Davis Professional Firefighters Association President Bobby Weist is at it again, as he filed a class action lawsuit against the City of Davis, alleging he was not properly paid for all hours worked. The complaint, filed on July 20 in the U.S. District Court for the Eastern District of California on behalf of similarly situated individuals against the City of Davis, alleges a violation of the Fair Labor Standards Act.
The complaint claims that Mr. Weist worked for more than 40 hours without being paid overtime premiums by the city of Davis. The plaintiff holds the city of Davis responsible because the defendant allegedly failed to pay any overtime compensation at a rate of one-and-one-half to plaintiff for all hours worked in excess of 40 per workweek.
Mr. Weist is seeking an order of a complete and accurate accounting of all compensation he is entitled to, monetary damages in the form of back pay compensation, liquidated damages, interest, all legal fees and any other relief as the court deems just.
He is represented by Gary M. Messing and Jason H. Jasmine of Messing Adam & Jasmine LLP in Sacramento.
Meanwhile, this week the council had a closed session hearing on the status of Bobby Weist’s PERB (Public Employment Relations Board) appeal after a December 2014 ruling denied claims by the Davis Professional Firefighters Association and Union President Bobby Weist that a decision to deny Mr. Weist vacation time and to put him on PIP (performance improvement plan) status was motivated by his union activities and retaliation for his protesting of city policies and failure to agree to bargaining agreements.
The complaint alleged that the City discriminated and retaliated against Fire Captain, Local 3494 President and Chief Negotiator Robert “Bobby” Weist by denying his same-day request for vacation leave on March 13, 2013, and issuing him a PIP on April 9, 2013.
Moreover, it alleged that the city unilaterally “changed terms and conditions of employment by issuing the PIP. These acts allegedly violated the Meyers-Milias-Brown Act…”
An administrative law judge, following a two-day hearing, dismissed both complaints. Mr. Weist appealed the ruling to the PERB Board, which reviewed the entire record. They “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.”
However, they also said that “we reverse the ALJ’s dismissal of the unilateral change allegation concerning the City’s issuance of a PIP to Weist.”
In August of 2013, the Vanguard reported that the Davis Professional Firefighters Association had filed an Unfair Labor Practices Complaint against the City of Davis alleging that, in March and April 2013, the City discriminated/retaliated against Union President and Chief Negotiator Bobby Weist by denying his request for vacation leave and issuing him a PIP, and unilaterally changed policy by issuing the PIP, in violation of the Meyers-Milias-Brown Act (MMBA).
The PERB ruling noted that, on the day in question, Mr. Weist and his crew were scheduled for training. “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.” They note, “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.”
When Division Chief Shawn Kinney received Mr. Weist’s same-day vacation request after 3 pm, he said he had heard Mr. Weist loudly complaining about the training as “BS” earlier that day.
Mr. Kinney conferred with interim Fire Chief Steve Pierce, and “Pierce agreed with Kinney’s recommendation to deny Weist’s vacation request.”
“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 main dispute here was “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.”
PERB wrote that “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.”
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.”
The PERB concluded, “The City did not violate the MMBA by denying Weist’s same-day vacation request under the circumstances of this case.”
However, PERB sided with Local 3494 in the issuance of the PIP to Bobby Weist. Basically, they ruled, “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.”
They wrote, “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.”
PERB argued, “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.”
The union alleged that the use of the PIP and other disciplinary measures was aimed at retaliation for Mr. Weist’s opposition to the city’s reforms of the fire department which is constituted as “protected activity” as union president for 27 years.
However, PERB ruled, “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.’”
They wrote, “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.”
The city council met in closed session on this matter but had no reportable action that it took.
—David M. Greenwald reporting