California Correctional Peace Officers Association (Colman) (PERB 0755S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

%

TRIS COLMAN,
Charging Party, Case No. S-CO-69-S
Vv. PERB Decision No. 755-S

CALIFORNIA CORRECTIONAL PEACE

July 25, 1989
OFFICERS ASSOCIATION,

Respondent.

eee ee es ee ee es ee ee

Appearances: Steven Bassoff, Attorney, for Tris Colman; Carroll,
Burdick & McDonough by Alison Berry, Attorney, for California
Correctional Peace Officers Association.

Before Porter, Craib and Shank, Members.
DECISION

SHANK, Member: This case is before the Public Employment
Relations Board (PERB or Board) on exceptions filed by the
California Correctional Peace Officers Association (CCPOA or
Association) to the proposed decision (attached hereto) of a PERB
administrative law judge (ALJ). Subsequent to this filing, CCPOA
requested that its exception regarding PERB’s jurisdiction over
the instant dispute be withdrawn. The Board has considered the
request and finds that such a withdrawal is in the best interest
of the parties and is consistent with the Ralph C. Dills Act
(Dills Act). The ALJ found that the Association acted

unreasonably in suspending Tris Colman (Colman) from Association

membership in violation of section 3519.5 (b) of the Dills Act
by : 	(1) finding him guilty, without pre-hearing notice, of
harassing Ms. Lee Wilson at a chapter meeting on August 16, 1986;	
1986i
and (2) submitting to the CCPOA appeals board material which was
not introduced at Colman's disciplinary hearing and which he had
not seen before.
The Board, after review of the entire record, finds the
ALJ's findings of fact to be free from prejudicial error and
adopts them as its own. We are also in agreement with, and
hereby adopt, the conclusions of law set forth in the ALJ's
decision.
CCPOA excepts to the ALJ's exclusion of testimony, offered
at the hearing, of the Association's intent behind the bylaws
governing discipline of members. We find that the evidence was
properly excluded since opinions of Association officers
The Dills Act is codified at Government Code section 3512
et seq. Unless otherwise indicated, all statutory references are
to the Government Code.
In relevant part, Government Code section 3519.5 provides as
follows :
It shall be unlawful for an employee
organization to:
(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.
2

concerning the procedure set forth in bylaws would be relevant
only if ambiguity existed, which was not the case here.
CCPOA excepts to the ALJ's exclusion of the transcript of
the disciplinary hearing and pre-hearing settlement conference.
We find that the transcript was properly excluded since such
evidence could not cure the two findings of unfairness.
CCPOA excepts to the ALJ's consideration of its appeals
process since the General Counsel's complaint does not contain a
reference to the appeal, and therefore, there was no notice that
it would be a part of the decision. 	We find this exception to be
meritless in that CCPOA must have been aware of its own
procedure, which included the right of a member disciplined by
the Association to appeal.
Finally, CCPOA excepts to the ALJ's determination that it
failed to give Colman a fair hearing because it considered
evidence of Colman's conduct at the August 16, 1986 chapter
meeting held nearly two months after charges were filed. 	CCPOA 'S
argument is that the chapter meeting was called by Colman for the
purpose of censoring Ms. Wilson, so, even though it occurred
after Wilson had filed charges, it was clearly related to the
disciplinary proceeding. The ALJ correctly pointed out that the
hearing panel's conclusion on the harassment charge was based
upon evidence about the chapter meeting, which was unrelated to
any other accusation against Colman. 	Colman was given no notice
that he would be tried for his conduct at the chapter meeting.
Basic fairness would require notice to Colman that such conduct
3

would be considered so that he could prepare a defense.
Accordingly, we affirm the ALJ's conclusion that the Association
failed to grant Colman a fair hearing.
ORDER
Based upon the foregoing findings of fact and conclusions of
law, and the entire record of this case, the Board finds that the
California Correctional Peace Officers Association (CCPOA) has
violated section 3519.5(b) of the Ralph C. Dills Act. Pursuant
to section 3514.5(c) of the Government Code, it is hereby ORDERED
that the Association, its board of directors, and its
representatives shall:
A . 	CEASE AND DESIST FROM:
Interfering with the protected right of Tris Colman to
join and participate in the activities of an employee
organization of his own choosing by unreasonably dismissing him
from membership in the Association.
B 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE RALPH C. DILLS ACT:
1 . 	Retroactively nullify the hearing panel decision
and order in the matter of Wilson v. Colman, restore life
insurance benefits and retroactively rescind the suspension of
Tris Colman from membership in the California Correctional Peace
Officers Association. The hearing panel decision and order may
not be reinstated unless Mr. Colman is afforded a new review of
the decision by CCOA State Board of Directors. 	In the event a
new review is undertaken, the appellate board shall not consider
any materials which were not introduced before the hearing panel.

The appellate board shall not consider the hearing panel's
finding on Charge 10, harassment, unless a new hearing, upon
proper notice, is granted to Mr. Colman regarding the August 16,
1986, chapter board meeting and a new finding is sustained
against Mr. Colman.
2 . 	Within thirty-five (35) days following the date
this Decision is no longer subject to reconsideration, send by
United States Mail copies of the Notice attached hereto as an
Appendix to all members of the CCPOA chapter at the California
Men's Colony, San Luis Obispo. The Notice must be signed by an
authorized agent of the Association, indicating that the
Association will comply with the terms of this Order.
3 . 	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 accord with the
Director's instructions.
Member Craib joined in this Decision.
Member Porter's concurrence begins on page 6.
5

Porter, Member, concurring: I concur that the California
Correctional Peace Officers Association (CCPOA) violated the
State Employee-Employer Relations Act. 	I cannot agree, however,
with the holding based on the Public Employment Relations Board
(PERB or Board) precedent that an interference violation under
subdivision (b) of Government Code section 3519.5 does not
require proof of unlawful motive.
Government Code section 3519.5 prescribes in pertinent part
( emphasis added) :
It shall be unlawful for an employee
organization to:
(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.
In San Diegueto Unified School District (1977) EERB
Decision No. 22, the Board dealt with an identical statutory
provision contained in the Educational Employment Relations
Prior to January 1, 1978, PERB was known as the Educational
Employment Relations Board (EERB) .
Government Code section 3543.5 provides in pertinent part:
It shall be unlawful for a public school
employer to:
(a) 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 [EERA] .
(Emphasis added. )

Act (EERA) making it unlawful for a public school employer to
retaliate, discriminate, or interfere with employees "because of
The Board held that the "because of" proviso required
proof of an unlawful motive to establish a violation.
Thereafter, in Carlsbad Unified School District (1979) PERB
Decision No. 89, the majority opined that, where there was
interference with an employee's protected rights, a finding of
an interference violation should not be conditioned on whether
the employer had an unlawful motive in interfering. 	Thus, the
Carlsbad Board held that it was not necessary to "read" the
"because of" proviso as applying to interference violations, and
overruled San Diegueto insofar as it held that proof of unlawful
motive was required in interference cases. (Carlsbad, supra,
p. 5.)
In Novato Unified School District (1982) PERB Decision
No. 210, the Board reaffirmed the Carlsbad holding that proof
of unlawful motive was not required to establish an interference
violation, but clarified Carlsbad to set forth the so-called
"Novato test" to identify the elements necessary to establish a
reprisal or discrimination violation. 	The Novato elements are:
(1) the employee's exercise of a protected right; (2) the
employer's knowledge thereof; (3) an adverse or discriminatory
action taken thereafter by the employer against the employee; and
(4) proof (by direct and/or circumstantial evidence) that the
employer took the adverse or discriminatory action "because of"

