California Statewide Law Enforcement Association (Armantrout) (PERB 2386S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
F
WILLIAM ARMANTROUT,
Charging Party,
V.
CALIFORNIA STATEWIDE LAW
ENFORCEMENT ASSOCIATION,
Respondent.
Case No. LA-CO-132-S
PERB Decision No. 2386-S
June 30, 2014
Appearances: Thomas A. Hoffman, Attorney, for William Armantrout; Carroll, Burdick &
McDonough, by Jason H. Jasmine, Attorney, for California Statewide Law Enforcement
Association.
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION
HUGUENIN, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by William Armantrout (Armantrout) to the proposed
decision (attached) of a PERB administrative law judge (ALJ). The complaint issued by
PERB' s Office of the General Counsel alleged that the California Statewide Law Enforcement
Association (CSLEA) violated sections 3515.5 and 3519.5 of the Ralph C. Dills Act (Dills
Act) 1 when it: (1) brought charges against and suspended Armantrout from CSLEA without
providing Armantrout with complete copies of CSLEA's Constitution and Standing Rules;
(2) failed to serve Armantrout with a copy of the charges against him, signed by the CS LEA
member bringing the charge, when CS LEA served Armantrout with a notice of intent to take
disciplinary action; (3) failed to hold Armantrout's disciplinary hearing before a neutral
decision maker; and (4) threatened Armantrout's representative-who was also a member of
1 The Dills Act is codified at Government Code section 3 512 et seq. Unless otherwise
noted, all statutory references are to the Government Code.

CS LEA-with discipline if he advocated in support of severance as Armantrout' s
representative.
The ALJ concluded that CSLEA's Constitution (Constitution) and Standing Rules
(Standing Rules), Article X, pertaining to internal disciplinary procedures, were both
reasonable and reasonably applied to Armantrout as required by section 3515.5 of the Dills
Act. The ALJ also concluded that Armantrout failed to exhaust his administrative remedies, as
required by CSLEA Standing Rules, Article X, Section D, before filing an unfair practice
charge before PERB and therefore dismissed his charges.
We have reviewed the entire record in this matter including the proposed decision, the
hearing record, Armantrout's exceptions and CSLEA's response thereto. We conclude that the
ALJ' s proposed decision is supported by the record and in accordance with applicable law.
Accordingly, we adopt the ALJ's proposed decision as the decision of the Board itself, subject
to our discussion below of Armantrout's exceptions.
PROCEDURAL HISTORY
On June 11, 2009, Armantrout filed his initial unfair practice charge alleging that
CSLEA violated section 3519.5 of the Dills Act by retaliating against him for exercising his
rights under the Dills Act and by denying him due process in suspending his union
membership. On June 18, 2009, CSLEA filed its position statement.
On February 23, 2010, PERB's Office of the General Counsel dismissed Armantrout's
retaliation claim, but issued a complaint alleging that CS LEA had violated section 3515. 5 of
the Dills Act by failing and/or refusing to apply reasonable provisions for the dismissal of
individuals from membership and also violated section 3519 .5 by interfering with employee
rights guaranteed by the Dills Act.
2

On March 11, 2010, CSLEA filed an answer to the complaint admitting most
of
the
factual allegations except for those alleging it violated its Constitution, Standing Rules or
section 3515
.5
of
the Dills Act in its disciplinary proceeding against Armantrout. CS LEA
denied any violation
of
sections 3515.5 and 3519.5
of
the Dills Act and noted that PERB has
recognized an employee organization's right to discipline its members for violations
of
the
organization's rules (CDF Firefighters (Pittman) (2006) PERB Decision No. 1815-S), while
California courts have also recognized an employee organization's right to discipline a member
for "dual unionism" (Anderson
v.
Los Angeles County Employee Relations Com. (1991)
229 Cal.App.3d 817).
An informal conference was scheduled for March 26, 2010, and subsequently
rescheduled for April 12, 2010. A formal hearing was scheduled for August 9 and 10, 2010.
On August 4, 2010, the formal hearing was cancelled and placed in abeyance. The formal
hearing was subsequently rescheduled for November 29 and 30, 2010.
On November 29, 2010, the formal hearing was again placed in abeyance pending
execution
of
a settlement agreement. On June 24, 2011, Armantrout, through his attorney,
requested that the case be restored to PERB' s active calendar. A second informal conference
was scheduled for October 18, 2011, with a formal hearing scheduled for February 9 and 10,
2012.
On December 20, 2011, Armantrout filed a motion with the ALJ to defer the matter to
arbitration. On December 28, 2011, CSLEA filed its opposition to the motion to defer to
arbitration. The motion was denied and the formal hearing was held on February 9 and 10,
2012. The ALJ issued his proposed decision on October 15, 2012. On November 28, 2012,
Armantrout filed his exceptions to the ALJ' s proposed decision.
3

