Union Alleges City Disciplined Union President In Retaliation For Union Activities – The Davis Professional Firefighters Association has filed an Unfair Labor Practices Complaint against the City of Davis, noting that the two parties reached impasse in April 2013, and that the city has unilaterally initiated a performance improvement plan (PIP) for Fire Captain Robert Weist, which sets forth areas in which he needs to improve his performance within a year.
The complaint goes on to allege that the city unilaterally changed its vacation procedure, and that it did so in retaliation for lawful union representational activity.
On Tuesday, August 27, 2013, the city of Davis listed in closed session “Conference with Legal Counsel” an item, “Davis Professional Firefighters Association vs. City of Davis, Unfair Practice Charge No. SA – CE – 833 – M.”
When the Vanguard inquired as to the nature of the item, the Vanguard was informed that the city was unable to discuss the matter as it was closed session. The Vanguard then filed a Public Records Act Request. While personnel matters and personnel reviews are generally exempt from public disclosure, and rightly so, the moment Mr. Weist went to PERB (Public Employment Relations Board), the matter became a public record.
In his complaint, Mr. Weist claims that on March 13, 2013, he attempted to take vacation leave in a amount less than 24 hours. He argues that no other captains were on leave at this time, but that Division Chief Shawn Kinney “denied Captain Weist’s leave, claiming that Captain Weist had not fulfilled a required number of training hours and, thus, needed to attend a training session.”
The complaint argues, “There is no set requirement for the number of training hours in the Department. The training for which Captain Weist was scheduled on the day at issue could have been completed at another time.”
The complaint notes that he has been with the department for nearly 30 years and has been union president for the last 25 years. They write, “Throughout Captain Weist’s tenure, the Department’s policy, practice and procedure has been to always grant leave to a Fire Captain when there are no other Fire Captains on leave, irrespective of scheduled training.”
However, the city’s response, if accurate, suggests that Mr. Weist attempted to use his vacation time to avoid training obligations and, when denied, summarily threw a fit.
The city writes that the sequence of events was that, on the morning of March 13, Captain Weist would “loudly and publicly” complain in front of his crew about this “bullshit training.” He proclaimed “that the City would have to buy him and his firefighters dinner as the training was in the evening.”
Division Chief Kinney, in the mid-afternoon, noted that there “was a request from Captain Weist for vacation leave that same day, with a start time beginning when Weist’s engine company was to be preparing for that night’s drill. This was the very first time Division Chief Kinney had any information to suggest that Captain Weist did not intend to go to the training scheduled for himself and his crew.”
Division Chief Kinney and Interim Fire Chief Steve Pierce discussed the matter, including the necessity of the training and the value to the firefighters, “and how difficult it would be to obtain substitute training.” They determined, based on MOU provisions, that Mr. Weist’s “last-minute vacation request was in conflict with this important training (and) could be denied.”
Upon learning of this denial, “Weist became very angry and immediately advised Division Chief Kinney that he would be going home ‘sick.’ Captain Weist left work, and his engine company attended and completed the scheduled training under the supervision of an alternate captain assigned to them (as an overtime assignment) for the event.”
On April 9, 2013, Fire Division Chief Bruce Fry, in a memo to Captain Weist, noted in a long list of complaints that Mr. Weist does not meet current standards for things such as completing 20 hours of training each month for himself and his crew.
This is, in fact, not the first time such a problem has been noted. The fire audit noted that his shift rarely hit its training hours and he failed to file reports in a complete and prompt matter.
In the memo it states that he will receive written evaluations monthly for the next six months.
Division Chief Fry writes, “You have over 28 years of fire experience. It is expected the quality of your work will reflect that experience.” It adds, “Failure to meet standards during the remainder of the 1 year period will result in a recommendation for discipline.”
Mr. Weist complains that the City “refuses to provide Captain Weist an opportunity to appeal the PIP” and that “it has never been the practice in the Department to impose PIPs.” He argues that the PIP is subject to a meet and confer with the PFFA (Professional Fire Fighters Association).
