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Res 83-016RESOLUTION NO. 83-016 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA ADOPTING AN EMPLOYER-EMPLOYEES RELATIONS POLICY WHEREAS, in the interest of good employer-employee relations, it is necessary to adopt an Employer-Employee Policy; and WHEREAS, the City Council of the City of Poway promotes good employer- employee relations; and WHEREAS, the attached Employer-Employee Relations Policy has been reviewed with representatives from the recognized employee organizations in accordance with Government Code Section 3500, and where appropriate, revisions have been made per agreement with the employee organizations. NOW, THEREFORE, BE IT RESOLVED by the Poway City Council that the attached Employer-Employee Relations Policy is adopted. PASSED AND ADOPTED by the City Council of the City of Poway, California, at a regular meeting thereof this 2qth day of March , 1983. Mary Sh~ar~son~, Mayor ATTEST: Ma ' . / \ r]ori~ K~ Wahlsten, City Clerk RESOLUTION NO. RESOLUTION ADOPTING THE EMPLOYER- EMPLOYEE RELATIONS POLICY BE IT RESOLVED BY THE COUNCIL OF THE CITY OF POWAY that Resolution be, and it is hereby repealed, and the following employer-employee relations policy is hereby adopted: ARTICLE I - STATEMENT OF PURPOSE This Resolution is enacted pursuant to California Government Code Sec- tions 3500 et seq., to provide procedures for meeting and conferring in good faith with Recognized Employee Organizations regarding matters that directly affect and primarily involve the wages, hours and other terms and conditions of employ- ment 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 for service; determine the procedures and selections 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 opera- tions are to be conducted; take all necessary actions to carry out its mission in emergencies; and exercise complete control and discretion over its organization and the technology of performing its work. Nothing contained herein shall be deemed to supersede the provisions of existing State law, ordinances, resolutions and rules which establish and regulate the personnel system, or which provide for other methods of adminis- tering employer-employee relations. This Resolution is intended, instead to strengthen the personnel system and other methods of administering employer- 79 employee relations through the establishment of uniform and orderly methods of communications between employees and the City. ARTICLE II - AUTHORITY OF CITY MANAGER The City hereby declares, as a matter of policy, that the City Council and its members will deal with employee organizations and their representatives solely through the City Manager except when otherwise expressly provided for by the terms of this Resolution. ARTICLE III - DEFINITIONS 1. "Appropriate Unit" means a unit of employee classes or positions, established pursuant to Article IV hereof. 2. The terms "employee organization", "recognized employee organization" and "mediation" have the meanings specified in California Government Code Sec. 3501. 3. The meaning of "scope of representation" is as that term is defined in California Government Code Sec. 3504. 4. "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. 5. "Management Employee" means an employee having responsibility for formu- lating, administering or managing the implementation of City policies and programs. 6. "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 responsibly 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. 80 7. "Professional Employee" means an employee engaged in work (a) predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical or physical work, and (b) involving the consistent exercise of discretion and judgment in its performance, and (c) of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time, and (d) requi'ring knowledge of an advanced type in a field of science or learning customarily acquired by prolonged course of specialized intellectual instruction and study in an institution of higher learning, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual or physical processes. 8. "Employee Relations Officer" means the City Manager or his/her duly authorized representative. 9. "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 account 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 ninety (90) days prior to the filing of a petition. 10. "City" means the City of Poway, California, and, where appropriate herein, refers to the City Council or any duly authorized City representative as herein defined. 11. "Day" means calendar day unless expressly stated otherwise. 81 12. "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 counter- proposals in an endeavor to reach agreement, n'6r is it subject to Article VI hereof. 