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Discipline and Workplace Rights*
(updated 11/30/12)

City and State Laws, Rules, and Policies

Discipline and WorkPlace Rights

Weingarten Rights

Discipline and Appeals

What's a Skelly Hearing?

MOA Rights

City/State Laws/Policies

Insubordination

Lybarger Rights

Garrity Rights

Free Speech Rights

Grievance Process

A range of rules, directives, and statutes impact employees with the way they apply to discipline and workplace rights. A sample of some of these regulations follow:

San José City Charter
Civil Service Commission
Civil Service Rules
Employer- Employee Resolution #39367
City Policy Manual
Meyers-Milias-Brown Act
 

CITY CHARTER

Article VII
City Manager

SECTION 701. City Manager; Powers and Duties.
The City Manager shall be the chief administrative officer of the City. He or she shall be responsible to the Council for the administration of City affairs placed in his or her charge by or under this Charter. Without limiting the foregoing general grant of powers, responsibilities and duties, the City Manager shall have the following powers and duties:

(a) Subject to the Civil Service provisions of this Charter and of any Civil Service Rules adopted pursuant thereto, and except as otherwise provided elsewhere in this Charter, the City Manager shall appoint all officers and employees of the City; and, when he or she deems it necessary for the good of the service, the City Manager may, subject to the above-mentioned limitations, suspend without pay, demote, discharge, remove or discipline any City officer or employee who under this Charter is appointed by the City Manager;

 

Article IX
Officers and Employees

SECTION 908. Discrimination.
Except as otherwise provided by the general laws of this State heretofore or hereafter enacted, no person employed by the City or seeking employment therewith shall be employed, refused employment, promoted, demoted, disciplined or discharged or in any way favored or discriminated against because of political opinion or affiliations, or membership in a lawful employees association, or because of race, color or creed.

 

Article X
Boards and Commissions

SECTION 1001. Civil Service Commission.
There shall be, and there is hereby established, a Civil Service Commission. The following provisions shall be applicable thereto:

(a) MEMBERSHIP. The Civil Service Commission shall consist of five (5) members appointed by the Council for terms of four (4) years. Members must be qualified electors of the City at all times during their terms of office; not more than four (4) shall be of the same sex; and one (1) shall be an attorney-at-law, licensed to practice law in the State of California, who shall have practiced law in said State for at least five (5) years.

(b) TERMS OF OFFICE. The term of office for persons appointed after November 1, 1998 shall be four (4) years.

The person who is appointed to fill the one (1) office of the member whose term expires on December 1, 2001, and each person who is thereafter appointed to fill such one (1) office whenever it becomes vacant, regardless of whether it becomes vacant during or at the end of an incumbent’s term of office, shall be appointed by the Council from a list of three (3) persons to be nominated in each case by all full-time officers and employees in the Civil Service of the City (other than members of the Council and members of boards and commissions) at elections to be held for such purpose. Only full-time officers and employees shall be eligible to vote at such elections, and no officer or employee shall be permitted to vote for more than one person at any one election. The names of three (3) persons receiving the highest number of votes at any such election shall be referred to the Council, and the Council, without consideration of the number of votes received by each, shall appoint to such office the one of the three whom it believes is best qualified for such office. Said nomination elections shall be conducted by the City Clerk in accordance with an election procedure prepared by the City Clerk and approved by the Council.

(c) VACANCIES. The City Council shall adopt an ordinance setting forth rules relating to vacancies before expiration of a term of office and removal of a member from office.

(d) OATH AND DECLARATION. The members of the Civil Service Commission, in addition to the oath of office required by law, shall make under oath and file in the office of the City Clerk the following declaration: “I am opposed to appointment to public service as a reward for political activity and will execute and perform the powers and duties of the office of Civil Service Commissioner in the spirit of this declaration.”

(e) SECRETARY. The Council shall provide the Commission with a secretary satisfactory to the Commission; provided, however, that the head of any personnel department of the City shall not hold any secretarial, executive or administrative position under the direct jurisdiction of the Civil Service Commission.

(f) POWERS AND DUTIES. The Civil Service Commission shall have the following powers and duties:

(1) To recommend to the Council the adoption, amendment or repeal of Civil Service Rules relating to the matters specified in Section 1102 of Article XI of this Charter;

(2) To make any investigation which it may consider desirable concerning the administration of personnel in the Classified Service;

(3) To make recommendations to the Council, the City Manager or to any other appointive power on matters relating to the administration of personnel in the Classified Service;

(4) To exercise and perform such other powers and duties as are expressly given to it by other provisions of this Charter; and to exercise such other powers and perform such other functions and duties as may be prescribed by the Council not inconsistent with the provisions of this Charter.

