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Discipline and Workplace Rights*
(updated 10/1/14)

Memorandum of Agreement (MOA) Rights

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

One of the many commitments of MEF is to represent its membership in disputes with their employers. Union leadership is also charged with negotiating a collective bargaining agreement, otherwise known as a Memorandum of Agreement (or MOA), and with the enforcement of that contract. Within the MOA are various sections designed specifically to protect employee rights. These rights and protections include, among others:

Concerted Activity
Release Time
Bulletin Board
Advance Notice
Breaks
Probation Periods
Disciplinary Action –
Weingarten Rights
Grievance Procedure

Article 3 Agreement Conditions

Concerted Activity

The MOA allows for “informational picketing in public areas outside of regular work hours (including unpaid lunch time).” Remember, you cannot participate in this type of “concerted activity” while on duty. Doing so will subject you to discipline.

3.3 Concerted Activity. It is understood and agreed that:
3.3.1 Participation by any employee represented by the Union in picketing with respect to any issue concerning matters within the scope of representation provided or proposed to be provided by the City of San José for employees in this unit, or participation in a strike, including sympathy strikes, work stoppage or slowdown, or any other concerted activity which diminishes services provided by an employee in this unit, or the failure to perform lawfully required work, shall subject the employee to disciplinary action up to and including discharge. Employees may participate in informational picketing in public areas outside of regular work hours (including unpaid lunch time).

Article 6 Union Rights

Release Time

The Chief Steward can receive release time to attend grievance meetings and other training and meetings approved by OER. Department Stewards shall be granted release time so they can investigate and/or process grievances, and to attend other meetings and training's approved by OER.

6.2 Release Time
6.2.2 Designated Union Representatives. The following designated Union representatives shall be eligible for release time to attend meetings as listed in this Article.

6.2.2.2 Chief Steward. The Chief Steward and/or designated representative(s) shall be granted release time from regular City duties to attend the following functions:

• To attend grievance meetings when used to facilitate the settling of grievance.

• To attend other meetings and trainings approved by the Employee Relations Director or designee.

6.2.2.3 Department Stewards. Department Stewards shall be granted release time from regular City duties to attend the following functions:

• To investigate and/or process a grievance only on the shift in the department(s) or section of a department(s) for which designated.

• To attend other meetings and trainings as approved by the Employee Relations Director or designee.

6.2.3 Authorization For Release Time. If the designated Union representative finds it necessary to leave assigned duties to investigate or process a grievance, or attend a meeting as defined in this Article, the representative must inform the immediate supervisor of the general nature for the release time and receive authorization from the immediate supervisor prior to leaving assigned duties. Upon return to assigned duties, the representative must report back to the immediate supervisor.

6.2.3.2 Reasonable Release Time. Authorization for a Union representative, as defined above, to leave assigned duties shall not be unreasonably withheld by the supervisor.

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Bulletin Boards

Each worksite 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.

6.6 Bulletin Board
6.6.1 Recognized employee organizations may use designated portions of City bulletin boards in departments, which have employees in the representation units for which the Union is recognized.

6.6.2 Subject to the provisions contained herein, the following types of Union notices and announcements listed below may be posted on the bulletin boards:

6.6.2.1 Meetings, elections, welfare, recreational and social affairs and such other notices as may be mutually agreed upon between the Union and the Municipal Employee Relations Officer or designee.

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 written notice before the effective date of the rule or policy.

6.7 Advance Notice
6.7.1 Whenever the City changes work rules or work place policies, or issues new work rules or work place policies, the Union will be given written notice at least ten (10) working days, absent emergency, before the effective date of the rule or policy. This notice is provided in order that the Union may discuss the rule or policy with the City before they become effective if the Union so requests.

6.7.2 In cases of emergency when the City Council, City Manager or Department Director determines that an ordinance, rule, resolution, or regulation must be adopted immediately without prior notice, City management shall provide such notice at the earliest practical time.

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Article 7 Hours of Work and Overtime

Breaks

Each worker is entitled to a 15-minute break in each half of their work shift. These are supposed to be split with one occurring during the first half of your shift and the other during the last half of your shift.

7.6 Rest Period Full-time Employees. A fifteen (15) minute rest period will be provided in each half of the regularly scheduled work shift. Insofar as is possible, rest periods shall be scheduled in the middle of each half of the shift. It is understood and agreed that the inability to permit an employee to take a rest period shall not be a basis for any claim for overtime compensation.