13. Exclusively Recognized Employee Organization" means an employee organiza- tion which has been formally acknowledged by the City as the sole employee organization representing the employees in an appropriate representation unit pursuant to Article IV hereof, and thereby assuming the corresponding obligation of fairly representing such employees. ARTICLE IV - REPRESENTATION PROCEEDINGS SEC. 1. Filing of Recognition Petition by Employee Organization 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: a. b. Name and address of the employee organization. Names and titles of its officers. c. Names of employee organization representatives who are authorized to speak on behalf of the organization. d. A statement that the employee organization has, as one of its primary purposes, representing employees in their employment relations with the City. ~ e. A statement whether the employee organization is a chapter of, or affiliated directly or indirectly in any manner, with a local, 82 regional, state, national or international organization, and, if so, the name and address of each such other organization. f. Certified copies of the employee organization's constitution and by-laws. g. A designation of those persons, not exceeding two in number, and their addresses, to whomnotice sent by regular United States mail will be deemed sufficient notice on the employee organization for any purpose. h. A statement that the employee organization has no restriction on membership based on race, color, creed, sex, national origin, age, or physical disability. i. The job classifications or titles of employees in the unit claimed to be appropriate and the approximate number of member employees therein. j. 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. k. 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. 1. A statement that the organization agrees to comply with the provisions of this resolution. 83 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. SEC. 2. City Response to Recognition Petition Upon receipt of the Petition, the Employee Relations Officer shall determine There has been compliance with the requirements of the Recognition Petition, and b. The proposed representation unit is an appropriate unit in accordance with Sec. 6 of this Article IV. If an affirmative determination is made by the Employee Relations Officer on the foregoing two matters, he shall so inform the petitioning employee organiza- tion, shall give written notice of such request for recognition to the employees in the unit'and shall take no action on said request for thirty (30) days thereafter. If either of the foregoing matters are not affirmatively determined, the 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 Sec. 8 of this Article IV. SEC. 3. Open Period for Filing Challenging Petition Within thirty(3o) days of the date written notice was given to affected employees that a valid recognition petition for an appropriate unit has been filed, any other employee organization may file a competing request to be formally acknowledged as the exclusively recognized employee organization of the employees in the same or in an overlapping unit (one which corresponds with respect to some but not all the classifications or positions set forth in the recognition petition being challenged), by filing a petition evidencing proof of employee support in the unit claimed to be appropriate of at least thirty (30) 84' whether: a. percent and otherwise in the same form and manner as set forth in Sec. 1 of this Article IV. 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 organization shall be heard. Thereafter, the Employee Relations Officer shall determine the appropriate unit or units in accordance with the standards in Sec. 6 of this Article IV. The petitioning employee organizations shall have fifteen (15) days from the date notice of such unit determination is communicated to them by the Employee Belations Officer to amend their petitions to conform to such determination or to appeal such determination pursuant to Sec. 8 of this Article IV. SEC. 4. 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 Resolution. All employee organizations who have duly submitted petitions which have been determined to be in conformance with this Article IV 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 fifteen (15) days before the date the election commences, including those who did not work during such period because of illness, vacation or other authorized leaves of absence, and who are employed 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 85 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 Resolution pursuant to any petition in a 12-month period affecting the same unit. In the event that the parties are unable to agree on a third party to con- duct an election, the election shall be conducted by the State Conciliation Service. ,,' Costs of conducting elections shall be borne in equal shares by the City and by each employee organization appearing on the ballot. SEC.5 Procedure for Decertification of Exclusively Recognized Employee Organization 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 thirty (30) day period commencing one hundred twenty (120) days prior to the termination date of a Memorandum of Understanding then having been in effect less than one (1) year, 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: The name, address and telephone number of the petitioner and a designated representative authorized to receive notices or requests for further information. 