CC Resolution No. 04-269RESOLUTION NO. 04-269
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
ADOPTING A MEMORANDUM OF UNDERSTANDING
BETWEEN THE CITY OF CUPERTiNO AND OPERATiNG ENGINEERS LOCAL
NO. 3, AFL-CIO
WHEREAS, meetings have been held over proposals concerning wages, hours, and other
terms and conditions of employment between representatives of the City and of Operating
Engineers Local No. 3, the recognized representative of the Public Works Employees Unit; and
WHEREAS, the agreement mutually obtained through these meetings has been recorded
in a Memorandum of Understanding to be signed by both parties, which memorandum has been
submitted to the City Council for approval.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino
does hereby adopt the attached Memorandum of Understanding between the City of Cupertino
and Operating Engineers Local Union No. 3.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino
this 17th day of February 2004 by the following vote:
VOTE MEMBERS OF THE CITY COUNCIL
AYES: James, Kwok, Sandoval, Wang
NOES: None
ABSENT: Lowenthal
ABSTAIN: None
ATTEST:
APPROVED:
City Clerk
'l~ayor, City of
MEMORANDUM OF UNDERSTANDING
City of Cupertino
and
Operating Engineers Local No. 3
February 18, 2004 - June 30, 2004
Table of Contents
Category
Definitions
Union Recognition
Non-Discrimination
Representation Rights
Agency Shop
City Rights
Permanent Transfers
Notification of Proposed Change
Hours of Work: Overtime
Compensation for Services
Public Employees Retirement Contribution
Health and Welfare Benefits
Insurance
Paid Absences
Sick Leave Conversion
Work Furlough
Safety Equipment
City Sponsored Recreation Programs
Training and Tuition Reimbursement
Temporary Disability Benefits
Disciplinary Action
Layoffs
Reinstatement
Grievance Procedure
Impasse Procedure
Section
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8.
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Page Number
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Category
Continuation of Benefits
Separability
Ratification
Term
Elmwood Work Furlough Program
Salary Range
Section
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Attachment A
Attachment B
Page Number
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2.1 The City shall promptly notify the Union of its decision to implement any and all new
classifications pertaining to work of a nature performed by employees in the bargaining
unit.
SECTION 3: NON-DISCRIMINATION
In accordance with the City of Cupertino Equal Oppommity in Employment Plan, all
employees shall have equal opportunity in employment without regard to race, religion, political
affiliation, national origin, sex, handicap, sexual orientation or age.
SECTION 4: REPRESENTATION RIGHTS
4.1 The City and Union shall not interfere with, intimidate, restrain, coerce or discriminate
against employees of the City because of their exercise of representation right under
Section 3502 of the Government Code.
4.2 Business Representatives of the Union may have access to any employee or employees
presenting a grievance and employees have the right to have the Union Business
Representative represent him or her at all stages of disciplinary action.
4.3 The Union may select two (2) employees from the Service Center as Union Steward.
4.4 In addition to his/her regularly assigned work, the Union Steward shall be permitted
reasonable time during working hours to notify the Business Representative through the
most rapid means appropriate and available of any alleged violations of this
Memorandum. Employees are authorized to contact their Union Steward during working
hours to report an alleged grievance or violation of this Memorandum.
4.5
The City agrees to deduct on a bi-weekly basis the monthly Union membership dues or
appropriate agency fee fi.om the earned wages of each employee within the bargaining
unit upon receipt of signed authorization to do' so from each employee concerned.
Terminations and other personnel changes affecting dues payment will be provided to the
Union by the City.
4.6 The City and the Union desire to work towards a good working environment which
includes productivity and respect for each individual regardless of classification or
representation.
SECTION 5: AGENCY SHOP
Except as provided otherwise herein, the provisions of this Section shall apply to all
employees of the City in all classifications represented by the Union when on paid status,
except those mutually designated classifications and mutually designated employees who
are employed for no more than 1000 hours per fiscal year. The provisions of this Section
shall not apply to individual employees who have been properly and finally determined to
be management or confidential employees.
For the term of this Agreement, all current and future employees of the City as
described above, except as set forth below, shall, as a condition of continued employment,
become and remain a member of the Union or, in lieu thereof, shall pay a service fee to the
Union. The service fee payment shall be established annually by the Union.
5.1
Employee Rights
5.1.1
The City and the Union recognize the right of employees to form, join,
and participate in lawful activities of employee organizations and the
equal, alternative right of employees to refuse to form, join, and
participate in employee organizations. Neither party shall discriminate
against an employee in the exercise of these alternative rights.
5.1.2
Accordingly, membership in the Union shall not be compulsory. An
employee has the right to choose, either; to become a member of the
Union; or, to pay to the Union a fee for representation services; or, to
refrain from either of the above courses of action upon the grounds set
forth in Section 5.6 below.
5.2
Employee Selection
5.2.1
Any regular employee, must, within thirty (30) days of their employment
with the City, submit to the City either a signed authorization to deduct
dues as a member of the Union; or, sign and deliver to the City a written
assignment authorizing deduction of the properly established agency fee
as defined in Section 5.3.1 below, subject to the conditions set forth in
Section 4.5 of this MOU. Upon receipt of the duly completed
authorization, the City will deduct from the pay of the employee and pay
to the Union the normal and regular monthly fee. If the employee is
granted an exception from these fees based on a religious exception as
explained in Section 5.6 below, the employee must designate a charity
from Section 5.6.2 to which the appropriate amount will be paid through
payroll deduction.
5.2.2
If a person fails to make any of the designations set forth above within the
thirty (30) day period, they will be given notice by the City that the
Agency Fee deduction will be made beginning with the first full pay
period following the expiration of the thirty (30) day period. The City
and the Union agree that the Agency Fee shall be paid in exchange for
representation services necessarily, performed by the Union in it's
capacity as exclusive bargaining agent and in conformance with it's duty
of fair representation of said employee who is not a member of the Union.
5.2.3
Any regular employee who makes a designation to pay the Agency Fee
within the above thirty (30) day period may at anytime thereafter join the
Union and provide to the City a signed authorization to deduct dues as a
member of the Union in lieu of the Agency Fee.
