Trustees of the California State University (San Marcos) (PERB 2070H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA STATE UNIVERSITY
EMPLOYEES UNION,
Charging Party,
V.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY (SAN MARCOS),
Respondent.
Case No. LA-CE-1039-H
PERB Decision No. 	2070-H
October 15, 2009
Appearances: Brian Young, Lead Labor Relations Representative, for California State
University Employees Union; Marc
D.
Mootchnik, University Counsel, for Trustees
of
the
California State University (San Marcos).
Before Dowdin Calvillo, Acting Chair; McKeag and Neuwald, Members.
DECISION
DOWDIN CALVILLO, Acting Chair: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by the California State University Employees
Union (CSUEU)
of
a Board agent's partial dismissal
of
its unfair practice charge. Relevant to
this appeal, the charge alleged that the Trustees
of
the California State University (San Marcos)
(CSU) violated the Higher Education Employer-Employee Relations Act (HEERA)1 by:
(1) unilaterally transferring bargaining unit work to non-unit employees; and (2) retaliating
against custodian Rafael Lopez (Lopez) for using CSUEU representation in a dispute over his
work assignments. The Board agent dismissed both allegations for failure to state a prima
facie case.
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

The Board has reviewed the partial dismissal and the record in light
of
CSUEU' s
appeal, CSU' s response to the appeal, and the relevant law. Based on this review, the Board
affirms the dismissal
of
the unilateral transfer
of
work allegation but remands this matter to the
Office
of
the General Counsel for issuance
of
a complaint on the retaliation allegation.
BACKGRO1J1'-JD
The Facilities Services department at the CSU San Marcos campus employs members
of
systemwide bargaining Units 5 and
6.
	Unit 5 members perform "skilled and semi-skilled
blue collar work" and are represented by CSUEU. Unit 6 members perform skilled trades and
are represented by the State Employees Trades Council - United.
Employees in the Equipment Operator classifications are members
of
Unit
5.
	The
job
description for these classifications lists backhoes and forklifts among the equipment that
incumbents may be required to operate. Among the duties listed in the job description for the
Laborer classification, also part
of
Unit 5, is "power washing assigned areas."
The Facilities Worker and Facilities Mechanic classifications are staffed by Unit 6
members. The job descriptions for these classifications do not specifically list operating
backhoes or forklifts, or power washing, among the classifications' duties. However, the job
descriptions also state: "Examples
of
typical activities for each classification are not meant to
be all inclusive or restrictive; incumbents may perform related work activities."
On April 1, 2008, Cesar Aguilar (Aguilar), a laborer, became the CSUEU Unit 5
steward at the San Marcos campus. The steward position had been vacant for several years
prior to that date.
Sometime before Aguilar became steward, Steve Watters (Watters), Assistant Director
of Operations in the Facilities Services department, warned Aguilar to stay away from Lopez
because Lopez is a "troublemaker." After Aguilar became steward, he began to have meetings
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with Lopez and Brian Young (Young), the CSUEU labor representative assigned to the
San Marcos campus. At some point, a grievance was filed over Lopez's "assignments."
On May 9, 2008, Aguilar emailed Young that he had approached Watters about Unit 6
employees operating backhoe equipment. 	Watters responded that he was not going to spend
money training Unit 5 members to operate the backhoe because he had already trained two
Unit 6 members to operate it.
Young responded to Aguilar's email later that day, stating that backhoe operation is
Unit 5 work and asking for the names and job classifications of the Unit 6 members trained to
operate the backhoe. 	Aguilar responded with that information by email on May 13, 2008. In
the same email, Aguilar related that Watters felt Aguilar was accusing him of wrongdoing and
said that laborers would not be able to promote because of it. In the meantime, Young had
learned that Unit 6 members were operating forklifts and power washers.
On May 13, 2008, Young sent a letter to Watters claiming that operation of backhoes
and forklifts was work for Unit 5 Equipment Operators, not Unit 6 skilled laborers. 	Young
requested that the department "cease and desist from the transfer of bargaining unit work from
Unit 5 to Unit 6." That same day, Watters received an email from Young requesting that the
department cease assigning Unit 6 members to operate power washing equipment.
On May 14, Watters approached Aguilar at his work location, approximately a quarter
mile from Watters' office. Watters wanted to discuss the transfer of unit work issue and said
that Aguilar was "getting under his skin." He told Aguilar "not to take the wrong path" and
"that it is not a good thing to be getting involved in these kind of topic's [sic]."
The following day, Ed Johnson (Johnson), Director of Facilities Services, called
Aguilar to a meeting about work-related issues. After discussing Aguilar's assignment and
career objectives, Johnson began to discuss the transfer of unit work issue. Aguilar said he
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was uncomfortable discussing the issue without Young present. Johnson replied, "We don't
want Young around here."
On May 15, 2008, Watters responded to Young by letter. 	Watters claimed that both
units had been using backhoes and forklifts "since the campus was opened 15 years ago." He
admitted that Unit 6 members had been trained to use the equipment but said this did not
preclude Unit 5 members from receiving the same training. 	Watters also noted that power
washing "is an approved industry method for the preparation of paintable surfaces." He stated
that Unit 6 members would continue to operate backhoes, forklifts and power washers because
those duties are part of their job descriptions. The letter closed with an offer to discuss the
matter with Young or Aguilar to attempt to reach "a reasonable compromise or understanding."
On June 19, 2008, Aguilar complained to Johnson that Lopez "was being swamped
with work orders and denied any assistance." On the morning of June 24, 2008, Young
emailed Ellen Cardoso, CSU Human Resources Director, that Aguilar was being harassed by
Watters, who had approached Aguilar the previous day to discuss his union activity.
Following his shift later that day, Lopez was prevented from leaving his parking space by a
campus police vehicle. Campus Chief of Police Ronald Hackenberg (Hackenberg) demanded
to search Lopez's car without explanation. 	During the search, Hackenberg spoke with Watters
"out of earshot of Lopez." After consulting with Watters, Hackenberg allowed Lopez to leave.
The charge alleged that Watters initiated the search by filing a "false complaint that Lopez had
stolen state equipment. "2
The charge referenced an attached statement by Lopez regarding the vehicle search.
However, the statement is absent from the PERB case file in this matter.
4

