City of Davis (PERB 2494M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DAVIS PROFESSIONAL FIREFIGHTERS
ASSOCIATION, LOCAL 3494,
Charging Party,
v.
CITY OF DAVIS,
Respondent.
Case No. SA-CE-833-M
PERB Decision No. 2494-M
June 30, 2016
Appearances: Carroll, Burdick & McDonough, by Gary M. Messing, Jason H. Jasmine, and
Lina Balciunas Cockrell, Attorneys, for Davis Professional Firefighters Association, Local
3494; Best Best & Krieger, by Stacy N. Sheston and Kimberly E. Hood, Attorneys, for City of
Davis
Before Martinez, Chair; Winslow and Banks, Members.
DECISION
WINSLOW, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions by Davis Professional Firefighters Association, Local 3494
(Local 3494) to a proposed decision by an administrative law judge (ALJ) dismissing an unfair
practice complaint against the City of Davis (City). The complaint alleged that the City
discriminated and retaliated against Fire Captain, Local 3494 President and Chief Negotiator
Robert “Bobby” Weist (Weist) by denying his same-day request for vacation leave on
March 13, 2013, and issuing him a performance improvement plan (PIP) on April 9, 2013.
The complaint also alleged that the City unilaterally changed terms and conditions of
employment by issuing the PIP. These acts allegedly violated the Meyers-Milias-Brown Act

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(MMBA)1 sections 3503, 3505, 3506, 3506.5, subdivisions (a), (b), and (c), and 3509,
subdivision (b), and PERB Regulation 32603, subdivisions (a), (b), and (c).2 The complaint
also alleged derivative violations of interference with and denial of Local 3494’s right to
represent bargaining unit employees and interference with unit employees’ right to be
represented by Local 3494.
After notice of formal hearing issued, Local 3494 moved to amend the complaint to
allege that the City unilaterally changed its policy regarding vacation leave of less than 24
hours by denying Weist’s same-day vacation request. On July 21, 2014 the motion was
granted and an amended complaint issued.
Following a two-day hearing, the ALJ dismissed both the unilateral change and
discrimination/retaliation allegations concerning Weist’s same-day vacation request and the
City’s issuance of a PIP to Weist.
The Board has reviewed the entire record in this matter, including the hearing transcript
and exhibits, Local 3494’s exceptions and supporting brief, and the City’s response. We
affirm the ALJ’s dismissal of the retaliation allegation concerning the same-day vacation
request and the City’s issuance of a PIP to Weist, as well as the unilateral change allegation
concerning the same-day vacation request, although for somewhat different reasons than the
ALJ, as further explained below. However, we reverse the ALJ’s dismissal of the unilateral
change allegation concerning the City’s issuance of a PIP to Weist, as further explained below.
1 Unless otherwise indicated, all statutory references are to the Government Code. The
MMBA is codified at section 3500 et seq.
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
2

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FACTUAL SUMMARY
Jurisdiction
The City is a public agency within the meaning of MMBA section 3501, subdivision
(c). Local 3494 is an exclusive representative of an appropriate unit of employees under PERB
Regulation 32016, subdivision (b), and Weist is a public employee within PERB jurisdiction
under MMBA section 3501, subdivision (d).
Background
The fire department is a 24-hour-per-day, 7-day-per-week operation, with shifts A, B,
and C. Nine crews/engine companies work at three fire stations (31-downtown, 32, 33). The
fire bargaining unit includes firefighter I and II, and fire captain. Division chiefs, deputy
chief(s), and fire chief are not represented.
Weist has been a full-time firefighter with the City since March 11, 1985, rising
through the ranks to firefighter II, and ultimately to fire captain in 2007. He has been Local
3494 president for 27 years, and also served as vice president and a member of the Local 3494
board. Since 1986, Weist has been on the Local 3494 bargaining team and has been lead
negotiator since the 1990s for five to ten multiple-year contracts.3 He has filed five to ten
grievances as Local 3494 president.
In 2012, Shawn Kinney (Kinney) and Bruce Fry (Fry) received promotions to division
chief. During the events relevant to this case, Kinney was training officer/chief and supervised
B shift at fire station 31-downtown, while Fry was administrative chief, supervising Weist and
his crew on shift A at station 31-downtown.
3 Weist is also a vice president of the California Professional Firefighters Association,
staff representative for International Association of Firefighters, and field representative for
Carroll, Burdick & McDonough, negotiating contracts and handling grievances.
3

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Rose Conroy (Conroy), the last full-time City fire chief, retired in November 2009, but
worked as an annuitant until mid-February 2010. Several interim fire chiefs who were retired
annuitants from other fire departments, followed for two years. In early 2013, City Police
Chief Landy Black (Black) and Assistant Chief Steve Pierce (Pierce) were assigned to lead a
combined public safety department, with Black responsible for daily operations and Pierce
overseeing administrative functions of police and fire. In January 2014, a management merger
of the University of California, Davis (UCD) and City fire departments took effect, and UCD
Fire Chief Nathan Trauernicht (Trauernicht) became chief.
In April 2013, the City council approved fire crew size reductions effective July 1. City
fire department crews were reduced from four (one fire captain, three firefighters) to three (one
fire captain, two firefighters), decreasing the bargaining unit from 46 to 32 employees. Weist
had been publically critical of the proposed reductions for eight to nine months before the City
council’s approval.
The 2009-2012 memorandum of understanding (MOU) for the fire bargaining unit
expired June 30, 2012. Negotiations for a successor agreement were unsuccessful, and
impasse was declared in March or April 2013.4
Weist’s Protected Activity
In addition to holding leadership positions, handling grievances, and serving on the
bargaining team for Local 3494, Weist also protested to the City council on behalf of Local
3494 concerning the crew size reductions and the combining of the police and fire departments
into a single public safety department. Weist asserted to the City manager and City council
4 Agreement continued to elude the parties despite mediation and factfinding. The City
imposed its last, best and final offer (LBFO) in December, 2013.
4

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that general law cities required a fire chief to head the fire department, relying on Government
Code section 38611.
In April or May 2013, Local 3494 took a vote of no-confidence in Chiefs Black and
Pierce based on the crew reductions. However, the City did not learn of this vote until July 15,
2013, when Local 3494 sent a memorandum to City Hall signed by all unit employees,
including Weist, expressing no-confidence.
March 13, 2013 Denial of Same Day Vacation Leave
Section 10, Annual Vacation Leave, of the expired 2009-2012 MOU governed vacation
accrual, scheduling, and the maximum number of personnel who may take leave per shift.
Section 10 F.1, Scheduling and Carryover, provides:
The times during the year when an employee may take vacation
shall be determined by the Fire Chief with due regard for the
wishes of the employee and particular regard for the needs of the
service.
Weist and Conroy testified to their belief that this language means the fire chief can
deny or postpone previously approved vacations only in emergencies.5 Weist explained that it
is rollover language from prior contracts.
Employees earn vacation days based on years of service. There are two master
selection periods each year in which employees request vacation by seniority. After the second
period, requests for scheduled vacation of less than 24 hours must be submitted no sooner than
14 days before the proposed date. Two firefighters and one fire captain per shift are allowed
5 Conroy served on bargaining teams and was Local 3494 secretary-treasurer for several
terms while in the bargaining unit.
5

