Monterey Municipal Code § 25-16.17 Construction

a.These Regulations implement Chapter 10, Division 4, Title 1 of the Government Code of the State of California (Sections 3500 et seq) entitled “Local Public Employee Organizations” by providing a uniform and reasonable basis for the conduct of employer-employee relations between the City and its employees and employee organizations.

b.Nothing contained herein shall be deemed to supersede the provisions of State Law or City Charter, ordinances, resolutions and rules which establish and regulate a merit system or which provide for other methods of administering employer-employee relations.

As used herein, the following terms shall have the meanings indicated.

a.APPROPRIATE UNIT: A unit of classes or positions established for representation purposes in accordance with Section 16.09.

b.CERTIFICATION: The process and act of recognizing an employee organization as the bargaining representative for an appropriate bargaining unit.

c.CONFIDENTIAL EMPLOYEE: An employee serving in a position designated by separate administrative policy who has access to information within the scope of representation, confidential information dealing with other employees, or information regarding pending litigation and attorney-client or attorney work product privilege items.

d.DECERTIFICATION: The process and act of rescinding the rights of a recognized employee organization to act as the bargaining representative for an appropriate bargaining unit.

e.EMPLOYEE: Persons employed by the City on a regular full-time or regular part-time basis excluding persons elected by popular vote or appointed to serve on boards or commissions by the City Council.

f.IMPASSE: Inability of the City and a recognized employee organization to reach, after negotiations and exchange of proposals, agreement on the terms of a memorandum of understanding.

g.MANAGEMENT EMPLOYEE: An employee having significant responsibility for formulating, administering or managing the implementation of City policies or programs.

h.CITY REPRESENTATIVE: The City Manager, or any other management employee, person or organization duly designated as such by the City Council or by the City Manager to represent the City in labor relations matters.

i.MEDIATION: The efforts of an impartial third party or parties functioning as an intermediary to assist the parties in reaching a voluntary resolution of an impasse through interpretation, suggestion and advice.

j.MEET AND CONFER: The mutual obligation of the City and its recognized employee organizations to meet promptly upon request of either party and continue for a reasonable period of time in order to freely exchange 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 an impasse as specified in Section 16.12. This process does not require either party to agree to a proposal or to make a concession.

k.MEMORANDUM OF UNDERSTANDING: A written agreement on matters subject to negotiation reached by city representatives and representatives of a recognized employee organization, which shall only be binding upon approval by the City Council.

l.NEGOTIATE: To meet and confer.

m.PEACE OFFICER: An employee who is a full-time peace officer as that term is defined in Section 830.1 of the California Penal Code.

n.RECOGNIZED EMPLOYEE ORGANIZATION: An organization certified in accordance with Section 16.09.

o.SCOPE OF REPRESENTATION: 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 merits, necessity or organization of any service or activity provided by law or administrative order or is exclusively a right retained by the City.

p.SHOWING OF INTEREST: The submission of evidence of employee support by employee organizations for the purpose of certification or decertification in the manner prescribed in Sections 16.09 and 16.10.

a.Except as otherwise provided by law or by these regulations, City employees shall have the right to form, join and participate in the activities of employee organizations of their own choosing. Employees shall also have the right to refuse to join or participate in the activities of such organizations.

b.Neither the City nor any employee organization shall interfere with, intimidate, restrain, coerce or discriminate against any employee in the exercise of these rights.

c.Nothing in these Rules are intended to deny any employee of their rights under applicable laws.

The City retains all of its powers and authority to manage municipal services and the work force performing those services including, but not limited to the following exclusive rights to:

a.Determine and modify the organization of City government and its constituent work units;

b.Determine the nature, standards, levels, and mode of delivery of services to be offered to the public;

c.Determine the methods, means, and numbers and kinds of personnel by which services are to be provided;

d.Determine whether goods or services shall be made or provided by the City, or shall be purchased or contracted for;

e.Direct employees, including scheduling and assigning work, work hours, and overtime, subject to any restriction(s) contained explicitly in the appropriate memorandum of understanding;

f.Establish employee performance standards and require compliance therewith;

g.Discharge, suspend, demote, reduce in pay, reprimand, withhold salary increases and benefits, or otherwise discipline employees subject to the requirements of applicable law;

h.Relieve employees of duty for any legitimate reason;

i.Implement rules, regulations, and directives consistent with law;

j.Take all necessary actions to protect the public and carry out its mission in emergencies;

k.Manage its operations;

l.Exclude from the meet and confer process any subject preempted by federal or state law.