Mr. Weist argues, “The actions of the City, in issuing Captain Weist a PIP threatening discipline and arbitrarily denying his vacation leave contrary to past practice, is a blatant retaliatory measure against Captain Weist for his union activity. The City’s actions create an environment hostile to the union and its rights.”
The city responds that, even assuming that the chief is correct regarding past practices of prior vacation requests being granted so long as no other captain was on leave, “which the city does not concede,” the contract “gives the Fire Chief latitude to deny the request at issue in light of the needs of the service unique to the particular, multi-agency training that was scheduled long in advance of that day.”
The city has entered into a joint training consortium where they have a countywide joint training officer and shared training facilities with other cities.
The city notes, in response, that even assuming the existence of a valid “past practice,” PERB had long ago ruled “that an employer does not commit an unlawful unilateral change when it alters a past practice in a way that is consistent with a prior unenforced agreement.”
The city adds that there is no adverse action here that would support a retaliation charge.
The city notes, “Denial of a last-minute vacation request in conflict with major, multi-agency training is a legitimate and supportable action complying with the letter of the current MOU.” They add, “How this could possibly be ‘adverse’ to Captain Weist is a bit of a mystery, in light of the fact that he got leave on the day requested (albeit it was sick leave that he opted to use when his vacation request was turned down).”
Moreover, the city notes that the PIP in and of itself is not disciplinary or adverse action. “An unequivocal notice of the employer’s intent to impose discipline is an adverse action,” they write. “If the employer’s communication does not indicate that it has already a firm decision to impose discipline, that communication is not an ‘adverse action.’ “
Here the PIP is essentially a warning that indicates that Captain Weist needs to meet standards for his position. If he does so, the PIP will end; if he fails to do so, it “may result in extensions of the PIP” and ultimately “will result in a recommendation for discipline.” However, that is dependent on the actions of the employee and no firm decision has been made.
Frankly, Mr. Weist seems to have gotten off easy, as he appears to have committed insubordination. When he was denied vacation leave, it appears, from city claims and rightly so, that he called in sick to avoid having to participate in a training that he has been actively working to undermine for some time.
That move not only circumvented his direct orders but cost the city additional time in overtime to staff a captain who was not scheduled to work at that time.
In many other lines of work that would merit termination – here he basically received a warning about possible future discipline.
Mr. Weist did not respond to an email request for information on this incident from the Vanguard.
—David M. Greenwald reporting
Weist’s response to the Department’s first-ever PIP was fully anticipated by the City. You have to give Bobby points for consistency in his demands and rhetoric. PIP’s are standard fare in other City operations and for Bobby to say that it subject to “meet and confer” was also anticipated.
In other words, the City is fully ready to do battle in the forum that Bobby chose.
Bobby has always maintained that every management practice and action was first subject to union review. There is no labor law authority to support this wide ranging contention. But Bobby has never been challenged before within the hierarchy of the Fire Department.
Bobby is surely going to regret this action. Due to the public venue of his protest as already noted in the column, his entire performance history, particularly as a supervisor, risks being open to full public disclosure.
You’ve got to pick your battles, and Bobby responded emotionally instead of rationally and made a grave strategic error. His public rants of protest in the presence of witnesses seriously harms his already tenuous position as a responsible manager and, secondarily, as union president.
It is not just Mr. Weist doing this, at most bigger California fire departments the senior guys waiting to hit 30 years (and “retire” at ~50 with their $10-15K/month pensions) typically take vacation when they have any “work” scheduled. They are OK with getting paid $200K to sleep, eat and watch TV 10 days a month, but (like Mr. Weist) call “bull5hit” when they are asked to “work”, “clean” or do any “training”…
“Frankly, Mr. Weist seems to have gotten off easy, as he appears to have committed insubordination.”