FACTUAL SUMMARY
Since we adopt the ALJ' s findings of fact, we shall only summarize the facts briefly
here. Armantrout is a state employee whose exclusive representative is CSLEA. In September
of 2007, a rival employee organization, the Peace Officers of California (POC), was
conducting a campaign to sever the peace officer members of CSLEA into a separate
bargaining unit represented by POC. (Proposed Dec., p. 3.) On or about September 22, 2008,
Armantrout sent an e-mail to CSLEA bargaining unit members which arguably supported the
severance campaign. (Ibid.)
On or about October 16, 2008, CSLEA Senior Vice President Richard Carrillo
(Carrillo) sent Armantrout a notice of intent to take disciplinary action. 	(Proposed Dec., p. 3.)
Carrillo's notice alleged that Armantrout had violated Article XX, Section 2(e) of the CS LEA
Constitution by assisting or intending to assist a competing organization within the jurisdiction
of CS LEA. The notice informed Armantrout of his right to request a hearing before CS LEA' s
disciplinary hearing committee and included "the relevant provisions" of the Constitution and
Standing Rules.
On October 27, 2008, Armantrout sent CSLEA a letter requesting a hearing and, in
addition, several documents, viz.: the charges against Armantrout; the name(s) of the
member(s) who filed the charges; the name of the disciplinary hearing committee members
who were assigned to the matter; a complete copy of the CSLEA Constitution, and a complete
copy of the CSLEA Standing Rules. (Proposed Dec., p. 4.)
On November 15, 2008, Armantrout, through his representative fellow CSLEA member
Allan Irish (Irish), sent CSLEA a letter reiterating the request for the documents requested in
the October 27, 2008 letter. (Proposed Dec., pp. 4-5.) On November 17, 2008, CSLEA
responded by e-mail that the October 16, 2008, notice was the complete copy of the charges
4

against Armantrout and included a copy of Armantrout's September 22, 2008 e-mail which
CSLEA maintained was the basis for the charges. (Id. at p. 5.) The November 17, 2008,
e-mail also stated that the charges were filed by the CSLEA disciplinary hearing committee
and named the six members of the committee.
The November 17, 2008, e-mail further warned Irish that his representation of
Armantrout could subject Irish to sanctions by CSLEA and the California Association of
Criminal Investigators (CACI)2 if, on behalf of Armantrout, Irish took the position that support
of the POC severance campaign was appropriate conduct for a CS LEA member. (Proposed
Dec., p. 5.) On November 20, 2008, CSLEA General Manager and Chief Counsel Kasey Clark
(Clark) further clarified the union's position regarding Irish's representation of Armantrout:
[A]lthough it is permissible under the CSLEA Constitution and
Standing Rules to represent Mr. Armantrout, it is impermissible
for you as a CSLEA member and officer of a CSLEA affiliate to
advocate the propriety of severance .... Should you advocate this
position on behalf of Mr. Armantrout, you do so at the risk of
sanction by the CSLEA Disciplinary Hearing Committee and
CACI.
(Ibid. 	Quoting Clark's November 20, 2008 e-mail.)
On December 9, 2008, Armantrout and Irish appeared before the disciplinary hearing
committee. (Proposed Dec., p. 6.) Irish objected to the proceeding on the basis that the
charges filed against Armantrout did not comply with Article X of CSLEA's Standing Rules
regarding the procedure for filing a charge. (Ibid.) The disciplinary hearing committee gave
Armantrout the option to waive the procedural defect and proceed with the hearing or,
alternatively, to suspend the hearing until CSLEA cured the procedural defect. Armantrout
chose to suspend the process. (Ibid.)
2 CACI is an affiliate of CSLEA. Irish is a member and officer of CACI.
5

On December 10, 2008, CSLEA obtained a charge signed by CSLEA member
Shelley Bishop, who had first brought Armantrout's e-mail to the attention of CSLEA, and
which thereby complied with Article X. (Proposed Dec., p. 6.) On December 15, 2008,
CSLEA reissued the notice of intent to take disciplinary action. (Ibid.) The disciplinary
hearing was rescheduled for January 16, 2009. (Id. at p. 7.) On January 20, 2009, Armantrout
was suspended from CSLEA for two years. (Id. at p. 8.) Armantrout did not appeal the
disciplinary hearing committee's decision. (Id. at p. 9.)
PROPOSED DECISION
The ALJ framed the issue thusly: 	"Did CSLEA fail to follow reasonable procedures in
suspending Armantrout?" (Proposed Dec., p. 10.) The ALJ determined that section 3515.5 of
the Dills Act entitled state employees who are members of employee organizations "a right to
reasonable internal disciplinary procedures and reasonable application of those procedures."
(Ibid.)
Therefore, according to the ALJ, the case turns on the reasonableness, and the
reasonable application, of CSLEA's Standing Rules, Article X, Section E (Exhaustion of
Remedies within CSLEA), which states:
No officer or member of CSLEA shall resort to judicial
proceedings of any kind, before any forum, with regard to any
matter pertaining to this organization or its Affiliates, or his/her
office, until all remedies provided for within the Constitution and
Standing Rules have been fully exhausted, provided the foregoing
shall not apply where the action was initiated to prevent the loss
of rights under an applicable statute of limitations and the
member of officer has diligently pursued his or her internal
remedies.
(Id. at p. 11.) Armantrout did not appeal the disciplinary hearing's decision to the CSLEA
board of directors as required by Standing Rules, Article X, Section D.3 The ALJ thus
3 CSLEA Standing Rules, Article X, Section D "Appeals" states:
6

