Attachment B -
May 27, 2021
Staff Report
CITY COUNCIL STAFF REPORT
D
ATE: MAY 27, 2021 UNFINISHED BUSINESS
S
ubject: DISCUSSION AND POSSIBLE APPROVAL OF A C OMMUNITY
WORKFORCE AGREEMENT BY AND BETWEEN THE CITY OF PALM
SPRINGS AND SAN BERNARDINO/RIVERSIDE COUNTIES BUILDING
AND CONSTRUCTION TRADES COUNCIL, AFL -CIO AND THE
SIGNATORY CRAFT COUNCILS AND UNIONS
F
rom: Justin Clifton, City Manager
B
y: Jeffrey S. Ballinger, City Attorney
SUMMARY
P
ursuant to direction given by the City Council at the February 27, 2020 and April 8, 2021 City Council meeting s, this report proposes a Community Workforce Agreement (CWA), to provide goals for local hiring and training programs by contractors on City of Palm Springs public works projects valued at $1 million or more over the next five years.
This staff report focuses on the five (5) remaining issues that were identified at the April 8, 2021 City Council meeting.
RECOMMENDATION:
D
iscuss and consider approval of a Community Workforce Agreement by and between the City of Palm Springs and the San Bernardino/Riverside Counties Building and Construction Trades Council, AFL- CIO and the Signatory Craft Councils and Unions , including five deal points that remain at issue, as discussed below.
BACKGROUND:
A
t the February 27, 2020 City Council meeting, the City Council directed staff to forge a partnership between the City of Palm Springs and the San Bernardino/Riverside Building and Construction Trades Council (“Building Trades Council”) as well as other independent labor groups (i.e. Southwest Regional Council of Carpenters) with a goal to create construction jobs for local residents, veterans and minorities on City public works projects valued at $1 million or more.
Item 4A-1
City Council Staff Report
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Community Workforce Agreement
At the April 8, 2021 City Council meeting, the City Council discussed five (5) remaining “deal point” issues that had yet to be agreed upon by the Building Trades Council.
These remaining issues include:
• A n exemption from the applicability of the CWA for local contractors. • A provision allowing the City to terminate the CWA “without cause”. • An opportunity for the City to re-bid a project without the CWA if the City does not receive an adequate number of responsive bids, or the bids received exceed the City’s cost estimate.
• A provision providing for the payment of benefits or “amounts in lieu of benefits” to non-union workers.
• A provision protecting the City from being liable for monetary damages.
Following the April 8, 2021 Council meeting, legal counsel for the Trades Counsel requested a Word version of the draft Community Workforce Agree ment. A revised version was then sent back to the City Attorney, removing all of the City’s previously proposed language that sought to address these five (5) issues. The only new substantive language provided by legal counsel for the Trades Council is a new Section
10.2(C), which calls for final and binding arbitration in the event that the City or Union have a grievance for violation of the CWA. A copy of the CWA provided by the Trades Council, including the Trades Council’s requested changes shown in redline, accompanies this staff report as Attachment 1 . As the Council will see, the five (5) issues that were raised and discussed at the April 5 City Council meeting remain unresolved.
Because these business deal points have not been resolved, it was thought that the City Council should consider these issues and determine whether, as a policy matter, any one or more of these issues, if left unresolved, would hinder the City’s ability to enter into the proposed CWA. As such, each of these deal points is addressed below. 1 Exemption from the applicability of the CWA for local contractors
One of the stated goals of the CWA is to encourage and provide for the hiring of local contractors and workers. At least on e non-union contractor with an office in t he City of Palm Springs, and who has performed construction work on City public works projects in the past, requested an exemption from the applicability of the CWA for local non - union contractors. City staff and the City Attorney’s Office agree that this is a reasonable request, since it would aid in contractors’ efforts to hire locally . As such, the City Attorney’s Office have drafted such an exemption, as proposed new section 2.5.11:
“2.5.11 Local Contractor
. This Agreement shall not apply to work
performed by any local contractor. For purposes of this subsection 2.5.11, a contractor shall be deemed to be “local” if that contractor meets any one of the following criteria:
1 As part of the preparation of the April 8, 2021 staff report, the City Attorney’s Office solicited the comments/views of the Trade Council, including s haring a draft of the staff report. The Trades Council responded with the correspondence that is attached as Attachment 2.
Item 4A-2
City Council Staff Report
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Community Workforce Agreement
(a
) the contractor has a principal headquarters or permanently staffed regional office physically located within the City and has held a City of Palm Springs business license for at least six (6) months prior to the date of its bid. For purposes of this subparagraph (a), a post office box alone does not qualify as a physical presence.
(b) the owner(s) who hold more than fifty percent (50%) ownership interest in the contracting company reside within Palm Springs; or
(c) more than fifty percent (50%) of the employees of the contracting company reside within Palm Springs.”
Th
e Trade Council’s representatives have indicated that they could not agree to such an exemption. According to the Trades Council representatives, local hire goals are but one of the many benefits that arise from a CWA, and exempting a contractor, simply because that contractor is local to Palm Springs would avoid the other benefits of the CWA applying to that contractor. For example, another community benefit of the CWA is the encouragement of the use of union workers on public works projects. Exempting a local contractor from the application of the CWA, simply because the contractor is local, according to the Trades Council, will result in that community benefit potentially not being realized (assuming the local contractor is not a union contractor).
A
n imp ortant point here, however, is that if a non -union local contractor (or any non- union local subcontractor of any tier) is not exempted from the CWA and chooses to bid on, and is awarded, a contract subject to the CWA , that non-union local contractor (or non-union local subcontractor of any tier) would be required to alternate hiring of employees for the project , until a maximum of five ( 5) of its core employees are engaged. Thereafter, all employees must be hired from the union hall. Section 3.8.1 reads:
“3
.8.1 Contractors not currently signatory to a Master Labor Agreement may employ, as needed, first, a member of his core workforce 2, then an employee through a referral from the appropriate Union hiring hall, then a second core employee, then a second employee through the referral system, and so on until a maximum of five (5) core employees are employed, thereafter, all additional employees in the affected trade or craft shall be requisitioned from the craft hiring hall….”
T
he effect of this process will be to reduce the number of core, non-union local contractor employees who would otherwise be employed to work on the City’s project 2 The “core” work force is comprised of those employees whose names appeared on the Contractor’s active payroll for sixty (6 0) of the one hundred (100) working days immediately before award of Project Work to the Contractor; who possess any license required by state or federal law for the Project Work to be performed; who have the ability to safely perform the basic functions of the ap plicable trade and who have been residing within Riverside County for the one hundred (100) working days immediately prior to the award of Project Work to the Contractor. (CWA, § 3.8.2.) This definition, according to one local contractor, is quite narrow. Although it may be possible that some of contractors’ employees may qualify as “core”, it is unlikely.
Item 4A-3
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Community Workforce Agreement
and replace them with members referred to that contractor through the union hiring hall’s referral system . As one local contractor notes, the CWA requires contractors to become signatory to over twenty (20) unions for the duration of the project bid under the CWA, most of which the contractor does not have an existing relationship with. This causes the contractor to be resp onsible for managing a work force with different work rules, expectations, and craft culture than the contractor is accustomed to.
City staff has reached out to the City of Perris, to see what that City’s experience has been with its CWA. The Perris Cit y Engineer indicated that certain contractors had issues with the union halls and the union members provided for a project. For example, a union hall that provided an operator required that the operator also have supervisor , which resulted in adding costs to the overall project. Other issues provided by the contractors included having to use union members from outside of the City , such as from the City of Los Angeles. The travel time impacted the amount of time the union members were actually at the worksite causing certain delays.
In addition, one local contractor has noted that the CWA does not permit contractors to engage in direct hiring in order to meet the local and minority thresholds. Instead, all hires, above the core employees, must come directly through the union hiring hall. If the union does not have a sufficient number of local residents or minority workers for dispatch, the contractor is left with no other option to recruit and hire individuals from those targeted groups. Instead, according to the local contractor, the contractor is left to the mercy of the unions with regard to their ability to meet the targeted hiring requirements of the CWA.
Therefore, the Council should consider whether it wishes to exempt local contractors from the application of the proposed CWA.
Termination “Without Cause”
In municipal government, termination “without cause” provisions are common place. In the case of a CWA, City staff and the City Attorney’s Office believe that, if (for example) the CWA proves, after some time, to not yield the results that were anticipated, or if the administrative costs and effort required to remain a party to the CWA prove higher than desired by the City, the City should be able to extricate itself from the relationship, without legal or monetary liability.
Yet, no CWA entered into by any other local public agency has been found that contains a termination without cause. And, the Trades Council representatives have indicated that they would not be able to agree to the inclusi on of such a provision. According to the Trades Council representatives, the Trade Council and its members will be investing time and money into meeting their obligations under the CWA, and they believe that it would be unfair to them to allow the City to exit the Agreement without caus e. In addition, they believe that the City would have adequate protections to guard against the Trades Council not meeting its obligations under the CWA. Finally, the Trades Item 4A-4
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May 27, 2021 - Page 5
Community Workforce Agreement
Council has provided a summary of nine (9) 3 recently bid projects in the City of P erris, which has a CWA. Three (3) of the four (4) CWA projects received bids under the engineer’s estimate, while only two (2) of the five (5) non-CWA projects came in with bids under the engineer’s estimate.
C
ity staff and the City Attorney disagree with the Trades Council’s position, and therefore would seek Council direction as to whether the inclusion of such a clause is necessary for the City Council to agree to enter into the CWA.
A
lternatively, the City Council could consider a shorter -term for the CWA (e.g. 2 years) without a termination clause. A shorter term will give the City an opportunity to competitively bid some of its applicable public works projects and determine if the benefits gained through imposing the CWA on the bids are realized.
Opportunity to Re-bid if Not Enough Responsive Bids
Anot
her clause providing the City with protection against higher than expected costs that might result from the CWA is a clause that provides that the City may proceed wi th bidding an otherwise covered public project if either of two situations arise:
• I
f the City does not receive bids from at least three (3) responsible contractors; or • If the lowest bid is more than ten percent (10%) of the engineer’s estimate.
B
elow is the proposed language:
“2.
5.12 Lack of Adequate Bids . In the event the City does not receive bona fide bids on otherwise Covered Work on or before the deadline for receiving such bids from at least three (3) responsible Contractors or the lowest responsive and responsible bid on a Cover ed Project is in excess of ten percent (10%) of the engineer’s estimate, the City reserves the right to reject all bids and re-advertise the Project with or without the application of this Agreement.”
A
provision similar to this was included in a 2016 Pr oject Labor Agreement approved by the Sweetwater Union High School District, in San Diego County.
F
ollowing City staff discussions with previous and current contractors , it was generally expressed that the CWA , as it is currently proposed, would create some disadvantages to both union and non- union contractors located outside of Palm Springs or the Coachella Valley.
D
ue to market realities, the majority of contractors who bid on projects in Palm Springs tend to be located outside of our area. The volume of work within the larger metropolitan areas incentivizes the various trade workers to live in close proximity. 3 The summary actually includes ten (10) projects, but because one of those projects (a non- PWA project) apparently did not have an engineer’s estimate, it is of doubtful rel evance with regard to the relationship to the engineer’s estimate. However, that non-PWA project did result in one bid to the City.
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Community Workforce Agreement
The majority of project cost is found in the materials that are incorporated into the projects. This results in the labor aspect of the bid often being the deciding factor and the margins are very tight. The work (whether performed by the prime or a sub- contractor), is executed by teams or crews that are skilled in not only their specific task but functioning on a high level within the crew itself as well as the individuals within that crew with which they have a long and personal work history. The proposed CWA could result in a contractor leaving long term, trained employees at home in order to bring in unknown, and unfamiliar workers. This creates uncertainty and the possibility of loss of production and/or earnings. This also could lead to the possibility of becoming less competitive in the bidding process when anticipating and/or compensating for production issues.
O
n recent projects, both union and non- union contractors have been competitive with one another. However, staff believes that the proposed CWA would make it less likely that a non- union contractor could be selected, primarily due to the staffing issues mentioned above, but also due to the structure of benefit payments and obligations related to apprenticeship programs. Union Contractors would be less affected but would suffer from the required staff changes and level of complexity of man aging an alternative labor program.
A
local union contractor should be minimally affected. Their personnel generally reside within the prescribed area, which would limit their need to add or substitute new workers. This is an advantage to the contractor but may not provide the desired result of new local hires. Additionally, it is presumed that this would result in a bidding advantage, based on a limited need to change their typical operations.
G
enerally, the advantage to local , union contractors (of which there are fewer) and the diminished a bility of non- local union, and non- union contractors to competitively bid would be expected to result in an increase in cost to local projects.
N
otwithstanding these practical issues, and the fact that ano ther Trades Council has agreed to include this language in another local agency’s agreement, the San Bernardino/Riverside Trades Council has indicated that the crafts within this Trade Council would not agree to such language, since it would have the poten tial effect of limiting the application of the C WA. In addition, at least one local contractor noted the possibility that re -bidding a project would create administrative burdens on contractors and subcontractors, in terms of having to submit additional bids, in the event of a re-bid.
T
he Trades Council has also stated that other local cities (Perris and Moreno Valley) have entered into CWAs recently and have not had unexpected cost results. However, those two cities have not had a large number of projects by which to determine the effects of a CWA on their project costs. Therefore, in the opinion of City staff and the City Attorney, there is not enough experience in the region to proceed with a CWA without this sort of protection for the City.
Item 4A-6
City Council Staff Report
May 27, 2021 - Page 7
Community Workforce Agreement
Payment of Benefits/Amount In Lieu of Benefits to Non-Union Workers O
ne issue raised by several stakeholders was the fact that Section 5.2 of the proposed CWA requires non-union contractors to pay into union health and retirement plans, even though those non- union contractors may never receive any benefit from such contributions.
A
ll City public works projects that would be subject to the CWA are currently subject to state prevailing wage rates. he state prevailing wage rates currently paid to all contractor em ployees awarded a contract for a City public works project include the minimum wage plus fringe benefits for health, paid leave and other benefits. The impact of Section 5.2, as proposed by the Trades Council, would be to redirect payment of fringe benefits directly to non-union contractor employees and to pay those to the union health and retirement plans. In order for those same non-union contractor employees to make use of those fringe benefit payments, those employees would be required to work the prescribed minimum number of working days and otherwise qualify for receipt of the union hall’s fringe benefits. There is no guarantee that all or any of the non- union contractor employees employed on the City’s public works projects during the term of the CWA will have the opportunity to receive the benefit of the fringe benefit payments previously paid directly to them that would instead, under the CWA, be paid into the union health and retirement plans.
T
he City Attorney’s Office has drafted language in S ection 5.2, based on language proposed by Santa Barbara County, which would instead provide that a non- union contractor provide its employees with either compensation in an amount equal to the benefits that would otherwise be paid to the union health/reti rement plans or actually contribute to those workers’ benefit plans.4 The effect of this language is that non-union workers would receive the benefit of those payments.
A s
omewhat similar approach was agreed to in 2013, by the Southwestern Community College District and the Trades Council in that County. In that agreement, all contractors were required to pay contributions toward established employee benefit funds.
