CITY OF CHARLOTTESVILLE, VIRGINIA CITY COUNCIL AGENDA Agenda Date: August 16, 2021 Action Required: • Motion Not to Adopt the Proposed Collective Bargaining Ordinance Received by City Council on March 6, 2021 • Adoption of a Resolution Requesting the City Manager to Develop a Collective Bargaining Ordinance Presenter: Charles P. Boyles, II, City Manager Title: Collective Bargaining Background: Historically the Virginia General Assembly has prohibited localities, their elected officials and City officials, from recognizing a labor union or employee association as a bargaining agent for the locality’s employees. See Va. Code §40.1-57.2 (copy attached). In April 2020 the legislature amended the statute to expressly grant authority to local governing bodies to make their own local decisions as to whether or not to implement collective bargaining. The amended statute took effect May 1, 2021. The City of Alexandria and Loudoun County are the first Virginia localities in which collective bargaining is being implemented by their governing bodies. Both governing bodies studied the topic over a course of months, considered proposals and recommendations from labor unions, employees and their managers, and planned what internal or contractual resources were necessary to implement the particular model and procedures set up within their ordinances. (The Loudoun-Times Mirror reported in June 2021 that, within its current-year [FY22] budget, the Loudoun County Board of Supervisors authorized eight new full-time staff positions, and $300,000 in recurring contractual costs, to support and administer a collective bargaining program.) Discussion: On March 6, 2021, prior to the effective date of the new law, Greg Wright of the Charlottesville Fire Department notified City Council that a majority of members within the City’s Fire Department desire that City Council should adopt an ordinance to provide rules for City employees to engage in collective bargaining. A copy of the March 6, 2021 correspondence is attached. To our knowledge, neither VML nor VACO, nor any agency of the Commonwealth, has developed a model ordinance for localities’ reference. City Council and the City Manager’s Office have a number of decisions to make, as to what procedures might best fit the City administration and the City’s workforce, how many bargaining units to authorize, etc. For example: in the traditional model of collective bargaining, unions represent employees on the basis of designated “bargaining units”, i.e., groups of employees that share a sufficient community of interest with one another to justify one entity bargaining on behalf of the entire group. In the traditional model, the City Council will, within its ordinance, determine how many bargaining units it would authorize, and within each unit, how its exclusive representative will be chosen (must a majority of all employees within a unit vote in an election? Or can a simple majority of eligible employees who choose to vote elect the bargaining representative?). Council may also choose to investigate non-traditional models of collective bargaining, and/or to specify what will be the mandatory or permissive topics of collective bargaining agreements—such as wages, work hours, schedules, paid time off, disciplinary policies, bonuses, work rules or other issues. The new Virginia statute prohibits City Council from restricting its own authority to establish an annual budget or to appropriate funds. City Manager Recommendation: I do not believe that City Council has sufficient information to make an informed decision about a particular collective bargaining ordinance at this point in time; therefore, it is my recommendation that City Council should decline to adopt the ordinance proposed by the City’s firefighters on March 6, 2021 (Motion #1, below). That being said: it appears to me that a majority of City Councilors may favor establishment of collective bargaining, so I also recommend that City Council adopt the attached Resolution, to provide direction by which a collective bargaining ordinance for the City may be developed (Motion #2, below). • Recommended Motion #1: “I move NOT to approve the collective bargaining ordinance presented to City Council on March 6, 2021 by Greg Wright on behalf of a majority of members of the Charlottesville Fire Department.” • Recommended Motion #2: “I move to adopt the Resolution Requesting the City Manager to Develop a Collective Bargaining Ordinance for the City” Budgetary Impact: The overall fiscal impact of implementing a traditional collective bargaining program would include support costs for administering the collective bargaining environment, including both City staff and contracted services, as well as the cost of funding any specific labor union proposals accepted and/or bargaining agreements negotiated and approved by the City. As this is an issue not studied or addressed within the current (FY22) City Budget, I will research administration and support cost estimates, for consideration during the FY23 Budget development process. Alternatives: • City Council may vote to adopt the firefighters’ proposed collective bargaining ordinance, without study or consideration of budgetary impacts • City Council may vote NOT to adopt the firefighters’ proposed collective bargaining ordinance, and take no other action. Alignment with Council Vision Areas and Strategic Plan: Yes. Community Engagement: The state law does not require a public hearing or any particular public engagement. It is my belief that the work of preparing an ordinance for City Council’s consideration should be guided by City Council, should engage the City’s workforce, and should consider various collective bargaining ordinances utilized by other cities. Attachments: • Resolution Requesting the City Manager to Develop a Collective Bargaining Ordinance for the City of Charlottesville • Va. Code §40.1-57.2 • March 6, 2021 Fire Department Transmittal and Proposed Ordinance RESOLUTION REQUESTING THE CITY MANAGER TO DEVELOP A COLLECTIVE BARGAINING ORDINANCE FOR THE CITY OF CHARLOTTESVILLE WHEREAS the Virginia General Assembly, within Virginia Code Sec. 40.1-57.2, expressly authorizes local governing bodies to enact ordinances authorizing City officials to recognize labor unions or employee associations as bargaining agents for certain public officers or employees; to collectively bargain with or enter into collective bargaining contracts with such unions or associations; and to provide for procedures for the certification and decertification of exclusive bargaining representatives; and WHEREAS this City Council supports the development of a collective bargaining ordinance, but does not yet have sufficient information upon which to base any decision about specific provisions that it might desire to set forth within an ordinance; now, therefore, BE IT RESOVLED BY THE COUNCIL OF THE CITY OF CHARLOTTESVILLE: 1. The City Manager shall commence work to assemble and deliver to City Council information and analysis regarding City Council’s options for collective bargaining models, sample ordinances, and the anticipated fiscal impacts of various options. The City firefighters’ March 6, 2021 proposed ordinance shall be among the sample ordinances that will be studied, analyzed and considered during this process. 