determined that CSLEA's Constitution and Standing Rules were both reasonable and
reasonably applied to Armantrout and dismissed Armantrout's charges.
POSITIONS OF THE PARTIES
Although not explicitly stated as such, Armantrout appears to take three exceptions to
the ALJ's proposed decision: (1) that CSLEA presumably violated due process by suspending
Armantrout without first providing him with a complete copy of the CS LEA Constitution and
Standing Rules; (2) that the ALJ erred in finding that Irish did not testify thatCSLEA's
conduct interfered with his representation of Armantrout; and (3) that the ALJ erred in
dismissing Armantrout' s charges for failure to exhaust administrative remedies.
CS LEA responds that Armantrout' s exceptions fail to comport with PERB
Regulation 323004 and that Armantrout fails to point to any error in law or fact by the ALJ.
CSLEA further argues that: (1) Armantrout failed to demonstrate how or why the failure to
provide him with a copy of the CSLEA Constitution and Standing Rules constitutes a violation
of the Dills Act or any other law, rule or regulation; (2) Armantrout, as the charging party, bore
the burden of proving that CSLEA's conduct interfered with Irish's representation of
Armantrout and cannot rely on his own failure to elicit evidence from his witness as evidence
of CSLEA's interference; (3) Armantrout was offered and failed to take the opportunity to
appeal the decision of CSLEA's disciplinary hearing committee; and (4) Armantrout failed to
1. 	The appeal body shall be the CS LEA Board of Directors,
excluding the Accused if on the CS LEA Board of Directors.
2. 	Either party may, within thirty (30) days following receipt
of the decision, file an appeal. The appeal shall be filed to the
appeal body and the opposing party simultaneously.
4 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
7

present any evidence at the PERB hearing that CSLEA's disciplinary hearing committee was
not a neutral decision maker.
DISCUSSION
CSLEA's Failure to Provide Armantrout with the Constitution and Standing Rules
As an initial matter, we note that Armantrout's first exception does not point to an error
of law or fact in the ALJ' s proposed decision. In addition, even assuming that Armantrout was
never provided with a full and complete copy of CSLEA's Constitution and Standing Rules,
Armantrout' s first exception does not point to a specific law, regulation or provision of
CSLEA's own Constitution or Standing Rules that was violated by CSLEA's failure to provide
those documents. Therefore, we conclude that Armantrout's first exception lacks merit.5
CSLEA's Interference with Irish's Representation of Armantrout
To state a prima facie case of interference, a charging party must establish that the
respondent's conduct tends to or does result in some harm to employee rights granted under the
Dills Act. (State of California (Department of Developmental Services) ( 1983) PERB
Decision No. 344-S; Carlsbad Unified School District (1979) PERB Decision No. 89
(Carlsbad); Service Employees International Union, Local 99 (Kimmett) (1979) PERB
Decision No. 106 (Kimmett).) The test for whether a respondent has interfered with the
protected rights of employees under the Dills Act does not require that unlawful motive or
intent be established, but only that at least slight harm to employee rights results from the
conduct. (Omnitrans (2009) PERB Decision No. 2030-M; Sacramento City Unified School
5 Armantrout failed to explain why the "relevant provisions" of the CSLEA
Constitution and Standing Rules supplied to him by CSLEA with the October 16, 2008, notice
of intent to take disciplinary action was deficient and violated his due process rights. Neither
did Armantrout explain why due process necessitated that CSLEA supply him with the
provisions of the CSLEA Constitution and Standing Rules not supplied in the October 16,
2008 notice.
8

District (1982) PERB Decision No. 214.) If harm to employee rights is slight and the
employer offers justificiation based on operational necessity, the competing interests are
balanced. (Carlsbad, supra, PERB Decision No. 89.) Section 3519.5 (b) of the Dills Act
makes it unlawful for an employee organization "to interfere with, restrain, or coerce
employees because of their exercise of rights guaranteed by this chapter."
While it is conceivable that Clark's November 20, 2008, e-mail to Irish could have
negatively impacted Irish's representation of Armantrout, the charging party must prove its
case and introduce persuasive evidence. As the ALJ found, "Irish did not testify that CSLEA's
conduct interfered with his representation of Armantrout." (Proposed Dec., p. 10.)
Armantrout argues, on appeal, that Irish's testimony "shows that he was never asked, either on
direct or cross-examination, any questions concerning interference with his representation by
CSLEA" and therefore, there was no factual basis for the ALJ's finding. 	(Armantrout's
Exceptions, p. 3.)
We conclude that the ALJ's finding is correct. Irish did not testify that CSLEA's
conduct interfered with his representation of Armantrout. If CSLEA's conduct had interfered
with Irish's representation of Armantrout, it was incumbent upon Armantrout, as the charging
party, to elicit such testimony from Irish. He did not. We conclude that Armantrout failed to
prove that CSLEA's conduct interfered with Irish's representation of Armantrout.
Failure to Exhaust Administrative Remedies
The ALJ dismissed the remainder of Armantrout's allegations because Armantrout
failed to appeal the decision of the disciplinary hearing committee to the CSLEA board of
directors, as required by CSLEA's Standing Rules, Article X, Section E, before proceeding to
another forum. 	The ALJ determined that the CSLEA Constitution and Standing Rules
Article X, Section E were reasonable and reasonably applicable to Armantrout as required by
9