Partial Dismissal, Appeal and Response
The Board agent dismissed the allegations that CSU unilaterally transferred bargaining
unit work and retaliated against Lopez. The unilateral transfer allegation was dismissed
because the charge failed to allege facts showing that Unit 5 work had actually been transferred
to Unit 6 members or that such a transfer had any negotiable effect on the terms and conditions
of
employment
of
Unit 5 members. The Board agent dismissed the retaliation allegation
because the charge failed to establish a connection or "nexus" between Lopez's protected
activity and the search
of
his personal vehicle by campus police.
On appeal, CSUEU argues that a nexus between Lopez's protected activity and the
search
of
his vehicle is shown by CSU' s departure from established procedures, cursory
investigation
of
Lopez's alleged misconduct, and failure to give Lopez justification for the
search at the time it occurred. 	Regarding the transfer
of
bargaining unit work, CSUEU asserts
that PERB should look to the occupational distinctions between Unit 5 and Unit 6 throughout
the entire CSU system, not just at the San Marcos campus. CSUEU further contends that the
transfer
of
Unit 5 work denies Unit 5 employees promotional opportunities and makes them
more vulnerable to layoff.
CSU counters that the charge failed to establish any
of
the nexus factors identified by
CSUEU in its appeal, and further contends that the search was an "innocuous police stop"
based on a legitimate belief that Lopez had stolen state property. CSU asserts that Unit 5
employees never exclusively operated backhoes or forklifts, or performed power washing
duties, but that members of both units had performed these duties for years. 	CSU also claims
that the negotiable effects identified by CSUEU are speculative.
5

DISCUSSION
1.	
Transfer
of
Bargaining Unit Work
In determining whether a higher education employer has violated HEERA section 3571,
subdivision (c) by refusing or failing to meet and confer in good faith with an exclusive
representative, PERB utilizes either the "per se" or "totality
of
the conduct" test, depending on
the specific conduct involved and the effect
of
such conduct on the negotiating process.
(Stockton Unified School District (1980) PERB Decision No. 143.) A unilateral change in
terms and conditions
of
employment is considered a "per se" violation if: (
1)
the employer
breached or altered the parties' written agreement or its own established past practice; (2) such
action was taken without giving the other party notice or an opportunity to bargain over the
change; (3) the change was not merely an isolated breach
of
the contract, but amounts to a
change in policy (i.e., it has a generalized effect or continuing impact upon bargaining unit
members' terms and conditions
of
employment); and ( 4) the change in policy concerns a matter
within the scope ofrepresentation. (Walnut Valley Unified School District (1981) PERB
Decision No. 160; Grant Joint Union High School District (1982) PERB Decision No. 196.)
PERB has held that the transfer
of
work from bargaining unit employees to those in a
different or no bargaining unit is a subject within the scope ofrepresentation. (Rialto Unified
School District (1982) PERB Decision No. 209.) "[I]n order to prevail on a unilateral transfer
of
work theory, the charging party must establish, as a threshold matter, that duties were, in
fact, transferred out of the unit; that is, that unit employees ceased to perform work which they
had previously performed or that nonunit employees began to perform duties previously
performed exclusively by unit employees." (Eureka City School District (1985) PERB
Decision No. 481; emphasis in original.)
6