However, if a contractor provided benefits to its core workforce that were equal to, or better than, those required by the union benefits programs, then that contractor would not have to pay into the union benefits program but could instead utilize its own benefit program. The benefits language of that agreement accompanies this staff repor t as Attachment 3 . This language incentivized contractors to provide benefits that are at least as generous as those provided by the union programs.
The San Bernardino/Riverside Trades Council has indicated that it would not agree to modifying its benefits provision. According to the Trades Council, one of the community benefits of a CWA is the encouragement of the use of union workers on public works projects. By essentially granting to non- union workers the health/retirement benefits (or payments in l ieu thereof) that have been fought for by the unions, this would dis - incentivize workers from forming and/or joining unions, especially younger workers who 4 Although this language was proposed by Santa Barbara County, it appears as though the local Trades Council in that area never agreed to the language.
Item 4A-7
City Council Staff Report
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Community Workforce Agreement
might find more short -term value in an in- lieu payment over the long- term benefits of a health/retirement plan negotiated by the unions.
Again, the City Council is being asked to determine, as a policy matter, whether it wishes to enter into an agreement that requires non- union contractors to pay into union health and retirement plans, even though thos e non-union contractors may never receive any benefit from such contributions. Or, would the City Council prefer language that helps ensure that non-union workers receive benefits or the value of these benefits payments.
Immunity from Monetary Damages
Because the City has never entered into an agreement such as the proposed CWA, City staff and the City Attorney’s Office are concerned that there could be unknown monetary liabilities that could arise from a potential breach by the City, even if such breach were inadvertent. As a result, the City Attorney’s Office has provided a clause, common in land -use development agreements, which provides that the City will not be liable, monetarily, for any potential breach by the City in the future. The other parties to the CWA would still be able to pursue other legal remedies, such as declaratory relief (when a court decides something) or injunctive relief (where a court orders a party to do/not do something). However, under the proposed language, the City would n ot have to pay monetary damages.
As discussed in the April 8, 2021 staff report, the Trades Council previously responded that such a provision would give the City cart blanche to disregard the CWA and would set a precedent for such language to appear in other CWAs. However, as discussed above, the Trades Council would still have other legal remedies, including asking a court to declare a breach and order the City to do something that happens to be called for in the CWA.
At the April 8, 2021 City Council meeting, a representative from the Trades Council indicated that he thought the Trades Council would be willing to consider a mutual waiver of monetary damages, especially if there were an attorneys’ fees provision, for the prevailing party. As seen i n the accompanying proposed draft from the Trades Council, however, t he Trades Council is proposing that monetary damages still be available to the Trades Council, albeit through binding arbitration rather than through court proceedings.
As previously not ed in the April 8 staff report , the City Attorney and City staff bel ieve, and continue to believe, that a mutual waiver of monetary damages provision, combined with an attorneys’ fees clause, adequately protects both parties’ interests in having the CWA e nforced. In addition, in accordance with the Council discussion at the April 8 meeting, at which the Trades Council was present, the City Council business retention liaisons believe that a mutual waiver of monetary damages provision, combined with an attorneys’ fees clause, is a reasonable provision that should be included in the CWA.
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Community Workforce Agreement
Because there is not agreement on this deal point, City Council is being requested to decide whether having this protection in the CWA is important to the City Council.
In conclusion, City staff and the City Attorney would request that the Ci ty C ouncil consider these five (5) remaining deal point issues and decide whether one or all of them is necessary for inclusion in any CWA that the City Council could approve.
ENVIRONMENTAL IMPACT:
The requested City Council action is not a “Project” as defined by the California Environmental Quality Act (CEQA). Pursuant to Section 15378(a), a “Project” means the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indi rect physical change in the environment. According to Section 15378(b), a Project does not include: (2) “Continuing administrative or maintenance activities, such as purchases for supplies, personnel - related actions, general policy and procedure making….” T his CWA constitutes such procurement and general policy and procedure making.
FISCAL IMPACT
:
As discussed in the February 27, 2020 staff report, there is conflicting information regarding the fiscal impacts of Community Workforce Agreements and Labor Pe ace Agreements. Some reports estimate that Community Workforce Agreements may increase the cost of public works projects anywhere from 7% to 20%. On the other hand, conversations with local contractors have indicated that there may be only insignificant increases. Finally, no studies have been found that account for the secondary impacts of CWAs, in terms of the benefits to the community resulting from increased employment and apprentice opportunities. As such, it is not possible to say definitively what the fiscal impacts of these agreement programs are.
The CWA includes tasks for an Administrator, which would be the responsibility of the City. Generally, the industry standard costs for monitoring a CWA is between 0 .70 percent and 1.33 percent, depen ding on the size of the project or the cost of construction. Therefore, City staff believes that a midpoint of 1 percent of the project costs would be a reasonable estimate for the administrative staff support costs of the CWA Administrator. These additional costs will be reflected in future City public works project cost estimates and budgets.
As referenced above, City staff reached out to the City of Perris, to see what that City’s experience has been with its CWA. T he Perris City Engineer indicated t hat co sts for administration capital projects have increased since the impleme ntation of that City’s PWA.
Finally, while it is difficult to quantify and validate the full impact the CWA may have on construction bids since there are several factors that drive bid amounts, to include the economy, complexity of the project, availability of qualified contractors, over or under saturation of work available, etc. , b y entering into the CWA , there will be indirect Item 4A-9
City Council Staff Report
May 27, 2021 - Page 10
Community Workforce Agreement
economic benefits to the community with the prov ision for local hire. In addition, the education and workforce training for the City’s residents and veterans will allow increase economic prosperity and opportunities for the City’s residents and veterans.
SUBMITTED:
City Attorney: Jeff Ballinger
Assistant City Manager: Marcus Fuller
City Manager: Justin Clifton
ATTACHMENTS:
1. Community Workforce Agreement, w/ Trades Council proposed language
2. C omments/views of the Trade Council
3. Benefits Language from 2013 Southwestern Community College Distric t CWA Item 4A-10
ATTACHMENT 1
Item 4A-11
55575.18100\33346385.2
SBRBTC 4/22/21 proposal
1 City of Palm Springs CWA
COMMUNITY WORKFORCE AGREEMENT
BY AND BETWEEN
THE CITY OF PALM SPRINGS
AND
SAN BERNARDINO/RIVERSIDE COUNTIES
BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO
AND THE SIGNATORY CRAFT COUNCILS AND UNIONS
Item 4A-12
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2 City of Palm Springs CWA
TABLE OF CONTENTS Page
A
RTICLE 1 DEFINITIONS 3
A
RTICLE 2 SCOPE OF THE AGREEMENT 5
A
RTICLE 3 UNION RECOGNITION AND EMPLOYMENT 8
A
RTICLE 4 UNION ACCESS AND STEWARDS 12
A
RTICLE 5 WAGES AND BENEFITS 13
A
RTICLE 6 HOURS OF WORK, OVERTIME, SHIFTS AND HOLIDAYS 14 A
RTICLE 7 WORK STOPPAGES AND LOCKOUTS 16
A
RTICLE 8 WORK ASSIGNMENTS AND JURISDICTIONAL DISPUTES 20 A
RTICLE 9 MANAGEMENT RIGHTS 21
A
RTICLE 10 SETTLEMENT OF GRIEVANCES AND DISPUTES 23
A
RTICLE 11 REGULATORY COMPLIANCE 25
A
RTICLE 12 SAFETY AND PROTECTION OF PERSON AND PROPERTY 25 A
RTICLE 13 TRAVEL AND SUBSISTENCE 26
A
RTICLE 14 APPRENTICES 26
A
RTICLE 15 WORKING CONDITIONS 27
A
RTICLE 16 PRE-JOB CONFERENCES 28
A
RTICLE 17 LABOR/MANAGEMENT COOPERATION 28
A
RTICLE 18 SAVINGS AND SEPARABILITY 29
A
RTICLE 19 WAIVER 29
A
RTICLE 20 AMENDMENTS 29
A
RTICLE 21 DURATION OF THE AGREEMENT 30
ARTICLE 22 WAIVER OF RIGHT TO MONETARY DAMAGES 33
AT
TACHMENT A – LETTER OF ASSENT 33
A
TTACHMENT B – ZIP CODES 34
AT
TACHMENT C – CRAFT REQUEST FORM 39
ATTACHMENT D – LIST OF NEUTRAL ARBITRATORS 41
Item 4A-13
55575.18100\33346385.2
SBRBTC 4/22/21 proposal
3 City of Palm Springs CWA
CITY OF PALM SPRINGS
COMMUNITY WORKFORCE AGREEMENT
This Community Workforce Agreement (“Agreement”) is entered into effective as of __________, 2020 2021 , by and between the City of Palm Springs, a municipal corporation (“City”), the San Bernardino/Riverside Counties Building and Construction Trades Council (“Trades Council”), and the signatory Craft Councils and Local Unions signing t his Agreement (collectively, the “Union” or “Unions”). This Agreement establishes the labor relations policies and procedures for the City, the Contractors awarded contracts for Project Work and for the crafts persons employed by the Contractors and represented by the Unions engaged in the Project Work as more fully described below. The City, Trades Council and Unions are hereinafter referred to herein, as the context may require, as “Party” or “Parties.”
It is understood by the Parties to this Agree ment that for the duration of this Agreement, it shall be the policy of the City, to the extent permitted by law, for all Project Work (as defined in Sections 1.9 and 2.2.) to be contracted exclusively to Contractors who agree to execute and be bound by the terms of this Agreement, directly or through the Letter of Assent (a form of which is attached as “Attachment A” ), and to require each of its subcontractors, of whatever tier, to become so bound. The City shall include, directly or by incorporation by re ference, the requirements of this Agreement in the advertisement of and/or specifications for each and every contract for Project Work to be awarded by the City.
It is further understood that the City shall actively administer and enforce the obligations of th is Agreement, again to the extent permitted by law, to ensure that the benefits envisioned from it flow to all Parties, the Contractors and crafts persons working under it, and the residents of the City. The City shall therefore designate a “CWA Admin istrator,” either from its own staff or an independent contractor, to serve as the City’s liaison for Contractors and other persons; monitor compliance with this Agreement; assist, as the authorized representative of the City, in developing and implementing the programs referenced herein, all of which are critical to fulfilling the intent and purposes of the Parties and this Agreement; and to otherwise implement and administer this Agreement.
ARTICLE 1
DEFINITIONS
Section 1.1 "Agreement" or “CWA” means this Community Workforce Agreement.
Section 1.2 "Apprentice" means those employees indentured and participating in a Joint Labor/Management Apprenticeship Program approved by the State of California, De partment of Industrial Relations, and Division of Apprenticeship Standards.
Section 1.3 "Construction Contract" or "Construction Contracts" means any contract entered into by the City, for the construction of Project Work as specified in Section 2.2.
Item 4A-14
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4 City of Palm Springs CWA
Section 1.4 “Contractor" means any individual firm, pa rtnership or corporation, or combination thereof, including joint ventures, which is an independent business enterprise and which has entered into a Construction Contract with the City or any of its contractors or any of the City's or contractor's subcontractors of any tier, with respect to the construction of any part of a Project under contract terms and conditions approved by the City and which incorporate this Agreement.
Section 1.5 "City" means the City of Palm Springs.
Section 1.6 "Joint Labor/Management Apprenticeship Program" means a joint Union and Contractor administered apprenticeship program certified by the State of California, Department of Industrial Relations, and Division of Apprenticeship Standards.
Section 1.7 "Letter of Assent" means the document that each Contractor (of any tier) must sign and submit to the City before beginning any Project Work, which formally binds such Contractor(s) to adherence to all the forms, requirements and conditions of this Agreement in the form attached hereto as “Attachment A.”
Section 1.8 “CWA Administrator” means the City’s authorized representative who will be the liaison between the City, Contractors, and the Unions; responds to inquiries about the CWA; charged with monitoring compliance with the CWA, deve loping and implementing programs set forth in the CWA including but not limited to grievance procedures.
Section 1.9 "Project", “Project Work” or "City Project" means the demolition and construction work to be performed on City property or within eas ements secured by the City consisting of the construction of public works, pursuant to a Construction Contract entered into by the City, that are estimated by the City to exceed One Million Dollars ($1,000,000), as determined by the City. Projects that ar e estimated by the City not to exceed $1,000,000 shall not be a Project, Project Work or City Project, and shall not be subject to this Agreement.
Section 1.10 “Specialty Contracts” means a contract for Project Work with a specialty contractor which is e ither limited to a particular single trade or craft or limited to a singular scope of work (i.e. installing a toilet.)
Section 1.11 “Master Labor Agreements” means the local collective bargaining agreem ents of the signatory Unions having jurisdiction over the Project Work and which have signed this Agreement.
Section 1.12 “Subscription Agreement” means the contract between a Contractor and a Union’s Labor/Management Trust Fund(s) that allows the Contractor to make the appropriate fringe benefit contributions in accordance with the terms of the Master Labor Agreements.
Section 1.13 The use of masculine or feminine gender or titles in this Agreement should be construed as including both genders and not a s gender limitations unless the Agreement clearly requires a different construction. Further, the use of Article titles and/or Section headings are for information only, and carry no legal significance.
Item 4A-15
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5 City of Palm Springs CWA
ARTICLE 2
SCOPE OF THE AGREEMENT
Section 2.1 General
This Agreement shall apply to all of the City’s Project Work, as defined in Section 1.9, performed by those Contractor(s) of whatever tier that have contracts awarded for such work, for the development of the City’s facilities which, jointly, constit ute the Project, and have been designated by the City for construction or rehabilitation.
Section 2.2 Specific
Project Work covered by this Agreement is defined and limited to:
2.2.1 All construction and major rehabilitation work pursuant to “prime m ulti-trade construction contracts” that exceed one million dollars ($1,000,000) and all subcontracts flowing from these prime multi-trade contracts; and
2.2.2 All prime “Specialty Contracts,” as defined in Section 1.10 that exceed one million dollars ($1,000,000) and all subcontracts flowing from these specialty contracts; and
2.2.3 The City may, at any time and at its sole discretion, determine to build additional buildings, facilities, and other projects under this Agreement which is not otherwise covered as Project Work.
2.2.4 This Agreement is not i ntended to, and shall not apply to any work performed at any time prior to the effective date, or after the expiration or termination of this Agreement, except as otherwise provided herein. This Agreeme nt shall in no way limit the City’s right to terminate, modify or rescind any construction contract and/or any related subcontract or agreement. Should the City remove or terminate any contract or agreement for construction that does not fall within the s cope of this Agreement and thereafter authorize that wo rk be commenced on any contract for such construction, the contract for construction shall be performed under the terms of this Agreement.
Section 2.3
Bundling of Contracts
2.3.1 The City, in its sole discretion, may seek to group (or “bundle”) for bidding, contracts not meeting the threshold of Section 2.2 above. (Small contracts for like types of work, scheduled to be undertaken at the same facility or on the same project site, and within the sa me timeframe, will be considered for such bundling, c onsistent with economies of scale, and the purposes of this Agreement); and
2.3.2 Project Work will not be intentionally split, divided or otherwise separated for contract award purposes to avoid application of this Agreement.
