Trustees of the California State University (San Marcos) (PERB 2407H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
PA TRICK PELONERO & RON WILLIAMS,
Charging Party,
v.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY (SAN MARCOS),
Respondent.
Case No. LA-CE-1185-H
PERB Decision No. 2407-H
January 13, 2015
Appearances: Patrick Pelonero and Ron Williams, on their own behalf; Office of the
Chancellor by J. Kevin Downes, Manager of Labor Relations, for Trustees of the California
State University (San Marcos).
Before Martinez, Chair; Winslow and Banks, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Charging Parties Patrick Pelonero (Pelonero) and
Ron Williams (Williams) (collectively, Charging Parties) to a proposed decision (attached) by
a PERB administrative law judge (ALJ). The complaint alleges that the Trustees of the
California State University (San Marcos) (CSU-SM) violated the Higher Education Employer-
Employee Relations Act (HEERA)1 when it took adverse action against Charging Parties
because of their exercise of protected rights by continuing to give overtime opportunities to
favorite employees and not to qualified employees, i.e., Charging Parties. The complaint
alleges that this conduct violates HEERA section 3571, subdivision (a). The ALJ issued a
proposed decision dismissing the charge, concluding that Charging Parties failed to prove their
case.
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

The Board has reviewed the formal hearing record in its entirety in its consideration of
Charging Parties' exceptions and CSU-SM's response thereto. Based on that review, the
Board finds that the record as a whole supports the proposed decision; that the proposed
decision is well reasoned and consistent with applicable law; and that Charging Parties'
exceptions are without merit. The Board affirms the proposed decision and hereby adopts it as
the decision of the Board itself as supplemented by a brief discussion of Charging Parties'
exceptions.2
DISCUSSION
Charging Parties' exceptions assert that the ALJ ignored their evidence. They assert
that the "evidence presented by the CSU did not include all the Hours of Overtime that should
have been available to the Charging Parties." It is not CSU-SM's burden to prove Charging
Parties' case. PERB Regulation 32178 states that the "charging party shall prove the
complaint by the preponderance of the evidence in order to prevail." Charging Parties failed to
satisfy that burden. Nothing prevented Charging Parties from putting on evidence of "all the
Hours of Overtime that should have been available," but was not, as a consequence of
engaging in protected activity, if such evidence exists.
Charging Parties assert that the "[ o]vertime work by the favorite employees of the CSU
San Marcos Facility Services Director Mr. Floyd Dudley is MUCH more than presented in
2 On July 9, 2014, after Charging Parties' exceptions and CSU-SM's response to the
exceptions had been filed, the Appeals Assistant notified the parties that the filings were
complete and the matter had been placed on the Board's docket. On July 11, 2014, Charging
Parties submitted a document to the Board entitled "Additional Statement by Patrick Pelonero
& Ron Williams in support of Unfair Practice charge against California State University
(San Marcos)" (Additional Statement). The filing of this document is not authorized by
PERB' s Regulations and therefore was not considered by the Board on appeal. (See PERB
Regulations 32300 [Exceptions to Board Agent Decision] and 32310 [Response to Exception].)
Notwithstanding the regulatory constraints on multiple filings by a single party, Charging
Parties submitted the Additional Statement outside the 20-day time period for filing exceptions
(PERB Reg. 32135, subd. (a)), without a showing of good cause. Under PERB
Regulation 32136, a late filing may be excused in the discretion of the Board for good cause
only.
2