Dills Act section 3515.5. Therefore, the ALJ determined that Armantrout's charges should be
dismissed for failure to exhaust administrative remedies before he initiated the unfair practice
charge at PERB.
Armantrout argues that: (1) failure to exhaust administrative remedies is an affirmative
defense which must be raised in the answer or it is waived; and (2) administrative exhaustion is
not required where it is futile.
Jurisdiction
v.
Affirmative Defense
Armantrout urges that exhaustion is an affirmative defense and waived
if
not raised in
the answer. We disagree. The requirement to exhaust internal union remedies is plainly stated
in CSLEA's Standing Rules and thus became part
of
Armantrout's burden to prove.
Armantrout failed to prove he had exhausted the internal union remedies contained in
Article X, Section
E.
	Moreover, California courts have long held that "exhaustion
of
the
administrative remedy is a jurisdictional prerequisite to resort to the courts." (Abelleira
v.
District Court
of
Appeal (1941) 17 Cal.2d 280,293 (Abelliera) [emphasis added]; see also
Morton
v.
Superior Court (1970) 9 Cal.App.3d 977, 981 [exhaustion
of
an available
administrative remedy is a condition precedent to obtaining judicial relief, and a court violating
the rule acts in excess
of
its jurisdiction]; Rojo
v.
Kliger (1990) 52 Cal.3d 65, 84 [exhaustion
of
the administrative remedy is a jurisdictional prerequisite].) Finally, the doctrine
of
failure to
exhaust administrative remedies may be raised at any point in the proceedings, even
if
it was
not raised in the answer. (People
v.
Coit Ranch, Inc. (1962) 204 Cal.App.2d 52, 57
uurisdiction
of
a court over the subject matter may be challenged at any stage
of
the
proceeding and it is immaterial that the doctrine of non-exhaustion was not reserved in the
pretrial order or raised prior to trial]; contra Green
v.
City
of
Oceanside (1987)

194 Cal.App.3d 212, 220-222 [exhaustion does not implicate subject matter jurisdiction, but is
a procedural prerequisite which may be waived if not properly raised].)
Failure to Exhaust Internal Union Remedies
The rule that administrative remedies must be exhausted before seeking judicial relief
has long been applied also in the context of exhaustion of internal union remedies.
It is the general and well established jurisdictional rule that a
plaintiff who seeks judicial relief against an organization of
which he is a member must first invoke and exhaust the remedies
provided by that organization.
(Holderby v. International Union of Operating Engineers (1955) 45 Cal.2d 843, 846
(Holderby).) The Court in Holderby analogized the exhaustion of internal union remedies to
the exhaustion of administrative remedies as a condition precedent to resorting to the courts
and the exhaustion of the grievance machinery in a collective bargaining agreement before
seeking judicial relief. (Ibid.)
In Holderby, supra, 45 Cal.2d 843, the Court stated:
It is only when the organization violates its rules for appellate
review or upon a showing that it would be futile to invoke them
that the further pursuit of internal relief is excused.
(Holderby, at p. 847.) In contrast, the U.S. Supreme Court established a three-part test for
excusing failure to exhaust internal union remedies in cases arising under section 301 of the
Labor Management Relations Act. Under the test established by the Supreme Court:
[C]ourts have discretion to decide whether to require exhaustion
of internal union procedures. In exercising this discretion, at
least three factors should be relevant: first, whether union
officials are so hostile to the employee that he could not hope to
obtain a fair hearing on his claim; second, whether the internal
union appeals procedures would be inadequate either to reactivate
the employee's grievance or to award him the full relief he seeks
under [section] 301; and third, whether exhaustion of internal
procedures would unreasonably delay the employee's opportunity
to obtain a judicial hearing on the merits of his claim. If any of
11

these factors are found to exist, the court may properly excuse the
employee's failure to exhaust.
(Clayton v. International Union (1981) 451 U.S. 679, 689 (Clayton).)
The Holderby, supra, 45 Cal.2d 843 exhaustion rule was subsequently applied to unfair
labor practice proceedings under the California Agricultural Labor Relations Act (ALRA):
A union member must in the usual case avail himself of all
appropriate intraunion remedies before seeking judicial relief.
(Pasillas v. Agricultural Labor Relations Bd. (1984) 156 Cal.App.3d 312,356 (Pasillas).) 	In
Pasillas, the Agricultural Labor Relations Board (ALRB) had applied the entire three-part
Clayton, supra, 451 U.S. 679 test in determining that several of the charging parties were
excused from exhausting internal union remedies before filing their unfair practice charges.
The ALRB's application of the Clayton test was challenged by the United Farm Workers
which argued that the Holderby, supra, 45 Cal.2d 843 exhaustion rule should have been
applied. In determining that some of the plaintiffs were excused from exhausting the union's
internal remedies, the Pasillas court reviewed the various rules courts had applied in
determining whether the failure to exhaust internal union procedures before seeking judicial
relief would be excused.
The Pasillas, supra, 156 Cal.App.3d 312 court declined to decide whether the entire
three-part Clayton, supra, 451 U.S. 679 test should be applied. Instead, the Pasillas court
determined that the second prong of the Clayton test-inadequacy of remedy-is firmly
established in California law. 	(See Tiernan v. Trustees of California State University &
Colleges (1982) 33 Cal.3d 211, 217 [the rule requiring exhaustion of administrative remedies
does not apply where an administrative remedy is unavailable or inadequate].) The Pasillas,
supra, 156 Cal.App.3d 312 court then determined that the ALRB did not abuse its discretion in
applying the inadequacy of remedy standard to some of the employees in Pasillas.
12

