Chapter 36 Employer-Employee Relations

The purpose of this chapter is to establish policies and procedures for the orderly administration of employer employee relations in city government, the formal recognition of employee organizations, and the resolution of disputes regarding wages and related economic benefits.

(Ord. 867, passed 5-12-75)

36.03 DEFINITIONS

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

APPROPRIATE UNIT. A unit determined pursuant to § 36.17 of this chapter, excluding confidential and management employees as herein defined.

CITY. The city of Hermiston and, where appropriate herein, the City Council or any authorized management employee as herein defined.

CITY COUNCIL. The governing body of the City of Hermiston.

CITY REPRESENTATIVE. The City Manager, or alternate or alternates as may be selected by him, together with another person or persons as the City Council may designate. The City Council may authorize the City Manager to designate another person or persons on their behalf.

CONSULTATION IN GOOD FAITH. The mutual obligation of the city representative and employee representative personally to meet at reasonable times and to communicate in good faith verbally or in writing in an attempt to reach agreement on those matters within the scope of consultation.

DAY. A calendar day.

EMPLOYEE. Any employee who is appointed to a full time or part time permanent city position.

EMPLOYEE, CONFIDENTIAL. Any employee who is privy to decisions of city management affecting employer employee relations. CONFIDENTIAL EMPLOYEES shall be designated by the City Manager.

EMPLOYEE, MANAGEMENT. Any employee having significant responsibilities for formulating and administering city policies and programs, including but not limited to the City Manager and department heads; and any employee having authority to exercise independent judgment to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or having the responsibility to direct them, or to adjust grievances, or effectively to recommend action if in connection with the foregoing, and the exercise of authority is not of a merely routine or clerical nature but requires the use of independent judgment. MANAGEMENT EMPLOYEES shall be designated by the City Manager.

EMPLOYEE ORGANIZATION. Any organization which has in its membership employees of the city and which has as one of its primary purposes representing employees in their employment relations with the city.

EMPLOYEE ORGANIZATION, CERTIFIED. An employee organization which has been certified as the majority representative of employees in an appropriate unit in accordance with the provisions of §§ 36.17 through 36.20.

EMPLOYEE REPRESENTATIVE. The employee or employees representing a certified employee organization for purposes of the consultation process provided in this chapter.

EMPLOYER EMPLOYEE RELATIONS. The relationship between the city and its employees and their employee organizations or, when used in a general sense, the relationship between city management and employees or employee organizations.

FACT-FINDER. The FACT-FINDER, FACT-FINDING COMMITTEE, or FACT-FINDING BODY selected pursuant to § 36.21.

FACT-FINDING. Identifying the major issues in a particular dispute; reviewing the positions of the parties; investigating and reporting of the facts by one or more impartial fact finders; and making recommendations for settlement.

GRIEVANCE. A dispute concerning the interpretation of the rules and regulations governing personnel policies and practices of the city affecting the employee, or of the practical consequences of a "city rights" decision on wages and related economic benefits. An impasse is not a GRIEVANCE.

IMPASSE. A deadlock in the annual discussions between the city representative and employee representative over any matters within the scope of consultation as defined in § 36.15 of this chapter.

MEDIATION. The effort of an impartial third person or persons, functioning as intermediaries, to assist the parties in reaching a voluntary resolution of an impasse through interpretation, suggestion and advice.

MEMORANDUM OF UNDERSTANDING. A written memorandum incorporating matters on which agreement is reached through the consultation process and approved by the City Council.

(Ord. 867, passed 5-12-75)

CONSULTATION PROCEDURES

36.15 SCOPE OF CONSULTATION.

The scope of consultation between the city representative and employee representative shall include all matters relating to employee wages and related economic benefits. Employee rights as defined in § 36.24 and city rights as defined in § 36.25 of this chapter are excluded from the scope of consultation and not subject to the consultation process provided in this chapter.

(Ord. 867, passed 5-12-75)

36.16 CONSULTATION PROCESS.

The purpose of this section is to provide procedures for the consultation process.