the employee's exercise of the protected right. (Novato, supra,
pp . 5-14.)
Hence, Carlsbad and Novato hold that, while the "because
of " proviso requires proof of such unlawful motive to establish
a reprisal or discrimination violation, it is somehow not
applicable to an interference violation under the same section.
I respectfully disagree.
We deal with statutes which prescribe that it is unlawful
for an entity (employer or employee organization):
to impose or threaten to impose
reprisals on employees, to discriminate or
threaten to discriminate against employees,
or otherwise to interfere with, restrain, or
coerce employees because of their exercise
of rights guaranteed by this chapter.
(Gov. Code, secs. 3519.5, subd. (b) and
3543.5, subd. (a) , emphasis added. )
One of the simplest and most fundamental canons of statutory
construction is that a qualifying phrase must be applied to the
antecedent words, phrases and clauses to which it relates.
(Porto Rico Railway L. & P. Company v. Mor (1920) 253 U.S. 345,
348 [64 L. Ed. 944, 946]; Wholesale Tobacco Dealers v. National
Candy and Tobacco Company (1938) 11 Cal. 2d 634, 659-660;
Addison v. Department of Motor Vehicles (1977) 69 Cal. App. 3d 486,
496; Kelly v. State Personnel Board (1939) 31 Cal . App. 2d 443,
448. ) Moreover, a qualifying phrase must, at a minimum, be
construed to refer and apply to the antecedent words, phrases
and clauses immediately preceding it. (Krikorian v. Barry (1987)
196 Cal. App. 3d 1211, 1218, hg. den. ) Even in cases where an
uncertainty or ambiguity exists in the statute, a qualifying
8

phrase must be construed as referring to the antecedent words,
phrases and clauses immediately preceding it and not to more
remote words, phrases or clauses. 	(Addison v. Department of
Motor Vehicles, supra, 69 Cal . App. 3d 486, 496; Board of Port
Commissioners v. Williams (1937 ) 9 Cal. 2d 381, 389; Kelly v.
State Personnel Board, supra, 31 Cal . App. 2d 443, 448. )
Clearly, subdivision (b) of Government Code section 3519.5
(as well as subd. (a) of Gov. Code, sec. 3545.5) may not be
fragmented so as to separate the immediately preceding antecedent
"or interfere with, restrain, or coerce employees" from its
qualifying phrase "because of 	, " as the two phrases are
inextricably tied. (People v. Superior Court (1969) 70 Cal. 2d
123, 133; Krikorian v. Barry, supra, 196 Cal. App. 3d 1211, 1218,
hg. den. ; Oliva v. Swoop (1976) 59 Cal . App. 3d 130, 138, hg. den. )
Furthermore, even apart from fundamental statutory construction
rules, common sense dictates that we cannot simply leapfrog over
the antecedent interference phrase immediately preceding the
"because of" proviso and apply the "because of" proviso solely
to the more "remote" reprisal and discrimination phrases.
Accordingly, I submit that proof of unlawful motive (e.g. ,
that the employee organization interfered with, restrained or
coerced the employee because of the employee's exercise of a
protected right) is a required element of proof to establish
9

an interference violation under Government Code section 3519.5,
subdivision (b). Carlsbad and Novato should be overruled to the
extent that they hold otherwise.
In the instance case, the record does not demonstrate that
CCPOA acted with an unlawful intent in interfering with Colman's
membership rights and, therefore, I cannot find a violation of
Government Code section 3519.5, subdivision (b) . The record,
however, does clearly demonstrate that CCPOA failed to follow
reasonable procedures in suspending Colman's membership status
and, thus, unlawfully interfered with Colman's membership rights
The Carlsbad majority's concern was that the application of
the "because of" proviso to interference violations could
preclude an employee whose protected rights were interfered with
from seeking redress unless intentional harm could be shown.
This concern did not give the Board license to rewrite the
statute. 	The Legislature has statutorily imposed an unlawful
motive requirement for reprisal, discrimination, and interference	discrimination~
violations under subdivision (b) of Government Code section
3519.5, and the Board must adhere thereto. 	Regarding the
Carlsbad majority's concern, where an employee's protected rights
are interfered with and where no unlawful motive exists, a
respondent may, nevertheless, be charged with violating the
statute specifically granting such rights to the employee.
(Leek v. Washington Unified School District (1981) 124 Cal . App. 3d
43, 48-53, hg. den. ; Link v. Antioch Unified School District
(1983) 142 Cal. App. 3d 765, 768-769; Mt. Diablo Unified School
District (1978) PERB Decision No. 68, pp. 11-13; and see San Jose
Teachers Association v. Superior Court (Abernathy) (1985)
38 Cal. 3d 839, 844, 861-863, fn. 14 on p. 861, vacated and
remanded on other grounds (1986) 475 U.S. 1063, vacated on other
grounds (1986) 42 Cal. 3d 130.
The Carlsbad majority's concern perhaps stemmed from this
agency's charging practice of attempting to channel and fit any
and all alleged facts or violations into only those "unlawful"
acts proscribed in just two relatively narrow sections of EERA.
This Board is not so restricted in enforcing the acts which it
administers. (Leek v. Washington Unified School District, supra,
124 Cal . App. 3d 43, 48-49, hg. den. )
10

in violation of Government Code section 3515." (Gov. Code, secs.
3515 and 3515.5; Union of American Physicians and Dentists
(Stewart) (1985) PERB Decision No. 539-S, pp. 4-5; California
Association of Psychiatric Technicians (Long) (1989) PERB
Decision No. 745-S, pp. 8-9; California State Employees'
Association (Fry) (1986) PERB Decision No. 604-S, p. 4; State of
California (Department of Youth Authority) (1985) PERB Decision
No. 535-S, p. 30.)
The record before us shows that when Colman filed his
original charges with PERB, the thrust of his charges was
twofold: (1) that respondent CCPOA had improperly suspended his
membership through unreasonable disciplinary procedures; and (2)
that respondent CCPOA was discriminating against him in violation
of Government Code section 3519.5 in connection with the amount
of dues and/or fair share fee being deducted from his paycheck
during the suspension.
Government Code section 3515 provides in pertinent part:
Except as otherwise provided by the
Legislature, state employees shall have
the right to form, join, and participate
in the activities of employee organizations
of their own choosing for the purpose of
representation on all matters of employer-
employee relations.
Respecting the aforesaid employee rights, Government Code section
3515.5 provides in relevant part:
Employee organizations may establish
reasonable restrictions regarding who may
join and may make reasonable provisions
for the dismissal of individuals from
membership.
11

Prior to the issuance of the complaint, the dues deduction
matter was resolved. 	Colman's attorney filed a written request
with the Board agent requesting that Colman's charges be amended
"to eliminate those elements of the charge relating to Hudson	
"to
violations [the fair share fee matter] and violations of 3515.6,
3519.5 and 3515. 7(e) [emphasis added]. " Colman's attorney's
letter concluded:
Mr. Colman is still most anxious to pursue
the charge outlined in the first paragraph of
his complaint concerning CCPOA's unreasonable
denial of membership to him in violation of
Government Code section 3515.5.
Thereafter, the Board agent issued a complaint which described
the alleged unreasonable procedures used in suspending Colman's
membership, and charged that such conduct "interferes in Charging
Party's right to membership in a labor organization under
Government Code section 3515. " The complaint then stated: 	"This
conduct violates Government Code section 3519 5(al [emphasis
added ] . "
At the beginning of his proposed decision, the
administrative law judge (ALJ) pointed out that there was nothing
in the complaint or the underlying charge suggesting a violation
of section 3519.5(a). He therefore concluded that reference to
that section was a typographical error, and he amended the
complaint to allege a violation of section 3519.5(b) . 	In the
conclusion of his proposed decision, the ALJ found:
By suspending Mr. Colman from membership on
the basis of these actions [unreasonable
disciplinary procedures], the Association
interfered with his right to join and
12

participate in the activities of an employee
organization. This action was in violation
of Dills Act section 3519.5(b).
For the reasons previously set forth, I cannot sustain a
finding of a violation of subdivision (b) of section 3519.5.
However, I do find that the record amply supports the
determination that respondent CCPOA did unlawfully interfere with
Colman's section 3515 rights and, thus, violated section 3515.
13