Section 2.4 Applicability
T his Agreement shall not apply to any work of any Contractor other than that on Project Work specifically covered by this Agreement.
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Section 2.5 Exclusions Items specifically excluded from the scope of this Agreement includes the following:
2.5.1 Work of non- manual employees, including but not limited to: superintendents; teachers; supervisors (except those covered by Master Labor Agreements above the level of general foreman); staff engineers; time keepers; mail carriers; clerks; office workers; messengers; guards; safety personnel; emergency medical and first aid technicians; and other professional, engineering, executive, administrative, supervisory and management employees;
2.5.2 Equipment and machinery owned or controlled and operated by the City;
2.5.3 All off -site manufacture and handling of materials, equipment or machinery; provided, however, that lay down or storage areas for equipment or material and manufacturing (prefabrication) sites, dedicated solely to the Project, and the movement of m aterials or goods between such locations and a Project site are within the scope of this Agreement;
2.5.4 All work performed by City employees, the CWA Administrator , design teams (including, but not li mited to architects engineers and master planners), o r any other consultants for the City (including, but not limited to, project managers and construction managers and their employees where not engaged in Project Work) and their sub- consultants, and other employees of professional service organizations, not performing manual labor within the scope of this Agreement; provided, however, that it is understood and agreed that Building/Construction Inspector and Field Soils and Materials Testers (Inspectors) are a covered craft under the Agreement. This inclusion applies to the scope of work defined in the State of California Wage Determination for said Craft. This shall also specifically include such work where it is referred to by utilization of such terms as "quality control" or "quality assurance." Every Inspe ctor performing under the wage classification of Building/Construction Inspector and Field Soils and Material Testers under a professional services agreement or a construction contract shall be bound to all applicable requirements of the Community Workforc e Agreement (CWA). Covered Work as defined by this Agreement shall be performed pursuant to the terms and conditions of this Agreement regardless of the manner in which the work was awarded;
2.5.5 Any work performed near, or leading to a site of work cove red by this Agreement and undertaken by state, county or other governmental bodies, or their Contractors; or by public utilities, or their Contractors; and/or by adjacent third party landowners; and/or by the City or its Contractors (for work which is not within the scope of this Agreement);
2.5.6 Off-site maintenance of leased equipment and on-site supervision of such work;
2.5.7 Work by employees of a manufacturer or vendor supervising the work of Cra ft employees under this Agreement, necessary to maint ain such manufacturers or vendor’s warranties or guaranty;
2.5.8 Non-construction support services contracted by the City, City consultants, the CWA Administrator, or Contractor in connection with a Project;
2.5.9 Laboratory work for testing.
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2.5.10 Coverage Exception This Agreement shall not apply if the City receives funding or assistance from any Federal, State, local or other public entity for the Construction Contract if a requirement, condition or other term of receiving that funding or assistanc e, at the time of the awarding of the contract, is that the City not require bidders, contractors, or other persons or entities to enter into an agreement with one or more labor organizations. The City a grees that it will make reasonable efforts to establis h the enforcement of this Agreement with any governmental agency or granting authority.
2.5.11 Local Contractor
. This Agreement shall not apply to work performed by any local contractor. For purposes of this subsection 2.5.11, a contractor shall be dee med to be “local” if that contractor meets any one of the following criteria:
(a) the contractor has a principal headquarters or permanently staffed regional office physically located within the City and has held a City of Palm Springs business license f or at least six (6) months prior to the date of its bid . For purposes of this subparagraph (a), a post office box alone does not qualify as a physical presence. (b) the owner(s) who hold more than fifty percent (50%) ownership interest in the contracting company reside within Palm Springs; or
(c) more than fifty percent (50%) of the employees of the contracting company reside within Palm Springs.
2.5.12 Lack of Adequate Bids
. In the event the City does not receive bona fide bids on otherwise Covered Work on or before the deadline for receiving such bids from at least three (3) responsible Contractors or the lowest responsive and responsible bid on a Covered Project is in excess of ten percent (10%) of the engineer’s estimate, the City reserves the righ t to reject all bids and re-advertise the Project with or without the application of this Agreement.
Section 2.6 Awarding of Contracts for Project Work
2.6.1 The City and/or the Contractors, as appropriate, have the absolute right to award contracts or subcontracts on Project Work to any Contractor notwithstanding the existence or non-existence of any agreements between such Contractor and any Union parties, provided only that such Contractor is ready, willing, and able to execute and comply with this A greement should such Contractor be awarded work covered by this Agreement.
2.6.2 It is agreed that all Contractors of whatever tier, who have been awarded Project Work contracts, shall be required to accept and be bound to the terms and conditions of this Agreement, and shall evidence their acceptance by the execution of the Letter of Assent set forth in “Attachment A” hereto, prior to the commencement of any Project Work. At the time that any Contractor enters into a subcontract with any subcontractor of a ny tier providing for the performance of the construction contract, the Contractor shall provide a copy of this Agreement to said subcontractor and shall require the subcontractor, as a part of accepting the award of a construction subcontract, to agree i n writing in the form of a Letter of Assent to be bound by each and every provision of this Agreement prior to the commencement of work on the Project.
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copy of the L etter of Assent as executed by it to the CWA Administrator and to the Trades Council before the commencement of Project Work.
2.6.3 Under all circumstances, the City shall retain the absolute right to select the lowest responsive and responsible bidder for the award of contracts on all projects.
Section 2.7 Master Labor Agreements
2.7.1 The provisions of this Agreement, including the Master Labor Agreements as such may be changed from time- to-time a nd which also are incorporated herein by reference, shall apply to Project Work. This Agreement is not intended to supersede such Master Labor Agreements between any of the Employers performing construction work on the Project and a Union signatory thereto except to the extent the provisions of this Agreeme nt are inconsistent with such Master Labor Agreements, in which event the provisions of this Agreement shall apply. However, such does not apply to work performed under the National Cooling Tower Agreement, the National Stack Agreement, the National Trans it Division Agreement (NTD), work within the jurisdiction of the International Union of Elevator Constructors, and all instrument calibration and loop checking work performed under the terms of the UA/IBEW Joint National Agreement for Instrument and Control Systems Technicians except that Article 9 dealing with Strikes, Work Stoppages and Lock- Outs, Work Assignments and Jurisdictional Disputes, and Settlement of Grievances and Disputes shall apply to such work. Where a subject is covered by the provisions of a Master Labor Agreement and not in conflict with the provisions of this Agreement, the provisions of the Master Labor Agreement shall apply. It is specifically agreed that no later agreement shall be deemed to have precedence over this Agreement unless signed by all parties signatory hereto who are then currently employed or represented at the Project. Any dispute as to the applicable source between this Agreement and any Master Labor Agreements for determining the wages, hours of working conditions of employees on this Project shall be resolved under the procedures established in Article 10.
2.7.2 It is understood that this Agreement, together with the referenced Master Labor Agreements, constitutes a self-contained, stand-alone agreement and by virtue of having become bound to this Agreement, the Contractor will not be obligated to sign any other local, area or national collective bargaining agreement as a condition of performing work within the scope of this Agreement (provided, however, that the Cont ractor may be required to sign a uniformly applied, non- discriminatory Subscription Agreement at the request of the trustees or administrator of a trust fund established pursuant to Section 302 of the La bor Management Relations Act, and to which such Contr actor is bound to make contributions under this Agreement, provided that such Subscription Agreement does not purport to bind the Contractor beyond the terms and conditions of this Agreement and/or expand its obligation to make contributions pursuant thereto). It shall be the responsibility of the prime Contractor to have each of its subcontractors sign the appropriate Subscription Agreement, with the appropriate Craft Union prior to the subcontractor beginning work on Project Work.
Section 2.8 Binding Signatories Only
This Agreement shall only be binding on the signatory
Parties hereto, and shall not apply to the parents, affiliates, subsidiaries, or other ventures of any such Party not performing Project Work.
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Section 2.9 Other City Work Nothing contained herein shall be interpreted to prohibit, restrict, or interfere with the performance of any other operation, work or function not covered by this Agreement, which may be performed by City employees or contracted for by the City for its own account, on its property or in and around a Project site.
Section 2.10 Separate Liability
It is understood that the liability of the Contractor(s) and the liability of the separate Unions under this Agreement shall be several and not joint. The Unions agree that this Agreement does not have the effect of creating any joint employment status between or among the City or CWA Administrator and/or any Contractor.
Section 2.11 Completed Project Work
As areas of Project Work are accepted by the City, this Agreement shall have no further force or effect on such items or areas except where the Contractor is directed by the City or its representatives to engage in repairs, modification, check- out and/or warranties functions required by its contract(s) with the City under the original contract.
ARTICLE 3
UNION RECOGNITION AND EMPLOYMENT
Section 3.1 Recognition
The Contractor recognizes the Trades Council and the Unions as the sole and exclusive bargaining representative for the employees engaged in Project Work.
Contractors further recognize that the Unions shall be the primary source of all craft labor employed on the Projects. In the event that a Contractor has its own core workforce, said Contractor shall follow the procedures outlined below.
Section 3.2 Contractor Selection of Employees
The Contractor shall have the right to
determine the competency of all employees, the number of employees required, the duties of such employees within their craft jurisdiction, and shall have the sole responsibility for sel ecting employees to be laid off, consistent with Section 3.3 and Section 4.3, below. The Contractor shall also have the right to reject any applicant referred by a Union for any reason, subject to any reporting pay required by Section 6.6; provided, howeve r, that such right is exercised in good faith and not for the purpose of avoiding the Contractor’s commitment to employ qualified workers through the procedures endorsed in this Agreement.
Section 3.3
Referral Procedures
3.3.1 For signatory Unions now ha ving a job referral system contained in a Master Labor Agreement, the Contractor agrees to comply with such system and it shall be used exclusively by such Contractor, except as modified by this Agreement. Such job referral system will be operated in a no ndiscriminatory manner and in full compliance with federal, state, and local laws and regulations which require equal employment opportunities and non- discrimination. All of the foregoing hiring procedure s, including related practices affecting apprenticeship, shall be operated so as to consider the goals of the City to encourage employment of City residents and utilization of small local businesses on the Project, and to facilitate the ability of all Contractors to meet their employment needs.
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3.3.2 The local Unions will exert their best efforts to recruit and refer sufficient numbers of skilled craft workers to fulfill the labor requirements of the Contractor, including specific employment obligations to which the Contractor may be legally and/or contrac tually obligated; and to refer apprentices as requested to develop a larger, skilled workforce. The Unions will work with their affiliated regional and national unions, and jointly with the CWA Administrator and others designated by the City, to identify a nd refer competent craft persons as needed for Project Work, and to identify and hire individuals, particularly residents of the City, for entrance into joint labor/management apprenticeship programs, or to participate in other identified programs and proc edures to assist individuals in qualifying and becoming eligible for such apprenticeship programs, all maintained to increase the available supply of skilled craft personnel for Project Work and future construction of maintenance work to be undertaken by t he City.
3.3.3 The Union shall not knowingly refer an employee currently employed by a Contractor on a covered Project to any other Contractor.
Section 3.4 Non-Discrimination in Referral, Employment, a nd Contracting The Unions and
Contractors agree that they will not discriminate against any employee or applicant for employment in hiring and dispatching on the basis of race, color, religion, sex, gender, national origin, age, membership in a labor orga nization, sexual orientation, political affiliation, marital status, disability or other protected class under Title 7, Section 7.09.040 of the Municipal Code of the City of Palm Springs. Further, it is recognized that the City has certain policies, progra ms, and goals for the utilization of local small business enterprises. The Parties shall jointly endeavor to assure that these commitments are fully met, and that any provisions of this Agreement which may appear to interfere with local small business ente rprises successfully bidding for work within the scope of this Agreement shall be carefully reviewed, and adjustments made as may be appropriate and agreed upon among the Parties, to ensure full compliance with the spirit and letter of the City’s policies and commitment to its goals for the significant utili zation of local small businesses as direct Contractors or suppliers for Project Work.
Section 3.5
Employment of City Residents
3.5.1 The Unions and Contractors agree that, to the extent allowed by law, and as long as they possess the requisite skills a nd qualifications, the Unions will exert their best efforts to refer and/or recruit sufficient numbers of skilled craft “Local Residents” as defined herein, to fulfill the requirements of the Employers. In recognition of the fact that the City and the communities surrounding Project Work will be impacted by the construction of the Project Work, the parties agree to support the hiring of workers from the residents of these surrounding areas for Project Work . Towards that end, the Unions shall exert their best efforts to encourage and provide referrals and utilization of qualified workers residing in those U. S. Postal Service zip codes which overlap all of the City of Palm Springs, as set forth in “ Attachment B” attached hereto. If the Unions cannot provide the Contractors in the attainment of a sufficient number of Veterans and Local Residents from within the first tier zip codes, the Unions shall exert their best efforts to then recruit and identify for re ferral Local Residents residing within Riverside County.
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3.5.2 A goal of 30% of the total work hours shall be performed from workers residing within the areas described in Section 3.5.1. Per Article 3.6, referral of local residents shall be facilitated through the requirement to utilize the “Craft Employee Request Form” (Attachment C). Accountability and monitoring requirements shall be discussed and addressed as set forth in Article 17.2.
3.5.3 The Unions agree to support the operation of pre -apprentice referral programs in the City. Further, the Uni ons agree to place on their referral roles or in their apprentice training programs, as appropriate and needed, qualified persons sent to them by designated City organizations or other organizations working with the City to increase construction industry work opportunities for City residents.
3.5.4 The Parties to this CBA support the development of increased numbers of skilled Construction Workers from among residents of the City of Palm Springs . Towards that end, the Parties agree to cooperatively seek to establish work opportunities for local residents and address Training and Employment needs in the Community. The goal is for t he Career placement of disadvantaged and at -risk youth, Low Income and Under/unemployed residents, Women, Minorities, LGTBQ+ members of the community, and Veterans. The Unions commit to:
(a) Coordinate and participate in City based Career and Apprenticeship Fairs and Events, including events such as VillageFest, the annual Pride festival, and the ONEPS Picnic;
(b) Provide Industry Speakers for City Programs and Outreach Events;
(c) Support Local Events and Programs designed to recruit and develop adequate numbers of competent workers in the Construction Industry;
(d) Work cooperatively with the City and Community groups to provide pre - apprenticeship training utilizing Building Trades and Union Apprenticeship readiness Programs.
(e) The Trades Council and Unions shall seek partnerships with the Riverside County Workforce Dev elopment Board, Palm Springs Unified School District, Desert Community College District, and non- profit community groups to provide construction career opportunity awareness and outreach throughout the City and greater Coachella Valley. These partnerships will include Apprenticeship Readiness Programs, Career awareness through Job Fairs, and Pre - Apprenticeship Training. Outreach shall include a focus on demographic groups that have been traditionally underrepresented in the Construction Industry, including, but not limited to, Women, Minorities, economically disadvantaged, LGBTQ +, and formerly incarcerated individuals.
Section 3.6 Requirements on Contractors
to facilitate the dispatch o f Local Residents , all
Contractors will be required to utilize the Cr aft Employee Request Form whenever they are requesting the referral of any employee from a Union referral list for any Covered Project, a sample of which is attached as “Atta chment C .” When Local Residents are requested by the Employers, the Unions will refer such workers regardless of their place in the Unions’ hiring halls’ list and normal referral procedures.