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vacation at the same time.6 Captains and acting captains are authorized to approve vacation
and forward the paperwork to the fire chief/designee.
During the 16 years Conroy was fire chief, same-day vacation leave requests for partial
day absences could exceed the contractual maximums in non-emergency situations upon timely
submission of the required fire department form. Same day vacation requests were never
denied, according to Conroy.
The expired 2009-2012 MOU was silent on the subject of employee training, but
Section 01-01 of the City Fire Department Policy and Procedures,7 issued by Conroy on
May 16, 2001, requires a minimum of 20 hours per month in-service training (IST) to be
completed by company officers/fire captains, and assigned personnel/firefighters. The policy
is in a department operations manual binder at each fire station. According to Conroy, on-duty
fire personnel were expected and required to attend scheduled training.
The City fire department is in the West Valley Yolo County consortium with four other
departments.8 Division/Training Chief Kinney worked with the UCD training chief to develop
and coordinate specialized training in movement, evolutions,9 and use of large equipment for
the multiple agencies at a Woodland hospital before it was demolished. Seven evening
6 Section 10(P)(1) of the expired MOU states: “No more than two Firefighters and one
Captain per shift shall be permitted on vacation at any one time.”
7 Section 21 of the expired MOU states: “All items not governed by this agreement, but
which are subject to the obligation to Meet and Confer, shall be regulated by the existing CITY
Personnel Resolution, Fire Department Operations Manual and other existing regulations and
practices.”
8 Those other departments are the cities of West Sacramento, Woodland, UCD, and
California Office of Emergency Services (OES).
9 Kinney described “evolutions” as “a series of exercises that accomplish the job.”
(Reporter’s Transcript (R.T.) Vol. I, 174:22-23)
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sessions were scheduled from 5:00 p.m. to 8:00 p.m. on March 10 through 22, 2013. City fire
personnel attending this training were notified one week in advance. Weist and his crew were
scheduled for training on March 13.
Weist reported for his 24-hour shift at 8:00 a.m. on March 13, 2013. He was having
trouble breathing and was out of his inhaler medication, so he completed a same-day vacation
leave request to go to the doctor that afternoon. Weist was the Station 31-downtown fire
captain in charge of scheduling for all three fire stations on A Shift, and approved his own
same-day vacation request after determining no other captain would be absent. He put the
completed request form in Chief Kinney’s mailbox before noon, seeking to leave at 3:30 p.m.
According to Weist, he did not ask to use sick leave because his accrued vacation hours “were
higher than they should have been” and “[t]hey either tell you when you can take off or they
just pay you for them . . .” (R.T. Vol. I, p. 47.) Weist testified that when he submitted the
vacation request, he was not aware that he and his crew were scheduled for the multi-agency
training that night.
Kinney received Weist’s same day vacation request after 3:00 p.m. on March 13. He
had heard Weist loudly complaining about the training as “BS” earlier that day.10 Kinney
reviewed the 2009-2012 MOU, and conferred with Pierce about Weist’s vacation request.
Kinney expressed to Pierce that he (Kinney) did not think they should grant the request
because the consortium training was an important and unique opportunity, and Weist and his
crew were deficient in training. After discussing whether the MOU allowed denial of the
request, and whether Weist and his crew could be rescheduled for another training session,
Pierce agreed with Kinney’s recommendation to deny Weist’s vacation request.
10 Weist admitted that he probably complained about the training once he knew about it.
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8
When Kinney informed Weist that his vacation request was denied, Weist told him that
he was sick and had to go to the doctor. Kinney told Weist he should go home if he was sick.
After arranging for coverage, Weist left the station, went to the doctor, and obtained an inhaler
and medical note. Weist’s leave was covered by his sick leave, so he lost no pay or benefits
for his March 13 absence.
The March 13, 2013, consortium training was cancelled because of a fire in Woodland
to which City fire station 32 crew responded and rendered assistance. One of Weist’s crew
attended a subsequent training session. Sixteen City fire department employees did not attend
any of the seven multi-agency training sessions, while 24 participated.
As of March 13, 2013, Weist had completed 71.5 of the required 120 IST training hours
as of the six month/half year report.11
Kinney and Pierce knew that Weist was the long-time Local 3494 president, but both
denied that Weist’s activities as a union officer or his advocacy on issues played any part in the
recommendation, discussions, or decision to deny his same-day vacation request on March 13,
2013.12
No other City fire department employee requested same day vacation leave on a
scheduled consortium training day in March 2013.13
11 Weist testified that in March 2013, he did not know 20 IST hours were required each
month. However, Conroy testified that company officers promoted after May 2001, including
Weist, were expected to be aware of training requirements because the May 2001 policy
changes were distributed and discussed at monthly officers meetings.
12 Pierce was not part of any discussions or decisions on reducing the fire department
crew size, management merger with UCD, or contract negotiations between the City and fire
bargaining unit.
13 Weist later submitted a same-day vacation request on a day another consortium
training was scheduled and held at UCD. Fry approved it.

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9
April 9, 2013 PIP
The MOU contains no provision regarding performance evaluations. However, City
Performance Evaluation/Development Policy section 5.04, incorporated into the MOU by
Article 21, requires that each employee be evaluated at least annually under City-
wide/universal and position performance standards. The policy applies to all City departments.
Prior to April 2013, Weist’s last performance evaluation was in March 2009. In early
2013, the City manager convened a meeting and directed each department head to ensure
employee performance evaluations were current. Melissa Chaney (Chaney), the City’s director
of human resources, provided a list of employee names and due dates to each department head
at the meeting. Pierce and Fry developed a schedule for evaluation due dates of City fire
department personnel. Fry distributed the employee evaluation due dates each month to fire
captains, division chiefs, and to Pierce.
After supervising Weist and his crew for four to five months, Fry prepared a
performance evaluation for Weist for the period covering March 11, 2012 to March 11, 2013.
Fry gave a draft to Pierce who provided feedback. When they discussed administrative
functions needing improvement in Weist’s performance as fire captain,14 Pierce recommended
that Fry issue a PIP with the evaluation. Fry had not seen a PIP before, so Pierce provided
examples and feedback.
14 These included completion of 20 IST hours each month by Weist and his crew;
timely completion of logs and reports on station maintenance, incidents, and apparatus
checkouts; and timely performance of quarterly fire prevention inspections.

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10
On April 5, 2013, Fry gave Weist his annual evaluation and they discussed it.15 The
evaluation stated that Fry and Weist would discuss and develop a PIP to improve deficient
areas to an acceptable standard.
Fry gave Weist a PIP memorandum entitled “Notification of Unacceptable
Performance/Opportunity to Improve,” on April 9, 2013 and they discussed it. The
memorandum identified seven standards expected of a fire captain that, according to the
memorandum, Weist did not meet.16 According to the PIP, Weist would receive written
monthly evaluations for the next six months. Fry would then assess his overall performance.
The PIP would end if all standards were met; if not, it would be extended. Weist was required
to meet all fire captain performance standards for one year. The PIP also stated that if he
failed to meet those standards, a recommendation for discipline would result.
Fry did not prepare any monthly written evaluations of Weist during the first six
months of the PIP period or anytime thereafter, although he did discuss performance areas with
Weist and sent e-mails to him. Fry believed that Weist was making progress. Pierce discussed
15 According to the evaluation, as of that date, Weist had completed 89 of the 240
required IST hours; two of his crew completed 161 and 184.25 hours; one firefighter exceeded
it with 292 hours. Daily logs were not completed twice in March 2013; there were limited
entries in all areas, and no entries on others. Incident reports were open back to February 23.
There were no March apparatus checkouts. No fire inspections were completed in two
quarters; overall completion was 31 percent. Station maintenance and appearance needed
improvement.
16 These standards included: twenty training hours each month completed by Weist and
his crew, entered on the daily log; complete accurate daily logs of personnel and apparatus;
complete checkoff forms that all equipment was checked and maintained; complete assigned
fire prevention inspections before the end of each quarter and sign inspection directory;
complete daily cleaning; complete employee evaluations by due dates; and review City and
inter-department e-mails at start and end of shift.

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Weist’s performance with Fry each month until Pierce left the fire department at the end of
2013. Each time, Fry reported improvement.17
On May 19, 2014, Fry gave Weist his annual evaluation covering the period of March
11, 2013 to March 11, 2014, and they discussed it. Weist was rated as meeting universal
performance standards in overall performance. He had met three of four position performance
standards, and had improved in timely completion of all reports and fire prevention
inspections. His crew met the fire department training goals, but his own training hours still
needed improvement.
On May 27, 2014, Trauernicht notified Weist that the PIP was terminated based on his
current evaluation showing acceptable performance as a fire captain. Trauernicht noted the
areas needing improvement, but expressed confidence that with Weist’s commitment to
excellence, those areas would be resolved.
No PIPs have been issued to fire department bargaining unit employees except Weist.
Conroy did not know what a PIP was. Chaney testified that PIPs were used in other City
departments. Their purpose was to give information, direction and feedback to an employee on
the specific areas where they need improvement, and establish measurable goals that can be
achieved during a set period of time. Performance evaluations, PIPs, and follow-up documents
are placed in the employee’s official personnel file (OPF) maintained by the human resources
division. There is no provision in the City Personnel Rules or expired MOU limiting the
17 At the end of 2013, Fry sent Pierce a draft memo/e-mail recommending extension of
Weist’s PIP. Between Thanksgiving and Christmas, Pierce, Fry, and incoming Trauernicht
discussed whether to extend or end the PIP. About the same time, Fry told Weist that they
(Pierce and Black) wanted the PIP to go away; Weist responded “it won’t do anything”
because the instant unfair practice charge had been filed. The draft recommending the
extension of the PIP was never given to Weist.
11