5.2.4
5.2.5
5.3
5.3.1
5.3.2
5.4
5.5
During the last thirty (30) days of this Memorandum of Understanding
between the City of Cupertino and Operating Engineers Local Union No.
3, any employee who is a member of the Union, may, by written notice to
the Municipal Relations Officer or designee, resign such membership and
change their status to the Agency Fee or exempt category in aceordance
with the provisions of this article.
The Union specifically agrees that the provisions of Section 5.7 of this
Section apply to any claims against the City or any of its agents or
employees regarding the payroll deduction of Agency Fee.
Definition of Agency Fee
The Agency Fee collected from non-member bargaining unit employees
pursuant to Section 5.2.1 of this Memorandum of Understanding shall be
limited to the Union's (local, state, and national) annual costs for
representing such employees. Such amount shall be those amounts for
full-time employees as are certified to the Municipal Employee Relations
Officer/Human Resources Manager or designee, from time-to-time by the
designated officer of the Union as the Agency Fee.
The Union certifies that this "representation fee" includes only those costs
actually incurred by the Union in representing employees, who are not
also members of the Union, in matters specifically and directly connected
with the enforcement and administration of this Memorandum of
Understanding, the adjustment of grievances, and litigation pertaining
thereto. The Union further certifies that this "representation fee"
excludes ali other costs, fees, and adjustments including, but not limited
to: Union fines, back dues, initiation fees, or any other charge required as
a condition of Union membership; any and all amounts which may be
used, directly or indirectly, for political or ideological activities, any and
all amounts which do not constitute costs actually incurred by the Union
in representation matters specifically and directly connected with the
bargaining of, enforcement and administration of this Memorandum of
Understanding, the adjustment of grievances, and litigation pertaining
thereto. The Union specifically agrees that the provisions of Section 5.7 of
this Section apply to any claims against the City or any of it's agents or
employees regarding the appropriateness of the amount of any
"representation fee" set forth in this Section.
Exceptions
The provisions of Section 5 shall not apply to non-benefited part-time
employees.
Financial Reporting
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The Union shall submit to the City a detailed written financial report of
it's financial transactions in the form of a balance sheet and an operating
statement, certified as to accuracy by the Union's Executive Secretary.
Each year such reports shall be verified and submitted in writing to the
City's Human Resources Manager by the Union within 60 days of July 1.
5.5.2
The Union will provide a reasonably prompt opportunity to challenge the
amount of the fee before an impartial decision maker not chosen by the
Union and will make provision for an escrow account to hold amounts
reasonably in dispute while challenges are pending.
5.6
Employees Exempted from Obligation to pay the Union
5.6.1
Any employee shall be exempted from the requirements of Section 5.2
above if such employee is a member of a bona fide religion, body or sect
which has historically held conscientious objections to joining or
financially supporting a public employee organization and is recognized
by the National Labor Relations Board to hold such objections to Union
membership. Such employee shall, upon presentation of membership and
historical objection satisfactorily to the City and the Union, pay the
required service fee to a recognized non-profit charity.
5.6.2
Such exempt employee shall, as outlined in Section 5.6.1 above, as an
alternative to payment of an Agency Fee to the Union pay an equal
amount equivalent to such Agency Fee to either:
a) The United Way;
b) Combined Health Agencies Drive (C.H.A.D.);
c) Any charity jointly agreed upon by the City and the Union. Such
charities cannot be affiliated in any manner with the Union, nor can
such charity be related to an established religious organization.
5.7 Hold Harmless
The Union shall hold the City harmless and shall fully and promptly reimburse the
City for any reasonable legal fees, court costs, or other litigation expenses incurred
responding to or defending against any claims against the City or any of it's agents, or
employees, in connection with the interpretation, application, administration or
enforcement of any section in the Memorandum of Understanding pertaining to Agency
Fees.
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5.8
Expiration Date of Agency Fee Provisions
It is agreed and understood by the parties to this memorandum of Understanding
that the provisions, rights and obligations herein pertaining to payment of any Agency Fee
and dues deduction shall not survive beyond the term of this Memorandum of
Understanding, and shall accordingly expire at the expiration of this Memorandum,
provided however that, pursuant to Government Code Section 3502.5, this Section 5 may
be rescinded in its entirety by a majority vote of all the employees in the unit covered by
this Memorandum of Understanding. It is understood and agreed that: (I) a request for
such a vote must be supported by a petition containing the signatures of at least thirty (30)
percent of the employees covered by this Section; (2) such vote shall be by secret ballot; and
(3) such vote may be taken at any time during the term of this Memorandum of
Understanding, but in no event shall there be more than one vote taken during such term.
SECTION 6: CITY RIGHTS
The rights of the City include, but are not limited to, the exclusive right to determine the
mission of its constituent departments, commissions and boards; set standards of services;
determine the procedures and standards of selection for employment and promotion; direct its
employees; take disciplinary action; relieve its employees from duty because of lack of work or
for other legitimate reasons; maintain the efficiency of governmental operations; determine the
content of job classifications; take all necessary actions to carry out its mission in emergencies;
and exercise complete control and discretion over its organization and the technology of
performing its work.
The City shall give forty-five (45) days prior written notice to the Union of the intent and
anticipated impact or proposed contracts for work now being done or new work that could be
done by job classifications represented by the Union.
SECTION 7: PERMANENT TRANSFERS
Employees shall be notified in writing of any permanent transfer f~om one division to
another ten (10) working days prior to the effective date.
SECTION 8: NOTIFICATION OF PROPOSED CHANGE
City agrees to serve written notice upon the Union of any intent to change or alter any
ordinance, rule, resolution or regulation affecting the recognized employee organization on
matters relating to the scope of representation. Upon receipt of the written notification of
intended change, the parties will meet at a date not less than fifteen (15) days following receipt
of intent. After notification, the parties may mutually agree that the Meet and Confer provisions
are satisfied by the written notice.
In cases of emergencies when the City determines that an ordinance, rule, resolution or
regulation must be adopted immediately without prior notice of meeting with the Union, the City
shall provide such notice and opportunity to meet at the earliest practical time following the
adoption of such ordinance, rule, resolution regulation consistent with the agreement.