(A) A meeting of all employee representatives and the city representative shall be held no later than October 1 of each year to review the consultation procedures and to discuss matters within the scope of consultation and the data relating to the matters that the employee representatives desire to have available during the consultation process. The city representative shall make reasonable efforts to obtain data and shall present it to the employee representative by November 15 of each year.

(B) All matters within the scope of consultation which employee representatives might propose shall be submitted in writing to the city representative by December 1 of each year. All matters which the city might propose shall be submitted in writing by the city representative to the appropriate employee representatives by January 15 of each year. No proposal may be considered that will affect the ensuing year’s budget unless the same was submitted by December 1, in the case of the employee representative, and by January 15, in the case of the city representative.

(C) An initial meeting to discuss the written proposals shall be held within ten days after the submission of the city representative’s proposals, but in no event later than January 15 of each year. Matters of city wide concern shall be discussed in joint meetings between the city representative and the employee representatives of all the certified employee organizations. "Matters of city wide concern" are those matters requiring major budgetary financing or having an impact on city employees generally, as determined by the City Manager.

(D) Subsequent consultation sessions shall be arranged by mutual agreement of the city representative and the employee representative.

(E) Upon completion of consultations, a "memorandum of understanding" shall be prepared by the City Manager and signed by the City Manager and the employee representative. The signed memorandum shall be forwarded to the City Council for its acceptance, rejection, or modification and acceptance.

(F) Any time limit provided in this section may be extended by mutual agreement of the city representative and the employee representatives.

(Ord. 867, passed 5-12-75)

36.17 EMPLOYEE REPRESENTATION UNIT DETERMINATION.

(A) Any employee organization desiring to represent a group of employees in consultations held in accordance with this chapter may petition the City Council for a representation election. A representation petition shall be in writing and shall specify:

(1) The name and address of the organization;

(2) The principal officers of the organization;

(3) The person and address to whom all communications to the organization concerning the election shall be sent;

(4) That membership in the organization is not denied because of race, sex, color, religious creed, national origin or ancestry, or political affiliation; and

(5) A description of the unit proposed by the organization to be appropriate and within which the election is sought. The description shall include a listing of the classification titles of the positions in the proposed appropriate unit.

(B) The representation petition shall be supported by the signatures of at least 50% of the employees in the proposed appropriate unit. The signatures shall be based upon the representation petition, and the petition shall bear the date that the signatures were obtained. All employee signatures must have been placed upon the representation petition within 60 days immediately preceding submission of the petition.

(C) Upon filing of the representation petition, the Finance Director/Recorder shall post within the work area of the proposed appropriate unit a notice describing the proposed unit, that a representation election has been requested, and naming the employee organization petitioning for representation.

(D) The City Council shall refer the representation petition to the City Manager for examination and verification. The City Manager shall examine the petition and determine whether valid signatures of the required 50% of the employees in the proposed appropriate unit are on the petition. In the event that the City Manager finds that the petition lacks the required 50%, he shall so notify the City Council and the petitioning employee organization. The petition shall be dismissed forthwith if not previously withdrawn by the employee organization.

(E) The City Manager shall make the final determination as to what employees, if any, in the proposed appropriate unit shall be considered management or confidential employees. If that determination affects the representation petition, then the employee organization shall be notified, and it may amend its petition. The verification of the representation petition shall be forwarded to the City Council immediately.

(F) After receiving the representation petition and after the City Manager has notified the City Council that the petition meets the requirements of this section, the City Council shall then determine whether the petitioner is a bona fide employee organization, whether the unit within which the election is sought is an appropriate unit, and any other questions relating to the subject matter. In determining whether the proposed unit is an appropriate unit, the City Council shall use the following criteria to assist them in its determination:

(1) The community interest of employees;

(2) The history of employee representation in the unit, among other employees of the city, and in similar employment;

(3) The effect of the unit on the efficient operation of the city and upon sound employee relations;

(4) The extent to which employees have common skills, working conditions, job duties, or similar educational requirements;

(5) The effect on the city’s classification structure of dividing a single classification among two or more units.

