Trustees of the California State University (San Marcos) (PERB 2140H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
RON WILLIAMS & PA TRICK PELO NERO,
Charging Parties,
V.
TRUSTEES OF
THE
CALIFORNIA STATE
UNIVERSITY (SAN MARCOS),
Respondent.
Case No. LA-CE-1068-H
PERB Decision No. 2140-H
November 2, 2010
Appearance: Ron Williams & Patrick Pelonero, on their own behalf.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
DOWD IN CALVILLO, Chair: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Ron Williams (Williams) and Patrick Pelonero
(Pelonero) (collectively Charging Parties)
of
a Board agent's dismissal (attached)
of
their
unfair practice charge. The charge, as amended, alleged that the Trustees
of
the California
State University (San Marcos) (University) violated the Higher Education Employer-Employee
Relations Act (HEERA) 1 by: (1) promoting two bargaining unit employees to management
positions and then returning those employees to their prior bargaining unit positions
with
no
loss
of
seniority and without posting the vacant positions; (2) removing billable work from
Charging Parties and making negative comments about Williams' work performance after this
unfair practice charge was filed; (3) settling Pelonero' s grievances without his consent; and (4)
failing to respond to grievances in the time frame required by the collective bargaining
agreement between the University and State Employees Trades Council United (SETC), the
1 HEERA is codified at G;vernment Code section 3560 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

exclusive representative of Charging Parties' bargaining unit. The Board agent dismissed the
charge because: (1) Charging Parties lacked standing to allege that the promotions/returns and
untimely grievance responses constituted unlawful unilateral changes in terms and conditions
of employment; (2) it failed to state a prima facie case of retaliation against Charging Parties;
and (3) the allegation regarding settlement of Pelonero' s grievances was barred by collateral
estoppel.
The Board has reviewed the dismissal and the record in light of Charging Parties'
appeal and the relevant law. Based on this review, the Board finds the Board agent's warning,
second warning, and dismissal letters to be well-reasoned, adequately supported by the record,
and in accordance with applicable law. The Board therefore adopts them as the decision of the
Board itself, as supplemented by the discussion below.
DISCUSSION
The second amended charge alleged that the University violated HEERA by reaching a
settlement with SETC on five of Pelonero' s grievances without his knowledge or participation.
The Board agent found that the charge failed to allege facts showing the settlement was
adverse to Pelonero or made in retaliation for Pelonero's protected activity. The Board agent
also noted that this allegation appeared to be the same one dismissed in Case No.
LA-CE-1038-H. Because that dismissal was not appealed to the Board, the Board agent
concluded, citing City of Porterville (2007) PERB Decision No. 1905-M, that the allegation
was barred by "the doctrines of res judicata and collateral estoppel."
After the instant charge was dismissed, the Board issued Grossmont Union High School
District (2010) PERB Decision No. 2126, 	it overruled 	estoppel
of City of Porterville, supra, and held that a Board agent's dismissal of an allegation following
an investigation does not have preclusive effect in other PERB proceedings. Thus, the
2

3
collateral estoppel basis for dismissing the settlement allegation is no longer supported by
PERB case law.
We nonetheless find dismissal of the allegation was proper. First, we agree with the
Board agent that the charge failed to allege facts establishing the settlement was adverse to
Pelonero or that it was made in retaliation for Pelonero' s protected activity. 	Second, PERB has
held that a union does not breach its duty of fair representation by settling a grievance without
the grievant' s consent. (Hart District Teachers Association (Mercado and Bloch) (200 I)
PERB Decision No. 1456.) We see no reason why an employer, which has no representative
duty toward the employee, should be required to obtain the employee's consent to settle a
grievance. Because there is no viable theory under which the alleged facts about the grievance
settlement could establish a violation of HEERA, we affirm the Board agent's dismissal of the
allegation.
ORDER
The unfair practice charge in Case No. LA-CE-1068-H is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members McKeag and Wesley joined in this Decision.
3

STATE OF CALIFORNIA 	A!Ll\/OLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
January 12, 2010
Ron Williams
Patrick Pelonero
Re: 	Ron Williams & Patrick Pelonero v. Trustees of the California State University (San
Marcos)
Unfair Pra~tice Charge No. LA-CE-1068-H
DISMISSAL LETTER
Dear Messrs. Williams and Pelonero:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 28, 2009. Ron Williams and Patrick Pelonero (Williams and
Pelonero or Charging Parties)1 allege that the Trustees of the California State University (San
Marcos) (University) violated the Higher Education Employer-Employee Relations Act
(HEERA or Act)2 at sections 3560 and 3571(e) by: a) permitting two bargaining unit
members-Project Supervisor Pat Simpson and Lead Locksmith Michael Treadway (Simpson
and Treadway)-to voluntarily leave their Bargaining Unit 6 positions when they were
promoted to the position of Management Personnel Plan (MPP); and b) subsequently, without
posting the vacant positions, allowing Simpson and Treadway to retain their bargaining unit
status and return to their former positions.
Charging Parties were informed by Regional Attorney Marc Hurwitz, in the attached Warning
Letter dated June 11, 2009, that the above-referenced charge did not state a prima facie case.
Charging Parties were advised that, if there were any factual inaccuracies or additional facts
that would correct the deficiencies explained in that letter, they should amend the charge.
Charging Parties were further advised that, unless they amended the charge to state a prima
facie case or withdrew it prior to June 18, 2009, the charge would be dismissed. Williams and
1 Williams and Pelonero are employed at the California State University, San Marcos
(CSUSM) as Building Maintenance Mechanics. The State Employees Trades Council United
(SETC) is the exclusive representative of Bargaining Unit 6, Skilled Crafts, including the
classification of Building Maintenance Mechanic.
2
• 	HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
is available at www.perb.ca.gov.