86 b. The name of the established appropriate unit and of the incumbent Exclusively Recognized Employee Organization sought to be de- certified as the representative of that unit. c. An allegation that the incumbent Exclusively Recognized Employee Organization no longer represents a majority of the employees in the appropriate unit, and any other relevant and material facts relating thereto. d. Proof of employee support that at least thirty (30) percent of the employees in the established appropriate unit no longer desire to be represented by the incumbent Exclusively Recognized Employee Organization. Such proof shall be submitted for con- firmation to the Employee Relations Officer or to a mutually agreed upon disinterested third party within the time limits specified in the first paragraph of this Section. An employee organization may, in satisfaction of the Decertification Petition requirements hereunder, file a Petition under this section in the form of a Recognition Petition that evidences proof of employee support of at least thirty (30) percent and otherwise conforms to the requirements of Section 1 of this Article. The Employee Relations Officer shall initially determine whether the Petition has been filed in compliance with the applicable provisions of this Article IV. If this 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 Sec. 8 of this Article IV. If the determination of the Employee Relations Officer is in the affirmative, or 87 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. The Employee Relations Officer shall thereupon arrange for a' secret ballot election to be held on or about fifteen (15) days after such notice to determine the wishes of unit employees as to the question of decertification and, if a Recognition Petition was duly filed hereu.nder, the question of representation. Such election shall be conducted in conformance with Sec. 4 of this Article IV. During the "open period" specified in the first paragraph of this Sec.5, the Employee Relations Officer may on his/her own motion, when he/she has reason to believe that a majority of the unit employees no longer wish to be represented by the incumbent Exclusively Recognized Employee Organization, give notice to that organization and all unit employees that he/she will arrange for a vote of all members of the unit to determine if a majority of the unit employees desire to hold an election to determine representation. Should such events occur, any other employee organization may within fifteen (15) days of such notice file a Recognition Petition in accordance with this Sec.5, which the Employee Relations Officer shall act on in accordance with this Sec. 5. If, pursuant to this Sec. 5, a different employee organization is formally acknowledged as the Exclusively Recognized Employee Organization, such organi- zation shall be bound by all the terms and conditions of any Memorandum of Under- standing then in effect for its remaining term. SEC.6. Policy and Standards for Determination of Appropriate Units The policy objectives in determining the appropriateness of units shall be the effect of a proposed unit on (1) the efficient operations of the City and its compatibility with the primary responsibility of the City and its employees to effectively and economically serve the public, and (2) providing employees with effective representation based on recognized community of interest considerations. These policy objectives require that the appropriate unit shall be the broadest 88 feasible grouping of positions that share an i~entifiable community of interest. Factors to be considered shall be: a. Similarity of the general kinds of work performed, types of qualifications required, and the general working conditions. b. History of representation in the City and similar employment; except however, that no unit shall be deemed to be an appropriate unit solely on the basis of the extent to which employees in the proposed unit have organized. c. Consistency with the organizational patterns of,the City. d. Number of employees and classifications, and the effect on the administration of employer-employee relations created by the fragmentation of classifications and proliferation of units. e. Effect on the classification structure and impact on the stability of the employer-employee relationship of dividing a single or related classifications among two or more units. Notwithstanding the foregoing provisions of this Section, managerial, super- vosory and confidential responsibilities, as defined in Sec. 2 of this Resolution, 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 non-managerial, non-supervisory and non-confidential employees. Managerial, supervisory and confidential employees may not represent any employee organization which represents other employees. 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 pro- visions of this Section. 89 SEC. 7. Procedure for Modification of Established Appropriate Units Requests by employee organizations for modifications of established appropriate units may be considered by the Employee Relations Officer only during the period specified in Sec. 5 of this Article IV.' Such requests shall be submitted in the form of a Recognition Petition and, in addition to the requirements set forth in Sec. 1 of this Article, shall contain a complete statement of all relevant facts and citations in support of the proposed modified unit in terms of the policies and standards set forth in Sec. 6 hereof. The Employee Relations Officer shall process such petitions as other Recognition Petitions under, this Article IV. The Employee Relations Officer may on his/her own motion propose during the period specified in Sec. 5 of this Article that an established unit be modified. The Employee Relations Officer shall give written notice of the proposed modifi- cation(s) to any affected employee organization and shall hold a meeting con- cerning the proposed modification(s), at which time all affected employee organi- zations shall be heard. Thereafter the Employee Relations Officer shall determine the composition of th~ appropriate unit or units in accordance with Sec. 6 of this Article IV, 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 Section 8 of this Article. 