EMPLOYER-EMPLOYEE RELATIONS POLICY
OF THE CITY OF FONTANA
Article I -- General Provisions ..................... 1 Sec. 1. Title of Policy ................................ 1 Sec. 2. Statement of Purpose ........................... 1 Sec. 3. Definitions .................................... 1 Sec. 4. Employee Rights ................................ 5 Sec. 5. City-Rights . . . .............................. 5 Sec. 6. Meet and Confer in Good Faith Scope ........... 5 Sec. 7. Advance Notice ................................. 6 Sec. 8. Consultation in Good Faith -- Scope ............ 7 Article II -- Representation Proceedings ............ 7 Sec. 9. Petition for Recognition ....................... 7 Sec. 10. Representation Proceedings ...................... 9 Sec. 11. Procedure for Decertification or Withdrawal
of Recognition of Exclusively Recognized
Employee Organization ......................... 12
Sec. 12. Policy and Standards for Determination of
Appropriate Units 14
Sec. 13. Procedure for Modification of Established
Appropriate Units ............................. 15
Sec. 14. Appeals. ...................................... 16 Article III -- Administration ...................... 17 Sec. 15. Submission of Current Information by Recog-
nized Employee Organizations .................. 17
Sec. 16. Employee Organization Activities Use of
City Resources ................................ 17
Sec. 17. Administrative Rules and Procedures ........... 17 Article IV – Impasse Procedures .................... 18 Sec. 18. Initiation of Impasse Procedures .............. 18 Sec. 19. Impasse Procedures ............................ 18 Sec. 20. Costs of Impasse Procedures ................... 18 Sec. 21. State Mandated Factfindings ................... 18 Article V – Miscellaneous Provisions ............... 18 Sec. 22. Construction .................................. 18 Sec. 23. Severability .................................. 19
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Article I -- General Provisions
Sec. 1. Title of Policy. This Policy shall be known
as the Employer-Employee Relations Policy of the City of Fontana.
Sec. 2. Statement of Purpose. This Policy implements
Chapter 10, Division 4, Title 1 of the Government Code of the State of California (Sections 3500, et seq.,) captioned "Local Public Employee Organizations," by providing orderly procedures for the administration of employer-employee relations between the City of Fontana ("City") and such employee organizations as may represent various groups of employees at the several facilities operated in the City. This Policy repeals and supersedes any resolution or policy heretofore enacted
pertaining to Employer-Employee Relations and any policies, rules or regulations pertaining thereto that are in conflict with this Policy.
It is the purpose of this Policy to provide procedures
for meeting and conferring in good faith, to the extent required by law, with Recognized Employee Organizations regarding wages, hours and other terms and conditions of employment. However, nothing herein shall be construed to restrict any legal or inherent exclusive City rights with respect to matters of general legislative or managerial policy, which include among others: The exclusive right to determine the mission of its constituent departments,
commissions and boards; set standards of service; determine the procedures and standards of selection for employment; direct its employees; take disciplinary action; relieve its employees from duty because of lack of work or for other lawful reasons; maintain the efficiency of City operations; determine the methods, means and personnel by which operations are to be conducted; determine the content of job
classifications take all necessary actions to carry out its mission in emergencies; and exercise complete control and discretion over its organization and the technology of
performing its work.
Sec. 3. Definitions.
As used in this Policy, the following terms shall have
the meanings indicated:
A. "Appropriate Unit" means a unit of employee classes
or positions, established pursuant to Section 13 of Article II.
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B. "City" means the City of Fontana, a municipal
corporation, and where appropriate herein, "City" refers to the City Council, the governing body of said City, or any duly authorized management employee as herein defined.
C. "Confidential Employee" means an employee who, in the course of their duties, has access to confidential information relating to the City's administration of employer-employee relations or to matters pertaining to the evaluations of employees.
D. "Consult/Consultation in Good Faith" means to commu- nicate orally or in writing for the purpose of presenting and obtaining views or advising of intended actions; and, as dis- tinguished from meeting and conferring in good faith regarding matters within the required scope of such meet and confer pro- cess, does not necessarily involve an exchange of proposals and counterproposals with an exclusively recognized employee organization in an endeavor to reach agreement in the form of a Memorandum of Understanding, nor is it subject to Article IV hereof.
E. "Day" means calendar day unless expressly
stated otherwise.
