Chapter 1.07B
EMPLOYER-EMPLOYEE RELATIONS

Sections:

1.07B.010    Statement of purpose.

1.07B.020    Definitions.

1.07B.030    Filing of recognition petition by employee organization.

1.07B.040    City response to recognition petition.

1.07B.050    Open period for filing challenging petition.

1.07B.060    Election procedure.

1.07B.070    Procedure for decertification of exclusively recognized employee organization.

1.07B.080    Policy and standards for determination of appropriate units.

1.07B.090    Procedure for modification of established appropriate units.

1.07B.100    Appeals.

1.07B.110    Submission of current information by recognized employee organizations.

1.07B.120    Payroll deductions on behalf of employee organizations.

1.07B.130    Employee organization activities – Use of City resources.

1.07B.140    Administrative rules and procedures.

1.07B.150    Initiation of impasse procedures.

1.07B.160    Impasse procedures.

1.07B.170    Costs of impasse procedures.

1.07B.180    Construction.

1.07B.010 Statement of purpose.

A. This chapter implements Chapter 10, Division 4, Title 1 of the Government Code of the State (Sections 3500 et seq.), “Local Public Employee Organizations,” by providing orderly procedures for the administration of employer-employee relations between the City and its employee organizations. However, nothing contained herein shall be deemed to supersede the provisions of State law, City ordinances, resolutions and rules which establish and regulate the merit system, or which provide for other methods of administering employer-employee relations. This chapter is intended, instead, to strengthen merit, civil service and other methods of administering employer-employee relations through the establishment of uniform and orderly methods of communications between employees, employee organizations in the City.

B. It is the purpose of this chapter to provide procedures for meeting and conferring in good faith with recognized employee organizations regarding matters that directly effect and primarily involve the wages, hours and other terms and conditions of employment of employees in appropriate units and that are not preempted by Federal or State law. However, nothing herein shall be construed to restrict any legal or inherent exclusive City rights with respect to matters of general legislative or managerial policy, which include among others: the exclusive right to determine the mission of its constituent departments, commissions and boards; set standards of service; determine the procedures and standards of selection for employment; direct its employees; take disciplinary action; relieve its employees from duty because of lack of work or for other lawful reasons; maintain the efficiency of governmental operations; determine the methods, means and personnel by which government operations are to be conducted; take all necessary actions to carry out its mission in emergencies; and exercise complete control and discretion overs its organization and the technology of performing its work.

1.07B.020 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:

“Appropriate unit” means a unit of employee classes or positions, established pursuant to NCC 1.07B.030 through 1.07B.060.

“City” means the City of Newman, and, where appropriate herein, refers to the City Council or any duly authorized City representative as herein defined.

“Confidential employee” means an employee who, in the course of his or her duties, has access to information relating to the City’s administration of employer-employee relations.

“Consult/consultation in good faith” means to communicate orally or in writing for the purpose of presenting and obtaining views or advising of intended actions, and, as distinguished from meeting and conferring in good faith regarding matters within the required scope of such meet and confer process, does not involve an exchange of proposals and counterproposals in an endeavor to reach agreement, nor is it subject to NCC 1.07B.150 through 1.07B.170.

“Day” means calendar day unless expressly stated otherwise.

“Employee relations officer” means the City Manager or his duly authorized representative.

“Exclusively recognized employee organization” means an employee organization which has been formally acknowledged by the City as the sole employee organization representing the employees in an appropriate representation unit pursuant to NCC 1.07B.030 through 1.07B.060, and thereby assuming the corresponding obligation of fairly representing such employees.

“Impasse” means the representatives of the City and a recognized employee organization have reached a point in their meeting and conferring in good faith where their differences on matters to be included in a memorandum of understanding, and concerning which they are required to meet and confer, remain so substantial and prolonged that further meeting and conferring would be futile.

“Management employee” means an employee having responsibility for formulating, administering or managing the implementation of the City policies and programs.