LA-CE-1068-H
January 12, 2010
Page 2
(\
Pelonero filed a First Amended Charge on June 17, 2009. The First Amended Charge focuse
primarily on new allegations that Williams and Pelonero have been harassed and retaliated
against, in violation
ofHEERA
sections 3560, 357l(a), and 357l(e), because they filed the
instant charge.
d
Charging Parties were subsequently informed in the attached Second Warning Letter,
dated
December 3, 2009, that the First Amended Charge did not state a prima facie case. Charging
Parties were advised that,
if
there were any factual inaccuracies or additional facts that would
correct the deficiencies explained in that letter, they should further amend the charge.
Charging Parties were also advised that, unless they amended the charge to state a prima facie
case or withdrew it prior to December 17, 2009, the charge would be dismissed. Williams and
Pelonero filed a Second Amended Charge on December 16, 2009.
The Second Amended Charge
The Second Amended Charge focuses almost exclusively on events that occurred after
the
First
Amended Charge, and does not address or cure the deficiencies discussed in the Second
Warning Letter dated December 3, 2009, or the Warning Letter dated June 11, 2009.
	The
new
allegations identified in the Second Amended Charge are summarized as follows:
1.	
On June 23, 2009, while attending a settlement conference conducted by PERB regarding
another unfair practice charge case,3 Pelonero was presented with a copy
of
a Settlement
Agreement and General Release that had been executed by representatives
of
the University
and SETC. The Settlement Agreement and General Release addressed, inter alia, five earlier
grievances filed by Pelonero.4
2.	
On July 28, 29 and 30, 2009, Pelonero was involved in a series
of
confrontations initiated
by Lead Carpenter Bryan Fisher. On August 6, 2009, Williams was also involved in a
confrontation initiated by Fisher.
3. \Villiams and Pelonero filed a grievance over the incidents involving Fisher, alleging they
were being retaliated against for filing earlier grievances. The University representatives
hearing the grievance at both Level I and Level II failed to provide a response within the
timeframe required by the grievance procedure negotiated by SETC and the University.
Charging Parties allege that the failure to provide a timely response is further evidence
of
harassment and retaliation, as well as evidence that the grievance procedure does not work at
the University's San Marcos campus.
The other case identified is Unfair Practice Charge Case No. LA-CE-1038-H.
4 According to PERB's case files, the informal settlement conference in LA-CE-1038-H
was held on December 4, 2008, rather than June 23, 2009 as alleged herein. However, a
formal hearing was conducted in that case on June 23, 2009.

LA-CE-1068-H
January 12, 2010
Page 3
Discussion
As discussed more fully in the S~cond Warning Letter, in order to demonstrate that an
employer discriminated or retaliated against an employee in violation of HEERA section
3571(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 action because of the exercise of
those rights. 	(Novato Unified School District (1982) PERB Decision No. 210 (Novato);
Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416
(Campbell); San Leandro Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d
553 (San Leandro).)5 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.)
A charging party's burden includes alleging the "who, what, when, where and how" of an
unfair practice. (State of California (Department of Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.) Each of the new allegations
raised by the Second Amended Charge will be evaluated with these standards in mind.
1. 	Settlement Agreement regarding Pelonero Grievances
The Second Amended Charge does not provide facts that demonstrate how the University's
agreement with SETC on the resolution of various grievances adversely affects either Pelonero
or Williams. Nor do Charging Parties provide any evidence of unlawful motive on the part of
the University in reaching such a settlement. Thus, this allegation fails to state a prima facie
retaliation violation and must be dismissed. (Palo Verde Unified School District, supra, PERB
Decision No. 689; Novato, supra, PERB Decision No. 210.)
In addition, it appears that the same allegation concerning the University's settlement of
various grievances by agreement with SETC was previously addressed and dismissed--on
October 9, 2008-by Regional Attorney Eric J. Cu in Case No. LA-CE-1038-H. The partial
dismissal of that charge was not appealed to the Board. The Board has previously ruled that,
where an allegation is dismissed by a Board agent and the dismissal is not appealed to the
Board, "the doctrines of res judicata and collateral estoppel bar" the same charging party from
raising the allegation in a later case. (City of Porterville (2007) PERB Decision No. 1905-M.)
5 As also discussed in the Second Warning Letter, Charging Parties have established
that they have engaged in protected activity and that the University has knowledge of the
protected activity.

