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HomeMy WebLinkAbout2010-05-18; City Council; 20235; IMPASSE IN LABOR NEGOTIATIONS BETWEEN THE CITY AND THE CARLSBAD FIREFIGHTERS' ASSOCIATION INC- CFACITY OF CARLSBAD - AGENDA BILL AB# MTG. DEPT. 20,235 05/18/10 HR IMPASSE IN LABOR NEGOTIATIONS BETWEEN THE CITY AND THE CARLSBAD FIREFIGHTERS' ASSOCIATION, INC. (CFA) DEPT. HEAD^P^W CITY ATTY. <^fj^ CITYMGR. | ^^ RECOMMENDED ACTION: 1. By motion, determine to resolve the impasse that exists between the City of Carlsbad and the Carlsbad Firefighters' Association, Inc. (CFA) by action of the City Council. 2. Adopt Resolution No. 2010-117 resolving the impasse and adopting and implementing certain salary and benefit terms and conditions for employees represented by the CFA. 3. Adopt Resolution No. 2010-118 amending the City's California Public Employees' Retirement System (CalPERS) Employer Paid Member Contribution for local fire safety employees. ITEM EXPLANATION: The City and the Carlsbad Firefighters' Association, Inc. (CFA) representatives have been meeting and conferring since November 23, 2009 in an effort to reach agreement on a Memorandum of Understanding (MOD). The parties have held three face-to-face meetings over the last six months, supplemented by two additional proposals exchanged electronically. As the parties failed to reach agreement and exhausted all possibilities of settlement, the City initiated the impasse procedure on March 26, 2010 pursuant to Section IV of the City's Employer-Employee Relations Rules and Regulations. The written request for an impasse meeting and a statement of the City's position on all disputed issues was sent to both the CFA and the City Manager. An impasse meeting with the City Manager was held on April 30, 2010 for the purpose of reviewing the positions of the City and the CFA in a final effort to reach agreement on the disputed issues. At the impasse meeting, the City reviewed its position, and CFA put forth two new proposals for consideration. However, after discussing the proposals there were several points on which the parties were not able to come to agreement. At that time, it was the conclusion of the City Manager that the parties had reached a point where continued negotiations would be futile. Based on the above facts, the City has met its obligation to meet and confer in good faith, pursuant to the Meyers-Milias-Brown Act (Government Code Sections 3500 et. seq.). Consequently, as the City Council possesses the authority to resolve the impasse in negotiations pursuant to the Meyers-Milias-Brown Act and Section IV of the City's Employer- Employee Relations Rules and Regulations, the City Council may choose to adopt and implement Exhibit A, which represents the salary and benefit provisions that are still at issue and constitute the City's last, best and final single year offer in these areas. DEPARTMENT CONTACT: Julie Clark 760-602-2440 julie.clark@carlsbadca.gov FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED * nn n CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER -SEE MINUTES nnnn Page 2 The City's last, best and final single year offer includes the following provisions: • TERM: January 1, 2010 to December 31, 2010 • COMPENSATION ADJUSTMENTS: No salary increases during the term • FLEXIBLE BENEFITS PROGRAM: Increase the City's contribution for each coverage level effective May 31, 2010 to the following amounts: Employee Only = $468/month Employee + 1 = $733/month Employee + 2 or more = $910/month • RETIREMENT BENEFITS: A. Decrease the Employer Paid Member Contribution (EPMC) currently paid by the City from 8% to 0% and have CFA represented employees pay the full 9% cost of the employee's share of retirement effective May 31, 2010. B. Implement a two-tiered retirement plan that will apply to all sworn members entering membership for the first time in a City of Carlsbad fire safety classification on or after October 4, 2010. The terms of the second tier shall include the following: 1. The 2% @ 50 retirement formula (as illustrated in Exhibit B) 2. No Employer Paid Member Contribution (EPMC) 3. No Reporting the Value of EPMC as compensation 4. The use of a 3-year Final Average Earnings (FAE) formula for final compensation calculation C. Put forth a Charter amendment for the November 2010 ballot prohibiting increases in the 2% @ 50 retirement formula absent approval of the electorate. • REPORTING VALUE OF UNIFORMS TO CALPERS: Effective May 31, 2010, report to CalPERS the amount of $17.31 bi-weekly as special compensation related to the monetary value of the required uniforms, excluding boots. Should the City Council decide to adopt and implement the salary and benefit terms and conditions for employees represented by the CFA as outlined above, this would necessitate: 1. Amending the resolution with the California Public Employees' Retirement System (CalPERS) regarding the City's Employer Paid Member Contribution (attached). 2. Amending the contract with CalPERS to create a 2nd tier retirement plan for fire safety employees at the 2% @ 50 retirement formula. Page 3 The City's Employer-Employee Relations Rules and Regulations state that the City Council may resolve the impasse that exists between the parties after a hearing on the merits of the dispute has been conducted. The City Council will hear from both the City representatives and the CFA representatives in an open meeting, and both parties will adhere to the following process: 1. Each party will have fifteen (15) minutes to make its presentation, and the City (the party declaring impasse) will make its presentation first. 2. The City Council will hear from any interested parties that have filled out a "Request to Speak" form. 3. The City Council may ask questions of staff or any party. 4. The City Council may adjourn to closed session if necessary to deliberate. 5. The City Council will return to open session and announce its decision on how to resolve the impasse. FISCAL IMPACT: It is estimated that the City will realize a savings of approximately $390,000 during the term as a result of this action. ENVIRONMENTAL IMPACT: This amendment is statutorily exempt from CEQA pursuant to Public Resources Code Section 21080(b)(1). EXHIBITS: 1. Resolution No. 2010-117 resolving the impasse and adopting and implementing certain salary and benefit terms and conditions for employees represented by the Carlsbad Firefighters' Association, Inc. 2. Exhibit A - City's Last, Best and Final single year offer to the Carlsbad Firefighters' Association, Inc. 3. Exhibit B - CalPERS Retirement Formulas for Local Safety Members. 4. Resolution No. 2010-118 amending the City's California Public Employees' Retirement System (CalPERS) Employer Paid Member Contribution for local fire safety employees. 1 RESOLUTION NO. 2010-117 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, RESOLVING THE IMPASSE 3 AND ADOPTING AND IMPLEMENTING CERTAIN SALARY 4 AND BENEFIT TERMS AND CONDITIONS FOR EMPLOYEES REPRESENTED BY THE CARLSBAD 5 FIREFIGHTERS'ASSOCIATION, INC. 6 WHEREAS, the Carlsbad Firefighters' Association, Inc. (CFA) is the exclusively 7 recognized employee organization representing fire safety employees under the City's o Employer-Employee Relations Rules and Regulations; and 9 WHEREAS, the City and the CFA have previously entered into a Memorandum 10 of Understanding which took effect on January 1, 2008, and expired on December 31, 11 2009; and 12 WHEREAS, the City and the CFA began meeting and conferring on November 14 23, 2009 in an effort to reach agreement on a Memorandum of Understanding and have 15 held three additional subsequent meetings over the last six months, supplemented by two 16 additional proposals exchanged electronically; and 17 WHEREAS, the parties have failed to reach an agreement and there is no 18 possibility of settlement by direct discussion between the City and CFA and all possibilities 19 of settlement have been exhausted; and 20 WHEREAS, the City has initiated the impasse procedure by filing a written 21 request for an impasse meeting together with a statement of its position on all disputed 22 issues in negotiations; and WHEREAS, the City's written request for an impasse meeting was sent to both 25 the CFA and the City Manager on March 26, 2010; and 26 27 28 1 WHEREAS, this impasse meeting was held on April 30, 2010 for the purpose of 2 reviewing the position of the City and the CFA in a final effort to reach agreement on all •5 disputed issues; and 4 WHEREAS, the City and the CFA were unable to reach agreement on the 5 disputed issues; and 6 WHEREAS, as a result of said negotiations and impasse procedures, the City 1 has developed and has made a last, best and final single year offer to the CFA; and 8 9 WHEREAS, as of April 30, 2010, the CFA has rejected said final offer; and 10 WHEREAS, it is therefore apparent that the City and the CFA have reached an 11 impasse in their negotiations of an agreement covering said employees for a term which 12 includes January 1, 2010 through December 31, 2010; and 13 WHEREAS, the January 1, 2008 through December 31, 2009 agreement 14 between the City and the CFA has now expired and said employees are no longer 15 covered by any agreement; and 16 WHEREAS, the City Council believes it is in the best interest of the City to 17 impose the salary and benefit provisions that are still at issue and that constitute the City's 18 last, best and final single year offer in these areas; and 2Q WHEREAS, the City Council possesses the power to resolve the impasse in 21 negotiations pursuant to the Meyers-Milias-Brown Act (Government Code Sections 3500 22 et. seq.) and Section IV of the City's Employer-Employee Relations Rules and 23 Regulations. 