APPENDIX
NOTICE TO CHAPTER MEMBERS
DISTRIBUTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in unfair practice Case No. S-CO-69-S, Tris
Colman v. California Correctional Peace Officers Association in
which all parties had the right to participate, it has been found
that the California Correctional Peace Officers Association has
violated section 3519.5(b) of the Ralph C. Dills Act. 	The
Association violated the Act by suspending Tris Colman from
membership in the Association upon a finding that was made
without proper notice and an appellate process that denied a fair
review of a hearing panel's decision.
As a result of this conduct, we have been ordered to mail
copies of this Notice to all members of the Association chapter
at the California Men's Colony, San Luis Obispo, and to abide by
the following. 	We will:
A. 	CEASE AND DESIST FROM:
Interfering with the protected right of Tris Colman to
join and participate in the activities of an employee	Join
organization of his own choosing by unreasonably dismissing him
from membership in the Association.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE RALPH C. DILLS ACT:
1 . 	Retroactively nullify the hearing panel decision
and order in the matter of Wilson v. Colman, restore life
insurance benefits and retroactively rescind the suspension of
Tris Colman from membership in the California Correctional Peace
Officers Association. The hearing panel decision and order may
not be reinstated unless Mr. Colman is afforded a new review of
the decision by CCPOA State Board of Directors. 	In the event a
new review is undertaken, the appellate board shall not consider
any materials which were not introduced before the hearing panel.
The appellate board shall not consider the hearing panel's
finding on Charge 10, harassment, unless a new hearing, upon
proper notice, is granted to Mr. Colman regarding the August 16,
1986, chapter board meeting and a new finding is sustained
against Mr. Colman.
Date : 	CALIFORNIA CORRECTIONAL
PEACE OFFICERS ASSOCIATION
By
Authorized Agent

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
TRIS COLMAN,
Charging Party,
v .
CALIFORNIA CORRECTIONAL PEACE OFFICERS
ASSOCIATION,
Respondent.
Unfair Practice
Case No. S-CO-69-S
PROPOSED DECISION
(12/28/87)
Appearances : 	Steven Bassoff, Attorney, for Tris Colman;
Neyhart, Anderson, Nussbaum, Reilly & Freitas by &
Elaine B. Finegold for the California Correctional Peace
Officers Association.
Before Ronald E. Blubaugh, Administrative Law Judge.
PROCEDURAL HISTORY
A former union officer contends here that he was suspended
from union membership after a hearing marked by procedural
irregularities. In particular, he alleges, the union's
pre-hearing notice of allegations was fatally non-specific and
the union's review of his conduct went beyond the pre-hearing
allegations. The union responds that the dispute is an
entirely internal affair of the union and is not subject to
external review. Alternatively, the union responds that its
pre-hearing notice was procedurally adequate but that if it was
not, the error was cured by actual notice given to its former
officer in various written and spoken communications.
This proposed decision has been appealed to the	p~oposed
Board itself and may not be cited as precedent	Board 	and may 	as
unless the decision and its rationale have been
adopted by the Board.	agopted by 	Board.

The charge which commenced this action was filed on
April 10, 1987, by Tris Colman against the California
Correctional Peace Officers Association (Association or
CCPOA) . A portion of the charge was withdrawn on
June 16, 1987, and on the same day a complaint was issued by
the general counsel of the Public Employment Relations Board
(PERB or Board). The complaint alleges that the Association
violated section 3519.5(a) of the Ralph C. Dills Act by
1) failing to provide the charging party with a statement of
charges containing specific alleged offenses, including
locations and circumstances, and 2) failing to limit its review
of allegations to those matters in the statement of charges.
1In relevant part, Government Code section 3519.5
provides as follows:
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.
There is nothing in the complaint or the underlying charge
even suggesting a violation of section 3519.5(a) . 	I conclude
that the reference to this section in the complaint is a
typographical error and hereby amend the complaint to allege a
violation of section 3519.5(b)
2
2The	e Ralph C. Dills Act (Dills Act) (formerly known as
the State Employer-Employee Relations Act) is found at
Government Code section 3512 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

The Association filed an answer on June 30, 1987, denying
that it had violated the Dills Act and arguing affirmatively
that PERB had no jurisdiction over internal union matters. 	A
hearing was held in Sacramento on September 21, 1987. With the
filing of post-hearing briefs, the matter was submitted for
decision on December 11, 1987.
FINDINGS OF FACT
The Respondent, California Correctional Peace Officers
Association, is an employee organization under the Dills Act.
At all times relevant the Association has been the exclusive
representative of State of California Bargaining Unit no. 6,
Corrections.
Mr. Colman has been a correctional officer since August of
1982. He joined the Association shortly after he was employed
by the State. During the relevant period, Mr. Colman worked at
the California Men's Colony in San Luis Obispo, a prison
operated by the State Department of Corrections. At the time
of the events at issue, Mr. Colman was the president of the
Association's chapter at the California Men's Colony. On
May 11, 1987, Mr. Colman was promoted to sergeant, a position
outside the bargaining unit represented by the Association. A
a moonlight job, Mr. Colman has worked for several years as a
real estate salesman for the Century 21 office in Santa Maria.
The events at issue grew out of a dispute that developed
between Mr. Colman and the chapter secretary-treasurer,
Lee Wilson. Ms. Wilson was appointed secretary-treasurer on
3

February 25, 1986. The secretary-treasurer takes the minutes
at chapter meetings, keeps chapter records, pays bills and
provides financial statements at meetings. The person holding
the post is expected to be knowledgable about chapter business.
At the time she was appointed secretary-treasurer,
Ms. Wilson requested that the chapter books be brought up to
date, audited and turned over to her. 	On March 25, 1986,
Ms. Wilson was given several boxes of chapter records, not
including checkbooks and financial statements. At Ms. Wilson's
request the chapter agreed to transfer its checking account
from a bank in San Luis Obispo to one in Morro Bay. Despite
the chapter's approval for the switch, Mr. Colman concluded
that the account should be maintained at a more central
location and he resisted the transfer.
Following a disagreement with Mr. Colman about his
continued failure to turn over the books, Ms. Wilson on
June 19, 1986, wrote a letter of complaint to Bob Morgan, the
Association's state finance committee chairman. In her letter,
Ms. Wilson said she wanted "to rectify the existing problem of
our chapter funds, " specifically, the checking account and the
benevolent fund. The benevolent fund was a special account
established to assist members in times of ill fortune. Among
its various uses was as a source of personal loans for
members. In her letter, Ms. Wilson asked that "the guidelines
for chapter funds be restored and adhered to" and, after the

appropriate corrections were made, that she be given control of
the chapter books. Ms. Wilson sent copies of her letter to the
chapter officers.
The next day, June 20, 1986, Mr. Colman wrote a letter of
reprimand to Ms. Wilson. 	In the letter, Mr. Colman accused
Ms. Wilson of "deliberate and malicious" conduct toward him.
He wrote that she had created conflicts among the Association
leadership and had become a threat to his credibility and that
of the Association. 	"Please consider this to be a formal
notice that I am very concerned regarding your conduct,
attitude, and actions towards the other members of this Board
of Directors and myself in particular, " Mr. Colman wrote. He 	.·
stated that if Ms. Wilson continued along her "present path" he
would remove her from the chapter board and from her position
as chief job steward for a portion of the prison.
Ms. Wilson responded on July 20, 1986, by filing charges
against Mr. Colman under the Association's constitution or
"Standard Operating Procedure" (SOP) , as it officially is
known . 	The SOP sets out 13 grounds for the discipline of a
member . 	In her statement of charges, Ms. Wilson cited two
grounds from Chapter 13 of the SOP:
2H) Using the name or assets (including
mailing lists) or goodwill of CCPOA or any
chapter in an unauthorized manner;
21) Deliberately interfering with any
official of CCPOA or any chapter official in
the discharge of his or her lawful duties.
5