Just can’t help yourself can you. You were doing so well quoting the report but then you blow it by adding your own conclusion. How do you know he wasn’t sick? This is almost as bad as Sue’s blind rage when Ruth hit 911. It only fails to meet the level of Sue’s actions because it isn’t a real time event. If he was given bad news at work and it put him in a mental state that made him unfit for duty, supervising a fire crew that might be called to report to a dangerous situation, taking a sick day and relieving himself from command under such circumstances would not only have been appropriate, doing otherwise would have been cause for concern. Maybe he realized his remarks in front of the crew were not appropriate and he made the correct call to not be in front of the crew. You may think his remarks were inappropriate but you can’t challenge him for taking an action at his own expense that prevents him from making things worse. His Supervisors probably recognized this and limited their actions accordingly. You however, in your ongoing vendetta against the fire captain, fail to see that Weist acted appropriately by leaving work when he did.
come on frog, you know he didn’t get his way and then left pitching a fit. there’s context here. he’s been trying to undermine the joint training of the firefighters for months.
DP, maybe, maybe not, calls for conclusion on your part. I’m speaking from experience. i once received bad news at work from above. i was so upset I realized I had no business being in a classroom and went home using sick leave. It was the right decision. The same goes for the situation where you are supervising a fire crew. If you notice his supervisors didn’t question his decision to use sick leave because it was appropriate. If Davis had stuck to reporting what he uncovered he would have a good story. Its still a good story. When he veers into editorializing about things he doesn’t fully grasp he undermines the rest of his good work. When it comes to Weist, David should be more careful. David’s needs to control his obvious antipathy toward Weist if he wants to remain credible.
If David had to…
David needs to…
If David had stuck to …
I need to go back to sleep sorry for the typos correcting typos.
Toad, go back to bed, you’re wrong here.
Mr Toad wrote:
> You may think his remarks were inappropriate
> but you can’t challenge him for taking an action
> at his own expense
I’m no expert on the details of the Davis FD “sick day” rules, but in the departments where my friends work they all max out “sick days” since a “sick day” for one firefighter means “time and a half day” for another firefighter (at the Fire Captain level of may guys in their late 40’s in the Bay Area covering for a “sick” co-worker for just a single day at time and a half will pay them over $3,000). More often than not the “sick” firefighter will cover for another guys “sick” day getting paid time and a half the “expense” of the taxpayers paying them…
Yet another public humiliation of our fire department operation. The kind of mismanagement we’ve been reading about only can continue in secret.
It seems as though the majority of firefighters would be getting embarrassed by the startling revelations that keep being exposed about Robert Weist’s actions as union leader, about his promotion to captain when he was the least qualified of the candidates and, now, his erratic behavior that certainly borders on insubordination at the least.
SOD, I’m not sure how firefighter sick days are funded but my guess is that if they can cash out unused sick leave when they retire the money is set aside as a categorical and doesn’t effect the overall budget when that fund gets tapped. I’m not defending the Captain for anything beyond getting out of the way before doing something that could have been more regrettable. If our public safety people are not in a mental state where they should be on duty and have the good judgement to go home isn’t that the correct decision? Would we want it any other way?
Just think about Police Officer Pike. If he had the good judgement to go home when he started making regrettable remarks about his orders on that fateful day when he used pepper spray much suffering would have been avoided. Wouldn’t that have been preferable.
As for the rest of it bash away all you want.
[quote][b]my guess[/b] is that if they can cash out unused sick leave when they retire the money is set aside as a categorical and doesn’t effect the overall budget [/quote]And, you are incorrect… City of Davis employees may “cash out” accrued vacation leave, but NOT sick leave… accumulated Sick Leave is credited to time in service… so if an employee has ~ 1000 hrs of sick leave on the books, when they retire, they could get ~ 1/2 year of service credit in their retirement formula. If a public safety employee retires after 30 years, thereby ‘maxing out’ their cap of 90% of final salary, I believe they get nada. However, they could retire earlier, say @ 29.5 years, and get the sick leave credit to take them to 30 years.