2. The City Manager shall present to City Council on September 13, 2021 a timeline and list of deliverables and decision points to be made by Council, as necessary to facilitate preparation of a collective bargaining ordinance in tandem with the development and adoption of the City’s FY 2023 Budget. 3. To the extent that contractual services are necessary or desirable to support the work that this Council is asking the City Manager to perform, the City Manager is hereby authorized to procure those services. Code of Virginia Title 40.1. Labor and Employment Chapter 4. Labor Unions, Strikes, Etc. Article 2.1. Collective Bargaining for Governmental Employees § 40.1-57.2. Collective bargaining A. No state, county, city, town, or like governmental officer, agent, or governing body is vested with or possesses any authority to recognize any labor union or other employee association as a bargaining agent of any public officers or employees, or to collectively bargain or enter into any collective bargaining contract with any such union or association or its agents with respect to any matter relating to them or their employment or service unless, in the case of a county, city, or town, such authority is provided for or permitted by a local ordinance or by a resolution. Any such ordinance or resolution shall provide for procedures for the certification and decertification of exclusive bargaining representatives, including reasonable public notice and opportunity for labor organizations to intervene in the process for designating an exclusive representative of a bargaining unit. As used in this section, "county, city, or town" includes any local school board, and "public officers or employees" includes employees of a local school board. B. No ordinance or resolution adopted pursuant to subsection A shall include provisions that restrict the governing body's authority to establish the budget or appropriate funds. C. For any governing body of a county, city, or town that has not adopted an ordinance or resolution providing for collective bargaining, such governing body shall, within 120 days of receiving certification from a majority of public employees in a unit considered by such employees to be appropriate for the purposes of collective bargaining, take a vote to adopt or not adopt an ordinance or resolution to provide for collective bargaining by such public employees and any other public employees deemed appropriate by the governing body. Nothing in this subsection shall require any governing body to adopt an ordinance or resolution authorizing collective bargaining. D. Notwithstanding the provisions of subsection A regarding a local ordinance or resolution granting or permitting collective bargaining, no officer elected pursuant to Article VII, Section 4 of the Constitution of Virginia or any employee of such officer is vested with or possesses any authority to recognize any labor union or other employee association as a bargaining agent of any public officers or employees, or to collectively bargain or enter into any collective bargaining contract with any such union or association or its agents, with respect to any matter relating to them or their employment or service. 1993, cc. 868, 879; 2020, cc. 1209, 1276. The chapters of the acts of assembly referenced in the historical citation at the end of this section(s) may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired. 1 8/11/2021 12:00:00 1 AMENDMENT TO CHAPTER 19 OF THE CHARLOTTESVILLE CITY CODE TO 2 PROVIDE RULES FOR CITY EMPLOYEES TO ENGAGE IN COLLECTIVE 3 BARGAINING 4 5 Article VII 6 7 A. Effective May 1, 2021, VA Code 40.1-57.2 provides as follows: “No state, county, city, 8 town, or like governmental officer, agent, or governing body is vested with or possesses 9 any authority to recognize any labor union or other employee association as a bargaining 10 agent of any public officers or employees, or to collectively bargain or enter into any 11 collective bargaining contract with any such union or association or its agents with 12 respect to any matter relating to them or their employment or service unless, in the case 13 of a county, city, or town, such authority is provided for or permitted by a local ordinance 14 or by a resolution. Any such ordinance or resolution shall provide for procedures for the 15 certification and decertification of exclusive bargaining representatives, including 16 reasonable public notice and opportunity for labor organizations to intervene in the 17 process for designating an exclusive representative of a bargaining unit. As used in this 18 section, ‘county, city, or town’ includes any local school board, and ‘public officers or 19 employees’ includes employees of a local school board.” 20 B. This sub-chapter, along with any related revisions to other articles of Chapter 19, sets forth 21 the City’s Rules for City employees’ engagement in collective bargaining with the City 22 and its Departments. 23 C. Declaration of Policy: The Council declares that it is the policy of the City to promote 24 harmonious, stable, and cooperative relations between the City and its employees as such 25 conditions are well known to assist in maintaining a professional and productive workforce 26 that serves the best interests of the City and its residents. These policies are best 27 implemented by: 28 1. Recognizing the right of City employees to organize for the purpose of collective 29 bargaining regarding the terms and conditions of their employment; 30 2. Providing a means by which employees may select, should they choose to do so, 31 representatives for purposes of collective bargaining; 32 3. Negotiating and entering into written agreements with exclusive representatives on 33 terms and conditions of employment consistent with the law and the City’s other legal 34 obligations; and 35 4. Establishing a method for dealing with disputes in the City’s labor-management 36 relations. 