a.Recognized employee organizations shall have the right, except as otherwise provided in these regulations, to represent employees within the appropriate bargaining unit concerning matters within the scope of representation.

b.Not more than five (5) employee representatives, excluding legal counsel, of recognized employee organizations shall be allowed reasonable time off without loss of compensation or other benefits when formally meeting with City representatives on matters within the scope of representation. This shall not be construed to provide compensation and benefits to employees who attend or participate in such activities during their off-duty time.

a.The City shall give reasonable advance written notice to two (2) designated representatives of each affected, recognized employee organization, as determined by the employee organization, of any action directly relating to the scope of representation proposed for adoption by the City Council or City Manager. Each affected organization shall be provided an opportunity to meet and confer with the City Manager or a designated representative regarding the proposed action. Notification shall be consistent with the agreed upon procedures between the City and individual recognized employee organizations. Ord. 3273, 1/00

b.Where circumstances dictate immediate action by the City Council which prevents advance notice to employee organizations, the City Council shall furnish such notice and opportunity to meet with its designated representatives as soon as possible following its action.

a.Each recognized employee organization shall promptly notify the City Manager and the Human Resources Director (Ord 3385; 02/07) in writing of any change in its officers, representatives, affiliation status or of any other information contained in its petition for recognition filed pursuant to Section 16.09. Each organization shall also provide the City as often as necessary a list of the officers and/or represented employees who are authorized by the organization to speak for it and to bind the organization in matters of employee relations.

b.Both the City and its recognized employee organizations shall provide reasonable advance notice to the other party as to the composition of its negotiating team, including nonmember negotiators. The maximum number of negotiators for either the City or employee organization shall not exceed five (5) members, excluding professional representatives.

a.No employee organization shall be certified or decertified without a final determination having been made on the appropriateness of the bargaining unit(s) concerned by the City Council.

b.Such determination shall result in the broadest feasible grouping of classes and positions which share an identifiable community of interest and which do not serve to cause undue fragmentation of classes or proliferation of units. Factors to be considered in assessing community of interest shall include similarity of job duties, qualifications, compensation and general working conditions. These additional criteria shall also apply.

1.The proposed unit’s affect on and compatibility with efficient operation of the City, the delivery of its services to the community and its organizational structure;

2.The history of representation in the City and in similar types of public and, where appropriate, private employment;

3.The proposed unit’s affect on the City’s classification and compensation structure and on the bargaining relationship of dividing a single classification or a series of related classifications among two or more bargaining units.

c.Irrespective of the foregoing provisions:

1.No unit shall be deemed appropriate solely on the basis of the extent to which the employees concerned have organized.

2.Management employees shall not be allocated to a bargaining unit which also includes non management employees; nor shall they be represented by any employee organization which represents non management employees.

a.Management and confidential employees shall not represent any employee organization which represents non management or nonconfidential employees, nor shall confidential employees disclose any information communicated to them relating to matters within the scope of representation, confidential information dealing with other employees, pending litigation and attorney-client or attorney work product privilege items. This provision, however, shall not apply to matters of public record, or to matters which confidential employees have been given written authorization to release by the City Manager.

Confidential employees shall observe the following additional regulations:

(1)Confidential employees are precluded from serving on the board or negotiating team of their employee association.

(2)Confidential employees may attend association meetings and participate to the extent of providing factual information and clarification on City practices and proposals. They should exercise caution in expressing their personal opinion so as not to divulge confidential information.

(3)Confidential employees may vote on agreements with the City when such votes are conducted by secret ballot.

(4)Confidential employees may fully participate in discussions and vote on administrative matters pertinent to the association. (e.g. election of officers, adoption of by-laws, etc.) consistent with the rules of the association.

(5)Confidential employees may serve as association representatives on policy development committees which meet outside of the negotiation process and where confidential information would not be a factor in discussion.

b.This section shall not otherwise serve to limit employee rights as set forth in Section 16.03.