“Proof of employee support” means (1) an authorization card recently signed and personally dated by an employee, or (2) a verified authorization petition or petitions recently signed and personally dated by an employee, or (3) employee dues deduction authorization, using the payroll register for the period immediately prior to the date a petition is filed hereunder, except that dues deduction authorizations for more than one employee organization for the amount of any one employee shall not be considered as proof of employee support for any employee organization. The only authorization which shall be considered as proof of employee support hereunder shall be the authorization last signed by an employee. The words “recently signed” shall mean within 180 days prior to the filing of a petition.

“Supervisory employee” means any employee having authority, in the interest of the City, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if, in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

1.07B.030 Filing of recognition petition by employee organization.

A. An employee organization that seeks to be formally acknowledged as the exclusively recognized employee organization representing the employees in an appropriate unit shall file a petition with the employee relations officer containing the following information and documentation:

1. Name and address of the employee organization.

2. Names and titles of its officers.

3. Names of employee organization representatives who are authorized to speak on behalf of the organization.

4. A statement that the employee organization has, as one of its primary purposes, representing employees in their employment relations with the City.

5. A statement whether the employee organization is a chapter of, or affiliated directly or indirectly in any manner, with a local, regional, state, national or international organization, and, if so, the name and address of each such other organization.

6. Certified copies of the employee organization’s constitution and bylaws.

7. A designation of those persons, not exceeding two in number, and their addresses, to whom notice sent by regular United States mail will be deemed sufficient notice on the employee organization for any purpose.

8. A statement that the employee organization has no restriction on membership based on race, color, creed, sex, national origin, age, or physical disability.

9. The job classifications or titles of employees in the unit claimed to be appropriate and the approximate number of member employees therein.

10. A statement that the employee organization has in its possession proof of employee support as herein defined to establish that a majority of the employees in the unit claimed to be appropriate have designated the employee organization to represent them in their employment relations with the City. Such written proof shall be submitted for confirmation to the employee relations officer or to a mutually agreed upon disinterested third party.

11. A request that the employee relations officer formally acknowledge the petitioner as the exclusively recognized employee organization representing the employees in the unit claimed to be appropriate for the purpose of meeting and conferring in good faith.

B. The petition, including the proof of employee support and all accompanying documentation, shall be declared to be true, correct and complete, under penalty of perjury, by the duly authorized officer(s) of the employee organization executing it.

1.07B.040 City response to recognition petition.

A. Upon receipt of the petition, the employee relations officer shall determine whether:

1. There has been compliance with the requirements of the recognition petition; and

2. The proposed representation unit is an appropriate unit in accordance with NCC 1.07B.080.

B. If an affirmative determination is made by the employee relations officer on the foregoing two matters, he shall so inform the petitioning employee organization, shall give written notice of such request for recognition to the employees in the unit and shall take no action on said request for 30 days thereafter. If either of the foregoing matters are not affirmatively determined, the employee relations officer shall offer to consult thereon with such petitioning employee organization, and if such determination thereafter remains unchanged, shall inform that organization of the reasons therefor in writing. The petitioning employee organization may appeal such determination in accordance with NCC 1.07B.100.

1.07B.050 Open period for filing challenging petition.

Within 30 days of the date written notice was given to affected employees that a valid recognition petition for an appropriate unit has been filed, any other employee organization may file a competing request to be formally acknowledged as the exclusively recognized employee organization of the employees in the same or in an overlapping unit (one which corresponds with respect to some but not all of the classifications or positions set forth in the recognition petition being challenged) by filing a petition evidencing proof of employee support in the unit claimed to be appropriate of at least 30 percent and otherwise in the same form and manner as set forth in NCC 1.07B.030. If such challenging petition seeks establishment of an overlapping unit, the employee relations officer shall call for a hearing on such overlapping petitions for the purpose of ascertaining the more appropriate unit, at which time the petitioning employee organizations shall be heard. Thereafter, the employee relations officer shall determine the appropriate unit or units in accordance with the standards in NCC 1.07B.080. The petitioning employee organizations shall have 15 days from the date notice of such unit determination is communicated to them by the employee relations officer to amend their petition to conform to such determination or to appeal such determination pursuant to NCC 1.07B.100.

