El Cerrito Municipal Code Ch. 3.40 Public Employee Organizations

The purpose of this chapter is to implement Chapter 10, Division 4, Title 1 of the Government Code of the state (Section 3500 et seq.), captioned "Public Employee Organizations," by providing orderly 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.

(Ord. 92-6 Div. 2 (part), 1992.)

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

"Appropriate unit" means a unit established pursuant to Section 3.40.130 of this chapter.

"City" means the city of El Cerrito, 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 section.

"Consult" or "consultation" means to communicate orally or in writing, in good faith, for the purpose of presenting and obtaining views or advising of intended actions.

"Employee" means any person regularly employed by the city except those persons elected by popular vote.

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

"Employee, management" means:

1. Any employee having significant responsibilities for formulating and administering city policies and programs, including but not limited to the city manager and department heads; and

2. Any employee having authority to exercise independent judgment to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or having the 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.

"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.

"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, physicians, registered nurses, engineers, architects, teachers, and various types of physical, chemical, and biological scientists.

"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.

"Grievance" means any dispute concerning the interpretation or application of this chapter, or of rules or regulations governing personnel practices or working conditions, or of the practical consequences of a city decision on wages, hours and other terms and conditions of employment.

"Impasse" means:

1. A deadlock in the annual (or periodic) 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

2. Any unresolved complaint by an affected employee organization, advanced in good faith, concerning a decision of the municipal employee relations officer made pursuant to Sections 3.40.080 through 3.40.140 of this chapter.

"Majority representative" means an employee organization, or its duly authorized representative, that has been granted formal recognition by the municipal employee relations officer as representing the majority of employees in an appropriate unit.

"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 and advice. Mediation and conciliation are interchangeable terms.

"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 an employee organization, recognized as the majority representative, of their mutual obligation to meet at reasonable times and to confer in good faith regarding matters within the scope of representation, including wages, hours, and other terms and conditions of employment, in an effort to:

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

2. Reach agreement on what will be recommended to the council on those matters within the decision making authority of the council. This does not require either party to agree to a proposal or to make a concession.

"Municipal employee relations officer" means the city's principal representative in all matters of employer-employee relations designated pursuant to Section 3.40.150 of this chapter, or his duly authorized representative.

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

"Peace officer" means as this term is defined in Section 817 of the state Penal Code.

"Recognized employee organization" means an employee organization which has been acknowledged by the municipal employee relations officer as an employee organization that represents employees of the city. The rights accompanying recognition are either:

1. Formal recognition, which is the right to meet and confer in good faith as the majority representative in an appropriate unit; or

2. Informal recognition, which is the right to consultation in good faith by all recognized employee organizations.

"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. City rights determined under Section 3.40.040 of this chapter are excluded from the scope of representation.

(Ord. 92-6 Div. 2 (part), 1992.)

Employees of the city shall have the right to form, join and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations including but not limited to wages, hours and other terms and conditions of employment. Employees of the city also shall have the right to refuse to join or participate in the activities of employee organizations and shall have the right to represent themselves individually in their employment relations with the city. No employee shall be interfered with, intimidated, restrained, coerced or discriminated against because of the exercise of these rights.

(Ord. 92-6 Div. 2 (part), 1992.)

The exclusive rights of the city include, but are not limited to:

A. Determining the mission of its constituent departments, commissions and boards;

B. Setting standards of service;

C. Determining the procedures and standards of selection for employment and promotion;

D. Directing its employees;

E. Taking disciplinary action;

F. Relieving its employees from duty because of lack of work or for other legitimate reasons;

G. Maintaining the efficiency of governmental operations;

H. Determining the methods, means and personnel by which government operations are to be conducted;

I. Determining the content of job classifications;

J. Taking all necessary actions to carry out its mission in emergencies; and

K. Exercising complete control and discretion over its organization and the technology of performing its work, including contracting for specific services.

(Ord. 92-6 Div. 2 (part), 1992.)

A. The city, through its representatives, shall meet and confer in good faith with representatives of formally recognized employees organizations with majority representation rights regarding matters within the scope of representation including wages, hours and other terms and conditions of employment within the appropriate unit.

B. The city shall not be required to meet and confer in good faith on any subject preempted by federal or state law, nor shall it be required to meet and confer in good faith on employee or city rights as defined in Sections 3.40.030 and 3.40.040 of this chapter. Proposed amendments to this chapter are excluded from the scope of meeting and conferring.

(Ord. 92-6 Div. 2 (part), 1992.)

All matters affecting employer-employee relations, including those that are not subject to meeting and conferring, are subject to consultation. The city, through its representatives, shall consult in good faith with representatives of all recognized employee organizations on employer-employee relations matters which affect them.

(Ord. 92-6 Div. 2 (part), 1992.)

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

(Ord. 92-6 Div. 2 (part), 1992.)

There are two levels of employee organization recognition—formal and informal. The recognition requirements of each are set forth in Sections 3.40.090 through 3.40.120 of this chapter.

(Ord. 92-6 Div. 2 (part), 1992.)

An employee organization that seeks formal recognition for purposes of meeting and conferring as the majority representative of employees in an appropriate unit shall file a petition with the municipal employee relations officer containing the following information and documentation:

A. Name and address of the employee organization;

B. Names and titles of its officers;

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

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 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;

F. Certified copies of the employee organization's constitution and bylaws;

G. 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 to the employee organization for any purpose;

H. A statement that the employee organization recognizes that the provisions of Section 923 of the state Labor Code are not applicable to city employees;

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

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

K. 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 municipal employee relations officer or to a mutually agreed upon disinterested third party;

L. A request that the municipal employee relations officer recognize the employee organization as the majority representative of the employees in the unit claimed to be appropriate for the purpose of meeting and conferring in good faith on all matters within the scope of representation.

