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HomeMy WebLinkAbout2013-11-19; City Council; 21427; MOU Carlsbad City Employee Association Article 44CITY OF CARLSBAD - AGENDA BILL AMENDMENT TO THE 2013/2014 MEMORANDUM OF UNDERSTANDING WITH THE CARLSBAD CITY EMPLOYEES' ASSOCIATION REGARDING ARTICLE 44 DEPT. HEAD CITY ATTY. CITY MGR. y/l/" RECOMMENDED ACTION; Adopt Resolution No. 2013-268 approving an amendment to Article 44 ofthe 2013/2014 Memorandum of Understanding (MOU) between the City and the CaHsbad City Employees' Association (CCEA). ITEM EXPLANATION: Representatives ofthe City and the CaHsbad City Employees' Association (CCEA) reached an agreement on June 18, 2013 and signed a Memorandum of Understanding with a January 1, 2013 - December 31, 2014 contract term. The MOU included a provision to reopen negotiations within 30 days of ratification of the MOU to discuss changes to Article 44 of the MOU which outlines the process for layoff. The parties met on June 25, 2013 and reached a tentative agreement on revisions to Article 44 of the CCEA 2013/2014 MOU. On August 27, 2013, an amendment to the MOU was presented to the City Council that contained minor changes to the MOU language contained in Article 44. At that meeting, a majority ofthe City Council directed staff to continue negotiations with the Carlsbad City Employees' Association to increase the amount of severance an employee will receive from thirty (30) to ninety (90) days in the event of layoff. Staff has met and conferred with CCEA representatives over this change and negotiations concerning Article 44 ofthe CCEA MOU have been concluded. The following changes have been made and are included in Exhibit 2: • Employees who have been laid off from city service will receive ninety (90) days of severance pay. This severance pay will be granted in exchange for the employee agreeing to sign a Separation and General Release (Attachment A to Exhibit 2). • If two employees have identical City Service seniority, the order of layoff or demotion will be determined by using randomizing software instead of using the alphabetical order ofthe employees' surnames to determine seniority. • Paragraphs within the document have been reordered to make the process easier to follow. DEPARTMENT CONTACT: Julie Clark 760-602-2440 iclar@ci.carlsbad.ca.us FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED CONTINUED TO DATE SPECIFIC • DENIED • CONTINUED TO DATE UNKNOWN • CONTINUED • RETURNED TO STAFF • WITHDRAWN • OTHER-SEE MINUTES • AMENDED • Page 2 FISCAL IMPACT; The fiscal impact associated with this action cannot be predicted at this time. However, should an employee be impacted by the revised layoff provision, the fiscal impact would equate to sixty (60) days additional severance pay at the employee's base rate of pay at the time of layoff. ENVIRONMENTAL IMPACT; The proposed action does not qualify as a "project" under the California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15378 as it does not result in a direct or reasonably foreseeable indirect physical change in the environment. EXHIBITS; 1. Resolution No. 2013-268 approving an amendment to the 2013/2014 Memorandum of Understanding between the City of CaHsbad and the CaHsbad City Employees' Association (CCEA) regarding Article 44 - Layoff. 2. Amendment to the 2013/2014 Memorandum of Understanding between the City of Carlsbad and the Carlsbad City Employees Association (CCEA) - Article 44 (Layoff) with its Attachment A: Separation Agreement and General Release 11 12 13 14 1 RESOLUTION NO. 2013-268 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, 3 CALIFORNIA, APPROVING AN AMENDMENT TO THE 2013/14 MEMORANDUM OF UNDERSTANDING, ARTICLE 44 - LAYOFF, BETWEEN 4 THE CITY OF CARLSBAD AND THE CARLSBAD CITY EMPLOYEES' ASSOCIATION (CCEA) 5 ^ WHEREAS, representatives of the City and the Carlsbad City Employees' Association ^ (CCEA) met and conferred and reached agreement on a Memorandum of Understanding (MOU) 8 for the period from January 1, 2013 to December 31, 2014; and 9 WHEREAS, the MOU included a provision to reopen negotiations within 30 days of IQ ratification of the MOU to discuss changes to Article 44 of the MOU which outlines the process for layoff; and WHEREAS, the parties met on June 25, 2013 and reached a tentative agreement on revisions to Article 44 ofthe CCEA 2013/2014 MOU; and WHEREAS, on August 27, 2013, an amendment to the MOU was presented to the City Council that contained minor changes to the MOU language contained in Article 44. At that 15 meeting, a majority of the City Council directed staff to continue negotiations with the CCEA to 16 increase the amount of severance an employee will receive from thirty (30) to ninety (90) days 17 in the event of layoff; and WHEREAS, the parties have concluded negotiations and have reached a tentative agreement on revisions to Article 44 ofthe CCEA MOU which they desire to submit to the City Council for consideration and approval; and WHEREAS, the City Council has determined it to be in the public interest to accept such an agreement in the form of an Amendment to the 2013/14 Memorandum of Understanding 18 19 20 21 22 23 between the City of CaHsbad and the CaHsbad City Employees' Association (CCEA) - Article 44 24 (Layoff), marked as Exhibit 2 and incorporated by reference herein 25 NOW, THEREFORE, BE IT RESOLVED by the City Council for the City of Carlsbad, 26 California, as follows: 27 That the above recitations are true and correct 28 " 1 2. That the Amendment to the 2013/14 Memorandum of Understanding between 2 the City of CaHsbad and the CaHsbad City Employees' Association (CCEA) set forth in Exhibit 2 3 (with its Attachment A: Separation Agreement and General Release), attached hereto and made 4 a part hereof, is adopted. 