[CSU-SM's] Exibit-1 [sic]." Charging Parties state that they explained this to the ALJ and that
their witnesses "explained to the Judge how Management Retaliated against employees by
using Overtime as a Retaliation tool." Our review of the hearing transcript confirms the ALJ's
finding that neither Pelonero nor Williams identified at the formal hearing any specific
overtime opportunity that had been made available to other employees and not to them, let
alone demonstrated that, if such an action occurred, it was motivated by anti-union animus.3
Charging Parties assert that Linda Hawk (Hawk), CSU-SM Vice President, whom they
subpoenaed to appear at the formal hearing, was not present on the first day of the formal
hearing, as required by the subpoena. Charging Parties state that they wanted to present
Hawk's testimony first, before the testimony of their other witnesses. Hawk appeared on the
second day, and was questioned by Pelonero twice - 	on direct examination and again on
redirect examination. The order in which Hawk appeared in the presentation of witnesses
during Charging Parties' case-in-chief did not prejudice Charging Parties in any discernible
way, nor do Charging Parties argue in their exceptions that it did.
Finally, Charging Parties take exception to the ALJ's statement that "Dudley testified
credibly that he simply posted or caused to be posted announcements when overtime
opportunities were available, and waited for interested employees to respond to the
3 One of the exhibits introduced into evidence at the formal hearing by CSU-SM is a
summary log of overtime opportunities for skilled laborers in the Facilities Services
Department from November 2011 through November 2013, along with copies of e-mail
notifications of these overtime opportunities. (Respondent's Exhibit 1.) It appears that during
this time period, there were 50 overtime opportunities that generated an e-mail notification, for
approximately 14 to 15 skilled laborers. Pelonero and Williams are Maintenance Mechanics.
Other classifications within the bargaining unit include Facility Worker, Carpenter, Auto
Mechanic, Painter, and Locksmith. At the formal hearing, Williams identified eight e-mail
notifications of overtime opportunities where his and Pelonero' s names do not appear on the
addressee line. But neither do the names of all but the two Auto Mechanics. Notification of
overtime opportunities for the Auto Shop was only ever given to the two Auto Mechanics.
There are three other e-mail notifications, one dated August 16, 2013, and two dated
August 30, 2013, in which Pelonero and Williams' names do not both appear on the addressee
line. Williams's name does appear; Pelonero's name does not. But neither do the names of
several others.
3

notice(s)." (Bold in original.) Charging Parties ask: "Board Members are [sic] question to
you is: How is it that the Testimony of Mr. Dudley is credible and the Testimony of the
Charging Parties and their Witnesses Mr. Lopez and Mr. Young are Ignored and not found to
be Credible?" The testimony of Charging Parties and their witnesses was neither ignored nor
discredited. It was often off-point and, where it concerned Charging Parties' allegation that
CSU-SM made overtime opportunities available to others and not to them in retaliation for
Charging Parties' grievance-filing and other protected activities, it was simply far too
conclusory. Moreover, given the ALJ's ability to observe first-hand the demeanor of the
witnesses, the Board defers to ALJ credibility determinations absent evidence to support
overturning such conclusions. (Trustees of the California State University (San Marcos)
(2010) PERB Decision No. 2093-H.) The more specific testimony of Floyd Dudley II
(Dudley) was not impeached by Charging Parties on cross-examination. Therefore, the ALrs
characterization of Dudley's testimony as credible will not be disturbed. (Ibid.; see also
Anaheim City School District (1984) PERB Decision No. 364a ["[T]he Board has determined
that it will normally afford deference to administrative law judges' findings of fact involving
credibility determinations unless they are unsupported by the record as a whole."].)
"Mr. Lopez" in the above quote from Charging Parties' exceptions is Rafael Lopez
(Lopez), an unskilled laborer in Bargaining Unit 5,4 whose testimony mainly focused on
alleged retaliatory conduct by CSU-SM against Lopez and other problems in Bargaining
Unit 5. His testimony did not aid in proving Charging Parties' case involving the retaliatory
4 Pelonero and Williams belong to Bargaining Unit 6, a unit of skilled laborers
exclusively represented by the State Employees' Trades Council. Dudley, the Facilities
Services Director, oversees Bargaining Unit 6 as well as Bargaining Unit 5, a unit of unskilled
laborers exclusively represented by California State University Employees Union (CSUEU).
Dudley is responsible for, among other things, managing the Facilities Services Department's
overtime budget and making sure that overtime opportunities are equally distributed according
to the standards set forth in the parties' respective collective bargaining agreements.
4

