Bakersfield Municipal Code Ch. 2.76 Employer-Employee Relations

Sections: 2.76.010 Title. 2.76.020 Purpose.

2.76.030 Definitions. 2.76.040 Employee rights. 2.76.050 City rights. 2.76.060 Meet and confer in good faith—Scope. 2.76.070 Consultation—Scope. 2.76.080 Advance notice. 2.76.090 Petition for recognition. 2.76.100 Appropriate unit. 2.76.110 Recognition of employee organizations as majority exclusive representative—Formal recognition. 2.76.120 City’s designated representative. 2.76.130 Resolution of impasses. 2.76.140 Matters subject to grievance procedure. 2.76.150 Memorandum of understanding. 2.76.160 Additional rules and regulations. 2.76.170 Construction.

This chapter shall be known as the “employer-employee relations ordinance of the city.” (Prior code § 3.16.010)

The purpose of this chapter is to implement Chapter 10, Division 4, Title 1 of the Government Code of the state of California (Sections 3500 et seq.) captioned “Public Employee Organizations,” by providing equitable, orderly and uniform procedures for the administration of employer-employee relations between the city and its employee organizations and for resolving disputes regarding wages, hours, and other terms and conditions of employment. (Prior code § 3.16.020)

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

1. “Appropriate unit” means a unit established pursuant to Section 2.76.100.

2. “City” means the city of Bakersfield, a municipal corporation, and where appropriate in this chapter, “city” refers to the city council, the governing body of the city, or any duly authorized management employee as defined in this chapter.

3. “City’s designated representative” means that person or persons designated by the council to consult, meet

and confer, as provided for in this chapter.

4. “Consult or consultation” means to communicate orally or in writing for the purpose of presenting and obtaining views or advising of intended actions.

5. “Employee” means any person regularly employed by the city in a probationary or permanent position.

6. “Employee, confidential” means an employee who is privy to decisions of city management affecting employer-employee relations.

7. “Employee, executive” means any employee having significant responsibilities for formulating or administering city policies and programs, including, but not limited to, the city manager, department heads, and such of their principal subordinates as are so designated by the city’s designated authority based upon the recommendation of the city manager or department head concerned.

8. “Employee, management” means an executive employee or a supervisory management employee.

9. “Employee organization” means any organization which includes employees of the city and which has as one of its primary purposes representing such employees in their employment relations with the city.

10. “Employee, professional” means employees engaged in work requiring specialized knowledge and skills attained through completion of a recognized course of instruction, including, but not limited to, attorneys, engineers, architects, and various types of physical, chemical and biological scientists.

11. “Employee supervisory management” means any employee having authority to recommend the transfer, suspension, layoff, recall, promotion, discharge, assignment, adjustment of grievances or discipline of other employees, or having the responsibility to direct them 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. In order to differentiate leadmen, foremen and supervisory management employees, the allocation of classes to supervisory management categories for the purpose of assignment to supervisory management shall be contingent on meeting both of the following minimum criteria:

    1. Employees in the class should perform a variety of the supervisory tasks listed above in this subsection, but these tasks must include:

       a. Assigning work to subordinate employees;

       b. Reviewing the work of subordinate employees;

c. Evaluating the performance of subordinates, when required under any program of employee performance evaluation; and

d. The authority to recommend the adjustment of grievances.

2. No class shall be allocated to a supervisory management category unless the job duties of a majority of
the positions therein:

a. Require the incumbent to spend a minimum of fifteen percent of his time engaged in performing
the supervisory duties listed in subdivision 1 of this subsection;

b. Are such that the incumbent does not engage in work similar to that of his subordinates more than
seventy-five percent of his time.

12. “Employer-employee relations” means the relationship between the city and its employees and their employee organization, or when used in a general sense, the relationship between city management and employees or employee organizations.

13. “Grievance” means any dispute concerning the interpretation or application of this chapter or of rules and regulations governing personnel practices or working conditions; however, it does not concern the contents of the chapter, rules, or regulations. Grievance procedures are set forth in Section 2.76.140;

14. “Impasse” means:

    a. A deadlock in the discussions between a majority representative and the city over any matters concerning which they are required to meet and confer in good faith, or over the scope of such subject matter; or

    b. Any unresolved complaint by an affected employee organization, advanced in good faith, concerning a decision of the “city’s designated authority” made pursuant to Sections 2.76.090 or 2.76.110.