 

Article XI
C
ivil Service System

SECTION 1102. Civil Service Rules; Contents.
The Council shall adopt Civil Service Rules for the Classified Service relating to the following matters: Creation of positions; applications for employment; examinations; eligibility and qualifications; duration of eligible lists; certification of eligible lists; appointments; promotions; demotions; transfers; resignations; layoffs; temporary reductions due to retrenchment or completion of work; performance ratings; factors and weights to be considered in efficiency rating; filling of positions; classification of positions; specifications for positions; separation from service; dismissals; suspensions; disciplinary action; such other things, consistent with this Charter, as the Council may deem proper and necessary.

Follow this link to the full City Charter.

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CIVIL SERVICE COMMISSION

As established by the City Charter, the Civil Service Commission makes recommendations to the Council and the City Manager and conducts investigations concerning the administration of personnel in the Classified Service. The Commission reviews and recommends changes to the Civil Service Rules and appoints members to the City Council Salary Setting Commission. The Commission may also act as an appellate body for certain personnel decisions affecting City employees.

Follow this link to more details about the Civil Service Commission.

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CIVIL SERVICE RULES
(Chapter 3.04 San José Municipal Code)

The San José Civil Service Rules apply to a myriad of personnel issues, from hiring practices to creating new job classifications, and not least of all disciplinary action by the City. The two most important areas of these rules, dealing with discipline, are Part 11 Disciplinary Action and Dismissal, and Part 12 Suspension, demotion, dismissal and resignation. Under §3.04.1370 in Part 11, the causes of discipline are listed as:

A. Malfeasance;
B. Misconduct;
C. Incompetence;
D. Failure to satisfactorily perform the duties of his position
E. Failure to observe applicable rules and regulations;
F. Failure to cooperate reasonably with his superior officer or fellow officers or employees;
G. Fraud in securing appointment;
H. Inefficiency;
I. Inexcusable neglect of duty;
J. Insubordination;
K. Dishonesty;
L. Drunkenness on duty or drinking of alcoholic beverages;
M. Chronic alcoholism;
N. Use of narcotic or habit-forming drugs without prescription;
O. Inexcusable absence without leave;
P. Conviction of a felony or conviction of a misdemeanor involving moral turpitude;
Q  Discourteous treatment of the public or other employees;
R. Unlawful political activity;
S. Willful disobedience;
T. Misuse of city property;
U. Any violation of departmental conflict of interest codes approved by the city council . . . ;
V. Any other act, either during or outside of duty hours which is detrimental to the public service.

Under §3.04.1500 in Part 12, the criteria is established for a suspension without pay, demotion, or dismissal to include:

1. Malfeasance;
2. Misconduct;
3. Incompetence;
4. Insubordination;
5. Inefficiency;
6. Failure to satisfactorily perform the duties of his or her position;
7. Failure to satisfactorily observe applicable rules and regulations; or
8. Failure to cooperate reasonably with his or her superior or fellow officers or employees.

Follow this link for more details on Civil Service Rules.

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City Employer-Employee
Resolution #39367

City Employer-Employee Resolution #39367, which is also labeled as City Policy Manual 2.1.1, encompasses procedures for the administration of employer-employee relations between the City Management and employee organizations and for resolving disputes regarding wages, hours, and other terms and conditions of employment. These workplace rights include:

Union Activities
Employees have the right to participate in Union activities on issues affecting their wages and workplace conditions.

Section 3. Employee Rights. Subject to the requirements of the law City employees shall:

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

Advance Notice
If the City changes work rules or work place policies, or issues new work rules or work place policies change in your department, they MUST give the Union at least 10 working days notice before the effective date of the rule or policy. See Advance Notice under the MOA section.

Section 8. Advance Notice.

(a) Except in cases of emergency, reasonable advance written notice shall be given to each recognized employee organization whose members may be affected by any ordinance, rule, resolution, or regulation directly relating to matters within the scope of representation proposed to be adopted by the City Council or by any board or commission of the City, and each shall be given the opportunity to meet with such body prior to adoption.

(b) In cases of emergency when the City Council or the City Manager determines that an ordinance, rule, resolution, or regulation must be adopted immediately without prior notice or meeting with a recognized employee organization, City management shall provide such notice and opportunity to meet at the earliest practicable time following the adoption of such ordinance, rule, resolution, or regulation.

Union Access to Worksites
This guarantees Union leaders the ability to stay in touch with the membership of issues of representation.

