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Home My WebLink AboutResolution No. 09-7109 - Approve MOU w/ DCEA - Miscellaneous (11/08 thru 10/09)RESOLUTION NO. 09-7109 ( A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DOWNEY ADOPTING THE MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF DOWNEY AND THE DOWNEY CITY EMPLOYEES' ASSOCIATION/MISCELLANOUS UNIT (November 1 , 2008 to October 31, 2009) WHEREAS, the City has met its obligation to meet and confer pursuant to the Myers- Milias-Brown Act and Employee Relations Ordinance No. 1118; and WHEREAS, the City and the Association have reached agreement; and WHEREAS, the City and the Association have memorialized the agreement in a written Memorandum of Understanding. NOW. THEREFORE, THE CITY COUNCIL OF THE CITY OF DOWNEY DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The Memorandum of Understanding between the City of Downey and the Downey City Employees/Miscellaneous Unit Association, attached hereto, is hereby approved in substantially the form thereof together with any additions thereto or changes therein deemed necessary or advisable by the City Manager. [ SECTION 2. The City Clerk shall certify to the adoption of this Resolution. APPROVED AND ADOPTED this 10th day of February, 2009.#Z. MARIO A. GUERRA, Mayor ATTEST: N rMIDSTOK trE ;ity Clerk I HEREBY CERTIFY that the foregoing Resolution was adopted by the City Council of the City of Downey at a regular meeting held on the 10th day of February, 2009, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN : Council Members: Brossmer, Marquez, Mayor Guerra Council Member: Bayer, Gafin Council Member: None Council Member: None KATHLEEN L. MIDSTOKKE, City Clerk MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF DOWNEY AND THE DOWNEY CITY EMPLOYEES' ASSOCIATION/ MISCELLANEOUS UNIT November 1 , 2008 - October 31, 2009 MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF DOWNEY AND THE DOWNEY CITY EMPLOYEES' ASSOCIATION/ MISCELLANEOUS UNIT ARTICLE NO TITLE OF ARTICLE PAGE NO. I 11 111 RECOGNITION NON-DISCRIMiNATION BASIC COMPENSATION PLAN 2 Sec. 1 - Salary Increases/ Adjustments Sec, 2 - Plan of Salary Schedules Sec, 3 - Eligibility for Merit Salary Advancement Sec. 4 - Salary Schedule Step Reduction Sec. 5 - Merit Longevity Sec. 6 - Eligibility for Promotion Increases Sec. 7 - Acting Pay Sec. 8 - Out-Of-Class Pay Sec. 9 - Bilingual Pay Sec. 10 - Supervising Librarian Pay Sec. 11- Cemetery District Coordinator Assignment Pay Sec. 12- Water Systems Operator Certificate Pay Sec. 13 Hazardous Materials/ Fire Inspector 2 2 2 3 3 4 4 4 4 4 4 5 5 IV WORK WEEK 5 Sec. 1 - Work Week Sec. 2 - Voluntary Reduction of Full Time Hours 5 6 6 6 6 6 7 7 7 7 7 8 OVERTIME (COMPENSATORY TIME) Sec. 1 - Compensation for Overtime Sec. 2 - No Pyramiding Sec. 3 - Discouragement of Overtime Sec. 4 - When Absent from Duty Sec. 5 - Overtime Sec. 6 - Ineligibitity VI VII VIII COMPENSATION FOR SPECIAL CALL-IN HOLIDAYS VACATION IX LEAVES OF ABSENCE 9 Sec Sec Sec Sec Sec Sec Sec Sec Sec Sec Sec Sec. 1 - Leaves of Absence 2 - Written Notice of Intent to Return 3 - Outside Employment While on Leave 4 - Sick Leave 5 - Emergency Leave 6 - Personal Leave 7 - Workers' Compensation Injury on Duty 8 - Employee Disability Leave 9 - Military Leave 10 - Jury Duty 11 - Maternity Leave 12 - Family Leave 9 9 9 9 11 11 11 12 13 13 13 13 FRINGE BENEFIT ADMINISTRATION 13 XI HEALTH, DENTAL AND LIFE INSURANCE 14 Sec. 1 - Medical Insurance Sec. 2 - Dental Insurance Sec. 3 - Life Insurance Sec. 4 - Long Term Disability Insurance 14 14 14 15 15 [- XII RETIREMENT Sec. 1 - PERS Coverage Sec. 2 - Employee's PERS Contribution Sec. 3 - Retiree Medical Annuity 15 15 15 16 17 17 18 20 XIII XIV XV XVI XVII TUITION REIMBURSEMENT PROBATIONARY PERIOD SENIORITY CITY RIGHTS EMPLOYEE ORGANIZATION RIGHTS AND RESPONSIBILITIES Sec. 1 - Agency Shop Agreement Sec. 2 - Dues Deductions Sec. 3 - Release Time for Meet and Confer 20 23 23 23XVIIINO STRIKE - NO LOCKOUT 11 XIX XX GRIEVANCE PROCEDURE Sec. 1 - Grievance Sec. 2 - Conduct of the Grievance Procedure Sec. 3 - Grievance Procedure Steps MISCELLANEOUS Sec. 1 - Substance Abuse Policy Sec. 2 - DOT Controlled Substance and Alcohol Testing Program Sec. 3 - Labor Management Committee Sec. 4 - Transfer Rights Sec. 5 - Rest Periods/Breaks Sec. 6 - Survey SOLE AND ENTIRE MEh40RANDUh4 OF UNDERSTANDING WAIVER OF BARGAINING DURING TERM OF THIS AGREEMENT EMERGENCY WAIVER PROVISION SEPARABILITY TERM OF MEMORANDUM OF UNDERSTANDING RATIFICATION AND EXECUTION CLASSIFICATEONS REPRESENTED BY ASSOCIATION JOB FAMILIES 24 24 24 24 25 25 27 28 28 28 28 XXI 28 29 29 29 29 30 31 32 XXII XXIII XXIV XXV XXVI Exhibit A Exhibit B 111 MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF DOWNEY AND THE DOWNEY CITY EMPLOYEES' ASSOCIATION/ MISCELLANEOUS UNIT ARTICLE I RECOGNITION Pursuant to the provisions of the Employee Relations Ordinance of the City of Downey, the City of Downey (hereinafter called the "City") has recognized the Downey City Employees' Association (hereinafter called the "Association") as the recognized majority representative of all full-time employees and part-time employees (who work an average of 30 hours per we9k) covered in the classifications listed on Exhibit A. The City has recognized the Association for the purpose of meeting its obligations under the Meyers-Milias-Brown Act, Government Code Section 3500 etc. seq. and the Employee Relations Ordinance of the City when City rules, regulations or laws affecting wages, hours or other terms and conditions of employment are amended or changed. ARTICLE II NON-DISCRIMINATION [ Section 1. The parties mutually recognize and agree to protect the rights of all employees hereby to join and/or participate in protected Association activities or to refrain from joining or participating in protected activities in accordance with the Employee Relations Ordinance and Government Code Sections 3500 and 3511. Section 2. The City and the Association agree that they shall not discriminate against any employee because of race, color, sex, marital status, age, national origin, political or religious opinions or affiliations. The City and the Association shall reopen any provision of this Agreement for the purpose of complying with any final order of a federal or state agency or court of competent jurisdiction requiring a modification or change in any provision or provisions of this Agreement in compliance with state or federal anti-discrimination laws. Section 3. Whenever the masculine gender is used in this Agreement, it shall be understood to include the feminine gender. Section 4. The City and the Association agree to comply with applicable federal and state laws and regulations regarding the employment of the handicapped ARTICLE III BASIC COMPENSATION PLAN Sectjon 1. Salary Increases/ Adjustments. A. Salary Increase. All employees covered by this Memorandum of Understandiirg shall receive the foliowing salary increases: 1. EffectIve Novelnber 3, 2008, four percent (4%). Employees who are on active payroll status the date of the adoption of the agreement and employees who have retired after November 3, 2008 shall be eligible for the retroactive adjustment. 2. Hazardous Material/Fire Inspector. Effective July 2, 2007, the pay range for the position is to be adjusted and maintained at a minimum offive and one -half percent (5.5%) above top step of the designated pay range for the position of Fire Engineer (40-Hour) Sqct.i.pn 2, The Plan of Salary Schedules. A. .Description oF §Qhedule s, The pay plan consists of a set of monthly salary scFlecjules, Each of such schedules is designated by a schedule number. Each schedule consist£ oFfive (5) steps of monthly compensation, each of which is designated by step letter.\ B. Hourly Equivalent Calculation. For payroll purposes, the hourly equivalent of a monthly rate shall be computed by dividing twelve (12) times the monthly rate by fifty-two (52) times the number of working hours per week. Section 3. Eligibility for Merit Salary Advancement. A. Eligibility for Salary Step Increases. 1. Salary step increases shall be considered on a merit basis only, and then only at the following times, and in accordance with subsection B below. 2. All full time appointments shall be made at the first step of the salary schedule assigned that class, unless prior written approval of the City Manager is obtained for appointments at a higher step in the assigned schedule. 3. No salary advancements shall be made so as to exceed the maximum rate established in the salary schedule for the class to which the employee’s position is allocated . B. Qualification for Salary Step Advancement. 1. Advancement shall not be automatic but, shall be based upon merit, dependent upon increased service value of an employee to the City as exemplified by recommendations of his supervisor, length of service, performance record , special training undertaken, and other objective evidence. l 2 f 2. Only employees rated as meeting the standard of work perforrnance expeei8d of City employees shall be qualified to advance to the salary steps B, C, D and E. 3. If an employee does not receive a merit increase as a result of the performance evaluation, the employee may appeal through the grievance procedure. C. Merit Evaluation 1.Every employee shall receive an objective, written job performance rating, no sooner than three (3) weeks before, no later than five (5) working days before the date of eligibility for each salary step, ment longevity or hourly increase, and annually thereafter, and upon a change of employment status. Nothing in this section shall prohibit the department head, or authorized supervisor, from giving an additional objective rating to an employee between those periods of time described in this section 2. It shall be the duty of the department head to delegate the responsibility of every employee’s rating to that level of supervision having immediate knowledge of the employee's work. An employee shall be rated by his immediate supervisor and that rating shall be reviewed by the department head. Section 4. Salary Schedule Step ReductIon. Whenever an 6mployoe's work parformance falls below the level for which a step increase was granted, an employee's authorized pdy may be reduced to the employee’s previous step rate under written procedures established by the City for demotions and reduction in pay. [ Section 5. Merit Longevity. A. Eliqibilitv for Merit Longevity. Upon approval of the appointing power, permanent employees who have completed ten (10) continuous years of service may receive merit longevity pay provided that: 1. The employee has maintained eligibility for salary Step E and, 2 The employee has been evaluated in the tenth year as "meets standards" as defined by a comprehensive rating at or above the middle column of the current reporting form, or the equivalent rating on any revised reporting form. Eligible employees shall be paid, in addition to their respective regular prescribed salary, a monthly amount equal to the next salary step above their monthly base rate; and after twenty (20) years, one and one-half (1-1/2) steps above their monthly base rate. B. Qualification for Merit Lonqevity. Merit longevity is to be provided as continuing incentive to career employees. Such payment shall continue with approval of the City Manager, only during such period as an eligible employee continues to "meets standards" as defined above, and shall be terminated by the City Manager when the quality of service, as evidenced by the performance rating of such employee, does not merit such additional compensation. 