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Section 3.7 Helmets to Hardhats
3.7.1 The Contractors and the Unions recognize a desire to facilitate the entry into the building and constructi on trades of Veterans who are interested in careers i n the building and construction industry. The Contractors and Unions agree to utilize the services of non-p rofit Veterans support organizations, including but not limited to, the Center for Military Recruitment, Assessment and Veterans Employment (hereinaf ter “Center”) and the Center’s “Helmets to Hardhats” program to serve as a resource for preliminary orientation, assessment of construction aptitude, referral to apprenticeship programs or hiring halls, counseling and mentoring, support network, employment opportunities and other needs as identified by the Parties. For purposes of this Agreement the term “Eligible Veteran” shall have the same meaning as the term “veteran” as defined under Title 5, Section 2108(1) of the United States Code as the same may be amended or re-codified from time to time. It shall be the responsibility of each qualified applicant to provide the Unions with proof of his/her status as an Eligible Veteran.
3.7.2 The Unions and Contractors agree to coordinate with non- profit Vetera n organizations, including, the Center to create and maintain an integrated database of veterans interested in working on this Project Work and of apprenticeship and employment opportunities for working on Project Work. To the extent permitted by law, the Unions will give credit to such Veterans for bona fide, provable past experience.
Section 3.8 Core Employees
3.8.1 Contractors not currently signatory to a Master Labor Agreement may employ, as needed, first, a member of his core workforce, then an employee through a referral from the appropriate Union hiring hall, then a second core employee, then a second employee through the referral system, and so on until a maximum of five (5) core employees are employed, thereafter, all additional employees in the affected trade or craft shall be requisitioned from the craft hiring hall in accordance with Section 3.3. In the laying off of employees, the number of core employees shall not exceed one-half plus one of the workforce for an employer with 10 or fewer employees, assuming the remaining employees are qualified to undertake the work available. As part of this process, and in order to facilitate the contract administration procedures, as well as appropriate fringe benefit fund coverage, all Contractors shall require their core employees and any other persons employed other than through the referral process, to register with the appropriate Union hiring hall, if any, prior to their first day of employment at a project site.
3.8.2 The core work force is comprised of those employees whose names appeared on the Contractor’s active payroll for sixty (60) of the one hundred (100) working days immediately before award of Project Work to the Contractor; who pos sess any license required by state or federal law for the Project Work to be performed; who have the ability to safely perform the basic functions of the applicable trade and who have been residing within Riverside County for the one hundred (100) working days immediately prior to the award of Project Work to the Contractor.
3.8.3 Prior to each Contractor performing any work on the Project, each Contractor shall provide a list of his core employees to the CWA Administrator and the Trades Council.
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Failure to do so will prohibit the Contractor from using any core employees. Upon request by any Party to this Agreement, the Contractor hiring any core employee shall provide satisfactory proof (i.e., payroll records, quarterly tax records, driver’s license, voter registration, postal address and such governmental documentation) evidencing the core employee’s qualification as a core employee to the CWA Administrator and the Trades Council.
Section 3.9 Time for Referral If any Union’s registration and referral system does not fulfill the requirements for specific classifications requested by any Contractor within forty-eight (48) hours (excluding Saturdays, Sundays and holidays), that Contractor may use employment sources other than the Union registration and referral services, and may employ applicants meeting such classification from any other available source. The Contractors shall inform the Union of any applicants hired from other sources and such applicants shall register with the appropriate hiring hall, if any, before commencing work.
Section 3.10 Lack of Referral Procedure
If a signatory Union does not have a job referral
system as set forth in Section 3.3 above, the Contractors shall give the Union equal opportunity to refer applicants. Contractors shall notify the Union of employees so hired, as set for th in Section 3.5.
Section 3.11 Union Security Employees are not required to become or remain union members or pay dues or fees as a condition of performing Covered Work under this Agreement.
Employers shall make and transmit all deductions for union dues, fees, and assessments that have been authorized by employees in writing in accordance with the applicable Master Agreement.
Nothing in this Section 3.11 is intended to supersede the requirements of applicable Master Agreements as to those Employers othe rwise signatory to such Master Agreements and as to the employees of those Employers who are performing Covered Work.
Section 3.12 Individual Seniority
Except as provided in Section 4.3, individual seniority shall not be recognized or applied to employees working on Project Work; provided, however, that group and/or classification seniority in a Union’s Master Labor Agreement as of the effective date of this Agreement shall be recognized for purposes of layoffs.
Section 3.13 Foremen
The selection and number of craft foreman and/or general foreman shall be the responsibility of the Contractor. All foremen shall take orders exclusively from the designated Contractor representatives. Craft foreman shall be designated as working foreman at the request of the Contractors.
Section 3.14 Out of State Workers
In determining compliance with the targeted hiring goals of Section 3.5 above, hours of Project Work performed by residents of states other than Califor nia will be excluded from the calculation.
ARTICLE 4
UNION ACCESS AND STEWARDS
Section 4.1 Access to Project Sites
Authorized representatives of the Union shall have
access to Project Work, provided that they do not interfere with the work of employee s and Item 4A-24
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further provided that such representatives shall notify the person charged with on- site project supervision and fully comply with posted visitor, security and safety rules.
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ection 4.2 Stewards
4.2.1 E
ach signatory Union shall have the right to dispatch a working journeyperson as a steward for each shift, and shall notify the Contractor in writing of the identity of the designated steward or stewards prior to the assumption of such person’s duties as steward. Such designated steward or stewards shall not exercise any supervisory functions. There will be no non-working stewards. Stewards will receive the regular rate of pay for their respective crafts.
4.2.2 I
n addition to his/her work as an employee, the steward should have the right to receive, but not to solicit, complaints or grievances and to discuss and assist in the adjustment of the same with the employee’s appropriate supervisor. Each steward should be concerned only with the employees of the steward’s Contractor and, if applicable, subcontractor(s), and not with the employees of any other Contractor. A Contractor will not discriminate against the steward in the proper performance of his/her Union duties.
4.2.3 W
hen a Contractor has multiple, non- contiguous work locations at one site, the Contractor may request and the Union shall appoint such additional working stewards as the Contractor requests to provide independent coverage of one or more such locations. In such cases, a stewar d may not service more than one work location without the approval of the Contractor.
4.2.4 T
he stewards shall not have the right to determine when overtime shall be worked or who shall work overtime.
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ection 4.3 Steward Layoff/Discharge Contractor agre es to notify the appropriate Union twenty-four (24) hours before the layoff of a steward, except in the case of disciplinary discharge for just cause. If the steward is protected against such layoff by the provisions of the applicable Master Labor Agreemen t, such provisions shall be recognized when the steward posse sses the necessary qualifications to perform the remaining work. In any case in which the steward is discharged or disciplined for just cause, the appropriate Union will be notified immediately by the Contractor, and such discharge or discipline shall not become final (subject to any later filed grievance) until twenty-four (24) hours after such notice has been given.
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ection 4.4 Employees on Non-Project Work On work where the personnel of the City may be working in close proximity to the construction activities covered by this Agreement, the Union agrees that the Union representatives, stewards, and individual workers will not interfere with the City personnel, or with personnel employed by the any other employer not a Party to this Agreement.
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RTICLE 5
WAGES AND BENEFITS
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Section 5.1 Wages All employ ees covered by this Agreement shall be classified in accordance with work performed and paid by the Contractors the hourly wage rates for those classifications in compliance with the applicable prevailin g wage rate determination established pursuant to applicable law. If a prevailing rate increases under law, the Contractor shall pay that rate as of its effective date under the law. This Agreement does not relieve Contractors directly signatory to a Master Labor Agreement with one of the Unions signing this Agreement from paying all of the wages set forth in such Agreements.
Section 5.2
Benefits
5.2.1 Contractors shall, except as provided for in Section 5.2.4, pay contributions to the established employee benefit funds in the amounts designated in the a ppropriate Master Labor Agreement and make all employee–authorized deductions in the amounts designated in the appropriate Master Labor Agr eement; however, such contributions shall not exceed the contribution amounts set forth in the applicable prevailing wage determination. This Agreement does not relieve Contractors directly signatory to one or more of the Master Labor Agreements from making all contributions set forth in those Master Labor Agreements w ithout reference to the foregoing.
5.2.2 The Contractor adopts and agrees to be bound by the written terms of the applicable, legally established, trust agreement(s) specifying the detailed basis on which payments are to be made into, and benefits paid out of, such trust funds for its employees. The Contractor authorizes the Parties to such trust funds to appoint trustees and successor trustees to administer the trust funds and hereby ratifie s and accepts the trustees so appointed as if made by the Contractor.
5.2.3 Each Contractor and subcontractor is required to certify to the CWA Administrator that it has paid all benefit contributions due and owing to the appropriate Trust(s) prior to the receipt of its final payment and/or retention. Further, upon timely notification by a Union to the CWA Administrator, the CWA Administrator shall work with any prime Contractor or subcontractor who is delinquent in payments to assure that proper benefit contributions are made, to the extent of requesting the City or the prime Contractor to withhold payments otherwise due such Contractor, until such contributions have been made or otherwise guaranteed.
5.2.4 Any non-signatory Contractor/Employer employing a core worker shall , in lieu of the contributions provided for in section 5.2.1 above, compensate the core worker for benefits in excess of the basic hourly wage rate in accordance with the applicable prevailing wage determination established by the Department of Industrial Relations pursuant to the California Labor Code. Contractor/Employer may: (1) directly compensate the core worker, or (2) contribute to Contractor/Employer’s benefit plans on behalf of the core worker, or (3) contribute to the Union's established employee benefit plans on behalf of the core worker.
Section 5.3 Wage Premiums Wage premiums, including but not limited to pay based on height of work, hazard pay, scaffold pay and special skills shall not be applicable to work under this Agreement, except to the extent provided for in any applicable prevailing wage determination.
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ARTICLE 6
HOURS OF WORK, OVERTIME, SHIFTS AND HOLIDAYS
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ection 6.1 Hours of Work Eight (8) hours per day between the hours of 6:00 a.m. and 5:30 p.m., plus one -half (½) hour unpaid lunch approximately mid- way through the shift, shall constitute the standard work day. Forty (40 ) hours per week shall constitute a regular week’s work. The work week will start on Sunday and conclude on Saturday. The foregoing provisi ons of this Article are applicable unless otherwise provided in th e applicable prevailing wage determination, or unle ss changes are permitted by law and such are agreed upon by the Parties.
Nothing herein shall be construed as guaranteeing any employee eight (8) hours per day or forty (40) hours per week, or a Monday through Friday standard work schedule.
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ection 6.2 Place of Work Employees shall be at their place of work (as designated by the Contractor), at the starting time and shall remain at their place of work, performing their assigned functions, until quitting time. The place of work is defined as the gang or to ol box or equipment at the employee’s assigned work location or the place where the foreman gives instructions. The Parties reaffirm their policy of a fair day’s work for a fair day’s wage. Except as pro vided in Section 6.6, there shall be no pay for tim e not worked unless the employee is otherwise engaged at the direction of the Contractor.
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ection 6.3 Overtime Overtime shall be paid in accordance with the requirements of the applicable prevailing wag e determination. There shall be no restriction on t he Contractor’s scheduling of overtime or the nondiscriminatory designation of employees who will work overtime. There shall be no pyramiding of overtime (payment of more than one form of overtime compensation for the same hour) under any circumstances.
Sec
tion 6.4 Shifts and Alternate Work Schedules
6.4.1 A
lternate starting and quitting time and/or shift work may be performed at the option of the Contractor upon three (3) days’ prior notice to the affected Union(s), unless a shorter notice period is pr ovided for in the applicable Master Labor Agreement If two shifts are worked, each shall consist of eight (8) hours of continuous work exclusive of a one-half (½) hour non-paid lunch period, for eight (8) hours pay. The last shift shall start on or before 6: 00 p.m.
The first shift starting at or after 6:00 a.m. is designated as the first shift, with the second shift following.
6.4.2 C
ontractors, the Trades Council and the Union recognize the economic impac t upon the City and City residents of the Project bei ng undertaken by the City and agree that all Parties to this Agreement desire and intend Project Work to be undertaken in a cost efficient and effective manner to the highest standard of quality and craftsmanship. Recognizing the economic conditions, the Parties agree that, except to the extent permitted by law, employees performing Project Work shall not be entitled to any differentials or additional pay based upon the shift or work schedule of the employees. Instead, all employees working on Project Wor k shall be paid at the same base rate regardless of shift or work schedule worked.
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6.4.3 Because of operational necessities, the second sh ift may, at the City’s direction, be scheduled without the preceding shift having been worked. It is recognized that th e City’s operations and/or mitigation obligations may require restructuring of normal work schedules.
Except in an emergency or when spec ified in the City’s bid specification, the Contractor shall give affected Union(s) at least three (3) days’ notice of such schedule changes.
Section 6.5 Holidays
Recognized holidays for Project Work shall be those set forth and governed by the prevailing wage determination(s) applicable to such Project Work.
Section 6.6
Show-up Pay
6.6.1 Except as otherwise requir ed by State law, Employees reporting for work and for whom no work is provided, except when given prior notification not to report to work, shall receive two (2) hours pay at the regular straight time hourly rate. Employees who are directed to start work shall receive four (4) hours of pay at the regular straight time hourly rate. Employees who work beyond four (4) hours shall be paid for actual hours worked. Whenever reporting pay is provided for employees , they will be required to remain at the Project Site and available for work for such time as they receive pay, unless released earlier by the principal supervisor of the Contractor(s) or hi s/her designated representative. Each employee shall furnish his/her Contractor with his/her current address and tele phone number, and shall promptly report any changes to the Contractor.
6.6.2 An employee called out to work outside of his/her shift shall receive a minimum of two (2) hours pay at the appropriate rate. This does not apply to time worked as an extension of (before or after) the employee’s normal shift.
6.6.3 When an employee leaves the job or work location of his/her own volition, or is discharged for cause or is not working as a result of the Contractor’s invocation of Section 12.3, the employee shall only be paid for actual time worked.
Section 6.7 Meal Periods
The Contractor will schedule a meal period of no more than one - half hour dur ation at the work location at approximately mid -point of the schedule shift; provided, however, that the Contractor m ay, for efficiency of the operation, establish a schedule which coordinates the meal periods of two or more crafts. An employee may be required to work through his meal period because of an emergency or a threat to life or property, or for such other reasons as are in the applicable Master Labor Agreement, and if he is so required, he shall be compensated in the manner established in the applicable Master Labor Agreement.
Section 6.8 Make-up Days
To the extent permitted by the applicable Master Labor
Agreement (MLA) determination, when an employee has been prevented from working for reasons beyond the control of the employer, including, but not limited to inclement weather or other natural causes, during the regularly scheduled work week, a make -up day may be worked on a non-regularly scheduled work day for which an employee shall receive eight (8) hours pay at the straight time rate of pay or any premium rate required for such hours under the state prevailing wage law.