Ms. Wilson's statement of charges against Mr. Colman are
set out in the form of a letter to Association Secretary
Larry Corby. 	The letter describes a series of incidents in a
rambling discourse. Ms. Wilson did not divide her letter into
discrete factual allegations and in most instances did not
recite the specifics of the alleged acts of misconduct. The
failure to recite specific details was inconsistent with the
Association SOP requirement that:
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,
where the violation of a section shall be
cited, along with the specific act or
omission which constitutes the alleged
violation.
Ms. Wilson's letter was not revised or rewritten into a
formal accusation by CCPOA staff or officers. At the time of
this dispute, CCPOA staff attorneys took a strict, hands-off
approach to charges filed by one Association member against
another.
After reviewing the charges, state Association officers
hired a private investigator to look into the accusations and
prepare a report. Mr. Colman was questioned at length by the
investigator who went substantially beyond the accusations in
the Wilson letter in his questioning. The investigator made no
findings of wrongdoing or illegal activity by Mr. Colman.
Two efforts at settlement were made by Association
officers. The second effort, on September 18, 1986, followed

the completion of the investigator's report. Both Mr. Colman
and Ms. Wilson were permitted to go through the report, one at
a time, with the investigator and offer corrections.
Thereafter, the parties reached a tentative agreement to try to
resolve the dispute informally. However, after two weeks Ms.
Wilson rejected the informal process and asked for a full
hearing of her complaint.
The hearing on the charges against Mr. Colman was set for
November 14, 1986. When Mr. Colman learned that the chairman
of his hearing panel was to be an Association officer named
John Baird he requested CCPOA President Don Novey to assign
someone else. Mr. Colman justified his request to remove Baird
because he was running against Baird for the position of
statewide executive vice president. "I believe that it would
be unfair to be judged by someone whom I would hope to unseat
from office a few days later, " Mr. Colman wrote. 	The request
was denied by Mr. Novey and Mr. Baird served as chairperson.
The hearing commenced on the scheduled date, but at
2:00 p.m. instead of the scheduled 9:00 a.m. At the start of
the hearing Mr. Colman asked Mr. Baird what charges the
committee would be dealing with. Mr. Baird showed him a copy
of Ms. Wilson's letter of July 20 and said that was all.
Because of the late start, the hearing continued into the
evening. At 8:00 p.m. , Mr. Colman's representative,
Douglas Young, asked for a continuance because of his personal
health problems. Mr. Young was a diabetic who recently had

recovered from heart surgery. The request for a continuance
was denied and Mr. Young left. Mr. Colman represented himself
throughout the remaining two hours of the hearing.
During the hearing, Chairman Baird permitted the
introduction of evidence regarding an August 16, 1986, chapter
board meeting conducted by Mr. Colman. 	This meeting occurred
nearly a month after the statement of charges was filed by Ms.
Wilson. Mr. Baird testified he permitted evidence about the
August 16 chapter meeting as "a collaboration to an ongoing
practice in regard to her allegation of harassment."
The hearing concluded about 10:00 p.m. After 30 minutes of
deliberation, the committee members reconvened and advised
Mr. Colman that the charges against him had been sustained and
that he was suspended immediately. The written decision was
issued one month later.
Although Ms. Wilson did not divide her letter of accusation
against Mr. Colman into specific charges, the Association
hearing committee made such a breakdown in its written
decision. 	This breakdown will be followed here. The
allegations of Ms. Wilson and the findings of the hearing panel
may be summarized as follows:
Charge 1 - Letter of instruction. Ms. Wilson alleged that	-
Mr. Colman's June 20, 1986, letter of instruction interfered
with her ability to carry out her duties as chief job steward.
Moreover, she continued, the letter was shown to other members

and elected officials of the chapter. By this action,
Ms. Wilson complained, Mr. Colman had discredited her
"reputation and integrity." This conduct was alleged to have
been in violation of SOP Chapter 13, subsection 2(I) .
The hearing panel found a violation on this charge. 	The
panel wrote that "by raising the issue with the Chapter Board,	"by
this letter was elevated to the level of a personal attack
against Ms. Wilson, and could be construed to be disciplinary.
Mr. Colman, as a Chapter President, had no authority in and of
himself to write a Letter of Reprimand.
Additionally, 	this letter [was] a disciplinary action in
retaliation for her expressing her concerns regarding the
Chapter finances to a State officer
Charge 2 - Chapter Benevolent Fund. Ms. Wilson charged
that Mr. Colman had used chapter resources for the development
of the benevolent fund. Further, she wrote, "(ift is my
understanding [that] this fund is illegal. " This conduct was
alleged to have been in violation of SOP Chapter 13,
subsection 2(H) .
The hearing panel found a violation on this charge. 	The
panel held that neither the chapter nor Mr. Colman had secured
a legal opinion in favor of the fund prior to initiating it.
The panel found that Mr. Colman improperly used $50 in chapter
monies for a City of San Luis Obispo license prior to a fund
raiser for the benevolent fund. This expenditure, the panel
S

held, jeopardized CCPOA's non-profit tax status and should have
been made only after approval by Association legal
authorities. 	The panel further found that Mr. Colman refused
to follow instructions from the CCPOA general counsel to cease
all operation of the benevolent fund. In addition, the panel
concluded, Mr. Colman inappropriately made personal loans out
of the benevolent fund. The panel held that in addition to
being improperly made, the personal loans were improperly
documented.
Charge 3 - Chapter Books. Reciting a conversation with
Mr. Colman, Ms. Wilson quoted him as saying he "had no
intention of turning [the books] over to me, and that if I
didn't like the way he was doing things, I could resign. " She
charged that Mr. Colman's refusal to audit and turn over the
books deliberately interfered with her ability to discharge the
duties of secretary-treasurer, in violation of SOP Chapter 13,
subsection 2(I) .
The hearing panel found a violation on this charge. The
panel concluded that the chapter books were never turned over
to Ms. Wilson despite the explicit instruction of a statewide
vice president. The panel held that the refusal to turn over
the books was a deliberate interference with a chapter officer
in the discharge of her duties.
Charge 4 - Chapter Newsletters.	4 	Ms. Wilson alleged that
Mr. Colman "has printed Chapter [newsletters without the
approval of the local Chapter [bloard, nor having the
10

newsletter reviewed by the Sacramento Office." 	This conduct
was alleged to have been in violation of SOP chapter 13,
subsection 2(H) .
The hearing panel concluded that Mr. Colman had secured
approval by telephone for chapter newsletters issued prior to
July 20, 1986, the date of Ms. Wilson's statement of charges.
However, the panel held that Mr. Colman had not secured prior
approval for the September, 1986 chapter newsletter. A message
from Mr. Colman in the September newsletter refers generally to
"allegations of wrong doing from one of our own [bloard
[m]embers." It also refers to "tempers and tensions" running
high. It makes no specific reference to Ms. Wilson or to her
accusations. The hearing panel held that reference to the
Wilson charges violated specific instructions given to
Mr. Colman by the CCOPA legal staff. In addition, the panel
concluded, by "printing said newsletter, Mr. Colman was only
stoking the fire of harassment towards Lee Wilson."
Charge 5 - Collection of Loans. Ms. Wilson charged that	-
"[oin two occasions Mr. Colman has asked me to collect funds
from members who were loaned money. " This conduct was alleged
to have been in violation of SOP Chapter 13, subsection 2(H) .
The hearing panel found no violation on this charge.
Charge 6 - Chief Job Steward Removal. Ms. Wilson charged	-
that "[recently, Mr. Colman informed me indirectly that he was
replacing me as Chief Job Steward of the West Facility." She
11

described the removal from the post as "nothing more than
retaliation for my letter to R. Morgan. " There was no
allegation regarding which SOP section was violated by this
action.
The hearing panel found no violation on this charge.
Charge 7 - Campaign Manager. Ms. Wilson charged that
"[w]hen I refused to be Mr. Colman's campaign manager at the
upcoming convention he became upset. He also ordered me to
start collecting funds for campaign contributions for his
campaign at the convention. I refused to carry out this
order. '" There was no allegation regarding which SOP section
was violated by this action.
The hearing panel found no violation on this charge.
Charge 8 - Century 21. Ms. Wilson wrote that Mr. Colman
had used chapter meetings "to further his real estate
ventures." She attached a copy of Mr. Colman's real estate
promotional materials. There was no allegation regarding which
SOP section was cited by this conduct.
The hearing panel found a violation on this charge. 	The
panel found that despite the rejection of a Century 21
relocation program by CCPOA's statewide board, Mr. Colman
continued to distribute Century 21 literature which implied a
CCPOA endorsement. The panel found that even though Mr. Colman
did not make any money on the program, "it was wrong of him to
continue to distribute the packet in light of the State Board
12