LA-CE-1068-H
January 12, 2010
Page 4 
2.
	Alleged Retaliation against Williams and Pelonero by Fisher
In the Second Warning Letter, it was noted that lead positions, such as lead carpenter, are
included in the bargaining unit represented by SETC, and that such lead personnel
do
not have
authority to exercise supervisory
authority-such
as the authority to hire, fire or discipline
employees-on
behalf
of
the University. 	Charging Parties
do
not provide facts to establish
that
Fisher-who
is identified as a Lead
Carpenter-was
acting as a supervisor or agent
of
the
University at the time
of
the alleged incidents involving Pelonero and Williams in late-July and
early-August 2009. The burden
of
proving agency is on the party asserting its existence.
(Inglewood Unified School District (1990) PERB Decision No. 792.) Thus, even assuming for
the moment that Fisher's conduct constituted adverse action(s), the charge fails to establish a
prima facie case that the University took adverse action. This allegation must also be
dismissed.
3.
	Failure
of
University to Provide Timely Responses to Grievances
In both the First Amended Charge and the Second Amended Charge, Williams and Pelonero
frequently assert that the grievance procedure "does not work" at the San Marcos campus.
Such an allegation, rather than being analyzed under a discrimination/retaliation standard, is
properly considered either as a violation of, or the repudiation of, the grievance procedure
negotiated by SETC and the University, or as an interference claim.
The repudiation
of
a collectively bargained grievance procedure is an unlawful unilateral
change. 	(See, for example, County
of
Riverside (2006) PERB Decision No. 1825-M.)
However, as Charging Parties were previously informed by the June 11, 2009 Warning Letter,
as well as the December 3, 2009 Second Warning Letter, individual employees lack standing to
allege unilateral change violations. 	(See, for example, City
of
Long Beach (2008) PERB
Decision No. 1977-M; Regents
of
the University
of
California (2006) PERB Decision
No. 1804-H.) Thus, this allegation
of
an unlawful unilateral change must also be dismissed.
With respect to an arguable interference claim, the test for whether a respondent has interfered
with the rights
of
employees under the HEER.A does not require that unlawful motive be
established, only that at least slight harm to employee rights results from the conduct. 	In State
of
California (Department
of
Developmental Services) (1983) PERB Decision No. 344-S,
citing Carlsbad Unified School District (1979) PERB Decision No. 89 and Service Employees
International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106, the Board described
the standard as follows:
[I]n order to establish a prima facie case
of
unlawful interference,
the charging party must establish that the respondent's conduct
tends to or does result in some harm to employee rights granted
under EERA.
Under the above-described test, a violation may only be found if HEER.A provides the claimed
rights. (HEER.A,§ 3571.3; California State University, Sacramento (1982) PERB Decision

LA-CE-1068-H
January 12, 2010
Page 5
No. 211-H.) In Clovis Unified School District (1984) PERB Decision No. 389, the Board held
that a finding
of
coercion does not require evidence that the employee actually felt threatened
or intimidated or was in fact discouraged from participating in protected activity. However, as
also explained by Regional Attorney Cu with regard to the dismissal
of
a similar allegation in
Case No. LA-CE-1038-H, Charging Parties must establish that the University's conduct tends
to or did cause "some harm" to their right to pursue grievances in order to state a prima facie
case
of
interference. Here, Charging Parties have not alleged any facts to establish such harm
did result or would tend to result.
Conclusion
Therefore, the charge is hereby dismissed based on the facts and reasons set forth above, as
well
as
in the June
11
and December 3, 2009 Warning Letters.
Right to Appeal
Pursuant to PERB Regulations,6 Charging Party may obtain a review
of
this dismissal
of
the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service
of
this dismissal. (Cal. Code Regs, tit. 8, § 32635, subd. (a).) Any document filed with the Board
must contain the case name and number, and the original and five (5) copies
of
all documents
must be provided to the Board.
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 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 and
32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
6 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. Copies may be purchased from PERB' s Publications Coordinator, 1031 18th
Street, Sacramento, CA 95811-4124, and the text is available at www.perb.ca.gov.

LA-CE-1068-H
January 12, 2010
· Page 6
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Cal. Code Regs, tit.
8,
§ 32635, subd. (b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, § 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit.
8,
§ 32135, subd. (c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Cal. Code Regs, tit.
8,
§ 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely, .
TAMI R. BOGERT
General Counsel
By
____
...._........._
_ _..__---'._
___
_
Les Chisholm
Division Chief
Attachments
cc: Marc D. Mootchnik