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ARTICLE 7
WORK STOPPAGES AND LOCK-OUTS
Section 7.1 No Work Stoppages or Disruptive Activity The Trades Council and the Unions signatory hereto agree that neither they, and each of them, nor their respective officers or agents or representatives, shall incite or encourage, condone or participate in any strike, walk-out, slow- down, picketing, observing picket lines or other activity of any nature or kind whatsoever, for any cause or dispute whatsoever with respect to or in any way related to Project Work, or which interferes with or otherwis e disrupts, Project Work, or with respect to or related to the City or Contractors, including, but not limited to, economic strikes, unfair labor practice strikes, safety strikes, sympathy strikes and jurisdictional strikes whether or not the underlying di spute is arbitrable. Any such actions by the Trades Council, or Unions, or their members, agents, representatives or the employees they rep resent shall constitute a violation of this Agreement.
The Trades Council and the Union shall take all steps necessar y to obtain compliance with this Article and neither should be held liable for conduct for which it is not responsible.
Section 7.2 Employee Violations
The Contractor may discharge any employee violating
Section 7.1 above and any such employee will not be eligible for rehire under this Agreement.
Section 7.3 Standing to Enforce
The City, the CWA Administrator , or any Contractor
affected by an alleged violation of Section 7.1 shall have standing and the right to enforce the obligations established therein.
Section 7.4 Expiration of Master Labor Agreement
If the Master Labor Agreement, or any
local, regional, and other applicable collective bargaining agreements expire during the term of the Project, the Union(s) agree that there shall be no work disrupt ion of any kind as described in Section 7.1 above as a result of the expiration of any such agreement(s) having application on this Proje ct and/or failure of the involved Parties to that agreement to rea ch a new contract.
Terms and conditions of employme nt established and set at the time of bid shall remain established and set. Otherwise to the extent that such agreement does expire and the Parties to that agreement have failed to reach concurrence on a n ew contract, work will continue on the Project on one of the following two (2) options, both of which will be offered by the Unions involved to the Contractors affected:
7.4.1 Each of the Unions with a contract expiring must offer to continue working on the Project under interim agreements that retain all t he terms of the expiring contract, except that the Unions involved in such expiring contract may each propose wage rates and employer contribution rates to employee benefit funds under the prior contract different from what those wage rates and employer co ntributions rates were under the expiring contracts. The terms of the Union’s interim agreement offered to Contractors will be no less favorable than the terms offered by the Union to any other employer or group of employers covering the same type of construction work in Riverside County.
7.4.2 Each of the Unions with a contract expiring must offer to continue working on the Project under all the terms of the expiring contract, including the wage rates and employer contribution rates to the employee bene fit funds, if the Contractor affected by that expiring Item 4A-29
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contract agrees to the following retroactive provisions: if a new Master Labor Agreement, local, regional or other applicable labor agreement for the industry having application at the Project is ratified and signed during the term of this Agreement and if such new labor agreement provides for retroactive wage increases, then each affecte d Contractor shall pay to its employees who performed work covered by this Agreement at the Project during the hiatus between the effective dates of such expired and new labor agreements, an amount equal to any such retroactive wage increase established by such new labor agreement, retroactive to whatever date is provided by the new labor agreement for such increase to g o into effect, for each employee’s hours worked on the Project during the retroactive period. All Parties agree that such affected Contractors shall be solely responsible for any retroactive payment to its employees.
7.4.3 Some Contractors may elect to continue to work on the Project under the terms of the interim agreement option offered under paragraph 7.4.1 and other Contractors may ele ct to continue to work on the Project under the retroactivity option offered under paragraph 7.4.2. To decide between t he two options, Contractors will be given one week after the particular labor agreement has expired or one week after the Union has personally delivered to the Contractors in writing its specific offer o f terms of the interim agreement pursuant to paragr aph 7.4.1, whichever is the later date. If the Contractor fails to timely select one of the two options, the Contractor shall be deemed to have selected the provisions of 7.4.2.
Section 7.5 No Lockouts
Contractors shall not cause, incite, encourage, condone or participate in any lock -out of employees with respect to Project Work during the term of this Agreement. The term “lock-out” refers only to a Contractor’s exclusion of employees in order to secure collective bargaining advantage, and does not refer to the discharge, termination or layoff of employees by the Contractor for any reason in the exercise of rights pursuant to any provision of this Agreement, or any other agreement, nor does “lock- out” include the City’s decision to stop, suspend or discontinue any Project Work or any portion thereof for any reason.
Section 7.6
Best Efforts to End Violations
7.6.1 If a Contractor contends that there is any violation of this Article or Section 8.3, it shall notify, in writing, the Executive Secretary of t he Trades Council, the Senior Executive of the involved Union(s) and the CWA Administrator . The Executive Secretary and the leadership of the involved Union(s) will immediately instruct, order and use thei r best efforts to cause the cessation of any violation of the relevant Article.
7.6.2 If the Union contends that any Contractor has violated this Article, it will notify that the Contractor and the CWA Administrator, setting forth the facts which the Union contends violate the Agreement, at least twenty -four (24) hours prior to invoking the procedures of Section 7.8. The CWA Administrator shall promptly order the involved Contractor(s) to ce ase any violation of the Article.
Section 7.7
Withholding of services for failure to pay wages and fringe benefits
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7.7.1 Notwithstanding any provision of this Agreement to the contrary, it shall not be a violation of this Agreement for any Union to withhold the services of its members (but not the right to picket) from a particular Contractor who:
(a) Fails to timely pay its weekly payroll; or
(b) Fails to make timely payments to the Union’s Joint Labor/Management Trust Funds in accordance with the provisions of the applicable Master Labor Agreements. Prior to withholding its members’ services for the Contractor’s f ailure to make timely payments to the Union’s Joint Labor/Management Trust Funds, the Union shall give at least ten (10) days (unless a lesser period of time is provided in the Union’s Master Labor Agreement, but in no event less than forty- eight (48) hours) written notice of such failure to pay by registered or certified mail, return receipt requested, and by facsimile transmission to the involved Contractor and to the City. Union will meet within the te n (10) day period to attempt to resolve the dispute.
7.7.2 Upon the payment of the delinquent Contractor of all monies due and then owing for wages and/or fringe benefit contributions, the Union shall direct its members to return to work and the Contractor shall return all such members back to work.
Section 7.8 Expedited Enforcement Procedure
Any party, including the City, which the
Parties agree is a Party to the Agreement for purposes of this Article and an intended beneficiary of this Article, or the CWA Administrator, may institute the following procedures, in lieu of or in addition to any other action at law or equity, when a breach of Section 7.1 or 7.5, above, or Section 8.3 is alleged.
7.8.1 The Party invoking this procedure shall notify Fred Horowitz, or Louis Zigman, [Subject to Confirmation] w ho have been selected by the negotiating Parties, and whom the Parties agree shall be the permanent arbitrators under this procedure. If the permanent arbitrators are unavailable at any time, any one of the permanent Arbitrators who is notified shall appoi nt his alternate to hear the matter. Expenses incurred in arbitration shall be borne equally by the Parties involved in the arbitration and the decision of the arbitrator shall be final and binding on the Parties, provided, however, that the arbitrator shall not have the authority to alter or amend or add to or delete from the provisions of this Agreement in any way. Notice to the arbitra tor shall be by the most expeditious means available, with notices to the Parties alleged to be in violation, and to the Trades Council if it is a Union alleged to be in violation. For purposes of this Article, written notice may be given by telegram, facs imile, hand delivery or overnight mail and will be deemed effective upon receipt.
7.8.2 Upon receipt of said notice, t he arbitrator named above or his/her alternate shall sit and hold a hearing within twenty- four (24) hours if it is contended that the violation still exists, but not sooner than twenty- four (24) hours after notice has been dispatched to the Executive Secretary and the Senior Official(s) as required by Section 7.6, as above.
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7.8.3 The arbitrator shall notify the Parties of the place and time chosen for this hearing. Said hearing shall be completed in one session, which, with appropriate recesses at the arbitrator’s discretion, shall not exceed 24 hours unless otherwise agreed upon by all Parties. A failure of any Party or Parties to attend said hearings shall not delay the hearing of evidence or the issuance of any award by the arbitrator.
7.8.4 The sole issue at the hearing shall be whether or not a violation of Sections 7.1 or
7.5, above, or Section 8.3 has in fact occurred. The arbitrator shall have no authority to consider any matter in justification, explanation or mitigation of such violation. The aw ard shall be issued in writing within three (3) hours after the close of the hearing, and may be issued without an opinion. If any Party desires a written opinion, one shall be issued within fifteen (15) days, but its issuance shall not delay compliance wi th, or enforcement of, the Award. The arbitrator may order cessation of the violation of the Article and other appropriate relief, and such award shall be served on all Parties by hand or registered mail upon issuance.
7.8.5 Such award shall be final and bi nding on all Parties and may be enforced by any court of competent jurisdiction upon the filing of this Agreement and all other relevant documents referred to herein above in the following manner. Written notice of the filing of such enforcement proceedings shall be given to the other Party. In any judicial proceeding to obtain a temporary order enforcing the arbitrator’s award as issued under this Article, all Parties waive the right to a hearing and agree that such proceedings may be ex parte. Such agre ement does not waive any Party’s right to participate in a hearing for a final order of enforcement. The court’s order or orders enforcing the arbitrator’s award shall be served on all Parties by hand or by delivery to their address as shown on this Agreem ent (for a Union), as shown on their business contract for work under this Agreement (for a Contractor) and to the representing Union (for an employee), by certified mail by the Party or Parties first alleging the violation.
7.8.6 Any rights created by st atute or law governing arbitration proceedings inconsistent with the above procedure or which interfere with compliance hereto are hereby waived by the Parties to whom they accrue.
7.8.7 The fees and expenses of the arbitrator shall be equally divided bet ween the Party or Parties initiating this procedure and the respondent Party or Parties.
ARTICLE 8
WORK ASSIGNMENTS AND JURISDICTIONAL DISPUTES
Section 8.1 Assignment of Work
The assignment of Project Work will be solely the
responsibility of the Employer performing the work involved; and such work assignments will be in accordance with the Plan for the Settlement of Jurisdictional Dispute s in the Construction Industry (the “Plan”) or any successor Plan.
Section 8.2 The Plan
8.2.1 All jurisdictional di sputes on Project Work between or among the building and construction trades Unions and the Employers parties to this Agreement, shall be settled and Item 4A-32
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adjusted according to the present Plan established by the Building and Construction Trades Department or any other plan or method of procedure that may be adopted in the future by the Building and Construction Trades Department. Decisions rendered shall be final, binding and conclusive on the Employers and Unions parties to this Agreement.
8.2.2 If a dispute arising under this Article involves the Southwest Regional Council of Carpenters or any of its subordinate bodies, an Arbitrator shall be chosen by the procedures specified in Article V, Section 5, of the Plan from a list composed of John Kagel, Thomas Angelo, Robert Hirsch, and Thomas Pagan, [Subject to Confirmation] and the Arbitrator’s hearing on the dispute shall be held at the offices of the Trades Council within 14 days of the selection of the Arbitrator. All other procedures shall be as specified in the Plan.
Section 8.3 No Work Disruption Over Jurisdiction
All jurisdictional disputes shall be
resolved without the occurrence of any strike, work stoppage, or slow -down of any nature, and the Employer’s assignment shall be adhered to until the di spute is resolved. Individuals violating this section shall be subject to immediate discharge.
Section 8.4 Pre-Job Conferences
As provided in Article 16, each Contractor will conduct a pre-job conferenc e with the appropriate affected Union(s) prior to c ommencing work. The Trades Council and the CWA Administrator shall be advised in advance of all such conferences and may participate if they wish.
Section 8.5 Resolution of Jurisdictional Disputes
If any actual or threatened strike, sympathy
strike, work stoppage, slow down, picketing, hand- billing or otherwise advising the public that a labor dispute exists, or interference with the progress of Project Work by reason of a jurisdictional dispute or dis putes occurs, the Parties shall exhaust the expedit ed procedures set forth in the Plan, if such procedures are in the plan then currently in effect, or otherwise as in Article 7 above.
ARTICLE 9
MANAGEMENT RIGHTS
Section 9.1 Contractor and City Rights
The Contractors and the City have the sole and
exclusive right and authority to oversee and manage construction operations on Project Work without any limitations unless expressly limited or required by a specific provision of this Agreement or an MLA. In addition to the following and other rights of the C ontractors enumerated in this Agreement, the Contractors expressly reserve their management rights and all the rights conferred upon them by law. The Contractor’s rights include, but are not limited to, the right to:
(a) Plan, direct and control operations of all work in the manner required by, and in compliance with, the contract document, including but not limited to, plans, specifications, and scope of work under contract;
(b) Hire, promote, transfer and layoff their own employees, respectively, as dee med appropriate to satisfy work and/or skill requirements;
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(c) Promulgate and require all employees to observe reasonable job rules and security and safety regulations;
(d) Discharge, suspend or discipline their own employees for just cause;
(e) Utilize, in accordance with City approval, any work methods, procedures or techniques, and select, use and install any types or kinds of materials, apparatus or equipment, regardless of source of manufacture or construction; assign and schedule work at their discretion; and
(f) Assign overtime, determine when it will be worked and the number and identity of employees engaged in such work, subject to such provisions in the applicable Master Labor Agreement (s) requ iring such assignments be equalized or otherwise made in a nondiscriminatory manner.
Section 9.2 Specific City Rights
In addition to the following and other rights of the City enumerated in this Agreement, the City expressly reserves its management rights and all the rights conferred on it by law. The C ity’s rights (and those of the Contract Administrator on its behalf) include but are not limited to the right to:
(a) Inspect any constru ction site or facility to ensure that the Contractor follows the applicable safety and other work requirements, and t o insure compliance with contract documents, including but not limited to, plans, specifications, and scope of work under contract;
(b) Require Contractors to establish a different work week or shift schedule for particular employees as required to meet t he operational needs of the Project Work at a particular location;
(c) At its sole option, terminate, delay and/or suspend any and all portions of the covered work at any time; prohibit some or all work on certain days or during certain hours of the day t o accommodate the ongoing operations of the City’s Facilities and/or to mitigate the effect of ongoing Project Work on businesses and residents in the neighborhood of the Project site; and/or require such other operational or schedule changes it deems nece ssary, in its sole judgment, to effectively maintain its primary mission and remain a good neighbor to those in the area of its facilities. (In order to permit the Contractors and Unions to make appropriate scheduling plans, the City will provide the CWA Adm inistrator, and the affected Contractor(s) and Union(s) with reasonable notice of any changes it requires pursuant to this section; provided, however, that if notice is not provided in time to advise emp loyees not to report for work, show -up pay shall be due pursuant to the provision of Article 6, Section 6.6);
(d) Approve any work methods, procedures and techniques used by Contractors whether or not these methods, procedures or techniques are part of industry practices or customs; and
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(e) Investigate and process complaints, through the CWA Administrator , in the matter set forth in Articles 7 and 10.
Section 9.3 Use of Materials
There should be no limitations or restriction by Union upon a Contractor’s choice of materials or design, nor, regardless of source or location, upon the full use and utilization, of equipment, machinery, packaging, precast, prefabricated, prefinished, or preassembled materials, tools or other labor saving devices, subject to the application of the State Public Contracts and La bor Codes as required by law. The onsite installation or application of such items shall be performed by the craft having jurisdiction over such work.