15. “Majority exclusive representative” means an employee organization, or its duly authorized representative, that has been granted formal recognition by the city as representing the majority of employees in an appropriate unit.

16. “Mediation or conciliation” means the efforts of an impartial third person, or persons, functioning as intermediaries, to assist the parties in reaching a voluntary resolution to an impasse, through interpretation, suggestion, determining the facts and advice. Mediation and conciliation are interchangeable terms.

17. “Meet and confer in good faith”, sometimes referred to in this chapter as “meet and confer” or “meeting and conferring”, means performance by duly authorized city representatives and duly authorized representatives of any employee organization recognized as the majority representative of their mutual obligation to meet at reasonable times and to confer in good faith regarding matters within the scope of representation, including wages, hours, and other terms and conditions of employment, in an effort to:

    a. Reach agreement on those matters within the authority of such representatives; and

b. Reach agreement on what will be recommended to the city council on those matters within the decision- making authority of the city council.

Meet and confer in good faith involves an exchange of ideas, but does not require either party to agree to a proposal or to make a concession.

18. “Memorandum of understanding” means a nonbinding written summary of the understanding reached as a result of the meeting and conferring process to be signed by the city’s designated authority and the representative of the employee organization.

19. “Ordinance” means, unless the context indicates otherwise, the employer-employee relations ordinance of the city.

20. “Peace officer” has the meaning as this term is defined in Section 830, California Penal Code.

21. “Recognized employee organizations” means an employee organization which has been acknowledged by the city’s designated authority as an employee organization that represents employees of the city. The rights accompanying recognition are: formal exclusive recognition, which is the right to meet and confer in good faith as the majority representative in an appropriate unit.

22. “Scope of representation” means all matters relating to employment conditions and employer-employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment, except, however, that the scope of representation shall not include consideration of the necessity for, or organizational structure of any service or activity provided by law. City rights, set out in Section 2.76.050, and employee rights, set out in Section 2.76.040 are excluded from the scope of representation (Prior code § 3.16.030)

A. Employees’ rights shall be included in the supplemental rules and regulations to implement the employer- employee relations ordinance of the city.

B. Employees of the city shall have the right to form, join and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations including, but not limited to wages, hours, and other terms and conditions of employment.

C. Employees of the city also have the right to refuse to join or participate in the activities of employee organizations and shall have the right to represent themselves individually in their employment relations with the city.

D. No employee shall be interfered with, intimidated, restrained, coerced or discriminated against by the city or by any employee organization because of his exercise of these rights. (Prior code § 3.16.040)

A. The exclusive rights of the city include, but are not limited to, the right to determine the mission of its constituent departments, divisions, commissions and boards; set standards of service and municipal fees and charges; determine the procedures and standards of selection for employment, assignment, transfer and promotion; direct its employees; take disciplinary action; relieve its employees from duty because of lack of work or for other legitimate reasons; maintain the efficiency of governmental operations; determine the methods, means and personnel by which government operations are to be conducted; determine the content of job classifications; take all necessary actions to carry out its mission in emergencies; exercise complete control and discretion over its organization and the technology of performing its work; contract for any service or activity.

B. All rights formerly or presently claimed by or vested in the city on the effective date of this chapter and not mentioned in subsection A are retained by the city unless explicitly waived by the city by resolution of the council. (Prior code § 3.16.050)

A. “Meet and confer in good faith” means that a public agency, or such representatives as it may designate, and representatives of recognized employee organizations, shall have the mutual obligation personally to meet and confer promptly upon request by either party and continue for a reasonable period of time in order to exchange freely information, opinions and proposals, and to endeavor to reach agreement on matters within the scope of representation. The process should include adequate time for the resolution of impasses.

B. The city, through its representatives, shall meet and confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of such recognized employee organizations, as defined in subdivision (b) of Section 3501 of the California Government Code, and shall consider fully such presentations as are made by the employee organization on behalf of its members prior to arriving at a determination of policy or course of action.