length of time that performance evaluations and PIPs remain in the OPF, or for their removal
from the OPF.
Chaney learned about the PIP issued to Weist when the human resources division
received the 2013 evaluation and the PIP for his OPF shortly after the documents were given to
Weist. Referring to the threat of discipline in the PIP, Chaney testified that “A PIP itself is not
disciplinary. The issue I have had with this PIP was the language in there. That’s not normal
language for a regular PIP.” (R.T. Vol. II, p. 158). There have been no PIPs issued to fire
department employees before or after Weist’s.
It is undisputed that the City did not provide Local 3494 written notice of and an
opportunity to bargain over vacation leave policy or performance evaluation procedures before
it denied Weist’s vacation leave on March 13, 2013 or issued him a PIP on April 9.
RELEVANT MOU PROVISIONS
The parties’ expired MOU was effective December 16, 2009 to June 30, 2012. Section
10(F)(1), “Scheduling and Carryover,” provides:
The times during the year when an employee may take vacation
shall be determined by the Fire Chief with due regard for the
wishes of the employee and particular regard for the needs of the
service.
Section 10(P)(1) states:
No more than two Firefighters and one Captain per shift shall be
permitted on vacation at any one time.
Section 10(S), “Scheduling Vacation After Selection Period,” states in relevant part:
Individuals who wish to select additional vacation after the
second selection period, may do so providing they meet the
following conditions:
[¶ . . .¶]
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2. Request for scheduling vacation of 24 hours or less shall be
submitted no sooner than 14 days before the proposed vacation
day.
13
There are no provisions in the MOU or the incorporated City policies regarding PIPs.
PROPOSED DECISION
The ALJ framed the issues for resolution as follows:
(1) 	Did the City discriminate or retaliate against Weist by
denying his same day vacation leave request on March 13 and
issuing him a PIP on April 9, 2013?
(2) 	Did the City make unlawful unilateral changes in policy or
practice in its vacation leave and performance evaluation
procedures when it denied Weist’s same day vacation leave
request on March 13 and issued him a PIP on April 9, 2013?
Discrimination/Retaliation
Applying Novato Unified School District (1982) PERB Decision No. 210 (Novato) and
County of Riverside (2011) PERB Decision No. 2184-M,18 the ALJ determined that it was
undisputed that Weist had engaged in protected activities for 27 years as Local 3494’s
president and lead negotiator, and that the City was well aware of these activities.
However, the ALJ considered whether Weist had suffered any adverse action to be a
closer question. In her view, the denial of same-day vacation leave and the issuance of the PIP
were both one-time, isolated occurrences and/or of limited duration. In support of this
conclusion, the ALJ noted that Weist was not required to attend the multi-agency training after
his vacation request was denied, but was authorized to use sick leave and did not lose any pay.
18 To demonstrate a violation of MMBA section 3506 and PERB Regulation 32603(a) a
charging party must show: (1) the employee exercised rights under the MMBA; (2) the
employer had knowledge of the exercise of those rights; (3) the employer imposed or
threatened to impose reprisals, discriminated or threatened to discriminate, or otherwise
interfered with, restrained or coerced the employee because of the exercise of those guaranteed
rights.

Recently, the City approved another same day vacation request submitted by Weist on a day
consortium training was scheduled. The PIP was terminated in May 2014 by the new fire chief
after being in effect less than a year. According to the ALJ, whether either or both actions had
any impact, much less an adverse one, on Weist’s employment was “debatable.”
Nevertheless, the ALJ continued with the Novato analysis and concluded ultimately that
even if Local 3494 had established a prima facie case for retaliation, the City had met its
affirmative defense by demonstrating that it had acted because of alternative non-
discriminatory reasons. The ALJ relied on the fact that both Kinney and Pierce concurred in
denying Weist’s same day vacation leave request because the March 2013 consortium training
would be valuable for him and his crew, and Weist and his crew had not completed required
IST training hours.
With respect to the issuance of the PIP, the ALJ noted that Pierce (who had not
participated in any City decisions on issues where Weist advocated for Local 3494) suggested
that the PIP be given to Weist after Pierce reviewed his alleged performance deficiencies that
were documented in his annual evaluation. No other PIPs were issued to other fire captains
because none exhibited performance problems. According to the ALJ, both actions would
have occurred regardless of Weist’s protected activity, and she therefore dismissed these
claims.
Unilateral Change/Past Practice
The ALJ correctly cited PERB’s test for determining whether an employer’s unilateral
change in terms and conditions of employment has violated the MMBA.
According to the ALJ, both the denial of Weist’s same-day vacation request and the
issuance of the PIP were one-time occurrences which were not repeated and in the case of the
14

PIP, was cancelled. They were therefore, in the ALJ’s opinion, isolated breaches of the MOU
or practice that did not have a generalized effect or continuing impact on terms and conditions
of employment. The ALJ also noted that although PIPs had never been used by the Fire
Department, they were routinely used in other bargaining units pursuant to the City’s
performance evaluation policy. For these reasons, the ALJ dismissed the unilateral change
allegations.
LOCAL 3494’S EXCEPTIONS
Local 3494 excepts to the ALJ’s dismissal of both the unilateral change and
discrimination/retaliation allegations concerning Weist’s same-day vacation request and the
City’s issuance of a PIP to Weist, and to various factual findings on which the ALJ’s legal
conclusions are based.
Unilateral Changes
Local 3494 excepts to the ALJ’s conclusion that it failed to establish that the City made
unlawful unilateral changes in either the same-day vacation policy or by issuing a PIP to
Weist. Local 3494 also excepts to the ALJ’s conclusion that both of these incidents were one-
time occurrences and therefore were isolated breaches of the contract that did not have a
generalized effect or continuing impact on employment conditions. Relying on Hacienda-La
Puente Unified School District (1997) PERB Decision No. 1186 (Hacienda), Local 3494
argues that the City took both actions based on its belief that it had a right to do so without
negotiating, and that it will use that justification in the future. According to Local 3494, the
City asserted that Section 10(F)(1) of the MOU gave the City discretion to deny Weist his
same-day vacation under the circumstances of March 13, 2013. The City also claimed that it
had a right to issue PIPs pursuant to the City’s performance evaluation policy and because PIPs
15

are routinely used by other City departments. According to Local 3494, the City’s actions
reflect policy changes undiminished by the fact that only one employee was affected in this
instance.
To demonstrate the past practice regarding same-day vacation requests, Local 3494
points to the testimony of Conroy and Weist that the fire chief has exercised his or her
discretion to deny same-day vacation requests only during times of public emergency, a policy
that was admitted by the City, according to Local 3494. With respect to the PIP, Local 3494
points to the fact that the Fire Department never issued a PIP before or since delivering one to
Weist. Moreover, the City admitted that the PIP issued to Weist differed from PIPs issued in
other City departments because its language threatened punitive action, indicating a unilateral
change in past practice, according to Local 3494.
Discrimination
Local 3494 excepts to the ALJ’s conclusion that denying Weist’s same-day vacation
request and issuing the PIP to Weist had only a “debatable” impact on Weist’s employment as
a City Fire Captain. (Exceptions, p. 5.) Local 3494 excepts to the ALJ’s finding that no
evidence existed of Pierce’s anti-union animus towards Weist, and that Pierce did not
participate in any City decisions on issues where Weist advocated for Local 3494. Local 3494
argues that Pierce ordered or sanctioned Kinney and Fry’s denial of Weist’s same-day vacation
request, despite Pierce’s knowledge that other employees were behind in their training hours
and his lack of confirmation that those employees would be attending the March 2013
consortium training. Local 3494 also argues that Pierce knew of Weist’s outspoken challenge
to the authority of the police department to run the fire department.
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17
With regard to the denial of Weist’s same-day vacation request, Local 3494 excepts to
the ALJ’s finding that the denial was not adverse because the City eventually authorized Weist
to use sick leave for the day in question. According to Local 3494, the denial of Weist’s
request took away employees’ assurance that they could leave during a shift for any reason, as
long as there was no public emergency.
With regard to the PIP, Local 3494 argues that Pierce ordered or sanctioned Fry’s
issuance of the PIP, which it argues constitutes “punitive action” under Fireman Bill of Rights
(FBOR) Government Code sections 3251(c)19 and 325320 because the PIP threatens future
disciplinary action. Local 3494 also argues that the PIP’s placement in Weist’s personnel file
could impact Weist’s merit increases, subsequent evaluations, and promotional opportunities.
CITY’S RESPONSE
In its response, the City asserts that the proposed decision properly dismissed the unfair
practice charge and complaint. The City avers that its denial of Weist’s same-day vacation
request was not an unfair practice because it was consistent with the MOU, which reserves to
the City discretion to grant or deny leave in consideration for the interests of the City.
According to the City, Local 3494’s dispute over the interpretation of the MOU’s vacation-
leave policy is no more than a contract interpretation dispute subject to the MOU’s grievance
process, not an unfair practice violation.
19 Government code section 3251, subdivision (c) states in relevant part: “‘Punitive
action’ means any action that may lead to dismissal, demotion, suspension, reduction in salary,
written reprimand, or transfer for purposes of punishment.”
20 Government code section 3253 enumerates the conditions under which interrogations
shall be conducted when any firefighter is under investigation and subjected to interrogation by
his or her commanding officer, or any other member designated by the employing department
or licensing or certifying agency, that could lead to punitive action.