SECTION 9: HOURS OF WORK: OVERTIME
9.1 Hours of Work Defined
Hours worked shall include all time not under the control of the employee whether such
hours are worked in the City's work place, or in some other place where the employee is carrying
out the duties of the City.
The normal work week shall be 40 hours in seven days with two consecutive days off.
9.2 Schedules
It will be a management responsibility to schedule the hours of work for each employee
covered by this agreement. Except in unforeseen circumstances, changes in an employee's hours
of work will be made after ten days prior notice.
Volunteers will be sought for any change in regular work hours to a shift beginning after
9:00 a.m. If there are no volunteers, the regular employee with the least seniority will be
assigned for a maximum of twelve months. The city will attempt to make four-month
assignments when possible.
Non-emergency work will not be scheduled for a weekend when either Friday or Monday
is a recognized holiday. (See Section 14.1 - recognition of Saturday and Sunday holidays.)
9.3 Rest Periods
Each employee shall be granted a rest period of fifteen minutes during each work period
of more than three hours duration. No wage deduction shall be made nor time off charged against
employees taking authorized rest periods, nor shall any rights or overtime be accrued for rest
periods not taken.
9.4 Overtime
Overtime shall be defined as any work in excess of Section 9.1 above. Holidays and paid
time off shall count toward the accumulation of the work week.
Overtime work for the City by an employee shall be authorized in advance by the
Department Head or their designee. In the event of unforeseen circumstances, overtime shall be
approved after the work is completed.
9.5 Payment of Overtime
All approved overtime work performed by employees shall be paid at the rate of one and
one-half (1 1/2) times the normal rate of pay. Work performed on regularly scheduled days off,
City Holidays or during an employee's scheduled vacation shall be considered to be overtime
and paid accordingly.
9.5.1 Meal Periods
A paid meal period and a $12 meal allowance shall be provided when an employee works
more than three consecutive hours immediately following the end of a regular workday. In
addition, after four additional consecutive hours of overtime work, a paid meal period and a $12
meal allowance shall be provided. A meal period shall be 40 minutes.
9. 6 Compensatory Time Off
At the employee's discretion, compensatory time (CTO) may be granted for overtime
worked at the rate of time and one-half for each hour worked in lieu of compensation in cash.
Employees who have previously earned CTO, shall be allowed to schedule CTO at the
employee's discretion provided (1) that pr/or supervisory approval has been obtained and (2) the
request is made in writing.
CTO may be accrued for up to 80 hours. Any CTO earned exceeding 80 hours will be
paid at the rate of time and one-half.
An employee may exercise his/her option one time each calendar year to convert any/or
all accumulated compensatory time to cash.
9. 7 Leave Accruals
An employee shall not accrue vacation or sick leave credits during a pay period if off
without pay for more than 40 hours during said pay period.
SECTION 10: COMPENSATION FOR SERVICES
10.1 Salary Range
Approximate monthly salary ranges as listed on Attachment B will apply for
each classification effective at the beginning of the pay period in which July
1, 2003 occurs.
The City agrees to pay a 10% differential to employees assigned to lead
responsibilities for the work furlough program. Other employees assigned to the
work furlough program will receive a 5% pay differential.
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c. The City agrees to conduct a compensation (salary and retirement only) survey in
2004. The following Santa Clara County cities will be used in the compensation
survey:
Campbell Los Gatos Mt. View Santa Clara
Gilroy Milpitas Palo Alto Saratoga
Los Altos Morgan Hill San Jose Sunnyvale
d. Comparable classifications must be found in at least six (6) cities for a benchmark
classification to be considered.
eo
The City of Cupertino will place in the top six cities in compensation (salary &
retirement) as listed by the Bay Area Employee Relations Service where
applicable as of 05/31/04, using eomparables from Milpitas at 37.5
hours/week and Los Gatos at Parks & Maintenance Worker Trainee. Any
benchmark increase for fiscal year 2004/05 will be waived by OE3.
Any compensation adjustment for a benchmark classification (the two underlined
classifications below) to place in the top six cities will also be provided to
classifications related to the benchmark as set forth below:
Equipment Mechanic
Maintenance Worker I
Maintenance Worker II
· Maintenance Worker III
Street Lighting Worker
10.2 Bilingual Pay Differential
ao
An employee who uses bilingual skills as approved by his/her supervisor and
who passes the required language proficiency test(s) is eligible to receive a
7.5% bilingual pay differential only for the work time during which
employee uses bilingual skills. For payroll reporting purposes, the 7.5%
bilingual pay differential will be recorded with a 15 minute minimum.
10.3 Out-of-Class
Temporary assignments to a position assigned to a classification in a higher pay grade
shall be compensated at a rate seven and one half percent greater than that of the regular
position, for the number of hours so assigned.
The temporary assignment shall be authorized in writing by the Supervisor or
Superintendent of Public Works. No employee shall work in a higher classification without
written notice. A copy of the authorization shall be submitted with the timesheet for the affected
pay period. No increase in the wage rates shall apply in instances of Maintenance Worker I
positions temporarily assigned to positions of Maintenance Worker II classification.
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10. 4 Standby Compensation
Employees who are required to be available during their off-shift hours for possible recall
for emergency service shall be compensated at the following rate per 128 hours so assigned.
July 1, 2003 - $200.00
Minimum manning and skill qualifications for standby assignment shall be determined by
the City. Assignment of such standby duty shall be rotated on an equal basis among all qualified
employees who reside in an area that provides a response time of 30 minutes or less.
10.5 Callback Pay
If any employee is called or required to report for assigned emergency or other duties
during the period of the close of the regular work day and the start of the next following work
day, compensation shall be paid at one and one-half (1 1/2) times the normal rate of the period
the employee is required to be available at the work station, and for travel time in connection
therewith to and from the employee's customary residence at one and one-half (1 1/2) times.
Under such circumstances a minimum payment will be made equivalent to two hours at one and
one-half (1 1/2) times the normal rate of pay.
I 0. 6 Mileage Reimbursement
Employees who are required to use their personal vehicles for City Business shall be
reimbursed for such use at the rate established by the IRS.
10. 7 Probationary Period/Salary Advancement
The probationary period shall be twelve months of paid employment. Employees will
advance to the next step of the salary range upon successful completion of the probationary
period. Advancement to subsequent salary steps will be based on merit (satisfactory evaluation)
and are scheduled annually thereafter.