[m]eeting." 	The panel found that the material distributed by
Mr. Colman "gives the appearance of an exclusive business
relationship between Century 21 and CCPOA. " The hearing panel
described Mr. Colman's action as "very poor judgment."
Charge 9 - Hernandez Letter. Ms. Wilson's July 20, 1986,
statement of charges makes no reference to a "Hernandez
Letter." However, the hearing panel considered whether
Mr. Colman had acted improperly in distributing materials from
a financial planner who addressed a chapter meeting. The
hearing panel found no violation on this matter.
Chapter 10 - Harassment. Ms. Wilson's July 20, 1986,
letter contains no accusation of harassment. Indeed, the word
"harassment" is not used in the letter. Nevertheless, the
hearing panel concluded that "the sole purpose" of an
August 16, 1986, chapter meeting was "to attack, discredit, and
adjudicate the charges prior to an official hearing by the
[hearing committee. " The panel concluded that there was no
authority under CCPOA bylaws or SOP for such an action. 	The
panel concluded further that the "censoring of Ms. Wilson in a
public document constitutes an inappropriate exercise of
discipline by a Chapter Board." The hearing panel said
Mr. Colman, as an interested party, acted inappropriately by
voting on the censure resolution.
Under the Association SOP, either party may appeal the
decision of a hearing committee to the State Board of Directors
13

within 30 days. Appeals must be in writing and are to be
accompanied by a copy of the original charge and the decision
which is being appealed. 	The State Board of Directors is to
review "the two documents" at its next meeting following the
appeal.
Mr. Colman promptly availed himself of the appeal
procedure. After submitting the appropriate documents,
Mr. Colman called the hearing panel chairman, Mr. Baird, to
find out what documents the panel would be submitting to the
appeal body. Mr. Baird told him there would be nothing
submitted other than the decision of the hearing panel.
The appeal was heard at a meeting of the State Board of
Directors in January. Mr. Colman attended the meeting and
observed members of the board of directors carrying a book
approximately 3 1/2 inches thick that was entitled "Wilson v.
Colman, 1986. " Mr. Colman requested and was given a copy of
the document. In addition to the original charge and the
decision of the hearing panel, the book contained a copy of the
hearing transcript, a copy of the settlement conference
transcript, a copy of the Century 21 relocation packet, eight
items of correspondence relating to the case, and a declaration
by CCPOA General Counsel Gerrit Jan Buddingh. Mr. Colman's
appeal was denied by the board of directors.
The Association presented evidence intended to show that
Mr. Colman received actual notice of the allegations considered
14

by the hearing panel regardless of any technical deficiencies
in the Wilson charges. Mr. Buddingh testified that he had
several conversations with Mr. Colman in July of 1986 about
problems with the benevolent fund. In a letter of
July 28, 1986, Mr. Buddingh set out in considerable detail the
tax problems which might grow out of the continued operation of
the benevolent fund. In the letter, Mr. Buddingh essentially
directed Mr. Colman to disband the fund, give the money to a
recognized charity and mail him a receipt for the gift.
Mr. Buddingh also testified that he had three or four
conversations with Mr. Colman in July of 1986 regarding his
involvement with Century 21. He said he warned Mr. Colman that
CCPOA as a statewide organization was going to take over the
chapter's books because the chapter office was being used to
conduct Century 21 business. On another occasion, Mr. Buddingh
told Mr. Colman that his involvement with Century 21 gave the
appearance that he was using his chapter office for personal
gain.
At the time he was suspended, Mr. Colman was running for
reelection as chapter president. A count of the ballots after
Mr. Colman's suspension showed that he had received a majority
of the votes. 	However, his suspension from membership made him
ineligible to serve as president despite the ballot count.
Mr. Colman's one-year suspension from membership commenced on
November 14, 1986.
15

While he was chapter president, Mr. Colman worked on the
second watch at the prison and enjoyed Saturdays and Sundays
off. 	This was in accord with a contractual provision between
the State and CCPOA which provided that the chief job steward
at each institution could select the shift and days off that
he/she preferred. Mr. Colman's work shift and days off
remained unchanged after his suspension until sometime in April
of 1987 when he was placed on vacation relief. On
May 11, 1987, when he was promoted to sergeant, Mr. Colman was
assigned to the graveyard shift. At the time of the hearing,
Mr. Colman was off work on Mondays and Tuesdays.
Sergeants are supervisors and are excluded from the
negotiating unit represented by CCPOA. The contract therefore
does not pertain to them.
LEGAL ISSUES
1) Does PERB have jurisdiction over allegations of
misconduct in the operation of a union's internal disciplinary
procedures?
2) If so, did the Association's discipline of Mr. Colman
interfere with his protected right to engage in the activities
of an employee organization?
CONCLUSIONS OF LAW
Jurisdiction
State employees have the right under the Dills Act to
"form, join, and participate in the activities of employee
organizations of their own choosing for the purpose of
representation on all matters of employer-employee
16

relations." It is an unfair practice under section
3519. 5(b) for an employee organization "to interfere with,
restrain, or coerce employees because of their exercise of"
protected rights.
In an unfair practice case involving an allegation of
interference, a violation will be found where the respondent's
acts interfere or tend to interfere with the exercise of
protected rights and the respondent is unable to justify its
actions by proving operational necessity. Carlsbad Unified
School District (1979) PERB Decision No. 89. See also,
Novato Unified School District (1982) PERB Decision No. 210,
Sacramento City Unified School District (1982) PERB Decision
No. 214 and Sacramento City Unified School District (1985) PERB
Decision No. 492.
At issue here is the protected right of Mr. Colman to join
and participate in the activities of an employee organization
for the purpose of representation. An employee organization's
unreasonable interference with an employee's right to be an
organization member is a denial of protected rights. Union of
3 Section 3515.
4 Text t footnote no. 1, supra.
5 T	he Board's test for interference cases was developed in
the context of an employer's unfair practice. However, the
wording of the relevant sections for interference is identical
as to both employers and employee organizations. For this
reason, the PERB uses the same analytical method in analyzing
cases involving unions as it does for cases involving
employers. State of California (Department of Developmental
Services) (1983) PERB Decision No. 344-S. This case also
adopted the Carlsbad rule for cases decided under the Dills Act.
17

American Physicians and Dentists (Stewart) (1985) PERB Decision
No. 539-S. The question here, therefore, is whether the
Association's suspension of Mr. Colman was unreasonable and
thus an interference.
CCPOA does not reject this approach but would limit the
Board's inquiry solely to those cases which "have a substantial
impact on the relationship of employees to their employer, "
citing Service Employees International Union, Local 99
(Kimmett) (1979) PERB Decision No. 106. The Association reads
Kimmett and a later case, California School Employees
Association (Parisot) (1983) PERB Decision No. 280, as
absolutely precluding PERB review in the present matter.
T	6 he Association relies in particular on the following
language from Parisot:
[In Kimmett] we stated that we will
not interfere in matters concerning the
relationship of members to their union
unless they have had a substantial impact on
the relationship of the employees to their
employer. This does not require a
demonstrable impact on the employees wages,
hours or terms and conditions of
employment. The relationship of employees
to their employer can be manifested through
and conditioned by the selection or
rejection of a bargaining representative.
However, the Association fails to quote the very next
sentence from the Board's decision in Parisot:
In Kimmett, we did not intend to abdicate
our jurisdictional power to determine
whether an employee organization has
exceeded its authority under subsection
3543. 1(a) to dismiss or otherwise discipline
its members. 18

After Parisot, the Association argues, an employee
challenging union discipline must demonstrate either that the
discipline was motivated by conduct designed to thwart the
right to select a bargaining representative or that the
discipline was in retaliation for protected activities. Only
after these requirements are met, the Association reasons, will
the PERB conduct an inquiry into whether the disciplinary
proceedings were "reasonable."
A showing of unlawful motivation is appropriate for
discrimination or retaliation cases, Novato Unified School
District, supra, PERB Decision No. 210. But the facts alleged
by Mr. Colman do not raise an issue of discrimination. Rather,
they set out an issue of interference. Proof of unlawful
motivation is unnecessary to demonstrate interference with
protected activities. Regents of the University of California
(1983) PERB Decision No. 305-H.
Nor is the Association convincing in its contention that
PERB review of union discipline is precluded except where the
discipline has a substantial impact on the employee's
relationship with the employer. The PERB review of union
disciplinary procedures is rooted in Section 3515.5 of the
Dills Act. In relevant part, that section provides that:
Employee organizations may establish
reasonable restrictions regarding who may
join and may make reasonable provisions for
the dismissal of individuals from membership.
19