[quote]I’m not defending the Captain for anything beyond getting out of the way before doing something that could have been more regrettable.[/quote]My experience in both the public and private sectors is you need to “suck it up”, do your job, and move on. BTW, have seen where public school teachers call in ill, and request a friend to “substitute” at pretty good per diem rates. Unions. Never have, never will belong to one.
I thought that public safety employees constantly train in order to keep their skills fresh and the crews working well as a team. What is so arduous or horrible about training that a captain would do everything he could to avoid doing it (and also direct his crew in a way that avoids it)?
Why would the Union allow Weist to involve it in his determination to avoid required training for his and that of his crew’s, job?
I don’t think having a tizzy fit is covered under acceptable sick leave rules. Just saying…..
hpierce – You are right about accumulated sick leave adding to years of service, but this is in the current Fire fighters MOU:
“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.”
Here’s what the MOU says about sick leave: “Sick leave shall not be considered as a right to be used at the employee’s discretion, but shall be
allowed only in case of necessity and actual personal or family illness or disability.”
Again, I question whether having a tizzy-fit over being denied vacation time to avoid training fits within this rule.
“Again, I question whether having a tizzy-fit over being denied vacation time to avoid training fits within this rule.”
And yet, the city rather than disciplining him for it, simply allowed him to do so.
“BTW, have seen where public school teachers call in ill, and request a friend to “substitute” at pretty good per diem rates. Unions.”
i never saw a teacher take a day off just to give a friend a days work. I have seen teachers request a certain sub when they takea day off but usually its because they believe the person will do a fair job for the day.
Maybe I missed it, but do not see any comments about the issue of him not keeping up with training requirements and seems his crew is also affected if he doesn’t keep up (that is confusing)….but anyway, assuming the training is useful I am angry that he has not kept up and that this has been tolerated…..
[quote]And yet, the city rather than disciplining him for it, simply allowed him to do so. [/quote]
Bobby Weist at 30 years of service gets 20 vacation days per year, plus an additional 2 shifts of vacation for “longevity leave.” He also is taking time off for his union activities (bank hours) with only 70% of that limited to hours that don’t require overtime coverage by another employee. His sick leave is going to be paid at 50%. Bobby is a very expensive employee but, with his years of experience, should be a very valuable one. This is the expectation that I think is Bobby is not meeting. Bobby fails to see that what was is not what now is.
I would assume that rules determining the use of sick leave, vacation time and use of Union bank hours will be considered in the monthly evaluation of his performance going forward.
“Again, I question whether having a tizzy-fit over being denied vacation time to avoid training fits within this rule.”
Offering your opinion is easy. Making such a determination is a supervisory role is much too difficult to expect anything but accepting that he was unable to do his job and realized it using sick leave instead.
“And yet, the city rather than disciplining him for it, simply allowed him to do so.’
Off course they didn’t discipline him for it and they shouldn’t have. What they did was measured and appropriate. Now you want to attack the guys who are trying to get a handle on the situation for acting professionally. Remember that people here advocated for going off the rails with that City union and ended up paying a huge fine and back pay. The City has to be careful. Pinkerton and his guys seem to be handling the situation correctly. You should be supporting them instead of second guessing everything.
hpierce wrote:
> BTW, have seen where public school teachers call
> in ill, and request a friend to “substitute” at
> pretty good per diem rates. Unions. Never have,
> never will belong to one.
Then Mr. Toad wrote:
> i never saw a teacher take a day off just to
> give a friend a days work.
While I’m sure some teacher at some time took a sick day to give a sub friend some money I am pretty sure this does not happen very often.
What is amazing is how most (but not all) firefighters use “calling in sick” to boost the overtime of guys in their last year of service to get them thousands more per month in retirement.