F. "Employee" means any person regularly employed full- time by the City and such part-time employees who are formally recognized by the City as "regular/classified" part-time employees. Employee for the purpose of this Policy does not include individuals elected by popular vote.
G. "Employee Organization" means any organization
which includes employees of the City and which has as one of its primary purposes representing such employees in
their employment relations with the City.
H. "Employer-Employee Relations" means the
relationship between the City and its employees and their employee organization, or when used in a general sense, the relationship between City management and employees or
employee organizations.
I. "Executive Employee" means a department head
or the City Manager.
J. "Exclusively Recognized Employee Organization" means an employee organization which has been formally acknowledged by the City as the sole employee organization representing the employees in an appropriate representation unit pursuant to Article II hereof, having the exclusive right to meet and confer in good faith concerning statutorily required subjects pertaining to unit employees, and thereby assuming the
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corresponding obligation of fairly representing such
employees.
K. "Impasse" means that the representatives of the City and a Recognized Employee Organization have reached a point in their meeting and conferring in good faith where their differ- ences on matters to be included in a Memorandum of
Understanding, and concerning which they are required to meet and confer, remain so substantial and prolonged that further meeting and conferring would be futile.
L. "Majority Representative" means an employee
organization, or its duly authorized representative, that has been granted formal recognition by the Municipal Employee Relations Officer as representing the majority of employees in an appropriate unit.
M. "Management Employee" means an employee who has
responsibility for influencing or effecting organization change, formulating, initiating, and/or administering city rules of programs, and/or significantly directing units of work, and/or significant participation in privy or with other access to confidential management decision, and/or the process of management rule formulation and decision making as it relates to employer-employee relations; and/or having
significant authority in the determination of discipline levels, evaluating performance, hiring, termination, and work scheduling actions.
N. "Mediation or Conciliation" means the efforts of an
impartial, mutually agreed upon third person, or persons, func- tioning as intermediaries, to assist the parties in reaching a voluntary resolution to an impasse, through interpretation, suggestions and advice. Mediation and conciliation are inter- changeable terms.
O. "Meet and Confer in Good Faith" (sometimes referred
to herein as "meet and confer" or "meeting and conferring") - - means performance by duly authorized City representatives and duly authorized representatives of an employee
organization recognized as the majority representative of their mutual obligation to meet at reasonable times and to confer in good faith regarding matters within the scope of representation including wages, hours, and other terms and conditions of employment, in an effort to:
(1) Reach agreement on those matters within the
authority of such representatives.
(2) Reach agreement on what will be recommended to
the City Council on those matters within the
decision making authority of the City Council.
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P. "Municipal Employee Relations Officer" means the
City Manager of the City of Fontana or their designee. The City Manager or their designee are the only individuals authorized to administer this Policy.
Q. "Peace Officer" shall be as defined in Section 830,
California Penal Code and as applied to sworn personnel in the Fontana Police Department.
R. "Proof of Employee Support" means (1) an
authorization card recently signed and personally dated by an employee, or (2) a verified authorization petition or
petitions recently signed and personally dated by an
employee. The only authorization which may be considered as proof of employee support hereunder shall be the
authorization last signed by an employee. The words "recently signed" shall mean within thirty (30) days prior to the filing of a petition.
S. "Professional Employee" means employees engaged in
work requiring specialized knowledge and skills attained through completion of a recognized course of instruction, including, but not limited to, attorneys, physicians,
registered nurses, engineers, architects, teachers, and various types of physical, chemical, and biological
scientists.
T. Recognized Employee Organizations" means an
employee organization which has been acknowledged by the Municipal Employee Relations Officer as an employee
organization that represents employees of the City. The rights accompanying recognition are either:
(1) Formal Recognition which is the right to meet and
confer in good faith as the majority
representative in an appropriate unit; or
(2) Informal Recognition which is the right to
consultations in good faith by all recognized
employee organizations.
U. "Scope of Representation" means all matters
relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours and other terms and conditions of employment except, however, that the scope of representation shall not include
consideration of the merits, necessity, or organization of any service or activity provided by law or executive order.
V. "Supervisory Employee" means any employee having
authority, in the interest of the City, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct -5-
them, or to adjust their grievances, or effectively to
recommend such action if, in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
W. “Window Period” means the 29-day period which is
less than 120 days but more than 90 days prior to the
expiration date of a lawful Memorandum of Understanding negotiated by the City and the Exclusively Recognized Employee Organization. Expiration date means the last effective date of the Memorandum of Understanding. The expiration date shall not be counted for the purpose of computing the window period.