As Parisot makes clear, PERB finds in this language
"jurisdictional power to determine whether an employee
organization has exceeded its authority . 	. to dismiss or
otherwise discipline its members." Indeed, the Board in
Parisot phrased the issue as whether the union was "obligated
to have reasonable provisions covering its disciplinary actions
and, if so, did it act accordingly. "
A fair reading of Parisot and Stewart makes it evident that
the PERB does not believe itself restricted in the review of
union discipline to only those situations which substantially
impact the employer-employee relationship. The Kimmett
limitation on review, which the Respondent cites, is rooted in
the duty of fair representation questions presented there.
Neither Parisot nor the present case involves the duty of fair
representation.
It is doubtlessly true that the PERB will review some union
disciplinary matters that the National Labor Relations Board
(NLRB) would bypass. The NLRB's reservations are rooted in
textual requirements. Section 8(b) (1) (A) of the National
Labor Relations Act expressly provides that the prohibition
against union interference with protected rights,
. shall not impair the right of a labor
organization to prescribe its own rules with
respect to the acquisition or retention of
membership therein .
This wording affords greater deference to union disciplinary
procedures than does the Dills Act. The Dills Act requirement
20

that an employee organization's restrictions be "reasonable"
suggests a level of administrative review not intended under
the federal law. Plainly, if an employee organization is
precluded from making unreasonable restrictions on membership,
an individual member must be able to test the reasonableness of
union discipline. In Parisot, the PERB concluded that it would
resolve such disputes.
Interference
The complaint sets out two grounds for a finding of
interference against the Association: 1) that the Association
failed to provide the charging party with a statement of
charges containing specific alleged offenses, including
locations and circumstances, and 2) that the Association failed
to limit its review of allegations to those matters in the
statement of charges.
In Parisot the PERB directed the issuance of a complaint on
allegations that a union suspended a member on charges that
were "unreasonably vague and ambiguous. " In addition, the
Board noted, the case presented allegations that the union,
. did not specify the sections of the
[union] constitution which had been violated
or the dates, times, places, and witnesses
involved in each of the charged offenses
Such allegations, the Board concluded, properly raised
questions about the reasonableness of the procedures followed
by the union and whether the accusations against the charging
party "were unreasonably vague and ambiguous."
21

The Association hearing panel made findings on ten
accusations against Mr. Colman. It dismissed four of the
accusations and the Charging Party makes no contention here
regarding them. 	As to the remaining six findings, Mr. Colman
argues that the Association violated its own rules on
specificity of charges. Mr. Colman argues that the veracity of
the General Counsel's complaint against the Association can be
demonstrated by simply comparing the charges contained in the
Wilson letter of July 20 to the hearing panel report of
December 11.
It is self-evident that the Wilson letter of July 20, 1986,
did not adhere to the Association's own rules on specificity
for charges against members. 	It did not cite "in detail the
nature, the date, and the circumstances of the alleged
offense (s) ." In several instances, it did not cite "the
specific act or omission which constitutes the alleged
violation."
Even if this be so, the Association replies, a technical
violation of the organization's rules is insufficient to
sustain the unfair practice charge. The Association argues
that it must be given wide latitude in its disciplinary
procedures and that "technical legal niceties" are not required
in a union disciplinary procedure. The Association argues that
there is no requirement that the findings of the hearing panel
precisely track the language of the charge. All that is
required, the Association contends, is that the findings
22

against Mr. Colman be "related to" the issues raised in the
Wilson letter.
Because of textual differences between the Dills Act and
the National Labor Relations Act, federal cases are not helpful
in evaluating the level of procedural fairness required in
union disciplinary proceedings. However, as noted by both
parties, California law is instructive. California courts
review dismissals from private organizations under the common
law requirement of "fair procedure." See generally Ezekiel v.
Winkley (1977) 20 Cal. 3d 267 [142 Cal. Rptr. 418] for a
discussion of the rule as applied both to exclusions and
expulsions from organization membership.
In cases involving unions, the courts interfere in an
expulsion only where the organization has not followed its own
rules, or rudimentary rights of defense have not been granted.
Cason v. Glass Bottle Blowers Assn. (1951) 37 Cal. 2d 134. 	In
general, the courts apply the "fundamental principle of justice
that no man may be condemned or prejudiced in his rights
without an opportunity to make his defense. " Id. at 37 Cal. 2d
143. However, "the refined and technical practices which have
developed in the courts cannot be imposed upon the
deliberations of workingmen and the form of the procedure is
ordinarily immaterial if the accused is accorded a fair
trial. " Id.
What the courts do require is that the union's procedure
grant the accused "substantial justice." The elements of a
23

fair trial "will be imposed even though the rules of the union
fail to provide therefor. " Id. This includes "the right to
notice of the charges, to confront and cross-examine the
accusers and refute the evidence." 	Id. at 37 Cal. 2d 144. 	The
judicial requirements are thus consistent with the PERB holding
in Parisot that a union may not suspend a member on pre-hearing
charges that are "unreasonably vague and ambiguous."
As the California cases make clear, the Association
therefore is correct that "technical legal niceties" are not
required in a union's disciplinary process. But the union must
give pre-hearing notice that is more than just "related to" the
findings which ultimately are reached by a hearing panel. At
minimum, the accusation must be sufficiently clear to enable
the accused union member to prepare a defense. 	Anything less
would be "unreasonably vague and ambiguous. " It is against
these standards that Ms. Wilson's July 20, 1986, letter must be
measured. A charge-by-charge analysis reveals the following:
Charge 1 - Letter of Instruction. 	The charge gave
Mr. Colman reasonable notice that because of his letter of
June 20, 1986, he was accused of interfering with a chapter
official, Ms. Wilson, in the discharge of her duties. 	The
hearing panel sustained the charge on the grounds that the
letter was disciplinary and retaliatory and that Mr. Colman had
no authority to issue a letter of reprimand to another chapter
officer. Although the hearing panel did not make a specific
finding using the word "interference, " it can reasonably be
24

inferred that in the panel's view a disciplinary, retaliatory
letter that was outside the authority of its author constituted
an interference with Ms. Wilson in the discharge of her duties.
Mr. Colman argues that the hearing panel's conclusion must
be rejected because of the failure of the panel to make a
finding that the letter interfered in some specific way with
Ms. Wilson's ability to perform her duties. Mr. Colman
complains that the hearing panel did not "find one specific
instance" where Ms. Wilson was hampered in the performance of
her duties.
By making this argument, the Charging Party invites the
administrative law judge to review the merits of the panel's
conclusion, i.e., whether the conduct of Mr. Colman was
sufficient under the Association's constitution to justify the
panel's conclusion. Administrative agencies and courts must
give great deference to a union's interpretation of what
conduct is sufficient to violate a union's own bylaws. Kahn v.
Hotel and Rest. Employees & Bartenders, Etc. (1977) 469 F. Supp.	&
14 [101 LRRM 2516], affd. 597 F. 2d 1317 [101 LRRM 2521].'
It is not for an outside entity to decide whether a
disciplinary, retaliatory letter that was outside the authority
of its author is sufficient to constitute interference with a
chapter officer under CCPOA bylaws. That is a matter for the
Association's own internal judgment. The issue before me is
7For a similar holding on a related issue see NLRB v.
Boeing Co. (1973) 412 U.S. 67 [83 LRRM 2183] .
25

