Trustees of the California State University (San Marcos) (PERB 2093H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
PA TRICK PELONERO,
Charging Party,
V.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY (SAN MARCOS),
Res ondent.
Case No. LA-CE-1038-H
PERB Decision No. 2093-H
February 2, 2010
Appearances: 	Patrick Pelonero, on his own behalf; Marc D. Mootchnik, University Counsel ,
for Trustees of the California State University (San Marcos).
Before Dowdin Calvillo, Acting Chair; Neuwald and Wesley, Members.
DECISION
WESLEY, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Patrick Pel.onero (Pelonero) to the proposed decision
(attached) of an administrative law judge (ALJ). The complaint alleged that the Trustees of the
California State University (San Marcos) (CSU) violated the Higher Education Employer
Employee Relations Act (HEERA)1 section 3571(a), by interfering with Pelonero's right to file
1 HEERA is codified at Government Code section 3560 et seq. 	Section 357l(a) states
that it is unlawful for CSU to:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter. ...

grievances. 2 The ALJ dismissed the complaint and underlying unfair practice charge finding
that Pelonero failed to prove his case by a preponderance of the evidence.
The Board has reviewed the proposed decision and the record in light of Pelonero' s
exceptions, CSU's response and the relevant law. Based on this review, we find the proposed
decision to be well-reasoned, adequately supported by the record and in accordance with
applicable law. Accordingly, the Board adopts the proposed decision as the decision of the
Board itself, as supplemented by the discussion below.
BACKGROUND3
The essence of this case involves incidents surrounding a regular monthly department
meeting held on October 12, 2006.
At some point thereafter, Pelonero filed a grievance regarding the October 12, 2006
meeting. A Level Four grievance meeting was held on June 5, 2009, to consider the grievance
and ten other grievances filed by Pelonero and other employees. 4 Pelonero attended the June 5
meeting with representatives of CSU and the exclusive representative, the State Employees
Trades Council (SETC). Nine of the 11 grievances, including Pelonero' s grievance regarding
the October 12 meeting, were settled by SETC on June 15, 2009,just prior to the June 23, 2009
hearing held in this case.
Pelonero filed the instant unfair practice charge on May 20, 2008.
A Board agent dismissed two additional allegations that CSU interfered with
Pelonero' s rights and retaliated against him when CSU settled approximately 70 contracting
out grievances filed by Pelonero and others.
3 A complete summary of the facts is contained in the proposed decision.
4 Level Four of the grievance procedure is the last step before arbitration.
2

DISCUSSION
The ALJ's decision
is
based entirely on credibility determinations. The ALJ concluded
that the witness testimony submitted by Pelonero was outweighed by the contradictory
testimony
of
four other witnesses.
When the Board considers the record, it
is
free to draw its own and perhaps contrary
inferences from the evidence. It is a well-established principle, however, that the Board will
grant deference to ALJ credibility determinations absent evidence
to
support overturning such
conclusions. (State
of
California (Department
of
Corrections) (2000) PERB Decision
No. 1388-S; American Federation a/State, County and Municipal Employees (Owens) PERB
Decision No. 1974-H.) After a review
of
the transcript, exhibits and the entire record, the
Board agrees that the ALJ' s credibility determinations are proper and they support the
conclusion that Pelonero has not proven his case.
We address here whether the charge was filed within the statutory limitations period.
HEERA section 3563.2(a) prohibits PERB from issuing a complaint with respect to "any
charge based upon an alleged unfair practice occurring more than six months prior to the filing
of
the charge." The limitations period begins to run once the charging party knows, or should
have known,
of
the conduct underlying the charge. (Gavilan Joint Community College District
( 1996) PERB Decision No.
11
77.) A charging party bears the burden
of
demonstrating that the
charge is timely filed. 	(Long Beach Community College District (2009) PERB Decision
No. 2002.)
The charge was filed on May 20, 2008, approximately one and one-half years after the
October 12, 2006 meeting. 	Clearly the charge was filed well outside the six-month statute of
limitations. The charge is untimely unless the statute of limitations is subject to tolling.
3

In Trustees of the California State University (San Jose) (2009) PERB Decision
No. 2032-H, the Board extended the doctrine of equitable tolling to cases arising under
HEERA. The statute of limitations is tolled during the time the parties are utilizing a dispute
resolution procedure if: (1) the procedure is contained in a negotiated written agreement;
(2) the procedure is being used to resolve the same dispute that is the subject of the unfair
practice charge; (3) the charging party reasonably and in good faith pursues the procedure; and
(4) tolling does not frustrate the purpose of the statutory limitation period by causing surprise
or prejudice to the respondent.
Pelonero filed his grievance regarding the October 12, 2006 meeting pursuant to the
grievance procedure in the memorandum of understanding between SETC and CSU. The
grievance pertained to the incidents surrounding the October 12, 2006 departmental meeting.
The same conduct is alleged in the present case to have interfered with Pelonero's rights. 	In
fact, CSU admits in its answer to the complaint that "a grievance filed by [Pelonero] alleging
events at an October 12, 2006 meeting is pending." Pelonero pursued his grievance through
the grievance procedure and participated in the Level Four grievance meeting. Finally, there is
no evidence that tolling would cause surprise or prejudice to CSU.
The grievance was still pending when Pelonero filed the present unfair practice charge.
Accordingly, the Board finds the statute of limitations was tolled when Pelonero filed his
charge, and the charge was timely filed .
ORDER
The complaint and underlying unfair practice charge in Case No . LA-CE-1038-H are
hereby DISMISSED.
Acting Chair Dowdin Calvillo and Member Neuwald joined in this Decision.
4

