Victorville Municipal Code Art. II Representation Proceedings

An employee organization that seeks to be formally acknowledged as the exclusively recognized employee organization representing the employees in an appropriate unit within the city shall file a petition with the 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 the organization.

(D) A statement that the employee organization has, as one of its primary purposes, the responsibility of 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, 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 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 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, disability or other protected category.

(I) The job classifications or position 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 at the direction of the employee relations officer.

(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.

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.

(Ord. No. 2396, § 5, 11-19-19)

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

(A) There has been compliance with the requirements of the recognition petition, and

(B) The proposed representation unit is an appropriate unit in accordance with this article II.

If an affirmative determination is made by the employee relations officer on the foregoing two matters, said officer shall so inform the petitioning employee organization, shall give written notice of such request for recognition to the employees in the unit and shall take no action on said request for thirty 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 therefore in writing. The petitioning employee organization may appeal such determination in accordance with section 2.40.130, article II of this chapter.

(Ord. No. 2396, § 6, 11-19-19)

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

(Ord. No. 2396, § 7, 11-19-19)

Unless recognition is granted pursuant to section 2.40.090 of this article II, 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), subject to the provisions of this chapter. All employee organizations who have duly submitted petitions which have been determined to be in conformance with this article II 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 within the designated appropriate unit during the pay period immediately prior to the date of the election, including those who did not work during such period because of illness, vacation or other authorized leaves of absence, and who are employed in the same unit on the date of the election. An employee organization shall be formally acknowledged as the exclusively recognized employee organization for the designated appropriate unit following an election or run-off election if it received a numerical majority of all valid votes cast in the election, providing that at least sixty percent of the employees in the appropriate unit have voted. In the event that sixty percent of the employees in the appropriate unit have failed to vote, another election shall be scheduled within ninety days. In an election involving three or more choices, where none of the choices receives a majority of the valid votes cast, a run-off election shall be conducted between the two choices receiving the largest number of valid votes cast; the rules governing an initial election being applicable to a run-off election.

There shall be no more than one valid election under this chapter pursuant to any recognition or unit modification petition in a twelve-month period affecting the same or a substantially similar (as determined in the employee relations officer's sole discretion) unit.

In the event that the parties are unable to agree on a third party to conduct an election, the election shall be conducted by the state mediation and conciliation service or other disinterested party designated by the employee relations officer.

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

(Ord. No. 2396, § 8, 11-19-19)

Notwithstanding section 2.40.080, above, the employee relations officer shall grant exclusive recognition to an employee organization based on proof of employee support showing that a majority of the employees in an appropriate unit desire said representation, unless another labor organization has previously been lawfully recognized as the exclusive or majority representative of all or part of the same unit. Exclusive representation shall be determined by a neutral third party selected by the employee relations officer and the employee organization who shall review the proof of employee support to verify the exclusive or majority status of the employee organization. In the event the employee relations officer and the employee organization cannot agree on a neutral third party, the division of conciliation of the department of industrial relations shall be the neutral third party and shall verify the majority status of the employee organization. In the event that the neutral third party determines, based on proof of employee support, that a second labor organization has the support of at least thirty percent of the employees in the unit in which recognition is sought, the neutral third party shall order an election to establish which labor organization, if any, has majority status.

(Ord. No. 2396, § 9, 11-19-19)

(a) Petition for decertification. 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 following the first full year of recognition. A decertification petition may be filed by two or more employees or their representative, or an employee organization, and shall contain the following information and documentation declared by the duly authorized signatory under penalty of perjury to be true, correct and complete:

(1) The names, addresses and telephone numbers of the petitioner and a designated representative authorized to receive notices or requests for further information.

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

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

(4) Proof of employee support that at least thirty percent of the employees in the established appropriate unit no longer desire to be represented by the incumbent exclusively recognized employee organization. Such proof shall be submitted for confirmation to the employee relations officer or to a mutually agreed upon disinterested third party within ten days of filing the petition.

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 percent that includes the allegations and information required under paragraphs (a)(2)—(4) inclusive of this section, and otherwise conforms to the requirements of section 2-40-050 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 II. If his or her determination is in the negative, he or she 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 therefore in writing. The petitioning employees or employee organizations may appeal such determination in accordance with this article II. If the determination of the employee relations officer is in the affirmative, or if his or her negative determination is reversed on appeal, he or she 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 to determine the wishes of unit employees as to the question of decertification and, if a recognition petition was duly filed hereunder, the question of representation. Such election shall be conducted in conformance with this article II.