A crucial distinction exists between Pasillas, supra, 156 Cal.App.3d 312 and the case
before us. The charging parties in Pasillas were subject to a contract which contained a union
security agreement which conditioned employment on union membership.6 Because in that
case the loss of union membership was the equivalent of loss of employment, in Pasillas,
internal union discipline implicated the employees' employment. In the case before us, there is
no such security agreement and no evidence was offered to suggest that Armantrout' s
suspension from CSLEA had any impact on his employment. The Board generally declines
jurisdiction where internal union affairs and procedures are alleged to violate the duty of fair
representation except where it can be shown that the internal union activity has "a substantial
impact on the relationships of unit members to their employers." (Kimmett, supra, PERB
Decision No. 106.) Absent such impact, the duty of fair representation does not extend to
internal union activities. (California State Employees Association (Hard, et al.) (1999) PERB
Decision No. 1368-S.)
We conclude that the ALJ properly analyzed CSLEA's internal disciplinary procedures
under the only restriction applied to them under section 3515.5 of the Dills Act, that they be
reasonable and reasonably applied. We agree with the ALJ that CSLEA's procedures,
including the requirement under CSLEA's Standing Rules, Article X, Section E, that a member
fully exhaust internal union remedies before resorting to external proceedings, are reasonable.
As the ALJ pointed out, Article X, Section E does not prevent a member from resorting to
judicial proceedings, it merely requires that he exhaust union remedies and give CSLEA a full
opportunity to reach an internal resolution of any dispute regarding its members. Armantrout
has failed to demonstrate that CSLEA's procedures were not reasonable or not reasonably
applied to him.
6 California Labor Code section l 153(c) permits such agreements in employer-union
agreements under the ALRA.
13

Futility
Lastly, Armantrout contends that he should be excused from exhausting CSLEA's
internal union remedies because it would have been futile to do so. 	We disagree. 	The
evidence at hearing indicated that the disciplinary proceedings that arose out
of
the POC
severance campaign resulted in 45 actions being taken by CSLEA, and five or six appeals
being taken from those actions. 	CSLEA did not grant any
of
the five or six appeals. 	However,
the fact that an administrative body has decided other cases involving other plaintiffs
on
similar facts against plaintift's position does not make an administrative appeal futile nor do
such facts excuse a litigant from exhausting available administrative remedies (Abelleira,
supra, 17 Cal.2d 280, 301.) We find the evidence regarding CSLEA's denial
of
the other
appeals unpersuasive on the futility claim. Armantrout adduced no details regarding those
other cases or how CSLEA's actions in those cases were unreasonable. Accordingly, we do
not accept Armantrout's futility claim.
CONCLUSION
We affirm the ALJ's determinations that CSLEA's internal disciplinary proceedings are
reasonable and were reasonably applied to Armantrout and also affirm the ALJ' s determination
that Armantrout's charges should be dismissed for failure to exhaust CSLEA's internal union
remedies.
ORDER
The unfair practice charge in Case No. LA-CO-132-S is hereby DISMISSED WITHOUT
LEA VE TO AMEND.
Chair Martinez and Member Banks joined in this Decision.
14

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD 	F
WILLIAM ARMANTROUT,
Charging Party,
V.
CALIFORNIA STATEWIDE LAW
ENFORCEMENT ASSOCIATION,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CO-132-S
PROPOSED DECISION
(October 15, 2012)
Appearances: Thomas A
...
Hoffman, Attorney, for William Armantrout; Carroll, Burdick &
McDonough by Jason
ff
Jasmine, Attorney, for California Statewide Law Enforcement
Association.
Before Thomas J. Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, an employee alleges that his union failed to follow reasonable procedures
in suspending his membership, in violation
of
the Ralph C. Dills Act (Dills Act). 1 The union
denies any violation.
William Armantrout (Armantrout) filed an unfair practice charge against the California
Statewide Law Enforcement Association (CSLEA) on June 11, 2009. The Office
of
the
General Counsel
of
the Public Employment Relations Board (PERB or Board) issued a
complaint against CSLEA on February 23, 2010. CSLEA filed an answer to the complaint on
March 11, 2010.
PERB held an informal settlement conference on April 12, 2010, and (after a period
of
abeyance) on October 18, 2011, but the case was not settled. PERB held a formal hearing on
February 9-10, 2012. With the receipt of the final post-hearing brief on May 2, 2012, the case
was submitted for decision.
1 The Dills Act is codified at Government Code section 3 512 et seq.

FINDINGS OF FACT
Armantrout is a state employee under the Dills Act, and CSLEA is a recognized
employee organization under the Dills Act.
The PERB complaint alleges, in part:
3. 	From approximately June 2000 to February 1,
2009, Charging Party [Armantrout] was a member of Respondent
[CSLEA].
4. 	On or about October 16 and again on or about
December 15, 2008, Respondent served Charging Party with
Notice oflntent to Take Disciplinary Action against him, each
time for allegedly violating its Constitution and Standing Rules.
5. 	On or about January 20, 2009, Respondent, acting
through its Disciplinary Hearing Committee, suspended Charging
Party from membership in Respondent effective February 1,
2009, for a period of two years.
In its answer, CSLEA admits these allegations. The complaint further alleges:
6. 	Contrary to Respondent's Constitution and
Standing Rules and/or Government Code section 3515.5,
Respondent:
a. Charged Charging Party and suspended Charging Party
from membership in Respondent for violating its Constitution and
Standing Rules despite never previously providing Charging
Party with a complete copy of its Constitution and Standing
Rules;
b. Failed to serve a copy of the charge signed by the
member or members bringing the charge against Charging Party
that resulted in Respondent serving Charging Party with the
October 16, 2008 Notice of Intent to Take Disciplinary Action;
c. Failed to litigate the October 16, 2008 disciplinary
action before a neutral decision maker;
d. Threatened Charging Party's chosen representative,
Allan Irish, with discipline if he advocated on behalf of Charging
Party;and
2