37 D. The Council has determined that this Article will also serve the public interest in promoting 38 labor stability and avoiding potentially disruptive labor disputes. 39 E. Article VII of Chapter 19 of the Charlottesville City Code is hereby established with this 40 ordinance. 41 F. Definitions 42 1. “Appropriate Unit” means a group of employees for whom a labor organization may 43 be certified as the exclusive representative. For purposes of exclusive representation 44 the following seven units are appropriate: 45 a. all sworn employees of the Police Department at and below the rank of 46 Lieutenant; 47 b. all uniformed employees of the Fire Department at or below the rank of 48 Battalion Chief and all emergency dispatchers in the Department of Emergency 49 Communications; 50 c. all non-supervisory employees in trades and maintenance occupations except 51 employees described in subsection g; 52 d. all non-supervisory employees whose functions are primarily clerical in nature 53 except employees described in subsection g; 54 e. all non-supervisory professional employees except employees described in 55 subsection g or subsection h; 56 f. All non-supervisory technical employees except employees described in 57 subsection g or subsection h; 58 g. All non-supervisory employees of the Department of Libraries; and 59 h. All nonsupervisory professional and technical employees of the Department of 60 Human Services providing direct care and services to members of the public. 61 2. “Certification” means official recognition by the City’s Employee Relations Council 62 pursuant to this Article that a labor organization is, and shall remain, the exclusive 63 representative for all of the employees in an appropriate bargaining unit for the purpose 64 of collective bargaining, until it is replaced by another labor organization, decertified, 65 or disclaims its representative status. 66 3. “Terms and Conditions of Employment” means personnel policies, practices, and 67 matters, whether established by directive, regulation, or otherwise, affecting working 68 conditions, including, but not limited to, compensation, the pay plan established in 69 accordance with Chapter 19 of the City Code, hours, working conditions, retirement, 70 pensions established in accordance with Chapter 19 of the City Code and other benefits. 71 4. “Confidential Employee” means any individual who, in the course of his or her 72 employment: 73 a. has access to confidential City personnel files or other confidential City 74 information (including budgetary and fiscal data) subject to use by the City in 75 the collective bargaining process or in the adjustment of grievances; or 76 b. assists and acts in a confidential capacity to persons who formulate, determine 77 and effectuate government policies in the area of labor management relations. 78 5. “ERC” means the Charlottesville City Employee Relations Council (or “ERC”) created 79 by this Section. 80 6. “Employee” means any person employed by the City, excluding employees whose 81 wages are provided for under the budget of the Charlottesville City School Board; 82 employees employed by the Commonwealth of Virginia; supervisory, judicial and 83 confidential employees of the City; elected and appointed officials; constitutional 84 officers and employees appointed directly by them; persons possessing the status of 85 independent contractors; and employees whose duties are temporary or seasonal in 86 nature and have served the City for less than 90 days. For purposes of this Section, 87 “employee” also means an individual employed by the City or whose employment by 88 the City has ceased because of any unfair labor practice or termination that remains the 89 subject of an active appeal or a grievance by the employees’ collective bargaining 90 representative. The term “employee” does not include a supervisor or management 91 official, a confidential employee as defined in this Article, or any person who 92 participates in a strike in violation of this Article or applicable law. 2 93 7. “Employer” means the City and all of its Departments. 94 8. “Exclusive Representative” means any labor organization which is certified as the 95 exclusive representative of employees in an appropriate unit pursuant to this Article. 96 9. “Impasse” means that point in the negotiation of terms and conditions of employment 97 at which the parties are unable to reach agreement, notwithstanding their efforts to do 98 so by direct negotiations and by the use of mediation or other voluntary arrangements 99 for settlement. 100 10. “Impartial Agency” means the American Arbitration Association or the Federal 101 Mediation and Conciliation Service. 102 11. “Labor Organization” means an organization, composed in whole or in part of 103 employees, in which employees participate and pay dues, and which has as a purpose 104 the dealing with the City concerning the grievances and terms and conditions of 105 employment. 106 12. “Strike” means the concerted activities described in Virginia Code Section 40.1-55.. 107 13. “Supervisor” means any individual having interest in the authority of the City: 108 a. To hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or 109 discipline other employees; or 110 b. To responsibly direct other employees; or 111 c. To adjust the grievances of other employees; or 112 d. To effectively recommend any action set forth in a., b. or c. of this subsection, 113 provided that the authority to act as set forth in a., b., c. or d. of this subsection 114 requires the exercise of independent judgment and is not merely routine or 115 clerical in nature. 116 The term “supervisor” does not include either Police Department employees below the 117 rank of Lieutenant or Fire Department employees at or below the rank of Battalion 118 Chief. 