1.07B.060 Election procedure.

The employee relations officer shall arrange for a secret ballot election to be conducted by a party agreed to by the employee relations officer and the concerned employee organization(s), in accordance with its rules and procedures subject to the provisions of this chapter. All employee organizations who have duly submitted petitions which have been determined to be in conformance with this chapter shall be included on the ballot. The ballot shall also reserve to employees the choice of representing themselves individually in their employment relations with the City. Employees entitled to vote in such election shall be those persons employed in regular permanent positions within the designated appropriate unit who were employed during the pay period immediately prior to the date which ended at least 15 days before the date the election commences, including those who did not work during such period because of illness, vacation or other authorized leaves of absence, and who are employed by the City in the same unit on the date of the election. An employee organization shall be formally acknowledged as the exclusively recognized employee organization for the designated appropriate unit following an election or run-off election if it received a numerical majority of all valid votes cast in the election. In an election involving three or more choices, where none of the choices receives a majority of the valid votes cast, a run-off election shall be conducted between the two choices receiving the largest number of valid votes cast, the rules governing an initial election being applicable to a run-off election.

There shall be no more than one valid election under this chapter pursuant to any petition in a 12-month period affecting the same unit.

The election shall be conducted by the State Conciliation Service or any third party upon which the City and the employee organization can agree.

Costs of conducting elections shall be borne in equal shares by the City and by each employee organization appearing on the ballot.

1.07B.070 Procedure for decertification of exclusively recognized employee organization.

A. A decertification petition alleging that the incumbent exclusively recognized employee organization no longer represents a majority of the employees in an established appropriate unit may be filed with the employee relations officer only during the month of March of any year following the first full year of recognition or during the 30-day period commencing 120 days prior to the termination date of a memorandum of understanding then having been in effect less than three years, whichever occurs later. A decertification petition may be filed by two or more employees or their representative, or an employee organization, and shall contain the following information and documentation declared by the duly authorized signatory under penalty of perjury to be true, correct and complete:

1. The name, address and telephone number of the petitioner and a designated representative authorized to receive notices or requests for further information.

2. The name of the established appropriate unit and of the incumbent exclusively recognized employee organization sought to be decertified as the representative of that unit.

3. An allegation that the incumbent exclusively recognized employee organization no longer represents a majority of the employees to the appropriate unit, and any other relevant and material facts relating thereto.

4. Proof of employee support that at least 30 percent of the employees in the established appropriate unit no longer desire to be represented by the incumbent exclusively recognized employee organization. Such proof shall be submitted for confirmation to the employee relations officer or to a mutually agreed upon disinterested third party within the time limits specified in subsection A of this section.

B. Any employee organization may, in satisfaction of the decertification petition requirements hereunder, file a petition under this section in the form of a recognition petition that evidences proof of employee support of at least 30 percent and otherwise conforms to the requirements of NCC 1.07B.030.

C. The employee relations officer shall initially determine whether the petition has been filed in compliance with the applicable provisions of this chapter. If his determination is in the negative, he shall offer to consult thereon with the representative(s) of such petitioning employees or employee organization and, if such determination thereafter remains unchanged, shall return such petition to the employees or employee organization with a statement of the reasons therefor in writing. The petitioning employees or employee organization may appeal such determination in accordance with NCC 1.07B.100. If the determination of the employee relations officer is in the affirmative, or if his negative determination is reversed on appeal, he shall give written notice of such decertification or recognition petition to the incumbent exclusively recognized employee organization and to unit employees.

D. The employee relations officer shall thereupon arrange for a secret ballot election to be held on or about 15 days after such notice to determine the wishes of unit employees as to the question of decertification and, if a recognition petition was duly filed hereunder, the question of representation. Such election shall be conducted in conformance with NCC 1.07B.060.