3 i Section 6. Eligibility for Promotion Increases. A. Any employee receiving a promotion shall receive a salary increase equivalent to one step, or shall be placed on the first step of the salary schedule for the class to which he is promoted, whichever is greater. , B. Any employee receiving a promotion who would otherwise have been eligible to receive a merit increase within sixty (60) days of the effective date of such promotion, shall be gra11ted the merit increase prior to the application of provision A of this Section. Section 7. Acting Pay. An employee who has been designated by the City to serve in an acting capacity for 60 consecutive work days or more shall receive Step A of the range for the classification in which the employee is performing active duties, or 5.5%, whichever is greater. Service in an acting capacity shall not be used as a basis for, or in support of, a request for reclassification . Section 8. Out-Of-Class Pay. The City may temporarily assign employees to work out of classification. The selection of employees for an out-of-classification assignment shall be at the discretion of the department head or designee. A temporary out-of-rank pay differential of 5.5% shall be authorized when an employee has actually worked in a position of higher rank for a period of 15 consecutive workdays. Paid holidays shall be considered as days actually worked. Other forms of authorized leave such as sick leave, emergency leave and vacation shall not be considered as days actually worked Section 9. Bilingual Pay. Employees required to speak or translate Spanish as part of their regular duties will be compensated $23.08 per biweekly pay period in addition to their regular salary. The Assistant City Manager has the authority and discretion to assign and/or remove this bonus up to budget authority. To be eligible for this assignment, the emplo\pe must pass a conversational examination administered by a court certified interpreter, or an employee who has been celtified by the Personnel Director to administer such examination. Employees must recertify at least every eighteen (18) months to maintain the eligibility. Effective October 30, 2000, qualified employees will be compensated at $46.15 per biweekly pay period. Section 10. Supervising Librarian Assignment Pay. Effective July 22, 1997, the City Librarian, with the approval of the Director of Community Services, shall have the authority and discretion, up to budget authority, to designate and/or remove any Librarian who is performing supervisory duties as a “Supervising Librarian”. The City Librarian will have the authority to establish job requirements and duties for “Supervising Librarian”. A Librarian designated and assigned as a “Supervising Librarian” shall receive 8.25% per pay period as additional compensation above their regular scheduled rate of pay while assigned as a Supervising Librarian. The Association and its members understand, agree 'and acknowledge that should a Librarian transfer and discontinue supervising” that the discontinuance of this assignment pay does not constitute a punitive action. The City and Association agree that a Librarian who is removed from the supervising assignment shall be entitled to grieve the removat, but, in no instance shall be allowed to grieve beyolld “Step Three” of the grievance procedure contained in this MOU Section 11. Cemetery District Coordinator Assignment Pay. Effective the first pay period following City Council adoption of the 2008-2009 Memorandum of Understanding, the Executive Secretary designated as Cemetery District Coordinator by the Director of Community Services shall receive 8.0% above the regular rate of pay as additional compensation while assigned. The i 4 I I + I Association and the City understand, acknowledge, and agree that this additional compensation shall only apply while the duties of Cemetery District Coordinator are assigned to the Executive Secretan/. The Association and the City further agree that this special pay shall end when the current designee terminates employment with the City, vacates the position of Executive Secretary, or the Community Services department is no longer assigned Cemetery District duties. Section 12. Water System Operator Certificate Pay. Effective August 30, 2004 specified employees, who are assigned to the Water Division, shall receive additional compensation at the following rates of pay upon attainment of the following California Department of Health Services Distribution System Classification and Treatment Facility Classification certificate(s), A. Employees who are assigned to the Water DIvision and who rnaintain a D1 aAa/or T1 certificate shall be eligible for Certificate Level One Pay of $50 per month. Effective February 2006, Certificate Level One pay shall be $75 per month. B. Employees who are assigned to the Water Division who maintain a D2 and/or T2 cerlificate or above shall be eligible for Certificate Level Two Pay of $100 per month. Effective February 2006, Certificate Level Two pay shall be $225 per month. C.Employees are entitled to receive only one level of Certificate Pay. D. No additional compensation shall be granted for certificates at higher levels (e.g. D3/D5 and/or T3/T5). [ Employees shall immediately notify their supervisor if they have lost their certification for any reason. Failure to maintain the appropriate certificate will result in the loss of certificate pay as well as additional appropriate personnel action. Section 13. Hazardous Material/Fire Inspector. Effective July 2, 2007, in addition to regular compensation, an employee in the position shall be eligible to receive the following special compensation: $200.00 each year for uniform purchases and $20.00 per month for uniform and accessory maintenance and five and one-half percent (5.5%) above their regular rate of pay for a valid Fire Inspector certification Level I or ll. ARTICLE IV WORK WEEK Section 1. Work Week. The regular work week for all employees covered by this Agreement shall be forty (40) hours per week. A. The 9/80 schedule provides 80 hours scheduled work in a two-week cycle: (1 ) one week the employee works four 9-hour days and one 8-hour day; (2) the other week consists of four 9-hour work days with one day off, The "work week" for FLSA overtime purposes shall be established as four hours into the shift of the 8-hour day. Management shall maintain the right to schedule employee's workdays, start and end times, establishing FLSA 'Work weeks", etc. B. Employees with hardships may request to their department head to stay on the five eight- hour days. If the request is denied, the association and City agree that the only appeal shall be to the Assistant City Manager. The decision of the Assistant City Manager shall be final with no further appeal 5 C. Management shall retain the right to modify the work schedule, including but not limited to, returning to a schedule of five eight - hour days (40 hours per week); provided that the City gives written notice to the Association and employees at least twelve weeks prior to implementing the change Section 2. Voluntary Reduction of Full Time Hours. A. A department head may grant a request from a full time employee to reduce their work hours below forty (40) hours in a "work week." Employees may request reductions of up to, but not to exceed, sixteen (16) hours in a two-week pay period. This section shall not apply to employees who request reductions of more than sixteen (16) hours in a pay period. B. Ernployees who participate in this voluntary program shall maintain their status of "full time" with all the normal rights and privileges that status holds unless specifically altered by this section C. Employees who are granted a reduction shall have salary reduced in proportion to the reduced hours or shall be paid for the actual hours worked. D The City shall continue contributions to medical benefits as outlined in this MOU. E. Leave time benefits such as vacation, sick leave and holidays, shall be reduced in proportion to the hours worked. F. All approved programs shall begin on the first Monday in the month that begins a pay period. Employees approved for this program shall be required to remain on the reduced schedule for at least two pay periods. Employees shall only make two requests/changes perfiscai year. G. Nothing in this section shall diminish management rights to schedule working hours, starting times, the number of hours worked, nor right to refuse requests, nor other rights as previously reserved ARTICLE V OVERTIME (COMPENSATORY TIME) Section 1. Compensation for Overtime. All approved overtime worked by an employee in excess of forty (40) in the employee's work week shall be paid at the rate of time and one-half the employee’s regular hourly rate. Section 2. No Pyramiding. There shall be no "pyramiding" of overtime, which means that employees shall not be compensated more than once for the same hours under any provision of this Agreement. Section 3. Discouragement of Overtime. It is the policy of the City that overtime work is to be discouraged. However, in cases of emergency or whenever public interests or necessity requires, any department or division head may require any employee in such department or division to perform overtime work. The projects and types of work for which overtime may be authorized shall be approved in advance by the City Manager, except in the event of emergency, overtime is authorized by the department head or his designate. 6 Section 4. When Absent From Duty. In the event an employee is absent from duty \vhether for vacation, compensatory time, sick leave or other disability for a period exceeding five (5) work days, overtime during that work cycle will not be paid. Section 5. OvertIme. Overtime may be compensated in time off or money. Employees who are assigned to work overtime shall have the right to be paid money, unless the form of compensation has been discussed in advance. Mallagement may inform employees priOr to the performance of the work that only "comp. time" is available. In this instance, employees shall have the right to refuse the overtime assignment. Section 6. Ineligibility. Employees in the classification of Principal Planner are ineligible to receive overtime compensation of any type. ARTICLE VI COMPENSATION FOR SPECIAL CALL-IN Section 1. Employees covered by this Agreement, "called in" to perform work on an unscheduled basis, other than those normally required for the employee's employment shall receive and be paid for a minimum of two and six-tenths (2.6) hours at the overtime rate of time and one- half. Employees shall be entitled to call-in pay in the event the employee is required to report back to work after completing the employee's normal work shift, left City premises, and/or the employee's work location. Hours worked in excess of the two and six-tenths (2.6) hour guarantee shall be counted toward the computation of overtime pay. [ Section 2. If an employee is called in for two and six-tenths (2.6) hours or less before the start of the regular work shift, such employee shall not be given the two and six-tenths (2.6) hour guarantee. ARTICLE VII HOLIDAYS Section 1. Effective the date of City Council adoption of this Memorandum of Understanding, employees covered by this Agreement shall be compensated for the employee’s regularly scheduled work shift by receiving holiday pay for the following City recognized holidays: 1. New Year's Day 2. Martin Luther King’s Birthday 3. Washington's Birthday (President's Day) 4. Memorial Day 5. Independence Day 6. Labor Day 7. Veteran’s Day 8. Thanksgiving Day 9. Day after Thanksgiving 10. Day before Christmas 11 . Christmas Day 7 When a holiday falls on a weekday that is an employee's regular day off, the employee shall receive eight (8) hours of compensatory time at straight time Section 2. When a holiday falls on a Saturday, the Friday