Section 9.4
Special Equipment, Warranties and Guaranties
9.4.1 It is recognized that certain equipment of a highly technical and specialized nature may be installed at Project Work sites. The nature of the equipment, together with the requirements for manufacturer’s warranties, may dictate that it be prefabricated pre- piped and/or pre-wired and that it be i nstalled under the supervision and direction of the City’s and/or manufacturer’s personnel. The Unions agree to install such equipment without incident to insure compliance with the specifications for th e equipment being installed and to insure complianc e with contract documents, including but not limited to, plans, specifications, and scope of work under contract.
9.4.2 The Parties recognize that the Contractor will initiate from time to time the use of new technology, equipment, machinery, tools, and ot her labor-savings devices and methods of performing Project Work. The Union agrees that they will not restrict the implementation of such devices or work methods. The Unions will accept and will not refuse to handle, install or work with any standardized a nd/or catalogue: parts, assemblies, accessories, prefabricated items, preassembled items, partially assembled items, or materials whatever their source of manufacture or construction.
9.4.3 If any disagreement between the Contractor and the Unions conce rning the methods of implementation or installation of any equipment, or device or item, or method of work, arises, or whether a particular part or pre-assembled item is a standardized or catalog part or item, the work will precede as directed by the Contr actor and the Parties shall immediately consult over the matter. If the disagreement is not resolved, the affected Union(s) shall have the right to proceed through the procedures set forth in Article 10.
Section 9.5 No Less Favorable Treatment
The parti es agree that Project Work will not
receive less favorable treatment than that on any other project which the Unions, Contractors and employees work.
ARTICLE 10
SETTLEMENT OF GRIEVANCES AND DISPUTES
Section 10.1
Cooperation and Harmony on Site
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10.1.1 Thi s Agreement is intended to establish and foster continued close cooperation between management and labor. The Trades Council shall assign a representative to this Project for the purpose of assisting the local Unions, and working with the CWA Administrator, together with the Contractors, to complete the construction of the Project economically, efficiently, continuously and without any interruption, delays or work stoppages.
10.1.2 The CWA Administrator , the Contractors, Unions, and employees collectivel y and individually, realize the importance to all Parties of maintaining continuous and uninterrupted performance of the Project Work, and agree to resolve disputes in accordance with the grievance provisions set forth in this Article or, as appropriate, those of Article 7 or 8.
10.1.3 The CWA Administrator shall oversee the processing of grievances under this Article and Articles 7 and 8, i ncluding the scheduling and arrangements of facilities for meetings, selection of the arbitrator from the agreed -upon panel to hear the case, and any other administrative matters necessary to facilitate the timely resolution of any dispute; provided, however, it is the responsibility of the principal parties to any pending grievance to insure the time limits and deadlines are met.
Section 10.2 Processing Grievances
Any questions arising out of and during the term of this Agreement involving its interpretation and application, which includes applicable provisions of the Master Labor Agreement, but not jurisdictional dis putes or alleged violations of Section 7.1 and 7.4 and similar provisions, shall be considered a grievance and subject to resolution under the following procedures.
A. Employee Grievances
Step 1. Employee Grievances When any employee subject to the pro visions of this Agreement feels aggrieved by an alleged violation of this Agreement, the employee shall, through his local Union business representative or, job steward, within ten (10) working days after the occurrence of the violation, give notice to t he work site representative of the involved Contractor stating the provision(s) alleged to have been violated. A business representative of the local Union or the job steward and the work site representative of the involved Contractor shall meet and endeavor to resolve the matter within ten (10) working days after timely notice has been given. If they fail to resolve the matter within the prescribed period, the grieving party may, within ten (10) working days thereafter, pursue Step 2 of this grievance proc edure provided the grievance is reduced to writing, setting forth the relevant information, including a short description thereof, the date on which the alleged violation occurred, and the provision(s) of the Agreement alleged to have been violated.
Grievances and disputes settled at Step 1 shall be non- precedential except as to the parties directly involved.
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B. Union/Contractor Grievances
Union or Contractor Grievances Should the Union(s) or any Contractor have a dispute with the other Party(ies) and, if after conferring within ten (10) working days after the disputing Party knew or should have known of the facts or occurrence giving rise to the dispute, a settlement is not reached within five (5 ) working days, the dispute shall be reduced to writing and processed to Step 2 in the same manner as outlined in Step 1 above for the adjustment of an employee complaint.
Step 2.
The business manager of the involved Union or his designee, together with the site representative of the involved Contractor, and t he labor relations representative of the CWA Administrator , shall meet within seven (7) working days of the referral of the dispute to this second step to arrive at a satisfactory settlement thereof. If the Parties fail to reach an agreement, the dispute may be appealed in writing in accordance with the provisions of Step 3 within seven (7) calendar days after the initial meeting at Step 2.
Step 3.
(a) If the grievance shall have been submitted but not resolved under Step 2, either the Union of Contrac tor Party may request in writing to the CWA Administrator (with copy(ies) to the other Party(ies) within seven (7) calendar days after the initial Step 2 meeting, that the grievance be submitted to an arbi trator selected from the agreed upon list in “Attachment (D)” attached hereto, on a rotational basis in the order listed.
The CWA Administrator shall notify the parties to the grievance of the date, time and location of the hearing. The failure of any part y to attend said hearing shall not delay the hearing of evidence or the issuance of any decision by the arbitrator. The decision of the arbitrator shall be final and binding on all parties. Should any party seek confirmation of the award made by the ar bitrator, the prevailing party shall be entitled to rec eive its reasonable attorney fees and costs.
(b) Failure of the grieving Party to adhere to the time limits established herein shall render the grievance null and void. The time limits established he rein may be extended only by consent of the Parties inv olved at the particular step where the extension is agreed upon. The arbitrator shall have the authority to make decisions only on issues presented and shall not have the authority to change, amend, ad d to or detract from any of the provisions of this Agreement.
(c) The fees and expenses incurred by the arbitrator, as well as those jointly utilized by the Parties (i.e. conference room, court reporter, etc.) in arbitration, shall be divided equally by t he P arties to the arbitration, including Union(s) and Contractor(s) involved.
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C. Union/City Grievances
Should the Union or the City have a grievance for a violation of this Agreement against the other party, the Council and the City Manager, or his designee , shall meet in an attempt to resolve the grievance . If these parties are unable to resolve the matter, either party may request that the grievance be submitted to final and binding arbitration in accordanc e with the process set forth in Section 10.2 Step 3, above.
Section 10.3 Limit on Use of Procedures The procedures contained in this Article shall not be applicable to any alleged violation of Articles 7 or 8, with a single exception that any employee discharged for violation of Section 7.2, or Section 8.3, may resort to the procedures of this Article to determine only if he/she was, in fact, engaged in that violation.
Section 10.4 Notice
The CWA Administrator (and the City, in the c ase of any grievance regarding the Scope of this Agreement), shall be notified by the involved Contractor of all actions at Steps 2 and 3, and further, the CWA Administrator shall, upon its own request, be permitted to participate fully as a party in all proceedings at such steps.
ARTICLE 11
REGULATORY COMPLIANCE
Section 11.1 Compliance with All Laws
The Trades Council and all Unions, Contractors, and
their employees shall comply with all applicable federal and state laws, ordinances and regulations including, but not limited to, those relating to safety and health, employment and applications for employment. All employees shall comply with the safety regulations established by the City, the CWA Administrator or the Contractor. Employees must promptly report any injuries or accidents to a supervisor.
Section 11.2 Prevailing Wage Compliance
All Contractors shall comp ly with the state laws
and regulations. Compliance with this obligation may be enforced by the appropriate parties through Article 10 above, or by pursing the remedies available under state law through the Labor Commissioner or the Department of Industrial Relations.
Section 11.3 Violations of Law
Should there be a finding by the City or a Court or
administrative tribunal of competent ju risdiction that a Contractor has violated federal and/or state law or regulation, the City, upon notice to the Contrac tor that it or its subcontractors is in such violation (including any finding of non- compliance with the California prevailing wage obligations as enforced pursuant to DIR regulations), and in the absence of the Contractor or subcontractor remedying such vio lation, may take such action as it is permitted by law or contract to encourage that Contractor to come into compliance, including, but not limited to, assessing fines and penalties and/or removing the offending Contractor from Project Work.
Additionally, in accordance with the Agreement between the City and the Contractor, the City may cause the Contractor to remove from Project work any subcontractor who is in violation of state or federal law.
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ARTICLE 12
SAFETY AND PROTECTION OF PERSON AND PROPERTY
Section 12.1 Safety
12.1.1 It shall be the responsibility of each Contractor to ensure safe working conditions and employee compliance with any safety rules contained herein or established by the City or the Contractor, whichever is most restrictive shal l apply. It is understood that employees have an individual obligation to use diligent care to perform their work in a safe manner and to protect themselves and the property of the Contractor and the City.
12.1.2 Employees shall be bound by the safety, se curity and visitor rules established by the Contractor and/or the City. These rules will be published and posted. An employee’s failure to satisfy his/her obligations under this section will subject him/h er to discipline, up to and including discharge.
12.1.3 The Parties shall adopt the Substance Abuse Policy attached hereto as Attachment “E,” which shall be the policy and procedure utilized under this Agreement.
Section 12.2 Suspension of Work for Safe ty A Contractor may suspend all or a portion of the job to protect the life and safety of employees. In such cases, employees will be compensated only for the actual time worked; provided, however, that where the Contractor requests employees to remain at the site and be available for work, the employees w ill be compensated for stand-by time at their basic hourly rate of pay.
Section 12.3 Water and Sanitary Facilities
The Contractor shall provide adequate supplies of
drinking water and sanitary facilities for all employees as required by state law or regulation.
ARTICLE 13
TRAVEL AND SUBSISTENCE
Travel expenses, travel time, subsistence allowances, zone rates and parking reimbursements shall be paid in accordance with the applicable Master Labor Agreement unless superseded by the applicable prevailing wage determination.
ARTICLE 14
APPRENTICES
Section 14.1 Importance of Training
The Parties recognize the need to maintain
continuing support of the programs designed to develop adequate numbers of competent workers in the construction industry, the obligation to capitalize on the availability of the local work force in the area served by the City, and the opportunities to provide continuing work under the construction program. To these ends, the Parti es will facilitate, encourage, and assist local residents to commence and progress in Labor/Management Apprenticeship and/or training Programs in the construction industry leading to participation in such apprenticeship programs.
The City and the Trades Council, will work cooperatively to identify, or establ ish and maintain, Item 4A-39
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effective programs and procedures for persons interested in entering the construction industry and which will help prepare them for the formal joint labor/management apprenticeship programs maintained by the signatory Unions.
S
ection 14.2 Use of Apprentices
14.2.1 A
pprentices used on Projects under this Agreement shall be registered in Joint Labor Management Apprentices hip Programs approved by the State of California. Apprentices may comprise up to thirty percent (30%) of each craft’s w ork force (calculated by hours worked) at any time, unless the standards of the applicable joint apprenticeship committee confirmed by the Division of Apprenticeship Standards (“DAS”), establish a lower or higher maximum percentage. Where the standards pe rmit a higher percentage, such percentage shall apply on Project Work. Where the applicable standards establish a lower percentage, the ap plicable Union will use its best efforts with the Joint Labor Mana gement apprenticeship committee and, if necessary, the DAS to permit up to thirty percent (30%) apprentices on the Project.
14.2.2 T
he Unions agree to cooperate with the Contractor in furnishing apprentices as requested up to the maximum percentage. The apprentice ratio for each craft shall be in compliance, at a minimum, with the applicable provisions of the Labor Code relating to utilization of apprentices. The City shall encourage such utilization, and, both as to apprentices and the overall supply of experienced workers, the CWA Administrator will work with the Trades Council to assure appropriate and maximum utilization of apprentices and the continuing availability of both apprentices and journey persons.
14.2.3 T
he Parties agree that apprentices wi ll not be dispatched to Contractors working under this Agreement unless there is a journeymen working on the project where the apprentice is to be employed who is qualified to assist and oversee the apprentice’s progress through the program in which he is participating.
14.2.4 A
ll apprentices shall work under the direct supervision of a journeyman from the trade in which the apprentice is indentured. A journeyman shall be defined as set forth in the California Code of Regulations, Title 8 [apprenticeship] section 205, which defines a journeyman as a person who has either completed an accredited apprenticeship in his or her craft, or has completed the equivalent of an apprenticeship in length and content of work experience and all other requirements in the c raft which has workers classified as journeyman in t he apprenticeable occupation. Should a question arise as to a journeyman’s qualification under this subsection, the Contractor shall provide adequate proof evidencing the worker’s qualification as a journeyman to the Trades Council.
S
ection 14.3 Identification and Retention of Skilled Labor and Employment of Local Residents The Project Work will require large numbers of craft personnel and other supporting employees.
It is therefore the understanding and intention of the Parties to use the opp ortunities provided by the extensive amount of work to be covered on these Projects to promote, through cooperative efforts, programs and procedures (which may include, for example, programs to prepare persons for ent rance into formal labor/management apprenticeship and/or training programs) to the community describing opportunities available as a result of the Project Work, for involvement of Item 4A-40
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Local Residents in the construction industry, to assist them in entering the construction trades, and, through utilization of labor/management apprenticeship and/or training programs, to provide training opportunities for Local Residents and students and graduates o f the City wishing to pursue a career in construction. Such cost for programs and training will be the responsibility of the Union and contractors. The City will work with the Unions, trade groups, and Contractors, in marketing such potential job and training opportunities to encourage application from residents of the City of Palm Springs. Further, with concurrence from t he CWA Administrator, the Contractors and the
U
nions will work together to promptly develop and implement procedures for the identification of craft needs, the scheduling of work to facilitate the util ization of available craft employees, and the securi ng of se rvices of craft employees in sufficient numbers to meet the demand of the Project Work to be undertaken. The City will work with the Contractors and Unions in promoting said opportunities to encourage application from residents of the City of Palm Springs.
A
RTICLE 15
WORKING CONDITIONS
S
ection 15.1 Meal and Rest Periods There will be no non- working times established during working hours except as may be required by applicable state law or regulations. Meal periods and Rest periods shall be as pr ovided for in Wage Order 16. Individual coffee containers will be permitted at the employees’ work location; however, there will be no organized coffee breaks.
S
ection 15.2 Work Rules The City, the CWA Administrator, and/or relevant Contractor shall establish such reasonable work rules as they deem appropriate and not inconsistent with this Agreement. These rules will be posted at the work sites by the Contractor and may be amended thereafter as necessary. Failure to observe these rules and regulations b y employees may be grounds for discipline up to and including discharge.
S
ection 15.3 Emergency Use of Tools and Equipment There should be no restrictions on the emergency use of any tools by any qualified employee or supervisor, or on the use of any tools or equipment for the performance of work within the jurisdiction, provided the employee can safely use the tools and/or equipment involved and is compliance with applicable governmental rules and regulations.
S
ection 15.4 Access Restrictions for Cars Recognizing the nature of the work being conducted on the site, employee access by a private automobile may be limited to certain roads and/or parking areas.
