Recently, a California Court of Appeals upheld a PERB decision overturning a disciplinary decision to terminate a firefighter who allegedly misused his sick leave. The case, City of South Pasadena v PERB (2020) PERB Case No. 2692-M; Court of Appeal Case No. B304596, highlights that a disciplinary decision, valid or not, will be overturned if the primary motive of the discipline is retaliation.
The firefighter in question was an active Union President.
Due to an existing back injury he was on a six-week sick leave beginning
December 2015. However, in January 2016 the firefighter participated in the
California Spartan Race, which is an eight-mile run including many physical
obstacles. He was later terminated for his participation in the race. Although
management was aware he participated in the race at the time, an investigation
was not initiated until months later. During that period , the fire fighter as
Union President approved the filing of an unfair practice charge on behalf of
the association. It was at that time that the City and Management decided to
investigate the fire fighter’s participation in the Spartan Race.
In rescinding the
termination, PERB noted the timing of the investigation was a major indicator
of improper punishment. In fact, PERB specifically noted that saving the
investigation for later conveys other motives behind the action. Additionally,
the fact that a normal disciplinary action for similar circumstances would have
been informal counseling rather than a “death penalty that would eradicate any
prospects of working for the Fire Department again.” Such disproportionate punishment clearly suggests
improper retaliation rather than fair discipline. This important case clarifies
that public safety employees are
protected from pretextual disciplines because management cannot use minor
violations as excuses to punish the employees for engaging in protected union activities.