(G) The City Council shall obtain and consider written reports and recommendations of the City Manager which shall take into consideration views of all concerned departments and offices, and the effect on the city. Affected employee organizations may also submit their views in writing concerning the proposed unit, which views shall be considered by the City Council. If the City Council determines that it is in the best interest of the parties, it may schedule a hearing so that all parties may have an opportunity to present evidence or argument in support of their position.

(H) If the City Council determines that the unit is appropriate, then it shall direct the Finance Director/Recorder to schedule a secret ballot election within the unit in accordance with the provisions of § 36.18. If the City Council determines that the proposed unit is inappropriate, it shall so notify the affected parties. Upon receipt of notification, the petitioner may amend its petition, in which event the applicable procedures of this section shall apply.

(I) If an employee organization other than the one filing the original petition for representation desires to represent the same unit and wishes to be on the same election ballot, it shall file a petition meeting the requirements of this section within 15 days of the posting of notice by the Finance Director/Recorder under division (C); provided, the petition need be supported by only 40% of the employees in the unit.

(Ord. 867, passed 5-12-75)

36.18 REPRESENTATION ELECTION PROCEDURE.

(A) (1) Upon receiving the City Council’s order to hold a representation election, the Finance Director/Recorder shall schedule an election within 30 days and shall post a notice of the election in the work area of the appropriate unit 15 days prior to the election.

(2) The notice shall include:

(a) A description of the appropriate unit;

(b) The name of the employee organization or organizations which are candidates for election;

(d) The procedure to be followed.

(3) Only employees within the appropriate unit shall be eligible to vote in the election. Voting shall be by secret ballot and shall provide an opportunity to vote for any of the candidates on the ballot or for "no representation." Absentee ballots may be used in connection with representation elections in the form and manner as may be prescribed by the Finance Director/Recorder.

(B) An employee organization shall be certified by the Finance Director/Recorder as the representative of the appropriate unit following an election if the organization has received the vote of a majority of all the employees in the appropriate unit for which the election is held.

(C) (1) Each party may be represented at the polling place by one observer. Observers may challenge votes. When a voter’s eligibility is called into question, the ruling shall be temporarily reserved. The ballot will be marked as "challenged," together with the reason for the challenge.

(2) The Finance Director/Recorder may also challenge anyone whose name is not on the eligibility list. When all ballots are in, the Finance Director/Recorder shall tally the ballots. The official observers may be present when the tally is made. Unless the challenged ballots are sufficient in number to affect the results of the election, they will not be considered further. If challenged ballots are sufficient in number to affect the results of the election, an investigation shall be made by the City Manager as to the validity of each challenge.

(3) The results of the election shall be certified by the Finance Director/Recorder to the parties.

(D) At least one year shall elapse following an election by which an organization has been certified as the majority representative or by which the employees have chosen "no representation" before a petition for representation and certification may be filed covering substantially the same group of employees. At least three months shall elapse before a petition may be filed if neither "no representation" nor an organization receives a majority vote as required by division (B).

(E) Election costs shall be shared equally by the city and the employee organizations whose names appear on the ballot.

(Ord. 867, passed 5-12-75)

36.19 DURATION OF CERTIFICATION

When an employee organization has been certified as the majority representative of an appropriate unit, certification shall remain in effect for one year from the date thereof. After one year the organization is subject to the affirmation procedures provided in § 36.20.

(Ord. 867, passed 5-12-75)

36.20 AFFIRMATION PROCEDURE

(A) A petition, alleging that a certified employee organization is no longer the majority representative of employees in an appropriate unit, may be filed with the Finance Director/Recorder by an individual employee, a group of employees or their representatives, or an employee organization.

(B) The petition may be filed at any time after completion of the certified employee organization’s first year of certification; provided, however, the City Council may prescribe additional restrictions on the time of filing a petition during the terms, if any, of approved memorandums of understanding.