10.8 Special Skills Compensation - Qualified Applicator's Certificate/Welding
Effective July 1, 2000 an employee possessing a valid QAC will be eligible for five
percent (5.0%) premium pay for each hour worked when assigned to tasks requiring
possession of the QAC.
An employee possessing a valid Certificate of Welding, qualified in mild steel, pipe,
stainless steel, and aluminum, will be eligible for five percent (5.0%) premium pay
for each hour worked when assigned to perform welding on the following "public
liability" and/or "public safety" tasks.
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a. Playground equipment
b. Trailer hitches
c. Trailers
d. Welding and installing cranes
e. Water tanks
f. Other welding tasks assigned
2. Special Skills Compensation - Assigned Use of Class B Driver's License
An employee is eligible to receive a five percent (5%) premium pay when assigned to
operate/drive a vehicle requiring a commercial Class B driver's license.
10.9 Flexible Staffing- Maintenance Worker I/II
An employee shall be eligible to advance from Maintenance Worker I to Maintenance
Worker II after one year of satisfactory service at the maximum salary step of Maintenance
Worker I and with the recommendation of the department head.
SECTION 11: PUBLIC EMPLOYEES RETIREMENT CONTRIBUTION
The City agrees to pay the employee's contribution rate to the Public Employees
Retirement System not to exceed 7.0% of applicable salary. The City will pay the increased FY
2003/04 CalPERS retirement cost of 1.895%. This does not obligate the City to pay any
additional CalPERS retirement costs above the 1.895% Increase now or in the future.
SECTION 12: HEALTH AND WELFARE BENEFITS
The City agrees to make available a plan of comprehensive health and welfare benefits
for eligible employees, as well as those provided by the Operating Engineers Health and Welfare
Trust Fund for Northern California. Any such benefits program must have the continued
approval of the Board of Administration, Public Employees Retirement System. For each
participating employee, the City shall contribute toward premium cost the following amount per
month during the term of this agreement.
July 1, 2003 - $762.50
Required contribution amounts exceeding the premium contribution of the City are the
responsibility of the employee. In instances where the premium for the insurance plan selected is
less than the City's maximum premium contribution, the difference will be added to the
employee's bi-weekly compensation during the first two pay periods of each month. An
employee may elect to have excess medical continued as deferred compensation at the
employee's discretion.
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SECTION 13: INSURANCE
13.1 Long Term DisabiliW
The City shall provide Long Term Disability (LTD) insurance for employees. LTD
income protection coverage shall be up to $7,000 of covered monthly salary. Employees may use
sick leave and/or vacation leave to supplement lost salary during the 60 day elimination period.
13.2 Life Insurance
The City shall provide life insurance and accidental death and dismemberment coverage
for each employee in the amount of five times annual salary to a maximum benefit of $250,000.
Employees may be eligible to purchase additional life insurance subject to the provisions of the
insurance policy.
13.3 Vision Care Insurance
The City shall provide Vision Care Insurance for employees and their dependents at a
cost of $13.74 monthly.
SECTION 14: PAID ABSENCES
14.1 Fixed Holidays
The City shall provide the following fixed paid holidays for eligible employees covered
by this agreement:
1. New Year's Day
2. Martin Luther King Day
3. Washington's Birthday
4. Memorial Day
5. Independence Day
6. Labor Day
7. Veteran's Day
8. Thanksgiving Day
9. Day Following Thanksgiving
10. Christmas Eve
11. Christmas Day
12. New Year's Eve
When a holiday falls on a Sunday, the following Monday shall be observed as the non-
work day. When a holiday falls on a Saturday, the previous Friday shall be observed as the non-
work day.
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Nothing contained herein shall preclude the right of the department head, with the
approval of the appointing authority, to reschedule work assigmnents or hours of work to meet
emergency situations and other administrative necessities caused by the observance of a holiday
or non-work day or period; provided, however, that all such affected employees are duly
compensated for said rescheduled work assignments.
14.1.1 Holiday Pay
In order for an employee to receive his/her regular pay for a holiday or designated non-
work day, work must be performed on the regular scheduled day before and the regular
scheduled day after the holiday or designated non- work day. Employees on vacation, injury
leave, approved short term leave of absence, with or without pay, or who submit satisfactory
evidence of personal illness shall be considered as working their regular schedule for pay
purposes.
14.2 Floating Holiday Leave
In addition to the foregoing paid holidays, eligible employees shall earn 20 hours of
holiday leave per year that may be used in increments of not less than one (1) hour. Holiday
leave shall be taken at the discretion of the employee subject to prior supervisory approval.
Each pay period an employee will be credited with .77 hours of holiday leave. Holiday
leave may be accumulated up to 40 hours.
14.3 Vacations
All employees, other than those holding temporary status, whose work assignment is of a
recumng nature of not less than a normal work week shall accrue vacation credits during the
calendar year. Accrued vacation may be taken with prior supervisory approval. An employee
may accrue no more vacation credit than twice the annual rate being eamed.
Upon termination of employment, unused vacation may not be used to extend final
employment date beyond the annual rate of vacation being earned.
Represented employees may convert, on a once per calendar year basis, unused vacation
time for payment subject to the following conditions:
1. The employee must have accrued vacation of at least 120 hours.
2. Any payments made for unused vacation will be subject to all appropriate taxes.
3. Minimum exchange will be 8 hours, maximum exchange will be 40 hours.
4. All changes are irrevocable.
14.3.1 Vacation Accrual Rate
Benefited full-time employee's accrue vacation in accordance with the following
schedule. Benefited employees who work less than a full-time work schedule accrue vacation in
accordance with the following schedule on a pro-rated basis.
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Service Time
Hrs of Accrual Per Pay
Annual Accruals
Maximum Accrual
Period
0 - 3 Years 3.08 80 Hours 160 Hours
4 - 9 Years 4.62 120 Hours 240 Hours
10 - 14 Years 5.24 136 Hours 272 Hours
15 - 19 Years 6.16 160 Hours 320 Hours
20 + Years 6.77 176 Hours 352 Hours
An employee may accrue no more vacation credit than twice the annual rate being
earned.