(b) Employee relations officer ordered election. The employee relations officer may, on his or her own motion following the first full year of recognition, when he or she has reason to believe that a majority of 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 or she will arrange for an election to determine that issue. In such event, any other employee organization may, within fifteen days of such notice, file a recognition petition in accordance with this article II, section 2.40.100, which the employee relations officer shall act on in accordance with this section 2.40.100.

(c) Withdrawal of recognition based on good faith doubt. The city may withdraw recognition from an employee organization which has previously been granted formal recognition if the city has a good faith doubt as to the continued majority status of the employee organization. The city's good faith doubt shall be supported by evidence that the employee organization lacks continued majority status. This evidence should include, but is not limited to, some of the following:

Inactivity by the employee organization, such as a failure to monitor contract provisions and pursue grievances;

Employee expressions of dissatisfaction with the employee organization;

The filing of a decertification petition by employees;

Substantial employee turnover and/or expansion since the date of formal recognition;

Pronounced decline in the number of employees who pay employee organization dues; or

A poll of employees indicating the lack of majority support. Such a poll may be initiated by the employee relations officer only under the following conditions:

(1) The city must have evidence indicating a lack of majority status prior to initiating a poll;

(2) The purpose of the poll must be to determine whether the employee organization represents a majority of the employees;

(3) The purpose of the poll must be communicated to the employees;

(4) The employees must be given assurances against reprisal;

(5) The employees must be polled by secret ballot;

(6) The polling process must be free of coercion.

The city's evidence must support a conclusion that more than fifty percent of the employees do not support the employee organization.

Recognition may not be withdrawn under this procedure until the employee organization in question has served for a full year, as measured by the date of election or other recognition methods, as a recognized employee organization.

(d) Effect on existing memorandum of understanding. A valid memorandum of understanding, as defined in section 2.40.220, shall not be affected by any of the procedures set forth in subsections (a)—(c), and the city shall not be obligated to meet and confer with any newly recognized employee organization to which the memorandum of understanding applies, on any matters addressed or considered in the meet and confer sessions which resulted in the memorandum of understanding, until such memorandum of understanding expires.

(Ord. No. 2396, § 10, 11-19-19)

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 feasible grouping of positions that share an identifiable community of interest. Factors to be considered shall include:

(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; and

(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 article II, section 2.40.110, managerial, supervisory and confidential responsibilities, as defined in this chapter, are determining factors in establishing appropriate units hereunder, and therefore, managerial, supervisory and confidential employees may only be included in a unit consisting solely of managerial, supervisory or 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 provisions of article II, section 2.40.120.

(Ord. No. 2396, § 11, 11-19-19)

Requests by employee organizations for modifications of established appropriate units may be considered by the employee relations officer only following the first full year of recognition. Such requests shall be submitted in the form of a recognition petition and, in addition to the requirements set forth for a recognition petition, 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 to determine appropriate units. The employee relations officer shall process such petitions as other recognition petitions under article II.

The employee relations officer may, on said officer's own motion, propose during the period specified in section 2.40.100 of this article that an established unit be modified. The employee relations officer shall give written notice of the proposed modification(s) to any affected employee organization and shall hold a meeting concerning the proposed modification(s), at which time all affected employee organizations shall be heard. Thereafter the employee relations officer shall determine the composition of the appropriate unit or units in accordance with section 2.40.110 of this article II 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 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 exclusive recognized employee organization for such new appropriate unit or units, if any.

(Ord. No. 2396, § 12, 11-19-19)

An employee organization aggrieved by an appropriate unit determination of the employee relations officer under this article II may, within ten days of notice thereof, request the intervention of the California State Mediation and Conciliation Service, pursuant to Government Code Sections 3507.1 and 3507.3, or may, in lieu thereof or thereafter, appeal such determination to the city council for final decision within fifteen days of notice of the employee relations officer's determination or the termination of proceedings, pursuant to Government Code Section 3507.1, whichever is later.

An employee organization aggrieved by a determination of the employee relations officer that a recognition petition (section 2.40.050); challenging petition (section 2.40.070) or decertification recognition petition (section 2.40.100) — or employees aggrieved by a determination of the employee relations officer that a decertification petition (section 2.40.100) — has not been filed in compliance with the applicable provisions of this article may, within ten 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 days of the filing of the appeal. The city council may, in its discretion, refer the dispute to a third party hearing process or consider the matter itself pursuant to written briefs or an informal 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.

(Ord. No. 2396, § 13, 11-19-19)