(C) The affirmation petition shall be in a form substantially similar to the form prescribed for petitions under the provisions of § 36.17 supported by signatures of at least 50% of the employees represented by the certified employee organization and indicating that they do not desire to be represented by the currently certified employee organization. The affirmation petition may be accompanied by a petition for certification.

(D) If the City Manager determines that petition requirements have been met, the Finance Director/Recorder shall arrange for an election which shall be held in substantial accord with the election provisions of § 36.18 to determine whether the certification of the currently certified organization should be affirmed. The organization shall be decertified if it fails to receive the affirmative vote of a majority of the employees in the appropriate unit currently represented by the organization.

(E) An affirmation election may be held concurrently with a representation election where the City Council considers it appropriate to do so, in which event a combined ballot may be used.

(Ord. 867, passed 5-12-75)

36.21 IMPASSE PROCEDURE

(A) In the event that the city representative and the employee representative are unable to agree on the terms of a "memorandum of understanding" by February 15 of each year, then the City Council, upon petition of either party, may request mediation services as provided by the state of Oregon’s Public Employee Relations Board or by some other mutually agreed upon third party. If both parties agree, mediation services may be waived and the matters in dispute submitted directly to the fact finding process or directly to the City Council for final determination after a hearing on the merits of the dispute.

(B) If both parties waive mediation, or if the City Council fails to request mediation services, or if the impasse procedure in division (A) is not successful by March 1 of each year, a three person fact finding committee shall be formed as follows:

(1) The city representative and the employee representative each shall submit names of three persons within three days.

(2) The city representative shall, within one day, remove one name from the employee representative’s list; and then the employee representative shall, within one day, remove one name from the city representative’s list. After each party has removed a total of two names in this alternating fashion, the remaining two names shall become members of the fact finding committee, and they shall mutually agree upon a third member who shall serve as chairperson.

(3) If after three days following their selection the two members of the fact finding committee cannot mutually agree upon the third member, they shall obtain a list of three members of the American Arbitration Association who reside in Oregon or another list as is mutually acceptable to the two members. The designate of the city representative shall have two days to remove one name, and the designate of the employee representative shall have one additional day to remove one of the two remaining names. The remaining person shall become the third member and chairperson of the fact finding committee.

(C) If the City Council and both parties agree, one of the following may be substituted in lieu of the fact finding committee:

(1) The mediator may be requested by the City Council to serve as sole fact finder.

(2) The American Arbitration Association may be requested by the City Council to provide fact finding services.

(3) The Public Employee Relations Board may be requested by the City Council to provide the city with a list of seven persons from its list of fact finders. Upon receipt of the list, the city representative shall remove one name, and then the list shall be sent to the employee representative and he shall remove one name. After each party has removed a total of two names in this alternating fashion, the remaining three names shall become the fact finding body.

(D) If both parties agree, fact finding procedures may be waived and the matters in dispute submitted directly to the City Council for final determination after a hearing on the merits of the dispute.

(E) After the fact finder has obtained enough information from the parties in the controversy, he shall then, based on the background he has on the issue and any other additional information, present a written statement of facts and his recommendations for resolving the dispute to the parties involved within 15 days after his selection.

(F) If the parties involved in the dispute are unable to reach agreement within five days of receipt of the fact finder’s recommendations, the fact finder shall forward his recommendations to the City Council. The City Council shall conduct a hearing within 15 days from the date of filing the recommendations to allow the city representative or the employee representatives an opportunity to present their positions with respect to the fact finder’s recommendations. Upon conclusion of the hearing, the City Council shall make a final determination.

(G) After the City Council makes the decision, the affected parties shall incorporate that decision into the "memorandum of understanding" to be submitted to the City Council for its approval.

(H) Any time limit provided in this section may be extended by mutual agreement of both parties.

(I) The expenses of mediation and fact finding shall be shared equally by the parties. The city shall furnish meeting space when requested for the proceedings.