E. During the “open period” specified in subsection (A) of this section, the employee relations officer may on his/her own motion, when he/she has reason to believe that a majority of unit employees no longer wishes to be represented by the incumbent exclusively recognized employee organization, give notice to that organization and all unit employees that he/she will arrange for an election to determine that issue. In such event any other employee organization may within 15 days of such notice file a recognition petition in accordance with this section, which the employee relations officer shall act on in accordance with this section.

F. If, pursuant to this section, a different employee organization is formally acknowledged as the exclusively recognized employee organization, such organization shall be bound by all the terms and conditions of any memorandum of understanding then in effect for its remaining term.

1.07B.080 Policy and standards for determination of appropriate units.

A. The policy objectives in determining the appropriateness of units shall be the effect of a proposed unit on (1) the efficient operations of the City and its compatibility with the primary responsibility of the City and its employees to effectively and economically serve the public, and (2) providing employees with effective representation based on recognized community of interests considerations. These policy objectives require that the appropriate unit shall be the broadest feasible grouping of positions that share an identifiable community of interest. Factors to be considered shall be:

1. Similarity of the general kinds of work performed, types of qualifications required, and the general working conditions.

2. History of representation in the City and similar employment; except however, that no unit shall be deemed to be an appropriate unit solely on the basis of the extent to which employees in the proposed unit have organized.

3. Consistency with the organizational patterns of the City.

4. Number of employees and classifications, and the effect on the administration of employer-employee relations created by the fragmentation of classifications and proliferation of units.

5. Effect on the classification structure and impact on the stability of the employer-employee relationship of dividing a single or related classification among two or more units.

B. Notwithstanding the foregoing provisions of this section, managerial, supervisory and confidential responsibilities, as defined in NCC 1.07B.020, are determining factors in establishing appropriate units hereunder, and therefore such managerial, supervisory and confidential employees may only be included in units that do not include nonmanagerial, nonsupervisory and nonconfidential employees. Managerial, supervisory and confidential employees may not represent any employee organization which represents other employees.

C. The employee relations officer shall, after notice to and consultation with affected employee organizations, allocate new classifications or positions, delete eliminated classifications or positions, and retain, reallocate or delete modified classifications or positions from units in accordance with the provisions of this section.

1.07B.090 Procedure for modification of established appropriate units.

A. Requests by employee organizations for modifications of established appropriate units may be considered by the employee relations officer only during the period specified in NCC 1.07B.070. Such requests shall be submitted in the form of a recognition petition and, in addition to the requirements set forth in NCC 1.07B.030, shall contain a complete statement of all relevant facts and citations in support of the proposed modified unit in terms of the policies and standards set forth in NCC 1.07B.080. The employee relations officer shall process such petitions as other recognition petitions under this chapter.

B. The employee relations officer may on his/her own motion propose during the period specified in NCC 1.07B.070 that an established unit be modified. The employee relations officer shall give written notice of the proposed modifications to any affected employee organization and shall hold a meeting concerning the proposed modification(s), at which time all affected employee organizations shall be heard. Thereafter the employee relations officer shall determine the composition of the appropriate unit or units in accordance with NCC 1.07B.080 and shall give written notice of such determination to the affected employee organizations. The employee relations officer’s determination may be appealed as provided in NCC 1.07B.100. If a unit is modified pursuant to the motion of the employee relations officer hereunder, employee organizations may thereafter file recognition petitions seeking to become the exclusively recognized employee organization for such new appropriate unit or units pursuant to NCC 1.07B.030.

1.07B.100 Appeals.

A. An employee organization aggrieved by an appropriate unit determination of the employee relations officer may, within 10 days of notice thereof, request the intervention of the California State Conciliation Service pursuant to Government Code Sections 3507.1 and 3507.3, or may, in lieu thereof or thereafter appeal such determination to the City Council for final decision within 15 days of notice of the employee relations officer’s determination or the termination of proceedings pursuant to Government Code Sections 3507.1 and 3507.3, whichever is later.