A
RTICLE 16
PRE-JOB CONFERENCES
Section 16.1 Each Primary Contractor which is awarded a Construc tion Contract by the City for Project Work shall conduct a Pre-Job conference with the appropriate affected Union(s) prior to commencing work. All Contractors who have been awarded contracts by the Prima ry Item 4A-41
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Contractor shall attend the Pre -Job conference. The Trades Council and the CWA Administrator shall be advised in advance of all such conferences and may participate if they wish. All work assignments shall be disclosed by the Primary Contractor and all Contractors at the Pre-Job conference in accordance w ith industry practice. Should there be any formal jurisdictional dispute raised under Article 8, the CWA Administrator shall be promptly notified. Primary Contractor shall have available at the Pre- Job conference the plans and drawing for the work to be performed on the Project. Should additional Project Work not previously included within the scope of the Project Work be added, the Contractors performing such work will conduct a separate pre-job for such newly included work.
ARTICLE 17
LABOR/MANAGEMENT COOPERATION
Section 17.1 Joint Committee
The Parties to this Agreement may establish a six (6) person Joint Administrative Committee (JAC). This JAC shall be comprised of three (3) representatives selected by the City and three (3) representatives select ed by the Trades Council to monitor compliance with the terms and conditions of this Agreement and to recommend amendments to this Agreeme nt, with the exception of the dollar threshold specified in Section 2.2(a) and the term of this Agreement under Sectio n 22.1, when doing so would be to the mutual benefit of the Parties. Each representative shall designate an alternate who shall serve in h is or her absence for any purpose contemplated by this Agreement. A quorum will consist of at least two (2) representatives selected by the City and at least two (2) representatives selected by the Trades Council. For voting purposes, only an equal number of City and Union representatives present may constitute a voting quorum.
Section 17.2 Functions of Joint Committe e
The Committee shall meet on a schedule to be
determined by the Committee or at the call of the joint chairs, to discuss the administration of the Agreement, the progress of the Project, general labor m anagement problems that may arise, and any other mat ters consistent with this Agreement. Substantive grievances or disputes arising under Articles 7, 8 or 10 shall not be reviewed or discussed by this Committee, but shall be processed pursuant to the provisions of the appropriate Article. The CWA Administra tor shall be responsible for the scheduling of the meetings, the preparation of the agenda topics for the meetings, with input from the Un ions the Contractors and the City. Notice of the date, time and place of meetings, shall be given to the Committee members at least three (3) days prior to the meeting. The CWA Administrator shall prepare quarterly reports on apprentice utilization and the training and employment of City residents, and a schedule of Proj ect Work and estimated number of craft workers neede d. The Committee or an appropriate subcommittee, may review such reports and make any recommendations for improvement, if necessary, including increasing the availability of skilled trades, and the employ ment of local residents or other individuals who should be assisted with appropriate training to qualify for apprenticeship programs.
ARTICLE 18
SAVINGS AND SEPARABILITY
Section 18.1 Savings Clause
It is not the intention of the City, the CWA Administ rator, Contractor or the Union parties to violate an y laws governing the subject matter of this Item 4A-42
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Agreement. The Parties hereto agree that in the event any provision of this Agreement is final ly held or determined to be illegal or void as being in contravention of any applicable law or regulation, the remainder of the Agreement shall remain in full force and effect unless the part or parts so found to be void are wholly inseparable from the remaining portions of this Agreement.
Further, the Parties agree that if and when any provision(s) of this Agreement is f inally held or determined to be illegal or void by a court of competent jurisdiction, the Parties will promptly enter into negotiations concerning the substantive effect of such decision for the purposes of achieving conformity with the requirements of any applicable laws and the intent of the Parties hereto. If the legality of this Agreement is challenged and any form of injunctive relief i s granted by any court, suspending temporarily or permanently the implementation of this Agreement, then the Parties agree that all Project Work that would otherwise be covered by this Agreement should be continued to be bid and constructed without application of this Agreement so that there is no delay or interference w ith the ongoing planning, bidding and construction of any Project Work.
Section 18.2 Effect of Injunctions or Other Court Orders The Parties recognize the right of the
City to withdraw, at its absolute discretion, the utilization of the Agreement as part of any bid specification should a Court of competent jurisdiction issue any order, or any applicable statute which could result, temporarily or permanently in delay of the bidding, awarding and/or construction on the Project. Notwithstanding such an action by the City, or such court order or statutory provision, the Parties agree that the Agreement shall remain in full force and effect on covered Project Work to the maximum extent legally possible.
ARTICLE 19
WAIVER
A waiver of or a failure to assert any provisions of this Agreement by any or all of the Pa rties hereto shall not constitute a waiver of such provision for the future. Any such waiver shall not constitute a modification of the Agreement or change in the terms and conditions of the Agreement and shall not relieve, excuse or release any of the P arties from any of their rights, duties or obligations hereunder.
ARTICLE 20
AMENDMENTS
The provisions of this Agreement can be renegotiated, supplemented, rescinded or otherwise altered only by mutual agreement in writing, hereafter signed by the negotia ting Parties hereto.
In the event of any conflict or ambiguity between this Agreement and any Attachment or exhibit, the provisions of this Agreement shall govern.
ARTICLE 21
DURATION OF THE AGREEMENT
Section 21.1
Duration
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21.1.1 This Agreement shall be effective from the date signed by all Parties and shall remain in effect for an initial period of five (5) years. Any covered Project Work awarded during the term of this Agreement shall continue to b e covered hereunder, until completion of the Project Work, notwithstanding the expiration date of this Agreement.
21.1.2 This Agreement may be extended by written mutual consent of the City, as directed by the City Council and the signatory Unions for such further periods as the Parties shall agree to.
Section 21.2
Turnover and Final Acceptance of Completed Work
21.2.1 Construction of any phase, portion, section, or segment of Proj ect Work shall be deemed complete when such phase, portion, section or segment has been turned over to the City by the Contractor and the City has accepted such phase, portion, section, or segment. As areas and systems of the Project are inspected and cons truction-tested and/or approved and accepted by the City or third parties with the approval of the City, the Agreement shall have no further force or effect on such items or areas, except when the Contractor is directed by the City to engage and repairs or modifications required by its contract(s) with the City.
21.2.2 Notice of each final acceptance received by the Cont ractor will be provided to the Trades Council with the description of what portion, segment, etc. has been accepted. Final acceptance may be subject to a “punch” list, and in such case, the Agreement will continue to apply to each such item on the list unt il it is completed to the satisfaction of the City and Notice of Completion is issued by the City or its representative to the Contractor. At the request of the Union, complete information describing any “punch” list work, as well as any additional work required of a Contractor at the direction of the City pursuant to Section 22.2.1 above, involving otherwise turned -over and completed facilities which have been accepted by the City, will be available from the CWA Administrator.
21.1.3 This Agreement may be termi nated, without cause, and without any liability, by either party at any time; provided, however, that if this Agreement is so terminated, the provisions of this Agreement shall continue to apply to any contract for which the notice inviting bids has been published prior to the effective date of any such termination.
ARTICLE 22
WAIVER OF RIGHT TO MONETARY DAMAGES
The parties agree that the City would not have entered into this Agreement if it were to be liable for monetary damages under this Agreement. In general, and subject to those procedural prerequisites required under this Agreement, Tt he Trades Council or any Union may pursue a ny remedy at law or equity available for the breach of this Agreement that is not covered under the provisions of Art icle 10 . However, City will not be liable in monetary damages to Trades Council, any Union, or to any other person, including, without limitation, any Contractor, subcontractor or worker. Trad es Council, Unions and any Contractor further covenants not to sue the City, or its officials, officers, employees or agents for monetary damages or claim any monetary damages related to any of the following:
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(A) Any breach of this Agreement or for any cause of action that arises out of this Agreement; or
(B) Any taking, impairment, or restriction of any right or interest arising under this Agreement; or
(C) Any dispute regarding the application or interpretation of this Agreement.
Nothing in this Article 22 shall affect or restrict the rights of th e parties to pursue a violation of this Agreement under the provisions of Article 10 or pursue declaratory or injunctive (whether mandatory or prohibitive) relief from any court of appropriate jurisdiction.
[This section intentionally left blank]
[Signatures on Next Page]
IN WITNESS whereof the Parties have caused this Community Workforce Agreement to be executed as of the date and year above stated.
CITY OF PALM SPRINGS
SAN BERNARDINO/RIVERSIDE COUNTIES
By: ____________________________ BUILDING & CONSTRUCTION City Manager TRADES COUNCIL, AFL-CIO
By: ________________________________
William J. Perez
Executive Secretary/Business Manager
ATTEST:
By: ________________________________
City Clerk
APPROVED AS TO FORM:
_______________________
City Attorney
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SAN BERNARDINO/RIVERSIDE COUNTIES BUILDING AND CONSTRUCTION
TRADES COUNCIL, AFL-CIO CRAFT UNIONS AND DISTRICT COUNCILS
Signatory Unions:
Boilermakers Local 92: ________________________________________________
Bricklayers Local 4: ________________________________________________
Cement Masons Local 500: _____________________________________________
District Council #36 (Painters, Drywall Finishers, Glaziers, Resilient Floor):
_________________________________________________
Electrical Workers Local 440: ___________________________________________
Elevator Constructors Local 18: ___________________________________________
Heat & Frost Insulators Local 5: ___________________________________________
Iron Workers Local 416: _________________________________________________
Iron Workers Local 433: _________________________________________________
Laborers Local 300: _____________________________________________________
Laborers Local 1184: ____________________________________________________
Operating Engineers Local 12: ____________________________________________
_____________________________________________
_____________________________________________
Plasterers Local 200: ____________________________________________________
Plater Tenders 1414: ____________________________________________________
U.A. Local 345: ________________________________________________________
U.A. Local 364: ________________________________________________________
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Signatory Unions –
Roofers & Waterproofers Local 220: ______________________________________
Sheet Metal Local 105: _________________________________________________
Road Sprinkler Fitters Local 669: _________________________________________
Teamsters Local 166: ___________________________________________________
Southwest Regional Council of Carpenters:
____________________________________________________
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ATTACHMENT A – LETTER OF ASSENT
To be signed by all contractors awarded work covered by the City of Palm Springs Community Workforce Agreement prior to commencing work.
[Contractor’s Letterhead]
CWA Administrator
City of Palm Springs
101 North D Street
Palm Springs, CA 9_____
Attn: __________________
Re: Community Workforce Agreement - Letter of Assent
Dear Sir/Madame:
This is to confirm that [name of company] agrees to be party to and bound by the City of Palm Springs Community Workforce Agreement effective _______, 2019 2021 as such Agreement may, from time to time, be amended by the negotiating parties or interpreted pursuant to its terms. Such obligation to be a party and bound by this Agreement shall extend to all work covered by the agreement undertaken by this Company on the project and this Company shall require all of its contractors and subcontractors of whatever tier to be similarly bound for all work within the scope of the Agreement by signing and furnishing to you an identical letter of assent prior to their commencement of work.
Sincerely,
[Name of Construction Company]
By: [_____________________] Name and Title of Authorized Executive
Contractor State License No.: ______________________________
Business Address: ____________________________________________
_____________________________________________
Business Phone: _______________________________________________
[Copies of this letter must be submitted to the CWA Administrator and to the Trades Council Consistent with Section 2.6 (b).]
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ATTACHMENT B
FIRST TIER ZIP CODES (CITY BOUNDARY including 20 MILE RADIUS) *Some Zip Codes shared with neighboring cities
(https://www.zip-codes.com/county/ca-riverside.asp)
92201 92236
92203 92240
92210 92241
92211 92253
92220 92260
92223 92262
92230 92264
92234 92270
92276
92282
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SECOND TIER ZIP CODES
REMAINDER OF RIVERSIDE COUNTY,
(https://www.zip-codes.com/county/ca-riverside.asp)
Zip Code City
91752 Mira Loma
92201 Indio
92225 Blythe
92226 Blythe
92235 Cathedral City
92254 Mecca
92274 Thermal
92320 Calimesa
92501 Riverside
92503 Riverside
92504 Riverside
92505 Riverside
92506 Riverside
92507 Riverside
92508 Riverside
92509 Jurupa Valley
92518 March Air Reserve Base
92530 Lake Elsinore
92532 Lake Elsinor
92536 Aguanga
92539 Anza
92543 Hemet
92544 Hemet
92545 Hemet
92548 Homeland
92551 Moreno Valley
92553 Moreno Valley
92555 Moreno Valley
92571*
92557 Moreno Valley
92561 Mountain Center
92562 Murrieta
92563 Murrieta
92570*
92567 Nuevo
92582 San Jacinto
92583 San Jacinto
92584 Menifee
92585 Menifee
92586 Menifee
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92587 Menifee
92590 Temecula
92591 Temecula
92592 Temecula
92595 Wildomar
92596 Winchester
92860 Norco
92879 Corona
92880 Corona
92881 Corona
92882 Corona
92883 Corona
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ATTACHMENT C
CITY OF PALM SPRINGS
CRAFT REQUEST FORM
TO THE CONTRACTOR: Please complete and fax this form to the applicable union to request craft workers that fulfill the hiring requirements for this project. After faxing your request, please call the Local to verify receipt and substantiate their capacity to furnish workers as specified below. Please print your Fax Transmission Verification Reports and keep copies for your records.
The City of Palm Springs Community Workforce Agreement establishes a goal that 30% of the total work hours shall be from Local Residents workers residing: first, in those first tier zip codes which overlap all of the City of Palm Springs, as attached hereto, second, residing within Riverside County. For Dispatch purposes, employees residing within either of these two (2) areas, as well as Veterans, regardless of where they reside, shall be referred to as Local Residents.
TO THE UNION
: Please complete the “Union Use Only” section on the next page and fax this form back to the requesting Contractor. Be sure to retain a copy of this form for your records.
CONTRACTOR USE ONLY
To: Union Local # Fax# ( ) Date:
Cc: CWA Administrator
From: Company: Issued By:
Contact Phone :( ) Contact Fax: ( ) PLEASE PROVIDE ME WITH THE FOLLOWING UNION CRAFT WORKERS.
Craft Classification
(i.e., plumber, painter,
etc.)
Journeyman
or
Apprentice
Local Resident,
Veteran
or
General Dispatch
Number
of
workers
needed
Report Date Report Time
TOTAL WORKERS REQUESTED = ______________
Please have worker(s) report to the following work address indicated below:
Project Name: _______________________ Site: _____________________ Address: ________________________ Report to: _______________________ On-site Tel: __________________ On-site Fax: ___________________ Comment or Special Instructions: ________________________________________________
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UNION USE ONLY
WORKER REFERRED
Date dispatch request received:
Dispatch received by:
Classification of worker requested:
Classification of worker dispatched:
Name:
Date worker was dispatched:
Is the worker referred a: (check all that apply)
JOURNEYMAN
Yes _____ No _____
APPRENTICE
Yes _____ No _____
LOCAL RESIDENT
Yes _____ No _____
VETERAN Yes _____ No _____
GENERAL DISPATCH FROM OUT OF WORK LIST
Yes _____
No _____
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ATTACHMENT D
List of Neutral Arbitrators
[Subject to Confirmation]
Mark Burstein
Walter Daugherty
Fred Horowitz
Michael Prihar
Louis Zigman
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ATTACHMENT “E”
SUBSTANCE ABUSE POLICY
The Parties recognize the problems which drug and alcohol abuse have created in the construction industry and the need to develop drug and alcohol abuse prevention programs.