7.6.1 Rest Period Part-time Employees. Part-time employees will be provided a fifteen (15) minute rest period during each uninterrupted work period of at least four (4) hours.

7.6.2 Lunch periods for Part-time Employees. Part-time employees who are scheduled and/or work a shift of six (6) or more hours shall take at least a thirty (30) minute unpaid lunch period. Insofar as is possible, lunch periods shall be scheduled in the middle of the shift. The scheduling of lunch periods and the length of any lunch period is subject to supervisory approval.

Article 17 Probationary Periods

Probationary Periods

For most employees their probationary period is six months, or 1,040 regular hours of service. Some job classifications require twelve months (2,080 hours). Although probationary workers are permitted to take up to 80 hours of paid or unpaid time off during this time period, it is highly recommended they keep very close track of the hours they’ve worked and time off they’ve taken until they have completed their probation. Taking in excess of he 80 hours will extend your probationary period, and every hour counts.

17.1 Probation Period Calculation. Probationary periods shall not be less than six (6) or twelve (12) months of actual service as determined by the Civil Service Commission. Actual service shall mean regular hours worked, paid holidays and up to eighty (80) hours of other cumulative or consecutive paid or unpaid absences.

17.2 An employee’s probationary period may be extended at the discretion of the City up to a maximum of three (3) months of actual and continuous service. The employee will be notified in writing of the length and reason for the extension.

17.3 Part-time Probation. The probation period for part-time employees will be considered complete after the employee has worked 1040 regular hours of service. Regular hours do not include paid leave or overtime hours. Part-time non-benefited employees are considered to be “at will” employees with no permanent status and do not serve a probationary period.

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Article 19 Disciplinary Action

Disciplinary Action

The MOA requires that “disciplinary action . . . be taken commensurate with the seriousness of the offense.” It is one of the duties of stewards and Union leadership to ensure the City abides by this agreement and does not issue arbitrary and capricious discipline. Two types of discipline covered in the MOA are informal and formal. Informal discipline includes oral counseling, documented oral counseling (DOC), and written reprimand (also known as a letter of reprimand or LOR). Formal discipline includes suspension, a salary step reduction, demotion, and dismissal.

In Section 19.2 of our contract we are guaranteed what is known as Weingarten rights. This is the basic the right to have a union representative present when you are being questioned by a supervisor and have a reasonable believe that the questioning could lead to you be disciplined. See Weingarten Rules for more details.

19.1 The City of San Jose discipline policy applies to both regular permanent (non-probationary) fulltime and regular permanent (non-probationary) part-time benefited employees and is described in the Discipline Policy, contained in the City Policy Manual. When the need for disciplinary action arises, disciplinary action will be taken commensurate with the seriousness of the offense. The levels of discipline include informal actions, which are oral counseling, documented oral counseling and written reprimand. Formal disciplinary actions are suspension, salary step reduction, demotion and dismissal.

19.1.1 Employees may submit a rebuttal to a Letter of Reprimand within thirt (30) days.The rebuttal will be kept in the employee's permanent personnel file.

19.1.2 Part-time unbenefited employees subject to separation due to disciplinary action may request a meeting with the Office of Employee Relations.

19.2 When an employee is being interviewed and the employee reasonably believes that the investigative interview is likely to result in disciplinary action, the employee has the right to request to have a union representative present during the investigative interview.

19.3 Step Reduction. The San José Municipal Code defines disciplinary action as dismissal, demotion and suspension. In addition, the appointing authority may reduce an employee’s salary step. The salary may be reduced to no lower than step one (1) of the salary range, and the amount and length of time of the salary reduction will be specified in the Notice of Intended Discipline. The salary may be reduced either for a specified period of time or until the condition which caused the salary reduction has been corrected. The employee may appeal this action, including the amount and the length of time, to the Civil Service Commission according to the same rules as apply to other formal disciplinary appeals.

19.4 Police Department Employees. Disciplinary actions and internal investigations involving non-sworn employees who are subject to the Police Department Duty Manual will be administered in accordance with section C1811 of the Duty Manual and the Police Department Discipline Procedures Handbook for Employee Relations Liaisons.