Sec. 4. Employee Rights. Employees of the City shall
have the right to form, join and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations including but not limited to wages, hours and other terms and conditions of employment. Employees of the City also shall have the right to refuse to join or participate in the activities of employee organizations and shall have the right to represent themselves individually in their employment relations with the City. No employee shall be interfered with, intimidated, re- strained, coerced or discriminated against by the City or by any employee organization because of their exercise of these rights.
Sec. 5. City Rights. See Section 2.
Sec. 6. Meet and Confer in Good Faith -- Scope.
A. The City, through its representatives, shall meet
and confer in good faith with representatives of formally recognized employee organizations with majority representation rights regarding matters within the scope of representation including
wages, hours, and other terms and conditions of
employment directly applicable to the unit they
represent.
B. The City shall not be required to meet and confer in good faith on any subject pre-empted by Federal or State law, nor shall it be required to meet and confer in good faith on Employee or City Rights as defined in Sections 4 and 2 of this Policy. Any changes that may be deemed necessary from time to time in these rules and regulations shall be excluded from the scope of meeting and conferring.
The City, through its representatives, and
representatives of recognized employee associations may, by mutual agreement, meet and confer on matters of employment -6-
concerning which meeting and conferring is neither required nor prohibited by these rules and regulations.
C. The City will make available to employee
organizations such non-confidential information pertaining to employment relations as is contained in the public records of the agency subject to the limitations and conditions set forth in these rules and regulations and Government Code Sections 6250 et seq.
Such information shall be made available during regular office hours in accordance with the City's rules and
regulations and procedures for making public records available and after payment of reasonable costs, where applicable.
To facilitate the meeting and conferring process, the City shall provide to recognized employee organizations concerned the published data it regularly has available concerning subjects under consideration in meeting and conferring
including data gathered concerning salaries and other terms and conditions of employment provided by comparable public and private employers, provided that when such data is gathered on a promise to keep its source confidential, the data may be provided in statistical summaries so the sources shall not be revealed.
Nothing in this rule shall be construed to require
disclosure of records that are:
(1) Personnel, medical and similar files, the
disclosure of which would constitute an
unwarranted invasion of personal privacy or be
contrary to the merit system principle;
(2) Working papers or memoranda which are not retained
in the ordinary course of business or any records
where the public interest severed by not making the
record available clearly outweighs the public
interest served by disclosure of the record;
(3) Records pertaining to pending litigation to which
the City is a party, or to claims or appeals which
have not been settled; or
(4) Not immediately available and would require
research for an inquirer or to do programming or
assemble data in a manner other than usually done
by the City.
Sec. 7. Advance Notice. Reasonable written notice shall be given to each recognized employee organization affected by any ordinance, rule, resolution or regulation directly
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relating to matters within the scope of representation
proposed to be adopted by the City Council or by any board or commission of the City and shall be given the opportunity to meet with such body prior to adoption. A reasonable number of representatives of the recognized employee groups shall be given reasonable time off from their duties to meet and confer on all matters within the scope of meeting and conferring.
For purposes of attending scheduled meetings with the
designated City representatives on subjects within the scope of representation during regular work hours without loss of compensation, the formally recognized employee organization may select two employee representatives without regard to the size of the organization. Where circumstances warrant, the Municipal Employee Relations Officer may approve the
attendance at such meetings of additional employee
representatives with or without loss of compensation. The employee organization shall, whenever practicable, submit the names of all such employee representatives to the Municipal Employees Relations Officer at least two working days in advance of such meetings. Provided further:
A. That no employee representative shall leave their
duty or work station or assignment without specific
approval of the department head or other authorized
City management official.
B. That any such meeting is subject to scheduling by
City management in a manner consistent with operating
needs and work schedules.
Nothing provided herein, however, shall limit or
restrict City management from scheduling such meetings
before or after regular duty or work hours under
appropriate circumstances.
Sec. 8. Consultation in Good Faith -- Scope. All matters affecting employer-employee relations, including those that are not subject to meeting and conferring, are subject to consultation. The City, through its representatives, shall consult in good faith with representatives of all recognized employee organizations on employer-employee relations matters which affect them. The City Manager shall consult with
representatives of recognized employee organizations that are affected on matters relating to employer-employee relations before any action is taken, unless to do so would be impractical, in which case the City shall consult as soon as it is practical to do so.