whether Mr. Colman was given sufficient notice that he stood
accused of interfering with a chapter officer in the
performance of her duties by his authorship of the June 20
letter. I conclude that the notice was sufficient.
Charge 2 - Chapter Benevolent Fund. The charge gave	-
Mr. Colman reasonable notice that he was accused, in the
development of the chapter benevolent fund, of using chapter
resources in an unauthorized manner. He also was given notice
of an accusation that the fund was illegal.
The hearing panel sustained the charge. It found that
Mr. Colman had used $50 of chapter money in connection with a
fund raiser for the benevolent fund. The panel found that the
expenditure and the way the fund had been used was in violation
of Internal Revenue Service rules for non-profit organizations
and jeopardized CCPOA's status as such an organization. The
panel further found that Mr. Colman had been told by
Association lawyers that the fund was illegal and had disobeyed
instructions to close it. The panel found these actions to
constitute an unauthorized use of CCPOA assets.
Although Ms. Wilson's July 20 statement of charges did not
specify how the fund was illegal, this deficiency was cured in
a letter eight days later from CCPOA chief counsel,
Gerrit Jan Buddingh. In the July 28 letter, Mr. Buddingh
explained in detail the legal problems the fund presented to
CCPOA's status as a non-profit organization. Upon receipt of
the letter, Mr. Colman was on notice about the problems CCPOA
26

perceived with the benevolent fund and what the organization
expected him to do about them. Mr. Colman thus had ample
opportunity to prepare a defense for the hearing panel. 	For
this reason, I conclude that Mr. Colman was not denied a fair
hearing on the accusation about the benevolent fund.
Charge 3 - Chapter Books. The charge gave Mr. Colman
reasonable notice that he was accused of refusing to turn over
the chapter books to Ms. Wilson, thereby deliberately
interfering with her ability to discharge the duties of
secretary-treasurer. 	The hearing panel sustained the charge,
holding that Mr. Colman in fact never did turn over the books
to Ms. Wilson. 	The panel held that the refusal to turn over
the books was a deliberate interference.
The Charging Party again urges the administrative law judge
to examine the underlying merits of the dispute, i. e. , whether
the evidence presented before the union's hearing panel was
sufficient for the panel to sustain Ms. Wilson's accusation.
The Charging Party argues that the hearing panel failed to
explain how the failure of Mr. Colman to turn over the books
interfered with Ms. Wilson in the performance of her duties.
What evidence is sufficient to demonstrate interference
with an officer in the performance of her chapter duties is not
a matter for the PERB to second guess. It involves the union's
interpretation of its own bylaws. I decline the invitation to
become immersed in this internal matter and conclude that the
27

Wilson letter of July 20, 1986, provided sufficient notice of
the accusation which was sustained against Mr. Colman.
Charge 4 - Chapter Newsletters.	4 	The Wilson letter gave
Mr. Colman reasonable notice that he was accused of printing
chapter newsletters without approval of the chapter board or
the Sacramento office, thereby using the name, assets or
goodwill of CCPOA in an unauthorized manner. The hearing panel
sustained the charge on the ground that in one instance
Mr. Colman had printed a chapter newsletter containing material
he had been specifically told not to include by CCPOA
attorneys. The newsletter at issue was published in September
of 1986, approximately two months after Ms. Wilson filed her
statement of charges. The hearing panel concluded that by
printing the newsletter, Mr. Colman was "only stoking the fire
of harassment towards Lee Wilson."
Mr. Colman argues that a finding based on events which
occurred two months after the statement of charges is a clear
violation of CCPOA's rules on notice. 	The Association responds
that the publication of the September 1986 newsletter was
sufficiently related to the underlying charge to justify its
consideration at the hearing. 	In advancing this argument, the
Association contends that the hearing panel's consideration of
the September newsletter was no different than PERB's
consideration of unalleged violations in unfair practice
hearings.
28

PERB cases permit the introduction of evidence about
post-complaint conduct where the conduct is related to the
subject matter of the complaint and is part of the same course
of action. A violation may then be found on the post-complaint
conduct if the matter was fully litigated at the hearing.
Mt . Diablo Unified School District (1984) PERB Decision Nos.
373b and 373c. The requirements that the post-complaint
conduct be related to the subject matter of the complaint and
be part of the same course of action negate the problem of
inadequate notice. A respondent is not caught unaware when
confronted at a hearing with evidence about a continuation of
the same course of action as that set out in a pre-hearing
notice.
The policy reasons behind the PERB rules permitting
evidence about post-complaint conduct are valid in other
contexts. There is no reason why a union disciplinary hearing
should be held to a higher standard of notice than PERB itself
requires. Mr. Colman went before the hearing panel knowing
that he was accused of issuing chapter newsletters that had not
been approved by the chapter board or the Association's
Sacramento office. Evidence about the September 1986
newsletter was related to the subject matter of the charge and
was part of the same course of action. For these reasons, I
believe that the Wilson letter of July 20, 1986, provided
sufficient notice of the accusation which was sustained against
Mr. Colman.
The hearing committee found no wrong-doing by Mr. Colman on
Charges 5, 6 and 7 and they are not at issue here.
29

Charge 8---Century 21. The Wilson letter gave Mr. Colman
reasonable notice that he was accused of using chapter meetings
to further his real estate ventures. The hearing panel
sustained the charge finding that Mr. Colman had distributed
literature which implied the existence of a business
relationship between CCPOA and Century 21.
Mr. Colman argues that he was given no notice that he had
been accused of improperly distributing literature. 	The
accusation concerned conduct at chapter meetings, not
distribution of literature. 	The Association responds that Ms.
Wilson had attached, as an illustration to her charge, a copy
of a Century 21 real estate packet distributed by Mr. Colman.
In light of the attachment, CCPOA argues, Mr. Colman's
complaint is baseless.
The attachment of the Century 21 literature to the July 20
letter was obviously intended to be an example of the contested
conduct. Mr. Colman was clearly placed on notice that he would
be called upon to defend the literature attached to
Ms. Wilson's letter. I conclude that Mr. Colman received
reasonable notice of the accusation sustained against him.
The hearing committee found no wrong-doing by Mr. Colman on
Charge 9 and it is not at issue here.
Charge 10--Harassment. Ms. Wilson's letter of July 20,
1986, contains no accusation of harassment. She does not even
use the word harassment in the letter. Nevertheless, the
hearing committee found that the sole purpose of an
August 16, 1986, chapter meeting was to attack and discredit
30

Ms. Wilson. 	The committee concluded that the meeting was held
outside the authority of CCPOA bylaws and was an inappropriate
exercise of discipline.
The panel's conclusion on the harassment charge is based
upon evidence about an August 16, 1986, chapter meeting. 	The
meeting was conducted nearly two months after Mrs. Wilson's
July 20 letter. The meeting was a new incident, not part of a
continuous course of conduct and unrelated to any other
accusation against Mr. Colman. Plainly, Mr. Colman was given
no notice that he would be tried for conduct at an
August 16, 1986, chapter board meeting. In the absence of
pre-hearing notice, his right to defend himself on this
accusation was severely limited. On this accusation, I find
the Association failed to grant Mr. Colman a fair hearing.
In addition to the allegations that he failed to receive
proper notice of accusations he was tried on, Mr. Colman raises
two other allegations in his brief. He asserts that the
Association denied his right to representation when it refused
to grant a continuance of the hearing 	and when it sent
documents not introduced at the hearing to the appeal
committee. 	Both actions, Mr. Colman maintains, constitute
violations of Association bylaws.
The disputed continuance was denied when Mr. Colman's
representative at the hearing was unable to go forward after
8 p.m. because of health problems. Mr. Colman argues that the
denial of the continuance had the effect of denying him the
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right to representation at the hearing. The Respondent replies
that Mr. Colman has not shown any bylaw requiring the granting	C
of a continuance at hearing. Moreover, the Respondent
continues, Mr. Colman has presented no evidence that he was in
any way prejudiced by the refusal to grant a continuance.
The bylaw cited by Mr. Colman provides that the accused
shall have the right to representation "by any nonmember of the
bar, member or officer of CCPOA. " Mr. Colman's argument is
that denial of the request for a continuance was inherently
unreasonable in light of the health problems of Mr. Colman's
chosen representative. Thus, when the representative decided
he must leave, by Mr. Colman's rationale, it was the
Association which denied him representation. But there is
nothing inherently unreasonable about the 8 p.m. denial of a
continuance in a hearing which was in its closing stages. The
need for a continuance is seen only in light of the serious
health problems of Mr. Colman's representative. Yet these were
problems which must have been known to Mr. Colman at the time
he picked the representative. 	The burden of the
representative's health problems cannot be made by Mr. Colman
to be entirely that of the Association.
In addition, as the Association argues, Mr. Colman has made
no showing that his defense was prejudiced by the denial of a
continuance. 	It is true that Mr. Colman's representative left
at that point. 	However, it must be recalled that this was a
32