manner in which overtime opportunities are handled in Bargaining Unit 6, as alleged. It did
not establish that Dudley had a role in the alleged retaliation against Lopez. Nor did it
establish that Dudley's conduct relative to Lopez or other Bargaining Unit 5 members was
motivated by anti-union animus, or that Dudley had a history or practice of responding to
instances of protected activity through retaliatory adverse actions. Retaliation of employees in
Bargaining Unit 5 by Dudley might be probative on the question of unlawful motivation
(nexus) in Charging Parties' retaliation case (North Sacramento School District (1982) PERB
Decision No. 264), but no such evidence exists. "Mr. Young" is Brian Young (Young), the
lead labor relations representative for CSUEU, the exclusive representative of Bargaining
Unit 5. The only testimony of Young's concerning retaliation primarily relates to Lopez and
the problems in Unit 5.
As for his impressions of Dudley, Young testified that he participated in a labor-
management committee that included Dudley when Dudley was Associate Director of
Facilities Services. Young testified:
At the conclusion of that training, we informed Human Resources
that we thought, of the three physical plant directors that had
shown up, Mr. Floyd was the - Mr. Dudley was the only person
that seemed to take the process seriously and to not - to not act
like an ass. And that we thought that he was going to be a more
effective partner in terms of dealing with union issues than
Mr. Johnson would be. Shortly after that, Mr. Johnson was
reassigned.
Reiterating their testimony, Charging Parties argue on appeal that the overtime
notification system does not work because "we don't look at the iPad every day. We are
Skilled Trades workers, we do not work at a desk therefore email notification of Available
Overtime may not be seen by us for Days/Weeks." In addition, they assert that "Dudley gave
Overtime to his Favorite employees without using any email notification to us the Charging
Parties." The hearing record confirms the ALJ' s conclusion that Charging Parties had the
same access to overtime opportunities as other Unit 6 employees, through their personal iPad
5

devices. The conclusory nature of Charging Parties' entire case is apparent throughout the
formal hearing. On cross-examination of Williams, the following exchange took place:
Q 	Are you aware of any facts on which we could -
someone could conclude that you're entitled to approximately
507. 75 hours of overtime as relief in this case?
A 	As I recall, we reached that number by a numerical
equation of half the time that was done on all the jobs that we
weren't notified about, but we could have been.
Q 	Okay. And when you say half the time on all the
jobs you were not notified on that you could have, could you tell
us what those jobs were?
A 	Without specific jobs in front of me, no.
Even if we were to credit the conclusory testimony made by Charging Parties about
favoritism, favoritism can exist in a workplace in the absence of retaliation. 5 If favoritism is in
fact at play, Charging Parties failed to prove that it is evidence of retaliation. What is clear is
that Charging Parties do not like the e-mail system used to notify Unit 6 employees of
overtime opportunities. Pelonero, on cross examination conceded:
5 On this point, we note that the total number of overtime hours made available in 2012
(94 hours) and 2013 (448), as quantified in Respondent's Exhibit 1, does not match the total
number of overtime hours worked, as broken down by employee in Respondent's Exhibits 5
(2012) and 6 (2013). This discrepancy is unexplained. We are not, however, persuaded by
Charging Parties' presentation of evidence that this discrepancy alone creates an inference of
unlawful motive. As the ALJ concluded, "[t]he lack of a nexus in this case is due, in large
part, to the fact that Dudley's method for notifying employees of overtime is the same now as
it was before the Charging Parties filed grievances about it." (Proposed decision, p. 12.)
Where the subject of a grievance is the very adverse action complained of in the unfair practice
proceeding, as here, it cannot be said that the adverse action was a product of retaliation for
having filed the grievance. As the ALJ found, Charging Parties "only filed the present unfair
practice charge when the grievance process did not produce the desired change in overtime
notification procedures." (Proposed decision, p. 8.) The final step in a grievance procedure is
not the filing of an unfair practice charge. Unfair practice proceedings and grievance
procedures serve different purposes. The latter serves to resolve contract violations. The
former serves to resolve statutory violations. The decision herein should not be seen as
resolving the parties' contract dispute in CSU-SM's favor. 	At the same time, a violation of the
parties' collective bargaining agreement, even if proven, does not establish retaliation in an
unfair practice proceeding. The central problem in Charging Parties' case is attributable to a
blurring of these principles.
6