Article II -- Representation Proceedings
Sec. 9. Petition for Recognition. There are two levels of -8-
employee organization recognition - formal and informal.
The recognition requirements of each are set forth
below.
A. Formal Recognition -- The Right to Meet and Confer in Good Faith as Majority Representative: An employee
organization that seeks formal recognition for the purpose of meeting and conferring in good faith as the majority
representative of employees in an appropriate unit shall file a petition with the Municipal Employee Relations Officer containing the following information and documentation:
(1) Name and address of the employee organization.
(2) Names and titles of its officers.
(3) Names of employee organization representatives
who are authorized to speak on behalf of its
members.
(4) A statement that the employee organization has,
as one of its primary purposes, representing
employees in their employment relations with the
City.
(5) A statement whether the employee organization is a
chapter or local of, or affiliated directly or
indirectly in any manner with, a regional or
state, or national or international organization,
and, if so, the name and address of each such
regional, state or international organization.
(6) Certified copies of the employee organization's
constitution and bylaws.
(7) A designation of those persons, not exceeding two in number, and their addresses, to whom notice sent by
regular United States mail will be deemed sufficient
notice on the employee organization for any purpose.
In the event one of the individuals designated to
receive notices from the City will be on a leave of
absence for more than a week, the affected
organization may appoint an alternate to receive
notices during his absence. It will be the
responsibility of the organization to notify the
Municipal Employees Relations Officer in writing
whenever an alternate is to be appointed and for
what period of time.
(8) A statement that the employee organization has no
restriction on membership based on race, color,
creed, sex, national origin, age or physical
handicap.
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(9) The job classifications or titles of employees in
the unit claimed to be appropriate and the
approximate number of member employees therein.
(10) A statement that the employee organization has in
its possession written proof, dated within six
months of the date upon which the petition is filed,
to establish that at least 50% of the employees in
the unit claimed to be appropriate have designated
the employee organization to represent them in their
employment relations with the City. Such written
proof shall be submitted for confirmation to the
Municipal Employee Relations Officer or to a
mutually agreed upon disinterested third party.
(11) A request that the Municipal Employees Relations
Officer recognize the employee organization as the
majority representative of the employees in the unit
claimed to be appropriate for the purpose of meeting
and conferring in good faith on all matters within
the scope of representation.
(12) The petition, including the proof of employee
support and all accompanying documentation, shall
be declared to be true, correct and complete, under
penalty of perjury, by the duly authorized
officer(s) of the employee organization executing
it.
B. Informal Recognition -- The Right to Consult in
Good Faith: An employee organization that seeks recognition for purposes of consultation in good faith shall file a petition with the Municipal Employee Relations Officer
containing the following information and documentation:
(1) All of the information enumerated in A - (1)
through (9) and (12) of this Section inclusive.
(2) A statement that the employee organization has in its possession written proof, dated within six months of
the date upon which the petition is filed, to
establish that a majority of employees in the unit
claimed to be appropriate have designated the
employee organization to represent them in their
employment relations with the City. Such written
proof shall be submitted for confirmation to the
Municipal Employee Relations Officer or to a mutually
agreed upon disinterested third party.
Sec. 10. Representation Proceedings.
A. City Response to Recognition Petition.
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An employee organization that seeks formal recognition as the majority representative in an appropriate unit shall file a Petition for Recognition as set forth above. Upon receipt of the Petition for Recognition, the Municipal Employees
Relations Officer shall determine whether:
(1) There has been compliance with the requirements of
the Petition for Recognition; and
(2) The proposed unit is an appropriate unit.
If an affirmative determination is made by the Municipal Employee Relations Officer on the foregoing two matters, said officer shall so inform the petitioning employee
organization, shall give written notice of such request for recognition to the employees in the unit, and shall take no action on said request for thirty (30) days thereafter.
If either of the foregoing matters are not affirmatively determined, the Municipal Employee Relations Officer may offer to consult thereon with such petitioning employee organization and, if such determination thereafter remains unchanged, shall inform that organization of the reasons therefor in writing.
The petitioning employee organization may appeal such
determination in accordance with Section 14 of this Policy.