14.3.2 Full vacation leave shall be taken at one time by any one employee whenever
possible. The time during the calendar year at which an employee shall take his/her vacation
shall be determined with due regard for the wishes of the employee and particular regard for the
needs of the service. Vacation leave of less than the full amount earned may be taken with the
approval of the department head.
14.3.3 On termination of employment or on receiving a leave of absence of more than
three (3) months, an employee who has completed 12 months of continuous service with the City
shall be entitled to receive compensation for all earned but unused vacation accrued at the time
of termination or at the start of said leave of absence.
14.3.4 The accrual of vacation credits for those employees whose normal work week is of
not less than one-half (1/2) time shall be prorated according to the time of the recurring work
assignment as to the normal work week.
14.4 Sick Leave
All full time employees, other than those holding temporary status, shall earn eight (8)
hours per month sick leave time without limit on accumulation. Those regular employees
working less than full time (at least 20 hours per week) shall earn in one month the number of
hours of sick leave they would normally work in one day or the equivalent without limit on
accumulation. Employees absent without pay for any reason for more than forty (40) hours
during a calendar month shall not earn sick leave benefits for that month.
With proper notice and approval of the supervisor, sick leave shall be taken in periods of
no less than one-half (1/2) hour increments.
14.5 SICK LEAVE VERIFICATION
A Department Head or supervisor may require employees to furnish reasonable
acceptable evidence, including a doctor's certificate, to substantiate a request for sick leave if the
sick leave exceeds three (3) consecutive workdays. A supervisor may also require a doctor's
certificate or other form of verification where leave abuse is suspected.
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If it appears that an employee is abusing sick leave or is using sick leave excessively, the
employee will be counseled that the continued use of sick leave may result in a requirement to
furnish a medical certificate for each such subsequem absence for sick leave regardless of
duration. Continued abuse of leave or excessive use of sick leave may constitute grounds for
discipline up to and including dismissal.
14. 6 Personal Leave
The City shall allow accumulated sick leave to be'used for conducting personal business
which cannot be conducted outside regular working hours or for family medical emergencies.
14. 7 Bereavement Leave
Employees shall be granted paid bereavement leave not to exceed a total of 24 hours
upon the occasion of death of a close relative. Close relatives are defined as mother, father,
sister, brother, wife, husband, children, step-children, domestic partner, grandparent,
grandchildren, mother-in-law and father-in-law.
14. 8 Military Leave
Military leave shall be granted in accordance with the provisions of state law. All
employees entitled to military leave shall give their supervisor an opportunity, within the limits
of military requirements, to determine when such leave shall be taken.
14.9 Pregnancy Disability Leave
A pregnant employee is entitled to up to four months leave of absence without pay for
temporary disability resulting from pregnancy, miscarriage, childbirth or recovery therefrom.
Employees shall take unpaid leave of absence during such leave except that accrued vacation pay
and sick leave may be taken at the option of the employee. As with all other temporary
disabilities, a physician's certificate is required to verify the extent and duration of the temporary
disability.
An employee who plans to take a pregnancy leave must give a reasonable notice (not less
than 4 weeks) before the date she expects to take the leave and the estimated duration of the
leave until the employee is released by her physician to retum to work or for sixty (60) days,
whichever comes first.
14.10 Adoption Leave
Upon request, a leave of absence without pay for up to four (4) weeks will be granted to
adoptive parents. Accrued vacation pay and sick leave may be taken at the option of the
employee during this leave time. The City will pay health and welfare benefits at the same rate as
prior to the leave.
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!4.11 Absence Notification
An employee is expected not to absent herself/himself from work for any reason, other
than personal illness, without making prior arrangements with his/her supervisor. Unless prior
arrangements are made, an employee who, for any reason, fails to report for work must make a
sincere effort to immediately notify his/her supervisor or office personnel of his/her reason for
being absent.
If the absence, whether for personal illness or otherwise, is to cominue beyond the first
day, the employee must notify the supervisor or office personnel on a daily basis unless
otherwise arranged with his/her supervisor. In proper cases, exceptions will be made.
Any unauthorized absence of an employee from duty shall be deemed to be an absence
without pay and will be grounds for disciplinary action up to and including dismissal by the
department head. In the absence of such disciplinary action, any employee who absents
herself/himself for three (3) days or more without authorized leave shall be deemed to have
resigned. Such absence may be covered, however, by the department head by a following grant
of leave with or without pay when extenuating circumstances are found to have existed.
14.12 Catastrophic Leave
1. The City's catastrophic leave committee will establish a definition of catastrophic or
life-threatening illness. This committee will evaluate each individual case when it is
submitted to qualify to receive financial assistance. The only limitation is that the
employee must be the one facing the illness. The committee has the fight to ask the
applicant to submit further documentation from their physician to determine the
applicant does suffer a catastrophic or life-threatening illness.
2. Vacation hours and compensatory time off(CTO) hours are the only leave of absence
credits which may be donated in any pay period. A leave of absence transfer drive
will be held whenever necessary to provide for a minimum catastrophic leave bank
balance of 40 hours.
3. All benefited employees who have passed initial probation with the City will be
eligible to receive assistance. An employee does not have to be a contributor to be
eligible. An employee or their representative must complete a prescribed application
form together with supporting medical documentation to the Personnel Officer when
applying for funds.
4. A recipient must have used all of their available leave hours before he/she is eligible.
5. The minimum time an employee could receive funds would be one week. The
maximum amount is two months (LTD becomes available at this time).
14.13 Family Leave
The City of Cupertino will comply with State and Federal Family Leave Laws.
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SECTION 15: SICK LEAVE CONVERSION
15.1 Sick Leave is not vested under California statutory law.
15.2 At the time of termination, the value of non-vested hours is converted to an
incentive compensation bank equal to the employee's base hourly rate averaged over the
immediate past 60 complete months of employment multiplied by the total number of non-vested
hours.
15.3 If upon retirement an employee has a minimum of 320 non-vested hours, payment
shall be made for eighty-five percent (85%) of the value of the incentive compensation bank.
15.4 If upon resignation an employee has a minimum of 320 non-vested hours, payment
shall be made for seventy percent (70%) of the value of the incentive compensation bank.