Q 	Well, okay. You've just spent a lot of time telling
us that you don't check your emails at various times for various
reasons. And then you also testified that there have been times
when you've come in after a weekend and you found out that
other people in your classification got overtime that you didn't
know about. And all I'm asking you is could those be situations
where you haven't checked your email prior to leaving for the
weekend?
A 	I will say, yes, I don't check my email often, and
that's why the email notification don't work for overtime.
In the exceptions, Charging Parties characterize Dudley as "not qualified" for the
position of Facilities Services Director, a micro-manager and someone who demands "100%
agreement with him all the time." Not only is their characterization contradicted by the
CSUEU representative's testimony, or at least inconsistent with Young's impression that
Dudley does not act "like an ass," even if true, it does nothing to support Charging Parties'
allegation that Dudley retaliated against them for filing grievances and meeting with Hawk.
Accordingly, we conclude that Charging Parties' exceptions are without merit, affirm
the ALJ's proposed decision and dismiss the charge.
ORDER
The unfair practice charge and complaint in Case No. LA-CE-1185-H are hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Members Winslow and Banks joined in this Decision.
7

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
PATRICK PELONERO & RON WILLIAMS,
Charging Party,
v.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY (SAN MARCOS),
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-1185-H
PROPOSED DECISION
(5/13/2013)
Appearances: Patrick Pelonero and Ron Williams, on their own behalf; Kevin Downes,
Manager of Labor Relations for the Trustees of the California State University, Office of the
Chancellor.
Before Alicia Clement, Administrative Law Judge.
PROCEDURAL HISTORY
This case alleges that the California State University, San Marcos retaliated against two
employees by denying and/or preventing them from working overtime in retaliation for their
protected activities. The employer denies any unfair practice.
Patrick Pelonero (Pelonero) and Ron Williams (Williams) (referred to jointly as
"Charging Parties"), filed Unfair Practice Charge Number LA-CE-1185-H on March 11, 2013.
On September 11, 2013, the Office of the General Counsel of the Public Employment
Relations Board (PERB or Board) issued a complaint alleging that the Trustees of the
California State University (San Marcos) (CSUSM) took adverse action against Pelonero and
Williams because of their exercise of protected rights in September 2011, April 2012, July
2012, September 2012 by filing and pursuing grievances, and January 2013 by meeting with
the Vice President of Finance and Administrative Services to discuss those grievances, in
violation of Higher Education Employer-Employee Relations Act (HEERA) 1 section 3571(a).
1 HEERA is codified at Government Code section 3560 et seq.

On October 7, 2013, CSUSM filed an answer to the complaint. An informal settlement
conference was held on November 15, 2013, but the matter was not resolved.
A formal hearing was held on February 5 and 6, 2014. The matter was submitted for
decision following the March 31, 2014 submission of post-hearing briefs. On April 4, 2014,
Charging Parties contacted ALJ Clement to request that PERB reject CSUSM's closing brief
because it had been postmarked one day after the agreed-upon March 31, 2014 deadline for
filing briefs, and Charging Parties had thereby been prejudiced. An investigation of the
allegations was conducted and CSUSM was permitted to respond to the allegations. On
April 7, 2014, Charging Parties' request was denied based on a finding that CSUSM's brief
had been filed with PERB electronically on March 28, 2014 and Charging Parties had not been
prejudiced by any delay in receipt of their copy of CSUSM's closing brief.
FINDINGS OF FACT
Charging Parties are Maintenance Mechanics in the Facilities Department at CSUSM.
Maintenance Mechanics are in Bargaining Unit 6 (Unit 6), which includes skilled laborers and
is exclusively represented by the State Employees' Trades Council (SETC). Charging Parties
report to Floyd Dudley II (Dudley), the Director of Facilities Services at CSUSM. Dudley is
responsible for overseeing all skilled laborers in Unit 6 as well as the unskilled laborers in
Bargaining Unit 5, who are exclusively represented by the California State University
Employees Union (CSUEU). Ultimately, Dudley is responsible for managing the
Department's overtime budget and ensuring that overtime opportunities are equally distributed
according to the standards set forth in the collective bargaining agreements.
Maintenance Mechanics perform a variety of tasks including plumbing, electrical work,
painting, as well as, occasionally, custodial work. Since before Dudley began working as the
Director of Facilities Services, e-mail was used to give Facilities Services staff their work
orders and staff submitted their time cards by e-mail. Sometime after he became the Director
2