B. Open Period for Filing Challenging Petition.
Within thirty (30) days of the date written notice was
given to affected employees that a valid recognition petition for an appropriate unit has been filed, any other employee organization may file a competing request to be formally acknowledged as the exclusively recognized employee
organization of the employees in the same or in an overlapping unit (one which corresponds with respect to some but not all the classifications or positions set forth in the recognition petition being challenged), by filing a petition evidencing proof of employee support in the unit claimed to be appropriate of at least thirty (30) percent and otherwise in the same form and manner as set forth in Section 9 of this Article II. If such challenging petition seeks establishment of an overlapping unit, the Municipal Employee Relations Officer shall call for an informal hearing on such overlapping petitions for the purpose of ascertaining the more appropriate unit, at which time the petitioning employee organizations shall be heard.
Thereafter, the Municipal Employee Relations Officer shall determine the appropriate unit or units in accordance with the standards in Section 12 of this Article II. The petitioning employee organizations shall have fifteen (15) days from the date notice of such unit determination is communicated to them by the Municipal Employee Relations Officer to amend their petitions to conform to such determination or to appeal such determination pursuant to Section 14 of this Article II. -11-
C. Election Procedure.
The Municipal Employee Relations Officer shall arrange for a secret ballot election to be conducted by a party agreed to by the Municipal Employee Relations Officer and the concerned employee organization(s), subject to the provisions of this Policy. All employee organizations who have duly submitted petitions which have been determined to be in conformance with this Article II shall be included on the ballot. The ballot shall also reserve to employees the choice of representing themselves individually in their employment relations with the City. This choice shall be designated "No organization." Employees entitled to vote in such election shall be those persons employed in regular permanent positions within the designated appropriate unit who were employed during the pay period immediately prior to the date which ended at least fifteen (15) days before the date the election commences, including those who did not work during such period because of illness, vacation or other authorized leaves of absence, and who are employed in the same unit on the date of the election.
An employee organization shall be formally acknowledged as the Exclusively Recognized Employee Organization for the designated appropriate unit following an election or runoff election if it received a numerical majority of all valid votes cast in the election providing that at least 60% of the employees in the appropriate unit have voted. In the event that 60% of the employees in the appropriate unit have failed to vote, another election shall be scheduled within ninety (90) days. In an election involving three or more choices, where none of the choices receives a majority of the valid votes cast, a run-off election shall be conducted between the two choices receiving the largest number of valid votes cast; the rules governing an initial election being applicable to a run-off election.
There shall be no more than one valid election under this Policy pursuant to any recognition or unit modification petition in a 12-month period affecting the same or a substan- tially similar (as determined by the Municipal Employee Relations Officer) unit.
In the event that the parties are unable to agree on a
third party to conduct an election, the election shall be conducted by the State Mediation and Conciliation Service or other disinterested party designated by the Municipal
Employee Relations Officer.
Costs of conducting elections shall be borne in equal
shares by the City and by each employee organization
appearing on the ballot.
D. Recognition Based on Written Proof of Employee
Support. If the written proof submitted by the employee organization in the unit found to be appropriate establishes that it represents more than 50% of the employees in such -12-
unit, and there has been no challenging petition filed that is supported by written proof that at least 30% of the
employees in the unit, the Municipal Employees Relations Officer shall grant formal recognition to such employee organization without a secret ballot election. The
determination as to whether sufficient employee support exists shall be made by a neutral third party, agreed upon by the City and the involved employee organizations. If the parties cannot agree upon a neutral third party, the
California State Mediation and Conciliation Service shall be the neutral third party and shall verify the exclusive or majority status of the employee organization. In the event that the neutral third party determines that a second labor organization has written proof of the support of at least 30% of the employees in the unit in which recognition is sought, the neutral third party shall order an election to establish which labor organization, if any, has majority status.
Sec. 11. Procedure for Decertification or Withdrawal
of Recognition of Exclusively Recognized Employee
Organization.
A. Petition for Decertification.
A Decertification Petition alleging that the incumbent
Exclusively Recognized Employee Organization no longer
represents a majority of the employees in an established appropriate unit may not be filed with the Municipal Employee Relations Officer during the term of a lawful Memorandum of Understand except during the Window Period specified in Article I, Section 3 of this Policy. A Decertification Petition may be filed by two or more employees or their representative, or an employee organization, and shall contain the following
information and documentation declared by the duly authorized signatory under penalty of perjury to be true, correct and complete:
(1) The name, address and telephone number of the
petitioner and a designated representative authorized to receive notices or requests for further information.