119 14. “Professional employee” means: 120 a. Any individual whose primary duty consists of the performance of work 121 requiring knowledge of an advanced type in a field of science of learning 122 customarily acquired by a prolonged course or specialized intellectual 123 instruction and study, as distinguished from a general academic education and 124 from an apprenticeship and who customarily and regularly exercises discretion 125 and independent judgment in the performance of such function; or 126 b. Any employee who has completed or is engaged in a course of specialized 127 intellectual instruction and study described above and who is performing related 128 work in conjunction with a professional employee as described in Paragraph 129 14.a of this subsection. 130 15. “Technical employee” means: 131 a. Any individual whose primary duty consists of the performance of work 132 requiring the routine exercise of a specialized knowledge or skill acquired 133 through distinctive training, as distinguished from a prolonged course of 134 specialized intellectual instruction and study; or 135 b. Any employee who has completed or is engaged in the distinctive training 136 described above, or who is receiving on-the-job training in a specialized 137 knowledge or skill, and who is performing related work in conjunction with a 3 138 professional employee as described in Paragraph 14 or technical employees as 139 described in Paragraph 15.a of this subsection. 140 G. Employee Rights 141 1. Employees shall have the right to self-organization, to form, join, or assist labor 142 organizations, to bargain collectively as provided in this Chapter through 143 representatives of their own choosing, and to engage in other concerted activities for 144 the purpose of collective bargaining or other mutual aid or protection, and shall also 145 have the right to refrain from any or all of such activities. 146 2. Notwithstanding any other provision in this Section, an individual employee may 147 present a grievance at any time to the City without the intervention of a labor 148 organization, provided that the Exclusive Representative (if there is one) is afforded an 149 effective opportunity to be present and to offer its view at any meetings held to adjust 150 the grievance and that any adjustment made shall not be inconsistent with the terms of 151 any applicable collective bargaining agreement. Such employee or employees who 152 utilize this avenue of presenting personal complaints to the employer shall not do so 153 under the name, or by representation, of a labor organization. 154 3. In the absence of an exclusive representative, a labor organization shall be permitted to 155 meet with employees on the premises of the City in non-secure areas during times when 156 the employees involved are on break or in other non-duty status. If an exclusive 157 representative has been recognized, such right shall be available only to the exclusive 158 representative and any other labor organization that has submitted a petition and 159 established a valid question concerning representation. This section shall not restrict an 160 exclusive representative and the City from negotiating for greater access to employees 161 by the exclusive representative. 162 4. An exclusive representative shall have the right to meet with newly hired employees, 163 without charge to the pay or leave time of any of the employees involved, for a 164 minimum of 30 minutes, within 30 calendar days from the date of hire, during new 165 employee orientations, or if the employer does not conduct new employee orientations, 166 at individual or group meetings. 167 5. Within 10 calendar days from the date of hire of an employee represented by an 168 exclusive representative, the City shall provide the following contact information to the 169 exclusive representative in an Excel file format or other format agreed to by the 170 exclusive representative labor organization: name, job title, worksite location, home 171 address, work telephone numbers, and any home and personal cellular telephone 172 numbers on file with the public employer, date of hire, and work email address and any 173 personal email address on file with the City. Within thirty days of certification as the 174 exclusive representative and on the first Monday following January 15, May 15 and 175 September 15 each year, the City shall provide exclusive representative labor 176 organizations, in an Excel file or similar format agreed to by the exclusive 177 representative labor organization, the following information for all negotiations unit 178 employees: name, job title, worksite location, home address, work, home and personal 179 cellular telephone numbers, date of hire, and work email address and personal email 180 address on file with the City. The home addresses, phone numbers, email addresses, 181 dates of birth, and the emails or other communications between excusive representative 182 labor organizations and their members shall not be considered public records subject 183 to public disclosure except to the exclusive representative. 4 184 H. Employee Relations Council (“ERC”) 185 1. There is hereby created the Charlottesville City Employee Relations Council, which 186 shall have authority to process issues related to questions concerning representation, 187 allegations of unfair labor practices and negotiability disputes. The ERC will have three 188 persons. 189 a. All members of the Employee Relations Council shall, at the time of 190 appointment, be a neutral that is on the roster of an impartial agency. 191 b. For the period lasting until December 31, 2023, the ERC members will be 192 appointed as follows: 193 i. Within 30 days of enactment of this Chapter, the City Manager will 194 appoint one member to the ERC. 195 ii. Within 15 days following the City Manager’s appointment, labor 196 organizations, including those who may later seek to become an 197 exclusive representative of one or more bargaining units of employees, 198 will have the right to select an individual to appoint to the ERC. The 199 labor organizations shall attempt to reach an agreement on a nominee 200 and, if no agreement is reached, the labor organizations shall select a 201 nominee via a poll of the members of each local labor organization. The 202 City Council will, at its next regular meeting, officially appoint the 203 nominated individuals to the ERC. Labor organizations may only 204 nominate individuals who have agreed to accept the proposed 205 appointment. 