The City also asserts that its use of a PIP is an established City-wide tool utilized in
conjunction with performance reviews to aide employees in correcting performance, not an
impermissible deviation from past practice. The City also contends that it did not retaliate
against Weist for his protected activities, and that it would have taken the same action
regardless of Weist’s protected activities.
DISCUSSION
A. 	Unilateral Change
In Fairfield-Suisun Unified School District (2012) PERB Decision No. 2262, PERB
described the elements of an unlawful unilateral action:
To prove up a unilateral change, the charging party must establish
that: (1) the employer took action to change policy; (2) the
change in policy concerns a matter within the scope of
representation; (3) the action was taken without giving the
exclusive representative notice or opportunity to bargain over the
change; (4) the action had a generalized effect or continuing
impact on terms and conditions of employment.
(Id. at p. 9.)
An established policy may be embodied in the terms of the parties’ MOU or collective
bargaining agreement. (Grant Joint Union High School District (1982) PERB Decision
No. 196, p. 8.) Although PERB is without authority to enforce the terms of a negotiated
agreement, it may interpret contract language as necessary to decide the alleged unfair
practices, applying traditional rules of contract interpretation. (See, e.g., County of Sonoma
(2011) PERB Decision No. 2173-M, p. 16 [“Where contractual language is clear and
unambiguous, it is unnecessary to go beyond the plain language of the contract itself to
ascertain its meaning”].)
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Where contractual language is silent or ambiguous, however, past practice or
bargaining history may embody the established policy. (County of Riverside (2013) PERB
Decision No. 2307-M, p. 20; Rio Hondo Community College District (1982) PERB Decision
No. 279, p. 17.) To establish the existence of a binding past practice, it must be shown that the
purported practice is (1) unequivocal, (2) clearly enunciated and acted upon; and (3) readily
ascertainable over a reasonable period of time as a fixed and established practice accepted by
both parties. (Trustees of the California State University (2007) PERB Decision No. 1886-H;
Riverside Sheriff’s Association v. County of Riverside (2003) 106 Cal.App.4th 1285; Hacienda,
supra, PERB Decision No. 1186.) It must be “regular and consistent” or “historic and
accepted.” (Desert Sands Unified School District (2010) PERB Decision No. 2092; County of
Placer (2004) PERB Decision No. 1630-M.)
An employer does not make an unlawful unilateral change if its actions conform to the
terms of the parties’ agreement. (Marysville Joint Unified School District (1983) PERB
Decision No. 314 (Marysville); County of Ventura (Office of Agricultural Commissioner)
(2011) PERB Decision No. 2227-M, warning letter at p. 2.) The mere fact that an employer
has chosen not to enforce its contractual rights does not mean it is forever precluded from
doing so. (Marysville, at p. 10; County of Placer, supra, PERB Decision No. 1630-M, p. 5.)
Given the limitation of Government Code section 3541.5, subdivision (b) of PERB’s
authority to enforce contracts,21 the Board and courts have established in numerous cases that
an alleged unlawful change must be more than an isolated breach of contract or practice, but
instead must constitute a change of policy that had a generalized effect or continuing impact
21 Government Code section 3541.5, subdivision (b) provides: “The Board shall not
have the authority to enforce agreements between the parties, and shall not issue a complaint
on any charge based on alleged violation of any agreement that would not also constitute an
unfair practice under this chapter.”
19

upon terms and conditions of employment of bargaining unit members. (Grant, supra, PERB
Decision No. 196); County of Riverside, supra, PERB Decision No. 2307-M, p. 18; City of
Riverside (2009) PERB Decision No. 2027-M, p. 9; Vernon Fire Fighters v. City of Vernon
(1980) 107 Cal.App.3d 802; San Joaquin County Employees Assn. v. City of Stockton (1984)
161 Cal.App.3d 813.)
Because the proposed decision in this case does not adequately distinguish between
conduct with a generalized effect and continuing impact and an isolated breach of contract, we
review some of our cases in an attempt to clarify that distinction.
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. (Regents of the University of California (2014)
PERB Decision No. 2398-H, p. 31 [employer imposed its own interpretation on side letter
intended to distinguish criteria for designating instructors as lecturers or adjunct professors];
Regents of the University of California (1991) PERB Decision No. 907-H [unilateral creation of
a hiring ratio not based on agreed-upon criteria constituted an unlawful alteration of terms of
agreement]; Regents of the University of California (Davis) (2010) PERB Decision No. 2101-H
[employer’s interpretation of contract provision regarding transfer of unit work that was overly
narrow and contrary to the intended meaning of the contract was unlawful contract
repudiation].)
In Moreno Valley Unified School District (1995) PERB Decision No. 1106, PERB
found that an employer unilaterally changed policy, rather than merely breaching an
agreement, when it involuntarily and permanently changed the shift of two janitorial
employees. Involuntary shift changes had never occurred before, and the employer defended
20

its actions based on its interpretation of the management rights clause in the contract. PERB
rejected the employer’s claim that the management rights clause waived the union’s right to
bargain over the shift change. (Id. at proposed dec. p. 13.) In a similar vein, PERB found that
a unilateral change in an employee’s shift violated the duty to bargain in good faith in
Hacienda, supra, PERB Decision No. 1186. In rejecting the employer’s defense that the
change was merely an isolated breach of contract, the Board’s majority opinion stated:
We agree with this assessment, [that the district’s actions had a
generalized and continuing effect on terms and conditions of
employment] since the District took this action based on the
belief that it had a contractual right to make shift changes without
negotiating, and there is no evidence to suggest that the District
would have refrained from changing more employees’ shifts
pursuant to the management rights clause.
(Id. at p. 4.) Chairman Caffrey’s concurrence adds a helpful observation to this conclusion:
The District’s action was based on its incorrect belief that the
management rights clause . . . gave it the right to unilaterally
change the shifts of bargaining unit members. While only one
employee’s shift was unilaterally changed, . . . it is clear that the
change in policy has the generalized and continuing impact on
bargaining unit members of exposing them to similar unilateral
shift changes.
(Id. at p. 10, emphasis added.)
In the cases where PERB determined that the 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. In Hacienda, supra, PERB
Decision No. 1186 and Moreno Valley, supra, PERB Decision No. 1106 the employer had
never before changed shifts involuntarily, and had not previously asserted that the management
rights clause gave it the right to do so. Similarly, in each of the Regents cases, the employer
21

determined unilaterally that it would impose a new interpretation of a written agreement
without negotiating with the union. See also County of Riverside (2003) PERB Decision
No. 1577-M, holding that the employer’s assertion that the issue of promotions was not
grievable had a generalized and continuing effect on working conditions, especially where the
employer had previously permitted a grievance over a promotion denial. These actions cannot
be described as mere isolated breaches of the contract.
These cases differ from those in which PERB has determined that the dispute is an
isolated contract breach. For example, in Eureka City School District (1985) PERB Decision
No. 528, the Board held that a dispute over whether a union security clause applied to
temporary teachers was not a change in policy with a generalized effect or continuing impact.
In explaining the difference between a policy change with a generalized effect or continuing
impact versus a dispute over contract interpretation, the Board stated:
The contract language is ambiguous with respect to temporary
employees, and no evidence was introduced . . . which would
definitively demonstrate a mutual understanding or intent of the
parties. These circumstances do not reflect any policy change,
and thus do not constitute an independent violation of the Act.
The District did not clearly repudiate any prior understanding,
agreement, or practice, but merely interpreted the meaning of
contract language in a reasonable way, albeit differently than did
the Association. Thus, the District’s action did not undermine the
basic policy underlying the Act, which is the fostering of the
negotiation process.
(Id. at pp. 5-6.)
Grant, supra, PERB Decision No. 196, also illustrates the difference between a change
in policy with a generalized effect and an isolated breach of contract. Three contractual
provisions were in dispute in that case: transfer rights, contingency pay, and continuation of
benefits after layoff. The transfer article provided that vacancies shall be open to all
22

bargaining unit members. After posting several vacancies in accordance with the agreement,
the district began posting a notice informing unit members that they may not apply for
vacancies if they have already been notified of a new assignment for the following school year.
PERB determined that this action was a change in policy because it directly conflicted with the
unambiguous terms of the contract and had a continuing impact on the bargaining unit by
excluding certain teachers from consideration for vacancies.
In contrast, the other two disputes in Grant, supra, PERB Decision No. 196 did not rise
to a change in policy with a generalized effect or continuing impact on working conditions.
The contingency pay article provided that after a review of non-categorical and non-restricted
fund balances, unit members would receive 60 percent of any excess funds, subject to
deduction for contingent liabilities, and maintenance of a certain level of a general reserve and
a reserve for legal actions against the district. A dispute arose regarding how much money was
allocated to the surplus income, due to a disagreement about the meaning of various
contingency funds not subject to inclusion in the final “pot.” 	PERB determined that this
dispute was not an unfair practice because it was limited to a difference over the application of
the contract. The district did not dispute its contractual obligation, but claimed it correctly
implemented the calculation for determining the relevant surplus. Finally, the dispute
concerning the continuation of benefits was easily dispatched because the unambiguous
provision in the contract did not support the union’s claim that laid off employees were entitled
to paid benefits until the contract expired.
Thus, 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, as in
the Regents cases discussed earlier, or as with the transfer article in Grant, supra, PERB
23

Decision No. 196. Likewise, if the employer denies a contractual obligation where it once
acknowledged one, as in County of Riverside, supra, PERB Decision No. 2307-M or
unjustifiably asserts rights under a management rights clause, as in Hacienda, supra, PERB
Decision No. 1186, an unfair practice has occurred. But 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 EERA.
With these principles in mind, we turn now to Local 3494’s exceptions to the ALJ’s
dismissal of its unilateral change claims.
Denial of Weist’s Same-day Vacation Request
The parties’ main dispute regarding this issue is whether the City’s denial of Weist’s
same-day vacation request was an unlawful unilateral change, or whether the MOU permitted
the City to exercise its discretion to deny the leave. The parties’ dispute is whether the denial
of the same-day request was an action that had a generalized effect or continuing impact on
terms and conditions of employment, or was instead simply an isolated breach of an agreement
or policy.
As noted earlier, the ALJ justified dismissing Local 3494’s complaint over the City’s
denial of Weist’s same-day vacation request on the ground that it was a one-time occurrence.
While we agree this allegation should be dismissed, simply describing this as a one-time
occurrence without further analysis is not an adequate reason for dismissal. As the ALJ pointed
out, the duration of the unilateral act does not necessarily determine whether there was a
unilateral change. (San Jacinto Unified School District (1994) PERB Decision No. 1078.) Nor
24