P.S. I’m wondering if anyone knows how many “vacation days” and “sick days” the Davis fire department gets (some departments get as many as 15 days of each). Years ago it blew my mind that my firefighter friends (who only work 10 days a month) got more paid vacation days and paid sick days than the typical working stiff working 20+ days a month.
P.P.S. With 15 days of “sick days” a year a firefighter can take a month and a half off every year (three times as much paid time off as the average American) and save ALL their vacation days to “cash out” when they retire. The Mercury News reported last year that the state is paying about $300 MILLION a year to people “cashing out” at retirement with a few people getting more than a half million EACH…
“Now you want to attack the guys who are trying to get a handle on the situation for acting professionally. “
Actually I was just bolstering the case that the city acted reasonably and the unfair labor practice charge has no merit (I could have and should have stated that point more clearly, I’ll grant you).
And that was actually the point of my remark, but Mr. Toad is actually correct, I should have put it into a comment rather than the body of the report. But it’s been a long week and that’s not the worst error in judgment I’ve made.
Vacation days start at 10 days per year for a new employee to 20 days per year at 15 years of employment.
Then there is “longevity leave.”
(beginning the tenth through the fourteenth year of service, the employee shall receive one half shift added to vacation total; beginning of fifteen through the nineteenth year of service, the employee shall receive one shift added to vacation total; beginning of twentieth through twenty fourth year of service, employee shall receive two shifts
added to vacation total); twenty fifth through retirement, the employee shall receive three shifts added to vacation tota1, for a maximum of three shifts. Longevity Leave is in addition to vacation accrual…”
I believe a shift is 24 hours long.
Ryan… thank you for your ~ 11 am posts re: sick leave payout… had not realized that those provisions existed.
Mr.Toad, don’t you think Weist’s actions and words make it clear that he didn’t leave work because he was even the least bit sick? Absent all the description of what went on, there might be some question. But, it seems clear that he was refusing to attend the training and tried to use sick leave because he thought management would have no recourse because of some real or imagined tradition.
Announcing you’re sick out of the blue still can be malingering. In this case, it wasn’t out of the blue; there was an argument and an insistence that he wasn’t going to attend the required training.
David’s judgement was right on, I think. The department would be better off without Weist in there trying to gum up the works at every turn. He’s gotten a pass from his colleagues because he’s credited with gaining lots of pay and benefit increases and because his less than savory activities haven’t gotten much public exposure until recently. We have David to thank for bringing these issues to light.
i think that’s what happened here, weist got so used to no accountability that when the new interim chief and division chiefs started cracking down on him, he was not used to it and fell into bad habits. that and he wasn’t most qualified in the first place.
“Mr.Toad, don’t you think Weist’s actions and words make it clear that he didn’t leave work because he was even the least bit sick?”
Its not my call, its not your call and its not really his supervisors call. If he feels that he should not be at work for any health related reason its his call. It costs him a sick day so its generally assumed that people don’t use sick days without reason. Even if its because of his mental state due to an argument he had five minutes ago if he uses a sick day he gets the benefit of the doubt. You can argue that it doesn’t cost him anything if he puts in 30 years because he can’t use it as service credit but he doesn’t have 30 years so it might potentially cost him. Also if he has a serious health problem before he retires its one less day before he runs out of full pay sick leave while he is out sick.
Now if I was out of work for more than two days they wanted a note from my doctor. This makes sense for two reasons, first, doctors have better training to evaluate whether you should be at work and second, this prompted you to go to the doctor if nothing else did.
I am right and David now recognizes it as well. You may now return to bashing him for other things.
Ryan Kelly wrote:
> Vacation days start at 10 days per year for a new employee…
So it looks like you max out “vacation” at 23 days (Over two full MONTHS off).
I’m still wondering how many “sick” days the firefighters get in Davis if they get even a few days they will get more time off than teachers who don’t work in the summer (getting paid more than twice as much)…
What you mean, “it’s not my call”? You’ve been making a call since this morning, just like several other people here. I’m just calling you making the call.