(Ord. 867, passed 5-12-75)

36.22 TIME OFF FOR EMPLOYEE REPRESENTATIVES.

(A) Reasonable time off without loss of pay shall be limited to not more than three employees serving as authorized representatives of certified employee organizations when formally meeting during regular working hours with the city representative on matters within the scope of consultation. Only those employees whose active participation is necessary in the conduct of meetings shall be authorized paid time off.

(B) No employee representative shall leave his duty or work station or assignment for purposes of the employee organization without specific approval of the department head or other authorized city management official. Any meeting on city time is subject to scheduling by the City Manager in a manner consistent with operating needs and working schedules.

(C) Nothing provided herein, however, shall limit or restrict the City Manager from scheduling meetings before or after regular duty or work hours under appropriate circumstances.

(Ord. 867, passed 5-12-75)

36.23 AVAILABILITY AND USE OF DATA.

(A) The city will make available to certified employee organizations nonconfidential information pertaining to employer employee relations as is contained in the public records of the city. The information shall be made available during regular office hours in accordance with applicable city rules and regulations. Information which shall be made available to certified employee organizations includes regularly published date covering subjects under discussion. Data collected on a promise to keep its source confidential may be made available in statistical summaries but shall not be made available in form as to disclose the source.

(B) Nothing in this chapter shall be construed as to require disclosure of records that are:

(1) Records pertaining to pending litigation to which the city is a party, or to claims or appeals which have not been settled;

(2) Personnel, medical or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy; and

(3) Working papers or memoranda which are not retained in the ordinary course of business or any records where the public interest served by not making the record available clearly outweighs the public interest served by disclosure of the record.

(C) To facilitate meaningful consultations, the city representative and employee representatives may agree to use certain common sources of information, such as salary surveys of private and public employers. Mutually agreed upon data collected by either party shall be made available to the other. All data used shall conform to the salary policy and other similar policies adopted by the City Council.

(Ord. 867, passed 5-12-75)

36.24 EMPLOYEE RIGHTS.

Employees of the city shall have the right to form, join and participate in the activities of employee organizations of their own choosing pursuant to the provisions of this chapter for the purpose of representation on matters of employee relations other than those excluded herein. City employees also shall have the right to refuse to join or participate in the activities of any employee organization and shall have the right to represent themselves individually in their employment relations with the city. No employee shall be interfered with, intimidated, restrained, coerced or discriminated against by the city or by any employee organization because of his exercise of these rights.

(Ord. 867, passed 5-12-75)

36.25 CITY RIGHTS.

(A) Responsibility for management of the city and direction of its work force is vested in the City Manager and his department heads. In order to fulfill this responsibility the rights of the city include, but are not limited to, the exclusive right to:

(1) Determine the mission of its constituent departments, commissions and boards;

(2) Set standards of services;

(3) Determine the procedures and standards of selection for employment and promotion;

(4) Direct its employees;

(5) Take disciplinary action;

(6) Relieve its employees from duty because of lack of work or for other legitimate reasons;

(7) Maintain the efficiency of governmental operations;

(8) Determine the methods, means and personnel by which government operations are to be conducted, including the right to contract out for goods and services;

(9) Determine the content of job classifications;

(10) Take all necessary action to carry out its mission in emergencies; and

(11) Exercise complete control and discretion over its organization and the technology of performing its work.

(B) The city retains all rights, powers and privileges not expressly specified in division (A) above and not included in § 36.24.

(Ord. 867, passed 5-12-75)

36.26 RESTRICTIONS.

(A) Confidential and management employees, as defined and designated pursuant to § 36.03, who choose to remain or to become members of an employee organization, shall not:

(1) Serve as officers of the employee organization;

(2) Serve on any committee of the employee organization which deals with matters within the scope of consultation; or

(3) Serve as a representative of the employee organization before the City Council.