Section 10. Access to Work Locations. Reasonable access to employee work locations shall be granted officers of recognized employee organizations and their officially designated representatives, for the purpose of processing grievances or contacting members of the organization concerning business within the scope of representation. Such officers or representatives shall not enter any work location without the prior approval of the Municipal Employee Relations Officer and notice to the Department Head or his designated representative. Access shall be restricted so as not to interfere with the normal operations of the department or with established safety or security requirements.

Bulletin Board
Each worksite is may use designated portions of the City bulletin boards (or with the permission of your Department, add your own union bulletin board) to post information about meetings, health and welfare issues, and recreational and social affairs. See Bulletin Boards under the MOA section.

Section 11. Use of Bulletin Boards. Recognized employee organizations may use designated portions of City bulletin boards in departments which have employees in the representation unit for which the organization is recognized.

Provided further that:

(1) Any material, except notices of meetings, social events, elections and appointments, which the Municipal Employee Relations Officer finds to be objectionable may be ordered removed by him, providing that materials which the Municipal Employee Relations Officer has removed and which the employee organization still desires to post shall be subject to discussion with the appropriate employee organization for possible revision of the material.

(2) Copies of all materials and notices must be filed with the Municipal Employees Relations Officer. All materials must be dated and must identify the organization that published them and the recognized employee organization representative responsible for its issuance.

(3) Unless special arrangements are made, materials posted will be removed 31 days after the publication date.

(4) The City reserves the right to determine where bulletin boards shall be placed and what portion of them are to be allocated to employee organizations’ materials.

(5) An employee organization that does not abide by these rules will forfeit its right to have materials posted on City bulletin boards for such period as shall be determined by the Municipal Employee Relations Officer.

Grievance Procedures
This is a procedure used to remedy work-related problems such as an abuse of employee rights or contract violations. The complaint usually lodged by an employee or the union alleging a misinterpretation or improper application of one or more terms in the MOA or the Employer-Employee Resolution. See Grievance Procedures in the MOA section.

Section 22. Grievances.

(a) A grievance is any dispute concerning the interpretation or application of:

(1) this Resolution,

(2) the rules or regulations governing personnel practices or working conditions,

(3) a written Memorandum of Understanding between the City and an employee organization, or

(4) the practical consequences of the City’s decision on wages, hours and other terms and conditions of employment.

(b) Grievances arising from the interpretation or the implementation of this Resolution or from the modification or addition of any rule or regulation adopted pursuant to Section 26 of this Resolution may be processed in accordance with the impasse procedures provided in this Resolution.

(c) Grievances arising from any Memorandum of Understanding reached pursuant to the provisions of this Resolution may be processed in the manner provided in such Memorandum of Understanding or if there be no such provision then in accordance with the impasse procedures provided in this Resolution.

(d) All other grievances shall be processed in accordance with procedures established by the City.

Download the complete Employer-Employee Resolution #39367.

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City POLICY MANUAL

Various City of San José policies regulate employee and management conduct. Several of these provide specific protections to workers. Click here for a full list and the text of these city policies

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MEYERS-MILIAS-BROWN ACT
(MMBA)
(as of January 1, 2016)

The Meyers-Milias-Brown Act (MMBA) is the “short title” given to § 3500, et seq. of the California Government Code. It governs labor-management relationships in California local government, including cities, counties, and most special districts. The California Public Employment Relations Board (PERB) is charged with adjudicating disputes arising under the MMBA. Excerpts of important sections include:

§ 3502 right to join or abstain; individual representation. Except as otherwise provided by the Legislature, public employees shall have the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations.

§ 3502.1 exercise of lawful action as elected, appointed or recognized representative of any employee bargaining unit. No public employee shall be subject to punitive action or denied promotion, or threatened with any such treatment, for the exercise of lawful action as an elected, appointed, or recognized representative of any employee bargaining unit.

§ 3503 representation of members; membership admission and dismissal regulation; right of personal appearance. Recognized employee organizations shall have the right to represent their members in their employment relations with public agencies. Employee organizations may establish reasonable restrictions regarding who may join and may make reasonable provisions for the dismissal of individuals from membership. Nothing in this section shall prohibit any employee from appearing in his own behalf in his employment relations with the public agency.

§ 3505 conferences; meet and confer in good faith. The governing body of a public agency . . . or other representatives . . . shall meet and confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of such recognized employee organizations . . . .

§ 3505.3 time off allowances to employee representatives. Public agencies shall allow a reasonable number of public agency employee representatives of recognized employee organizations reasonable time off without loss of compensation or other benefits when formally meeting and conferring with representatives of the public agency on matters within the scope of representation.