of Facilities, Dudley issued a "Standard Operating Procedure," (SOP) regarding overtime
procedures. Under this new SOP, any employees interested in working overtime were required
to submit specified paperwork to the "appropriate Administrator" and the Payroll Department.
Overtime opportunities would be e-mailed to the staff who had submitted the required
paperwork informing the appropriate Administrator that they were interested in overtime work.
Facilities Department employees did not always have ready access to e-mail, however.
For some time, the Unit 6 employees were forced to share access to a limited number of
desktop computers ·that had been made available for them to use. This was especially
problematic, as Unit 6 employees are dispatched to perform work at various locations across
the campus and were often unable to check their e-mail for days at a time. Over the course of
the last two years, CSUSM has successively issued to Unit 6 employees both iPods and iPads
in order to ensure that each Unit 6 employee has the ability to send and receive e-mails
throughout the work day. Neither party provided the specific dates when either iPods or iPads
were issued to employees. The iPods proved problematic because they would often
malfunction, necessitating the up-grade to iPads, which have been in use since approximately
February 2013. Currently, both Charging Parties have CSUSM-issued iPads upon which they
receive their work orders, submit time cards, and send and receive work-related e-mails.
On April 5, 2012, Charging Parties filed a grievance alleging a violation of the
contractual overtime provisions. Essentially, Charging Parties alleged that two other
employees had received more overtime than they had, which they believe violated the
requirement that overtime opportunities be equalized among Unit 6 employees. 2 On July 11,
2012, Charging Parties filed a second grievance alleging continuing and additional violations
of the contractual overtime provisions. Both the April 5 and July 11, 2012 grievances were
Neither party provided a copy of the collective bargaining agreement between SETC
and CSUSM. Characterizations of the collective bargaining agreement are taken from the
parties' testimony.
3

pursued to Step IV of the grievance procedures. After Step IV, the grievances are elevated to
the Chancellor's Office and are no longer handled by local campus supervisors.
At the lower levels, the grievance procedures include meetings between grievants and
their supervisors. Charging Parties assert that at each stage of these procedures and during
several meetings with various supervisors, they proposed that CSUSM adopt, as an alternative
to e-mail notifications, a bulletin-board system where overtime opportunities could be
manually posted on a daily basis. In that manner, employees would all have access to the
information when they entered or exited the Facilities Services Department building. Overtime
opportunities for Unit 5 employees are apparently posted in a similar fashion to that being
proposed by Charging Parties. It is not clear if Unit 5 employees have also been issued iPods
or iPads for their personal use.
Over the course of the 2012 and 2013 calendar years, Pelonero engaged in a written
campaign to pursue approximately eleven grievances that had been elevated to level IV, but
had seemingly stalled at the Chancellor's Office. Included among this list were the grievances
Charging Parties had filed regarding overtime opportunities as well as grievances about
motorcycle parking and contracting out. 3 Also during this period, Pelonero was in frequent
contact with CSUSM Vice President, Linda Hawk, both through e-mail communications as
well as several in-person meetings.
Pelonero's recollection of the grievance meetings was that he repeatedly requested that
the department adopt an overtime notification system similar to that used by Unit 5 employees,
utilizing a bulletin board and paper notifications. Hawk's recollection of these meetings was
that she and Pelonero discussed his concerns about the cost of motorcycle parking, but she did
not recall discussing his concerns about the distribution of overtime opportunities in general or
3 Charging Parties also. argued that CSUSM's policy of subcontracting certain work to
outside entities has reduced the overall volume of overtime opportunities for Unit 6 employees.
4