(Ord. 92-6 Div. 2 (part), 1992.)

An employee organization that seeks recognition for purposes of consultation shall file a petition with the municipal employee relations officer containing the following information and documentation:

A. All of the information enumerated in subsections (A) through (I) of Section 3.40.090 of this chapter;

B. 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 have designated the employee organization to represent them in their employment relations with the city. Such written proof shall be submitted for confirmation to the municipal employee relations officer or to a mutually agreed upon disinterested third party;

C. A request that the municipal employee relations officer recognize the employee organization for the purpose of consultation.

(Ord. 92-6 Div. 2 (part), 1992.)

The executive officer and the secretary of the organization shall sign, under penalty of perjury, that the statements in any petition filed pursuant to Sections 3.40.090 or 3.40.100 of this chapter, including all accompanying documents, are true. All changes in such information shall be filed in like manner.

(Ord. 92-6 Div. 2 (part), 1992.)

The municipal employee relations officer shall grant recognition, in writing, to all employee organizations who have complied with Sections 3.40.090 through 3.40.110 of this chapter for purposes of consultation for its members. Employee organizations seeking formal recognition as majority representative must, in addition, satisfy the requirements of Section 3.40.140(A)(1) of this chapter. No employee may be represented by more than one recognized employee organization for the purposes of this chapter.

(Ord. 92-6 Div. 2 (part), 1992.)

A. The municipal employee relations officer, after reviewing the petition filed by an employee organization seeking formal recognition as majority representative, shall determine whether the proposed unit is an appropriate unit. The principal criterion in making this determination is whether there is a community of interest among such employees. The following factors, among others, are to be considered in making such determination:

1. The unit which 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.

Provided, however, no unit shall be established solely on the basis of the extent to which employees in the proposed unit have organized.

B. In the establishment of appropriate units:

1. Professional employees shall not be denied the right to be represented separately from nonprofessional employees; and

2. Management and confidential employees who are included in the same unit with nonmanagement or nonconfidential employees may not represent such employees on matters within the scope of representation.

(Ord. 92-6 Div. 2 (part), 1992.)

A. The municipal employee relations officer 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 on matters within the scope of representation for employees in such unit.

2. Revoke the recognition rights of a majority representative which has been found by secret ballot election no longer to be the majority representative.

B. The recognition rights of the majority representative designated in accordance with this section shall not be subject to challenge for a period of twelve months following the date of such recognition, as provided in the rules and regulations adopted pursuant to Section 3.40.190 of this chapter.

(Ord. 92-6 Div. 2 (part), 1992.)

The council shall designate, by resolution, a municipal employee relations officer who shall be the city's principal representative in all matters of employer-employee relations, with authority to meet and confer in good faith on matters within the scope of representation including wages, hours and other terms and conditions of employment.

The municipal employee relations officer so designated is authorized to delegate these duties and responsibilities.

(Ord. 92-6 Div. 2 (part), 1992.)

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

B. The impasse procedures are as follows:

1. Mediation or Conciliation. All mediation or conciliation proceedings shall be private. The mediator shall make no public recommendations nor take any public position concerning the issues;

2. A Determination by the 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 council may order.

C. 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 shall then be scheduled by the municipal employee relations officer 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 shall be submitted; in the absence of agreement between the parties on this point, the matter shall be referred to the council.

D. 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. 92-6 Div. 2 (part), 1992.)

Grievances shall be processed in accordance with procedures established by the city.

(Ord. 92-6 Div. 2 (part), 1992.)

When the meeting and conferring process is concluded between the municipal employee relations officer and a formally recognized employee organization representing a majority of the employees in an appropriate unit, all matters agreed upon shall be incorporated in a written memorandum of understanding signed by the municipal employee relations officer and a duly authorized representative of such employee organization.

As to those matters within the authority of the council, the memorandum of understanding shall not be effective until it has been approved by the council.

(Ord. 92-6 Div. 2 (part), 1992.)

The council may adopt rules and regulations necessary or convenient to implement the provisions of this chapter and of Chapter 10, Division 4, Title 1 of the State Government Code (Section 3500, et seq.), as amended in 1968.

(Ord. 92-6 Div. 2 (part), 1992.)

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

B. The rights, powers and authority of the council in all matters, including the right to maintain any legal action, are not 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 State Government Code (Sections 3500, et seq.) as amended in 1968.

(Ord. 92-6 Div. 2 (part), 1992.)

TITLE 3 FOOTNOTES

1. For the statutory provisions authorizing cities to establish personnel or civil service systems, see California Government Code Section 45000 et seq.

2. For the statutory provisions relating to the appointment and powers and duties of a municipal civil service commission, see California Government Code section 45004.

3. For the statutory provisions relating to political activity of city employees, see California Government Code, Sections 3201 through 3209.

4. For the statutory provisions relating to the appointment and powers and duties of a municipal retirement board, see California Government Code Section 45307.

5. For the statutory provisions relating to city pension and retirement systems, see California Government Code Section 45341 et seq.

6. For the statutory provisions relating to filing claims, see the California Government Code, Section 900 et seq. Authority to adopt claim filing procedures is provided by Section 935 of the Government Code. The manner for presenting claims is provided by Sections 912.6 and 915 of the Government Code.