(2) The name of the established appropriate unit and
of the incumbent Exclusively Recognized Employee
Organization sought to be decertified as the representative of that unit.
(3) An allegation that the incumbent Exclusively Recognized Employee Organization no longer represents a majority of the employees in the appropriate unit, and any other relevant and material facts relating thereto.
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(4) Proof of employee support that at least thirty (30) percent of the employees in the established appropriate unit no longer desire to be represented by the incumbent Exclusively Recognized Employee Organization. Such proof shall be submitted for confirmation to the Municipal Employee Relations Officer or to a mutually agreed upon disinterested third party within ten (10) days of filing the petition.
An employee organization may, in satisfaction of the
Decertification Petition requirements hereunder, file a Petition under this section in the form of a Recognition Petition that evidences proof of employee support of at least thirty (30) percent that includes the allegations and
information required under paragraphs A (2)-(4) inclusive of this Section 11, and otherwise conforms to the requirements of Section 9 of this Article.
The Municipal Employee Relations Officer shall initially determine whether the Petition has been filed in compliance with the applicable provisions of this Article II. If their determination is in the negative, they shall offer to consult thereon with the representative(s) of such petitioning
employees or employee organization and, if such determination thereafter remains unchanged, shall return such Petition to the employees or employee organization with a statement of the reasons therefor in writing. The petitioning employees or employee organization may appeal such determination in
accordance with Section 14 of this Article II. If the
determination of the Municipal Employee Relations Officer is in the affirmative, or if their negative determination is reversed on appeal, they shall give written notice of such Decertification or Recognition Petition to the incumbent Exclusively Recognized Employee Organization and to unit employees.
The Municipal Employee Relations Officer shall thereupon arrange for a secret ballot election to be held on or about fifteen (15) days after such notice to determine the wishes of unit employees as to the question of decertification and, if a Recognition Petition was duly filed hereunder, the question of representation. Such election shall be conducted in conformance with Section 10 of this Article II.
B. Municipal Employee Relations Officer Ordered
Election.
During the Window Period or upon expiration of a lawful Memorandum of Understanding, the Municipal Employee Relations Officer may on their own motion, when they have reason to believe that a majority of unit employees no longer wish to be represented by the incumbent Exclusively Recognized Employee Organization, give notice to that organization and all unit employees that they will arrange for an election to determine -14-
that issue. In such event any other employee organization may within fifteen (15) days of such notice file a Recognition Petition in accordance with this Section 11, which the
Municipal Employee Relations Officer shall act on in
accordance with this Section 11.
C. Withdrawal of Recognition Based on Good Faith Doubt.
The City may withdraw recognition from an employee
organization which has previously been granted formal
recognition if the City has a good faith doubt as to the continued majority status of the employee organization if done in accordance with the procedures and safeguards required by the National Labor Relations Act.
Recognition may not be withdrawn under this procedure
until the employee organization in question has served for a full year, as measured by the date of election, as a recognized employee organization.
D. Effect on Existing Memorandum of Understanding.
A valid Memorandum of Understanding shall not be affected by any of the procedures set forth in subsections (A)-(C), and the City shall not be obligated to meet and confer with any newly recognized employee organization to which the Memorandum of Understanding applies, on any matters addressed or
considered in the meet and confer sessions which resulted in the Memorandum of Understanding, until such Memorandum of Understanding expires.
E. Contract Bar.
A Petition for Decertification under this Section may not be considered by the Municipal Employee Relations Officer during the term of a lawful Memorandum of Understanding except during the Window Period. Any Petition for Decertification that is filed during the term of a lawful Memorandum of Understanding other than during the Window Period will be summarily rejected by the City, and will not be subject to the appeal procedures under Section 14 of this Article.
Sec. 12. Policy and Standards for Determination of Appro- priate Units. The policy objectives in determining the
appropriateness of units shall be the effect of a proposed unit on (1) the efficient operations of the City and its
compatibility with the primary responsibility of the City and its employees to effectively and economically serve the public,) and (2) providing employees with effective
representation based on recognized community of interest considerations. These policy objectives require that the appropriate unit shall be the broadest feasible grouping of -15-
positions that share an identifiable community of interest.