206 iii. The third member of the ERC will be mutually selected and appointed 207 by the first two appointees. That person will serve as the Chair of the 208 ERC unless the three members of the ERC agree otherwise by majority 209 vote. 210 iv. If, an ERC member vacates the position prior to the expiration of their 211 term, the replacement will be appointed in the same manner (City 212 Manager, labor organizations/City Council, other two ERC members) 213 that appointed the vacating Member and the new member shall serve for 214 the remainder of the term. Sixty days prior to the conclusion of their 215 term, an ERC member may be reappointed or replaced by the appointing 216 authority. A replacement ERC member shall assume a position on the 217 ERC at the conclusion of the incumbent ERC member’s term. 218 2. Representation Process 219 a. Where, in accordance with procedural regulations as may be prescribed by the 220 ERC, a petition has been filed: 221 i. By a labor organization, or in the case of decertification by an employee 222 or group of employees, supported by evidence, including an 223 alphabetized list of names, that at least 30% of employees in an 224 appropriate unit: 225 1. Wish to be represented for collective bargaining by an exclusive 226 representative; or 227 2. Assert that the certified labor organization is no longer the 228 representative of the majority of employees in the unit, 5 229 the ERC shall investigate such petition, and if it has reasonable cause to believe 230 that a question concerning representation exists, it shall, within 21 days, order 231 the City to post a public notice that a petition has been filed and provide for an 232 appropriate hearing upon due notice. If the ERC finds upon the record of such 233 hearing that a question concerning representation exists, it shall direct an 234 election by secret ballot and shall certify the results thereof. Any labor 235 organization shall be allowed to intervene upon the filing of a petition with the 236 ERC within 10 days of the public notice that a petition has been filed supported 237 by evidence of at least 20% employees in said unit support exclusive 238 representation by the intervening labor organization. The city shall provide the 239 petitioner and any qualified intervenor with a list of the names, job titles, 240 worksite locations, home addresses, work, home and personal cellular 241 telephone numbers, and work email address and personal email address on file 242 with within three days of a finding by the ERC that a question concerning 243 representation exists. The ERC, after a hearing on any disputes among the 244 parties, shall determine assignment of positions to the appropriate units 245 described in this Article. 246 i. A petition will be dismissed if the petitioner seeks to be certified in a 247 bargaining unit: 248 1. Within which in the preceding 12 month period of the 249 certification of a labor organization as the exclusive 250 representative of the appropriate for which the petition has been 251 filed; or 252 2. During the term of any lawful collective bargaining agreement 253 between the employer and a labor organization. Where a valid 254 collective bargaining agreement is in existence, a petition for 255 election may be filed not more than 270 days and not less than 256 225 days before the expiration of the collective bargaining 257 agreement. 258 b. Elections 259 i. Representation elections shall be conducted at the direction of the ERC, 260 which may delegate parts of an election process to one or more of its 261 members as Election Officer who may determine to use a qualified 262 vendor to assist in conducting the election. 263 ii. Representation elections conducted pursuant to this Section shall be by 264 secret ballot and shall be subject to the following: 265 a. At least 10 days notice of the time and place of the election shall be 266 provided. 267 b. The ballots in all representation elections shall include a choice of 268 “no representative” except that a runoff election shall include only 269 the two choices receiving the highest and second highest number of 270 ballots cast in the initial election. 271 c. A representative may not be certified unless it receives a majority of 272 the valid ballots cast. 273 d. In an election in which none of the choices on the ballots receives a 274 majority, a runoff election shall be conducted in which the ballot 6 275 shall provide for a selection between the two choices or parties 276 receiving the highest and second highest number of ballots cast in 277 said election. 278 iii. The ERC shall certify the results of said election within seven calendar 279 days after the final tally of votes if no objection to the election is filed 280 by any affected person alleging that there has been conduct which has 281 affected the outcome of the election. 282 e. If such an objection is filed, and the ERC has reason to believe that 283 such allegations are valid, it shall set a time for hearing on the matter 284 after due notice, such hearing to be conducted within 14 days of the 285 date of receipt of such charge. If the ERC determines that the 286 outcome of the election was affected, even if by third party 287 interference, it shall require corrective action and order a new 288 election. If the ERC determines that the conduct alleged did not 289 affect the outcome of the election, then it shall immediately certify 290 the election results. The ERC may delegate the oversight of the 291 hearing to one or more of its Members as Hearing Officer, but its 292 decision must be by majority vote of the Members. 293 f. If the employer creates a new job classification, it shall seek to 294 resolve the placement of the job in an appropriate unit with the 295 exclusive representative labor organizations affected. In the event 296 the parties cannot resolve the matter, it shall be referred to the ERC 297 for resolution. 298 g. Decisions of the ERC regarding representation matters shall not be subject to 299 court review. 300 I. Unfair Labor Practices and Negotiability Disputes 301 1. Unfair Labor Practices 302 a. Violations of the following provisions will be considered an Unfair Labor 303 Practice (“ULP”). The ERC is charged with adjudicating allegations of such 304 violations. 