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I
031
18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
December 3, 2009
Ron Williams
Patrick Pelonero
Re: 	Ron Williams & Patrick Pelonero
v.
Trustees
of
the California State University (San
Marcos)
Unfair Practice Charge No. LA-CE-1068-H
SECOND WARNING LETTER
Dear Messrs. Williams and Pelonero:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April 28, 2009. Ron Williams and Patrick Pelonero (Williams and
Pelonero or Charging Parties)1 allege that the Trustees
of
the California State University (San
Marcos) (University) violated the Higher Education Employer~Employee Relations Act
(HEERA or Act)2 at sections 3560 and 3571(e) by:
	a)
permitting two bargaining unit members
(Project Supervisor Pat Simpson and Lead Locksmith Michael Treadway (Simpson and
Treadway)) to voluntarily leave their Bargaining Unit 6 positions when they were promoted to
the position
of
Management Personnel Plan (MPP); and b) subsequently, without posting the
vacant positions, allowing Simpson and Treadway to retain their bargaining unit status and
return to their former positions. 	·
Charging Parties were informed by Regional Attorney Marc Hurwitz, in a Warning Letter
dated June 11, 2009, that the above-referenced charge did not state a prima facie case.
Charging Parties were advised that,
if
there were any factual inaccuracies or additional facts
that would correct the deficiencies explained in that letter, they should amend the charge.
Charging Parties were further advised that, unless they amended the charge to state a prima
facie case or withdrew it prior to June 18, 2009, the charge would be dismissed.
1 Williams and Pelonero are employed at the California State University, San Marcos
(CSUSM) as Building Maintenance Mechanics. The State Employees Trades Council United
(SETC) is the exclusive representative of Bargaining Unit 6, Skilled Crafts, including the
classification of Building Maintenance Mechanic.
2 HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-1068-H
December 3, 2009
Page 2
Williams and Pelonero filed a First Amended Charge on June 17, 2009. This matter was
reassigned to the undersigned on November 30, 2009.
The Warning Letter
In his June 11, 2009 letter, Regional Attorney Hurwitz explained that the allegations in the
original charge were properly considered as alleged unlawful unilateral changes in violation of
HEERA section 357l(c). The Warning Letter further explained that Charging Parties, as
individual employees, lacked standing to allege a violation of section 357l(c).
Further, with respect to the alleged violation of HEERA section 3571(e), the Warning Letter
likewise noted that the Charging Parties lacked standing to allege that the University had failed
or refused to participate in statutory impasse procedures.
The First Amended Charge
1. 	The Original Charge Allegations
As discussed further below, the First Amended Charge focuses almost exclusively on events
and conduct that occurred after the filing of the instant charge, and alleged reprisals against
Charging Parties. The only apparent references to the original allegations are as follows:
Mr. Hurwitz in your Warning Letter dated June 11, 2009 we do
not see any comment about the answer that was given by Marc
Mootchnik of University Counsel [sic] letter dated May 5, 2009
relating to ULP case# LACE 1068-H.
From the e-mail of James Busalacchi Friday February 27, 2009 to
Jolm Connor SETC UNITED Business Manager it was stated
"Treadway and Simpson could be returned to their respective
l_-JllVl	-~;~~ pos1't1'onnli) 'W';+J,.,~"t	llllUU 11~eed1'ng +o ~o~+ +k= 	th	l 	..!! .:>L UH.., pos1't1'ons	.1 	knf	L/U.l- +l,,,-,t	l-l.J.C.U. UH,""''	..,J
would LOSE SENIORITY." This reply seems to be one sided
and is NOT confirmed by SETC United Business Manager John
Connor by your investigation.
The question still remains Did Treadway and Simpson Lose
Seniority [sic]?
(Emphasis in original.) The above-quoted passage appears to concern the May 19, 2009
response to the original charge filed by the University's representative, including references to
documents attached to the response.
The above-quoted passage does not cure the deficiencies in the original charge outlined in the
earlier Warning Letter, and thus the alleged violations of HEERA section 357l(c) and (e) must
be dismissed.

LA-CE-1068-H
December 3, 2009
Page 3
2. 	New Allegations
The First Amended Charge alleges that Williams and Pelonero have been harassed and
retaliated against, in violation of HEERA sections 3560, 3571(a), and 3571(e), because they
filed the instant charge.
The charge reads, verbatim and in relevant part, as follows:
Within a few days of CSUSM Facility Services Management
receiving [the charge,] the Retaliation and Harassment started.
Both [Charging Parties] were REMOVED from a Welding Job on
Campus that we had both been working on for days prior. 	On
May 7, 2009 this job was shut down by Assistant Director of
Operations Michael Chambers. This job was left Uncompleted
and to this day has not been completed.
Within days of Removing both [Pelonero and Williams] from the
above mentioned Welding job, we started to notice that our other
Assigned jobs were also being removed from us. As Building
Maintenance Mechanics we are Responsible for All work that
happens within our Assigned Building(s) on Campus. Jobs that
we were working on were now being Re-directed to other
Maintenance Mechanics that are Not assigned to the Building(s)
where the job is being done.
Patrick and I were informed by Lead Carpenter, Maintenance
Mechanics and other Laborers in our shop that a specific group of
Maintenance Staff were offered by [Chambers] All Billable
Work on Campus. This is a Direct Unlawful Employer
Practice, against [Pelonero and Williams]. This is a change from
regular Operations that J\1anagement put against [Pelonero and
Williams] after filing Unfair Labor Practice charge # LACE
1068-H. All Billable Work on Campus has Always been taken
care of by the Maintenance Mechanic that is Assigned to the
Building(s) were work is being done. Patrick Pelonero has been
doing Billable work at California State University San Marcos for
6 years and Ron Williams has been doing Billable work at
California State University for 4 ½ Years. As of Today's date
June 17, 2009 Billable work that we should be doing in our
Assigned Buildings on Campus is being kept away from
[Charging Parties].
The Assigned Building Maintenance Mechanic has always been
the Primary in charge of All work within our Assigned
Building(s). The Maintenance Mechanic may ask for other