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does a temporary change immunize an employer from a finding that it has unlawfully changed
working conditions. (Trustees of the California State University (San Marcos) (2004) PERB
Decision No. 1635-H.) 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. (Arcata Elementary School District (1996) PERB Decision
No. 1163, pp. 5-9. See also County of Santa Clara (2016) PERB Decision No. 2431-M, p. 19.)
On its face, the relevant MOU provision gives broad discretion to the City to determine
when an employee may take vacation: “The times during the year when an employee may take
vacation shall be determined by the Fire Chief with due regard for the wishes of the employee
and particular regard for the needs of the service.” (MOU, section 10(F)(1)). Another
subsection of the vacation article provides a procedure for requesting vacation leave of 24
hours or less, but there is no language indicating that the City is to use different criteria when
granting or denying vacation requests of 24 hours or less than what is described in Section
10(F)(1).22 In other words, in determining any vacation leave requests, including those of less
than 24 hours, the fire chief is required to give “due regard for the wishes of the employee and
particular regard for the needs of the service.”
Local 3494 argues that past practice establishes a particular definition for the phrase
“particular regard for the needs of the service” in MOU section 10(F)(1), viz., the City may
deny same-day vacation requests only when a public emergency requires all firefighters on
duty. Internal departmental needs, such as training, have never been used as a reason to deny a
same-day vacation request, according to Local 3494. In support of this assertion, Local 3494
22 Subsection (P)(1) of Section 10 states that no more than two firefighters and one
captain per shift shall be permitted on vacation at any one time. Weist’s request for vacation
on March 13 did not run afoul of this restriction.
25

cites to the testimony of Pierce and Kinney that historically, the Fire Department has granted
same day vacation leave requests, under the proper conditions, i.e., that the absence would not
leave the shift short more than two firefighters and/or one captain. Local 3494 also cites to
Weist’s testimony that based on his participation in numerous bargaining sessions, it was his
understanding that section 10(F)(1) referred to emergency situations only.
Despite the testimony that no same-day vacation leave requests had been denied unless
the shift was left short-handed, Local 3494 did not establish the requisite elements of a binding
past practice that altered the plain meaning of the MOU. There is no evidence that the parties
established a mutually accepted and understood practice limiting the City’s discretion to deny
same day vacation leave requests only to public emergencies. Local 3494 would essentially
have us alter 10(F)(1) to read:
The times during the year when an employee may take vacation
shall be determined by the Fire Chief with due regard for the
wishes of the employee and particular regard only for immediate
public emergencies.
We do not find that forbearance by the City establishes that it intended to give up the
discretion Section 10(F)(1) confers upon it. By its plain meaning, the phrase “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, e.g., whether or
not the requesting employee has an important training scheduled that day, and whether or not
the employee (or his or her crew) had a deficiency in training hours.
This case is on all fours with Marysville, supra, PERB Decision No. 314, wherein the
Board determined that a longstanding practice granting teachers a longer lunch period than
what was provided by the collective bargaining agreement did not prevent the employer from
reverting to the plain meaning of the agreement. The plain meaning of the contract was not
26

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superseded by the past practice. Rejecting the union’s argument that the agreement merely
formalized the preexisting practice of granting a longer lunch period, the Board observed that
this claim is undercut “by the very fact that it agreed to a contract provision establishing a
lunch period of a lesser duration.” (Id. at p. 10.) The Board also re-affirmed the principle:
“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.” (Ibid.)
In this case, the plain meaning of the MOU grants the City considerable discretion
regarding vacation requests, and that discretion is not limited to situations involving a public
emergency. Although Weist himself testified as to --	his understanding, derived from numerous
bargaining sessions, that the City could deny vacation requests only in the case of public
emergencies, Local 3494 presented no evidence of bargaining history that showed the parties
actually discussed the meaning of this provision and reached a mutual understanding of how it
would be applied.23 As in Marysville, supra, PERB Decision No. 314, the City apparently
never exercised the discretion granted to it by the MOU until the events leading to this unfair
practice charge, having granted every same-day vacation request until Weist’s.24
23 Local 3494 points to Weist’s testimony that Section 10(F)(1) of the MOU “refers to
emergency situations” and gives the Chief “the right to deny vacation or postpone vacation
while we’re in an emergency situation. You can’t be derelict of your duties and walk away
because you have vacation at that time.” (R.T. Vol. I, p. 76.) Local 3494 characterizes
Weist’s testimony as “evidence of . . . the bargaining history . . .” (Exceptions, p. 4.)
However, Weist nowhere testifies that such an interpretation was discussed by the parties at the
bargaining table. Weist only testified that the MOU section “had been discussed on multiple
occasions . . . along the lines that [he] just . . . testified.” (R.T. Vol. I, p. 77.) This testimony is
vague as to who was involved in the discussions, when and how often the discussions
occurred, the circumstances under which the discussions occurred, and what exactly was
discussed, and is therefore insufficient to establish the intent of the bargaining parties or
binding past practice between the parties.
24 We find this evidence less than compelling, because there was no indication that the
City was ever presented with a situation similar to Weist’s, namely the scheduling of an
27

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Nor are we persuaded toward a different conclusion by Conroy’s testimony that she did
not believe the department had the discretion to deny a vacation request solely due to its
conflict with scheduled training, even if the individual was behind in his or her training
requirements. This testimony does not alter our conclusion regarding the plain meaning of the
MOU for two reasons. First, neither Conroy nor any other witness offered any evidence
regarding the expressed intent of the parties at the bargaining table when they negotiated the
MOU Section 10(F)(1) language. Second, her testimony that it was not a practice to deny
vacation requests because training was scheduled on the requested day does not resolve the key
question: whether the parties had established a past practice of restricting the City’s discretion
to deny vacation requests only for public emergencies. Simply because Conroy placed a
particular meaning on section 10(F)(1), and presumably did not enforce the City’s rights under
that section, does not foreclose the City from exercising rights clearly granted to it by the plain
meaning of the MOU. Local 3494 has therefore failed to prove an established past practice by
the City of unconditionally granting same-day vacation requests on scheduled training days.
Having determined that the City acted in accordance with a reasonable interpretation of
the MOU and its conduct therefore did not constitute a change in policy, we need not address
whether the denial of Weist’s vacation leave request had a generalized effect or continuing
impact on terms and conditions of employment. The City did not violate the MMBA by
denying Weist’s same-day vacation request under the circumstances of this case.
Issuance of the PIP
Local 3494 avers that the ALJ erred in concluding that the PIP was not an unlawful
unilateral change because it was a one-time occurrence, was subsequently rescinded, and
important multi-jurisdictional training opportunity coupled with an individual who had a
significant training hours deficit.
28

because the other departments in the City had used PIPs consistently. We agree with Local
3494 and for the following reasons conclude that the City violated the MMBA section 3506.5,
subdivision (c) by issuing the PIP to Weist.
This Board has recently reaffirmed that unlawful unilateral actions may fall into three
general categories: (1) changes in written agreements; (2) changes in established past practice;
and (3) newly created, implemented or enforced policy. (Pasadena Area Community College
District (2015) PERB Decision No. 2444, p. 12, fn. 12; Gonzales Union High School District
(1993) PERB Decision No. 1006, adopting ALJ’s proposed dec., pp. 20-21.) The ALJ
dismissed the allegation that the City’s use of the PIP violated the duty to bargain in good faith
without analysis of whether this was a change or a new policy, but based simply on a
conclusion that it was a one-time occurrence and was thus an isolated breach of contract or
practice which had no generalized effect or continuing impact on working conditions.
Since it is not controverted that the Fire Department had never utilized PIPs before,
Local 3494 has established that issuing the PIP to Weist represented a newly-created or
enforced policy in this bargaining unit.
The PIP issued to Weist touches on two negotiable subjects—procedures for evaluation
and disciplinary procedures. PERB has determined that both are within the scope of
representation. (Rio Hondo Community College District (2013) PERB Decision No. 2313, pp.
14-15; Trustees of the California State University (San Marcos), supra, PERB Decision
No. 1635, pp. 2-3; Compton Community College District (1990) PERB Decision No. 798. See
also Ampersand Publ’g, LLC (2012) 358 NLRB 1415, 1473, affm’d by Ampersand Publ’g,
LLC d/b/a Santa Barbara News-Press & Graphic Commc’ns Bhd. of Teamsters (2015) 362
NLRB No. 26 [“Employee performance evaluations, especially those that have the potential to
29