C. The city shall not be required to meet and confer in good faith on any subject preempted by federal or state law or by the city Charter, nor shall it be required to meet and confer in good faith on employee or city rights as defined in Sections 2.76.040 and 2.76.050, nor shall it be required to meet and confer in good faith on proposed amendments to the ordinance as codified in this chapter not affecting employees’ rights. (Prior code § 3.16.060)

A. All matters affecting employer-employee relations, including those that are not subject to meeting and conferring, are subject to consultation.

B. The city, through its representatives, shall consult with an employee who requests the right to represent himself on employer-employee relations matters.

C. Advance notice on matters subject to consultation, but outside the scope of representation, is desirable but not mandatory. (Prior code § 3.16.070)

A. Reasonable written notice shall be given to each recognized employee organization affected by any ordinance, rule, resolution or regulation directly relating to matters within the scope or representation proposed to be adopted by the city council or by any board or commission of the city, and each shall be given the opportunity to meet with such body prior to adoption.

B. In cases of emergency when the city or any board or commission of the city determines that an ordinance, rule, resolution or regulation must be adopted immediately without prior notice or meeting with a recognized employee organization, the city or the board or commission of the city shall provide such notice and opportunity to meet at the earliest practicable time following the adoption of such ordinance, rule, resolution or regulation, if within the scope of representation. (Prior code § 3.16.080)

A. There is one level of employee organization recognition: formal exclusive.

B. The recognition requirements are as follows:

Formal Exclusive Recognition - The Right to Meet and Confer in Good Faith as Majority Representative. An employee organization that seeks formal exclusive recognition in conformance with Government Code 3507 for purposes of meeting and conferring in good faith as the majority representative of employees in an appropriate unit shall file a petition with the city’s designated authority containing the following information and documentation:

1. Name and address of the employee organization;

2. Names and titles of its officers;

3. Names of employee organization representatives who are authorized to speak on behalf of its members;

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

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

6. Certified copies of the employee organization’s constitution and bylaws, and those of any organization
with which it is affiliated;

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 recognizes that the provisions of Section 923 of the Labor
Code are not applicable to city employees;

9. A statement that the employee organization has no restriction on membership based on race, color,
creed, sex or national origin;

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

11. A statement that the employee organization has in its possession written proof, dated within six months of the date upon which the petition is filed, to establish that 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 city’s designated authority; valid dues deduction authorization cards of employee’s organization already recognized shall constitute written proof and shall not be required to be dated within six months; in the event that more than one signed authorization is submitted to the city from an employee, the signed authorization with the most recent date shall prevail; the signed authorization must be on a form supplied by the city’s designated authority;

    12. A request that the city’s designated authority recognize the employee organization as the majority representative of the employees in the unit claimed to be appropriate for the purpose of meeting and conferring in good faith on all matters within the scope of representation. (Prior code § 3.16.090)

A. The city’s designated authority, after reviewing the petition filed by an employee organization seeking formal exclusive recognition as majority representative, shall determine whether the proposed unit is an appropriate unit. The principal criterion in making this determination is whether the unit proposed contains the largest feasible group with a community of interest among such employees. The following factors, among others, are to be considered in making such determination:

1. Which unit will assure employees the fullest freedom in the exercise of rights set forth under this
chapter;

2. The history of employee relations:

a. In the unit,

b. Among other employees of the city, and

c. In similar public employment;

3. The effect of the unit on the efficient operation of the city and sound employer-employee relations;

4. The extent to which employees have common skills, working conditions, job duties or similar educational
requirements;

5. The effect on the existing classification structure of dividing a single classification among two or more
units.

B. Provided, however, no unit shall be established solely on the basis of the extent to which employees in the proposed unit have organized. (Prior code § 3.16.100)

representative—Formal recognition.