hearing conducted by nonlawyers who were co-unionists with
Mr. Colman. In these circumstances, one cannot automatically
infer prejudice because of the departure of Mr. Colman's
nonlawyer representative. No violation can be found on this
point.
Finally, Mr. Colman argues that the Association violated
its own bylaws and denied his rights by submitting to the
appeal board documents not introduced before the hearing panel.
Mr. Colman argues that he was given no advance notice of this
action and was able to secure a copy of the information only on
the day of his appeal. By that time, he contends, it was too
late for him to offer any response. The Association responds
that submission of the additional material did not violate
Association bylaws and that Mr. Colman has made no showing that
he was prejudiced by the documents.
There is no allegation in the complaint about the appeals
process . 	However the contention meets the tests of Mt. Diablo
Unified School District, supra, PERB Decisions 373b and 373c as
an unalleged violation. The manner in which the Association
conducted the appeal proceeding was related to the subject
matter of the complaint, was part of the same course of action
and was fully litigated.
It seems self-evident that the placement before the appeals
board of evidence not made part of the record at a hearing is a
denial of fairness. In effect, the accusor is given the
opportunity to strengthen its case before the appellate body
33

while the accused is not permitted to respond. This action
could have a definite effect on the decision of the appellate
body. It is concluded, therefore, that basic principles of
fairness were breached in the appellate review of the finding
against Mr. Colman.
Summary
A union interferes with an employee's protected rights when
it unreasonably excludes the employee from union membership. 	I
find here that the Association acted unreasonably in its
suspension of Mr. Colman by two acts: 1) finding him guilty
without pre-hearing notice of harassing Ms. Wilson at a chapter
meeting on August 16, 1986; 2) submitting to the Association
appeals board materials which were not introduced at
Mr. Colman's disciplinary hearing and which he had not seen
before.
By suspending Mr. Colman from membership on the basis of
these actions, the Association interfered with his right to
join and participate in the activities of an employee
organization. 	This action was in violation of Dills Act
section 3519.5(b).
8As a final line of defense, the Association argues that
Mr. Colman waived any argument he may have had about improper	ve'd
notice by participating in the hearing. Mr. Colman replies
that at the start of the hearing he was assured that he was
defending himself only against the allegations in Ms. Wilson's
letter of July 20, 1986. It was not until after Mr. Colman
received the written decision from the committee that he
discovered that findings were made on other matters. I reject
the waiver defense for the reasons set out by Mr. Colman.
34

REMEDY
For a remedy, Mr. Colman asks that the PERB direct the
Association to rescind the suspension, to reinstate Mr. Colman
to his position as chapter president, to restore his insurance
benefits and to reimburse him for his legal fees and all costs
incurred.
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 reimbursement of
employees with or without backpay, as will
effectuate the policies of this chapter.
Although most of the findings of the Association hearing
panel are left undisturbed by this proposed decision, it is not
possible to know whether the suspension would have been upheld
had Mr. Colman received a fair appellate review. 	For that
reason, I conclude that the hearing panel decision must be
nullified and the suspension must be retroactively rescinded.
The decision justifying the suspension is not to be reinstated
unless Mr. Colman is afforded a new review of his case by the
Association's State Board of Directors. In the event a new
review is undertaken, the appellate board shall not consider
any materials which were not introduced before the hearing
panel. The appellate board shall not consider the hearing
panel's finding on Charge 10, harassment, unless a new hearing,
upon proper notice, is granted to Mr. Colman regarding the
August 16, 1986, chapter board meeting and a new finding is
sustained against Mr. Colman. In addition, Mr. Colman is
35

to be made whole for any losses incurred as a result of his
suspension from the Association insurance program.
It is further appropriate that the Association be directed
to send copies by United States Mail of a notice incorporating
terms of the order to all members of the CCPOA chapter at the
California Men's Colony, San Luis Obispo. The mailing of a
notice to chapter members will provide notice that the
Association has acted in an unlawful manner, is being required
to cease-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 the controversy and
the Association's readiness to comply with the ordered remedy.
Placerville Union School District (1978) PERB Decision No. 69.
There are two reasons why it is not appropriate that the
Association be directed to reinstate Mr. Colman as chapter
president. First, many of the findings against Mr. Colman are
left intact by this proposed decision. Upon proper review, the
Association Board of Directors may conclude that the findings
left in effect were sufficient to justify the suspension of
Mr. Colman from the Association. Second, subsequent to the
events at issue Mr. Colman has been promoted to a supervisor by
the State of California and no longer is a member of the
bargaining unit represented by CCPOA. Chapter members should
not be required by the action of an outside entity to have a
supervisor as chapter president. The change of Mr. Colman's
status is of such significance that only chapter members, if
36

Mr. Colman chooses to run in some subsequent election, should
decide whether to restore him to the position of chapter
president.
It is likewise inappropriate that Mr. Colman be awarded
attorney's fees. In Modesto City Schools and High School
District (1985) PERB Decision No. 518, the PERB held that
attorney's fees should not be awarded "unless there is a
showing that the respondent's conduct has been repetitive and
that its defenses are without arguable merit." It cannot be
said that the Association's defenses are without arguable
merit. The Association has been sustained in many of its
arguments.
PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions
of law, and the entire record of this case, it is found that
the California Correctional Peace Officers Association (CCPOA)
has violated section 3519.5(b) of the Dills Act. Pursuant to
section 3514.5(c) of the Government Code, it hereby is ORDERED
that the Association, its board of directors and its
representatives shall:
1 . 	CEASE AND DESIST FROM:
Interfering with the protected right of Tris Colman to
join and participate in the activities of an employee
organization of his own choosing by unreasonably dismissing him
from membership in the Association.
37

2 . 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE RALPH C. DILLS ACT:
A. 	Within ten (10) workdays of service of a final decision
in this matter, retroactively nullify the hearing panel
decision and order in the matter of Wilson v. Colman and
retroactively rescind the suspension of Tris Colman from
membership in the California Correctional Peace Officers
Association. The hearing panel decision and order may not be
reinstated unless Mr. Colman is afforded a new review of the
decision by the Association's State Board of Directors. In the
event a new review is undertaken, the appellate board shall not
consider any materials which were not introduced before the
hearing panel. 	The appellate board shall not consider the
hearing panel's finding on Charge 10, harassment, unless a new
hearing, upon proper notice, is granted to Mr. Colman regarding
the August 16, 1986, chapter board meeting and a new finding is
sustained against Mr. Colman.
B. Within thirty (30) workdays of service of a final
decision in this matter, make Tris Colman whole for any losses
incurred as a result of his suspension from Association
insurance programs.
C. 	Within ten (10) workdays of service of a final decision
in this matter, send by United States Mail copies of the Notice
attached hereto as an Appendix to all members of the CCPOA
chapter at the California Men's Colony, San Luis Obispo. 	The
Notice must be signed by an authorized agent of the
Association, indicating that the Association will comply with
the terms of this Order.
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D. 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 Administrative Code, title 8,
part III, section 32305, this Proposed Decision and Order shall
become final unless a party files a statement of exceptions
with the Board itself at the headquarters office in Sacramento
within 20 days of service of this decision. 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. See California
Administrative Code, title 8, part III, section 32300. 	A
document is considered "filed" when actually received before
the close of business (5:00 p.m. ) on the last day set for
filing, 	or when sent by telegraph or certified or
Express United States mail, postmarked not later than the last
day set for filing. . 	" 	See California Administrative Code,
title 8, part III, section 32135. Code of Civil Procedure
section 1013 shall apply. 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 California Administrative Code, title 8, part III,
sections 32300, 32305 and 32140.
Dated: December 28, 1987 	World & Palalaugh
RONALD E. BLUBAUGH
Administrative Law Judge
39