All notes for Subtopic 505.06000 – Inefficiency or Incompetence
|Decision||Description||PERC Vol.||PERC Index||Date|
* * * JUDICIAL APPEAL PENDING * * * State of California (Correctional Health Care Services)|
505.6000: EMPLOYER DISCRIMINATION; DEFENSES; Inefficiency or IncompetenceEmployer argued that the prime factors that disqualified employee for promotive position were his temperament, performance during the interview, work ethic, and work product. The record only showed employee being argumentative, or having conflicts with others, while performing union duties; the ALJ found no substance to allegations of employee creating workplace conflicts that did not implicate his union duties. Stewards, in fulfilling a union’s statutory duty to represent all bargaining unit employees, are often called on “to resolve divergent and often conflicting interests,” and in that role “may resort occasionally during representational meetings to intemperate speech or less than civil conduct.” (State of California (Department of Corrections & Rehabilitation) (2012) PERB Decision No. 2282-S, p. 7.) Because stewards’ representational duties often bring them into conflict with management, precedent affords them “significant latitude in their representational speech and conduct.” (Ibid.; see also Mount San Jacinto Community College District (2018) PERB Decision No. 2605, p. 7 [individual employee’s criticism of management or working conditions is protected activity when its purpose is to advance other employees’ interests or when it is a logical extension of group activity].) Employer did not identify specific facts the ALJ overlooked tending to show workplace conflicts unrelated to employee’s union duties. Moreover, interview panel members’ opinions about employee’s temperament were likely based at least in part on conflict arising from the inherently conflictual job of representing employees in complaints against management, as interview panel members and other decision-makers were aware of employee’s frequent and public representational activities on behalf of himself and others. more or view all topics or full text.
City of Davis|
505.6000: EMPLOYER DISCRIMINATION; DEFENSES; Inefficiency or IncompetenceEmployer established a legitimate, non-discriminatory reason for placing fire chief on performance improvement plan where chief was significantly deficient in training hours; was not timely completing logs and reports on station maintenance, incidents, and apparatus checkouts; and was not timely performing quarterly fire prevention inspections. Performance improvement plan was not a pretext for retaliation, despite that it was issued four days after the Fire Department gave union president his performance evaluation for the same alleged areas of needed improvement, when the terms of the PIP indicate that it served a different, if complementary, purpose to the evaluation, specifically by enumerating various future steps to remedy the past deficiencies indicated by the evaluation. The City’s failure to follow the terms of the PIP is not proof that the PIP served no clarification purpose, because the City’s diligence or lack thereof in enforcing the PIP does not, by itself, shed any light on the City’s motivation for issuing the PIP in the first place. more or view all topics or full text.
City of Alhambra|
505.6000: EMPLOYER DISCRIMINATION; DEFENSES; Inefficiency or IncompetenceEmployer proved it would have rejected employee on probation despite his protected activity based on the employee’s inability to get along with his supervisor and co-workers, and his apparent unwillingness to perform the required amount of work. more or view all topics or full text.
Baker Valley Unified School District|
505.6000: EMPLOYER DISCRIMINATION; DEFENSES; Inefficiency or IncompetenceEmployer failed to prove it would have nonrenewed teacher absent his protected activity because teacher’s personnel file contained no documentation of performance problems and the District superintendent’s testimony that he had spoken with the teacher about performance problems was not credible. more or view all topics or full text.
Oakland Unified School District|
505.6000: EMPLOYER DISCRIMINATION; DEFENSES; Inefficiency or IncompetenceThe District was unable to show that it would have non-reelected a probationary teacher regardless of his participation in protected activities, because there were discrepancies in the formal and informal evaluation forms offered to support the District’s position. Despite some troubling questions surrounding a teacher’s grading practices, the Board held that the District failed to carry its burden in showing that it would have chosen to non-reelect him regardless of his engagement in protected activities, because there were glaring inconsistencies underlying the District's decision to non-reelect him. more or view all topics or full text.
Bellevue Union Elementary School District|
505.6000: EMPLOYER DISCRIMINATION; DEFENSES; Inefficiency or IncompetenceMere lack of good cause for non-reelection of employees does not, by itself, support an inference of unlawful animus. District was within its rights to establish a policy of granting tenure only to those teachers receiving superior performance ratings, as opposed to merely satisfactory ones. Accordingly, District established that it would have not reelected the employees even absent any protected activity. more or view all topics or full text.
California State University, San Francisco|
505.6000: EMPLOYER DISCRIMINATION; DEFENSES; Inefficiency or IncompetenceBoard affirms ALJ determination of insufficient nexus where it is shown that employer terminated employment because of failure to perform adequately. more or view all topics or full text.
California State University, Long Beach|
505.6000: EMPLOYER DISCRIMINATION; DEFENSES; Inefficiency or IncompetenceAdverse actions against an employee due to dissatisfaction with her work, displeasure with her resistance to accepting supervisorial directions and criticism, and desire of supervisors to conduct the operation according to their own judgment. Adverse actions not due to employee's invoking aid of union. more or view all topics or full text.
Regents of the University of California (Berkeley)|
505.6000: EMPLOYER DISCRIMINATION; DEFENSES; Inefficiency or IncompetenceExclusive rep's showing of employee's inadequate performance was sufficient to rebut inference of unlawful conduct. more or view all topics or full text.
Los Angeles County Superintendent of Schools|
505.6000: EMPLOYER DISCRIMINATION; DEFENSES; Inefficiency or IncompetenceNo discrimination violation found where employer is able to demonstrate that it would have given union activist an inferior ranking even were it to discount her union activities, because her job performance was markedly inferior to that of other employees; p.8 more or view all topics or full text.