions.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
21

Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit.
8,
sec. 32300.)
A document is considered "filed" when actually received before the close
of
business
(5
p.m.) on the last day set for filing or when mailed by certified or Express United States mail,
as
shown on the postal receipt or postmark, or delivered to a common carrier promising
overnight delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Cal. Code Regs., tit.
8,
secs. 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before
the close
of
business on the last day for filing together with a Facsimile Transmission Cover
Sheet which meets the requirements
of
California Code
of
Regulations, title 8,
section 32135(d), provided the filing party also places the original, together with the required
number
of
copies and proof
of
service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b),
(c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
22
~t!.t3~
Ronald E. Blubaugh
Administrative Law Judge