3.Full-time peace officers shall have the right of separate representation from non-peace officers, provided that the employee organization seeking representation rights for such employees is composed solely of peace officers and is not subordinate to any other organization.

a.Note: Through adoption of this Rule, the City reaffirms recognition of the following employee organizations for the bargaining units in existence as of the date of adoption of these Rules.

Monterey Fire Chief Officers’ Association

General Employees of Monterey

Management Employees Association

Monterey Fire Fighter’s Association

Monterey Police Association

Police Lieutenants’ Management Association

b. Timing of Petitions.

1.A petition seeking to modify a unit established pursuant to this Section or to decertify the existing bargaining representative shall only be valid if filed between 180 days and 150 days prior to the expiration date of an approved memorandum of understanding which covers the subject bargaining unit.

2.Where no memorandum of understanding is in effect for the subject unit or group of employees, petitions may be filed at any time prior to December 31 to be in effect for the meet and confer process for the following fiscal year.

c. Content of Petitions.An employee organization seeking recognition shall file with the City Clerk a petition containing the following information and documentation.

1.Name and address of employee organization;

2.Names and titles of officers;

3.Names and titles of representatives who are authorized to speak on behalf of the employee organization in dealing with the City;

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

5.A statement as to whether the organization is a chapter, local or affiliate of any existing employee organization and, if so, the name and address of such organization;

6.A copy of the organization’s constitution and bylaws, if they exist;

7.A designation of not more than two (2) individuals, and their addresses, to whom notice sent by regular mail service will be deemed sufficient notice to the organization for any purpose;

8.A statement that the organization has no restriction on membership based on race, color, creed, sex, disability, national origin, political affiliations, age or marital status;

9.The specific job classifications included in the proposed unit;

10.Submission of evidence that at least thirty percent (30%) of the employees eligible to participate in the proposed unit have designated the employee organization as their representative for employee relations purposes. This showing of interest can take the form of authorization cards, petitions or dues deduction authorizations. In all cases, these must be signed and personally dated by the individual employee within ninety (90) days of the date the petition for recognition is filed.

d. Initial Action by City.

1.The City Manager shall determine if the petition meets all requirements of this Section and shall also make a preliminary determination concerning the appropriateness of the proposed unit in accordance with the provisions of Section 16.08. Verification of showing of interest furnished by the organization shall be based upon the City payroll register as of the period immediately preceding filing of the petition.

2.Written notice of the petition’s preliminary acceptance or rejection shall be furnished the petitioning organization within fifteen (15) days of its receipt by the City Manager. Where the petition is accepted, written notice shall also be furnished employees whose classes are to be included in the bargaining unit and all other recognized employee organizations of the City. No further action on the petition shall be taken by the City Manager for thirty (30) days from the date such notice is provided.

3.If no challenging petition, as provided in paragraph e., below, is filed within the aforementioned thirty (30) day period, the City Manager shall submit recommendations to the City Council, which shall make the final determination regarding the appropriateness of the proposed bargaining unit.

4.Where the City determines that either the petition is defective or that the proposed unit is inappropriate, it shall so notify the petitioning employee organization. Such notices shall be in writing and shall specify the causes for rejection.

5.If grounds for rejection were due to technical deficiencies in form, the organization may amend its petition accordingly, provided the amended petition is received by the City Clerk by the end of the appropriate filing period as set forth in paragraph b. of this Section.

6.If grounds for rejection were due to inappropriateness of the bargaining unit, the City Manager shall, at the request of the employee organization, consult with it on this matter prior to submitting a recommendation to the City Council.

e. Challenging Petitions.

1.Within the thirty (30) day period following the acceptance of a petition for recognition, any other employee organization may submit a challenging petition requesting recognition as the representative for the subject unit or for a broader or narrower unit than prescribed in the original petition. The challenging petition must meet all requirements set forth in paragraph c. of this Section. A thirty percent (30%) showing of interest of the employees eligible for membership of the proposed unit shall be required where the proposed unit is different than that named in the original petition and ten percent (10%) where it is the same.

2.Where the challenging petition seeks the same unit encompassed by the original petition or subsequently stipulated to by the organization and the City, it shall be accepted provided it meets all requirements for the filing of a valid petition. It shall then be permitted to participate in the representation proceedings as set forth in paragraph f. of this Section.