e.	
Failed to provide Charging Party with a written
decision within 30 days
of
the disciplinary hearing on the October
16,
2008 disciplinary action.
CSLEA denies these allegations.
It
is worth noting that the PERB complaint alleges
procedural defects, not substantive defects, in Armantrout' s suspension.
On October 16, 2008, CSLEA Senior Vice President Richard Carrillo (Carrillo) issued
Armantrout a notice
of
intent to take disciplinary action stating, in part:
Please be advised pursuant to Article XX
of
the
Constitution
of
the California Statewide Law Enforcement
Association (CSLEA) and Article X
of
the Standing Rules to the
CSLEA Constitution, the following charges have been filed with
the CSLEA Disciplinary Hearing Committee for consideration
of
imposition
of
penalties for acts in contravention to the CS LEA
Constitution and Standing rules. The charges are based on the
following:
In approximately September 2007, an organization known
as the Peace Officers
of
California (POC) initiated a campaign to
sever the peace officer members
of
Bargaining Unit 7 who are
currently represented by CSLEA. On or about October 4, 2007,
the CSLEA Board
of
Directors expressed in writing CSLEA's
opposition to the severance and determined it would diminish the
bargaining strength
of
CSLEA on behalf
of
Unit 7 peace officers
and non-peace officers.
On September 22, 2008, you disseminated an e-mail
message to other CSLEA/CASI members encouraging support
for the POC severance campaign.
Your acts in furtherance
of
the severance are deemed to
violate Article XX, Section 2 (e)
of
the CSLEA Constitution
which prohibits: "Any activity which assists or intended to assist
a competing organization within the jurisdiction of CSLEA."
The letter further informed Armantrout
of
his right to request a hearing before the CSLEA
Disciplinary Hearing Committee. A copy of "the relevant provisions" of the Constitution and
Standing Rules were enclosed.
It is stipulated that CS LEA has no record of providing Armantrout with copies of the
CSLEA Constitution and Standing Rules prior to October 16, 2008. 	The Constitution and
3

Standing Rules do not themselves require their distribution to all CSLEA members. There is
no evidence, however, that Armantrout did not have copies of the Constitution and Standing
Rules.
On October 27, 2008, Armantrout sent CSLEA a letter requesting both a formal hearing
and the following documents:
1. 	A full and complete copy of the original actual charges
filed against me, including copies of whatever supporting
documents were provided with the initial complaint, as
well as copies of any other supporting documents [that]
were subsequently obtained or provided to CSLEA.
2. 	The name(s) of the member(s) who filed these charges
against me.
3. 	The names of all members of the Disciplinary Hearing
Committee who are assigned to hearing this matter.
4. 	A full and complete copy of the current CSLEA
Constitution, as well as a copy or copies of the CS LEA
Constitution that was in force during the period of
September, 2007 to present (if different). 	[Note: Only
excerpts were provided with Carrillo's letter.]
5. 	A full and complete copy of the current CSLEA Standing
Rules, as well as a copy or copies of the CSLEA Standing
Rules that was in force during the period of September,
2007 to present (if different). [Note: only excerpts were
provided with Carrillo's letter.]
(Bracketed notes in the original.) Armantrout requested that the documents be provided by
November 14, 2008.
On November 5, 2008, Carrillo sent Armantrout a letter advising him that he was
scheduled to appear before the Disciplinary Hearing Committee on December 9, 2008.
CSLEA had not responded to Armantrout's request for documents.
At some point, Armantrout asked CSLEA member Allan Irish (Irish) to represent him.
On November 15, 2008, Irish sent an e-mail message to CSLEA General Manager and Chief
4

Counsel Kasey Clark (Clark) reasserting Armantrout's request for documents. By e-mail on
November 17, 2008. Clark responded, in part:
The October 16, 2008 letter to Mr. Armantrout is the complete
copy of the charges against him. I am also attaching the e-mail
that formed the basis of the charges which should have been
accessible to Mr. Armantrout. The charges were filed by the
CSLEA Disciplinary Hearing Committee which is comprised of
the three CSLE[A] Vice Presidents, Richard Carrillo, Bruce
Hotchkiss and Tina Brazil, and CSLEA President Alan Barcelona
and CSLEA Controller Ricardo Sanchez.
Irish replied by e-mail on November 19, 2008, without objecting to the composition of the
Disciplinary Hearing Committee. Irish did object that the disciplinary committee itself could
not have brought the charges against Armantrout, because none of the members "were parties
to the e-mail string in question." Irish asked for the identity of the person "who provided this
e-mail to CSLEA." By e-mail on November 20, 2008, Clark identified the individual as Shelly
Bishop (Bishop).
In his e-mail message of November 17, 2008, Clark also told Irish:
To the extent you, as Mr. Armantrout's advocate, take the
position that support of the POC severance campaign is
appropriate conduct for a CSLEA member, you are opening
yourself up to sanctions by both CS LEA and CACI.
The California Association of Criminal Investigators (CACI) is a CSLEA affiliate of which
Irish is a member and an officer. In his e-mail message of November 20, 2008, Clark told
Irish:
I stand behind my original opinion that although it is permissible
under the CSLEA Constitution and Standing Rules to represent
Mr. Armantrout, it is impermissible for you as a CSLEA member
and officer of a CSLEA affiliate to advocate the propriety of
severance in contravention to the stated position of the CSLEA
Board of Directors. Such advocacy could create the impression
of credence to conduct which is clearly violative of the CS LEA
Constitution. Should you advocate this position on behalf of Mr.
Armantrout, you do so at the risk of sanction by the CSLEA
Disciplinary Hearing Committee and CACI.
5