24 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of 25 Carlsbad, California, as follows: 26 1. That the above recitations are true and correct. 27 28 1 vji \ji luci 3. That an impasse in negotiations for an MOU between the City and the of Understanding (MOU) during the meet and confer sessions are withdrawn. 3 4.. CFA exists. 5 4. That the City Council determines that the impasse in negotiations between 2. That the offers made by the City to the CFA for a successor Memorandum the City and the CFA shall be resolved by adopting and implementing the salary and benefit provisions that constitute the City's last, best and final single year offer in these areas as set forth in Exhibit A, attached hereto and incorporated by reference herein. 5. That the City Council directs staff to amend the City's contract with the California Public Employees' Retirement System (CalPERS) to create a 2nd tier retirement plan for fire safety employees at the 2% @ 50 retirement formula. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 // 22 // 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 18th day of May, 2010, by the following vote to wit: AYES: Council Members Lewis, Kulchin, Hall, Packard NOES: Council Member Blackburn ABSENT: None ClAUDE A' LEWIS, "Mayor ATTEST: LORBAIN (SEAL) '""«,*>* IMPOSED CHANGES INCORPORATED INTO THE MEMORANDUM OF UNDERSTANDING ("MOU") BETWEEN THE CITY OF CARLSBAD AND THE CARLSBAD FIREFIGHTERS' ASSOCIATION, INC. This document incorporates changes imposed by City Council action at a Special Meeting on May 18, 2010 into the Memorandum of Understanding between the City of Carlsbad and the Carlsbad Firefighters' Association, Inc. For administrative ease, references to a Memorandum of Understanding (MOU) throughout this document have been retained. The sections outlined below were changed as a result of the City Council's action. 1. ARTICLES. TERM 2. ARTICLE 8. COMPENSATION ADJUSTMENTS 3. ARTICLE 15. FLEXIBLE BENEFITS PROGRAM 4. ARTICLE 18. RETIREMENT BENEFITS 5. ARTICLE 31. REPORTING VALUE OF UNIFORMS TO CALPERS All revised sections are marked with an asterisk (*) in their title in this document. All other sections from the prior MOU (January 1, 2008 through December 31, 2009) between the City of Carlsbad and the Carlsbad Firefighters' Association, Inc. shall remain in full force and effect through December 31, 2010. c' SUMMARY OF IMPOSED CHANGES INCORPORATED INTO THE 2010 MOU BETWEEN THE CITY OF CARLSBAD AND THE CARLSBAD FIREFIGHTERS' ASSOCIATION, INC. 1. ARTICLES. TERM Term defined as January 1, 2010 to December 31, 2010 2. ARTICLE 8. COMPENSATION ADJUSTMENTS No salary increases during the term 3. ARTICLE 15. FLEXIBLE BENEFITS PROGRAM Benefits Credits effective May 31, 2010 equal to the following amounts: Employee Only Coverage Level = $468/month Employee + 1 Coverage Level = $733/month Employee + 2 or more Coverage Level = $910/month 4. ARTICLE 18. RETIREMENT BENEFITS A. Employer Paid Member Contribution decreased from 8% to 0% effective May 31, 2010. CFA-represented employees pay the full 9% cost of the employee's share of retirement effective May 31, 2010. B. A two-tier retirement plan will apply to all sworn members hired on or after October 4, 2010. The terms of the second tier shall include the following: 1. 2% @ 50 formula 2. no Employer Paid Member Contribution (EPMC) 3. no Reporting the Value of EPMC as compensation 4. 3-year Final Average Earnings (FAE) for final compensation calculation C. During the November 2010 election the City will put a charter amendment on the ballot prohibiting increases in the 2% @ 50 retirement formula absent approval of the electorate 5. ARTICLE 31. REPORTING VALUE OF UNIFORMS TO CALPERS Effective May 31, 2010, the amount of $17.31 reported to CalPERS bi-weekly as special compensation related to the monetary value of the required uniforms, excluding boots. MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF CARLSBAD AND THE CARLSBAD FIREFIGHTERS' ASSOCIATION, INC. Term: January 1, 2010- December 31, 2010 Article Article Article Article Article Article Article Article Article Article 10 Article 11 Article 12 Article 13 Article 14 Article 15 Article 16 Article 17 Article 18 Article 19 Article 20 Article 21 Article 22 Article 23 Article 24 Article 25 Article 26 Article 27 Article 28 Article 29 Article 30 Article 31 TABLE OF CONTENTS Preamble Recognition Implementation Term* Renegotiation Retention of Benefits City Rights No Strike and No Lockout Compensation Adjustments* Bereavement Leave Long Term Disability Annual Vacation Leave Sick Leave Accrual Bilingual Pay Linen Provision, Maintenance, and Replacement Flexible Benefits Program* Communications Holidays Retirement Benefits* Provision of 1959 PERS Survivors' Benefit Compensatory Time Flexible Work Schedules for Deputy Fire Marshal Americans With Disabilities Act Family Leave Act Discipline of Employee Grievance Procedure Alcohol and Drug Policy Authorized Agents Full Understanding, Modification, Waiver Provisions of Law Paramedic License Pay Reporting Value of Uniforms to CalPERS* Page Page Page Page Page Page Page Page Page Page Page Page Page Page Page Page Page 8 Page 8 Page 8 Page 9 Page 9 Page 11 Page 11 Page 11 Page 11 Page 13 Page 17 Page 21 Page 21 Page 22 Page 23 Page 23 in MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding is made and entered into as of the date of formal approval hereof by the City Council of the City of Carlsbad, by and between designated management representatives of the City of Carlsbad (hereinafter referred to as the "City") and the designated representatives of the Carlsbad Firefighters' Association, Inc. (hereinafter referred to as "CFA, Inc.")- PREAMBLE It is the purpose of this Memorandum of Understanding (hereinafter referred to as "Memorandum") to promote and provide for harmonious relations, cooperation, and understanding between the City management representatives and the local safety fire employees covered under this Memorandum; to provide an orderly and equitable means of resolving any misunderstandings or differences which may arise under this Memorandum; and to set forth the agreement of the parties reached as a result of good faith negotiations regarding wages, hours, and other terms and conditions of employment of the employees covered under this Memorandum, which agreement the parties intend jointly to submit and recommend for City Council approval and implementation. ARTICLE 1. RECOGNITION The City of Carlsbad recognizes CFA, Inc. as the majority representative for all classifications in this Unit, as set forth in the Petition for Recognition, submitted November 3, 1991, in accordance with the provisions of Section 2.48.090 (1) of the Carlsbad Municipal Code. ARTICLE 2. IMPLEMENTATION This Memorandum constitutes a mutual recommendation to be jointly submitted to the City Council following ratification of the Memorandum by the membership of CFA, Inc. It is agreed that this Memorandum shall not be binding upon the parties, either in whole or in part, unless and until the City Council acts by majority vote to formally approve and adopt this Memorandum. It is further agreed that, if the City Council approves and adopts this Memorandum, City management will act in a timely manner to make the changes or recommend the City Council make the changes, in City ordinances, resolutions, rules, policies, and procedures necessary to implement this Memorandum. ARTICLE 3. TERM* The term of this Memorandum shall be from January 1, 2010, through December 31, 2010. As of January 1, 2010, the terms of this Memorandum will supersede the provisions of the prior Memorandum approved by Resolution No. 2008-062 adopted by the City Council of the City of Carlsbad on March 4, 2008. ARTICLE 4. RENEGOTIATION In the event either party desires to meet and confer in good faith on the terms of a successor Memorandum, that party shall serve upon the other a notice of such intent approximately one hundred twenty (120) days prior to expiration of the Memorandum. Not more than thirty (30) days following such notice the parties shall meet. At such meeting, the parties will decide on a date for the mutual exchange of the issues each wishes to address during the meet and confer process. Such exchange shall occur not more than thirty (30) days after such meeting. ARTICLE 5. RETENTION OF BENEFITS The employees represented by CFA, Inc., shall retain all present benefits for the term of this agreement, as amended by this Memorandum, subject to the following provisions: • Matters That Fall Within the Scope of Representation: The City agrees to give advance notice and opportunity to meet and confer on the subject of current wage levels and benefits, as matters which fall within the scope of representation, before taking any action impacting employees within the bargaining unit. • Management Rights: The City's decisions regarding staffing levels, station closures, layoffs, reorganization, and furloughs which the City may elect to utilize to address fiscal difficulties it faces now or in the future, are management rights. Nevertheless, the City agrees to give advance notice and the opportunity to discuss these subjects before taking any action impacting employees within the bargaining unit. ARTICLE 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 service; 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 methods, means, and personnel by which government operations are to be conducted; 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. ARTICLE 7. NO STRIKE AND NO LOCKOUT A. No Strike. During the term of this Memorandum and in accordance with Labor Code Section 