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
PATRICK PELONERO,
Charging Party,
V.
TRUSTEES OF THE CALIFORNIA ST A TE
UNIVERSITY (SAN MARCOS),
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-1038-H
PROPOSED DECISION
(09/09/09)
Appearances: Patrick Pelonero, on his own behalf; Marc D. Mootchnik, University Counsel,
for the Trustees of the California State University.
Before Thomas J. Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, an employee alleges that the state university interfered with his right to file
grievances. The university denies the allegation.
Patrick Pelonero (Pelonero) filed an unfair practice charge against the Trustees of the
California State University (CSU) on May 20, 2008, and an amended charge on September 9,
2008. The General Counsel of the Public Employment Relations Board (PERB or Board)
issued a complaint against CSU on October 9, 2008. CSU filed an answer to the complaint on
October 31, 2008.
PERB held an informal settlement conference on December 4, 2008, but the case was
not settled, so PERB held a formal hearing on June 23, 2009. With receipt of the final post-
hearing brief on August 14, 2009, the case was submitted for decision.

FINDINGS OF FACT
Pelonero
is
an employee under the Higher Education Employer-Employee Relations
Act (HEERA), 1 and CSU is an employer under HEERA. The PERB complaint alleges
in
part:
3.
	Starting in 2005, Charging Party [Pelonero] filed multiple
grievances concerning Respondent's [CSU'
s]
use
of
independent
contractors to perform work assigned to the bargaining unit
of
which Charging Party is a member.
In its answer, CSU admitted that Pelonero "was a party to more than one grievance regarding
the contracting out
of
work." The complaint further alleges:
4.
	On or about October 12, 2006, Respondent, acting through
its agents Steve Watters, Charles Walden, Pat Simpson, and Mike
Treadway, summoned Charging Party and other employees who
filed the grievances described in paragraph 3 to attend a meeting.
One or more
of
these individuals said that "they could not be a
part
of
this meeting but the employees needed to take care
of
putting Pressures (sic) on Patrick Pelonero [and the other
grievants] that Management considered BAD/TROUBLE
Employees [sic]." One or more
of
these same individuals then
said "these Grievances were not Right [sic] to be filed
and[
...
]
other employees
of
the Union should not want these Grievances
to happen either."
CSU denies this allegation.
There is no dispute that there was a meeting on October 12 , 2006. 	Witnesses agree that
it was a regular Facility Services Department meeting, during which Director Charles Walden
(Walden) and Assistant Director Steve Watters (Watters) made unusually harsh comments
about some work performed by Pelonero, a maintenance mechanic. When the regular meeting
concluded, Pelonero left the room, as did the two union stewards who had been present.
The dispute in this case is about what happened next. There was testimony from a total
of five witnesses who were present. Pelonero, who was not present after the regular meeting
concluded, did not testify, but a fellow employee, Ronald Williams (Williams) did testify.
1 HEERA is codified at Government Code section 3560 et seq.
2

Walden did not testify, but Watters did, as did Lead Locksmith Michael Treadway (Treadway),
Facility Project Supervisor Patrick Simpson (Simpson), and Energy Manager Ed
Johnson
(Johnson).
The heart
of
William's testimony was as follows:
After that particular meeting was done several
of
the faculty
. members [sic], staff members in the department were filtering out
when the meeting was over. At that point a lot
of
people were
being tugged back into the room because they wanted to have
some additional meeting. I didn ' t know what it was about. 	And I
was told by my supervisor then, Pat Simpson, that I needed to
stay because there was going to be another meeting. I had no
idea what it was about. I was sitting next to Pat Simpson as I was
basically a new employee. 	So I was following what I was told to
do.
I noticed that they were letting people leave and they were
keeping people back. Chuck Walden, the director, and Steve
Watters, the assistant director, remained for a little while during
this time. And I could hear them saying that we needed to have a
meeting and talk about Patrick Pelonero. And they were saying
that they couldn't be in the meeting, this had to be a union
member only meeting, and that we needed to conduct this
meeting and talk about some
of
the issues
of
Patrick and put some
pressure on Patrick for some reason. And
I'm
thinking well why
is this happening.
And Mike Treadway and Pat Simpson were the two that were
being talked to by Chuck and Steve. I remember Chuck left
before Steve because he said he couldn't be, couldn't be in the
presence
of
this meeting. Steve remained a little longer and was
still giving direction to Pat and Steve [sic] or Pat and Mike
Treadway.
And then they started talking about Patrick and how he files
grievances and the department doesn't want him to do that. And
again, as a new employee, I didn
't
know what this was about. I
never experienced the union environment, you know. 	I come to
work. I do my job. I go hom e. And I'm trying to figure out why
are we talking about Patrick now.
So I turned to Pat who was sitting next to me or across from me, I
don't remember, but we were at the same table, and I said,
shouldn't Patrick be here to defend himself if we're going to talk
about Patrick. And he said something to the effect that he had the
3