There is no evidence that Irish further replied at that time.
On December
9,
2008, Armantrout and Irish appeared before the Disciplinary Hearing
Committee. Irish objected to the proceedings on the basis
of
CSLEA's Standing Rules,
Article X, Section A (Procedure for Filing Discipline Charge Defined), Paragraph
1,
which
states:
Charges shall be in writing and shall be signed by the member or
members bringing the charge. The charges shall be specific,
citing in detail the nature, the date, and the circumstances
of
the
alleged offense and, where violation
of
a Constitution or Standing
Rules provision is alleged, the specific sections shall be cited,
along with the specific act or omission which constitutes the
alleged violation. The charge shall be filed with the President
of
CS LEA or,
if
he/she is a directly interested party, the Senior Vice
President
of
CS LEA. Such officer shall forward such charge to
members
of
the Hearing Committee.
The objection was that there was no such charge filed by Bishop. At the PERB hearing, Clark
opined that no such charge was necessary, because Armantrout knew that his own e-mail
message (
of
September 22, 2008) was at issue.
According to Clark's testimony at the PERB hearing, the Disciplinary Hearing
Committee gave Armantrout and Irish an option:
And so the option was afforded to either waive the
procedural defect that they were alleging existed and proceed at
that time on the merits
of
the allegations, or we would suspend
the hearing process and reconvene after obtaining the written
complaint to back the allegations that had already been made.
According to Clark, Armantrout and Irish chose to suspend the process and reschedule it once
CSLEA obtained a written charge from Bishop.
On December 10, 2008, at Clark's request, Bishop submitted a written charge against
Armantrout. On December 15, 2008, Carrillo issued Armantrout another Notice oflntent to
Take Disciplinary Action. On December 23, 2008, Carrillo sent Armantrout a letter advising
6

him that he was scheduled to appear before the Disciplinary Hearing Committee again
on
January 16, 2009.
On January
1,
2009, Irish, who was still representing Armantrout, sent Clark an e-mail
message, stating in part:
1.
I find it somewhat disconcerting that the "Complaint Letter"
which is the basis
of
the action is dated exactly one day after
Armantrout's previous disciplinary hearing, wherein it was
pointed out that the previous proceeding was initiated and
prosecuted in direct violation
of
the CS LEA Standing Rules in
regard to disciplinary proceeding. 	. . . The only conclusion that
I can reach is that CSLEA is trying to re-litigate a matter which
was addressed in the previous hearing, which is clearly a
violation
of
the doctrine
of
double jeopardy, as well as the basic
principles
of
fairness inherent in due process. Finally, the
initiation
of
a new action-based on the same material, while
disposition
of
the first action is still pending, is clearly double
jeopardy and a violation
of
Armantrout's due process, as well as
designed simply to intimidate, harass and threaten Armantrout.
4. Your previous communications to myself and CACI regarding
my representation
of
Armantrout, threatening CSLEA
disciplinary action against me
if
I asserted certain defenses, was
both violative
of
Armantrout's due process rights as well as a
violation
of
Rule 5-100
of
the Rules
of
Professional Conduct
of
the State Bar. Please be advised that any future threats along
those lines to any party may be referred to the State Bar
of
California. . . .
Irish urged CSLEA to "drop this entire matter," which CSLEA did not do.
On January 16, 2009, Armantrout and Irish appeared before the Disciplinary Hearing
Committee via Skype. At the PERB hearing, Clark was questioned and testified in part as
follows: 
Q.	
Did Mr. Armantrout offer any substantive defense
to the charge?
A. 	No. and I believe he admitted that he had authored
the emails in question. Again, this focus was procedural
primarily. The contention, you know, this time was that CSLEA
7

had, you know, now fabricated a complaint that everybody knew
would be forthcoming as a result of a last -- as the first hearing on
this case. And that somehow we were barred [by] double
jeopardy from disciplining Mr. Armantrout at the second hearing
because we, I guess, didn't discipline him at the conclusion of the
first hearing.
Q. 	But you had indicated that you didn't consider that
the first hearing had ever completed that disciplinary action.
A. 	The hearing on the appropriateness of Mr.
Armantrout's conduct was not complete as of that first day.
The Disciplinary Hearing Committee ultimately decided to impose a two-year suspension on
Armantrout, a decision communicated to him in writing on January 20, 2009.
Meanwhile, Armantrout had filed a complaint against Bishop and the Disciplinary
Hearing Committee. On January 20, 2009, CSLEA responded by letter:
Please be advised on January 17, 2009, the CSLEA Board
of Directors reviewed your updated complaint against the CS LEA
Disciplinary Hearing Committee and CASI President Shelley
Bishop.
The Board of Directors views the allegations you have
raised as criticism of the procedures relative to the disciplinary
action pending against you. As you are aware, the CSLEA Board
of Directors is the body which reviews any appeal from the
imposition of discipline by the CS LEA Disciplinary Hearing
Committee. It would not be appropriate at this time for the Board
to rule on the issues you have raised as no appeal has yet been
filed. To the extent you elect to appeal the disciplinary action
imposed, you may raise these issues on appeal.
CSLEA's Standing Rules, Article X, Section D (Appeals), states in part:
1. 	The appeal body shall be the CSLEA Board of Directors,
excluding the Accused if on the CSLEA Board of
Directors.
2. 	Either party may, within thirty (30) days following receipt
of the decision, file an appeal. The appeal shall be filed to
the appeal body and the opposing party simultaneously.
The appeal shall be in writing and shall be accompanied
by a copy of the original charge and of the decision which
is being appealed. The appeal shall set forth in substance
8