1962, neither the employees nor any agents or representatives will instigate, promote, sponsor, engage in, or condone any strike (including sympathy strike), slowdown, concerted stoppage of work, sickouts, or any other intentional disruption of the operations of the City, regardless of the reason for so doing. B. Penalty. If a strike occurs in violation of Article 7. A. or Labor Code Section 1962, the City may utilize any legal remedies available to it to halt the strike. In addition, any employee engaging in activity prohibited by Article 7.A. or Labor Code Section 1962, or who instigates or gives leadership to such activity, shall be subject to disciplinary action. C. No Lockout. During the term of this Agreement, the City will not instigate a lockout over a dispute with the employees so long as there is no breach of Section 7.A. D. Association Official Responsibility. Each employee who is an officer of CFA, Inc. occupies a position of special trust and responsibility in maintaining and bringing about compliance with the provisions of this Article. The employees agree to inform members of their obligations under this Memorandum and Labor Code Section 1962 and to direct them to return to work. E. Non-discrimination Clause. Neither City nor CFA, Inc. shall interfere with, intimidate, restrain, coerce, or discriminate against employees covered by this Memorandum because of exercise of rights to engage or not engage in CFA, Inc. activity or because of the exercise of any right provided to the employees by this Memorandum. ARTICLE 8. COMPENSATION ADJUSTMENTS* There shall be no salary increases during the term of this Memorandum. ARTICLE 9. BEREAVEMENT LEAVE An employee working a 112 hours/pay period schedule may use up to two shifts (48 hours) of paid leave if required to be absent from duty due to the death of a member of the employee's immediate family. The usage of bereavement leave, however, is limited to three consecutive days which may or may not include a scheduled shift(s). An employee working an 80 hours/pay period schedule may use up to three work shifts of paid leave if required to be absent from duty due to the death of a member of the employee's immediate family. Additional time off may be authorized by the Fire Chief or his/her designee and charged to accrued vacation or treated as leave without pay. The "immediate family" shall be defined as: spouse, child, parent, sibling, grandparents (whether natural, legally adopted, step, or in-law) or any person over which the employee acts as legal guardian, or a verifiable current member of the immediate household. The employee may be required to submit proof of the family member's death before being granted paid leave. I3 ARTICLE 10. LONG-TERM DISABILITY The City and CFA agree that CFA will contract directly with an insurance company to provide long-term disability benefits for represented employees. ARTICLE 11. ANNUAL VACATION LEAVE A. Basis of Accrual The City and CFA, Inc., agree to continue the following annual vacation leave schedule for all employees working a 112 hours/pay period schedule: 1 6 10 11 12 13 16 through through through through through through and over 5 10 11 12 13 15 full calendar years full calendar years full calendar years full calendar years full calendar years full calendar years full calendar years of continuous service of continuous service of continuous service of continuous service of continuous service of continuous service of continuous service -128 hours -192 hours -205 hours -218 hours -231 hours -244 hours -256 hours The City and CFA, Inc., agree to continue the following annual vacation leave schedule for all employees working an 80 hours/pay period schedule: 1 6 10 11 12 13 16 through through through through through through and over 5 10 11 12 13 15 full calendar years full calendar years full calendar years full calendar years full calendar years full calendar years full calendar years of continuous service of continuous service of continuous service of continuous service of continuous service of continuous service of continuous service - 80 hours -120 hours -128 hours -136 hours -144 hours -152 hours -160 hours B. Vacation Accrual All employees working a 112 hours/pay period schedule shall be entitled to earn and accrue up to and including four hundred and forty-eight (448) hours of vacation. No employee working a 112 hours/pay period schedule will be allowed to earn and accrue vacation hours in excess of the four hundred and forty-eight (448) hour maximum. All employees working an 80 hours/pay period schedule shall be entitled to earn and accrue up to and including three hundred and twenty (320) hours of vacation. No employee working an 80 hours/pay period schedule will be allowed to earn and accrue vacation hours in excess of the three hundred and twenty (320) hour maximum. Department Heads will encourage the taking of accrued vacation leave. If there are unusual circumstances that would require an employee to exceed the vacation accrual maximum, he/she must submit a request in writing to the Fire Chief and the City Manager. The Fire Chief and the City Manager may grant such a request if it is in the best interest of the City. Requests will be handled on a case-by-case basis and will be considered only in extreme circumstances. C. Vacation Conversion Each January, during a pay period to be determined by the City Manager or his/her designee, all employees working a 112 hours/pay period schedule shall be allowed to voluntarily convert up to one hundred twelve (112) hours of accrued vacation to cash, provided that they have used at least one hundred twelve (112) hours of vacation during the prior calendar year, as defined by the pay periods in that calendar year. Each January, during a pay period to be determined by the City Manager or his/her designee, all employees working an 80 hours/pay period schedule will be allowed to voluntarily convert up to eighty (80) hours of accrued vacation to cash, provided that they have used at least eighty (80) hours of vacation during the prior calendar year, as defined by the pay periods in that calendar year. D. Effects of Holiday on Vacation Leave For all employees who work an 80 hours/pay period schedule, in the event one or more authorized municipal holidays fall within a vacation leave, such holiday shall not be charged as vacation leave, but shall be credited as a holiday. E. Effect of Leave of Absence on Accrual of Vacation Leave An employee's accumulation of vacation leave will cease after the completion of two (2) full scheduled pay periods in which the employee has not received compensation due to a leave of absence without pay. Accrual will be reinstituted beginning the first day of the first full pay period after the employee has returned to work. F. Compensation for City Work During Vacation Prohibited No person shall be permitted to work for compensation for the City in any capacity, except compensation for mandated court appearances, during the time of his/her paid vacation leave from City service. This clause shall not limit the City's right to recall an employee from vacation in the event of an emergency and place him/her on regular pay status. G. SchedulinR Vacations An employee may take his/her annual vacation leave at any time during the year, contingent upon determination by his/her Department Head that such absence will not materially affect the department. Each employee must consider the needs of the service when requesting annual vacation leave. An employee shall normally provide forty-eight (48) hours notice in advance of the day(s) he/she is requesting vacation time off. When a family emergency arises which necessitates the use of vacation time, an employee shall provide as much advance notice as possible considering the particular circumstances. H. Terminal Vacation Pay An employee with regular status separating from the City service who has accrued vacation leave shall be entitled to terminal pay in lieu of such vacation. No leave credit will be earned on terminal leave payments. When separation is caused by death of an employee, payment shall be made to the estate of such employee or, in applicable cases, as provided in the Probate Code of the State. ARTICLE 12. SICK LEAVE ACCRUAL All employees working a 112 hours/pay period schedule shall be entitled to accrue sick leave at a rate of 149 hours per year. All other employees shall be entitled to accrue sick leave at a rate of 96 hours per year. ARTICLE 13. BILINGUAL PAY The City will provide additional compensation to an employee, designated by the Human Resources Department, in the amount of $40.00 per pay period for the performance of bilingual skills. In order to qualify for and receive bilingual pay, employees must pass a bilingual proficiency test in the Spanish language as determined appropriate by the City. The City reserves the right to include other languages as eligible for bilingual pay at some future date. This article shall not be subject to the grievance procedure. ARTICLE 14. LINEN PROVISION. MAINTENANCE. AND REPLACEMENT The City agrees to provide one set of bed linen and two towels per person for all personnel working a 112 hours/pay period work schedule. To assist in maintenance, all fire stations will be equipped with washing machines and dryers; shift personnel will be responsible for maintaining their own linens and towels. The City agrees to replace linens and towels on an "as needed" basis, with a maximum replacement of once per calendar year. ARTICLE 15. FLEXIBLE BENEFITS PROGRAM* A. Employees represented by the CFA, Inc. will participate in a flexible benefits program which includes medical insurance, dental