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

LA-CE-1068-H

Decision Date: November 2, 2010

Decision Type: PERB Decision

Description: The charge alleged that CSU failed to bargain with charging parties’ union; failed to follow grievance timeliness; retaliated against charging parties for filing a grievance and the charge; and settled Pelonero’s grievances without his consent.

Disposition: The Board affirmed the Board agent’s dismissal of the charge.  The Board held that charging parties lacked standing to allege failure to bargain and unilateral change in policy.  The Board found no connection between the grievance or charge and CSU’s actions, which were not adverse.  The Board held that CSU did not need Pelonero’s consent to settle his grievances.

View Full Text (PDF)

Perc Vol: 34
Perc Index: 165

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.05000 – Grievances

Employees engaged in protected activity by filing a grievance alleging that the employer was contracting out bargaining unit work.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.09000 – Participation in Board Process

Employees engaged in protected activity by filing an unfair practice charge.

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.01000 – In General; Standards

Charging party’s general allegation that the contractual grievance procedure “does not work” failed to establish that the employer interfered with employees’ right to file and pursue a grievance.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.01000 – In General

The employer’s transfer of work from charging parties to other employees did not constitute adverse action when the charge failed to allege facts showing that the charging parties suffered reduced hours or loss of pay or overtime opportunities as a result. A supervisor’s critical comments about an employee’s work performance did not constitute adverse action when they were not a reprimand and did not lead to discipline. Employer’s settlement of grievances without the grievant’s consent did not constitute adverse action absent allegations that the settlement had a negative impact on the grievant’s terms and conditions of employment.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.03000 – Warning Letters, Reprimands, Evaluations

A supervisor’s critical comments about an employee’s work performance did not constitute adverse action when they were not a reprimand and did not lead to discipline.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.05000 – Transfer, Promotion, or Demotion; Work Assignments and Opportunities

The employer’s transfer of work from charging parties to other employees did not constitute adverse action when the charge failed to allege facts showing that the charging parties suffered reduced hours or loss of pay or overtime opportunities as a result.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.12000 – Employer Statements or Conduct; Threats

Charge failed to allege facts establishing that a supervisor’s critical comments about an employee’s work performance were motivated by the employee’s filing of a grievance and unfair practice charge.


504.14000 – Other/In General

Charge failed to allege facts establishing that a supervisor’s critical comments about an employee’s work performance were motivated by the employee’s filing of a grievance and unfair practice charge. Charge also failed to establish that the employer settled grievances without the grievant’s consent because the grievant had filed other grievances and an unfair practice charge.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.03000 – Standing

Employees lacked standing to allege that the employer failed to bargain with their exclusive representative over contracting out bargaining unit work, failed to participate in impasse procedures in good faith, and violated and/or repudiated the contractual grievance procedure.

1405.00000 – GENERAL LEGAL PRINCIPLES; COLLATERAL ESTOPPEL; RES JUDICATA
1405.01000 – In General

A dismissal of an unfair practice charge based solely on a Board agent’s charge investigation does not have collateral estoppel effect in later PERB proceedings. Although the Board agent’s dismissal of an allegation based on the allegation having been dismissed as part of another unfair practice charge was no longer supported by PERB case law following Grossmont Union High School District (2010) PERB Decision No. 2126, the Board affirmed dismissal of the allegation because it did not state a violation of HEERA under any viable theory.