the appellant's reasons for believing the Hearing
Committee was in error and the nature of the error. The
appeal shall be limited to the evidence which was
presented to the Disciplinary Hearing Committee. No
evidence which was reasonably available at the time of
hearing by the Disciplinary Hearing Committee shall be
considered on appeal. The appeal shall be served by
registered mail, return receipt requested, or in person,
upon the appeal body and the opposing party. The
opposing party shall have thirty (30) days in which to
respond to the appeal.
3. 	The appeal body shall determine the matter, if reasonably
possible and after allowing for the time frames for a
response from the opposing party, at the next scheduled
meeting of the CS LEA Board of Directors. The decision
of the appeal body shall be effective immediately.
4. 	If the appeal body grants the appeal, the matter shall be
remanded to the Disciplinary Hearing Committee who
shall conduct further proceedings which are consistent
with the decision of the appeal body.
Armantrout never filed an appeal under this section.
CSLEA's Standing Rules, Article X, Section E (Exhaustion of Remedies Within
CSLEA), states:
No officer or member of CSLEA shall resort to judicial
proceedings of any kind, before any forum, with regard to any
matter pertaining to this organization or its Affiliates, or his/her
office, until all remedies provided for within the Constitution and
Standing Rules have been fully exhausted, provided the foregoing
shall not apply where the action was initiated to prevent the loss
of rights under an applicable statute of limitations and the
member or officer has diligently pursued his or her internal
remedies.
As stated above, Armantrout filed his unfair practice charge on June 11, 2009, some four
months after his suspension became effective (on February 1, 2009).
Because of ill health, Armantrout himself did not testify at the PERB hearing. Irish
testified, but not in any detail about his representation of Armantrout before the Disciplinary
9

Hearing Committee. More specifically, Irish did not testify that CSLEA's conduct interfered
with his representation
of
Armantrout
ISSUE
Did CSLEA fail to follow reasonable procedures in suspending Armantrout?
CONCLUSIONS OF LAW
Dills Act section 3515
.5
states, in part:
Employee organizations may establish reasonable restrictions
regarding who may join and may make reasonable provisions for
the dismissal
of
individuals from membership.
State employees who are members
of
employee organizations have a right to reasonable
internal disciplinary procedures and the reasonable application
of
those procedures.
(California School Employees Association and its Shasta College Chapter #381 (Parisot)
(1983) PERB Decision No. 280; California Correctional Peace Officers Association (Colman)
(1989) PERB Decision No. 755-S (Colman); California State Employees Association (Hard,
et al.) (2002) PERB Decision No. 1479-S (Hard, et al.); SEIU Local 1000 (Hernandez) (2009)
PERB Decision No. 2049-S.)
These reasonable internal disciplinary procedures include granting the accused
"substantial justice" and the "elements
of
a fair trial," the right to notice
of
the charges, to
confront and cross-examine accusers, and to refute evidence. "Technical legal niceties" are not
required. (Colman, adopting administrative law judge's proposed decision, p. 24.)
Additionally, the application
of
these internal disciplinary rules must be reasonable. 	For
instance, applying summary suspension proceedings in the midst of an election period when
there was not an immediate threat to the welfare of the employee organization was found to be
an unreasonable application of an internal disciplinary procedure. (Hard, et al., at pp. 20-22.)

In my view, this case turns on the reasonableness and the reasonable application
of
CSLEA's Standing Rules, Article X, Section E (Exhaustion
of
Remedies Within CSLEA). As
quoted above, this section states:
No officer or member
of
CSLEA shall resort to judicial
proceedings
of
any kind, before any forum, with regard to any
matter pertaining to this organization or its Affiliates, or his/her
office, until all remedies provided for within the Constitution and
Standing Rules have been fully exhausted, provided the foregoing
shall not apply where the action was initiated to prevent the loss
of
rights under an applicable statute
of
limitations and the
member or officer has diligently pursued his or her internal
remedies.
In its post-hearing brief, CSLEA argues in part that Armantrout' s failure to appeal his
suspension (under Article X, Section D, also quoted above) "constitutes a failure to exhaust
administrative remedies and precludes any finding in favor
of
Armantrout in this matter."
On its face, Article X, Section E, appears reasonable. It does not bar a member from
any forum; it only requires that a member first exhaust internal remedies (or at least pursue
them diligently) before proceeding to another forum. 	It is reasonable that CSLEA have an
opportunity to review its own procedures internally before having to defend them elsewhere.
Furthermore, it is reasonable to apply Article X, Section E, to the present case, in which
Armantrout proceeded to PERB's quasi-judicial forum without first appealing his suspension,
even after being reminded
of
his appeal rights by CSLEA's letter
of
January 20, 2009.
In his post-hearing brief, Armantrout argues in part:
The Constitution and Standing Rules constitute an
adhesion contract under California law. Together they, as applied
in this case, result in an unenforceable, unconscionable result for
punishment and forfeitures that are arbitrary, capricious and
contrary to the reasonable expectations of CSLEA member
ARMANTROUT as the adhering party.
I disagree. CSLEA's Constitution and Standing Rules, as they apply to the present case, are
not a "contract." To the extent that they concern membership and are reasonable, they are
11

rules that CSLEA was specifically authorized to establish by Dills Act section 3515.5.
Because I find them both reasonable and reasonably applicable to this case, I must dismiss
Armantrout's charge before PERB.
PROPOSED ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. LA-CO-132-S,
William Armantrout
v.
California Statewide Law Enforcement Association, are hereby
DISMISSED.
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:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
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, § 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of PERB Regulation 32135(d), provided the filing party also
places the original, together with the required number of copies and proof of service, in the
12

U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, §§ 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, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
Thomas J. Allen
Administrative Law Judge
13