CDF Firefighters v. Maldonado
Filed January 14, 2008, Fifth District,
Cite as 2008 SOS 239

Employee’s Excuse To Seek Union Remedies Accepted, Ruling Reversed

Richard A. Maldonado and Michael S. Pittman are both firefighter members of CDFF. Maldonado was the CDFF Region IV Director and served as Region IV’s representative on the State Board.

Pittman belonged to the San Benito-Monterey chapter, part of Region IV. He was a fire captain, and had been a rank and file employee of the California Department of Forestry and Fire Protection (Department) for more than 20 years. He served as director of his chapter, and was a member of the Region IV board. Pittman was a longtime union activist, experienced with political disputes and with union charges, hearings, and discipline.

Firefighters employed by the State of California are represented by the CDF Firefighters (CDFF) who also happens to be the group’s exclusive bargaining representative.

In 2000, Pittman had lost his CDFF membership at the same time that the Department had terminated his employment.

However, the department’s action was overturned by the State Personnel Board in December 2001, and Pittman returned to work in January.

Later that year, Pittman filed OPH 413 charges against CDFF President Tom Gardner, for refusal to promptly reinstate his CDFF membership.

In his complaint against Gardner, Pittman attached as evidence the transcript of a tape recording of a conversation between Pittman and Gardner, purportedly taped in open forum in March 2000.

Unfortunately, the hearing committee chaired by Michael Witesman, dismissed Pittman’s charges against Gardner.

To appeal that dismissal, Pittman needed a hearing transcript. Thereby, the Region IV board voted to pay the expense and submitted a check to CDFF. The check was returned by CDFF as an apparent improper use of union funds.

The Witesman committee then filed charges against Pittman over the issue. But the charges were never served and never ruled on by the union.

Following that incident, member Ron Bywater, a retiree living out of state, filed OPH 413 charges against Pittman on the same issue, and about Pittman’s allegedly improper taping of his conversation with Gardner. Bywater apparently had no personal knowledge of the allegations and the charges were served on Pittman by the current CDFF officers.

Incidentally as charges were filed, the State Board passed a new bylaw authorizing trusteeship of chapters and regions. The following day, the board voted to impose an emergency trusteeship on Region IV and its chapters.

The trusteeship was based on allegations of financial malfeasance - the payment for the Witesman committee transcript - and a threat to democratic processes - OPH 413 charges by member Larry German. The charge alleged that Pittman and Maldonado, as Region IV board members, had voted to disallow him from attending the CDFF state conference as a voting delegate.

In response, Pittman filed charges against CDFF with the state Public Employment Relations Board (PERB), alleging unlawful action in imposition of the trusteeship. Those charges were eventually dismissed.

Two months later, in March 2003, the State Board’s attorney asked the Sacramento district attorney to file felony criminal charges against Pittman for illegally taping his conversation with Gardner and for filing a false report statement, executed under oath, in his PERB complaint.

Eventually, Maldonado and Pittman were found culpable of charges in both. The Bywater decision included expulsion of both of them from CDFF effective in January 2004 and fines for part of the costs of the trusteeship.

Maldonado and Bywater did not file appeals.

Pittman petitioned for writ of mandate, seeking reversal of his fine and reinstatement as a member. He also moved for summary judgment, or summary adjudication that he was wrongfully expelled and fined.

That same month, CDFF complained for damages, alleging that Maldonado and Pittman each owed it over $22,000 in fines. After that, CDFF moved for summary judgment, or alternatively, summary adjudication CDFF also asked for summary judgment against Pittman on his petition for writ of mandate. The cases were consolidated.

During hearing, the trial court granted summary judgment to CDFF against both defendants and against Pittman on his petition for writ of mandate. The trial court also denied Pittman’s motions for new trial. The trial court concluded that Pittman could not petition for writ of mandate because he failed to exhaust his internal union remedies as required in CDFF’s bylaws were called Operating Procedures and Policy Handbook (OPH).

Maldonado and Pittman appealed their cases.

In his appeal, Pittman argued that he was legally excused from exhausting his internal union remedies because it would have been futile to do so. To support his claim, he pointed to the following facts:

• the State Board’s asking the district attorney to charge him with felonies


• the imposition of trusteeship on Region IV, justified by the same OPH 413 charges that the State Board would hear on any appeal by him


• the OPH 413 charges brought by Bywater being identical to those submitted by the Witesman committee.

In ruling, the Fifth District court of appeal reversed the decision, holding that Pittman’s failure to exhaust his CDFF remedies before seeking writ of mandate was excused because under the facts of the case, it would have been futile for him to file an appeal with CDFF’s State Board.

The appeals court resolved the following issues:

• on the futility exception, the court noted that the reason is very narrow and will not apply unless the petitioner can positively state that the administrative agency has declared what its ruling will be in a particular case.


• With respect to the illegal taping charge, the court concluded that the CDFF State Board declared its ruling on that issue when it asked the district attorney to file felony and perjury charges against Pittman.

In so doing, under the circumstances of the case it had to be concluded that, as a matter of law, Pittman had established futility for purposes of exhaustion of union remedies.

Further, the court found that other important facts on the case:

• the record showed that the State Board stated what its ruling would be on the charges that were sustained against Pittman.


• that the State Board created the trusteeship bylaws because of allegations of “financial malfeasance and threat to democratic processes.”

The creation and subsequent imposition of the trusteeship based on those charges showed it would have been futile for Pittman to appeal to the State Board on those charges.

The Fifth Appellate District therefore reversed the judgment which held that a union member’s failure to exhaust his internal union remedies before seeking a writ of mandate in state court was excused because under the facts of his case, it would have been futile for him to file an appeal with the governing board of his union.