LA-CE-1068-H
December 3, 2009
Page 4
Maintenance Mechanics help in completing a job
if
additional
help is needed.
Once this New Billable Work Position was confirmed by the
other Maintenance Mechanic [Charging Parties] sent an e-mail on
May 19, 2009 to Facility Services Director Ed Johnson. 	Our e-
mail indicated that we were informed about the New Billable
Person Position being created by Management and that our
current work Responsibilities was now going to be taken away
from us.
A meeting was then scheduled that included the Associate Vice
President
of
Facilities Development & Management Gary
Cinnamon, [Johnson], [Chambers] and [Charging Parties].
During this meeting the Director and Assistant Director DENIED
that this New Billable Person Position was being created by
Management and, our Billable work NOT being removed from
any Maintenance Mechanic.
On June
1,
2009 at 7:00-7:05am [Williams] was confronted in the
Service Center office by [Chambers]. He said that [Williams} did
not know what I was doing and that I should think about getting
some Training. I asked Mike Chambers what he was talking
about, as I had NO idea. He said something about a Faucet repair
that I did in on Campus and my time charged for repair was NOT
what he thought it should be, I must not know what I am doing. 	I
told Mike Chambers that I work on Many Faucets on Campus and
I still did not know what repair he was talking about. He then
told me to speak with Lead Carpenter Bryan Fisher about the job
he was referring to, and then he left the office. After Mike
Chambers left the office I sat down to read my morning e-mails.
I then saw an e-mail from [Fisher] about my Estimate for New
Replacement parts for an Electronic Faucet Module for the Field
House, this was the repair that Mike Chambers was confronting
me about just minutes ago.
Bryan Fisher's e-mail of 5/29/09@ 7:58am said: Upon
analyzing the situation, I've come to the conclusion that the best
course of action is for me to take care of this billable work order
from this point on. I do not believe we can justify any additional
labor expense for this issue. Up to this point the Field House has
already incurred a charge of $291.50 from your labor to
investigate the problem and I cannot in good conscience ask them
to pay more.

LA-CE-1068-H
December 3, 2009
Page 5
. . . [Fisher is] a Lead Carpenter without any Carpenters in
Bargaining Unit 6, he is not Qualified to reprimand me or any
other Maintenance Mechanic about Plumbing work done on
Campus.[3]
During our Facility Services Monthly Department meeting on
June 4, 2009 the following was said by Michael Chambers to the
entire Department.
I am not pleased when I find out that someone in this
Department made a Plumbing/Faucet repair on Campus
and we charged the customer more money for the repair
then it would have cost the customer to have an outside
Contractor come in to have the repairs done.
This comment from Michael Chambers was directed to
[Williams] in a Public Department meeting.
On Monday June 1, 2009 another Unlawful Employer Practice
occurred when Scott Gorsuch Lead Electrician put out an e-mail
stating that the Re-lamping of [CSUSM] from that day forward
was now being Contracted out to an outside Contractor. The
Maintenance Mechanics job of Re-lamping light fixtures was
now being taken away and an outside Contractor was now doing
our work. [Pelonero] has been Re-lamping light fixtures at
[CSUSM] for 6 Years and [Williams] has been Re-lamping light
fixtures at [CS USM] for 4 ½ Years.
On Wednesday June 3, 2009 [Charging Parties] sent an e-mail
request to [Chambers] for a Level-I Informal review regarding
the June 1, 2009 e-mail of Scott Gorsuch. V/ithout SETC United
representation it was Impossible for us to pursue this Grievance.
SETC United Chief Union Stewart Tom Weir DECLINED to
attend and represent [Charging Parties].
THE GRIEVANCE PROCEDURE DOES NOT WORK AT
[CSUSMJ
On June 16, 2009 [Vlilliams] was scheduled and attended a
meeting with [Chambers] and [Fisher]. I also brought [Weir]
The First Amended Charge references and attaches an earlier e-mail message from an
SETC Chief Steward stating, in part, that Leads do not have the authority to "hire, fire,
promote or discipline."

LA-CE-1068-H
December 3, 2009
Page 6
with me. I was told this meeting was to discuss my work orders.
At this meeting I was put down by Michael Chambers for the
work that I had been doing, I was NOT up to his standards.
Michael Chambers continued to discredit my work and ability to
do
jobs that were done by me. In my 4 ½ years as a Maintenance
Mechanic at [CSUSM] I had never received any complaint from
any customer on Campus. Previous members
of
Management
commended me for my work and ability to exceed the needs and
request
of
my Campus customers.
Michael Chamber's comments to me are a Direct Retaliation
towards me Ron Williams.
Discussion
First, the allegation in the First Amended Charge that the University violated HEERA section
3571(e) must be dismissed for the reasons explained in the June 11, 2009 Warning Letter, as
referenced above.4 In addition, to the extent that the First Amended Charge alleges that the
University has implemented unilateral changes in any policy, e.g., contracting out certain
electrical or other work or reassigning duties, that are properly analyzed as possible unilateral
changes in violation ofHEERA section 3571(c), Charging Parties lack standing to allege
unilateral change violations and they must be dismissed for the reasons explained in the earlier
Warning Letter.
While not entirely clear from the statement
of
the charge, it appears the First Amended Charge
alleges the University violated HEERA section 3571(a) by taking the following actions: 5
a.	
Removing Charging Parties from a welding job shortly after the instant charge
was filed and shutting down the job on May 7, 2009.
b.	
Assigning billable
\:vork
formerly performed by Charging Parties to another
person or persons, in or about mid-May 2009.
c. 	Assistant Director Chambers criticized faucet repair work by Williams in
comments to Williams on June 1, 2009.
It is further noted that there are no factual allegations set forth in either the original
charge or the First Amended Charge concerning the invocation of HEERA' s impasse
procedures by either SETC or the University.
5 Aliegations regarding SETC declining to participate in a Level 1 grievance meeting
on June 3, 2009, are not addressed by this letter, as the University-and not SETC-is the
respondent in this matter.