B. An employee organization aggrieved by a determination of the employee relations officer that a recognition petition (NCC 1.07B.030), challenging petition (NCC 1.07B.050) or decertification of recognition petition (NCC 1.07B.070), or employees aggrieved by a determination of the employee relations officer that a decertification petition (NCC 1.07B.070), has not been filed in compliance with the applicable provisions of this chapter may, within 15 days of notice of such determination, appeal the determination to the City Council for final decision.

C. Appeals to the City Council shall be filed in writing with the City Clerk, and a copy thereof served on the employee relations officer. The City Council shall commence to consider the matter within 30 days of the filing of the appeal. The City Council may, in its discretion, refer the dispute to a third party hearing process. Any decision of the City Council on the use of such procedure, and/or any decision of the City Council determining the substance of the dispute shall be final and binding.

1.07B.110 Submission of current information by recognized employee organizations.

All changes in the information filed with the City by an exclusively recognized employee organization under items (1) through (8) of its recognization petition under NCC 1.07B.030 shall be submitted in writing to the employee relations officer within 14 days of such charge.

1.07B.120 Payroll deductions on behalf of employee organizations.

Upon formal acknowledgment by the City of an exclusively recognized employee organization under this chapter, only such recognized employee organization may be provided payroll deductions of membership dues and insurance premiums for plans sponsored by such organization upon the written authorization of employees in the unit requested by the exclusively recognized employee organization on forms provided therefor by the City. The providing of such service to the exclusively recognized employee organization by the City shall be contingent upon and in accordance with the provisions of memoranda of understanding and/or applicable administrative procedures.

1.07B.130 Employee organization activities – Use of City resources.

Access to City work locations and the use of City paid time, facilities, equipment and other resources by employee organizations and those representing them shall be authorized only to the extent provided for in memoranda of understanding and/or administrative procedures, shall be limited to lawful activities consistent with the provisions of this chapter that pertain directly to the employer-employee relationship and not such internal employee organization business as soliciting membership, campaigning for office, and organization meetings and elections, and shall not interfere with the efficiency, safety and security of City operations.

1.07B.140 Administrative rules and procedures.

The City Manager is hereby authorized to establish such rules and procedures as appropriate to implement and administer the provisions of this resolution after consultation with affected employee organizations.

1.07B.150 Initiation of impasse procedures.

If the meet and confer process has reached impasse as defined in this chapter, either party may initiate the impasse procedures by filing with the other party a written request for an impasse meeting, together with a statement of its position on all issues. An impasse meeting shall then be scheduled promptly by the employee relations officer. The purpose of such meeting shall be:

A. To review the position of the parties in a final effort to reach agreement on a memorandum of understanding; and

B. If the impasse is not resolved, to discuss arrangements for the utilization of the impasse procedures provided herein.

1.07B.160 Impasse procedures.

Impasse procedures are as follows:

A. If the parties agree to submit the dispute to mediation, and agree on the selection of a mediator, the dispute shall be submitted to mediation. All mediation proceedings shall be private. The mediator shall make no public recommendation, nor take any public position at any time concerning the issues.

B. If the parties failed to agree to submit the dispute to mediation or failed to agree on the selection of a mediator, or failed to resolve the dispute through mediation within 15 days after the mediator commenced meeting with the parties, the parties may agree to submit the impasse to fact-finding.

C. If the parties agree on fact-finding, they may agree on the appointment of one or more fact-finders. If they fail to so agree on one or more fact-finders, a fact-finding panel of three shall be appointed in the following manner: one member of the panel shall be appointed by the employee relations officer, one member shall be appointed by the exclusively recognized employee organization, and those two shall name a third, who shall be the chairman. If they are unable to agree upon a third, they shall select by agreement the third member from one or more lists of seven names of individuals having fact-finding experience in the municipal sector to be provided by the State Conciliation Service.