Accordingly, the Parties agree that in order to enhance the safety of the work place and to maintain a drug and alcohol free work environment, individual Employers may require applicants or employees to undergo drug and alcohol testing.
1. It is understood that the use, possession, transfer or sale of illegal drugs, narcotics, or other unlawful substances, as well as being under the influence of alcohol and the possession or consuming alcohol is absolutely prohibited while employees are on the Employer’s job premises or while working on any jobsite in connection with work performed under the Community Workforce Agreement (“CWA”).
2. No Employer may i mplement a drug testing program which does not conform in all respects to the provisions of this Policy.
3. No Employer may implement drug testing at any jobsite unless written notice is given to the Union setting forth the location of the jobsite, a description of the project under construction, and the name and telephone number of the Project Work Supervisor. Said notice shall be addressed to the office of each Union signing the Community Workforce Agreement.
Said notice shall be delivered in person or by registered mail before the implementation of drug testing. Failure to give such notice shall make any drug testing engaged in by the Employer a violation of the CWA, and the Employer may not implement any form of drug testing at such jobsite for the following six months.
4. An employer who elects to implement drug testing pursuant to this Agreement shall require all employees on the Project Work to be tested. With respect to individuals who become employed on the Project Work subsequent to the proper implementation of this drug testing program, such test shall be administered upon the commencement of employment on the project, whether by referral from a Union Dispatch Office, transfer from another project, or another method. Individuals who were employed on the project prior to the proper implementation of this drug testing program may only be subjected to testing for the reasons set forth in Paragraph 5(f) (1) through 5(f) (3) of this Policy. Refusal to undergo such testing shall be considered sufficient grounds to deny employment on the project.
5. The following procedure shall apply to all drug testing:
a. The Employer may request urine samples only. The applicant or employee shall not be observed when the urine specimen is given. An applicant or employee, at his or her sole option, shall, upon request, receive a blood test in lieu of a urine test. No employee of the Employer shall draw blood from a bargaining unit employee, touch or handle urine specimens, or in any way become involved in the chain of custody of urine or blood specimens. A Union Business Representative, subject to the approval of the individual applicant or employee, shall be Item 4A-55
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permitted to accompany the applicant or employee to the collection facility to observe the collection, bottling, and sealing of the specimen.
b. The testing shall be done by a laboratory approved by the Substance Abuse & Mental Health Services Administration (SAMHSA), which is chosen by the Employer and the Union.
c. An initial test shall be performed using the Enzyme Multiplied Immunoassay Technique (EMZT). In the event a question or positive result arises from the initial test, a confirmation test must be utilized before action can be taken against the applicant or employee. The confirmation test will be by Gas Chromatography Mass Spectrometry (GC/MS).
Cutoff levels for both the initial test and confirmation test will be those established by the SAMHSA. Should these SAMHSA levels be changed during the course of this agreement or new testing procedures are approved, then these new regulations will be deemed as part of this existing agreement. Confirmed positive samples will be retained by the testing laboratory in secured long-term frozen storage for a minimum of one year. Handling and transportation of each sample must be documented through strict chain of custody procedures.
d. In the event of a confirmed positive test result the applicant or employee may request, within forty-eight (48) hours, a sample of his/her specimen from the testing laboratory for purposes of a second test to be performed at a second laboratory, designated by the Union and approved by SAMHSA. The retest must be performed within ten (10) days of the request. Chain of custody for this sample shall be maintained by the Employer between the original testing laboratory and the Union's designated laboratory. Retesting shall be performed at the applicant’s or employee’s expense. In the event of conflicting test results the Employer may require a third test.
e. If, as a result of the above testing procedure, it is determined that an applicant or employee has tested positive, this shall be considered sufficient grounds to deny the applicant or employee his/her employment on the Project Work.
f. No individual who tests negative for drugs or alcohol pursuant to the above procedure and becomes employed on the Project Work shall again be subjected to drug testing with the following exceptions:
1. Employees who are involved in industri al accidents resulting in damage to plant, property or equipment or injury to him/her or others may be tested pursuant to the procedures stated hereinabove.
2. The Employer may test employees following thirty (30) days advance written notice to the employee(s) to be tested and to the applicable Union. Notice to the applicable Union shall be as set forth in Paragraph 3 above and such testing shall be pursuant to the procedures stated hereinabove.
3. The Employer may test an employee where the Employer has reasonable cause to believe that the employee is impaired from performing his/her job.
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Reasonable cause shall be defined as exhibiting aberrant or unusual behavior, the type of which is a recognized and accepted symptom of impairment (i.e., slurred speech, unusua1 lack of muscular coordination, etc.). Such behavior must be actually observed by at least two persons, one of whom shall be a Supervisor who has been trained to recognize the symptoms of drug abuse or impairment and the other of whom shall be the job steward. If the job steward is unavailable or there is no job steward on the project the other person shall be a member of the applicable Union’s bargaining unit. Testing shall be pursuant to the procedures stated hereinabove. Employees who are tested pursuant to the exceptions set forth in this paragraph and who test positive will be removed from the Employer's payroll.
g. Applicants or employees who do not test positive shall be paid f or all time lost while undergoing drug testing. Payment shall be at the applicable wage and benefit rates set forth in the applicable Union’s Master Labor Agreement. Applicants who have been dispatched from the Union and who are not put to work pending the results of a test will be paid waiting time until such time as they are put to work. It is understood that an applicant must pass the test as a condition of employment. Applicants who are put to work pending the results of a test will be considered probationary employees.
6. The employers will be allowed to conduct periodic job site drug testing on t he Project under the following conditions:
a. The entire jobsite must be tested, including any employee or subcontractor’s employee who worked on that project three (3) working days before or after the date of the test;
b. Jobsite testing cannot commence sooner than thirty (30) days after start of the work on the Project;
c. Prior to start of periodic testing, a business representative will be allowed to conduct an educational period on company time to explain periodic jobsite testing program to affected employees;
d. Testing shall be conducted by a SAMHSA certified laboratory, pursuant to the provisions set forth in Paragraph 5 hereinabove.
e. Only two periodic tests may be performed in a twelve month period.
7. It is understood that the unsaf e use of prescribed medication, or where the use of prescribed medication impairs the employee's ability to perform work, is a basis for the Employer to remove the employee from the jobsite.
8. Any grievance or dispute which may arise out of the application of this Agreement shall be subject to the grievance and arbitration procedures set forth in the CWA.
9. The establishment or operation of this Policy shall not curtail any right of any employee found in any law, rule or regulation. Should any part of this Agreement be found Item 4A-57
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unlawful by a court of competent jurisdiction or a public agency having jurisdiction over the parties, the remaining portions of the Agreement shall be unaffected and the parties shall enter negotiations to replace the affected provision.
10. Present employees, if tested positive, shall have the prerogative for rehabilitation program at the employee’s expense. When such program has been successfully completed the Employer shall not discriminate in any way against the employee. If work for which the employee is qualified exists he/she shall be reinstated.
11. The Employer agrees that results of urine and blood tests perfor med hereunder will be considered medical records held confidential to the extent permitted or required by law.
Such records shall not be released to any persons or entities other than designated Employer representatives and the applicable Union. Such release to the applicable Union shall only be allowed upon the signing of a written release and the information contained therein shall not be used to discourage the employment of the individual applicant or employee on any subsequent occasion.
12. The Employer shall indemnify and hold the Union harmless against any and all claims, demands, suits, or liabilities that may arise out of the application of this Agreement and/or any program permitted hereunder.
13. Employees who seek voluntary assistance for substance abuse may not be disciplined for seeking such assistance. Requests from employees for such assistance shall remain confidential and shall not be revealed to other employees or management personnel without the employee's consent. Employees enrolled in substance abuse programs shall be subject to all Employer rules, regulations and job performance standards with the understanding that an employee enrolled in such a program is receiving treatment for an illness.
14. This Memorandum, of Understanding shall constitute the only Agreement in effect between the parties concerning drug and alcohol abuse, prevention and testing. Any modifications thereto must be accomplished pursuant to collective bargaining negotiations between the parties.
Item 4A-58
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48 City of Palm Springs CWA
DRUG ABUSE PREVENTION AND DETECTION
APPENDIX A
CUTOFF LEVELS
SCREENING SCREENING CONFIRMATION CONFIRMATION
DRUG METHOD LEVEL ** METHOD LEVEL
Alcohol EMIT 0.02% CG/MS 0.02%
Amphetamines EMIT 1000 ng/m* CG/MS 500 ng/ml*
Barbiturates EMIT 300 ng/ml CG/MS 200 ng/ml
Benzodiazepines EMIT 300 ng/m l CG/MS 300 ng/ml
Cocaine EMIT 300 ng/ml* CG/MS 150 ng/ml*
Methadone EMIT 300 ng/ml CG/MS 100 ng/ml
Methaqualone EMIT 300 ng/ml CG/MS 300 ng/ml
Opiates EMIT 2000 ng/ml* CG/MS 2000 ng/ml*
PCP (Phencyclidine) EMIT 25 ng/ml* CG/MS 25 ng/ml* THC (Marijuana) EMIT 50 ng/ml* CG/MS 15 ng/ml*
Propoxyphene EMIT 300 ng/ml CG/MS 100 ng/ml
* SAMHSA specified threshold
** A sample reported positive contains the Indicated drug at or above the cutoff level for that drug. A negative sample either contains no drug or contains a drug below the cutoff level.
EMIT - Enzyme Immunoassay
CC/MS - Gas Chromatography/Mass Spectrometry
Item 4A-59
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SIDE LETTER OF AGREEMENT
TESTING POLICY FOR DRUG ABUSE
It is hereby agreed between the parties hereto that an Employer who has otherwise properly implemented drug testing, as set forth in the Testing Policy for Drug Abuse, shall have the right to offer an applicant or employee a "quick" drug screening test. This “quick” screen test shall consist either of the “ICUP” urine screen or similar test or an oral screen test. The applicant or employee shall have the absolute right to select either of the two “quick” screen tests, or to reject both and request a full drug test.
An applicant or employee who selects one of the quick screen tests, and who passes the test, shall be put to work immediately. An applicant or employee who fails the “quick” screen test, or who rejects the quick screen tests, shall be tested pursuant to the procedures set forth in the Testing Policy for Drug Abuse. The sample used for the "quick" screen test shall be discarded immediately upon conclusion of the test. An applicant or employee shall not be deprived of any rights granted to them by the Testing Policy for Drug Abuse as a result of any occurrence related to the “quick” screen test.
Item 4A-60
ATTACHMENT 2
Item 4A-61
Please review the following comments regarding the Staff Report for the April 8th Council Agenda.
The Draft CWA remaining issues:
- Exemption for Local Contractors. The agreement establishes the Labor relations policies and procedures for the City, the Contractors and the Craft persons represented by the signatory Trade Unions. The City has the absolute right to award Project work to any Contractor, notwithstanding the existence or non-existence of any agreements between such Contractor and any Union Parties PROVIDED THAT SUCH CONTRACTOR IS READY,WILLING,AND ABLE TO EXECUTE AND COMPLY WITH THIS AGREEMENT.
This applies whether a Contractor is a Union Contractor or a non-union Contractor. Should a Contractor receive an exemption, all or some benefits to the City and the community could be lost. Local Hire is an important, yet not exclusive, social benefit to the City under the Agreement. Veteran, disadvantaged, at risk, LGBTQ, women, no longer are recognized for Career Development , Pre-Apprenticeship and Apprenticeship opportunities to the extent they are under the terms of the CWA. NO longer are there cooperative Labor/Management relations, standardized work days and workweeks, shift and alternative Work Schedules, standardized meal period schedules and show up pay provisions. Lock-outs and Work Stoppages would no longer be prohibited.The Substance Abuse Policy would not be recognized. The expanded Apprenticeship ratios would be eliminated. We fully understand the concerns that some contractors may have entering into the CWA. We have been, and will continue to work closely with, those Contractors to insure they are successful, profitable and comfortable working under the terms of this Agreement.
-Provision for the City to terminate the CWA "without cause" The CWA is a Collective Bargaining Agreement. We would not have spent more than a year negotiating the CWA , in good faith, only to have one Party for any reason, at any time , unilaterally terminate the Agreement. Not a single CWA, PLA ,Master Labor Agreement in existence has such language. The NLRA may likely prohibit such an action. We negotiated in good faith, considered all proposals thoroughly, consulted Legal Counsel, and polled the Craft Representatives to get to this point. If a unilateral policy was what was intended , then we are at a loss to understand why we were a "party" or even a "partner" at any point in the process. -The City may re-bid a Project without the CWA if the City does not receive an adequate number of responsive bids, or if the lowest bid is more than 10% of the engineers estimate.
If the existence of the CWA is the sole reason for bids to exceed budgets, or draw a limited number of bidders, then this proposal might make sense. Bid estimates are affected by a wide variety of economic factors, the majority of which have nothing to do with the requirements set forth in a CWA. Staff has addressed a few examples of these factors on page 9 of the Report..
-A provision providing for the payment of Benefits or "amounts in lieu of benefits" to non-union workers.
Item 4A-62
The Fringe benefit contributions required under the CWA cover all employees for each craft. Collective Bargaining Agreements, negotiated by the Craft Unions and their Contractors and Contractor Associations, establish the Pension, Health, Apprenticeship, and other Trust Funds. Those Agreements are incorporated by reference into the CWA. The Plan provisions are governed by a Plan Document, a summary Plan Description, the DOL, ERISA, IRS, and the LMRA. Portability from Employer to Employer is the bedrock of Multiemployer Plans. Every employee performing covered employment is a Plan participant regardless of sexual orientation,gender, race, age, seniority, or Union membership. Every employee performing covered employment shall have contributions made on their behalf for each hour worked per the negotiated terms of the Master Labor Agreements. Those benefits cannot be unilaterally changed,revoked, or withheld. Non-union workers will have all of the same rights, benefits, and legal protections as every other worker.
Under a Non-Union Contractor, the worker has no say, no contract, no lawful guarantee to benefits. Their Employers can unilaterally change,revoke and withhold benefits. If a benefits Exemption was granted or allowed, there would be no protection for the Worker since that requirement had been exempted from the CWA.
A majority of affiliated Craft Unions have expressed their concerns and have indicated that they would not accept the Agreement with the proposed "amounts in lieu of benefits" language.
- Provision protecting the City from being liable for monetary damages.
We considered this proposal with the understanding that the City has genuine concerns, however, our Legal Counsel has advised us not to agree to the proposal.
As a follow up on the concern that unexpected cost results could not be validated in Perris and Moreno Valley, I have attached a review of Perris Projects for your review. Moreno Valley has yet to bid or perform jobs under their CWA.
Thank you for the opportunity to provide our positions regarding the few remaining issues.
Item 4A-63
ATTACHMENT 3
Item 4A-64
Item 4A-65
Item 4A-66