CSUEU has not established that CSU transferred Unit 5 work out
of
the bargaining
unit. The charge did not allege that backhoe or forklift operations, or power washing duties,
were removed from Unit 5 members and transferred to Unit 6 members. (Calistoga Joint
Unified School District (1989) PERB Decision No. 744; State
of
California (Department
of
Developmental Services) (1985) PERB Decision No. 484-S.) Nor did the charge allege that the
parties' collective bargaining agreement or past practice established Unit 5 members as the
exclusive performers
of
such duties. (California Community Colleges (1987) PERB Decision
No. 636-S.)
However, even
if
a transfer
of
work did not occur, a bargaining obligation may still
exist
if
the change in allocation
of
bargaining unit work has a negotiable effect on unit
members' terms and conditions
of
employment, such as a reduction
of
work hours. (Eureka
City School District, supra.) In order for an effects bargaining obligation to arise, the impact
on terms and conditions
of
employment must be "reasonably certain
to
occur and causally related
to the nonnegotiable decision." (Fremont Union High School District (1987) PERB Decision
No. 651.) PERB will not find an unlawful unilateral change when the alleged effect is "indirect
and speculative." (Lake Elsinore School District (1987) PERB Decision No. 646.)
CSUEU asserts on appeal that the alleged transfer
of
bargaining unit work to Unit 6
members denies Unit 5 members promotional opportunities and makes them more vulnerable
to layoff. However, the charge alleged no facts to support these assertions and we find no
good cause to consider these new allegations on appeal. 	(PERB Reg. 32635(b
).)3
In sum, we find the charge failed to establish that CSU transferred Unit 5 work to
Unit 6 members or that any reallocation of bargaining unit work had a negotiable effect on the
3 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq. PERB Regulation 32635(b) states in full: 	"Unless good cause is shown, a
charging party may not present on appeal new charge allegations or new supporting evidence."
7

terms and conditions
of
employment
of
Unit 5 members. Accordingly, we affirm the
Board
agent's dismissal
of
the allegation that CSU unilaterally transferred bargaining unit work.
2. 	Retaliation
To demonstrate that an employer discriminated or retaliated against an employee
in
violation
of
HEERA section 3571, subdivision (a) the charging party must show 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 adverse action because
a/the
exercise
of
those rights. (Novato Unified School
District (1982) PERB Decision No. 210.)
According to the charge, Lopez engaged in two activities protected by HEERA:
(1) filing a grievance (Regents
of
the University
of
California (I 999) PERB Decision
No. I 314-H); and (2) utilizing CSUEU representation in a dispute with CSU, specifically
Aguilar's June 19, 2008 complaint to Johnson about Lopez's work assignments (The Regents
of
the University
of
California (1995) PERB Decision No. 1087-H). It is undisputed that CSU
knew
of
these activities.
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 a later decision, the Board further
explained that:
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.)
8

PERB has held that the filing
of
a citizen's complaint against an employee with
the
knowledge that it would lead to an investigation by the employer is an adverse action.
(California Union
of
Safety Employees (Coelho) (1994) PERB Decision No. 1032-S.)
	In
particular, the Board stated:
Such an action could cause a reasonable person to be concerned
about the potential adverse effect
of
the complaint and ensuing
investigation on his employment relationship. The fact that the
complaint and investigation did not result in action being taken
against Coelho by his employer does not eliminate the adverse
nature
of
CAUSE's conduct.
(Ibid.)
Here, Watters filed a complaint with campus security alleging that Lopez had stolen
state property. The complaint led campus police chief Hackenberg to search Lopez's personal
vehicle. A reasonable person would be concerned about the effect
of
the search on his
or
her
employment because it could lead to discipline, criminal charges, or both. Thus, despite the
fact that Lopez was never disciplined or charged based on the search, we find the vehicle
search was an adverse action.4
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. (Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more
of
the following
additional factors must also be present: (1) the employer's disparate treatment
of
the employee
(State
of
California (Department
of
Transportation) (1984) PERB Decision No. 459-S); (2) the
4 CSU contends that the search "was a police matter; not an employment investigation."
Though Hackenberg conducted the search under his authority as campus police chief, he
nevertheless acted as an agent of CSU, Lopez's employer. Thus, just as in California Union
ofSafety Employees (Coelho), supra, the investigation was conducted by the employer.
9

employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104); (3) the
employer's inconsistent or contradictory justifications for its actions (State
of
California
(Department
of
Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the employer's
cursory investigation
of
the employee's misconduct (City
of
Torrance (2008) PERB Decision
No. 1971-M; Coast Community College District (2003) PERB Decision No. 1560); (5) the
employer's failure to offer the employee justification at the time it took action or the offering
of
exaggerated, vague, or ambiguous reasons (County
of
San Joaquin (Health Care Service)
(2001) PERB Order No. IR-55-M); (6) employer animosity towards union activists (Jurupa
Community Services District (2007) PERB Decision No. 1920-M; Cupertino Union
Elementary School District (1986) PERB Decision No. 572); or (7) any other facts that might
demonstrate the employer's unlawful motive. (North Sacramento School District, supra;
Novato Unified School District, supra.)
CSU argues CSUEU failed to establish the timing factor because the charge did not
allege when Lopez filed his grievance.
	It
is true that the charge merely stated "Lopez has a
pending grievance on assignments" and did not allege a date on which the grievance was filed.
However, the charge also alleged that Aguilar complained to Johnson about Lopez's
assignments on June 19, 2008, five days before the search
of
Lopez's vehicle. In addition, the
charge alleged that Watters initiated the search on the same day that Young complained to
CSU Human Resources about Watters' harassment of Aguilar. Consequently, the charge
established that CSU took adverse action against Lopez close in time to his protected activity.
CSUEU contends that a nexus was established because CSU departed from established
procedures in searching Lopez's vehicle, conducted a cursory investigation of his alleged
misconduct, and failed to give him a reason for the search at the time it occurred. The charge

failed to set forth CSU' s established procedures for investigating alleged employee theft. 	As a
result, there
is
insufficient evidence to show that CSU departed from those procedures (Trustees
of
the California State University (Sacramento) (2005) PERB Decision No. 1740-H) or that its
investigation was cursory (State
of
California (Department
of
Health Services) (1999)
PERB
Decision No. 1357-S). It is undisputed, however, that neither Hackenberg nor any other agent
of
CSU gave Lopez a reason for the search at the time it occurred. Such conduct supports an
inference ofretaliation. (County
of
San Joaquin (Health Care Services) (2004) PERB
Decision No. 1649-M; Oakland Unijzed School District (2003) PERB Decision No. 1529.)
Further, the charge alleged facts showing that CSU management harbored animus
toward CSUEU's efforts on behalf
of
Unit 5 members. Watters told Aguilar that he took the
transfer
of
work complaint as a personal accusation and implied that the complaint would
prevent laborers from being promoted. Watters also told Aguilar "not to take the wrong path"
and "that it is not a good thing to be getting involved in these kind
of
topic's [sic]." When
Aguilar told Johnson that he would not discuss the transfer
of
work complaint unless Young
was present, Johnson responded, "We don't want Young around here." PERB has held that
statements by management discouraging the pursuit
of
a grievance constitute an expression
of
union animus. (Jurupa Community Services District, supra.) Therefore, we find the above
statements by Watters and Johnson support an inference
of
retaliation.
In sum, we find the charge established a nexus between Lopez's grievance and use
of
CSUEU representation, and the search of his personal vehicle by showing a closeness in time
between the protected activity and the adverse action, failure to give a reason for the adverse
action at the time it was taken, and anti-union statements by CSU management. We therefore
conclude CSUEU has established a prima facie case of retaliation against Lopez. Accordingly,
we remand this allegation to the Office of the General Counsel for issuance of a complaint.
11

ORDER
The Board AFFIRMS the dismissal
of
the allegation that CSU unilaterally transferred
Unit 5 work out
of
the bargaining unit. 	The Board REVERSES the dismissal
of
the allegation
that CSU retaliated against Rafael Lopez and REMANDS that allegation to the Office
of
the
General Counsel for issuance
of
a complaint consistent with this Decision.
Members McKeag and Neuwald joined in this Decision.
12