preceding will be observed as the holiday. When a holiday falls on a Sunday, the following Monday shall be observed as the holiday. When Christmas Day falls on a Saturday, the day before Christmas shall be observed on the previous Thursday. When Christmas Day falls on a Monday, the day before Christmas shall be observed on the previous Friday. Section 3, When an employee works on a holiday, the employee shall receive ho;iday pay which shall be eight (8) hours of straight time pay at the employee's regular hourly rate of pay together with pay at the employee's regular hourly rate of pay for each hour worked on the holiday. Section 4. Should one of the holidays listed above fall during the employee’s vacation period, the employee shall receive holiday pay and no charge shall be made against the employee’s accumulated vacation. Section q' Part-time employees who are employ.Id in classifications listed in Exhibit A attached and have beelt employed by the City for three years and are enrolled in the Public Employee’s Retirement System and have a work schedule of over thirty hours per week on a regular and consistent basis, will receIve 75% of this leave benefit (6 hours per holiday). ARTICLE VIII VACATION Section 1 ' Full-time employees covered by this Agreement shall accrue vacation leave with pay on the following scheduled basis: Year of Service 0 -3 4 -5 6 - 10 11 - 15 16+ Hours Per Year 80 96 120 136 160 Monthly Accrual 6 7 Hrs. 8.0 Hrs 10.0 Hrs 11.3 Hrs 13.4 Hrs. Part-time employees who meet the criteria set forth in Article VII, Section 5, shall accrue vacation leave with pay on the following scheduled basis: Years of Service 0 - 3 4- 5 6 -10 11 -15 16+ Hours Per Year 60 72 90 102 120 Monthly Accrual 5.0 hrs. 6.0 hrs 7.5 hrs 8.5 hrs 10.0 hrs. Section 2. Vacation shall be taken at the convenience of the City with the approval of the department head. Where possible, such vacation should be taken annually and not accumulated from year to year. All eligible employees, however, shall be allowed to accumulate two (2) years allowance of vacation. If the employee is prohibited Dy the supervisor from taking the employee's 8 vacation because of manpower shortages or operational needs, the employee shall be paid all vacation in excess of two (2) years at the employee’s rate of pay at the time of the pay-off. Section 3. When an employee who has become entitled to receive vacation under this Article separates from City service, either by retirement, permanent layoff, or termination, the employee shall be entitled to be paid for unused earned vacation at the rate of pay in effect at the time of separation. Section 4„ Vacation shall be accrued on a monthly basis by dividing twelve (12) into the number of eligible vacation hours per year, as set forth in Section 1 above, to which the employee is eligible to receive based upon the employee’s years of service with the City. Section 5. Full time permanent employees who are separated from their employment with the City after completion of the probationary period, shall be paid all accrued vacation, if any, on a pro- rata portion of their unused vacation. Pro-rata vacation shall be calculated on the basis of one- twelfth (1/12th) of the employee’s annual vacation pay for each full month of service worked by the employee during the employee’s employment with the City. ARTICLE IX LEAVES OF ABSENCE Section 1. Leaves of Absence. The City Manager may grant a permanent employee a leave of absence for a specific purpose, without pay, for a period not to exceed up to one (1 ) year. The City Council may grant a permanent employee a leave of absence for a specific purpose, with pay, not to exceed one (1 ) year. No such leave shall be granted except upon written request of the employee. Approval shall be in writing and a copy filed with the Personnel Office of the City. Upon expiration of a regularly approved leave, the employee shall be reinstated in the position held at the time leave was granted. The employee shall report promptly upon the expiration of any leave granted. Failure to report within a twenty-four (24) hour period after expiration of leave shall be considered a voluntary resignation. Except as may be provided by law, no employment or fringe benefits such as, but not limited to, sick leave, vacation, health insurance, retirement or any other benefit shall accrue to any employee during leave of absence without pay. An employee on approved leave may elect to pay the premiums due in order to maintain health insurance benefits during the term of such leave. [ Section 2. Written Notice of Intent to Return. An employee on leave of absence must give the City at least seven (7) days written notice of the employee's intent to return to work. Section 3. Outside Employment While On Leave. An employee who engages in outside employment during said leave of absence shall be subject to termination. Any employee who fatsifies a reason for the request for said leave of absence or any extension of such leave of absence, may be terminated for falsifying such request. Section 4. Sick Leave. A. Sick leave shall be defined as absence from duty because of illness or off the job injury, or exposure to contagious diseases as evidenced by certification from an accepted medical authority. 9 B. Sic!( leave shall be accrued by covered er,rployees at the rate of eight hours per month. Part-time employees who meet the criteria set forth iII Article VII, Section 5, shall accrue dick leave at the rate of six (6) hours per month. Sick leave shall not be considered as a privilege that an employee may use at his dIscretion but shall be allowed only in cases of necessity and actual sickness or disability. Unused sick leave shall be accumulated without limitation. C. In order to receive compensation while absent on sick leave, the employee shall notify a designated su,)ervisor within two (2) hours of the time set for beginning duty, unless notification is physically impractical. For any such absence, the employee shall file a written statement with the City Manager stating the cause of the absence. When the absence is for more than one (1 ) work day and if there is reasonable cause to indicate abuse of sick leave, the department head concerned may require a physician’s certificate stating the cause of absence before said leave shall be approved by the City Manager. D. The right to benefits under the sick leave plan shall continue orlly during the pel",od that the employee is employed by the City. This plan shall not give any employee the right to be retained in the service of the City, or any right of claim to sickness disability benefits after separation from the services of the City. E. Notwithstanding anything contained in this Section, no employee shall be entitled to receive any payment or other compensation from the City while absent from duty by reason of injuries or disability received as a result of engaging in employment other than employmelrt by the City, for rnonetary gain or other compensation, or by reason of engaging in business or activity for monetary gain or other compensation other than business or activity connected wIth City employment. F. At the written request of the appointing authority, the City Manager may require an employee to submit to an examination by the City's physician, and if the results of the exarnination indicate the employee is unable to perform his duties, or in the performance of his duties, exposes others to infection, the employee shall be placed on sick leave without privilege of reinstatement until adequate medical evidence is submitted that the employee is competent to perform his duties or will not subject others to infection. Any employee so examined shall have the right to submit the reports of a competent medical authority of his own selection, and at his own expense, in addition to the report submitted by the City's physician. In the event of a conflict of opinion and/or recommendation of the two physicians, a third physician shall be selected by the first two physicians and the final decision shall be made by the City Manager, who may seek the advice of the Personnel Advisory Board of the City. G. Sick Leave Conversion on Retirement or Death 1 . Upon retirement of an eligible employee, 90% of an employee's unused accumulated sick leave shall.be applied to pay full premiums for employee and dependent City health insurance coverage. The maximum number of hours that will be converted is 1,296 (90% of 1440). Effective February 2006, the maximum number of hours that will be converted is 1 ,575 (90% of 1 ,750). Effective November 15, 2008, one hundred percent (100%) of an employee’s unused accumulated sick leave shall be deposited into the City Retirement Savings Plal, to be used for eligible medical expenses, provided that the maximum number of hours that will be deposited is nineteen hundred (1 ,900). 10 H. In' the event of a permanent or indefinIte layoff, an ornptoyee With ten (10) y§ar5 of continuous service with the City shall be entitled to the above benefit. If such employee resigns after receiving official notification of his impending layoff, he shall be eligible for the above benefit. I. Accrued sick leave shall be valued for the purposes of Section G above, on the fQllowing 1. Sick leave earned prior to June 30, 1974 shall be calculated at the rate prevailing at the end of the fiscal year in which it was earned. basis 2.Sick leave taken shall be deducted from the oldest, lowest value accrued sick leave first, provided, however, when an employee takes sick leave, the employee shall receive for each day of sick leave one (1 ) day’s pay at the employee's rate of pay in effect at the time of taking sick leave. For covered employees hired prior to June 30, 1974; and/or retirees with 20 years of City service; or retirees with a physical disability, or a psychological disability resulting from a direct consequence of a violent act, sick leave shall be converted at the prevailing rate. J. Employees who become entitled to accrue sick leave allowance which has not been used, may convert each two (2) hours of accumulated sick leave to one (1 ) hour of vacation, after having accumulated six hundred and forty (640) hours of sick leave and providing that not more than forty (40) hours of additional vacation may be so converted in any one (1 ) fiscal year. SectIon 1I Emergency Leave. \ A. Any employee who is absent from work by reason of attendance upon member$ of the immediate family whose incapacitation requires the care of such employee, or death in the immediate family of the employee, may be allowed emergency leave with pay, not to exceed six (6) work days per incident on the basis of one-half (1/2) work day for each month of regular employment, that is deducted from accumulated sick leave, not to exceed twelve (12) work days per year. Immediate family shall include, and be limited to, mother, father, grandparents, brother, sister, spouse or child of any eligible employee or of the spouse of the employee of the City. { B. For absences under this Section exceeding a total of three (3) working days in any six- month (6) period, a physician's certificate verifying the family's incapacitation leave basis may be required by the City Manager or department head. C. All such claims for emergency leave are subject to verification by the City Manager. Section 6. Personal Leave. With approval of the department head forty eight (48) hours per year of an employee's sick leave may be used on personal matters which are of an unseen combination of circumstances which call for immediate action. Such matters shall be considered as those events or occurrences that a reasonable prudent person would not or could not postpQne to a subsequent time. The nature of the matter