15.5 Represented employees will have the option, subject to approval, of converting sick
leave to vacation leave on a two-to-one basis only if the employee's remaining sick leave
balance is 40 hours or more. The maximum allowable exchange will be 96 hours of sick time for
48 hours of vacation leave per calendar year. Minimum exchange will be eight hours sick leave
for four hours of vacation. An employee may convert sick leave in excess of 320 hours to
vacation leave on a one-to-one basis to a maximum of 48 hours and a minimum of four hours.
As a condition of converting sick leave to vacation, all employees will be required to use
at least one-half (1/2) of vacation accrued during the previous twelve (12) months.
Such conversion, either to exchange sick leave for vacation or vice versa shall be subject
to the following conditions:
a. All requests to exchange sick leave for vacation time shall be submitted in writing to
the department head at least 60 calendar days in advance of intended vacation
utilization.
b. The granting of such exchange and subsequent use will be at the discretion of the
department head.
c. If twelve (12) months have elapsed since approval of the exchange of sick leave for
vacation, and the employee has not been permitted the use of the converted vacation
time, (after submitting at least one written request for utilization) the employee will
have the right to re-convert the vacation time to sick leave in reverse ratio to the
original exchange. This exchange will be allowed only for previously converted sick
time to vacation and will not be permitted for regularly accrued vacation time.
d. If the employee's vacation accrual exceeds the maximum allowable accrual, he/she
will have the option to re-convert vacation time back to sick leave on a reverse ratio
basis. Such re-conversion shall be limited to previously converted sick leave/vacation
and may not exceed the amount necessary to reduce the accrued vacation to the
maximum allowable.
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Regularly accrued vacation time will not be eligible for this re- conversion to sick leave
and any regularly accrued vacation time accrued in excess of the maximum allowable will be
disallowed and not subject to utilization by the employee. '
NOTE: As used in this document, "reverse ratio" is intended to mean that the ration of
sick leave to vacation will revert to the original ratio at the time the initial exchange was
implemented.
SECTION 16: WORK FURLOUGH
During fiscal year 2003/04, all employees will take two unpaid work furlough days
on May 28, 2004 and a date to be announced during which City facilities will be closed.
SECTION 17: SAFETY EQUIPMENT
The City will pay on an annual basis the following amount to employees for the purchase
of steel toed safety shoes and rain gear during the term of this agreeanent:
July 1, 2003 - 400.00
The City shall retain the right to establish minimum safety and quality standards for the
steel toed safety shoes, clothing and safety equipment to be used while performing assigned
tasks.
The city will provide to the employee the following: hard hat, safety glasses, ear
protection, gloves, chain saw slip-on foot protection for employees who operate chain saws,
orange safety tee shirts and/or uniform shirts (11), sweatshirts, orange safety jacket (1
jacket every other year), and rain boots.
The city will continue to provide and launder shirts or overalls, which shall be worn
while carrying out the duties of the city.
It is the responsibility of the employee to have the required clothing and/or safety
equipment needed for the tasks assigned. If an employee should be at work without the
required clothing and/or safety equipment, that employee will not be paid until he/she is at
the worksite with the required clothing and/or safety equipment.
Hard hats must be worn when work performed by an employee is equal to, or above
his/her eye level.
Steel toed safety shoes must be worn at all times during the workday.
For new employees, the safety and equipment allowance will be prorated fi.om the date of
employment through the end of the fiscal year in which appointed (June 30).
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Any employee who, for whatever reason, terminates his/her employment with the City
before the beginning of the next fiscal year, shall return to the City the prorated value of said
safety equipment allowance.
SECTION 18: CITY SPONSORED RECREATION PROGRAMS
City employees shall have the privilege of enrollment in City sponsored recreation
programs at City residents' fee structure and in preference to non-residents wishing to enroll.
Each calendar year, benefited employees are eligible to receive up to $500 toward City of
Cupertino recreation services in accordance with the City's Recreation Buck Policies. Part-time
benefited employees will have the annual amount prorated based on number of hours worked.
SECTION 19: TRAINING AND TUITION REIMBURSEMENT
It is the intent of the City to recognize the value of training to its employees and to adopt
a training policy which will encourage employees to avail themselves of job related educational
opportunities that will advance their knowledge and interests in the direction of their career with
the City and by doing so to improve the Municipal Service. Employees who wish to seek
reimbursement from the City for training program costs shall provide a written request for
reimbursement to their immediate supervisor. The request shall include the type of program,
sponsoring organization or institution, meeting times and costs for such program.
A copy of the supervisor & superintendent's recommendation to the department head
shall also be provided to the employee. The employee will initial supervisor's comments and the
superintendent's recommendation prior to going to the department head for approval or denial.
Once a training program has been approved, any employee covered by this agreement
will be eligible for reimbursement. However, an employee shall not receive any reimbursement
until providing satisfactory proof of successful completion of the program.
19.1 Service Center Safety/Training Committee
The City and the Union agree to form a committee to jointly develop a safety/training
program to include, but not limited to: CPR, first aid, safe work habits and emergency response
roles. The City shall have two members and the Union shall have one member from each Service
Center Bureau.
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SECTION 20: TEMPORARY DISABILITY BENEFITS
Any employee sustaining an injury arising out of, or in the course of, the performance of
his job and who cannot work at the duties and responsibilities normally assigned to that job is
entitled to receive temporary disability payments as prescribed by state law.
20.1 Use of Sick Leave to Supplement Temporary Disability Payments
Any employee entitled to receive temporary disability payments may elect to supplement
such payments with an mount not to exceed that which is the employee's weekly eamings or
weekly earning capacity by use of sick leave payments to the extent that such sick leave has been
accrued to the employee's account. Sick leave hours used will subsequently be credited to the
employee's account by dividing the employee's base hourly rate into the amount that the
employee would have received in industrial injury pay.
SECTION 21: DISCIPLINARY ACTION
The City has a policy of progressive discipline. When the need for discipline arises, the
minimum disciplinary action will be taken commensurate with the seriousness of the offense
which has resulted in such discipline. The severity of the discipline will increase if corrective
action is not taken.