19.5 No provisions of this Article shall be subject to the grievance procedures of this Agreement. The appeal process for any disciplinary action shall only be those described in the San Jose Municipal Code and City of San Jose Discipline Policy in the City Policy Manual and are not subject to appeal through the grievance procedure of this Agreement.

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Article 21 Grievance Procedure

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. Grievances are best to resolved at the lowest supervisory level, thus a Step I Grievance is to an employee’s immediate supervisor. If necessary it be appealed to higher levels of management, and finally to arbitration. There are strict timelines involved when filing even a Step I grievance. At steward or other union representative should be contacted anytime a worker is considering filing a grievance. See Grievance Process for more details.

21.1 Any dispute between the City and the Union regarding the interpretation or application of the written Memorandum of Agreement, or the interpretation or application of the Employer Employee Resolution #39367, as amended, shall be considered a grievance. A grievance may be initiated only by the employee directly affected except as otherwise provided herein. Where the dispute directly affects a significantly large group of employees in the representation unit, the appropriate Union may file a grievance on behalf of such employee(s).

21.2 Procedures

21.2.1 Grievances involving the interpretation or application of Resolution #39367, as amended, including any grievance filed pursuant to Section 22 of that Resolution, shall be filed in writing with the Municipal Employee Relations Officer, or designee, and shall be processed in accordance with applicable impasse resolution procedures of that Resolution.

21.2.2 Grievances involving the interpretation or application of this Agreement shall be processed in accordance with the procedures set forth in this Article 21.

21.2.3 Alternative to the Grievance Procedure. As an alternative to the formal grievance procedure, MEF and Employee Relations may, through mutual agreement, meet and attempt to resolve on an informal basis, problems which arise involving contract interpretation, Civil Service rules, or other matters affecting the relationship between the Union and the City.

21.2.4 The Office of Employee Relations and MEF may review an issue on an ad hoc basis on its merits and its relationship to the contract. The result of these discussions may be:

  1. To create a side agreement for immediate implementation.
  2. To continue the current practice for discussions during the next contract period.
  3. To change practice to conform to the contract language.
  4. To maintain the status quo.

If the issue cannot be resolved through this process, the Union maintains the option to proceed through the appropriate grievance procedure.

21.3 Step I

21.3.1 An employee may present the grievance orally either directly or through the Union representative to the immediate supervisor. The grievance must be presented within twenty one (21) calendar days following the event or events on which the grievance is based. The immediate supervisor shall make whatever investigation is necessary to obtain the facts pertaining to the grievance. Within twenty one (21) calendar days after receiving the oral grievance, the immediate supervisor shall give the employee a verbal reply.

21.3.2 If the employee is not satisfied with the reply of their immediate supervisor, the employee may appeal the grievance to Step II.

21.4 Step II

21.4.1 If the employee desires to appeal the grievance to Step II, the grievance shall be reduced to writing and presented to the Department Director or designee within five (5) working days following the receipt of the immediate supervisor’s verbal reply.

21.4.2 To ensure clear communication and assist in resolving the grievance, the written grievance shall contain the following information:

  • A clear statement of the problem.
  • The alleged facts upon which the grievance is based.
  • The section of the MOA claimed to have been violated and the specific violation claimed.
  • The remedy requested by the grievant.

21.4.3 The Department Director or designee, may arrange a meeting between the Director, the employee, the appropriate Union representative, and the immediate supervisor to attempt to resolve the grievance. In any event the Department Director or designee, shall give a written decision to the employee within ten (10) working days following receipt of the written appeal to Step II.

21.4.4 If the employee is not satisfied with the decision, the employee may appeal the grievance to Step III.

21.5 Step III

21.5.1 If the employee desires to appeal the grievance to Step III, the employee shall indicate in writing the reason for the appeal and present it along with the original written grievance to the Municipal Employee Relations Officer or designee within ten (10) working days following receipt of the written decision at Step II.

21.5.2 Within ten (10) working days after receipt of the appeal to Step III, the Municipal Employee Relations Officer or designee shall schedule a meeting with the employee, the appropriate Union representative, and the Department Director or designee to discuss the matter. A written decision shall be given to the employee or the appropriate Employee Organization representative within ten (10) working days following the meeting.

21.5.3 If the decision of the Municipal Employee Relations Officer or designee is unsatisfactory, the appropriate Employee Organization representative may appeal the grievance to Step IV Arbitration.