affect the amount of bonus an employee might receive, are important and mandatory subjects
of bargaining”].)
The National Labor Relations Board (NLRB) has also held that unilaterally
implementing a new system for policing and implementing employee discipline violated the
duty to bargain in good faith. (The Trading Port (1976) 224 NLRB 980, 983; Racho, Inc.
(1982) 265 NLRB 235, 257 [new formalized system of issuing written warnings and discipline
unlawfully changed informal system]; NLRB v. Amoco Chems. Corp. (5th Cir. 1976) 529 F.2d
427, 431; Migali Industries (1987) 285 NLRB 820, 820-821 [institution of a system of
progressive discipline constitutes change in mandatory subject of bargaining].)
In El Paso Electric Co. (2010) 355 NLRB 428, enfd. by El Paso Electric. v. NLRB
(5th Cir. 2012) 681 F. 3d 651 (El Paso), the NLRB considered whether the employer violated
the National Labor Relations Act when it unilaterally implemented performance improvement
plans to correct violations of work rules. Previously the employer had used PIPs to correct
performance issues only, but had never issued them to employees who had attendance or
tardiness problems. In El Paso the PIP, like the one used by the City in this case, contained the
warning that if the employee’s performance did not improve within a specified period of time,
the employee could face discipline. The PIP in El Paso could also affect the employee’s
eligibility for a raise or bonus. Under these circumstances, the NLRB found that the PIP
essentially placed recipients on probation and was therefore part of a new disciplinary scheme
that could lead to adverse action. The new policy of issuing PIPs to correct conduct such as
tardiness and absenteeism was therefore a mandatory subject of bargaining.
We find El Paso, supra, 355 NLRB 428 persuasive authority, along with PERB
precedent holding that discipline and evaluation procedures are mandatory subjects of
30

bargaining. The PIP issued to Weist in this case was a new disciplinary instrument or
procedure because it threatened him with discipline if he did not conform to the requirements
of the PIP. It also represented a change in the evaluation procedure. Weist’s supervisors had
concluded during the preparation of his evaluation that several aspects of his work
performance needed improvement, including record-keeping and complying with training
requirements, and they determined that it would be appropriate in this case to communicate
management’s expectations in writing concerning Weist’s perceived underperformance in the
form of the PIP. The PIP is essentially an augmentation of the evaluation process in that it
continues the evaluation process in a formalized way for the duration of the PIP. Weist was
directed to meet with Fry on a monthly basis for the purpose of reporting or otherwise
demonstrating that he was complying with the benchmarks outlined in the PIP, something he
would not have been required to do, absent the PIP.
In contrast with the same-day vacation policy, there is no provision in the MOU that
gives the City discretion to impose a new evaluation tool without bargaining with Local 3494.
The MOU makes no provision for PIPs or even evaluations. Section 21 of the MOU, “Other
Provisions,” states: “All items not governed by this agreement, but which are subject to the
obligation to Meet and Confer, shall be regulated by the existing CITY Personnel Resolution,
Fire Department Operations Manual and other existing regulations and practices.” The City
Personnel Resolution and Fire Department Operations Manual are silent as to PIPs.
Section 21, read with the broad language quoted above from the City Resolution does not
constitute a clear and unequivocal waiver of Local 3494’s right to negotiate over evaluation
procedures. (City of Milpitas (2015) PERB Decision No. 2443-M at p. 20 [waiver is
31

disfavored and must be clear and unmistakable]; San Jacinto Unified School District, supra,
PERB Decision No. 1078.)
Nor may the City rely on the practice in other departments to establish a binding past
practice permitting it to implement PIPs in the Fire Department. What occurs in other
departments with other bargaining units is irrelevant to working conditions in the Fire
Department. There was no evidence that Local 3494 knew about the use of PIPs in other
departments, so it cannot be said that this was a mutually accepted past practice.
There is also no question that the City’s issuance of the PIP had a generalized effect or
continuing impact upon terms and conditions of employment of bargaining unit members,
because the City asserts that it has the legal right to issue PIPs to firefighters. As the City itself
argues, “The City’s use of a PIP is an established City-wide tool utilized in conjunction with
performance reviews to aide employees in correcting performance [¶ . . .¶] The circumstances
here demonstrate why a written PIP is such a valuable tool . . .” (City’s Response to Charging
Party’s Statement of Exceptions at pp. 7, 9. See, e.g., County of Santa Clara, supra, PERB
Decision No. 2431-M at p. 19 [“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; County of Riverside, supra, PERB Decision
No. 1577-M, p. 6; Hacienda La Puente Unified School District (1997) PERB Decision
No. 1186, p. 4.]”)
The City therefore violated EERA by unilaterally issuing the PIP to Weist.
32

B. 	Discrimination/Retaliation
To establish a prima facie case of retaliation in violation of MMBA section 3506.5,
subdivision (a), the charging party must show that: (1) the employee exercised rights guaranteed
by the MMBA; (2) the employer had knowledge of the employee’s exercise of those rights; (3)
the employer took action against or adverse to the interest of the employee; and (4) the employer
acted because of the employee’s exercise of the guaranteed rights. (Novato, supra, PERB
Decision No. 210; County of San Joaquin (Health Care Services) (2003) PERB Decision
No. 1524-M.) Because it is uncontested that Weist exercised rights guaranteed by the MMBA
and that the City was aware of his protected conduct, the only issues to be decided in
determining whether Local 3494 established a prima facie case is whether the City took adverse
action against him and whether it had an unlawful motive in taking such actions.
Unlawful motive is “the specific nexus required in the establishment of a prima facie
case” of retaliation. “[D]irect proof of motivation is rarely possible, since motivation is a state
of mind which may be known only to the actor. Thus, . . . unlawful motive can be established
by circumstantial evidence and inferred from the record as a whole.” (Novato, supra, PERB
Decision No. 210, at p. 6; Carlsbad Unified School District (1979) PERB Decision No. 89;
Republic Aviation Corp. v. NLRB (1945) 324 U.S. 793; Radio Officers’ Union v. NLRB (1954)
347 U.S. 17, 40-43.)
To assist with assessing circumstantial evidence of unlawful motive, PERB has
developed a set of “nexus” factors. Although the timing of the employer’s action in close
temporal proximity to the employee’s protected activity is an important factor, it
does not, without more, demonstrate the necessary nexus between the employer’s action and
33

the protected activity. (Moreland Elementary School District (1982) PERB Decision No. 227;
California Teachers Association, Solano Community College District (2010) PERB Decision
No. 2096 (Solano CCD); Regents of the University of California (Davis) (2013) PERB Decision
No. 2314-H.)
Along with suspicious timing, facts establishing one or more of the following factors
must also be present for a prima facie case: (1) the employer’s disparate treatment of the
employee (State of California (Department of Transportation) ( 1984) PERB Decision
No. 459-S); (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); (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); (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 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 (McFarland USD)); (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 (1982)
PERB Decision No. 264; Novato, supra, PERB Decision No. 210).
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
34

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. (Palo Verde Unified School District (2013) PERB Decision No. 2337
(Palo Verde), p. 12; NLRB v. Walton Mfg. Co. (1962) 369 U.S. 404 (Walton Mfg.); NLRB. v. Mark
Coal Co. (9th Cir. 1963) 322 F.2d 311 (Mark Coal); Royal Packing Co. v. Agricultural Labor
Relations Bd. (1980) 101 Cal.App.3d 826.)
Upon proof that anti-union animus played a part in the employer’s decision to act, the
burden then shifts to the employer to prove that its actions would have been the same
notwithstanding the employee having engaged in protected activity and the employer’s antiunion
animus. (McFarland, supra, PERB Decision No. 786, affd., McFarland Unified School Dist. v.
Public Employment Relations Bd. (1991) 228 Cal.App.3d 166; Martori Brothers Distributors v.
Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730; Wright Line (1980) 251 NLRB
1083.) In such cases the employer has both the burden of going forward with the evidence and
the burden of persuasion. (Palo Verde, supra, PERB Decision No. 2337; Hunter Douglas, Inc.
(1985) 277 NLRB 1179; Hyatt Regency Memphis (1989) 296 NLRB 259.) The employer must
prove that it had both an alternative non-discriminatory reason for its challenged action, and that
the challenged action would have occurred regardless of the employee’s protected activity and
the employer’s anti-union animus. (Chula Vista Elementary School District (2011) PERB
Decision No. 2221 (Chula Vista).)
Local 3494 excepts to the ALJ’s equivocal observation: “Whether either or both
actions [denial of vacation and issuance of the PIP] had any impact, much less an adverse one,
on Weist’s employment as a City Fire Captain is debatable.” (Proposed dec. at p. 21) Local
35

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3494 contends that each is an adverse action. We agree, although we uphold the ALJ’s
ultimate conclusion that the City did not violate the MMBA by taking these adverse actions
against Weist. With regard to the denial of the same-day vacation request, Local 3494 failed to
prove the element of nexus between Weist’s protected activity and the City’s adverse actions.
Furthermore, with regard to both adverse actions, the employer proved it had acted because of
a legitimate non-discriminatory basis.
1. 	Denial of same-day vacation request
a. 	Adverse action
Contrary to the ALJ, we find that the City’s denial of Weist’s vacation request, thus
compelling him to use sick leave, adversely impacted Weist’s terms and conditions of
employment, albeit only slightly. MOU Section 5(H) provides that unused sick leave may be
accumulated. Additionally, MOU Section 5(I) states, in relevant part:
[U]pon retirement under P.E.R.S. (Public Employees Retirement
System), unused sick leave shall be treated as additional time in
service for the purpose of computing retirement benefits. If the
employee has reached the maximum retirement benefit, then the
CITY agrees to pay the employee for half of their accrued sick
leave at the time of retirement.
The sick leave that Weist was compelled to use was therefore unavailable to be
“treated as additional time in service for the purpose of computing retirement benefits.” 25
(MOU Section 5(I).) For this reason, the City’s denial of Weist’s vacation request was an
adverse action.
25 No evidence was presented showing that employees were forbidden to use vacation
leave for medical appointments.
36