3.Where the challenging petition seeks a unit other than that specified in the original petition or that stipulated to by the petitioning organization and the City, the City Manager, or the City Manager’s designated representative, shall conduct a hearing involving representatives from all petitioning organizations to make a preliminary determination regarding the more appropriate unit. Within ten (10) days following the conclusion of such a hearing, the City Manager, or the City Manager’s designated representative, shall notify the affected organizations and employees of the preliminary determination.

4.The City Manager’s recommendations shall be promptly submitted to the City Council which shall make the final determination regarding the appropriateness of the proposed bargaining unit.

f. Final Action by City.The City Council shall make a final determination regarding the appropriateness of any proposed bargaining unit submitted to it pursuant to this Rule. Where a proposed unit is found to be appropriate, the City Council shall direct the eligible employee organization(s) to provide it with a petition as provided below. In order to qualify for acceptance, such petitions must:

1.Be submitted to the City Council within thirty (30) days of the date of its decision regarding the appropriateness of the bargaining unit; and

2.Bear the original signatures of a numerical majority of the employees in classes included in the bargaining unit, which must be dated within the aforementioned thirty (30) day period; and

3.Clearly state that the petition is for the express purpose of determining if the employee chooses the petitioning employee organization for representation in matters within the scope of representation.

g. Verification of Signatures.Verification of signatures contained in recognition petitions shall be based upon the City payroll register as of the period immediately preceding the filing of the petition with the City Council. Employee signatures appearing on more than one recognition petition shall cancel one another and not be counted as a vote for either organization. (Ord. 3483 § 2, 2013)

a.An employee organization or employees represented by a recognized employee organization may file a petition seeking the decertification of that recognized employee organization on the grounds that it no longer represents the majority of the employees in the appropriate bargaining unit.

b.The timing of the petition shall be governed by Section 16.09. However, in no case, shall a decertification petition be filed within twelve (12) months from the date the recognized employee organization was certified, nor shall more than one (1) representation election be held affecting the same unit, or portions thereof, within a twelve (12) month period.

c.All decertification petitions shall specify the bargaining unit and incumbent employee organization at issue; demonstrate a 30% showing of interest on the part of all employees eligible to participate in the subject bargaining unit; and an allegation that the organization no longer represents a majority of the employees in the appropriate bargaining unit. In addition, an employee organization seeking certification as a recognized employee organization for the unit in question, shall include all information required in Section 16.09, paragraph c.

d.The City shall have the right to initiate decertification proceedings if it has reasonable and objective grounds for believing that a recognized employee organization no longer represents the majority of employees in an appropriate bargaining unit. Such grounds may include, but not be limited to, substantial modifications in the classification plan resulting in the elimination or reallocation of classes once in the bargaining unit.

e.Except in extraordinary circumstances, the City’s request shall be subject to the timing requirements of this Section and of Section 16.09 and shall only be acted upon with the prior approval of the City Council.

f.The procedures set forth in Sections 16.08 and 16.09 shall govern matters concerning appropriateness of a proposed unit, notification of the parties, waiting periods and recognition proceedings. Further, an employee organization desiring to intervene in the proceedings shall be subject to the provisions of Section 16.09, paragraph e, concerning Challenging Petitions.

a.When a new classification is created or an existing one reclassified or eliminated, the City Manager or designee shall make a preliminary determination on amending the class composition of the respective bargaining unit(s) accordingly and shall so notify the affected recognized employee organization(s) in writing, or in accordance with any agreed upon procedure for notification between the City and an individual recognized employee organization.

b.An employee organization disagreeing with such an allocation, reallocation or deletion may request a meeting with the City Manager or a designated representative for the purpose of clarifying the determination and discussing any disagreement between the parties. The City Manager’s, or the designated representative’s, decision on such matters shall be final.

a.Either party may determine that the meet and confer process has reached impasse as defined in Section 16.02 and may invoke the procedures of this section. Impasse procedures shall be commenced when one party files written notice on the other that impasse has been reached. At such time, the involving party shall, with the written notice, serve the other party with a final offer of settlement. Within three (3) working days of said written notice, the other party shall serve the invoking party with their final written offer of settlement.

b.As soon as possible thereafter, the representatives of each party shall hold an impasse meeting. The purpose of the impasse meeting shall be to attempt to resolve all outstanding issues and reach agreement. If no agreement can be reached, the parties may mutually agree to submit the matter to non binding mediation selected from the State Mediation and Conciliation Service or other mutually agreed upon alternative.