Factors to be considered shall be:
A. Similarity of the general kinds of work
performed, types of qualifications required, and the
general working conditions;
B. History of representation in the City, and
similar employment: except however, that no unit shall be deemed to be an appropriate unit solely on the basis of the extent to which employees in the proposed unit have organized;
C. Consistency with the organizational patterns of
the City;
D. Number of employees and classifications, and the
effect on the administration of employer-employee relations created by the fragmentation of classifications and
proliferation of units; and
E. Effect on the classification structure and impact on the stability of the employer-employee relationship of dividing a single or related classifications among two or more units.
Notwithstanding the foregoing provisions of this Section, managerial, supervisory and confidential responsibilities, as defined in Section 3 of this Policy, are determining factors in establishing appropriate units hereunder, and therefore managerial, supervisory and confidential employees may only be included in a unit consisting solely of managerial, supervisory or confidential employees. Managerial, supervisory and
confidential employees may not represent any employee
organization which represents other employees.
The Municipal Employee Relations Officer shall, after
notice to and consultation with affected employee
organizations, allocate new classifications or positions, delete eliminated classifications or positions, and retain, reallocate or delete modified classifications or positions from units in accordance with the provisions of this Section.
Sec. 13. Procedure for Modification of Established Appro- priate Units. Requests by employee organizations for modifica- tions of established appropriate units may be considered by the Municipal Employee Relations Officer only during the period specified in Section 11 of this Article II. Such requests shall be submitted in the form of a Recognition Petition and, in addition to the requirements set forth in Section 9 of this Article, shall contain a complete statement of all relevant facts and citations in support of the proposed modified unit in terms of the policies and standards set forth in Section 12 hereof. The Municipal Employee Relations Officer shall process -16-
such petitions as other Recognition Petitions under this Article II.
The Municipal Employee Relations Officer may on said
Officer's own motion propose during the period specified in Section 11 of this Article that an established unit be
modified. The Municipal Employee Relations Officer shall give written notice of the proposed modification(s) to any
affected employee organization and shall hold a meeting concerning the proposed modification(s), at which time all affected employee organizations shall be heard. Thereafter the Municipal Employee Relations Officer shall determine the composition of the appropriate unit or units in accordance with Section 12 of this Article II, and shall give written notice of such determination to the affected employee
organizations. The Municipal Employee Relations Officer's determination may be appealed as provided in Section 14 of this Article. If a unit is modified pursuant to the motion of the Municipal Employee Relations Officer hereunder, employee organizations may thereafter file Recognition Petitions seeking to become the Exclusively Recognized Employee
Organization for such new appropriate unit or units pursuant to Section 9 hereof.
Sec. 14. Appeals. An employee organization aggrieved by an appropriate unit determination of the Municipal Employee Relations Officer under this Article II may, within ten (10) days of notice thereof, request the intervention of the California State Medication and Conciliation Service pursuant to Government Code Sections 3507.1 and 3507.3, or may, in lieu thereof or thereafter appeal such determination to the City Council for final decision within fifteen (15) days of notice of the Municipal Employee Relations Officer's determination or the termination of proceedings pursuant to Government Code Sections 3507.1 and 3507.3, whichever is later.
An employee organization aggrieved by a determination of the Municipal Employee Relations Officer that a Recognition Petition (Section 9); Challenging Petition (Section 9) or Decertification Recognition Petition (Section 11) -- or employees aggrieved by a determination of the Municipal Employee Relations Officer that a Decertification Petition (Section 11) -- has not been filed in compliance with the applicable provisions of this Article may, within ten (10) days of notice of such determination, appeal the determination to the City Council for final decision.
When an appeal is filed regarding a Decertification
Recognition Petition (Section 11), the City shall remain neutral in any and all subsequent proceedings. To that end, prior to the date of any hearing, the City may submit to the hearing officer a statement about the decision being
appealed, including the facts underlying the City’s decision. -17-
The purpose of this statement shall be to facilitate an accurate and complete record. The employee organization may also submit a statement to the hearing officer outlining its objections to the City’s decision. The City will not
represent or otherwise take any actions on behalf of any employee organization during the proceeding. The City will not object to any request by the employee organization to have a court reporter present to steno graphically record the proceeding. Appeals to the City Council shall be filed in writing with the City Clerk, and a copy thereof served on the Municipal Employee Relations Officer. The City Council shall commence to consider the matter within thirty (30) days of the filing of the appeal. The City Council may, in its discretion, refer the dispute to a third-party hearing process or consider the matter itself pursuant to written briefs or an informal hearing process. Any decision of the City Council on the use of such procedure, and/or any decision of the City Council determining the substance of the dispute shall be final and binding.