LA-CE-1068-H
December 3, 2009
Page 7
d. 	Informing employees on June 1, 2009 that re-lamping work was being
contracted out.
e. 	Assistant Director Chambers made statements in a department meeting on June
4, 2009, critical of recent faucet repair work.
f. 	Requiring Williams to meet with Chambers on June 16, 2009, during which
meeting Chambers made comments critical of Williams' recent work performance.
To demonstrate that an employer discriminated or retaliated against an employee in violation
of HEERA section 3571(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 action
because of the exercise of those rights. (Novato Unified School District (1982) PERB Decision
No. 210 (Novato); Campbell Municipal Employees Assn. v. City of Campbell (1982) 131
Cal.App.3d 416 (Campbell); San Leandro Police Officers Assn. v. City ofSan Leandro (1976)
55 Cal.App.3d 553 (San Leandro).) 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; footnote
omitted.)
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;
Campbell, supra, 131 Cal.App.3d 416); (2) the employer's departure from established
procedures and standards when dealing with the employee (Santa Clara Unified School
District (1979) PERB Decision No. 104; San Leandro, supra, 55 Cal.App.3d 553); (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; San Leandro, supra,
55 Cal.App.3d 553); (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

LA-CE-1068-H
December 3, 2009
Page 8
at the time it took action (Oakland Unified School District (2003) PERB Decision No. 1529) or
the offering
of
exaggerated, vague, or ambiguous reasons (McFarland Unified School District
(1990) PERB Decision No. 786); (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,
PERB Decision No. 264; Novato, supra, PERB Decision No. 210.)
Protected Activity and Employer Knowledge
Charging Parties have established they engaged in conduct protected by HEERA. First,
Charging Parties filed the instant charge, and the Board has long held that filing unfair practice
charges with PERB constitutes protected activity. (Trustees
of
the California State University
(2008) PERB Decision No. 1970-H; Riverside Unified School District (1987) PERB Decision
No. 639.) In addition, Charging Parties filed a grievance on or about June 3, 2009 and sought
assistance from SETC with regard to the grievance. This activity is also protected. (Trustees
of
the California State University, supra, PERB Decision No. 1970-H; Los Angeles Unified
School District (2005) PERB Decision No. 1787.) The University, in its response to the First
Amended Charge, acknowledges that Charging Parties engaged in protected activity
of
which
the University had knowledge.
Adverse Action
However, as presently written, the First Amended Charge does not contain sufficient facts to
establish that any
of
the alleged retaliatory actions constitute adverse action under the objective
standard described above.
The allegations with respect to the welding job terminated in early May 2009; the alleged
reassignment
of
billable work to other, unnamed staff or entities; and the decision to contract
out re-lamping work all fail to describe any "adverse impact on [Charging Parties']
em
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There is not, for example, any suggestion that Williams or Pelonero worked fewer hours or
suffered a loss in pay or overtime opportunities as a result
of
this alleged conduct. Thus, the
allegations identified above in paragraphs
a, b, and d must be dismissed. (Ibid.)
The allegation described in paragraph e, concerning Chambers' comments at a department
meeting on June 4, 2009, also fails to establish any adverse action with respect to Williams or
Pelonero. While the First Amended Charge alleges these comments were "directed to"
Williams, there are no specific facts alleged to support that conclusion. PERB Regulation
32615(a)(5)6 requires, inter alia, that an unfair practice charge include a "clear and concise
statement of the facts and conduct alleged to constitute an unfair practice." The charging
6 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-1068-H
December 3, 2009
Page 9
party's burden includes alleging the "who, what, when, where and how" of an unfair practice.
(State of California (Department of Food and Agriculture) (1994) PERB Decision No. 1071-S,
citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Mere legal
conclusions are not sufficient to state a prima facie case. (Ibid.; Charter Oak Unified School
District (1991) PERB Decision No. 873.)
Finally, the two allegations (described above in paragraphs d and f) concerning critical
comments by Chambers that were addressed specifically to and about Williams, on June 1 and
16, 2009, fall short of establishing that adverse action was taken against Williams. 7 The Board
has held that a verbal reprimand can constitute adverse action. (State of California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S.) However, not all
verbal expression of concern about an employee's conduct or performance rise to the level of a
verbal reprimand and thus establish that adverse action was taken. (Woodland Joint Unified
School District (1987) PERB Decision No. 628.) In the present case, there is no information in
the First Amended Charge that shows that any further action was taken, in the form of
discipline, written documentation, or a formal performance evaluation, regarding Chambers'
concerns about Williams' job performance. Thus, the First Amended Charge fails to show that
Chambers' comments on June land/or 16, 2009 constitute adverse action. (Ibid.)
Nexus
If amended to establish that any adverse action was taken, most of the allegations discussed
herein would still fail to demonstrate a prima facie discrimination violation due to insufficient
evidence of unlawful motive. That said, Charging Parties have established timing as an
element supporting such an inference, as the original charge was filed on April 28, 2009, and
the alleged adverse actions occurred within the two months following. 	(Calaveras County
Water District (2009) PERB Decision No. 2039-M.) Temporal proximity with respect to the
allegations concerning conduct occurring on June 4 and 16, 2009 is further established by the
June 3, 2009 filing of the Level 1 grievance.
,AAdditional evidence of animus, with regard to the expression of concerns regarding Williams'
work performance on June 1 and 16, 2009, is not supported by the conclusory allegations that
Williams had previously received no complaints regarding his work and in fact had only
received expressions of approval of his work performance. The First Amended Charge does
not demonstrate, for example, that the concerns expressed to Williams were exaggerated
(,McFarland Unified School District, supra, PERB Decision No. 786), or that Chambers failed
to offer an explanation or justification for the concerns at the time ( Oakland Unified School
District, supra, PERB Decision No. 1529), or that the concerns were expressed following a
cursory investigation (City a/Torrance, supra, PERB Decision No. 1971-M).
7 It should be noted that the First Amended Charge does not allege any instances where
Pelonero was on the receiving end of critical comments about his work performance.