insurance, vision insurance and flexible spending accounts (FSAs). Each of these components is outlined below. Medical Insurance Al. During the term of this agreement, represented employees will be covered by the Public Employees' Medical and Hospital Care Act (PEMHCA) and will be eligible to participate in the CalPERS Health Program. The City will pay on behalf of all employees covered by this agreement and their eligible dependents and those retirees designated in Section D of this Article, the minimum amount per month required under Government Code Section 22892 of the PEMHCA for medical insurance through the California Public Employees' Retirement System (CalPERS). All active members of the association must enroll in one of the health plans offered through CalPERS. Effective May 31, 2010, the City shall contribute the following monthly amounts (called Benefits Credits) on behalf of each active employee and eligible dependents toward the payment of 1) medical premiums under the CalPERS health program, 2) contributions in the name of the employee to the City's flexible spending account(s), 3) contribution of some or all of the premium for dental coverage or vision coverage: (a) For employees with "employee only" coverage, the City shall contribute four hundred sixty-eight ($468) per month that shall include the mandatory payments to CalPERS. If the actual total premiums exceed the City's total contributions, the employee will pay the difference. (b) For employees with "employee plus one dependent" coverage, the City shall contribute seven hundred thirty-three ($733) per month that shall include the mandatory payments to CalPERS. If the actual total premiums exceed the City's total contributions, the employee will pay the difference. (c) For employees with "employee plus two or more dependents" coverage, the City shall contribute nine hundred ten ($910) per month that shall include the mandatory payments to CalPERS. If the actual total premiums exceed the City's total contributions, the employee will pay the difference. B. Under no circumstances will any unused Benefits Credits as outlined above be paid to the employee in cash. If the amount contributed by the City (Benefits Credits) exceeds the cost of the medical insurance purchased by the employee, the employee will have the option of using any "excess credits" to purchase dental insurance, vision insurance or to contribute to a healthcare or dependent care flexible spending account (FSA). C. Dental Insurance Represented employees are eligible to enroll in the City sponsored dental plan. Vision Insurance Represented employees are eligible to enroll in the City sponsored vision insurance plan. D. Each retired employee who was a member of this bargaining unit is covered by the Public Employees' Medical and Hospital Care Act and is eligible to participate in the California Public Employees' Retirement System (CalPERS) Health Program. Represented employees who retire from the City, either service or disability, shall be eligible to continue their enrollment in the CalPERS Health Program when they retire, provided that the individual is enrolled or eligible to enroll in a CalPERS medical plan at the time of separation from employment and their effective date of retirement is within 120 days of separation. The City will contribute the minimum amount per month required under Government Code Section 22892 of the PEMHCA toward the cost of each retiree's enrollment in the CalPERS Health Program. Direct authorization may be established for automatic deduction of payments for health insurance administered by CalPERS. ARTICLE 16. COMMUNICATIONS The parties agree to continue meeting at least once each month during the term of this agreement for the purpose of continuing communications on subjects of mutual concern. ARTICLE 17. HOLIDAYS The City shall observe the following scheduled paid holidays, consistent with the annual holiday schedule published by the Human Resources Department: New Year's Day Columbus Day Martin Luther King Jr. Birthday Veteran's Day Lincoln's Birthday Thanksgiving Washington's Birthday Thanksgiving Friday Memorial Day Christmas Day Independence Day One (1) Floating Holiday Labor Day Employees working a 112 hours/pay period schedule shall be compensated for eight (8) hours of holiday work at a rate of time and one half during the pay period in which the holiday occurs. The floating holiday will be compensated during the pay period inclusive of April 15. Employees working a 80 hours/pay period schedule will observe the scheduled paid holidays listed above, and will be allowed to use the floating holiday at the discretion of the employee upon prior approval of the Department Head. ARTICLE 18. RETIREMENT BENEFITS* 18.1 The City agrees to continue to pay the employer's contribution rate required by the California Public Employees' Retirement System (CalPERS) to maintain the level of benefits for employees covered by this Memorandum. 18.2 The City will contract with CalPERS to provide the "3% @ 50" retirement benefit for all local fire employees effective the pay period inclusive of January 1, 2004. 18.3 The City will report the value of Employer Paid Member Contributions (EPMC) as additional compensation to CalPERS for all local fire employees hired before October 4, 2010. 18. 4 Effective May 31, 2010, each local fire employee will pay the nine percent (9%) employee retirement contribution to CalPERS. This nine percent (9%) employee retirement contribution will be deducted from each employee's salary on a pre-tax basis by implementing provisions of section 414(h)(2) of the Internal Revenue Code (IRC). 18.5 A two-tier retirement plan will apply to all sworn members entering membership for the first time in a City of Carlsbad fire safety classification on or after October 4, 2010. The terms of the second tier shall include the following: a. 2% @ 50 formula b. no Employer Paid Member Contribution (EPMC) c. no Reporting the Value of EPMC as compensation d. 3-year Final Average Earnings (FAE) for final compensation calculation 18.6 During the November 2010 election the City will put a charter amendment on the ballot prohibiting increases in the 2% @ 50 retirement formula absent approval of the electorate. ARTICLE 19. PROVISION OF 1959 PERS SURVIVORS' BENEFIT The City agrees to provide the Fourth Level of the 1959 Survivors' Benefit. ARTICLE 20. COMPENSATORY TIME Employees shall be entitled to bank compensatory time in lieu of receiving overtime pay. For each hour of overtime worked, the employee will be entitled to 1.5 hours of compensatory time. Compensatory time is subject to the following conditions: A. EMPLOYEES WORKING A 112 HOUR/PAY PERIOD SCHEDULE: 1. Compensatory time shall be kept in an individual account for each employee. Accounts may be cashed out, at the employee's option, at the pay period falling on or directly following July 1st of each calendar year. This cash out will occur if the employee has provided written notice to the City by June 15th of their intent to cash out. In any event, all accounts shall be cashed out on or directly following December 1 st of each calendar year. 2. Compensatory time may not be used for leave time. 3. If an employee's sick leave balance drops below 100 hours, they are entitled to convert up to 9 shifts worth of banked compensatory time (on an hour for hour ratio) to sick leave, up to a maximum sick leave balance of 216 hours. B. EMPLOYEES WORKING AN 80 HOURS/PAY PERIOD SCHEDULE: 1. Overtime Any employee required to perform in excess of 40 hours in a 7 day cycle and/or in excess of an employee's normal work day shall receive compensation at the rate of time and one-half his/her regular rate of pay. The regular rate of pay shall include the following components in addition to base salary: 1) Bilingual Pay In determining an employee's eligibility for overtime, paid leaves shall be included in the total hours worked. Excluded from the total hours worked are duty free lunches, travel time to and from work, and time spent conducting bona fide volunteer activities. There shall be no pyramiding of overtime. Hours worked by an employee in any workday or workweek on which premium rates have once been allowed shall not be used again in any other overtime calculation other than computing total actual hours worked. Time worked shall be computed by rounding to the nearest quarter of an hour. 2. Compensatory Time In lieu of receiving overtime pay pursuant to Section 1 above, an employee may elect, subject to department approval, to receive compensatory time off on a time and one-half basis. No employee shall accrue more than 80 hours of such compensatory time. Should any employee exceed 80 hours of accrued compensatory time, he/she shall be paid at time and one-half his/her regular rate. An employee may use such compensatory time within a reasonable period after making the request if the use of compensatory time does not unduly disrupt the operations of the department. On December 1 of each year, an employee may elect to "cash out" any portion of his/her accrued compensatory time at his/her regular rate of pay. Notice shall be provided to the Human Resources Department no later than November 15 of the employee's election to "cash out" a portion of his/her accrued compensatory time. This "cash out" shall be paid during the first pay period in December. 10 ARTICLE 21. FLEXIBLE WORK SCHEDULES FOR FIRE PREVENTION Employees hired by divisions currently operating on an alternative work schedule shall be subject to having their daily work schedule changed at the sole discretion of the department. Such changes include, but are not limited to, a) number of days/hours to be worked on a daily basis and in a payroll period; b) normal days off; and c) starting/ending times of assigned shifts. This article shall not be subject to the grievance procedure. 