21.6 Step IV Arbitration

21.6.1 If the grievance has been properly processed through the previous steps of the procedure and not resolved, the appropriate Union representative may appeal the grievance to Arbitration. The appropriate Union representative shall notify the Municipal Employee Relations Officer or designee in writing, within ten (10) working days following receipt by the employee of the written answer at Step III.

21.6.2 Within ten (10) working days following the receipt of the notice of appeal to Step IV, a meeting shall be arranged by the Municipal Employee Relations Officer or designee with the appropriate Union representative to prepare a joint statement of the issue, or issues, to be presented to the arbitrator. The employee may also be permitted to attend. If the parties are unable to agree upon the issue, or issues, each party will prepare its statement of the issue, or issues, and jointly submit the separate statement of issue, or issues, to the arbitrator. At the beginning of the hearing referred to herein, the arbitrator shall determine what the issue, or issues, are.

21.6.3 The parties may mutually agree upon the selection of the arbitrator or shall jointly request the State of California Conciliation Service to provide a list of seven persons qualified to act as arbitrators. Any costs associated with the mutually agreed upon joint request for a list of persons qualified to act as arbitrators from the State of California Mediation and Conciliation Service shall be divided equally between the parties. The City will process the joint request after receiving the Union’s share of the cost for obtaining the list.

21.6.4 Within ten (10) working days following receipt of the above referenced list, the parties shall meet to select the arbitrator. The right to strike the first name shall be determined by lot and the parties shall alternately strike one name from the list until only one (1) name remains, and that person shall be the arbitrator.

21.6.5 The parties shall meet at least ten (10) working days prior to the arbitration hearing date for the purpose of pre-arbitration settlement or narrowing issues for arbitration, discussing possible stipulations and exchanging documents intended for use at the hearing.

21.6.6 The arbitrator shall hold a hearing on the issue, or issues, submitted, or as determined by the arbitrator, if the parties have not mutually agreed upon the issue, or issues, and render a written decision and reasons for the decision as soon after the hearing as possible. The decision shall be binding on both parties, and shall be limited to the issue, or issues, involved.

21.6.7 The decision shall be sent to the Municipal Employee Relations Officer or designee and to the employee or appropriate representative of the Union.

21.6.8 Each of the parties shall pay for the time and expenses of its representatives and witnesses through all stages of the arbitration procedure and shall contribute equally to the fee and expenses of the arbitrator. The arbitrator’s fee shall be determined in advance of the hearing. Court reporter fees are also shared equally among the parties.

21.6.9 The parties agree that the arbitrator shall not add to, subtract from, change or modify any provision of this agreement and shall be authorized only to apply existing provisions of this Agreement to the specific facts involved and to interpret only applicable provisions of this agreement, except that in the event it is a dispute concerning the arbitrability of the grievance, the arbitrator shall have the authority to rule on the issue of arbitrability, to wit: Whether or not the grievance involved an interpretation of the Agreement. However, the arbitrator will have no authority to rule on the issue of whether or not the grievance is a matter that is within the scope of representation, as defined under the Meyers-Milias-Brown Act.

21.6.10 The parties agree that the time limits set forth herein are of the essence of this procedure and are to be strictly complied with. Time limits may be extended only by written mutual agreement of the parties.

21.7 General Provisions

21.7.1 Any grievance not filed or appealed within the time limits specified shall be considered settled on the basis of the last disposition given. In the event the grievance is not answered within the time limits set forth herein, either the employee, except for appeals to Step IV, or the appropriate Union representative may appeal the grievance to the next higher step within the time limits provided.

21.7.2 The Union agrees that it will not initiate or pursue any other avenue of redress on any matter properly within the scope of representation until the provisions of this Article, including arbitration, have been utilized.

21.7.3 Working days as used in this Article shall be defined as the regularly scheduled working days of the employee or appropriate Union representative filing or appealing the grievance and the regularly scheduled working days of the appropriate representative of the City responsible for replying to the grievance.

21.7.4 If an employee desires to file a grievance involving separation from City employment pursuant to the application of Section 10.8, entitled Other Leaves of Absence, the employee shall file the grievance in writing at Step II within ten calendar days following the date of separation.

21.7.5 Any of the time limits specified in Steps I through IV may be extended by written mutual agreement of the parties.

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Created 13 November 2009 • Modified 23 April 2016