January 25, 2012
Subject: Ermine Nelson: PERB Case No. LA-CE-5517-E
I attended yesterday’s PERB hearing for Ms. Ermine Nelson [PERB Case No. LA-CE-5517-E].
The hearing went very well from my perspective. What was alarming, however, is what was testified to about the absolute inaction and ignorance of the leadership of the employee unions’ representatives within the Jurupa Unified School District. Based on the fact that I contacted union leadership for the NEAJ and CSEA before then, I can only assume that the disregard of what the District is doing is intentional or you are being union-busted by the District and don’t even know it.
Under Government Code §§ 3540-3543 and related provisions of law, the District had an absolute duty to send any grievances, however old or new, merit or no merit, directly to the Union upon receipt (where the grievance originated from a member or presumed employee). In this particular case and many others I have tried to tell you about, NEAJ was never aware of grievances (as many as 28 in one case alone in July 2010).
Under oath and cross-examination, Tamara Elzig testified to the two following key facts. Her testimony is memorialized and recorded:
1. It is the District’s position that union and employee rights go on leave at the same time the employee goes on medical leave (regardless of whether breaches of the CBA occurred even while on leave – Which would include: breaches of union privacy, keeping information from the union, interfereing with lawful association of union members, and interfering with attorney work-product under CCP 2018, and union busting);
2. It is the District’s position that it does not have to forward grievances to the Unions when it feels that there is no merit to the grievance.
I very quickly, in an objection-response exchange, mentioned to Judge Cu that we have not filed a charge against the District’s unions. I am aware of 150+ grievances that have been filed by my clients alone (both classified and certificated). I am going to very nicely ask you folks to once again review your policies, practices, and procedures to make sure that your members’ rights aren’t being trampled right under your noses. As you know, the Code does confer the right to an individual employee to bring a Superior Court action. We have already mentioned the violation of many of these rights in Archambault v. JUSD, et.al. (a First Amendment, Due Process, anti-discrimination, ant-racism, and Equal Application declaratory relief case).
If you all really believe that DFEH, EEOC, USDOE, CTA, NEA, CDOE will take to the position that a disabled employee, on approved medical leave, cannot file any grievances whatsoever, this will be a REALLY BIG PROBLEM not only for the District, but for you. If the lack of attention to grievance processes meant that employees did not know they could even file grievances, there is a bigger problem. Unfortunately, there is plenty of sworn testimony on this issue already.
It makes one wonder about how many other employee problems were kept from you and the CSEA. Worse yet, how many breaches of confidentiality of membership, representative organizations, and counsel have occurred? It is a federal and state crime to monitor union membership communications without adequate notice and without sufficient probable cause. I am reserving all rights my clients have under Section 1983 and to take further action.
The District has already lost a motion under CCP 425.16, rendered damaging sworn testimony on lack of Due Process in the Braden arbitration conducted before Hon. Arturo Morales, and Superintendent Elzig’s performance yesterday was an outright admission of an intention to directly interfere with Union Rights. We already know from the Norman and Gonzalez cases that the District monitors all communications over its electronic wire systems and mail systems (as defined under Federal Law) and is aware of and checks the content of union and legal counsel writings and communications. Employees and union membership are not adequately warned of the tapping.
With regard to Mr. Vigrass, why don’t you have a private e-mail address for Union business? The District has already proven that it knows what you discuss. You have no less than two or three members under fire for what was allegedly found on their classroom computers (including Union business). Some of the horrifically perturbing information was placed on my client’s computer, in the Norman case, after he was already on administrative leave (a literal, figurative, and unconstitutionally sound reality).
Yesterday, your District proved, beyond a doubt, that it doesn’t see your union activities as confidential. Superintendent Elzig and her counsel vigorously argued for a claim to know what you are up to, when you meet with your members, and how many times. This is constitutionally unacceptable and, in my privileged opinion, violates many state and federal laws.
The ALJ also could not rule on whether your discussions with accused union members was/is confidential. I am supposed to brief that issue. I’ve never been to a PERB hearing and didn’t even know what PERB was before this proceeding.
Fortunately for the Union, in this limited case, you were not at the scene of ‘crime’ as it were. The unions had already chosen to ignore Nelson’s case and the District made CBA union representatives look ignorant and ineffective. As you can see from the attached briefing done in CSEA cases and testimony, this isn’t new.
I do know what the law is and basically had to argue it for the unions. It is the District’s position, through counsel and Elzig, that your communications with members are fair game. Worse yet, you have an indemnity provision in your CBA that gives the unions the privilege of paying the District’s bill (at their discretion), win, lose or draw. This is a constitutional and due process disaster of unprecedented proportion. I have many friends who are public employees, in official and elected capacities, and none would approve of this – regardless of politics.
I will look back in my files to find the e-mail from the CSEA’s Janet Jones telling me to mind my own business. More than one of my certificated clients has/have heard similar threats from others aside from Messrs. Sibby and Vigrass. I believe that you have all the right intentions, but your rights, as well as those of your members, have been trampled to death. Identifying what’s left of those rights will not be cheap, easy, or likely to come through my one-man office. I just got out of the hospital myself, am still being diagnosed and evaluated, and am overwhelmed by what is going on within this District. I am desperately hanging on to my ability to achieve victories for your members, but also don’t have the resources to keep it up if the Unions don’t get involved more visibly and effectively.
The amount of real exposure created for the Unions is beginning to be massive to say the least. I am on your side, but I don’t have the resources or manpower to argue matters directly affecting your leadership. Messrs. Sibby and Vigrass have been upfront with me, pursued what information they could verify, and don’t appear to be neutral on the rights of their members. Even with their efforts, the District has now crossed battlefield lines that will end up with innumerable casualties of failures in applying the Principles of the Constitution.
Should you choose to share this e-mail with Ms. Elzig and Mr. Duchon, if they have not already seen it, please let them know that these are simply my opinions and the hearing transcript speaks for itself. The unions got worked over bad and were made to look very stupid and ignorant – and it wasn’t by me.
Perhaps we should discuss this in a more confidential forum. My clients are very concerned and so am I. If you want to meet with my clients as a group and get your colleagues to join us from the CSEA, it would be appreciated.
Richard D. Ackerman
Law Offices of R.D. Ackerman
Madison Executive Suites
27247 Madison Ave., Suite 116
Temecula, CA 92590
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