305 i. The City, its agents, its departments, or its representatives are prohibited 306 from: 307 1. Interfering with, restraining, taking reprisals against or coercing 308 employees in the exercise of the rights guaranteed by this 309 Article; 310 2. Using public funds, or acting in their official capacity to assist, 311 promote or deter exclusive representation or membership in a 312 labor organization. 313 3. Dominating, interfering, or assisting in the formation, existence 314 or administration of any labor organization, or contributing 315 financial or other support to it, except that the City shall not be 316 prohibited from permitting employees to negotiate, process 317 grievances, or otherwise attend to matters related to the labor 318 management relationship during working hours without charge 319 to leave or pay or from providing an exclusive representative 320 with access and use of routine facilities and services of the City; 7 321 4. Discriminating in regard to hire, promotion, or tenure of 322 employment or any term or condition of employment to 323 encourage or discourage membership in any labor organization; 324 5. Discharging or otherwise discriminating against an employee 325 because he has signed or filed an affidavit, petition, or complaint 326 or given any information or testimony under this Article; 327 6. Refusing to bargain collectively in good faith with the exclusive 328 representative as required under this Article; 329 7. Refusing to participate in good faith in the mediation or 330 arbitration procedures set forth in this Article; 331 8. Refusing or failing to comply with any provision of this Article 332 or any of the procedural regulations established by the ERC; 333 9. Locking out the members of any bargaining unit; or 334 10. Enforcing any rule or regulation which is in conflict with any 335 applicable collective bargaining agreement if the agreement was 336 in effect before the date the rule or regulation was prescribed. 337 ii. Labor organizations, their agents, or representatives are prohibited 338 from: 339 1. Interfering with, restraining, or coercing employees in the 340 exercise of the rights guaranteed by this Article; 341 2. Causing or attempting to cause the City to discriminate against 342 an employee in the exercise by the employee of any right under 343 this Article; 344 3. Refusing to bargain collectively in good faith with the City if 345 they have been designated in accordance with the provisions of 346 this Article as the exclusive representative of employees in an 347 appropriate unit; 348 4. Refusing to participate in good faith in mediation or arbitration 349 procedures set forth in this Article; 350 5. Refusing or failing to comply with any provision of this Article 351 or any of the procedural rules and regulations established by the 352 ERC; 353 6. Discriminating against an employee with regard to the terms or 354 conditions of membership in the labor organization on the basis 355 of labor organization membership, race, color, creed, national 356 origin, sex, age, preferential or nonpreferential civil service 357 status, political affiliation, marital status, or handicapping 358 condition; 359 7. Calling, instituting, maintaining, participating in, or conducting 360 a strike against the City. 361 b. Procedure Concerning Alleged Unfair Labor Practices 362 i. Any allegation that a person has engaged in an unfair labor practice shall 363 be submitted to the ERC within 180 days of the alleged unlawful 364 conduct, subject to such procedural rules and regulations as the Council 365 may issue. If an exclusive representative’s allegation of an unfair labor 366 practice may also be properly be raised as a grievance under an 8 367 applicable collective bargaining agreement, the matter may be raised 368 under either procedure, but not both. The exclusive representative shall 369 be deemed to have exercised the option to raise the matter under either 370 the unfair labor practice procedure or the negotiated procedure at such 371 time as the exclusive representative timely initiates an action under the 372 unfair labor practice procedure or timely files a grievance in writing, 373 whichever event occurs first. 374 ii. The ERC’s rules and regulations shall provide that compliance with the 375 technical rules of evidence shall not be required. If upon the 376 preponderance of the testimony taken, the ERC finds that any person 377 named in the complaint has engaged in or is engaging in an unfair labor 378 practice, then the ERC shall state its findings of facts and shall issue and 379 cause to be served on such person an order requiring that he cease and 380 desist from such unfair labor practices and take such affirmative action, 381 including reinstatement with or without back pay, as will effectuate the 382 policies of this Article. Such order may further require such person to 383 make reports from time to time showing the extent to which he has 384 complied with the order. The ERC’s remedial powers shall not be 385 limited to the effects of the immediate case and may be designed to 386 prevent future unfair labor practices, notwithstanding the penal nature 387 of such requirement. 388 iii. If the preponderance of evidence has not shown that the person named 389 in the complaint has engaged in or is engaging in any such unfair labor 390 practice, then the ERC shall state its findings of facts and shall issue an 391 order dismissing the said complaint. 392 iv. The ERC shall have the authority to assign one of its members as the 393 Hearing Officer in a particular case, however a majority vote of the 394 entire ERC (including the Member assigned as Hearing Officer) shall 395 be required to issue a final and binding decision. 396 a. Findings of the ERC shall be conclusive and binding upon the parties and shall 397 be considered as an award of an arbitrator in accordance with the Virginia 398 Uniform Arbitration Act, Virginia Code Section 8.01—581.01 et. seq. . 399 2. Negotiability Disputes 400 a. General: A negotiability dispute shall exist when a labor organization and the 401 City disagree on whether this Section, a collective bargaining agreement, or 402 other applicable law or regulations, requires or prohibits bargaining with 403 respect to a specified matter. For the purposes of this Article, a negotiability 404 dispute shall not refer: 405 i. To the situation where the City refuses to bargain over a subject that the 406 parties agree is not a mandatory subject of bargaining; 407 ii. To a situation where the City refuses to bargain based on a belief that it 408 has no obligation to bargain in a specific situation; or 409 iii. To a situation where the parties are unable to agree upon the terms of a 410 Collective Bargaining Agreement, insofar as the issue in dispute is not 411 “what is negotiable”. 