9/80 Alternative Work Schedule: The parties acknowledge that they met and conferred in good faith over the terms and conditions for implementation of a 9/80 work schedule for the Deputy Fire Marshal. The result of that meeting and conferring is reflected in the City of Carlsbad's Administrative Order No. 57, by which the parties will control implementation of the 9/80 schedule. This article shall not be subject to the grievance procedure. ARTICLE 22. AMERICANS WITH DISABILITIES ACT The parties acknowledge the applicability of the Americans With Disabilities Act (ADA) and intend to apply and implement this MOU so as to comply with the ADA. The parties agree to consult if compliance with the ADA may require modifying the provisions of this MOU. ARTICLE 23. FAMILY LEAVE ACT The parties acknowledge the applicability of the Family Leave Act (Act) and intend to apply and implement this MOU so as to comply with the Act. The parties agree to consult if compliance with the Act may require modifying the provisions of this MOU. ARTICLE 24. DISCIPLINE OF AN EMPLOYEE 24.1 The City may discipline a regular employee for just cause. In the case of disciplinary action involving suspension, demotion or discharge, the employee shall be given notice of the action to be taken, the evidence or materials upon which the action is based, and an opportunity to respond to the Fire Chief either orally or in writing, provided the employee requests the opportunity within seven (7) calendar days of the notice of the action. The above process will occur prior to the imposition of the discipline. 24.2 Except as provided in Section 24.3, an employee has the right to appeal discipline according to the appeal procedure as set out below. Written notice of discipline shall inform and remind the disciplined employee of this right. Hearing Officer. The employee or employee organization and the City agree that the advisory hearing will be conducted before a hearing officer selected by the parties from a list provided by the California State Mediation and Conciliation Service. If the parties cannot mutually agree on the hearing officer they will use a strikeout procedure using a 11 list of seven names provided by the California State Mediation and Conciliation Service. The appellant will have the prerogative of striking the first name. The City will bear all administrative costs associated with an appeal of discipline and the subsequent hearing; including the hearing officer, court reporter and transcription costs, if any. The employee or employee organization will be responsible for the cost of his or her own representation or attorney fees and preparation of documents. 24.3 A probationary employee (entry level or promotional) rejected during the probationary period shall not be entitled to appeal such rejection to the Hearing Officer. 24.4 Right of Appeal. Within seven (7) calendar days of receipt of the notice of discipline, a regular employee shall have the right to appeal to the Hearing Officer disciplinary action, except in instances where the right of appeal is specifically prohibited by the Personnel Ordinance or Personnel Rules, or this Article. 24.5 Method of Appeal. Appeals shall be in writing, signed by the employee, and filed with the Human Resources Director, who shall, within ten (10) calendar days after receipt of the appeal, inform the Hearing Officer of the action desired by the employee and the reasons why. The formality of a legal pleading is not required. 24.6 Notice. Upon the filing of an appeal, the Human Resources Director will set a date for the hearing on the appeal not less than ten (10) calendar days nor more than thirty (30) calendar days from the date of filing, unless the parties mutually agree to a later hearing date. The Human Resources Director will notify all interested parties of the date, time, and place of the hearing. 24.7 Hearings. Unless physically unable to do so, the employee must appear personally before the Hearing Officer at the time and place of the hearing. The employee may be represented at the hearing by any person or attorney the employee selects and may produce any relevant oral or documentary evidence. The City will state its case first and, at the conclusion, employee may then present evidence. Rebuttal evidence not repetitive may be allowed in the discretion of the Hearing Officer. Cross-examination of witnesses will be permitted. The conduct and decorum of the hearing will be under the control of the Hearing Officer, with due regard to the rights and privileges of the parties appearing before him/her. Hearings need not be conducted according to technical rules relating to evidence and witnesses. Hearings will be closed unless at least four (4) business days prior to the hearing the employee, in writing, requests an open hearing. If either party disagrees with the Hearing Officer's recommendation, that party may appeal within ten (10) calendar days to the City Manager. 24.8 Findings and Recommendations. The Hearing Officer will, within ten (10) calendar days after the conclusion of the hearing, certify his/her findings and decisions in writing to the 12 City Manager and to the employee. The City Manager will review the findings and recommendations of the Hearing Officer and may then affirm, revoke or modify the action taken as, in the City Manager's judgment, seems warranted, and the action taken will be final. The Hearing Officer may submit a minority or supplemental finding and recommendation. 24.9 Timelines. Any of the above timelines may be modified by mutual agreement of the parties. The parties understand that these timelines may need to be modified for reasons out of the control of either the City or CFA. ARTICLE 25. GRIEVANCE PROCEDURE 25.1 A grievance is an allegation made by an employee that the employee has been damaged or denied a benefit by the City due to misapplication or a mistaken interpretation of a specific provision of this Agreement, the City's Personnel Rules or, effective no later than January 1, 2009, any existing Fire Department Directive which falls within the subject matter contained in the scope of bargaining set forth in the Meyers, Milias Brown Act. 25.2 Reviewable and Non-Reviewable Grievances 25.2.1 To be reviewable under this procedure a grievance must: (a) Concern matters or incidents that have occurred. (b) Result from an act or omission by management regarding working conditions or other matters contained in this Agreement over which the Fire Chief has control. (c) Arise out of a specific situation, act, or acts which result in damage to the employee. (d) Arise out of a misinterpretation or misapplication of this Agreement. 25.2.2 A grievance is not reviewable under this procedure: (a) If it is a matter which would require a modification of a. policy established by City Council or by law; (b) Is reviewable under some other administrative procedure and/or rules of the City of Carlsbad (See, e.g., Article 24 Discipline), such as: 13 (1) Applications for changes in title, job classification, or salary. (2) Appeals from formal disciplinary proceeding. (3) Appeals from work performance evaluations. 25.3 Special Grievance Procedure Provisions: The following special provisions apply to the grievance procedure. 25.3.1 Procedure for Presentation: In presenting a grievance, an employee shall follow the sequence and the procedure outlined in Section 25.4 of this procedure. 25.3.2 Prompt Presentation: The employee shall discuss the grievance with an immediate supervisor promptly after (i.e., when grievant knew or should have known) the act or omission of management caused, the grievance. 25.3.3 Prescribed Form: The written grievance shall be submitted on a form prescribed by the Human Resources Director for this purpose. 25.3.4 Statement of Grievance: The grievance shall contain a statement of: (a) The specific facts or actions, including dates, which constitute the basis for the grievance. (b) The article that was misapplied or misinterpreted. (c) The damage suffered by the employee. (d) The relief sought. 25.3.5 Employee Representative: The employee may choose someone as a representative at any step in the procedure. No person hearing a grievance need recognize more than one representative for any one time, unless he/she so desires. 25.3.6 Interested Parties: Interested parties may provide information during the hearing of the grievance at any step of the grievance procedure. 25.3.7 Handled During Working Hours: Whenever possible, grievances will be handled during regularly scheduled working hours. 14 25.3.8 Extension of Time: The time limits within which action must be taken or a decision made as specified in this procedure may be extended by mutual written consent of the parties involved. A statement of the duration of such extension of time must be signed by both parties involved at the step to be extended. 25.3.9 Consolidation of Grievances: If the grievance involves a group of employees or if a number of employees file separate grievances on the same matter, the grievances may be handled as a single grievance. 25.3.10 Settlement: Any grievance shall be considered settled at the completion of any step if the grievant is satisfied or if the grievant does not appeal the matter to a higher authority within the prescribed time. 25.3.11 Reprisal: The grievance procedure is intended to assure a grieving employee the right to present a grievance without fear of disciplinary action or reprisal, provided the provisions of the grievance procedure are observed. Copies of grievance forms will not be placed in employee personnel records but will be maintained in separate files in the Human Resources Department. 