his desire for a bulletin board posting of overtime opportunities. Dudley recalled discussions
with Pelonero during this period in which Pelonero raised concerns about the distribution of
overtime opportunities generally, but could not recall Pelonero proposing the use of a bulletin
board in lieu of e-mail notifications of overtime opportunities.
Upon consideration of the idea at the hearing, Dudley stated that he preferred e-mail
notifications of overtime opportunities to the proposed use of a bulletin board. Dudley's
rationale was that some of the overtime opportunities require a great deal of detail to explain
the nature of the jobs andjob skills needed to complete the tasks. This kind of information
could easily be transmitted by e-mail. E-mail was more likely to reach all eligible employees
at the same time. An employee who responded by e-mail to a notification of overtime
opportunities could complete any necessary paperwork electronically, streamlining the payroll
process. Finally, the use of electronic forms of notification reduced the campus's use of paper,
which was a greener way to conduct business.
According to Charging Parties, notification of overtime opportunities was often sent
after the end of the work day and with insufficient advance notice for Charging Parties to
respond and take advantage of the opportunities. At the hearing, CSUSM presented copies of
e-mail messages allegedly sent to Pelonero, Williams, and other employees in the Facilities
Services Department during the period from November 2011 through November 2013,
notifying employees of overtime opportunities. In all, CSUSM produced 50 notices of
overtime opportunities during the period from November 2011 through November 2013.
Among this sampling, some of the e-mail notifications were sent after the end of the working
day or with less than 24 hours' notice of the scheduled work time. Short notice appeared to
occur more frequently on Fridays for Saturday overtime opportunities.
When presented with copies of the e-mail notifications from this time period, Williams
identified 8 notifications where his name did not appear on the addressee line, two notifications
5

that appeared to be duplicates, and several notifications where he had been included among the
addressees, but the type of work being offered was not appropriate for some reason or other,
such that he would not have taken advantage of the offer ifhe had seen it. For example,
Williams testified that he would not have responded to an e-mail notifying him of overtime
work for "fence removal" on January 31, 2013, because the work was laborer's work rather
than skilled labor. He would not have been included in overtime opportunities for the Auto
Shop that were sent to Nicolas Magana and Manuel Flores. He would not have responded to
the notification on November 19, 2013 for carpentry work.
Pelonero and Williams stated that they could not confirm that they had received any of
these notifications, despite the appearance of their names on the addressee lines of many of the
e-mails. Neither Pelonero nor Williams identified any specific overtime opportunity that had
been made to other employees but denied to Charging Parties and that they would have taken
advantage of if they had received timely notification, whether from CSU SM' s sampling of
e-mails or any other source. Nevertheless, they acknowledged that the e-mail notifications
presented at the hearing were the same format as e-mail notifications of overtime opportunities
that they had received in the past. Further, they both acknowledged that they had received
e-mail notifications of overtime opportunities in the past, but could not remember whether any
of the e-mail notices they had received were among those presented by CSUSM at the hearing.
Charging Parties admitted that on September 24, 2012, Dudley sent an e-mail message
to Williams, Pelonero and two others, stating:
Gentlemen,
If you are receiving this e-mail I have you on my OT list as
having little to no overtime hours for the year. Please read thru
[sic] the following opportunities, and let me know which ones
you would be interested in helping to complete. Please send me a
response as soon as possible and include a tentative schedule
when you would be available for OT thru [sic] the end of this
year, please let me know if you do not intend on working
6