LA-CE-1068-H
December 3,. 2009
Page 10
With respect to the four .other alleged adverse actions, there is simply no evidence submitted,
aside from timing, to support an inference of unlawful motive. For all the above reasons, the
discrimination allegations contained in the First Amended Charge must be dismissed.
Conclusion
For these reasons the charge, as amended by the First Amended Charge, does not state a prima
facie case. 8 If there are any factual inaccuracies in this letter or additional facts that would
correct the deficiencies explained above, Charging Party may amend the charge. 9 The
amended charge should be prepared on a standard PERB unfair practice charge form, clearly
labeled Second Amended Charge, contain all the facts and allegations Charging Parties wish to
make, and be signed under penalty of perjury by an authorized agent of Charging Parties. The
amended charge must have the case number written on the top right hand corner of the charge
form. 	The amended charge must be served on the Respondent's representative and the original
proof of service must be filed with PERB. If an amended charge or withdrawal is not filed on
or before December 17, 2009, 10 PERB will dismiss the charge. If you have any questions,
please call me at the above telephone number.
Sincerely,
Les Chisholm
Division Chief
In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid)
9 This opportunity to further amend the charge is limited to those allegations first raised
in the First Amended Charge. The time in which the original charge allegations could be
amended has passed.
10 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)

STA'fE OF CALIFORNIA 	WLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2808
Fax: (818) 551-2820
June 11, 2009
Ron Williams
Patrick Pelonero
(
Re: 	Ron Williams & Patrick Pelonero v. Trustees of the California State University (San
Marcos)
Unfair Practice Charge No. LA-CE-1068-H
WARNING LETTER
Dear Mr. Williams and Mr. Pelonero:
The above-referenced unfair practice charge was filed with the Public Employment Relation
Board (PERB or Board) on April 28, 2009. Ron Williams and Patrick Pelonero (Williams a
Pelonero or Charging Parties) allege that the Trustees of the California State University (San
Marcos) (University) violated the Higher Education Employer-Employee Relations Act
(HEERA or Act) 1 by: a) permitting bargaining unit members, Project Supervisor Pat Simps
and Lead Locksmith Michael Treadway (Simpson and Treadway), to voluntarily leave their
Bargaining Unit 6 positions when they were promoted to the position of Management
Personnel Plan (MPP); and b) subsequently, without posting the vacant positions, allowing
Simpson and Treadway to retain their bargaining unit status and return to their former
positions.
s
nd
on
Background
Williams and Pelonero are employed at the University as Maintenance Mechanics. The State
Employees Trades Council (SETC) is the exclusive representative of Bargaining Unit 6,
Skilled Crafts, including the classification of Maintenance Mechanic. The University and
SETC are parties to a Collective Bargaining Agreement (CBA).
In early September 2008, Simpson and Treadway were promoted, which resulted in their
filling management/MPP positions. On September 4, 2008, Facilities Services Director Ed
Johnson (Johnson) notified Bargaining Unit 6 members attending the University's monthly
Facility Services Department meeting of Simpson's and Treadway's promotions.
1 HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-1068-H
June 11, 2009
Page 2
(
On September
5,
2008, SETC Chief Steward Thomas
J.
Weir (Weir) sent an e-mail
to
all
Bargaining Unit 6 members and to Director
of
Human Resources, Ellen Cardoso, stating the
following:
To dispel rumors about Retreat Rights for SETC-U positions
vacated by Mr. Treadway and Mr. Simpson who were promoted
to MPP positions, under Article 30.13 [sic] these employees
cannot exercise the provisions
of
this Article because there was
no mutual agreement between the Union and management as such
relates to the Collective Bargaining Agreement. Also, be aware
that neither Mr. Treadway nor Mr. Simpson can perform any Unit
6 work or portion
of
work thereof, as outlined within the
negotiated Classification Standards. Any such violation will
result in an Unfair Labor Practice filed on behalf
of
all SETC-U
employees against CSU San Marcos.
Article 30, Layoff, Section 30.13
of
the parties' CBA states:
Effective July
1,
1996, the parties may mutually agree that an
employee may be temporarily assigned to a position in another
classification at a salary rate appropriate for the temporarily
assigned duties and responsibilities. 	Such temporary assignment
shall not exceed six months (180 days), except by mutual
agreement
of
the parties. A temporary assignment implemented
under this provision shall not be considered as a break in service
for computation
of
seniority points, and an employee on such
temporary assignment shall retain bargaining unit status.
At the monthly Facility Services Department meeting on December 11, 2008, Director Johnson
advised the attending bargaining unit members that on or about January
1,
2009, Simpson andTrP~rhxmu	_.,,...,_,.....,._._"'"''-"'J
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December 12, 2008, Williams sent, in part, the following e-mail to management:
Mr. Michael Treadway, Per the Comments that were made to the
Department at the Department meeting on 12/11/08. [sic] We,
Ron Williams, Patrick Pelonero, George Delgado, Calvin Kidd
make the following Request. Level-I Informal Review 9.6 A For
the Following Articles of SETC-United:
30.13 [parties may mutually agree that an employee be
temporarily assigned to a position in another classification.]
32.5 [amendments to CBA only by mutual agreement signed by
both parties.]