25.4 Grievance Procedure Steps: The following procedure shall be followed by an employee submitting a grievance for consideration and action. 25.4.1 Discussion With Supervisor: The employee shall discuss the grievance with the employee's immediate supervisor informally. Within seven (7) calendar days, the supervisor shall give a decision to the employee verbally. 25.4.2 Step 1: If the employee and the supervisor cannot reach an agreement to resolve the grievance, the employee may within seven (7) calendar days present the grievance in writing to the supervisor. The supervisor shall memorialize the prior verbal decision on the grievance and present the grievance to the next-level supervisor within seven (7) calendar days. The next-level supervisor shall hear the grievance and shall give a written decision to the employee within seven (7) calendar days after receiving the grievance. This portion of this step shall be repeated as necessary until the next-level supervisor is a Division Chief. 25.4.3 Step 2: If the employee and the next-level supervisor cannot reach an agreement to resolve the grievance, the employee may within seven (7) calendar days present the grievance in writing to the Fire Chief. The Fire Chief shall hear the grievance and shall give the written decision to the employee within seven (7) calendar days after receiving the grievance. 25.4.4 Step 3: If the employee and Fire Chief cannot reach an agreement as to the solution of the grievance, the employee may file a written request with the Human Resources Director, within seven (7) calendar days, to have the grievance heard by a Hearing Officer selected via the process described in Section 25.4.7. The grievance shall also be presented to the Assistant City Manager who may conduct a meeting with the grievant and/or CFA representative to identify and clarify disputed issues and attempt to resolve the grievance prior to presentation of the grievance to the Hearing Officer. 25.4.5 Step 4: If the matter is not otherwise resolved, the Hearing Officer shall, within thirty (30) calendar days after receipt of the grievance, hear the grievance and render an advisory opinion to the City Manager. The City Manager shall, within fourteen (14) calendar days after receipt of the advisory opinion, notify the employee of the final action. 25.4.6 Any of the above steps may be waived by mutual agreement of the parties. 25.4.7 The employee or employee organization and the City agree that the advisory hearing will be conducted before a hearing officer selected by the parties from a list provided by the California State Mediation and Conciliation Service. If the parties cannot mutually agree on the hearing officer they will use a strikeout procedure using a list of seven names provided by the California State Mediation and Conciliation Service. The appellant will have the prerogative of striking the first name. All administrative costs associated with the cost of a grievance and the subsequent hearing; including the hearing officer, court reporter and transcription cost, if any, will be shared equally between the City and the Carlsbad Firefighters' Association. In the case that the Carlsbad Firefighters' Association does not support the grievance continuing to the advisory hearing by a hearing officer, all administrative costs associated with the cost of a grievance and the subsequent hearing; including the hearing officer, court reporter and transcription cost, if any, will be shared equally between the City and the employee, The employee or employee organization will be responsible for the cost of his or her own representation or attorney fees and preparation of documents. 16 ARTICLE 26. ALCOHOL AND DRUG POLICY I. POLICY It is the policy of the City of Carlsbad to provide, for its employees, a work environment free from the effects of drugs and alcohol consistent with the directives of the Drug Free Workplace Act. The City of Carlsbad agrees to use a clinical laboratory which is certified by the National Institute on Drug Abuse (NIDA), now known as the Substance Abuse & Mental Health Services Administration (SAMHSA). All procedures and protocols for collection, chain of custody and testing will be conducted consistent with standards required under SAMHSA certification. This policy is intended to accomplish that objective. A. Definitions - As Used in This Policy: 1. "Drug" means any substance which produces a physical, mental, emotional or behavioral change in the user, including but not limited to, prescription medications, heroin, cocaine, morphine and its derivatives, P.C.P., methadone, barbiturates, amphetamines, methamphetamines, alcohol, marijuana, and other cannabinoids. 2. "Workplace" means any site where City-assigned work is performed, including City premises, City vehicles or other premises or vehicles, while City-assigned work is being conducted, or within a reasonable time thereafter. 3. "Reasonable suspicion" means a standard for evidence or other indication of impairment of normal physical or mental skills by alcohol or drugs where such impairment could negatively affect work performance or could pose a threat to public or employee safety. B. Employee Responsibilities 1. As a condition of employment, employees shall: a. not engage in the unlawful manufacture, distribution, dispensation, possession or use of alcohol or drugs nor be under the influence of alcohol or drugs in the workplace or while on- call; b. submit to an alcohol and drug analysis and remain on the premises when requested to do so by City management, acting pursuant to this policy, or by law enforcement personnel; 17 c. notify the City of any conviction under a criminal drug statute (including any pleas of nolo contendere), if such conviction was based on a violation which occurred in the workplace, no later than five days after such conviction; (notification under this subsection does not relieve an employee from the disciplinary consequences of the conduct upon which a criminal conviction is based); and d. abide by all terms of this policy. 2. Employees are encouraged to notify their supervisors when taking any medication or drugs, prescription or non-prescription (over-the-counter medications), which may interfere with safe or effective performance of their duties or operation of City equipment. 3. Off-duty involvement with any controlled substance including, but not limited to manufacture, distribution, dispensing, possession, use or any conviction under a criminal drug statute whose scope and employment are relevant to City employment may result in disciplinary action up to and including termination if there is relevant nexus between such off- duty involvement and the employee's employment with the City, consistent with the legal requirements for disciplinary due process. C. Employer Searches For the purpose of enforcing this policy and maintaining a drug-free workplace, the City reserves the right to search, with or without prior notice to the employee, all work areas and property in which the City maintains full or joint control with the employee, including but not limited to City vehicles, desks, lockers, file cabinets, and bookshelves. These areas remain part of the workplace context even if the employee has placed personal items in them. Employees are cautioned against storing personal belongings in work areas under full or joint City control since such work areas may be subject to investigation and/or search under this policy. Employer searches shall occur when there is a determination of "reasonable suspicion" as defined herein. Such searches shall be conducted by persons having supervisory and/or other legal authority to conduct such searches. Searches will not normally occur without concurrence of more than one supervisor. Nothing herein shall prevent the City from taking appropriate action if there is an inadvertent discovery of evidence of drug or alcohol use. 18 D. Consequences of Violation of Policy 1. Failure to abide by the terms of this policy shall be grounds for disciplinary action, up to and including termination. 2. In addition to any disciplinary action, an employee who fails to abide by this policy may also be directed or allowed to satisfactorily participate in an approved alcohol or substance abuse assistance or rehabilitation program. E. Federal Motor Carrier Safety Improvement Act of 1999 and DOT regulations The parties acknowledge that the Federal Motor Carrier Safety Improvement Act of 1999 (see Attachment B) and the California Vehicle Code apply to unit members. The parties shall comply with the regulations developed by the Department of Transportation to enforce the Act. II. DRUG AND ALCOHOL ANALYSIS A. Pre-emplovment Drug and Alcohol Analysis 1. Prior to receiving an offer of employment, an otherwise successful candidate must submit to a drug and alcohol analysis. At the City's discretion, this analysis may be in the form of "breathalizer," urine, or blood analysis. 2. Persons whose results are positive for either drugs or alcohol will be rejected for City employment. B. Employee Drug and Alcohol Analysis 1. If a manager or supervisor of the City has reasonable suspicion that an employee is under the influence of drugs or alcohol while in the workplace or subject to duty, the employee shall be: a. Prevented from engaging in other work; and b. Required to submit to a drug and alcohol analysis. At the City's discretion, this analysis may be in the form of "breathalizer," urine, or blood analysis. 