Article III -- Administration
Sec. 15. Submission of Current Information by Recognized Employee Organizations. All changes in the information filed with the City by an Exclusively Recognized Employee
Organization under items (1) through (8) of its Recognition Petition under Section 9 of this Policy shall be submitted in writing to the Municipal Employee Relations Officer within ten (10) days of such change.
Sec. 16. Employee Organization Activities -- Use of City Resources. Access to City work locations and the use of City paid time, facilities, equipment and other resources by employee organizations and those representing them shall be authorized only to the extent provided for in Memoranda of Understanding and/or administrative procedures, shall be limited to lawful activities consistent with the provisions of this Policy that pertain directly to the employer-employee relationship and not such internal employee organization business as soliciting membership, campaigning for office, and organization meetings and elections, and shall not interfere with the efficiency, safety and security of City operations.
Sec. 17. Administrative Rules and Procedures. The Municipal Employee Relations Officer is hereby authorized to establish such rules and procedures as appropriate to implement and administer the provisions of this Policy after consultation with affected employee organizations.
Article IV -- Impasse Procedures
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Sec. 18. Initiation of Impasse Procedures. If the meet and confer process has reached impasse as defined in this Policy, either party may initiate the impasse procedures by filing with the other party a written request for an impasse meeting, together with a statement of its position on all issues. An impasse meeting shall then be scheduled promptly by the Municipal Employee Relations Officer. The purpose of such meeting shall be:
a. To review the position of the parties in a final effort to reach agreement on a Memorandum of Understanding; and b. If the impasse is not resolved, to discuss arrangements for the utilization of the impasse procedures provided herein.
Sec. 19. Impasse Procedures. Impasse procedures are
as follows:
If the parties agree to submit the dispute to mediation, and agree on the selection of a mediator, the dispute shall be submitted to mediation. All mediation proceedings shall be private and nonbinding, unless otherwise specifically mutually agreed to in writing. The mediator shall make no public recom- mendation, nor take any public position at any time concerning the issues.
If the parties fail to agree to mediation or to a mediator, or having so agreed, fail to resolve the dispute through mediation, the City Council may take such action as it, in its discretion, deems appropriate as in the public interest. Any legislative action by the City Council on the impasse shall be final and binding.
Sec. 20. Costs of Impasse Procedures. The costs for the services of a mediator utilized by the parties, and other mutually incurred costs of mediation, shall be borne equally by the City and the Exclusively Recognized Employee Organization.
The cost for other separately incurred costs, shall be borne by such party.
Sec. 21. State Mandated Factfinding. To the extent that the impasse resolution procedures set forth in this article conflict with state law and regulations regarding mandatory factfinding, those state laws and regulations shall control.
Article V - Miscellaneous Provisions
Sec. 22. Construction. This Policy shall be
administered and construed as follows:
(a) Nothing in this Policy shall be construed to deny to any person, employee, organization, the City, or any authorized -19-
officer, body or other representative of the City, the rights, powers and authority granted by Federal or State law.
(b) This Policy shall be interpreted so as to carry out its purposes as set forth in Section 2 of Article I.
(c) Nothing in this Policy shall be construed as making the provisions of California Labor Code Section 923 applicable to City employees or employee organizations, or of giving employees or employee organizations the right to participate in, support, cooperate or encourage, directly or indirectly, any strike, sickout or other total or partial stoppage or slowdown of work. In consideration of and as a condition of initial and continued employment by the City, employees recognize that any such actions by them are in violation of their conditions of employment except as expressly otherwise provided by legally preemptive State or contrary local law. In the event employees engage in such actions, they shall subject themselves to discipline up to and including termination, and may be permanently replaced, to the extent such actions are not prohibited by preemptive law; and employee organizations may thereby forfeit any rights accorded them under City law or contract.
The rights, powers, and authority of the City Council in all matters, including the right to maintain any legal action, shall not be modified or restricted by this Policy.
Sec. 23. Severability. If any provision of this Policy, or the application of such provision to any persons or circumstance, shall be held invalid, the remainder of this Policy, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.