overtime this year and I will take you off my list to notify for
these opportunities. Thank you!
Bryan Fisher will be the point of contact for the first three and
Scott Gorsuch will be the point of contact for the last one.
1. Painting hand rails and railing campus wide
2. Painting gas pipe in the tunnel
3. Painting fire hydrants campus wide
4. Luis Polson lamp lens gasket installation campus wide
On September 25, Dudley sent a second e-mail message to the same four employees,
stating:
Gentlemen,
Please respond by Friday the 28th with your tentative schedule of
availability or if you do not intend on volunteering to work the
overtime, I want to get these projects started and need to know if
I will need to open up the opportunity to other qualified
employees?
Thank you!
On September 28, Williams responded that he would be interested in working overtime
on projects numbered 3 and 4 of the September 24 e-mail, but not with regard to the first two
projects. At hearing, Williams and Pelonero objected that the September offer of overtime
work from Dudley was all work that would need to be performed outside, and there was a heat
wave during September 2012. According to Charging Parties, there was plenty of work to be
done inside during this time, but Dudley only offered the least desirable work. Dudley testified
that because these projects could be scheduled at the employees' convenience, they could
easily be performed during early morning hours, or even overnight, when outdoor temperatures
were cool.
Dudley testified that the September 24 e-mail was sent specifically to make overtime
available to those employees who had indicated their desire to work overtime, but had not
actually worked any overtime at any point earlier in the year. Dudley stated that he has never
denied overtime to any employee. However, if there were ever multiple employees responding
7

to the same overtime opportunity, he would give it to the employee who had worked the least
overtime for the current year.
Charging Parties testified that they only filed the present unfair practice charge when
the grievance process did not produce the desired change in overtime notification procedures.
ISSUE
Whether CSUSM denied Charging Parties overtime opportunities in retaliation for their
protected conduct?
CONCLUSIONS OF LAW
The complaint that PERB issued on September 11, 2013 alleges that since engaging in
protected activity, Dudley has taken adverse action against Charging Parties by "continu[ing]
to give [o]vertime opportunities to his [flavorite [e]mployees and not to 'qualified'
employees."
CSUSM argues that it kept Charging Parties informed of overtime opportunities in the
same manner in which all employees were informed of overtime opportunities-e-mail notices.
Additionally, all employees in Unit 6 were given equal access to the tools necessary to retrieve
their e-mail messages: first through a shared computer, and later through personal devices that
were issued to all employees. 	Whether the Charging Parties checked their e-mail and availed
themselves of the overtime opportunities to the same extent as other employees does not
establish disparate treatment by CSUSM.
Charging Parties do not dispute that Dudley implemented an e-mail notification system
for overtime opportunities. Nor do they dispute that they were given the same access to the
shared computer, iPods, and iPads that other Unit 6 employees were afforded. Rather,
Charging Parties argue that e-mail notifications for blue collar employees who do not perform
their work at a desk and are often engaged in tasks which preclude the use of an iPad, either
because those tasks are dirty or dangerous, is wholly inappropriate. Instead, Charging Parties
8

would have CSUSM adopt a policy similar to the one utilized for unskilled laborers in Unit 5,
in which employees receive notice of overtime opportunities by way of a printed list, posted
daily in a central location.
Retaliation/Discrimination
In order to demonstrate that an employer discriminated or retaliated against an
employee in violation of HEERA section 3571(a), the charging party must establish by a
. preponderance of the evidence that: (1) the employee exercised rights under HEERA; (2) the
employer had knowledge of the exercise of those rights; (3) the employer took adverse action
against the employee; and ( 4) the employer took the action because of the exercise of those
rights. (See Novato Unified School District (1982) PERB Decision No. 210 (Novato); and
PERB Regulation 321784.)
Exercise of Rights and Employer Knowledge
In its October 7, 2013 Answer to the Complaint, CSUSM admits that Charging Parties
filed grievances and pursued those grievances to Level IV. CS USM also admits that Charging
Parties met with Hawk on or about January 9, 2013, though it disputes Charging Parties'
assertion of what was discussed at that meeting. In any case, CSU SM does not dispute that
Charging Parties engaged in protected activity and that it was aware of that fact.
Adverse Action
The adverse action alleged in the complaint is Dudley's continued assignment of
overtime opportunities to favored employees rather than qualified employees. What Charging
Parties seem to have argued at the hearing is essentially that Dudley deliberately prevented
Charging Parties from learning of overtime opportunities, with the logical result that other, less
4 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
9