shall be explained to the immediate supervisor and shall be granted with his approval. Such personal leave shall not be cumulative from year to year. Section 7. Workers' Compensation Injury On Duty. A. When an employee is absent from work by reason of an injury or illness covered by Workers’ Compensation, the City will pay the difference between the amount granted pursuant to the Workers’ Compensation Act and the employee's regular rate of pay for up to one year. 11 Employees, who are covered by this Agreement and are hired after May 1 3, 1997, and are absent from work by reason of an injury or illness covered b*,' Workers’ Compensation, the City will pay the difference between the amount granted pursuant to tne Workers’ Compensation Act and eighty-five percent (85%) of the employee's regular rate of pay for up to six months (twenty-six pay periods). Thereafter, the employee will be paid the amount required by the Workers’ Compensation Act. B. Re':,!assification of Injured Worker. If, in the 9pinion of the City, an employee has been found to be permanently, physically incapable of performing the duties of the currently held position, the City may place the employee into another vacant position of equal level or lower within the bargailling unit, provided such placement iS consistent with the City'S affirmative action program and iS approvtid by the appointing authority. Nothing tlerein shall be construed to prevent such employee from applying for and competing for positions of a higher class or positions represented by other bargaining units. Section 8. Employee Disability Leave. A. An employee that has at least one year of continuous service with the City and who has exhausted all accrued leave (vacation, sick-leave, comp time) due to non-industrial illness or injury can be advanced sick leave time at the rate of 75% of the employee’s regular salary according to the following table: Maximum Tirne Allowance (Hours), Years of Service Total Hours 1 through 5 6 through 10 Over 10 360 544 720 B. An application for disability leave shall be made by the employee to the City Manager or his designee through the department head, accompanied by medical certification from a physician verifying the period of medical disability, C. After the employee returns to work fro',n disability leave, the employee’s sick leave accrual shall be reduced to four (4) hours per month and placed on a reimbursement schedule with the Payroll Office to reimburse the City the value of the time used for such employee disabiiity leave. The employee may contribute vacation to accelerate employee's reimbursement to the City for providing the benefits under this Article. D. No employee shall receive more than the "Total" set forth above for his length of service, during his entire employment with the City. E. Grounds for termination of disability leave by the City Manager or his designee shall include, but not be limited td, the btlowing reasons: 1 The employee has recovered from his illness or injury. 2. The leave is being used as a pre-retirement leave for purpose of postponing retirement or pension. 3. The disability leave was procured by fraud, misrepresentation or mistake. la ( 4. The employee has not cooperated fully in supplying all information and subrnitting to any examination requested by the City to determine the existence or continuing nature of the employee's disability. F. In the event an employee becomes ineIIgible to accrue sick leave or is sch©dui© c1 to ©nd employment with the City and has not completed the reimbursement schedule for this benefit, the balance due shall be handled by payroll deduction or accounts receivable as applicable. Section 9, Military Leave. Military leave shall be granted in accordance with the provIsions of state and/or federal law. All employees entitled to military leave shall give the appointing power an opportunity, within the limits of military regulations, to determine when such leave shall be taken. SectIon ID. Jury Duty. Effective August 1, 1991, the City wIll not provide any paId release time for jury duty to employees in classifications represented by the Association. If the State and/or Federal Court Jury Commissioners rescind their present policy of granting exemptions from jury service to persons who do not receive paid release time from their employers, so as to require jury service despite the absence of such pay from their employer, then the Citys practice of providing paid release time to employees for jury duty shall be reinstated immediately upon the effective date of such change for the applicable State and/or Federal Court. A. In the event that an employee is called for jury duty and wishes to serve, accrued vacatIon leave, compensatory time or a leave of absence without pay shall be granted subject to the scheduling requirements of the City. ( B. in the event that the court fully reimburses the City for the full salary of an employee on jury duty, the City will immediately reinstate the practice of providing paid release time to employees for jury duty C. In the event that an employee is called for jury duty and the court does not excuse jury service based on the non-payment of salary by the employer, the City shall grant said employee paid release time for the required jury duty. Section 11. Maternity Leave. The City agrees to comp Fy with the State maternity leave law. Administrative Regulation No. 418 is by reference incorporated herein. Section 12. Family Leave. The City agrees to comply with the State and Federal family leave laws. Administrative Regulation No. 430 is by reference incorporated herein. ARTICLE X FRINGE BENEFIT ADMINISTRATION Section 1. Administration. The City reserves the right to select the insurance carrier or administer any fringe benefit programs that now exist or may exist in the future during the term of this Agreement. Section 2. Selection and Funding. In the administration of the fringe benefit programs, the City shall have the right to select any insurance carrier or other method of providing coverage to fund the benefits included under the terms of this Agreement, provided that the benefilb of the employees shall be no less than those in eHstence as of the implementation of this Agreement. 13 Section 3. Changes. If, during the term of this Agreement, any change of insurance carrier or method of funding for any benefit provided hereunder occurs, the City shall notify the Association prior to any change of insurance carrier or health plan administrator or method of funding the coverage ARTICLE XI UALTH, DENTAL AND LIFE INSURANCE Section 1, Medical Insurance. A. The City shall continue to contribute 100% to a medical benefit package for the employee and his/her dependents for the term of this Agreement. Effective November 1 , 2000, the City agrees to add to the Kaiser Plan the benefit of eyewear every twenty-four months. B. Employee Withdrawal from City Health Plan. The City agrees to permit an empl3yee to withdraw from the City health plan as follows: 1.The employee is either enrolled in the Kaiser Plan; or 2. The employee had claims paid for the year prior to the open enrollment in an amount equal to or greater than the employee premium rate, and 3. The employee presents written proof that the employee is covered by another health plan; and 4.The employee notified the City during the open enrollment period. The City agrees that the employee who is qu3lified to withdraw shall receive $81.00 per month if the withdrawal is for employee only coverage, $162.00 per month if the withdrawal is for employee plus one coverage, or $229.00 per month if the withdrawal is for family coverage to be added to the employee's paycheck or to be placed in the Citys deferred compensation plan. C. Citywide Medical Committee – A Comrnittee, consisting of one representative appointed from each Employee Association will be created for the purpose of studying the City Medical plans with the goal of reducing the cost of the plans and developing improved retiree medical benefits. No changes to the existing health benefits will be made without written approval of both parties. Section 2. Dental Insurance. The City will continue to make a maximum contribution of $31.95 per month per employee for dental insurance coverage. Effective January 1 , 2006 (benefit year 2006), the City agrees to increase the maximum benefit under the Delta Dental coverage from $1,000 to $2,000 for each enrollee per calendar year. The city agrees to absorb any increase in cost and the association agrees that the employee’s contribution will continue to be $37.52 per month. The City and Association agree that the City's contribution amount will be capped at the amount equal to the premium to be effective July 1, 2007 minus the employee contribution of $37.52 Section 3. Life Insurance. Each employee covered by this Agreement shall be provided with a group term life insurance benefit of $10,000. 14 Section 4. Long Term Disability Insurance. Effective January 1, 1990, each employee covered by this agreement shall be provided long term disability insurance. ARTICLE XII RETIREMENT Section 1. PERS Coverage. Employees covered by this Agreement participate in the California Public Employees Retirement System (PERS). Employee options are described in a contract between the City of Downey and the California Public Employees’ Retirement System and are incorporated into this Memorandum of Understanding. The City has amended the PERS contract to provide the benefit known as 2.7% at 55 effective August 19, 2002. As soon as practicable from the date of City Council adoption of this Memorandum of Understanding, the City agrees to process the necessary PERS documents to implement the following: (a) the Level 41959 PERS Survivor’s Benefit program (Section 21574); and, (b) the Pre- retirement Optional Settlement 2 Death Beneft (Section 21548). Section 2. Employee's PERS Contribution. In accordance with existing practice and Government Code Sections 20636 (c) (4), and 20691, the City will pay the employee’s PERS member contribution (equal to 8%) and report this contribution as compensation earnable (referred to as reporting the value of Employer Paid Member Contribution (EPMC) as special compensation). [ Section 3. Retiree Medical Annuity. An employee who retires from the City of Downey after January 1 , 1989, shall be entitled to participate in the City sponsored medical plan and the City shall contribute up to a maximum of $98.00 per month toward the premium for employee only coverage under the City sponsored medical plans, provided: A. At the time of retirement the employee has a minimum of ten (10) years of service, or is granted a service-connected disability retirement; and B. At the time of retirement the employee is employed by the CitE and C. Effective the day after official separation from the City the employee has been granted a retirement allowance by the California Public Employees' Retirement System. D. The City’s obligation to pay up to a maximum of $98.00 per month toward the premium in the City plan shall be modified downward or cease during the lifetime of the retiree upon the happening of any one of the following: 1 During any period the retired employee is eligible to receive or receives health insurance coverage at the expense of another employer the payment will be suspended. "Another employer" as used herein means private employer or public employer or self-employed or the employer of a spouse. As a condition of being eligible to receive the premium contribution set forth above, the City shall have the right to require any retiree to annually certify that the retiree is not receiving any such paid health insurance benefits from another employer. If it is later discovered that misrepresentation has occurred, the retiree will be responsible for reimbursement of those amounts inappropriately expended and the retiree's eligibility to receive benefits will cease 15 2. If the retired employee becomes eligible to enroll, automatically or voluntarily, in Medical or Medicare, the City's plan shall provide secondary coverage only and the City's contribution rate set forth above shall be adjusted downward accordingly. 