(B) Confidential and management employees shall not:

(1) Be included in any appropriate unit determined pursuant to § 36.17; or

(2) Become a member of or serve as an officer or representative of any certified employee organization.

(Ord. 867, passed 5-12-75)

36.27 GRIEVANCES.

All grievances shall be processed in accordance with the applicable adopted personnel rules and regulations of the city.

(Ord. 867, passed 5-12-75)

36.28 CONSTRUCTION.

(A) It is hereby declared that the subject of city employer employee relations as set forth in this chapter is a matter of local concern, that the provisions herein are adopted pursuant to the authority of the Charter of the city, and that the provisions herein are exclusive and supersede and take precedence over any state statute now or hereafter enacted relating to city employer/employee relations, employee consultation or collective bargaining for city employees.

(B) The rights, powers and authority of the City Council in all matters, including the right to maintain any legal action, shall not be modified or restricted by this chapter.

(Ord. 867, passed 5-12-75)

EMPLOYEE ORGANIZATIONS

36.40 CONDUCT OF BUSINESS.

(A) Reasonable time off without loss of pay and access to employee work locations shall be granted officers of 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.

(B) Officers or representatives shall not enter any work location without the consent of the department head. Access shall be restricted so as not to interfere with the normal operations of the department or with established safety or security requirements.

(C) Solicitation of membership and activities concerned with the internal management of an employee organization such as collecting dues, holding membership meetings, campaigning for office, conducting elections and distributing literature shall not be conducted during regular city working hours.

(Ord. 867, passed 5-12-75)

36.41 USE OF CITY FACILITIES.

Employee organizations may use, in accordance with established rules applicable to other groups within the community, city facilities during non work hours for meeting of city employees, provided space is available. Requests for use of facilities not available to the public generally shall be in writing, state the purpose or purposes of the meeting and be approved by the City Manager. The city reserves the right to assess reasonable charges for the use of facilities.

(Ord. 867, passed 5-12-75)

36.42 USE OF CITY BULLETIN BOARDS

Employee organizations may use portions of city bulletin boards under the following conditions:

(A) All materials must be dated and must identify the organization. In the event that posted materials, in the opinion of the department head, interfere with the proper functioning of the department, the department head shall bring the matter to the attention of the City Manager. The City Manager may, after discussing the matter with the representative of the employee organization, cause the material to be removed.

(B) The city reserves the right to determine where bulletin boards shall be placed and what portion of them are to be allowed to employee organizations materials.

(C) An employee organization that does not abide by these rules will forfeit its right to have materials posted on city bulletin boards.

(Ord. 867, passed 5-12-75)

36.43 PEACEFUL PERFORMANCE OF CITY SERVICES.

In order that the vital performance of city services can be maintained, no employee shall strike or recognize a picket line of a labor organization while in the performance of his official duties. The following shall apply:

(A) Participation by any employee in a strike or work stoppage is unlawful and shall subject the employee to disciplinary action, up to and including discharge.

(B) No employee organization, its representatives or members shall engage in a strike or work stoppage of any kind.

(C) If a certified employee organization, its representatives or members engage in a strike or work stoppage of any kind, in addition to any other lawful remedies or disciplinary actions, the City Council may suspend or revoke the recognition or certification granted to employee organizations and prohibit the use of bulletin boards, prohibit the use of city facilities and prohibit access to former work or duty stations by the organization.

(D) As used in this section, STRIKE or WORK STOPPAGE means the concerted failure to report for duty, the wilful absence from one’s position, the stoppage of work, or the abstinence in whole or in part from the full, faithful performance of the duties of employment for the purpose of influencing or coercing a change in the conditions of compensation, or the rights, privileges or obligations of employment.

(E) The city may petition the appropriate courts for an injunction or other appropriate relief if a strike, work stoppage or recognition of a picket line in violation of this section is occurring or is about to occur. The city may also hire new permanent or temporary employees or transfer other city employees to perform the services and duties of those employees engaged in a strike or work stoppage in violation of this section.

(Ord. 867, passed 5-12-75)