The first and/or most modest step of progressive d!scipline in the case of minor breaches
of the rules, regulations or policy is a verbal warning by the supervisor in charge. If the breach
continues, or the offense is more than minor, in the judgment of the supervisor, the employee
shall be notified through the issuance of an infraction notice. Such infraction notices shall remain
in the supervisor's file and be destroyed aRer twelve months.
Should the offense, in the judgment of the supervisor, be so serious or be of a continuous
nature, the supervisor shall recommend more serious reprimand measures or disciplinary action
to the Superintendent. These measures would include, but not be limited to, written reprimands,
suspensions and termination.
When the disciplinary action recommended by the supervisor, and with the concurrence
of the Superintendent, would impact "property rights" of the employee as defined by the courts
of California, it shall be referred to the Director of Public Works.
A written notice from the Director of Public Works to the employee at least five days
prior to any action, shall state the proposed disciplinary action. The notice shall also contain:
a. effective date and time of the proposed action
b. the alleged reason for the proposed action
c. the acts or omission which support the allegation
d. the materials upon which the allegation(s) are based and access to any other related
items
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e. a"Skelly" pre-disciplinary statement as to the rights of the employee to respond either
orally or in writing to the Director of Public Works prior to the effective date of the
proposed action; and the employee's right of appeal
f. a statement that the action will become final if the employee fails to respond to the
notice within the specified time
It is understood that an employee's request for a Skelly meeting will postpone the
effective date of action until the Skelly has been heard and the City has responded to issues
raised in the Skelly meeting. In this case the effective date will be five (5) days from the
Director's response.
SECTION 22: LAYOFFS
Layoffs of employees may be made by the appointing authority for lack of funds, lack of
work or for other similar and just cause.
The order of layoff shall be that which, in the opinion of the appointing authority, will
cause the least disruption of service to the City; taking into consideration seniority, performance
or whether the employee's skills can be replaced by the existing work rome.
The City will provide a 30 day notice to any employees identified for layoff.
The names of employees affected by layoff shall be placed on a recall list for a period of
two years in the reverse order of layoff and shall have the first opportunity for reinstatement.
Failure to respond within ten business days to a written notice of such opportunity shall
cause that name to be removed from the recall list.
SECTION 23: REINSTATEMENT
With the approval of the appointing authority, a regular or probationary employee who
has resigned with a good record or been recalled from a layoff action may be reinstated within
twenty-four months of the effective date of resignation to a vacant position in the same or
comparable classification they previously occupied. Upon reinstatement, the employee, for all
purposes, shall be considered as though they had received an original appointment.
SECTION 24: GRIEVANCE PROCEDURES
Definition and Procedure: a grievance is a dispute or difference of opinion raised by an
employee against the City involving the meaning, interpretation or application of the express
provisions of this Agreement or the Rules on Conditions of Employment or existing work rules.
A grievance shall be processed in the following manner:
Step 1: Any employee who has a grievance shall submit it designated as a grievance to
the employee's immediate supervisor, who is designated for this purpose by the City.
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The supervisor shall give the employee an oral answer within five (5) calendar days after
such presentation.
Step 2: If the grievance is not settled in Step 1 and the employee wishes to advance the
grievance to Step 2 of the grievance procedure, it shall be referred in writing to the employee%
next highest supervisor within five (5) calendar days af~er the supervisor's oral answer, or answer
due in Step 1, and shall be signed by both the aggrieved employee and the Union Representative
or Union Business Agent. The written grievance shall contain a complete statement of the facts,
the provisions or provisions of this Agreement or work rules which the City is alleged to have
violated and the relief requested. The supervisor or other person designated for this purpose shall
discuss the grievance within five (5) calendar days with the employee and the Union
Representative at a time mutually agreeable to the parties. If no settlement is reached, the
supervisor or other person designated for this purpose shall provide the employee a written
answer within five (5) calendar days following their meeting.
Step 3: If the grievance is not settled in Step 2 and the employee wishes to appeal the
grievance to Step 3 of the grievance procedure, it shall be referred in writing to the employee's
department head within five (5) calendar days after the supervisor's answer in Step 2 and shall be
signed by both the aggrieved employee and the Union Representative or Union Business Agent.
The department head shall discuss the grievance within five (5) calendar days with the employee
and the Union Steward at a time mutually agreeable to the parties. If no settlement is reached, the
department head shall give the City's written answer to the employee within five (5) calendar
days following their meeting.
Step 4: If the grievance is not settled in Step 3 and the employee wishes to appeal the
grievance to Step 4 of the grievance procedure, the Union may refer the grievance to advisory
mediation as described below within fourteen (14) calendar days after the decision is provided at
the third step.
1)
The parties shall attempt to agree upon an advisory arbitrator within seven (7)
calendar days after receipt of the notice of referral. In the event that parties are unable
to agree upon an advisory arbitrator within said seven (7) day period, the parties shall
immediately jointly request the State Mediation and Conciliation Service to submit a
panel of five (5) advisory arbitrators. Each party retains the right to reject one panel in
its entirety and request that a new panel be submitted. Both the Union and the City
shall have the fight to strike two (2) names from the panel. The person remaining
shall be the advisory arbitrator.
2) The advisory arbitrator shall be notified of his/her selection and shall be requested to
set a time and place for the heating, subject to the availability of Union and City
representatives.
3) The City or the Union shall have the right to request the arbitrator to require the
presence of witnesses or documents. The City and the Union retain the right to
employ legal counsel.
4) The advisory arbitrator shall submit his/her recommendation in writing within thirty
(30) days following the close of the hearing or the submission of briefs by the parties,
whichever is later.
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5) More than one grievance may be submitted to the same advisory arbitrator if both
parties mutually agree in writing.
6) The fees and expenses of the advisory arbitrator and the cost of a written transcript
shall be divided equally between the City and the Union; provided, however, that
each party shall be responsible for compensating its own representatives and
witnesses.
Limitations on Authority of Advisory Arbitrator: The advisory arbitrator shall have no
right to amend, modify, nullify, ignore, add to, or subtract from the provisions of this Agreement.