3.In the event the Federal government or State government mandates an employer- funded health plan or program for retirees, or mandates that the City make contributions toward a health plan (either private or public plan) for retirees, the City’s contribution rate set forth above shall be first applied to that plan. If there is any excess, that excess may be applied toward the City medical plan as supplemental coverage provided the retired employee pays the balance owing for such coverage if any 4. Upon the death of the retired employee, this benefit shall cease. The surviving spouse shall be able to continue coverage on a single party basis by paying the appropriate premium. E. It is understood and agreed that the annual amount contributed by the City to fund the Retiree Medical Annuity on behalf of the employees, shall be included as an item of compensation in total compensation suIvey comparisons. F. Effective the date of City Council adoption of this Memorandum of Understanding, an option for a retiree to discontinue medical insurance coverage and continue to receive a City contribution towards such coverage, shall apply in accordance with the provisions effective September 29, 2008 and specified in the Memorandum of Understanding between the City of Downey and the Police Officers’ Association, Article XI, Section 3 (E). ARTICLE XIII TUITION REIMBURSEMENT Section 1. With prior approval of the City Manager, employees may be reimbursed for tuition and books for courses taken to improve their value to the City. Tuition shall be reimbursed for courses as recommended by the department heads with job related justification and approved by the City Manager, with quarterly reports to the City Council including the names of individuals, their positions, and the courses taken. Employees must receive a passing grade in order to be reimbursed for the course. Reimbursement shall be made at the rate of tuition equivalent to the rate charged at California State University at Los Angeles for courses on the quarter system, and California State University at Long Beach for courses on the semester system. The employee will be reimbursed for required books only. 16 ARTICLE XIV PROBATIONARY PERIOD Section 1. An original or promotional appointment will be tentative and subject to a probationary period of not less than six (6) months, except that the City Manager may extend the probationary period for a class up to an additional six (6) months or for a marginal employee who is on probation for up to an additional three (3) months. During the probationary period an employee may be terminated at any time because of unsatisfactory performance. During the probationary period the employee's supervisor shall attempt to counsel the probationary employee on a periodic basis, prior to the end of the probationary period regarding his performance. Section 2. If the service of the probationary employee has been satisfactory to the appointing authority, then the appointing authority shall file with the personnel officer a merit rating including a statement, in writing, to such effect and stating that the retention of such employee in the service of the City is desired. If the services of the employee are deemed to be unsatisfactory and his employment is to be terminated at or before the expiration of the probationary period, the appointing authority shall file with the Personnel Officer, a statement in writing setting forth this action to be taken Section 3. All probationary periods shall extend to the first day of the month following the period of probation . [ Section 4. Rejection Following Promotion. Any employee rejected during the probationary period following a promotional appointment or at the conclusion of the probationary period by reason of failure of the appointing power to file a statement that his services have been satisfactory, or at the discretion of the employee, shall be reinstated to the position from which he was promoted unless charges are filed and he is discharged in the manner provided in the Personnel Ordinance and the rules for positions in the classified service. If there are no vacancies in the position from which he was promoted, the provisions of ARTICLE XV shall apply. ARTICLE XV SENIORITY Section 1 . Employee seniority is the length of continuous service of the employee with the City from his most recent date of hire or rehire. Section 2. A. No employee shall acquire any seniority until he has completed his probationary period. B. When an employee has completed his probationary period, his seniority shall date from date of hire 17 Section 3. Layoffs. A. Whenever, in the judgment of the City Council, it becomes necessary to lay off employees, the City may abolish any position covered by this Agreement. Any employee holding an abolished position will be subject to layoff and have no right to demand that written charges or reasons therefore be filed, and shall have no right of appeal or hearing. B. Seniority shall be observed in affecting layoffs in personnel. The least senior employee in a classification subject to law)ff will be laid off first. C. An employee subject to layoff may exercise his seniority (1) within a job family laterally, (2) within a job family to a lower classification, or (3) to a classification previously held by the employee, provided that the employee meets the current qualifications and requirements of the position in which he/she seeks to exercise seniority, and provided further that any such exercise in seniority shall be subject to a thirty (30) day trial period. An employee subject to layoff because of such exercise of seniority, may, in turn, similarly exercise his/her seniority subject to the same limitations. If an employee does not successfully complete the thirty (30) day trial period, he/she will be laid off, provided that the employee may grieve such a layoff and be entitled to Skelly rights. D. For purpose of this section, job families are established in Exhibit B attached to this Agreement. Section 4, A separation from service, other than an approved leave of absence or layoff, shall cause the employee to lose his seniority rights. Section 5. Names of employees laid off shall be placed on a re-employment list in order of their seniority and shall remain on such list for a period of two years. During this time, the Citywill use this list to rehire employees in order of seniority, provided that the employee held the classification being filled or held a classification in the same job family. Section 6. Layoff Notice and Severance Pay. In the event the City decides to contract for work provided by an employee covered by this Agreement, the City will provide at least one month's notice to the affected employee prior to the effective date of the layoff. An employee laid off because the City contracts with a private company to perform his duties will receive a severance payment upon termination equal to three (3) months of the employee's current salary amount. ARTICLE XVI CITY RIGHTS Section 1. The City reserves, retains, and is vested with, solely and exclusively, all rights of Management which have not been expressly abridged by specific provision of this Agreement or by law to manage the City, as such rights existed prior to the execution of this Agreement. The sole and exclusive rights of Management, as they are not abridged by this Agreement or by law, shall include, but not be limited to, the t)llowing rights: A. To manage the City generally and to determine the issues of policy. B. To determine the existence or non-existence of facts that are the basis of the Management decision 18 C. To determine the necessity and organization of any service or activity conducted by the City and expand or diminish services. D. To determine the nature, manner, means, and technology, and extent of services to be provided to the public. E. Methods of financing. F. Types of equipment or technology to be used. G. To determine and/or change the facilities, methods, technology, means, and size of the work force by which the City operations are to be conducted. H. To determine and change the number of locations, relocations, and types of operations, processes and materials to be used in carrying out all City functions including, but not limited to, the right to contract for or subcontract any work or operation of the City. I. To assign work to and schedule employees in accordance with requirements as determined by the City and to establish and change work schedules and assignments. J. To relieve employees from duties -for lack of work or similar non-disciplinary reasons. K. To establish and modify productivity and performance programs and standards including, but not limited to, quality and quantity standards; and to require compliance therewith. [L. To discharge, suspend, demote, or otherwise discipline employees for proper cause. M. To determine job classifications and to reclassify employees, N. To hire, transfer, promote and demote employees for non-disciplinary reasons in accordance with this Memorandum of Understanding and applicable Resolutions and Codes of the City O. To determine policies, procedures and standards for selection, training and promotion of employees. P. To maintain order and efficiency in its facilities and operations. Q. To establish and promulgate and/or modify rules and regulations to maintain order and safety in the City which are not in contravention with this Memorandum of Understanding. R. To take any and all necessary action to carry out the mission of the Agency in emergencIes. Section 2. Except in emergencies, as defined in Article XXIII, or where the City is required to make changes in its operations because of the requirements of law, whenever the exercise of Management's rights shall impact on employees of the bargaining unit, the City agrees to meet and confer with representatives of the Association regarding the impact of the exercise of such rights, unless the matter of the exercise of such rights is provided for in this Agreement or in the Personnel 19 or departmental rules and regulations and salary resolutions. By agreeing to meet and confer with the Association as to the impact and the exercise of any of the foregoing City rights, Management's discretion in the exercise of these rights shall not be diminished. The City shall not exercise the foregoing rights in an arbitrary or capricious or invidiously or discriminatory manner or in such a manner as to impenl the health and/or safety of the employees. ARTICLE XVII EMPLOYEE ORGANIZATION RIGHTS AND RESPONSIBILITIES Section 1. Agency Shop Agreement. A. Legislative Authority. The parties mutually understand and agree that under the Meyers Milias Brown Act (Government Code Section 3500 et seq.) all employees who are in classifications represented by the Downey City Employees’ Association/Miscellaneous Unit have the right to join or not join the Association. However, the enactment of a local “Agency Shop” requires that as a condition of continuing employment, employees in the respective bargaining unit must either join the Association or pay to the Association a service fee in lieu thereof. Such service fee shall be established by the Association, and shall not exceed the standard initiation fee, periodic dues and general assessments of the Association. B. Election 1 . The agency shop provisions contained in this agreement shall only go into effect if a simple majority of voting eligible unit members cast votes in favor of agency shop in an election as provided in this Agreement. 