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b. 	Nexus
Local 3494 argues that the City’s unilateral change in past practice in denying the
same-day vacation request evidences retaliatory motivation. However, since we have
concluded there was no change in past practice, we reject this proposition.
Local 3494 also argues that it proved discriminatory motivation by introducing
evidence that Pierce disparately treated Weist and departed from established procedures and
standards in denying his same-day vacation request. Local 3494 points to Pierce’s testimony
that he approved the denial of the request because he believed Weist’s training hours were low,
but that he knew other employees were also behind in their training hours and never confirmed
whether those employees would be attending the training. Pierce acknowledged that he did not
know that close to half the Department would be missing the training.
Pierce’s testimony does not evidence disparate treatment or departure from established
practice. Besides Weist, no employee (with or without a training hour deficit) made a same-
day vacation request for any day of the consortium training. Thus, no employee was similarly
situated to Weist. The City’s Department Training Policy mandated that all firefighters are
expected to complete a minimum of 20 hours of training per month, and fire captains promoted
after the City issued the training policy, including Weist, were expected to be aware of the type
of training requirements established in the policy, according to Conroy. When Weist’s
vacation request was denied on March 13, 2013, his supervisors, including Kinney and Pierce,
knew that he was significantly deficient in his training hours. 26
26 Weist was approximately 50 hours short for the six-month period in which he was
expected to have completed 120 hours of training. Two of Weist’s crew members who were
also deficient in training hours had nearly or more than twice as many training hours as Weist.
37

Although there were other firefighters who did not attend any of the consortium
training days and who were deficient in their training hours, those employees did not request
same-day vacation leave on training days. Nor does the record indicate whether they were on
sick leave or other leave. Therefore this evidence does not support a finding of disparate
treatment of Weist, because these other training-deficient employees were not similarly
situated to Weist.
Even if Pierce was not aware that close to half of the department would be missing the
consortium training, Local 3494 does not explain how this fact constitutes evidence of
discriminatory motivation, because as explained above, there was no showing that these other
employees were similarly situated to Weist, i.e., that they asked for vacation on the same day
the consortium training was scheduled and that they had a significant deficit in their training
hours.
Local 3494 also claims that the City made a cursory investigation of Weist’s allegedly
low training hours and the necessity of the consortium training. Local 3494 does not cite to the
record for this allegation, so we need not address it. (PERB Regulation 32300, subdivision
(d)(3).)
Local 3494 cites to Rio Hondo Community College District (1982) PERB Decision
No. 226 (Rio Hondo) in support of its argument that the City departed from established
procedures and standards in denying Weist’s same-day vacation request. However, the facts in
Rio Hondo are distinguishable, since in that case, the employer provided no reason for denying
an employee’s leave request, either at the time of the denial or at any time thereafter. (Id. at
p. 5.) By contrast, the City has consistently stated that its reason for denying Weist’s same-day
vacation request was his scheduled training that day.
38

Even though the evidence shows that the City’s denial of Weist’s vacation request
closely followed some of his protected activity, the proximity in time between the protected
activity and the adverse action goes to the strength of the inference of unlawful motive, but is
not determinative by itself. (Solano CCD, supra, PERB Decision No. 2096.) There is no
evidence of any other factors, such as disparate treatment, that would tend to show that the
City denied his leave in retaliation for those protected activities. However, even if Local 3494
had established a nexus, we conclude that the City met its burden in establishing its affirmative
defense, viz., that it had acted because of a legitimate non-discriminatory reason.
Legitimate Non-Discriminatory Motivation For Taking Adverse Action
Local 3494 argues that the City’s claimed justification for denying Weist’s same-day
vacation request was outweighed by evidence of its retaliatory motive. It points to Kinney’s
testimony that he thought Weist’s vacation request should be denied:
because I thought this training was extremely important. I
thought Captain Weist was deficient in his training as was his
crew. This was a unique opportunity to provide outstanding
training for both Captain Weist and for his crew.
(R.T. Vol. I, p. 178:14-18.) However, this sheds no light on the existence of an improper
motive. If anything, it suggests the opposite, i.e., that the City had a legitimate reason for
denying Weist’s same-day vacation request on the day this training was scheduled.
Local 3494 challenges the notion that the training was unique, pointing to Kinney’s
testimony that the March 2013 training was a multi-night process with “the same training each
time.” (R.T. Vol. I, p. 174:24-175:4.)
However, Kinney later testified that:
It’s a crew working together, and I thought it was extremely
important that the captain who was supposed to be in charge of
39

this team was there to be part of this evolution as well, or these
evolutions.
(R.T. Vol. I, p. 179:21-24.)
Kinney further explained:
Well, that’s the huge challenge, is that City of Davis has a
different work schedule than everybody else. And one, we’re
trying to do this with all these cooperating fire departments for
very little money. So it’s a huge challenge to do that, and one of
the things that we do in order to make this work is that we move
engine companies from one city to another to actually cover that
city so we can free up resources to go do the training and stuff.
(R.T. Vol. I, p. 180:3-10.)
Kinney later testified that he believed his denial of Weist’s same-day vacation request
was justified by MOU Section 10(F)(1):
I thought it was extremely important that Captain Weist train with
his crew, help prepare his crew and himself. And as I testified
earlier to, this opportunity for training wasn’t something that just
comes frequently. In fact, I don’t think we’ve ever had this type
of training, this extensive an opportunity to practice ever, and I’m
sure that he hasn’t been able to accomplish this type of training
since. So I thought it was super important that we do this. And
back to the needs of the service, I thought that, with what we do
--we’re all hazards [sic] -- and the demands placed on us, I just --
I think we really need to prepare ourselves as best we can.
(R.T. Vol. I, pp. 184:20-185:2.)
Pierce testified that he based his decision to deny Weist’s request in part on the fact that
delaying Weist’s scheduled training would have necessitated paying him overtime to train with
another team or another shift.
Pierce also testified that the absence of 16 firefighters from the consortium training did
not impact how significant he considered the training to be:
because the consortium, the training consortium, which is a group
of agencies in Yolo County, they don’t frequently get to train
40

________________________
41
together, and firefighters, because of mutual aid and automatic
aid agreements, frequently cross jurisdictional lines, meaning
City of Davis goes to Woodland and Woodland comes to West
Sac and so on. And so the need to actually meet each other, see
each other, see how each other operates is an important concept,
whether it’s one shift or every single employee.
And, of course, the more people you can include, the better it is.
So you don’t necessarily cancel it and say that the training wasn’t
valuable merely because some parties didn’t get to attend.
(R.T. Vol. II, p. 49:7-19.)
As this testimony indicates, the City had a legitimate interest in having Weist train with
his own crew.
Local 3494 also points to Fry’s testimony that he had no concerns about Weist or his
crew’s ability to function effectively as firefighters as proof that the training was not as
important as the City claims. (R.T. Vol. II, p. 109:5-15.) However, when asked if training
“was really more of a paperwork problem than a service to the community problem” (Id. at p.
109:16-18), Fry disagreed, testifying that:
Training is very valuable in several areas. One, we maintain our
skill levels to do our job. Secondly, it allows us to meet
standards such as OSHA standards and standards that are set forth
by the JAC committee and by the NFPA27 and other associations
that we are held to accountability by. Some aspect of your
statement is correct, but some -- More importantly, the safety of
our firefighters is what my priority is, and I know it’s Bob’s as
well.
(Id. at p. 109:19-27.)
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. Taken as a whole, the
evidence demonstrates that the City met its burden of showing that it had a legitimate, non-
27 Neither JAC nor NFPA are identified in the record.

discriminatory reason for denying Weist’s same-day vacation request and that it acted based on
that reason, as opposed to an improper motive.
2. 	PIP
a. 	Adverse action
The ALJ concluded the PIP was a “one-time, isolated occurrence[] and/or of limited
duration,” because “[t]he PIP was terminated in May 2014 by the new Fire Chief after less than a
year in effect.” (Proposed dec. at p. 21.) Thus, it was not an adverse action, according to the
ALJ. We disagree. The PIP threatened future discipline if Weist failed to meet performance
standards, and for this reason alone it was an adverse action. (City of Long Beach (2008) PERB
Decision No. 1977-M; Los Angeles Unified School District (2007) PERB Decision No. 1930,
proposed dec. at p. 11 [“These memoranda, although not disciplinary in themselves, threatened
[Charging Party] with disciplinary action, and a reasonable person would find them to have an
adverse impact on [Charging Party]’s employment”].)
The PIP’s placement in Weist’s personnel file could have aggregated the severity of
discipline imposed by the City during the PIP’s effective period had Weist been subject to
discipline during that period. The fact that, in hindsight, Weist was not actually subject to
discipline during that period is irrelevant. We must determine whether the act was adverse at the
time the City issued the PIP. From that temporal reference point, the fact that the PIP could
aggregate the severity of discipline in the future constituted an adverse impact on Weist’s
employment. (See, e.g. In Dep’t of Health & Human Servs., 22 F.L.R.A. 91, 109-10 (June 6,
42