19 c. An employee may also be required to remain on the premises for a reasonable time until arrangements can be made to transport the employee to his or her home. 2. Some examples of "reasonable suspicion" as defined in Section I. A.3. include, but are not limited to, the following, when confirmed by more than one person having supervisory authority: a. slurred speech. b. alcohol odor on breath; c. unsteady walking or movement not related to prior injury or disability; d. an accident involving City property having no obvious causal explanation other than possible employee responsibility; e. physical or verbal behaviors that are disruptive, non-responsive, unusual for that employee or otherwise inappropriate to the workplace situation; f. attributable possession of alcohol or drugs; g. information obtained from a reliable person with personal knowledge that would lead a reasonably prudent supervisor to believe that an employee is under the influence of alcohol or drugs. 3. Refusal to remain on the premises or to submit to a drug and alcohol analysis when requested to do so by City management or by law enforcement officers shall constitute insubordination and shall be grounds for discipline, up to and including termination. 4. A drug and alcohol analysis may test for the presence of any drug which could impair an employee's ability to effectively and safely perform the functions of his or her job. 5. A positive result from a drug and alcohol analysis may result in disciplinary action, up to and including termination. 6. City agrees to take steps to protect the chain of custody of any drug test sample. 20 7. Employee will be placed on paid administrative leave pending the completion of any testing process and any investigation deemed necessary by the City. III. EMPLOYEE ASSISTANCE PROGRAM A. The City has a well-established voluntary Employee Assistance Program (EAP) to assist employees who seek help for substance abuse problems. The EAP is available for assessment, referral to treatment, and follow-up. Any employee of the City wishing confidential assistance for a possible alcohol or drug problem can call the EAP office and arrange for an appointment with a counselor. B. Employees who are concerned about their alcohol or drug use are strongly encouraged to voluntarily seek assistance through the EAP. All self- referral contacts are held in confidence by the EAP. C. Participation in the employee assistance program will not replace normal disciplinary procedures for unsatisfactory job performance or for violation of any City policy. ARTICLE 27. AUTHORIZED AGENTS For the purpose of administering the terms and provisions of this Memorandum of Understanding: A. City's principal authorized agent shall be the City Manager or a duly authorized representative. Address: 1200 Carlsbad Village Drive, Carlsbad, California 92008; Telephone (760) 434-2820, except where a particular City representative is specifically designated in connection with the performance of a specific function or obligation set forth herein. B. CFA, Inc., principal authorized agent shall be its President or duly authorized representative. Address: Carlsbad Safety Center, 2560 Orion Way, Carlsbad, California 92008-7280; Telephone: (760) 931-2127. ARTICLE 28. FULL UNDERSTANDING, MODIFICATION. WAIVER A. It is the intent of the parties that this Memorandum set forth the full and entire understanding of matters agreed to upon conclusion of meet and confer sessions which resulted in this Memorandum. Any other matters not contained herein, which were addressed during the course of the meet and confer process, resulting from this Memorandum, are superseded and terminated in their entirety. Any understanding or agreement, not contained herein, whether formal or informal, which occurred during the 21 course of meet and confer sessions, resulting in this Memorandum, are terminated or superseded in their entirety. B. It is the intent of the parties that this Memorandum be administered in its entirety in good faith during its full term. It is recognized that if during such term it may be necessary for the City to propose changes in matters within the scope of representation not contained in this agreement, the City shall notify CFA, Inc., indicating the proposed change prior to its implementation. If CFA, Inc., wishes to consult or negotiate with the City regarding the matter, CFA. Inc., shall notify the City within five (5) working days from the receipt of such notice. Upon receipt of such notice, the parties shall meet promptly in an earnest effort to reach a mutually satisfactory resolution of any problem arising as a result of the change instituted by the City. Where the City makes such changes because of the requirements of the law, the City shall not be required to negotiate the matter of compliance with any such law. Nothing herein shall limit the authority of the City to make such changes required during emergencies. However, the City shall notify CFA, Inc. of such changes as soon as practicable. Such emergency changes shall not extend beyond the period of emergency. "Emergency" shall be defined as an unforeseen circumstance requiring immediate implementation of the change. C. Failure by CFA, Inc. to request consultation or negotiations pursuant to Paragraph B shall not be deemed as approval of any action taken by the City. D. Except as specifically provided in this Memorandum, it is agreed and understood that each party hereto voluntarily and unqualifiedly waives its right and agrees that the other shall not be required to negotiate with respect to any other matters within the scope of negotiations during the term of this Memorandum. E. Any agreement, alteration, understanding, variation, waiver, or modification of any of the terms or provisions contained herein shall not be binding upon the parties hereto unless made and executed in writing by all parties hereto, and if required, approved and implemented by the City Council. F. The waiver of any breach, term, or condition of this Memorandum by either party shall not constitute a precedent in the future enforcement of all its terms and provisions. ARTICLE 29. PROVISIONS OF LAW It is understood and agreed that this Memorandum of Understanding is subject to all current and future applicable federal and state laws and federal and state regulations. If any part or provision of the Memorandum is in conflict or inconsistent with such above applicable laws, rules and 22 regulations, or is otherwise held to be invalid or unenforceable by any tribunal or competent jurisdiction, such part or provision shall be suspended and superseded by such applicable law or regulations, and the remainder of this Memorandum shall not be affected thereby. ARTICLE 30. PARAMEDIC LICENSE PAY Upon ratification of the MOU between the City and CFA, Inc., Fire Captains and Fire Engineers who retain their paramedic license and San Diego County accreditation will receive sixty-five dollars ($65.00) per pay period for paramedic license pay. Upon ratification of the MOU between the City and CFA, Inc., the pilot program defined in Resolution No. 97-607 adopted by the City Council of the City of Carlsbad on September 16, 1997 that authorized the payment of specialty pay for Fire Captains who were licensed paramedics and who functioned as paramedics at the direction of the Fire Chief will be discontinued. As of the first pay period of calendar year 2009, Fire Captains and Fire Engineers who retain their paramedic license and San Diego County accreditation will receive sixty-six dollars and ninety-five cents ($66.95) per pay period for paramedic license pay. ARTICLE 31. REPORTING VALUE OF UNIFORMS TO CALPERS * Effective May 31, 2010, all CFA-represented employees who are required to wear City-provided uniforms will have the amount of $17.31 reported to CalPERS bi-weekly as special compensation related to the monetary value of the required uniforms, excluding boots. ESI WITNESS WHEREOF, the parties hereto have caused their duly authorized representatives to execute this Memorandum of Understanding the day, month, and year first above written. CITY OF CARLSBAD LlSA HILDABRAND, City Manager Approved as to form: RONALD R. BALL, City Attorne CARLSBAD FIREFIGHTERS' ASSOCIATION, INC. ** CONTRACT NOT APPROVED BY CFA, IMPOSED BY CITY COUNCIL ON MAY 18, 2010 RICHARD FISHER, President 24 -u Safety Retirement Formulas •2% @ 55 '~+~ 2% @ 50 -*- 3% @ 55 -*- 3% @ 50 3.0% T—± * A A A • • • 1 * • 1 1 • 1.0% 50 51 52 53 54 55 56 57 58 59 60 Retirement Age 1 RESOLUTION NO. 2010-118 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF 3 CARLSBAD, CALIFORNIA, AMENDING THE CITY'S CALPERS EMPLOYER PAID MEMBER CONTRIBUTION 4 FOR EMPLOYEES REPRESENTED BY THE CARLSBAD FIREFIGHTERS' ASSOCIATION. INC.5 6 WHEREAS, the City Council of the City of Carlsbad has the authority to 7 implement Government Code Section 20691; 8 WHEREAS, the City Council of the City of Carlsbad has a written agreement with 9 the Carlsbad Firefighters Association Inc. (CFA) which specifically provides for a portion 10 of the normal member contributions to be paid by the City; WHEREAS, the City Council intends to modify its agreement with the CFA to 12 decrease the Employer Paid Member Contribution (EPMC); and 13 WHEREAS, the City Council has identified the following conditions for reduction 14 of the EPMC: 15 1, • The effective date of the amended Resolution shall be May 31, 2010 17 • This benefit shall apply to all employees in the following employee group and this 18 benefit shall consist of paying the related percentage of the normal member 19 contributions as EPMC as noted: 20 21 22 23 24 25 26 27 28 Employee Group 1. Carlsbad Firefighters' Association, Inc. Effective Date 5/31/2010 EPMC Percentage 0% 1 NOW, THEREFORE BE IT RESOLVED by the City Council of the City of 2 Carlsbad as follows: 3 1. That the above recitations are true and correct. 