2. To determine whether employees in the unit wish to be covered by an agency shop provision, an election will be conducted by and in accordance with, procedures established by the California State Mediation and Conciliation Service using a secret ballot. The ballot will state “Do you wish to be covered by an Agency Shop arrangement, which requires all employees to either join the employee organization or pay an agency fee for representation?” The cost of this election shall be borne by the Association . 3. Employees eligible to vote in this election shall be all employees in classifications represented by the Association on the payroll for the most recent month for which data is available. 4. The State Mediation and Conciliation Service shall investigate any objections to the conduct of the election and decide matters pertaining to any challenged ballots. C. Association Dues/Service Fees. 1. Agency Shop as used in this Article means an organizational security arrangement as defined in Government Code Section 3502.5 and applicable law. 20 2.Commencing within thirty days of the State Mediation and Conciliation Service’s certification of approval of the agency shop election results, the Personnel Office shall provide all current employees and any employees hired thereafter, with an authorization notice advising them that Agency Shop for the Association has been enacted pursuant to state law and an agreement exists with the Association, and that all employees subject to the Agreement must either join the Association, pay a service fee to the Association, or provide proof of membership in a religious organization which holds historic opposition to membership in a labor organization. Such notice shall include a form for the employee’s signature authorizing a payroll deduction of Association dues, a service fee or a charitable contribution equal to the service fee. Said employees shall have 14 calendar days from the date they receive the form to fully execute it and return it to the Personnel Office. 3.If the form is not completed properly or returned within 14 calendar days, the City shall commence and continue a monthly payroll deduction of service fees from the first regular biweekly paychecks of such employee each month. The effective date of Association dues, service fee, or charitable contribution shall begin no later than the beginning of the first regular biweekly paycheck of the month commencing 14 calendar days after receipt of the authorization form by the employee. 4.As to non-members objecting to the Association spending their agency fee on matters unrelated to collective bargaining and contract administration, the amount of the agency fee charged shall not reflect expenditures which the courts have determined to be non-chargeable, including political contributions to candidates and parties, members only benefits, charitable contributions and ideological expenditures and, to the extent prohibited by law, shall not reflect expenditures for certain aspects of lobbying, ballot measures, publications, organizing and litigation. 5.The Association shall comply with applicable law regarding disclosure and allocation of its expenses, notice to providers of their right to object, provision for agency fee payers to challenge the Association’s determinations of amounts chargeable to the objecting non-members, and appropriate escrow provisions to hold contested amounts while the challenges are underway. 6.The Association shall make available, at its expense, an expeditious administrative appeals procedure to unit members who object to the payment of any portion of the representation service fee. Such procedure shall provide for a prompt decision to be made by an impartial decision-maker jointly selected by the Association and the objecting provider(s). A copy of such procedure shall be made available upon request by the Association to non+nembers and the City. 7. The foregoing description of permissible agency fee charges and related procedures is included herein for informational purposes and is not intended to change applicable law. 8 The employee's earnings must be sufficient after the other legal and required deductions are made to cover the amount of the dues or fees authorized. When an employee is in a non-pay status for an entire pay period, no withholding will be made to cover the pay period from future earnings. In the case of an employee in a non- pay status only during part of the pay period , whose salary is not sufficient to cover the full withholding, no deduction shall be made. In the case of an employee who is 21 receiving short term disability pay (75% pay) during a pay period, no deduction shall be made. In this connection, all other legal and required deductions (including health care and insurance deductions) have priority over Association dues and service fees. D. Religious Exemption. 1.Any employee who is a member of a bona fide religion, body or sect that has historically held conscientious objections td joining or financially supporting public employee organizations shall upon presentation of active membership in such religion, body, or sect, not be required to join or financially support any public employee organization as a condition of employment. The employee may be required, in lieu of periodic dues, initiation fees or agency shop fees, to pay sums equal to the dues, initiation fees or agency shop fees to a nonreligious, non-labor charitable fund exempt from taxation under Section 501(c)(3) of the Internal Revenue Code, chosen by the employee from a list of at least three of these funds, designated in a memorandum of understanding between the City and the Association, or if the memorandum of understanding fails to designate the funds, then to any such fund chosen by the employee. Proof of the payments shall be made on a monthly basis to the City as a condition of continued exemption from the requirement of financial support to the Association [Govt. Code Section 3502.5(c)]. 2 Declarations of, or applications for, religious exemption and any other supporting documentation shall be forwarded to the Association within 14 calendar days of receipt by the City. The Association shall have 14 calendar days after receipt of a request for religious exemption to challenge any exemption granted by the City. If challenged, the deduction to the charity of the employee’s choice shall commence but shall be held in escrow pending resolution of the challenge. Charitable contributions shall be made by regular payroll deductions only. E. Rescission 1 . The agency shop provision in this memorandum of understanding may be rescinded by a majority vote of all the employees in the unit covered by the memorandum of understanding, provided that: i. A request for such a vote is supported by a petition containing the signatures at least thirty per cent (30%) of the employees in the unit; ii. The vote is by secret ballot; 111.The vote may be taken at any time during the term of the memorandum of understanding, but in no event shall there be more than one rescission vote taken during that term. Notwithstanding the above, the City and the Association may negotiate, and by mutual agreement provide for, an alternative procedure or procedures regarding a vote on an agency shop agreement [Govt. Code Section 3502.5(d)] 2. If a “rescission vote” is approved by unit members during the term of a current memorandum of understanding, the Association agrees not to petition for or seek Agency Shop status for the duration of the current memorandum of understanding 22 F. Indernnification. The Association shall indemnify, defend, and hold the City harmless against any liability arising from any claims, demands, or other action relating to the City’s compliance with the agency fee obligation including claims relating to the Associations use of monies collected under these provisions [Govt. Code Section 3502.5(b)]. The City reserves the rIght to select and direct legal counsel in the case of any challenge to the City’s compliance with the agency fee obligation, and the Association agrees to pay any attorney, arbitrator or court fees related thereto. Section 2. Dues Deductions. The City shall deduct dues on a regular payroll basis from the pay of all employees in the classifications and positions recognized to be represented by the Association. Such deductions shall be authorized in writing on a form approved and provided by the Association for this purpose. The City shall remit such funds to the Association within thirty (30) days following their deduction. Section 3. Release Time for Meet and Confer. The Association may select a maximum of three (3) members to attend scheduled meetings with the Personnel Officer or other management representatives on subjects within the scope of representation during regular work hours. In addition, they may meet for a maximum of one hour per meet and confer session for the purpose of preparation of such sessions. ARTICLE XVIII NO STRIKE - NO LOCKOUT A. PROHIBITED CONDUCT Section 1. The Association, its officers, agents, representatives and/or members agree that during the term of this Agreement they will not cause or condone any strike, walkout, slowdown, sick-out, or any other job action by withholding or refusing to perform services. Section 2. The City agrees that it shall not lockout its employees during the term of this Agreement. The term "lockout" is hereby defined so as not to include the discharge, suspension, termination, layoff, failure to recall or failure to return to work of employees of the City in the exercise of its rights as set forth in any of the provisions of this Agreement or applicable ordinance or law. Section 3. Any employee who participates in any conduct prohibited in Section 1 above, shall be subject to termination by the City. Section 4. In addition to any other lawful remedies or disciplinary actions available to the City if the Association fails, in good faith, to perform all responsibilities listed below in B, Section 1 , the City may suspend any and all of the rights and privileges accorded to the Association under the Employee Relations Ordinance and this Agreement including, but not limited to, right of access! check-off, the use of the City's bulletin boards and facilities. B. ASSOCIATION RESPONSIBILITY Section 1. In the event that the Association, its officers, agents, representatives, or members engage in any of the conduct prohibited in A, Section 1 above, the Association shall immediately instruct any persons engaging in such conduct that their conduct is in violation of this Agreement 23 and unlawful and they must immediately cease engaging in conduct prohibited in A, Section 1 above, and return to work. Section 2. If the Association performs all of the responsibilities set forth in Section 1 above, its officers , agents, representatives shall not be liable for damages for prohibited conduct performed by employees who are covered by this Agreement in violation of Section 1 above. ARTICLE XIX GRIEVANCE PROCEDURE Section 1. Grievance. Grievance shall be defined as a dispute between the Association, employee or employees and the City, regarding interpretation or application of specific provisions of this Agreement, Personnel Rules, or Departmental Rules and Regulations. Section 2. Conduct of the Grievance Procedure. An employee may request the assistance of another person of his own choosing in preparing and presenting his grievance at any level of review, or may be represented by a recognized employee organization or may represent himself. The employee