LA-CE-1068-H
June 11, 2009
Page 3
20.2 [notice
of
temporary reassignment to a higher classification
shall be posted prior to effective date, except in cases
of
emergencies.]
10
.1
[all positions to be filled, except those
of
90 days or less,
shall be posted.]
Three members
of
the Bargaining Unit and Chief Steward Weir participated in the Level-I
Informal Review with management on January 14, 2009. On January 30, 2009 Weir notified
bargaining unit members Williams, Delgado and Pelonero that he had not received a response
to the Level-1 Informal Review. The same day, Weir sent an e-mail to SETC Business
Manager John Conner on behalf
of
bargaining unit members Pelonero, Williams and Delgado
requesting that SETC file an unfair practice charge alleging violations
of
several articles
of
the
CBA.
Williams and Pelonero now assert in part that management employees "are not entitled to the
contractual rights
of
[b ]argaining unit employees." As a consequence, they contend that when
a unit member leaves the bargaining unit to take a management position, that person;
loses his/her permanency and seniority credit upon entering
management. Promotion to management constitutes a break in
service and a permanent separation from a Bargaining unit
position, disqualifying the employee from rights under the
contract including retreat rights.
It is also alleged that by the aforementioned conduct, management has also violated HEERA
section 3 571 (e) by refusing to participate in good faith in the impasse procedure.
Discussion
1.
	Standing to Allege Barg::iining Violations
Williams and Pelonero argue that the University committed an unlawful unilateral change by
violating various provisions
of
the CBA.2 Before an employer may make a change in policy
on a matter affecting hours, wages and working conditions, which has a generalized effect or
continuing impact upon terms and conditions
of
employment, it must first provide the
exclusive representative with notice and an opportunity to bargain the change. (Grant Joint
Union High School District (1982) PERB Decision No. 196.) The duty to meet and confer
arises between an employer and an exclusive representative, and therefore, an individual
employee lacks standing to allege a breach
of
that duty. 	(Alum Rock Union Elementary School
District (2005) PERB Decision No. 1748.)
2 As to alleged violations of the CBA, PERB does not have jurisdiction to enforce
agreements between the parties. (Gov. Code,§ 3563.2(b).)

LA-CE-1068-H
June 11, 2009
Page 4
Under HEERA, the duty to meet and confer on matters within the scope of bargaining runs
between the University and the exclusive representative, SETC. (See Gov. Code, §§ 3570 and
3562(m).) The Board has held that an individual employee does not have standing to pursue
violations of the collective bargaining rights of employee organizations. (Regents of the
University of California (2006) PERB Decision No. 1804-H; State of California (Department
of Corrections) (1993) PERB Decision No. 972-S.) Thus, in this case, Williams and Pelonero
do not have standing to pursue possible violations of SETC's rights.
Individual employees also lack standing to allege unilateral change violations or that an
employer has failed or refused to bargain in good faith. 	(City of Long Beach (2008) PERB
Decision No. 1977-M; Bay Area Air Quality Management District (2006) PERB Decision No.
1807-M; Oxnard School District (Gorcey and Tripp) (1988) PERB Decision No. 667.) To the
extent the Charging Parties are alleging a violation of HEERA section 3571 (c),3 this allegation
must be dismissed.
2. University's Refusal to Participate in Good Faith in the Impasse Procedure
Williams and Pelonero also allege that the University failed to participate in good faith in the
impasse procedure in violation of HEERA section 357l(e). This section provides that it shall
be unlawful for the employer to "Refuse to participate in good faith in the impasse procedure
set forth in Article 9 (commencing with Section 3590)."
HEERA section 3 571 ( e) is clear and unambiguous; the duty to participate in good faith in
impasse arises between the employer and the exclusive representative. As noted above, an
individual employee does not have standing to pursue violations of the collective bargaining
rights of employee organizations. (State of California (Department of Corrections), supra,
PERB Decision No. 972-S.) Accordingly, Williams and Pelonero do not have standing to
allege that the University failed to participate in good faith in the impasse procedure.
Therefore, this allegation shall be dismissed.
For these reasons the charge, as presently written, does not state a prima facie case.4 Ifthere
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Parties may amend the charge. The amended charge should be
3 HEER.A Section 3571(c) provides that it shaII be unlawful for the employer to
"Refuse or fail to engage in meeting and conferring with the exclusive representative."
4 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)

LA-CE-1068-H
June 11, 2009
Page 5
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty of
perjury by an authorized agent of the Charging Parties. The amended charge must have the
case number written on the top right hand corner of the charge form. 	The amended charge
must be served on the Respondent's representative and the original proof of service must be
filed with PERB. If an amended charge or withdrawal is not filed on or before June 18, 2009,5
PERB will dismiss your charge. If you have any questions, please call me at the above
telephone number.
Sincerely,
Marc S. Hurwitz
Regional Attorney
MSH
A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)