4 2. That the City Council wishes to comply with Section 20691 by adopting this 5 resolution. 6 3. That the City Council elects to pay Employer Paid Member Contributions 7 (EPMC), as set forth above.8 9 /// /// 10 /// 11 /// 12 /// 13 /// 14 '" III 15 /// 16 /// 17 /// 18 /// 19 '" III 20 /// 21 /// 22 /// 23 /» 24 '" III 25 /// 26 /// 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 18th day of May, 2010, by the following vote to wit: AYES: Council Members Lewis, Kulchin, Hall, Packard NOES: Council Member Blackburn ABSENT: None LORRAJNE (SEAL) -f -.T55T..- O "'*,.*>* All Receive For the Information of the: Order of Procedure CITY COUNCIL ACM ,DCM_ CA ^ CCMay 18 Impasse Hearing Date"/7 Mayor: > Explain process for the hearing • Each party will have 15 minutes to makes its presentation: The city will make its presentation first • Council may ask questions at any time • Anyone wishing to address this item must fill out a "Request to Speak" form. • Speakers will be called to the podium after both of the presentations. • Council may adjourn to Closed Session, if necessary • At conclusion of meeting, Council can either: o Send the parties back for further negotiation, OR o Adopt the resolutions in the agenda bill which resolve the impasse and impose the terms and conditions of the City's last, best and final offer. > Ask City Manager to introduce the item. Citv Manager: > Introduce item and the first speakers. > Introduce second speakers. Mayor; Take questions from council Mayor: Invite those who filled out speaker slips to the podium (5 minutes each or less if large number of slips) Mayor: Ask if any additional questions from the council Adjourn to closed session, if desired MAY 1 8 2010 CITY OF CARLSBAD CITY CLERK'S OFFICE Mayor: ASK FOR MOTION TO EITHER: • Send the parties back for further negotiation, OR • To adopt the resolutions. If motion made to adopt resolutions: Council: Adopt the resolutions in the agenda bill which resolve the impasse and impose the terms and conditions of the City's last, best and final offer Carlsbad Firefighters Association, IAFF Local 3730 and City of Carlsbad __________________________ 2009 MOU Negotiations Labor Market Comparison Firefighter Salary ranked 5th out of 14 City’s retirement contribution ranked 12th out of 14 Source: City Data based on known market through 3/2010 Known Labor Settlements in 2010 Without Second Tier Retirements Rancho Santa Fe Encinitas Vista North County Fire Protection District San Marcos Escondido City of Carlsbad Retirement Contribution Rates Effective Safety Date July 1 Employer Rate 1980 18.4% 1981 18.3% 1982 18.3% 1983 27.9% @50 for Safety 1984 26.3% 1985 26.2% 1986 24.6% 1987 22.5% 1988 18.6% 1989 18.8% City of Carlsbad Retirement Contribution Rates (CON’T) Effective Safety Date July 1 Employer Rate 1990 17.6% 1991 17.9% 1992 19.1% 1993 17.6% 1994 12.8% 1995 12.7% 1996 10.8% 1997 8.3% 1998 8.2% 1999 5.1% City of Carlsbad Retirement Contribution Rates (CON’T) Effective Safety Date July 1 Employer Rate 2000 3.3% 2001 0.5% 2002 3.5% 3% @ 50 for Police is reflected in the normal cost 2003 9.4% 1/1/04 our Safety rate increased to 15.951% to reflect 3@50 for Fire 2004 27.6% 2005 27.9% 2006 27.6% 2007 28.5% 2008 29.6% 2009 28.4% 2010 28.0% Carlsbad Retirement Contribution Rates 1983 -27.9% 2010 -28.0% Carlsbad’s Fiscal Condition FY 2009 Assets versus liabilities 19.6721 Total assets for $1.712 billion versus total liabilities of $87.031 million Source: FY 2009 Comprehensive Annual Financial Report (CAFR) City of Carlsbad FY 2009 Total Net Assets in All Funds $1.625 billion $572.764 million non capital (i.e., cash and/or investments) 51.3% or $297.248 million listed as unrestricted Source: FY 2009 CAFR p.35 Carlsbad Fiscal Condition FY 2009 general fund asset to liability ratio of: $6.29 in assets versus $1 in liabilities Source: FY 2009 CAFR Carlsbad Fiscal Condition FY 2009 General fund accumulated surplus and/or balance on a gap basis $125,604,953 of which $66,302,207 was unreserved Note: $59.3 million of general fund balance is reserved ($51.6 million) 87% of which has been reserved for an advance to the golf course enterprise fund. Source: FY 2009 CAFR City of Carlsbad Fiscal Condition FY 2009 Total general fund balance equal to 125.7% of FY 2009 expenditures and 111.3% of FY 2009 general fund revenue Source: FY 2009 CAFR City of Carlsbad Retirement Plans, Observation of John E. Bartel, City’s Consulting Actuary February 23, 2010: “No need to go the second tier unless there is a belief that the benefits are too high or for political reasons.” Contract Proposals by Carlsbad Firefighters, IAFF Local 3730 Alternative Proposal #1 Two year term Upon ratification all employees shall receive advancement to an additional pay step (5%) and simultaneously commence paying an additional 7% of member contribution to CalPERS (total equals 8%) Two tier benefit based on 2% at age 50 formula in separate 10 year MOU; City to contribute no less than normal cost and in 10th year bargain over benefit improvements based on any excess funding. City Council shall not place charter amendment on ballot. City shall implement Nationwide/ICMA loan option. Alternative Proposal #2 Extend current terms and conditions of MOU for one year until December 31, 2010 except as follows: Upon ratification all employees shall receive advancement to an additional pay step (5%) and simultaneously commence paying an additional 7% of member contribution to CalPERS (total equals 8%) City agrees to put before voters charter amendment requiring majority approval for any change in pension benefits or deferred compensation for any City employee effective on or after January 1, 2010. City shall implement Nationwide/ICMA loan option. City of Carlsbad Hearing on Impasse With Carlsbad Firefighters’ Association Inc. May 18, 2010 Summary of Meetings •Began negotiations: 11/23/09 •City declared impasse: 3/26/10 •Impasse meeting with City Manager: 4/30/10 Retirement Benefits •This impasse is about retirement benefits •Current retirement benefits are unsustainable •Corrections must be made now to ensure that costs do not inflate further •Costs are projected to keep going up because of higher benefits, lower returns and longer life spans 0.00% 10.00% 20.00% 30.00% 40.00% 50.00% 60.00% Fiscal Year 1987 1992 1997 2002 2007 2012 2017 Total Retirement Rate Paid by City -FIRE EMPLOYEES *Estimated rates subsequent to FY10-11 are based on analysis by Bartel & Associates, Inc., using current benefit formula and EPMC *Estimated •Currently, firefighters pay only 1% of their salaries toward their pensions out of a 9% required payment •The City pays 8% of salary to make up the required 9% employee contribution. That 8% is then reported to PERS as compensation, increasing the retirement benefits further •Example –An employee earning a base salary of $80,000 per year, will have $6,400 reported to PERS as compensation for a total of $86,400 •The City also pays approximately 29.6% of salary to PERS (in FY 2008-09) as an employer contribution for CFA members for a total combined rate of 37.6% of an inflated compensation •In FY 2001/02, the total combined rate was approximately 10% The current retirement formula for firefighters is 3% @ 50. A firefighter with 30 years experience can retire with a retirement benefit of 90% of their highest annual salary, usually in their early 50’s. Gross Pay Fire Suppression All data shown is annual amount * Additional Pay: holiday pay, bilingual pay, paramedic license pay ** Data as of 12/31/2009 Title Number of Employees Average Base Salary Average Additional Pay* Average Overtime Paid** Average Gross Pay PARAMEDIC FIREFIGHTER 36 $72,217 $4,104 $20,835 $97,156 FIRE ENGINEER 18 $77,353 $5,072 $19,887 $102,312 FIRE CAPTAIN 18 $88,244 $6,351 $24,702 $119,297 Annual Cost To The City For CFA Retirement Benefits in FY 2008-09 •Approximately $2,947,000 Salary Increases in Prior Fire Two-Year Contract January 2008 January 2009 Paramedic Firefighter 3.0%3.4% Fire Engineer 6.08%3.4% Deputy Fire Marshal 7.76%3.4% Fire Captain 6.09%3.4% Note: 41% of CFA, Inc. represented employees are also eligible for an annual 5% step increase Last, Best and Final City Proposal to FIRE 1-year Contract (1/1/10 –12/31/10) Change Effective Date 2nd Tier 2% @ 50 Retirement 3 year FAE 10/4/2010 Charter amendment Retirement City pays 0%5/31/2010 Member Contribution Employees pay all 9% Salary increase None Employee Only $468/mo Health "Benefits Credits"Employee + 1 $733/mo 5/31/2010 Paid by City Family $910/mo Value of Uniform $450/year 5/31/2010 Reported to CalPERS Estimated Annual Savings $780,000 Estimated Savings of 2nd Tier Formula –FIRE 1Final Average Earnings (FAE) used to calculate retirement benefit Estimated Savings (thousands) Year FIRE 2@50 3-yr FAE1 2010/11 $4 2011/12 $9 2012/13 $16 2013/14 $30 2014/15 $49 2015/16 $76 2016/17 $100 2017/18 $126 2018/19 $154 2019/20 $186 Total Over 10 yrs $750 13 Charter Amendment •“Section 502 Retention of Benefits Safety employees hired on or after October 4, 2010 (the effective date of the ordinance amending the City’s contract with CalPERS to create a second tier of retirement benefits for safety employees) shall not have their retirement benefit formula (commonly known as the 2% at 50 years of age formula) increased without an amendment to this section. The City Council may reduce this formula as provided in state law without an amendment to this section.”