opportunity to stay and he chose not to. And we were going to
have this meeting.
So they continued talking about some
of
the grievances that
Patrick was filing. 	And management wasn't accepting
of
that.
And they wanted us, as the union members
of
the union, to put
pressure on him and to tell him what he was doing was incorrect
and he shouldn't be doing it, that everybody is happy, and why is
Patrick continuing to file grievances . That's to the best
of
my
recall for that day. I didn't pay much attention to a lot
of
the stuff
that was talked about, you know, after I had asked Pat why
wasn't Patrick there, because I didn't feel it was right.
Williams later added:
The flow
of
the conversation between them to everyone in the
room was that Patrick Pelonero was filing grievances and that
management didn't want those grievances to be filed. 	And it was
up to us as the union, union guys to put pressure on Patrick to get
him
to
stop doing that. And they felt that there was no problems
[sic] with the work that was being done outside and that was not
being done in-house. And they were upset that anytime there was
a contractor on campus that somehow there was a grievance
through either Tom [a steward], John [another steward] or
Patrick, that grievances were being filled. 	And they wanted it to
stop now.
Williams could not remember, however, what was said by Simpson and what was said by
Treadway, and it
is
not clear from his testimony what was said by Walden and what was said
by Watters.
Williams himself has filed unfair practice charges against CSU, along with Pelonero
and other employees, and he may be biased against the District and in favor
of
Pelonero. 	His
testimony, however, was detailed, consistent, and generally credible. I would certainly credit
his testimony had it not been contradicted by that
of
four other sworn witnesses.
The essence ofWilliams's testimony was that Walden and/or Watters told Treadway
and Simpson to "put some pressure" on Pelonero, and that Treadway and/or Simpson then told
other employees to put pressure on Pelonero to get him to stop filing grievances. This
testimony is contradicted in various ways by that of four other witnesses. Treadway testified
4

that neither Walden nor Watters ever told him that there was a need to put pressure on
Pelonero. Simpson testified that Walden and Watters did not tell him to get Pelonero to stop
filing grievances, and that he didn't recall telling other employees to do so. Watters testified
he did not tell Treadway or Simpson to put pressure on Pelonero, nor did he ever hear Walden
do
so. Johnson testified that Walden and Watters did not say anything about putting pressure
on any employee.
	If
the testimony
of
any
of
these witnesses is accurate, then the testimony
of
Williams
is
not entirely accurate.
ISSUE
Did CSU interfere with Pelonero' s right to file grievances?
CONCLUSIONS OF LAW
The test for whether a respondent has interfered with the rights
of
employees under the
HEERA 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 HEERA provides the claimed
rights. 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.
In the present case, the PERB complaint alleges that CSU interfered with employee
rights by trying to put pressure on Pelonero to stop filing grievances. The key question in this
5

case is not whether the alleged conduct constitutes unlawful interference but whether the
alleged conduct has been proven.
PERB Regulation
321 78
2 states:
"The charging party shall prove the complaint by a
preponderance
of
the evidence in order to prevail."
The question is therefore whether Pelonero proved the allegations in the complaint by a
preponderance
of
the evidence.
Pelonero called one witness (Williams) whose testimony supported the allegations
in
the complaint. As stated above, however, Williams's testimony was contradicted in various
ways by that
of
four other sworn witnesses. There may be cases in which I would credit the
testimony
of
one witness over that
of
four others, but I do not find this to be such a case. 	The
events described by Williams were relatively public events at which other employees were
present. As Williams testified, the flow
of
conversation was from Treadway and Simpson "to
everyone in the room."
If
Williams' s testimony was accurate, someone else who was in the
room should have been able to support it. No one did.
It may have taken courage for Williams
to
testify as he did.
	If
so , I commend him for
that. In this case, however, I do not find that his testimony, standing alone, is enough to
outweigh the contradictory testimony
of
four other sworn witnesses. I therefore conclude that
Pelonero did not prove the complaint by a preponderance of the evidence, and that the charge
and the complaint must be dismissed.
PROPOSED ORDER
2 PERB ' s Regulations are codified at California Code of Regulations, title 8, section
3 1001 et seq.
6

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-103 8-H, Patrick Pelonero
v.
Trustees
of
the California State University (San Marcos),
are hereby DISMISSED.
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:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX : (916) 327-7960
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
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 Re gs.,
tit. 8, §§ 32090 and 32130.)
7

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).)
·Th8mas J. AlleV
Administrative Law Judge
8