Decision 2494M – City of Davis

Issuance of a performance improvement plan that threatened future discipline if employee failed to meet performance standards is an adverse action. Performance improvement plan is an adverse action where there is no provision for removal of a PIP from an employee’s official personnel file.

Denial of same-day vacation request, thus compelling employee to use sick leave, is an adverse action, when the sick leave that the employee was compelled to use was therefore unavailable to be treated as additional time in service for the purpose of computing retirement benefits under a collective bargaining agreement.

Issuance of a performance improvement plan that threatened future discipline if employee failed to meet performance standards is an adverse action. Performance improvement plan is an adverse action where there is no provision for removal of a PIP from an employee’s official personnel file.

Discrimination not proved where City denied union president’s same-day vacation request when no employee was similarly situated to the union president.

Discrimination not proved where City denied union president’s same-day vacation request when no employee was similarly situated to the union president. The City departed from past practice or procedure when it issued a performance improvement plan that threatened employee with discipline if he did not meet the required standards listed therein, when the City did not normally include such disciplinary language in its PIPs.

An illegal motive may be inferred from the circumstances surrounding the adverse action. These may include anti-union animus exhibited by the employer or its agents; the pretextual nature of the ostensible justification; or other failure to establish a business justification. In such cases, the Board is free to draw inferences from all the circumstances, and need not accept an employer’s self-serving declarations of intent, even if they are uncontradicted.

Employer 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.

An illegal purpose harbored by a discriminating employer may be inferred from the circumstances surrounding the adverse action. These may include anti-union animus exhibited by the employer or its agents; the pretextual nature of the ostensible justification; or other failure to establish a business justification. In such cases, the Board is free to draw inferences from all the circumstances, and need not accept an employer’s self-serving declarations of intent, even if they are uncontradicted. The City’s interest in ensuring its firefighters are properly trained, regardless of the skill level and competence of the firefighters, is a legitimate one. Employer 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.

PERB has found an unlawful policy change, as opposed to an isolated breach of contract, where an employer unilaterally establishes a policy that represents a conscious or apparent reversal of a previous understanding. Where a contract violation also constituted an unfair practice, the employer had unilaterally changed a term and condition of employment by interpreting a contract term that would have waived the union’s right to negotiate the change, and that interpretation was deemed by PERB to be incorrect. An alleged violation of a contract will also be an unfair practice where the employer seeks to add new terms or impose an unjustified interpretation to the agreement, or if the employer denies a contractual obligation where it once acknowledged one. Where the parties simply dispute the meaning of contract language and there has been no repudiation of any prior mutual understanding or assertion that the union waived its right to negotiate a change in terms and conditions of employment, the dispute is more accurately characterized as an isolated breach of an agreement but not an unfair practice. The plain meaning of MOU requirement to determine vacation leave requests by considering “due regard for the wishes of the employee and particular regard for the needs of the service” does not prohibit the City from taking into account factors other than public emergencies when granting or denying same day vacation requests. The mere fact that an employer has not chosen to enforce its contractual rights in the past does not mean that, ipso facto, it is forever precluded from doing so.

The duration of the unilateral act does not necessarily determine whether there was a unilateral change. Nor does a temporary change immunize an employer from a finding that it has unlawfully changed working conditions. Nor does the fact that only one employee was immediately affected determine whether there was a unilateral change, as even a change to a vacant bargaining unit position may be negotiable. Under PERB precedent, even if an employer’s action affects only one employee, it nonetheless has a generalized effect or continuing impact on the unit members’ terms and conditions of employment if based on the employer’s assertion of a contractual or other legal right to act unilaterally. Employer may not rely on the practice in departments outside of the bargaining unit to establish a binding past practice permitting it to unilaterally implement a negotiable term or condition of employment. What occurs in other departments with other bargaining units is irrelevant to working conditions in the bargaining unit in question. When there is no evidence that the union knew about the use of performance improvement plans in other departments outside of the bargaining unit in question, it cannot be said that this was a mutually accepted past practice.

A performance improvement plan touches on two negotiable subjects—procedures for evaluation and disciplinary procedures. PERB has determined that both are within the scope of representation. Where employer introduces a performance improvement plan as a new disciplinary instrument or procedure, it must first negotiate with exclusive representative because a performance improvement plan threatens potential discipline and represents a change in the evaluation procedure, both matters within the scope of representation.

A performance improvement plan touches on two negotiable subjects—procedures for evaluation and disciplinary procedures. PERB has determined that both are within the scope of representation. Where employer introduces a performance improvement plan as a new disciplinary instrument or procedure, it must first negotiate with exclusive representative because a performance improvement plan threatens potential discipline and represents a change in the evaluation procedure, both matters within the scope of representation.

A performance improvement plan touches on two negotiable subjects—procedures for evaluation and disciplinary procedures. PERB has determined that both are within the scope of representation. Where employer introduces a performance improvement plan as a new disciplinary instrument or procedure, it must first negotiate with exclusive representative because a performance improvement plan threatens potential discipline and represents a change in the evaluation procedure, both matters within the scope of representation.

Employer that unilaterally implemented a performance improvement plan procedure was ordered to cease and desist implementing the policy of issuing such plans and to negotiate upon request with the exclusive representative over the use of performance improvement plans.

Employer that unilaterally implemented a performance improvement plan procedure was ordered to cease and desist implementing the policy of issuing such plans and to negotiate upon request with the exclusive representative over the use of performance improvement plans. Employer ordered to rescind a performance improvement plan that was implemented without negotiating with exclusive representative.

Employer ordered to rescind a performance improvement plan that was implemented without negotiating with exclusive representative.

Where the parties simply dispute the meaning of contract language and there has been no repudiation of any prior mutual understanding or assertion that the union waived its right to negotiate a change in terms and conditions of employment, the dispute is more accurately characterized as an isolated breach of an agreement that is not also a violation of MMBA.

Employer may not rely on the practice in departments outside of the bargaining unit to establish a binding past practice permitting it to unilaterally implement a negotiable term or condition of employment. What occurs in other departments with other bargaining units is irrelevant to working conditions in the bargaining unit in question. When there is no evidence that the union knew about the use of performance improvement plans in other departments outside of the bargaining unit in question, it cannot be said that this was a mutually accepted past practice.