senior employees, worked significantly more overtime during the preceding year than did the
Charging Parties.
CSUSM acknowledges that other, less senior employees may have worked more
overtime than Charging Parties, but attributes that fact to Charging Parties' failure to avail
themselves of overtime opportunities. CSUSM also points out that Dudley created overtime
opportunities for the express purpose of equalizing overtime work among the Unit 6
employees, and Charging Parties still failed to take advantage of the opportunity. Finally,
CSUSM argues that it never refused overtime to any employee who responded to an e-mail
notification.
In determining whether evidence of adverse action is established, the Board uses an
objective test and will not rely upon the subjective reactions of the employee. (Palo Verde
Unified School District (1988) PERB Decision No. 689.) In other words, when establishing
the elements of a discrimination claim,
The test which must be satisfied is not whether the employee
found the employer's action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee's
employment.
(Newark Unified School District (1991) PERB Decision No. 864; emphasis added; footnote
omitted.) Additionally, the adverse action in a discrimination case cannot be speculative, but
must be actual harm. (Palo Verde Unified School District, supra, PERB Decision No. 689.)
The facts presented at the hearing did not establish that Dudley assigned overtime to
employees at all, let alone that he continued to do so in a discriminatory manner after the
Charging Parties had filed grievances. Rather, Dudley testified credibly that he simply posted
or caused to be posted announcements when overtime opportunities were available, and waited
for interested employees to respond to the notice(s). Indeed, the only evidence of any limited
or targeted notice to particular individuals of a particular overtime opportunity was when
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Dudley specifically solicited Charging Parties for overtime work, an action that can hardly be
considered adverse to Charging Parties' employment.
Nor did the facts presented at hearing establish that Dudley took some other deliberate
act to prevent Charging Parties from learning about overtime opportunities at the same time
and in the same manner as other Unit 6 employees. For example, Charging Parties admit that
they each have an iPad assigned to them for their use, a circumstance shared by other Unit 6
employees; they each have an e-mail account and have ready access to that e-mail account; and
Charging Parties acknowledge that the copies of emails presented by CSUSM at the hearing
are the same type of emails that they have received in the past, though they were unable
confirm that they had received those specific emails. In other words, Charging Parties failed to
provide any evidence of any c~nduct by Dudley or any other CSUSM representative that had
the effect or intention of depriving them of notice of overtime opportunities.
Nexus
Even assuming Charging Parties had established the factual allegations that CSUSM
officials prevented them from learning of overtime opportunities or assigned overtime to other
employees, Charging Parties have not established that Dudley or any other CSUSM agent was
motivated. by anti-union animus to deprive Charging Parties of overtime opportunities. The
lack of a nexus in this case is due, in large part, to the fact that Dudley's method for notifying
employees of overtime is the same now as it was before the Charging Parties filed grievances
about it. Accordingly, whether the adverse action is the alleged deliberate prevention of
Charging Parties learning of overtime opportunities in a timely manner or the continued
assignment of overtime opportunities to favored employees, Charging Parties failed to
establish that this action occurred, and that it was motivated by an unlawful desire to retaliate
against Charging Parties for their protected conduct.
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Because Charging Parties failed to establish two of the four indispensable elements of a
prima facie case of discrimination-in this case, that they suffered an adverse act by the
employer and that the employer's adverse act was motivated by anti-union animus-the charge
must be dismissed.
PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. LA-CE-1185-
H, Patrick Pelonero & Ron Williams v. Trustees of the California State University (San
Marcos), are hereby DISMISSED.
Right to Appeal
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
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Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
In accordance with PERB regulations, the statement of exceptions should identify by page
citation or exhibit number the portions of the record, if any, relied upon for such exceptions.
(Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs., tit. 8,§§ 32135,subd. (a) and 32130; see also Gov. Code,§ 11020, subd.
(a).) A document is also considered "filed" when received by facsimile transmission before the
close of business together with a Facsimile Transmission Cover Sheet or received by electronic
mail before the close of business, which meets the requirements of PERB Regulation 32135(d),
provided the filing party also places the original, together with the required number of copies
and proof of service,in the U.S. mail. (Cal. Code Regs., tit. 8,§ 32135,subds. (b), (c) and (d);
see also Cal. Code Regs:, tit. 8,§§ 32090, 32091 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs.,tit. 8,§§ 32300,32305, 32140,
and 32135,subd. (c).)
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