Decision 2386S – California Statewide Law Enforcement Association (Armantrout)

LA-CO-132-S

Decision Date: June 30, 2014

Decision Type: PERB Decision

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Perc Vol: 39
Perc Index: 18

Decision Headnotes

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
801.01000 – In General

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. 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.

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
801.03000 – Employee Right to Participate; Improper Discipline or Refusal to Admit to Membership

There is no union security agreement in place which conditions employment on union membership and no evidence was offered to suggest that charging party’s suspension from union 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.” (Service Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106.) Absent such impact, the duty of fair representation does not extend to internal union activities. The ALJ properly analyzed union’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 the union’s procedures, including the requirement under its Standing Rules, that a member fully exhaust internal union remedies before resorting to external proceedings, are reasonable. As the ALJ pointed out, the Standing Rules do not prevent a member from resorting to judicial proceedings, it merely requires that he exhaust union remedies and give the union a full opportunity to reach an internal resolution of any dispute regarding its members. The fact that an administrative body has decided other cases involving other plaintiffs on similar facts against plaintiff's position does not make an administrative appeal futile nor do such facts excuse a litigant from exhausting available administrative remedies. We find the evidence regarding union’s denial of the other appeals unpersuasive on the futility claim. Charging party adduced no details regarding those other cases or how union’s actions in those cases were unreasonable.

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
801.04000 – Union Rules and Discipline in General; Union Dues and Fees; Fines, Assessments, Etc.

There is no union security agreement in place which conditions employment on union membership and no evidence was offered to suggest that charging party’s suspension from union 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.” (Service Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106.) Absent such impact, the duty of fair representation does not extend to internal union activities. The ALJ properly analyzed union’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 the union’s procedures, including the requirement under its Standing Rules, that a member fully exhaust internal union remedies before resorting to external proceedings, are reasonable. As the ALJ pointed out, the Standing Rules do not prevent a member from resorting to judicial proceedings, it merely requires that he exhaust union remedies and give the union a full opportunity to reach an internal resolution of any dispute regarding its members. The fact that an administrative body has decided other cases involving other plaintiffs on similar facts against plaintiff's position does not make an administrative appeal futile nor do such facts excuse a litigant from exhausting available administrative remedies. We find the evidence regarding union’s denial of the other appeals unpersuasive on the futility claim. Charging party adduced no details regarding those other cases or how union’s actions in those cases were unreasonable.

806.00000 – UNION UNFAIR PRACTICES; DEFENSES
806.03000 – Exhaustion of Administrative/Internal Remedies

Charging party 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 union’s Standing Rules and thus became part of charging party’s burden to prove. Charging party failed to prove he had exhausted the internal union remedies contained in union’s Standing Rules. Moreover, California courts have long held that exhaustion of the administrative remedy is a jurisdictional prerequisite. 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. The ALJ properly analyzed union’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 the union’s procedures, including the requirement under its Standing Rules, that a member fully exhaust internal union remedies before resorting to external proceedings, are reasonable. As the ALJ pointed out, the Standing Rules do not prevent a member from resorting to judicial proceedings, it merely requires that he exhaust union remedies and give the union a full opportunity to reach an internal resolution of any dispute regarding its members. The fact that an administrative body has decided other cases involving other plaintiffs on similar facts against plaintiff's position does not make an administrative appeal futile nor do such facts excuse a litigant from exhausting available administrative remedies. We find the evidence regarding union’s denial of the other appeals unpersuasive on the futility claim. Charging party adduced no details regarding those other cases or how union’s actions in those cases were unreasonable.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.03000 – Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses

If union’s conduct had interfered with charging party’s representative, it was incumbent upon charging party to elicit such testimony from his representative. He did not. We conclude that charging party failed to prove that union’s conduct interfered with charging party’s representative.