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Discipline and Workplace Rights*
City and State Laws, Rules, and Policies
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:
SECTION 701. City Manager; 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;
SECTION 908. Discrimination.
SECTION 1001. Civil Service Commission.
(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.
SECTION 1102. Civil Service Rules; Contents.
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.
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:
Under §3.04.1500 in Part 12, the criteria is established for a suspension without pay, demotion, or dismissal to include:
Follow this link for more details on Civil Service Rules.
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:
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.
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
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.
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.
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.
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
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.
• § 3505.5 dispute not settled within 30 days after appointment of factfinding panel.
• § 3505.7. impasse; implementation of last, best, and final offer.
• § 3506 discrimination prohibited.
§ 3506.5 refusal to negotiated in good faith.
• § 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].