§ 3505.4 factfinding panel; criteria for findings and recommendations.
(a) If the mediator is unable to effect settlement of the controversy within 30 days after his or her appointment, the employee organization may request that the parties' differences be submitted to a factfinding panel. Within five days after receipt of the written request, each party shall select a person to serve as its member of the factfinding panel. The Public Employment Relations Board shall, within five days after the selection of panel members by the parties, select a chairperson of the factfinding panel.

(b) Within five days after the board selects a chairperson of the factfinding panel, the parties may mutually agree upon a person to serve as chairperson in lieu of the person selected by the board.

(c) The panel shall, within 10 days after its appointment, meet with the parties or their representatives, either jointly or separately, and may make inquiries and investigations, hold hearings, and take any other steps it deems appropriate. For the purpose of the hearings, investigations, and inquiries, the panel shall have the power to issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence.

(d) In arriving at their findings and recommendations, the factfinders shall consider, weigh, and be guided by all the following criteria:

(1) State and federal laws that are applicable to the employer.

(2) Local rules, regulations, or ordinances.

(3) Stipulations of the parties.

(4) The interests and welfare of the public and the financial ability of the public agency.

(5) Comparison of the wages, hours, and conditions of employment of the employees involved in the factfinding proceeding with the wages, hours, and conditions of employment of other employees performing similar services in comparable public agencies.

(6) The consumer price index for goods and services, commonly known as the cost of living.

(7) The overall compensation presently received by the employees, including direct wage compensation, vacations, holidays, and other excused time, insurance and pensions, medical and hospitalization benefits, the continuity and stability of employment, and all other benefits received.

(8) Any other facts, not confined to those specified in paragraphs (1) to (7), inclusive, which are normally or traditionally taken into consideration in making the findings and recommendations.

§ 3505.5 dispute not settled within 30 days after appointment of factfinding panel.
(a) If the dispute is not settled within 30 days after the appointment of the factfinding panel, or, upon agreement by both parties within a longer period, the panel shall make findings of fact and recommend terms of settlement, which shall be advisory only. The factfinders shall submit, in writing, any findings of fact and recommended terms of settlement to the parties before they are made available to the public. The public agency shall make these findings and recommendations publicly available within 10 days after their receipt.

§ 3505.7. impasse; implementation of last, best, and final offer.
After any applicable mediation and factfinding procedures have been exhausted, but no earlier than 10 days after the factfinders’ written findings of fact and recommended terms of settlement have been submitted to the parties pursuant to Section 3505.5, a public agency that is not required to proceed to interest arbitration may, after holding a public hearing regarding the impasse, implement its last, best, and final offer, but shall not implement a memorandum of understanding. The unilateral implementation of a public agency’s last, best, and final offer shall not deprive a recognized employee organization of the right each year to meet and confer on matters within the scope of representation, whether or not those matters are included in the unilateral implementation, prior to the adoption by the public agency of its annual budget, or as otherwise required by law.

§ 3506 discrimination prohibited.
Public agencies and employee organizations shall not interfere with, intimidate, restrain, coerce or discriminate against public employees because of their exercise of their rights under Section 3502.

§ 3506.5 refusal to negotiated in good faith.
A public agency shall not do any of the following:

(a) Impose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter.

(b) Deny to employee organizations the rights guaranteed to them by this chapter.

(c) Refuse or fail to meet and negotiate in good faith with a recognized employee organization. For purposes of this subdivision, knowingly providing a recognized employee organization with inaccurate information regarding the financial resources of the public employer, whether or not in response to a request for information, constitutes a refusal or failure to meet and negotiate in good faith.

(d) Dominate or interfere with the formation or administration of any employee organization, contribute financial or other support to any employee organization, or in any way encourage employees to join any organization in preference to another.

(e) Refuse to participate in good faith in an applicable impasse procedure.

§ 3508.1 police employees; investigation of misconduct allegations and notification of any proposed disciplinary actions; limitations period; exceptions. (a) With respect to any police employee . . . no punitive action, nor denial of promotion on grounds other than merit, shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency's discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct. . . . In the event that the public agency determines that discipline may be taken, it shall complete its investigation and notify the police employee of its proposed disciplinary action within that year, except in any of the following circumstances . . . [criminal investigations, police employee waives the time period, a multi-jurisdictional investigation requiring a reasonable extension, the investigation involves more than one employee and requires a reasonable extension, workers' compensation fraud is involved, etc].

Link to the complete MMBA

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Created 13 November 2009 • Modified 23 April 2016