9 412 b. Interpretation of Existing Agreements. A dispute over the interpretation of a 413 controlling agreement in existence shall be resolved under the grievance 414 procedure of the controlling agreement. A dispute over what is subject to a 415 grievance procedure and what is arbitrable under such procedure shall not be 416 resolved as a negotiability dispute under the procedures set forth in this Article 417 but shall be resolved by the arbitrator chosen to hear the grievance. 418 c. Procedure: The services of the ERC shall be invoked for negotiability disputes 419 arising in the course of negotiations. The ERC shall seek to expedite review of 420 all such disputes. 421 i. If, in the conduct of negotiations, the City asserts a proposal offered by 422 an exclusive representative is outside the lawful duty to bargain, the 423 exclusive representative shall request the City to reduce the allegation 424 of non-negotiability to writing. The City shall provide such allegation 425 in writing to the exclusive representative within seven days of receiving 426 the request. 427 ii. Within 14 days of receiving the written allegation of non-negotiability, 428 or within 21 days of the request for a written allegation of non- 429 negotiability if the City fails to provide a written allegation of non- 430 negotiability, the exclusive representative may petition the ERC for a 431 determination of negotiability. The petition shall be accompanied by an 432 explanation from the exclusive representative of the proposal and the 433 basis for its belief that it is within the lawful scope of bargaining. The 434 exclusive representative shall simultaneously serve the City with the 435 petition. 436 iii. The City shall file a reply to the petition with the ERC and the exclusive 437 representative within 14 days of receipt of the exclusive representative’s 438 petition. 439 iv. The ERC shall schedule a mediation session among the parties within 440 14 days or as soon as practical thereafter. No statement made or position 441 taken during mediation under this Article may be used as evidence in 442 any other proceeding. If mediation fails to resolve the dispute, the ERC 443 shall request a reply brief from the exclusive representative and make a 444 decision as to the negotiability based on the written record. The decision 445 may be accompanied by an order directing the parties to take action 446 appropriate to remedy the dispute including, but not limited to the 447 issuance of a retroactive bargaining order or engagement in further 448 mediation. To minimize the potential recurrence of similar disputes, the 449 ERC shall publish periodically such decisions and shall distribute copies 450 to the City and to all exclusive representatives. 451 d. The ERC may delegate to one or more of its members some tasks, such as 452 scheduling hearings, overseeing pre-hearing matters, and conducting mediation 453 or any hearings on the matter. The final decision of the ERC requires the 454 concurrence of at least two Members. 455 J. Rights Accompanying Exclusive Representation 456 1. The labor organization which has been certified by the ERC shall be the exclusive 457 representative of all employees in the unit and as such shall have the right to act for and 10 458 negotiate agreements hereunder covering all employees in the unit and shall be 459 responsible for representing the interest of all such employees without discrimination 460 and without regard to membership in the labor organization. 461 2. The negotiated grievance procedure shall be the exclusive procedure applicable to an 462 employee in the unit for a grievance regarding the employee’s rights under the 463 agreement provided, however, an employee may appeal a disciplinary or adverse action 464 under any applicable procedure established by the City or by law in lieu of using the 465 negotiated grievance procedure. An employee’s election of remedy is irrevocable and 466 is made at the time the employee timely files a written disciplinary appeal under the 467 negotiated grievance procedure or the alternative procedure, whichever occurs first. 468 3. Where a labor organization has been recognized as the exclusive representative of the 469 employees in a unit, it shall be the only labor organization eligible to receive from the 470 City amounts deducted from the pay of employees as authorized by written assignment 471 of the employees, for the payment of regular and periodic dues to the exclusive 472 representative, unless two exclusive representatives of City employees agree that they 473 can both receive deductions from the same employee. Any such authorization may be 474 revoked in accordance with the terms of the authorization which shall provide a period 475 of irrevocability of not more than one year. An authorization that satisfies the Uniform 476 Electronic Transactions Act (Virginia Code § 59.1-479 et seq.), including, without 477 limitation, electronic authorizations and voice authorizations, shall be valid for 478 employees' authorizations for payroll deductions and authorization for representation 479 for purposes of a petition filed by a labor organization for exclusive representation. 480 4. An exclusive representative of an appropriate unit shall be given the opportunity to be 481 represented at: 482 a. any formal discussion between one or more representatives of the City and one 483 or more employees in the unit or their representatives concerning any grievance 484 or any personnel policy or practices or other general condition of employment; 485 or 486 b. any examination of an employee in the unit by a representative of the City in 487 connection with an investigation if: 488 i. the employee reasonably believes that the examination may result in 489 disciplinary action against the employee; and 490 ii. the employee requests representation. 491 c. The City shall annually inform its employees of their rights under this 492 subsection. 