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 Sec. 1 hereof. SEC. 8. Appeals An employee organization aggrieved by an appropriate unit determination of the Employee Relations Officer under this Article IV may, within ten (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 90 thereof or thereafter appeal such determination to the City Council for final decision within fifteen (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. An employee organization aggrieved by a determination of the Employee' Relations Officer that a Recognition Petition (Sec. 1); Challenging Petition (Sec. 3) or Decertification of Recognition Petition (Sec. 7) -- or employees aggrieved by a determination of the Employee Relations Officer that a Decertifica- tion Petition (Sec. 7) -- has not been filed in compliance with the applicable provisions of this Article may, within fifteen (15) days of notice of such determination, appeal the determination to the City Council for final decision. 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 thirty (30) days of the filing of the appeal. The City Council may, in its discretion, refer the dispute to a third party hearing process. Any decision of the City Council on the use of such procedure, and/or any decision of the City Council determining the substance of the dispute shall be final and binding. ARTICLE V - ADMINISTRATION SEC. 1. Submission of Current Information by Recognized Employe~ Organizations All changes in the information filed with the City by an Exclusively Recognized Employee Organization under items (a.) through (h.) of its Recognition Petition under Sec. 1. of Article IV shall be submitted in writing to the Employee Relations Officer within fourteen (14) days of such change. 91 SEC. 2. Payroll Deductions on Behalf of Employee Organizations · Upon formal acknowledgement by the City of an Exclusively Recognized Employee Organization under this Resolution, 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 authoriza- tion of employees in the unit represented 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 Under- standing and/or applicable administrative procedures. SEC. 3. Employee Organization Activities---Use of City Resources Access to City work locations ann 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 Under- standing and/or administrative procedures, shall be limited to lawful activities con- sistent with the provisions of this Resolution that pertain directly to the employer-employee relationship and not such internal employee organization business as soliciting membership, campaigning for office, and organization meetings and elections, and shall not interfere with the efficiency, safety and security of City operations. SEC. 4. 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. ARTICLE VI - IMPASSE PROCEDURES SEC. 1. Initiation of Impasse Procedures If the meet and confer process has reached impasse as defined in this Resolution, either party may initiate the impasse procedures by filing with the 92 other party a written request for an impasse meeting, together with a state- ment 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. SEC. 2. Impasse Procedures Impasse procedures are as follows: ,~ If the parties agree to submit the dispute to mediation, and agree on the selection of a mediator, the dispute shall be submitted to mediation. All mediation proceedings shall be private. The mediator shall make no public recommendation, nor take any public position at any time concerning the issues. If the'parties did not agree on mediation or the selection of a mediator, 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. SEC. 3. Costs of Impasse Procedures The costs for the services of a mediator and other mutually incurred costs of mediation shall be borne equally by the City and the Exclusively Recognized Employee Organization. ARTICLE VII - MISCELLANEOUS PROVISIONS SEC. 1. Construction This Resolution shall be administered and construed as follows: a. Nothing in this Resolution 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, 93 powers and authority granted by Federal or State law. b. This Resolution shall be interpreted so as to carry out its purposes as set forth in Article I. c. Nothing in this Resolution 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,,~ny strike, sickout or other total or partial stoppage or slowdown of work. In con- sideration of and as a condition of initial and continued employ- ment 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 Resolution and other City law for a period up to one (1) year from commencement of such activity. SEC. 2. Severability If any provision of this Resolution, or the application of such provision to any persons or circumstance, shall be hel.d invalid, the remainder of this Resolution, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby. 94