Someone who behaved the way Mr. Weist did before leaving his job no longer falls into the “generally assumed” category of how people get leave approved. People who refuse legitimate orders at work generally have no right to announce that they’re going on sick leave to avoid compliance.
However, given the surprising accommodations and benefits that we keep finding have been added to our firefighters’ contracts, I really am not sure I have a leg to stand on here. Perhaps, employees now get to take leave at their own discretion regardless of the needs of the job. Still, good luck on getting David to concur that he agrees with you about much beyond his opinion re. Insubordination possibly should have been expressed in a separate commentary.
You would be surprised about how much David and I agree upon. As an example, David has never denied any of my accusations that he has a personal vendetta against Weist. For my part, I limited my defense to this one aspect of the story where i felt Davis went too far. I even remarked that it was a good story. You may now resume your bashing.
Another important thing David and I agree upon is that the City Manager and his staff have done a good job to date trying to get a handle on the situation.
I wasn’t trying to overstate anything, just referring back to the specifics of this comment by David:
“And that was actually the point of my remark, but Mr. Toad is actually correct, I should have put it into a comment rather than the body of the report. But it’s been a long week and that’s not the worst error in judgment I’ve made.”
I see this as agreeing that his comment about insubordination shouldn’t have been incorporated into his story, not agreeing to change his mind about the opinion.
I don’t see David’s comments or mine regarding Mr. Weist’s actions and history with the fire department as “bashing.” I will admit to getting less and less tolerant with each episode that we learn about.
Reading some of the comments it’s no wonder some of the firemen get away with what they do with all the sympathizers and people bending over backwards to find excuses for their bad behaviour.
SouthofDavis wrote:
[quote]What is amazing is how most (but not all) firefighters use “calling in sick” to boost the overtime of guys in their last year of service to get them thousands more per month in retirement.[/quote]
This is incorrect, overtime does not count towards retirement. Check your facts before making ridiculous statements.
[quote]If you notice his supervisors didn’t question his decision to use sick leave because it was appropriate.[/quote]
I see this as just as much of a guess about motive as David’s initial “guess” that Mr. Weiss was not truly ill.
Unless we have had a conversation with one of his supervisors, we don’t actually know why they didn’t question his decision to use sick leave. We have no idea whether they considered it “appropriate” or merely defensible under the sick leave policy. There is a often a big difference between what meets the technicalities of the rules and what is “appropriate”.
Coming in after a bunch of posts is confusing. I would ask that IF you are responding to another poster, you quote them and identify them before rebutting, agreeing, etc. with them. Makes it easier to follow!
[quote]Coming in after a bunch of posts is confusing. I would ask that IF you are responding to another poster, you quote them and identify them before rebutting, agreeing, etc. with them. Makes it easier to follow! [/quote]I bow to your personal preferences… mea culpa… you are so precious, and we all need to conform to your convenience… you want fries with that? Regular or curly? Move on…
Weist’s a big talker but his brain’s not in gear.
Hpierce
Why so nasty? Only making a suggestion to improve. Geeez
No fries.
I wrote:
> What is amazing is how most (but not all) firefighters
> use “calling in sick” to boost the overtime of guys in
> their last year of service to get them thousands more
> per month in retirement.
Then Birdman wrote:
> This is incorrect, overtime does not count towards
> retirement. Check your facts before making ridiculous
> statements
Are you talking about the current Davis FD contract or firefighter pensions in general?
If you Google “firefighter pension spiking” you will get close to a quarter MILLION hits and can see that my claim is anything but “ridiculous”…
Phil, I’m curious. How much money did you cost the City of Davis, the tax payers, in sexual harassment complaints while you were Chief the the police department.
SouthofDavis wrote:
[quote]Are you talking about the current Davis FD contract or firefighter pensions in general? [/quote]
Well I know that this is not true in Davis and since that is what this thread is about your comment is irrelevant. In Davis their pension is based off their last highest year and does not include overtime.