shall not suffer any reprisal from management for utilizing the grievance procedure set forth herein. Any pending disciplinary action shall not affect the grievance procedure nor suspend the operation thereof. A. Any retroactivity on monetary grievances shall be limited to the date that the grievance was filed, in writing, except in cases where it was impossible for the employee to have had prior knowledge of an accounting error. B. All time limits specified may be extended to a definite date by mutual agreement of the employee or his Association representative, and the decision making management representative involved at each step of the grievance procedure. Such mutual agreement shall be evidenced in writing and signed by the employee or Association representative and management representative. Section 3. Grievance Procedure Steps. The grievance procedure shall provide for the following steps; except for grievances that are a result of disciplinary action, which shall beqin at Step Two. Step One. Informal Procedure. An employee must attempt first to resolve a grievance through discussion with his immediate supervisor within ten (10) working days from the date of the alleged incident or action giving rise to the grievance on an informal basis. If, after such discussion, the employee does not believe the problem has been satisfactorily resolved, he shall have the right and obligation to discuss it with his supervisor's immediate supervisor, if any, and his department head, if necessary. Every effort shall be made to find an acceptable solution by these informal means at the most immediate level of supervision. At no time may an informal process go beyond the department head concerned. In order that this informal procedure may be responsive, all parties involved shall expedite this process. In no case may more than thirty (30) days elapse from the date of the alleged incident or action giving rise to the grievance, and the filing of a written grievance in Step Two, or the grievance shall be barred and waived. Step Two. Department Head Response. If the qrievance is a result of disciplinary action which has been processed throuqh the "Skelly Process”, or if the grievance is not resolved in Step One, or if no answer has been received within five (5) working days from the presentation of the oral 24 grievance, the employee may, within thirty (30) working days from the date of the incident giving rise to the grievance, present the grievance in writing to his department head. Failure of the employee to take this action will constitute termination of the grievance. The department head shall further review and discuss the grievance with the employee and shall render its decision and comments, in writing, and return them to the employee within ten (10) working days after receiving the grievance. Step Three. Management Representative, if the grievance is not resolved in Step Two, or if no answer has been received within time limits established in Step Two, the employee may within ten (10) working days, present the grievance in writing to the designated management representative for processing. Failure of the employee to take this action will constitute termination of the grievance. In the event the employee is not being represented by a recognized employee organization, the designated management representative shall attempt to resolve the grievance. If the employee is being represented by a recognized employee organization, the designated management representative shall convene a joint meeting of the recognized employee organization and himself, within five (5) working days, in an attempt to resolve the grievance. In the event the grievance is not satisfactorily adjusted or settled through discussion at this level, management shall advise the employee and/or employee organization, in writing, within ten (10) working days as to its position on the grievance. Step Four. Grievance Hearing. If the grievance is not resolved in Step Three, the employee may, within ten (10) working days of the receipt of the written position from management representatives, present a “request for hearing” in writing to the Personnel Director. . However, the only grievances which may be submitted for review are matters which have resulted in a suspension without pay, reduction in pay, demotion, termination, or otherwise have monetary value to the employee. Failure of the employee to take this action WII constitute termination of the grievance. With the approval of the Personnel Advisory Board, the Personnel Director shall request from the State Mediation and Conciliation Service, or mutually agreed upon alternative organization, a list of seven (7) neutral hearing officers. In the event that the parties cannot agree upon a mutually acceptable hearing officer from the list of seven, the parties shall alternately strike names from the list, with the City striking the first name, The identity of the last remaining individual on the list will be selected as the hearing officer. The hearing officer shall preside over a full and fair evidentiary hearing and, within thirty (30) calendar days of its conclusion, render a written decision that includes findings of fact and a recommendation to the City Manager. That decision shall be served jointly upon the grieving party and the City Manager. ( Step Five. City Manager’s Decision. Within thirty (30) calendar days of receipt of the decision of the hearing officer, the City Manager shall, in writing, adopt, modify or reject that decision. The decision of the City Manager shall be the final administrative decision. f ARTICLE XX MISCELLANEOUS Section 1. Substance Abuse Policy. The City of Downey and the Association have a vital interest in maintaining safe, healthful and efficient working conditions. Being under the influence of a drug or alcohol on the job may pose serious safety and health risks not only to the user but to co-workers and the citizens of Downey. The possession, use or sale of an illegal drug or of alcohol on the job also poses unacceptable risks for safe, healthful and efficient operations. "On the job" means while on City premises, at work locations, or while on duty or being compensated on an "on call status 25 The City of Downey and the Association recognize that their future is dependent on the physical and psychological well being of all employees. The City and the Association mutually acknowledge that a drug and alcohol-free work environment benefits Downey's employees and citizens The purpose of this section is to define the City's drug and alcohol policy as well as the possible consequences of policy violation. A. Possession, sale, use or being under the influence of drugs or alcohol while on the job is strictly prohibited. This prohibition shall not apply to legitimate undercover activities of Police Officers which are undertaken in accordance with the direction of the Police Department. B. When reasonable suspicion exists, the City may require an employee to submit to a medical examination, including, but not limited to, a substance screening. Substance screening means the testing of urine or other body fluids as reasonably deemed necessary by a physician to determine whether an employee has a restricted substance in their system. 1. Reasonable suspicion is cause based upon objective facts sufficient to lead a reasonably prudent supervisor to suspect that an employee is under the influence of drugs or alcohol so that the employee's ability to perform the functions of the job is impaired or so that the employee's ability to perform his/her job safely is reduced. 2.Post-accident testing under this Article shall be conducted based on reasonable suspicion as defined in this Section and shall not be automatic, unless as required by law per Department of Transportation (DOT) Federal Motor Carrier Safety Administration Regulations (FMCSA) (refer to City of Downey Controlled Substance and Alcohol Misuse Policy and Procedures Manual). C. Any manager or supervisor requesting an employee to submit to a substance screening shall document in writing the facts constituting reasonable suspicion and shall give the employee a copy. The employee shall be given an opportunity to provide additional facts. An employee who is then ordered to submit to a substance abuse screening may request to be represented. Because time is of the essence in substance screening, a representative must be available within a reasonable time or the employee will then be ordered to submit to substance screening. An employee who refuses to submit to a substance screening may be considered insubordinate and shall be subject to disciplinary action up to and including termination. D. The supervisor, or designee, shall transport the suspected employee to the testing facility. Testing shall occur on City time and be paid for by the City. Employee urine samples, or other body fluids, will be by a certified system which includes methods or mechanisms designed to assure the integrity of the sample. The facility used for testing shall be certified by the National Institute on Drug Abuse and comply with established guidelines for "chain of custody" to insure that identity and integrity of the sample is preserved throughout the collecting, shipping, testing and storage process E. Any positive test for alcohol or drugs will be confirmed by a scientifically sound method. An employee who tests positive on a confirmatory test will be given the opportunity to discuss the results with a physician to be designated by the City. The employee should be prepared at that time to show proof of any valid medical prescription for any detected substance or to otherwise explain, if he or she so chooses, a positive test result. 26 F. While use of medically prescribed medications and drugs is not per se a violation of this policy, this policy shall establish that no employee shall operate a City vehicle or dangerous machinery or equipment while taking any kind of medication or drugs which are clearly marked that they may cause significant drowsiness or impair an employee's performance. An employee shall notify his/her supervisor, before beginning work, when taking such medications or drugs. In the event there is a question regarding an employee's ability to safely and effectively perform assigned duties while using such medications or drugs, clearance from a physician designated by the City may be required. The City reserves the right to send an employee home on sick leave under these circumstances. G. Employees with substance abuse problems are encouraged to participate voluntarily in the City-sponsored Employee Assistance Program (EAP). Assistance through the EAP may be sought by an employee with complete confidentiality and without adverse consequences to his/her employment. Employees should be aware, however, that a request for assistance through the EAP will not insulate the employee from disciplinary action already contemplated. Depending upon the facts surrounding the reasonable suspicion determination, positive test result, and/or other violation of this policy or other City/department rules and regulations, the City may refer an employee to the EAP. Such referral could, at the discretion of the City, be made available to the employee as an alternative to disciplinary action. Referral would be subject to agreement by the employee to enroll, participate in and successfully complete a rehabilitation and/or counseling program and other terms and conditions in a "Last Chance Agreement." 1. It is the City's intent to use the EAP option for first offenders except the City reserves the right to discipline for those offenses which are a significant violation of City/department rules and regulations or where violation did or could have resulted in serious injury or property damage. (Section 2. Department of Transportation (DOT) Controlled Substance and Alcohol Testing Program. 