c.In the event the parties agree to submit the matter to non binding mediation, they may also agree to limit the issues submitted to a mediator. All mediation proceedings shall be conducted in closed session and the mediator shall make no public statement concerning the proceedings or any issues. The impasse meeting shall be continued from time to time until the completion of the mediation process. If the mediation process fails to produce an agreement between the parties, a final impasse meeting shall be held. The parties shall bear their own costs of the mediation proceedings and each pay one half of the costs of the mediator, unless they mutually agree to a different cost sharing formula.

d.If mediation is not used, or agreement cannot be reached after mediation and the parties cannot agree at the impasse meeting, then the matter shall be submitted to the City Council. Not more than ten (10) days after the impasse meeting, the parties shall submit to the City Clerk their final offer of settlement together with any supplementary information they wish to submit. Offers submitted to the City Clerk shall be deemed for the purpose of settlement. They need not be the same as the offers submitted for impasse meeting purposes but must be the same as the final offer of settlement presented during impasse. As soon as possible after submission, the City Clerk shall forward a copy of each party’s offer to the other party and to the City Council. The City Clerk shall also set the matter for a hearing before the City Council at their next adjourned or regular meeting not less than five (5) nor more than thirty (30) days after the final offers are submitted to the City Clerk’s Office. The time limits set forth are intended to be maximum time limits and the parties shall attempt to agree to exact dates for the submission of written settlements and hearing before the City Council.

e.The City Council shall take such action regarding the establishment of wages, fringe benefits or any other matter within their legislative discretion as they see fit. If the Council deems that a settlement is possible after the impasse hearing, they may continue the hearing and refer the matter back to the representatives for further negotiation. However, the Council may not continue the matter beyond the next regular or adjourned meeting at which time it must resolve the issues before the Council.

f.The action taken by the City Council shall be final.

a.Upon reasonable advance notice, the City Manager may authorize the use of appropriate City facilities by recognized employee organizations for meetings involving City employees they represent. Such meetings shall not conflict with the conduct of normal City business.

b.Upon request, the City Manager shall also provide a reasonable amount of space at appropriate City facilities for posting of material by recognized employee organizations. Space allotted for this purpose shall be withdrawn should any posted material contain inflammatory or other objectionable content.

c.No City address, equipment or supplies may be used by recognized employee organizations except as specifically permitted by the City and for which the City may require compensation.

(Ord 3361: 09/05)

a.All recognized employee organizations shall have the right to have the regular dues of their members deducted from their paychecks at no cost. Dues deductions shall be made only upon the voluntary written authorization of the member. Dues deduction may be cancelled at any time by the member on written notice. This section may be superseded by a memorandum of Understanding provision.

b.All notices shall be to the Finance Director of the City on forms provided or approved by the City. The Finance Director shall regularly remit the amounts collected to the recognized employee organizations. The records of the City concerning those employees who have requested deduction and the amounts collected shall be open for inspection by the authorized members of the employee organizations at reasonable times.

c.The City shall have no obligation to deduct back or unpaid dues, nor any fine, penalty or special assessment levied by the employee organizations against their members. The City shall have no obligation to deduct dues where the employee’s net earning during the pay period for which dues are deductible are insufficient to pay the dues. Net earnings means the amount payable by the City to an employee for a particular pay period after all lawful deductions.

d.All employee organizations which receive dues checkoff shall indemnify, defend and hold the City harmless against any suit brought against the City on account of checkoff of employee organization dues. In addition, all such employee organizations shall refund to the City any amounts paid to it in error upon presentation of supporting evidence.

No employee organization shall encourage participation in, nor shall any employee participate in any illegal strike, illegal picketing, slowdown, sick-in, or any other similar activity against the City; nor shall any employee recognize any picket line in the course of duty, nor in any way be involved in the reduction or denial of City services to any premises because of a labor dispute.

The City Manager shall be responsible for establishing such rules and procedures as are necessary to implement and administer Rule 16 after consultation with affected, recognized employee organizations.

a.Nothing in Rule 16 shall be construed to deny any person or employee the rights granted by Federal and State law.

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 Rule 16.

c.The provisions of Rule 16 are not intended to conflict with the provisions of Chapter 10, Division 4, Title 1 of the Government Code of the State of California (Section 3500 et seq).