D. The following constitute the jurisdictional and procedural requirements for fact-finding:

1. The fact-finders shall consider and be guided by applicable federal and State laws (and Charter provisions).

2. Subject to the stipulations of the parties, the fact-finders shall determine and apply the following measures and criteria in arriving at their findings and recommendations:

a. First, as relevant to the issues in dispute, the fact-finders shall compare the total compensation, hours and conditions of employment of the employees involved in the fact-finding proceeding with the total compensation, hours and conditions of employment of other employees performing similar services in public and private employment in the same and comparable communities. “Total compensation” shall mean all wage compensation, including but not limited to premium, incentive, minimum, standby, out-of-class and deferred pay; all paid leave time, all allowances, including but not limited to educational and uniform benefits; and employer payments for all health, welfare and pension benefits.

b. The fact-finders shall then adjust the results of the above comparisons based on the following factors:

i. The compensation necessary to recruit and retain qualified personnel.

ii. Maintaining compensation relationships between job classifications and positions within the City.

iii. The pattern of change that has occurred in the total compensation of the employees in the unit at impasse as compared to the pattern of change in the average “consumer price index” for goods and services, and the pattern of change in wages and compensation of other wage earners.

c. The fact-finder(s) shall then determine preliminary recommendations based on the comparisons as adjusted above which, however, shall be reduced as appropriate based on the financial resources of the City to implement them. In assessing the City’s financial resources, the fact-finder(s) shall be bound by the following:

i. Other legislatively determined and projected demands on agency resources, i.e., budgetary priorities as established by the governing body; and

ii. Allowance for equitable compensation increases for other employees and employee groups for the corresponding fiscal period(s); and

iii. Revenue projections not to exceed currently authorized tax and fee rates for the relevant fiscal year(s); and

iv. Assurance of sufficient and sound budgetary reserves;

v. Constitutional, statutory (and Charter) limitations on the level and use of revenues and expenditures.

3. The fact-finder(s) shall make written findings of fact and recommendations for the resolution of the issues in dispute, which shall be presented in terms of the criteria, adjustments, and limitations specified above. Any member of a fact-finding panel shall be accorded the right to file dissenting written findings of fact and recommendations. The fact-finder or chairman of the fact-finding panel shall serve such findings and recommendations on the employee relations officer and the designated representative of the exclusively recognized employee organizations. If these parties have not resolved the impasse within 10 days after the service of the findings and recommendations upon them, the fact-finder or the chairman of the fact-finding panel shall make them public by submitting them to the City Clerk for consideration by the City Council in connection with the Council’s legislative consideration of the impasse.

E. If the parties did not agree on mediation or the selection of a mediator and did not agree on fact-finding, or having so agreed, the impasse has not been resolved, the City Council may take such action regarding the impasse as it in its discretion deems appropriate as in the public interest. Any legislative action by the City Council on the impasse shall be final and binding.

1.07B.170 Costs of impasse procedures.

The cost for the services of a mediator and fact-finder or chairman of a fact-finding panel utilized by the parties, and other mutually incurred costs of mediation and fact-finding, shall be borne equally by the City and the exclusively recognized employee organization. The cost for a fact-finding panel member selected by each party, and other separately incurred costs, shall be borne by such party.

1.07B.180 Construction.

This chapter shall be administered and construed as follows:

A. Nothing in this chapter shall be construed to deny to any person, employee, organization, the City, or any authorized officer, body or other representative of the City, the rights, powers and authority granted by federal or State law (or Charter provisions).

B. This chapter shall be interpreted so as to carry out its purposes as set forth in NCC 1.07B.010.

C. Nothing in this chapter shall be construed as making the provisions of California Labor Code Section 923 applicable to City employees or employee organizations, or of giving employees or employee organizations the right to participate in, support, cooperate or encourage, directly or indirectly, any strike, sickout or other total or partial stoppage or slowdown of work. In consideration of and as a condition of initial and continued employment by the City, employees recognize that any such actions by them are in violation of their conditions of employment and law. In the event employees engage in such actions, they shall subject themselves to discipline up to and including termination and may be deemed to have abandoned their employment, and employee organizations may thereby forfeit all rights accorded them under this chapter and other City law for a period up to one year from commencement of such activity. (Ord. 85-2, 4-9-1985)