A. Duties. The city’s designated authority shall:

1. Determine the majority representative of city employees in an appropriate unit by arranging for a secret
ballot election or by any other reasonable method which is based upon written proof, and is designed to
ascertain the free choice of a majority of such employees; the employee organization found to represent a
majority of the employees in an appropriate unit shall be granted formal recognition and is the only
employee organization entitled to meet and confer in good faith in an effort to reach agreement on matters
within the scope of representation for employees in such unit; this shall not preclude other recognized
employee organizations, or individual employees, from consulting with management representatives on
employer-employee relations’ matters of concern to them;

2. Revoke the recognition rights of a majority representative, which has been found by secret ballot
election no longer to be the majority representative subject to the limitations set forth in subsection B of this
section.

B. Recognition Rights. The recognition rights of the majority representative designated in accordance with this section shall not be subject to challenge for a period of not less than twelve months following the date of such recognition.

C. Police Organization. For the purposes of Section 3508 of the Government Code, police officers of the city may form, join, participate in, and be represented by employee organizations of their own choosing for the purposes of representation on all matters of employer-employee relations as provided by this chapter, provided, such employee organizations:

1. Are composed solely of such police officers;

2. Concern themselves solely and exclusively with the wages, hours, working conditions, welfare programs,
and advancement of the academic and vocational training in furtherance of the police profession; and

3. Are not subordinate to any other organization. (Prior code § 3.16.110)

The personnel committee of the council of the city or a representative selected by the personnel committee with the approval of the city council is designated as the representative of the city to meet and confer or consult with representatives of employee or labor organizations or individuals who shall consider, as fully as possible, such presentations prior to the recommendations of establishing policy or course of action authorized by the city charter or municipal code. (Ord. 4283 § 1, 2005; prior code § 3.16.120)

A. Impasse procedures may be invoked only after the possibility of settlement by direct discussion has been exhausted.

The impasse procedures are as follows:

1. Mediation (or conciliation) as agreed to by both parties, defined in subsection 16 of Section 2.76.030. All
mediation proceedings shall be private. The mediator shall make no public recommendations nor take any
public position concerning the issues;

2. A determination by the city council after a hearing on the merits of the dispute;

3. Any other dispute resolving procedures to which the parties mutually agree or which the city council may
order.

B. Any party may initiate the impasse procedure by filing with the other party (or parties) affected a written request for an impasse meeting together with a statement of its position on all disputed issues. An impasse meeting may then be scheduled by the city’s designated authority forthwith after the date of filing of the written request for such meeting, with written notice to all parties affected. The purpose of such impasse meeting is twofold:

1. To permit a review of the position of all parties in a final effort to reach agreement on the disputed
issues; and

2. If agreement is not concluded, to mutually select the specific impasse procedure to which the dispute

may be submitted; in the absence of agreement between the parties on this point, the matter may be referred to the city council.

C. The fees and expenses, if any, of mediators or of any other impasse procedure, shall be payable one-half by the city and one-half by the employee organization or employee organizations. (Ord. 4535 § 1, 2008; prior code § 3.16.130)

A. All employees in the city service shall have the right to present a grievance.

B. Grievance procedures shall be applicable to disagreements in the interpretation of terminology of ordinances, resolutions and rules adopted pursuant to discussions between a majority representative and the city.

C. Grievance procedures are included in the supplemental rules and regulations to implement the employer- employee relations ordinance of the city. (Prior code § 3.16.140)

A. When the meeting and conferring process is concluded between the city and a formally recognized employee organization representing a majority of the employees in an appropriate unit, all agreed upon matters shall be incorporated in a written memorandum of understanding signed by the city’s designated authority and majority representatives.

B. As to those matters within the authority of the city council, the memorandum of understanding shall be submitted to the city council for determination. (Prior code § 3.16.150)

The city council shall adopt such rules and regulations necessary or convenient and may, from time to time, adopt additional rules and regulations to implement the provisions of this chapter and Chapter 10, Division 4, Title 1 of the Government Code of the state (Sections 3500 et seq.). (Prior code § 3.16.160)

A. Nothing in this chapter shall be construed to deny any person or employee the rights granted by federal and state laws and city Charter provisions.

B. The rights, powers and authority of the city council in all matters, including the right to maintain any legal action, shall not be modified or restricted by this chapter.

C. The provisions of this chapter are not intended to conflict with the provisions of Chapter 10, Division 4, Title 1 of the Government Code of the state (Sections 3500 et seq.). (Prior code § 3.16.170)