493 K. Official Time 494 1. Any employee representing an exclusive representative in the negotiation of an 495 agreement under this Article shall be authorized official time for such purposes, 496 including attendance at an impasse proceeding, during the time the employee otherwise 497 would be in a duty status. The number of employees for whom official time is 498 authorized under this subsection shall be at least equal to the number of individuals 499 designated as representing the City for such purposes but may exceed the number of 500 City representatives upon agreement of the parties. 501 2. Any employee representing an exclusive representative, or in connection with any 502 other matter covered by this Article or by the collective bargaining agreement, any 503 employee in an appropriate unit represented by an exclusive representative, shall be 11 504 granted official time in any amount the City and the exclusive representative involved 505 agree to be reasonable, necessary, and in the public interest. 506 L. Negotiations & Agreements 507 1. The City and the exclusive representative shall meet at reasonable times, and shall 508 negotiate in good faith with respect to terms and conditions of employment which are 509 subject to negotiation under this Article and which are to be embodied in a written 510 agreement, or any question arising thereunder, but such obligation shall not compel 511 either the City or the exclusive representative to agree to a proposal or require the 512 making of a concession. The City Manager, or his designated authorized 513 representative(s) shall represent the City in collective bargaining. 514 2. Any agreement reached by the negotiators shall be reduced to writing and shall be 515 executed by both parties. Such agreement shall be valid and enforced under its terms 516 when entered into, in accordance with the provisions of this Article. 517 3. Agreements with exclusive representatives shall provide for final and binding 518 arbitration of contractual disputes in accordance with Virginia Code Section 15.2-1404. 519 Arbitration proceedings conducted pursuant to collective bargaining agreements and 520 this Article shall be governed by the Uniform Arbitration Act, Virginia Code Section 521 8.01—581.01 et. seq. 522 4. Upon the request of either party, negotiations shall commence not later than October 523 1 for agreements that are to be effective on July 1 of the following year. Collective 524 Bargaining Agreements shall have a minimum term of one year and maximum term 525 of four years. 526 5. At the request of either party, the parties shall enter into mediation to resolve any 527 dispute between the parties. The parties involved shall mutually agree upon a 528 mediator or request a mediator from the Federal Mediation and Conciliation Service. 529 No statement made or position taken during mediation under this section may be used 530 as evidence in any other proceeding 531 6. At the request of either party, and not later than January 31 of the year the agreement 532 may become effective, impasses not resolved through negotiation or mediation shall 533 be submitted to final and binding arbitration. The parties shall jointly select an 534 arbitrator or, if they are unable to agree on an arbitrator, they shall request a list of 535 seven arbitrators from the Federal Mediation and Conciliation Service or American 536 Arbitration Association. Each party in turn shall strike a name from the list until only 537 one name remains. Negotiations may continue throughout the impasse procedures. 538 7. In making any decision under the impasse procedures authorized by this Article, the 539 arbitrator shall select either the final offer of the employer, or the final offer of the 540 union on each separate issue. The arbitrator shall give weight to the following factors: 541 a. The lawful authority of the City; 542 b. Stipulations of the parties; 543 c. The interests and welfare of the public; 544 d. The financial ability of the employer to meet the costs of any items to be included 545 in the agreement; 546 e. Comparison of wages, hours, and terms and conditions of employment of the 547 employees involved in the arbitration proceedings with the wages, hours, and 548 terms and conditions of employment of other persons performing similar services 549 in the public and private sectors, if applicable; 12 550 f. The average consumer prices for goods and services, commonly known as the 551 cost of living; 552 g. The overall compensation presently received by the employees involved in the 553 arbitration; 554 h. Changes in any of the foregoing circumstances during the pendency of the 555 arbitration proceedings; and 556 i. Such other factors that are normally or traditionally taken into consideration in the 557 determination of wages, hours, and terms and conditions of employment through 558 voluntary collective bargaining, mediation, arbitration, or otherwise between the 559 parties, in public service or in private employment. 560 8. The expenses of the arbitrator shall be borne equally by the parties. 561 M. Funding for implementation of agreements. 562 1. After a negotiated agreement has been reached, or a final and binding arbitration decision 563 has been rendered in accordance with this Article, the City Manager shall submit a 564 request for funds necessary to implement the agreement and for approval of any other 565 matter requiring the approval of the City Council within five days after: 566 a. the date on which the parties finalize the agreement; or 567 b. the date on which the arbitration decision is issued, 568 unless otherwise specified in this section or agreed by the parties. 569 2. The City Council shall approve or reject the request for funds as a whole when it adopts 570 the annual budget. If the annual budget for any term of the agreement has been adopted 571 prior to the submission of a request for funds to implement the agreement by the City 572 Manager, the Council shall consider the request for funding as a budget modification at 573 the first meeting subsequent to the submission of the request for funds necessary to 574 implement the agreement. 575 3. If the City Council does not fund the agreement, either party may reopen negotiations. 576 4. At the request of the exclusive representative, those provisions of the agreement not 577 requiring action by the City Council shall be effective and operative in accordance with 578 the terms of the agreement. 579 5. Upon the expiration of an agreement, the terms of such agreement shall remain in effect 580 until superseded by a new agreement. 581 582 583 584 13