1. Administration. In accordance with City of Downey Resolution No. 5934, policy and procedures for compliance with the Federal Motor Carrier Safety Administration (FMCSA) Regulations (49 CFR Parts 40 and 382) shall remain in effect for those employees who are required to possess and maintain a commercial driver’s license as a condition of employment for the performance of safety sensitive duties. As applicable, the City’s policy and procedures will be amended to comply with changes in law Unless otherwise designated, the Human Resources Director is the Designated Employer Representative (DER) and shall be responsible for overseeing compliance and implementation of this City’s DOT Controlled Substance and Alcohol Testing Program. 2. Consequences of a Positive Controlled Substance and/or Alcohol Test A covered employee who tests positive for a controlled substance and/or alcohol may be subject to disciplinary action, up to and including termination from employment. 27 As a result of a positive controlled substance and/or alcohol random test, a temporary non-safety sensitive job assignment for an employee who is removed from the performance of safety sensitive duties or who is restricted from driving non- commercial City vehicles, may be approved by the department head based on the availability of meaningful work to meet operational need. An employee must use accrued leave time or request personal leave of absence without pay if time off from work is necessary for any treatment or rehabilitation program. The costs of rehabilitation or treatment services, whether or not covered by the employee's medical plan, are the ultimate responsibility of the employee. The cost of a split specimen under a random test shall be paid by the City or reimbursed to the employee on a negative result only. The cost of a controlled substance and/or alcohol test under follow-up testing is the responsibility of the employee. Section 3. Labor-Management Committee. Representatives of the Association and management shall meet on a quarterly basis for purposes of improving communication and resolving labor relations matters. Agendas shall be agreed upon in advance, with both parties having equal opportunity to submit items. Any matter agreed upon by both parties may be discussed; but discussion does not constitute waiver of access to the grievance process. Chairmanship of the committee shall be alternated among the parties. Section 4. Transfer Rights. The City agrees that if an employee's current supervisor or department head does not approve an employee's transfer to another department who has offered that employee a position, the emplo\yee may appeal the decision to the Personnel Director. Section 5. Rest Periods/Breaks. The City Manager hereby authorizes department heads to permit their employees to take brief rest periods during any working day at such times and of such duration as will result in an increase in their work output and thus promote efficiency. Rest periods shall not exceed fifteen minutes per break and nor shall exceed two breaks per workday. No such rest period shall be taken during the first or last hour of any employee’s working period. The taking of rest periods is hereby declared to be a matter of privilege and not of right. Supervisors shall have the right to schedule rest periods to maximize the efficiency of their operations. Any rest period not taken at the time permitted shall be deemed waived and shall not be accumulated or carried over from one work period to any subsequent work period, or compensated in any form Section 6. Survey. During the term of this agreement, the City agrees to meet with the Association to develop criteria for a total compensation survey. The survey will be completed and given to the Association no later than July 31, 2009. ARTICLE XXI SOLE AND ENTIRE MEMORANDUM OF UNDERSTANDING Section 1. It is the intent of the parties hereto that the provisions of this Agreement shall supersede all prior agreements and memoranda of understanding, or memoranda of agreement, or contrary salary and/or personnel resolutions and ordinances of the City, oral or written, expressed or implied, agreements between the parties or understandings between the parties, and shall govern their entire relationship and shall be the sole source of any and all rights which may be asserted hereunder. This Agreement is not intended to conflict with federal or state law. 28 Section 2. Notwithstanding the provisions of Section 1 above, there exists within the City of Downey, certain personnel resolutions, ordinances and departmental rules and regulations. To the extent that this Agreement does not specifically contravene provisions of these personnel resolutions, ordinances, departmental rules and regulations; such personnel resolutions, ordinances and departmental rules and regulations are specifically incorporated herein. ARTICLE XXII WAIVER OF BARGAINING DURING TERM OF THIS AGREEMENT During the term of this Agreement, the parties mutually agree that they will not seek to negotiate or bargain with regard to wages, hours, and terms and conditions of employment, whether or not covered by this Agreement or in the negotiations leading thereto and irrespective of whether or not such matters were discussed or were even within the contemplation of the parties hereto during the negotiations leading to this Agreement. Regardless of the waiver contained in this Article, the parties may: 1. By mutual agreement, in writing, agree to meet and confer about any matter during the term of this Agreement. 2.May meet and confer in accordance with Article XVI, Section 2. ARTICLE XXIII EMERGENCY WAIVER PROVISION In the event of circumstances beyond the control of the City, such as acts of God, fire, flood, insurrection, civil disorder, national emergency, or similar circumstances, provisions of this Agreement or the Personnel Rules or Resolutions of the City, which restrict the City's ability to respond to these emergencies, shall be suspended for the duration of such emergency. After the emergency is over, the Association shall have the right to meet and confer with the City regarding the impact on employees of the suspension of these provisions in the Agreement and any Personnel Rules and Policies. ARTICLE XXIV SEPARABILITY Should any provision of this Agreement be found to be inoperative, void, or invalid by a court of competent jurisdiction, all other provisions of this Agreement shall remain in full force and effect for the duration of this Agreement. ARTICLE XXV TERM OF THIS MEMORANDUM OF UNDERSTANDING { The term of this Agreement shall commence on November 1 , 2008, and shall continue in full force and effect until October 31, 2009. 29 ARTICLE XXVI RATIFICATION AND EXECUTION The City and the Association acknowledge that this Agreement shall not be in full force and effect until ratified by the Association and adopted by the City Council of the City of Downey. Subject to the foregoing, this Agreement is hereby executed by the authorized representatives of the City and the Association and entered into this 10th day of February, 2009. CITY OF DOWNEY:THE DOWNEY CITY EMPLOYEES' ASSOCIATION/MISCELLANEOUS UNIT By: Lee PovwII, Assistant City Manager By: Noreen Kimura, President Irma Youssefieh, Human Resources Director By’By: Mbrgaret Campos, Treasurer By: Tony Vasquez, Team Member By: Paul Bechely, Representative 30 EXHIBIT “A“ CLASSIFICATIONS REPRESENTED BY THE DOWNEY CITY EMPLOYEES ASSOCIATION/MISCELLANEOUS UNIT Accountant Account Clerk I Account Clerk II Administrative Assistant Administrative Clerk I Administrative Clerk II Assistant Civil Engineer Assistant Planner Assistant Planner it Assistant Superintendent of Physical Services Assistant Superintendent of Water Utilities System Associate Civil Engineer Associate Planner Automation Circulation Systems Operator Building Inspector Building Permit Technician Civil Engineer Computer Operator I Computer Operator II Computer Operator III Construction Inspector Data Entry Operator Engineering Aide Equipment Maintenance Supervisor Executive Secretary Fire Education Specialist Fire Mechanic Fire Network Administrator Hazardous Material Fire Inspector Housing Planner Housing Specialist I Housing Specialist II Integrated Waste Coordinator Junior Accountant Junior Civil Engineer Junior Engineering Aide KDB Coordinator Librarian Library Assistant Library Associate Network Administrator PABX Operator/Receptionist Parking Permit Inspector Personnel Analyst Personnel Technician Plan Check Engineer Plan Checker Plan Checker/ Inspector Police Records Supervisor Principal Building Inspector Principal Planner Programmer Program Coordinator Program Supervisor Project Assistant Public Works Supervisor I Public Works Supervisor II Public Works Technician Real Estate Officer Recreation Coordinator Recreation Supervisor Reprographics Specialist Residential Rehabilitation Supervisor I Revenue Supervisor Secretary Secretary to the City Attorney / City Clerk Senior Accountant Senior Account Clerk Senior Building Inspector Senior Building Permit Technician Senior Code Enforcement Officer Senior Engineering Aide Senior Librarian Senior Library Assistant Senior Library Associate Senior Planner Senior Programmer/Analyst Special Projects Coordinator Supervising Accountant Technical CoordinatorfTheater Theater Supervisor Transit Coordinator Water Construction Specialist Water Quality Contract Administrator Water Systems Supervisor I Water Systems Technical Supervisor ( { 31 EXHIBIT "B" JOB FAMILIES 1.Account Clerk I Account Clerk Senior Account Clerk Junior Accountant Revenue Supervisor Accountant Senior Accountant Supervising Accountant 7.Administrative Clerk I Administrative Clerk II Secretary Secretary to the City Attorney/ City Clerk Executive Secretary The Followinq Classifications Have No Job Family: Administrative Assistant Assistant Superintendent of Physical Services Assistant Superintendent of Water Utilities System Building Permit Technician Construction Inspector Equipment Maintenance Supervisor Fire Mechanic Fire Network Administrator Hazardous Material Fire Inspector Housing Planner Housing Specialist I Housing Specialist I Integrated Waste Coordinator KDB Coordinator PABX Operator/Receptionist Parking Permit Inspector Personnel Analyst Personnel Technician Police Records Supervisor Project Assistant Program Coordinator Program Supervisor Public Works Supervisor I Public Works Supervisor II Public Works Technician Real Estate Officer Recreation Coordinator Recreation Supervisor Reprographics Specialist Residential Rehabilitation Supervisor I Revenue Supervisor Senior Code Enforcement Officer Senior Building Permit Technician Special Projects Coordinator Technical CoordinatorfTheater Theatre Supervisor Transit Coordinator Water Construction Specialist Water Quality Contract Administrator Water Systems Supervisor II Water Systems Operator 2 Junior Engineering Aide Engineering Aide Senior Engineering Aide Junior Civil Engineer Assistant Civil Engineer Associate Civil Engineer Civil Engineer 3 Library Assistant Senior Library Assistant Automation Circulation Sys Operator Library Associate Senior Library Associate Librarian Senior Librarian 4 Planning Technician Assistant Planner Assistant Planner II Associate Planner Housing Planner Senior Planner Principal Planner 5 Building Inspector Plan Checker Senior Building Inspector Plan Checker / Inspector Plan Check Engineer Principal Building Inspector 6 Data Entry Operator Computer Operator I Computer Operator I Computer Operator III Programmer Programmer/Analyst II Senior Programmer Analyst Network Administrator I I 32