The advisory arbitrator shall consider and decide only the question of fact as to whether there has
been a violation, misinterpretation, or misapplication of the specific provisions of this
Agreement. The advisory arbitrator shall be empowered to determine the issue raised by the
grievance as submitted in writing at the Second Step. The advisory arbitrator shall have no
authority to make a recommendation on any issue not so submitted or raised. The advisory
arbitrator shall be without power to make recommendations contrary to or inconsistent with, in
any way, applicable laws or rules and regulations of administrative bodies that have the force and
effect of law. The advisory arbitrator shall not in any way limit or interfere with the powers,
duties and responsibilities of the City under law and applicable court decisions. The
recommendation shall be advisory only.
SECTION 25: IMPASSE PROCEDURE
The following procedures, extracted from the Municipal Code (Section 2.52.410), shall
apply in the event the parties are unable to resolve and impasse satisfactorily:
25.1 Impasses
A. Impasse procedures may be invoked only after the possibility of settlement by
direct discussion has been exhausted. The impasse procedures are as follows:
1. Mediation (or conciliation). (Defined in Section 2.52.290) All mediation
proceedings shall be private. The mediator shall make no public
recommendation nor take any public position concerning the issue.
2. A determination by the City Council after a hearing on the merits of this
dispute.
3. Any other dispute resolving procedures to which the parties mutually
agree or which the City Council may order.
Any party may initiate the impasse procedure by filing with the other party (or parties)
affected a written request for an impasse meeting together with a statement of its position on all
disputed issues. An impasse meeting shall then be scheduled by the municipal employee
relations officer forthwith after the date of filing of the written request for such meeting, with
written notice to all parties affected. The purpose of such impasse meeting is twofold:
23
a) To permit a review of the position of all parties in a final effort to reach agreement on
the disputed issues, and
b) If agreement is not concluded, to mutually select the specific impasse procedure to
which the dispute shall be submitted; in the absence of agreement between the parties
on this point, the matter shall be referred to the City Council.
B. The fees and expenses, if any, of mediatoi:s or of any other impasse procedure,
shall be payable one-half of the City and one-half by the employee organization
or employee organizations.
SECTION 26: CONTINUATION OF BENEFITS
All terms and conditions of employment not otherwise contained herein shall be
maintained at the standards in effect at the time of execution.
SECTION 27: SEPARABILITY
In the event any provisions of this agreement is finally held to be illegal by a court of
competent jurisdiction or void as being in contravention of any law, rule or regulation of any
government agency having jurisdiction over the subject set forth, then the remainder of the
agreement shall continue in full force and effect unless the parts so found to be void are held
inseparable from the remaining portion of the agreement.
SECTION 28: RATIFICATION
Nothing contained in this memorandum shall be binding upon either the City or the
Union following signing of this memorandum by the parties until it has been ratified by the
Union's membership and presented and approved by the City Council of the City.
28.1 Extended Benefits
It is understood and agreed that any more costly total compensation package agreed to by
the City with any other bargaining unit of employees during the life of this agreement will be
extended to the Union. The more favorable terms will be incorporated into this agreement.
SECTION 29: TERM
This agreement shall be effectively commencing at 12:01 a.m. February 18, 2004 and
ending at 11:59 p.m. June 30, 2004.
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OPERATiNG ENGINEERS LOCAL CITY OF CUPERTiNO
UNION No. 3
Brian W. Gathers
David W. Knapp
Karl L. Olsen
Carol A. Atwood
Cindy Martinez
Ralph A. Qualls, Jr.
Marc A. LaBrie
Sandy Abe
Bob Highbaugh
Date:
Date:
Reviewed by City Attorney
Charles T. Kilian
Date:
25
Attachment A
Elmwood Work Furlough Program
Purpose:
To provide a public service for local government through the availability of individuals in a
sentencing alternative program, to perform clean-up type duties.
Affected Employees:
1. All employees hired on or after January 1, 1995 may be required to participate in the
Elmwood Work Furlough Program (EWFP).
2. Participation by employees hired prior to January 1, 1995 will be on a voluntary basis.
Participation:
1. An Administrative Crew Leader will be responsible for daily activities related to the EWFP.
2. Assistant Crew Leader will be assigned as necessary to the EWFP.
3. Employees will be provided ten (10) calendar days notice prior to permanent assignment
with the EWFP.
4. With the exception of volunteers, employees with the least seniority who have received
EWFP training will be assigned within 30 days of the completion of training to participate as
staffing is required.
Compensation:
1. Administrative Crew Leader - 10% above base pay.
2. Assistant Crew Leader - 5% above base pay.
Responsibility:
The following responsibilities/tasks are assigned to participants in the EWFP.
1. Administrative Crew Leader
a. Knowledge of EWFP policies, roles, and regulations.
b. Daily administrative of the EWFP.
c. Assignment of inmates consistent with direction of the responsible Public Works
Supervisor.
d. Conduct an 8:00 a.m. roll call at the beginning of each day.
e. Notify Elmwood if an inmate does not arrive on time.
f. Assign tools and safety equipment to inmates.
g. Supervise inmates consistent with the provisions of the "Satellite Crew Supervisor
Manual".
h. Conduct a 4:00 p.m. roll call at the end of each day.
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An Administrative Crew Leader will not perform manual work that will distract from fully
monitoring the EWFP crew.
2. Assistant Crew Leader
a. Knowledge of EWFP policies, roles, and regnlations.
b. Supervise inmates consistent with the provisions of the "Satellite Crew Supervisor
Manual".
c. Contact the Administrative Crew Leader concerning EWFP issues.
d. Lock and secure Corporation Yard at the end of the day.
An Assistant Crew Leader will not perform manual work that will distract from fully monitoring
the EWFP crew.
Liability:
An employee assigned to EWFP is covered for liability purposes by the City of Cupertino while
performing duties within the scope of his/her job.
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SECTION 10. lA: APPROX. MONTHLY SALARY RANGES ATTACHMENT B
Classification Step 1 Step 2 Step 3 Step 4 Step 5
Equipment Mechanic $4,384 $4,603 $4,834 $5,075 $5,328
Maintenance Worker I $3,573 $3,752 $3,940 $4,138 $4,344
Maintenance Worker II $3,752 $3,940 '$4,138 $4,344 $4,564
Maintenance Worker III $4,138 $4,344 $4,564 $4,792 $5,033
Street Lighting Worker $4,228 $4,440 $4,662 $4,895 $5,140