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43
1986) [Federal Labor Relations Authority (FLRA) held that an employer’s threat to issue a PIP
to an employee due to the employee’s union activities constituted an unfair labor practice].)28
Furthermore, Chaney testified that there is no provision for removal of a PIP or an
evaluation document from an employee’s official personnel file in the fire department, and the
PIP remains in Weist’s personnel file. Thus, the stigma of performance deficiency presumably
follows Weist for the remainder of his career, regardless of future performance. This fact
supports the conclusion that the PIP is an adverse action.
The City argues that the PIP was not an adverse action, relying on Turturici v. City of
Redwood City (1987) 190 Cal.App.3d 1447, in which the court held that a supervisor’s
negative comments in an employee’s performance evaluation that “merely recommends
discipline as a future conditional event” (Id. at p. 1449) did not constitute “punitive action” so
as to trigger the employee’s rights to an administrative appeal under the Public Safety Officers
Procedural Bill of Rights Act (POBR). (Gov. Code, § 3300 et seq.) However, that case is of
little value to us, since an employer’s action that may not rise to the level of “punitive action”
under POBR may indeed rise to the level of an “adverse action” under the MMBA.29
28 The FLRA is a federal agency that administers the Federal Service Labor
Management Relations Statute, 5 U.S.C. Sec. 7101 et seq., a statute applicable to federal
employees and their federal agency employers. Although the decisions of the FLRA should
not be treated as binding precedents upon the Board in California, they may on occasion prove
suggestive or even persuasive. (See, e.g., Regents of the University of California (1983) PERB
Decision No. 283-H at p. 15 [“Although the definition of ‘employee’ under the Federal Labor
Relations Act differs from our own, we find the rationale expressed by the Authority
persuasive”].)
29Under Government Code section 3303, “punitive action means any action that may
lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for
purposes of punishment.” There is no similar restriction on what may constitute an “adverse
action” under MMBA.

Nexus
We agree with the ALJ that the nexus element of timing is present since Weist engaged
in protected activity for 27 years as Local 3494 president and engaged in contract negotiations
in proximity to the March and April 2013 adverse actions.
However, contrary to the ALJ, we also find that Local 3494 met its burden of proving at
least one other nexus element. The PIP issued to Weist threatened him with discipline if he did
not meet the required standards contained in it. Chaney, the City’s director of human
resources, parks, and community services, testified that “A PIP itself is not disciplinary. The
issue I have had with this PIP was the language in there. That’s not normal language for a
regular PIP.” (R.T. Vol. II, p. 158.) Therefore, the City deviated from its procedures by
including the disciplinary threat in Weist’s PIP.
In light of this finding, the burden shifts to the City to prove it would have issued the
PIP for a legitimate, non-discriminatory reason even absent Weist’s protected activity.
b. 	Legitimate Non-Discriminatory Motivation For Taking Adverse Action
We find that the City has proven its affirmative defense that it would have issued the
PIP for a legitimate, non-discriminatory reason even absent Weist’s protected activity. PERB
has held that an employer proves its affirmative defense when it demonstrates that it has “both
an alternative non-discriminatory reason for its challenged action, and that the challenged
-
action would have occurred regardless of the employee’s protected activity” (Palo Verde
Unified School District, supra, PERB Decision No. 2337, p. 13, emphasis added; Regents of
the University of California (1984) PERB Decision No. 470-H, proposed dec. at p. 51) and
when the adverse action is “justified by criteria wholly unrelated to the employees’ protected
activity” (Rio Hondo Community College District (1982) PERB Decision No. 272 at p. 5).
44

The City has met its burden because of its legitimate and substantial concern that one of
its fire chiefs who supervised a crew of six firefighters was significantly deficient in training
hours as established by an objectively reasonable and generally applicable policy; was not
timely completing logs and reports on station maintenance, incidents, and apparatus checkouts;
and was not timely performing quarterly fire prevention inspections. The City has therefore
met or exceeded Local 3494’s prima facie case with equally or more persuasive affirmative
evidence demonstrating that it would have taken the same action despite Weist’s protected
activity.
Local 3494 alleges that the PIP was a pretext for retaliation because it was issued four
days after the Fire Department gave Weist his performance evaluation for the same alleged
areas of needed improvement, despite there being no indication that Weist needed clarification
of what the Fire Department expected of him. However, 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
evaluation itself (Charging Party Exh. 7) states on p. 3:
I am requesting that you [sic] to review the performance
feedback, [the] records attach [sic] and the job description and we
will discuss and develop of [sic] a Performance Improvement
Plan to move the areas I have listed as deficiencies to meets
standard in the next few months. I am setting the date of April 5 th
[for] our first discussion on the development of the plan.
Local 3494 points to City’s failure to follow the terms of the PIP as proof that the PIP
served no clarification purpose. However, 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.
45

ORDER
Based on the foregoing findings of fact and conclusions of law, the entire record in this
case and pursuant to the Meyers-Milias-Brown Act (MMBA), Government Code section 3509,
the Public Employment Relations Board (PERB or Board) DISMISSES the allegations that the
City of Davis (City) retaliated against Robert Weist (Weist) by denying a same-day vacation
request and issuing an April 9, 2013 performance improvement plan (PIP) to Weist, and that
the City unilaterally changed terms and conditions of employment by denying a same-day
vacation request.
PERB hereby REVERSES the administrative law judge’s (ALJ’s) dismissal of the
allegation that the City unilaterally changed terms and conditions of employment by issuing a
performance improvement plan (PIP) to Robert Weist (Weist) and finds that the City violated
Government Code sections 3503, 3505, and 3506.5, subdivisions (a), (b) and (c), and PERB
Regulation 32603, subdivisions (a), (b), and (c), by failing and refusing to notify and to meet
and negotiate in good faith with Davis Professional Firefighters Association, Local 3494
(Local 3494) over the City’s decision to unilaterally implement a policy of issuing PIPs, and
thereby interfering with the rights of bargaining unit employees to be represented by Local
3494, and by denying Local 3494 rights guaranteed to it by the MMBA.
The City, its governing board and its representatives, shall:
A. CEASE AND DESIST FROM:
1. Unilaterally implementing a policy of issuing performance improvement
plans (PIP).
2. Interfering with the rights of bargaining unit employees to be represented by
Local 3494.
46

3. Denying Local 3494 rights guaranteed by the MMBA to represent employees.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICES OF THE MMBA:
1. 	Rescind the April 9, 2013 “Notification of Unacceptable
Performance/Opportunity to Improve” and PIP issued to Weist, and remove all copies from
any and all of Weist’s personnel and other files.
2. 	Make Weist whole for any loss in compensation and benefits he may
have suffered as a result of the City’s issuance of the PIP. Such payment shall include interest
at a rate of 7 percent per annum.
3. 	Upon request, meet and confer with Local 3494 over the use of PIPs for
bargaining unit members.
4. 	Within ten (10) workdays of service of a final decision in this matter,
post at all work locations where notices to employees in the City are customarily posted,
copies of the Notice attached hereto as an Appendix, signed by an authorized agent of the City.
Such posting shall be maintained for at least thirty (30) consecutive workdays. In addition to
physical posting of paper notices, the Notice shall be posted by electronic message, intranet,
internet site, and other electronic means customarily used by the City to communicate with its
employees in the firefighter bargaining unit. The City, its governing board and its
representatives shall take reasonable steps to ensure that the posted Notice is not reduced in
size, defaced, altered or covered by any material.
4. Written notification of the actions taken to comply with this Order shall be made to
the General Counsel of PERB, or the General Counsel’s designee, The City shall provide
47

reports, in writing, as directed by the General Counsel or his/her designee. All reports
regarding compliance with this Order shall be concurrently served on Local 3494.
Chair Martinez and Member Banks joined in this Decision.
48

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SA-CE-833-M, Davis Professional
Firefighters Association, Local 3494 v. City of Davis, in which all parties had the right to
participate, it has been found that the City of Davis violated the Meyers-Milias-Brown Act
(MMBA), Government Code section 3500 et seq.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. Unilaterally implementing a policy of issuing performance improvement
plans (PIP).
2. Interfering with the rights of bargaining unit employees to be represented by
Local 3494.
3. Denying Local 3494 rights guaranteed by the MMBA to represent employees.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Rescind the April 9, 2013 “Notification of Unacceptable
Performance/Opportunity to Improve” and PIP issued to Weist, and remove all copies from
any and all of Weist’s personnel and other files.
2. 	Make Weist whole for any loss in compensation and benefits he may
have suffered as a result of the City’s issuance of the PIP. Such payment shall include interest
at a rate of 7 percent per annum.
3. 	Upon request, meet and confer with Local 3494 over the use of PIPs for
bargaining unit members.
Dated: _____________________ 	CITY OF DAVIS
By:
Authorized Agent
_________________________________
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.