5 // 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 28 PASSED, APPROVED AND ADOPTED at a Regular Meeting ofthe City Council ofthe City of Carlsbad on the 19*^ day of November, 2013, by the following vote to wit: AYES: NOES: Council Members Wood, Blackburn and Douglas. Council Members Hall and Packard. ABSENT: None. MATT HALL, Mayor ATTEST: BARBARA ENGLESON,dClity Clerk CCEA REVISED PROPOSAL ARTICLE 44 Date: September 16, 2013 SUBJECT TO RATIFICATION BY THE BARGAINING UNIT MEMBERSHIP, AND APPROVAL BY THE CITY COUNCIL, THE PARTIES HERETO AGREE TO INCLUDE IN THEIR SUCCESSOR MEMORANDUM OF UNDERSTANDING, Article 44 Layoff Layoff: The City may layoff an employee in the merit service because of material change in duties or organization or shortage of work and funds. The City will use its best efforts to give the employees as much notice as possible with a minimum of fourteen (14) calendar days prior to the effective date of a layoff. The appointing authority or designee shall notify the Human Resources Director of the intended action with reasons therefore. A copy of such notice shall be given the employee affected and CCEA. The name of the employee laid off shall be placed on the appropriate reemployment list as provided by these rules. Reduction in Force Procedures: The following procedures will apply to all probationary and permanent employees in the event of a reduction in the City work force. (a) City Service Seniority: City Service Seniority shall be determined as the period of total continuous service with the City as measured from the date of original appointment. This shall include periods of authorized leaves of absence. (b) Order of Reduction in Force: Whenever there is a reduction in force employees shall be selected for layoffs in the following order: (1) hourly and temporary employees in the affected classification series; (2) provisional and limited term employees in reverse order of their City Service Seniority in the affected classification series; (3) City probationary employees in reverse order of their City Service Seniority in the affected classification series; (4) and regular employees in reverse order of their City Service Seniority in the affected classification. (c) Reduction in Force-Demotion: Whenever there is a reduction in the work force in which one or more employees in a classification has been identified for layoff, the City shall demote the employee in that classification with the highest City Service Seniority to a vacancy. The employee identified for demotion to the vacant classification must have previously served in that classification and be determined to be currently qualified. An employee may refuse to accept a demotion and accept layoff without jeopardizing reemployment rights othen/vise proyided for in this procedure. The employee identified for demotion to the vacant classification must have previously served in that classification and be determined to be currently qualified. An employee may refuse to accept a Page 1 of 1 CCEA REVISED PROPOSAL ARTICLE 44 Date: September 16, 2013 demotion and accept layoff without jeopardizing reemployment rights otherwise provided for in this procedure. (d) Notification: Whenever there is a reduction in the work force requiring layoff, the City shall send written notice to the last known address of each employee affected by a layoff with copy to CCEA. The notice shall include the (1) reason for layoff, (2) classes to which the employee may demote within the City, if any, (3) effective date of action, (4) conditions governing retention on and reinstatement from reemployment lists, and (5) rules regarding waiver of reinstatement and voluntary withdrawal from the reemployment list. (e) Determining Order of Layoff and Demotion for Employees With Identical City Service Seniority: Should two or more employees have identical City Service Seniority, the order of layoff and demotion will be determined by the Human Resources Director who will use randomizing software to determine seniority. (f) Transfer: All effort will be made by the City to transfer any employee who is to be affected by a reduction in force to another vacant position for which such employee may qualify. (g) Order and Method of Demotion Pursuant to a Reduction in Force- Bumping: When required due to a reduction in force, employees shall be demoted in the following manner: (1) Employees who are demoted, who have held permanent status in a lower classification shall have the right to bump employees of lesser City Service Seniority in that lower classification. (2) Employees who have not actually held status in a lower classification shall be allowed to demote to a vacant position or to a position held by a City probationary employee in such lower class, but may not bump regular City employees already in that lower classification. (h) Reinstatement of Employees Demoted as a Result of a Reduction in Work Force: Employees who are demoted as a result of a reduction in force shall have their names placed on a reinstatement list, in order of their City Service Seniority. Vacant positions in which an employee has served within a classification series shall first be offered to employees on this list. (i) Reemployment of Employees Laid Off as a Result of a Reduction in Force: Employees who are laid off and who held permanent City status at the time of layoff shall have their names placed on a reemployment list for classifications at the same or lower salary range for which they qualify in the order of their City Service Seniority. Vacant positions in such classifications will Page 2 of 2 CCEA REVISED PROPOSAL ARTICLE 44 Date: September 16, 2013 be offered to eligible individuals on the reemployment list who qualify for such vacancies prior to an open or promotional recruitment. (j) Duration of Reinstatement and Reemployment Lists: The eligibility of individuals on the reinstatement and reemployment list shall extend for a period of two years from the date of demotion or layoff. Eligible individuals not responding to written notification of an opening after fourteen (14) calendar days shall have their names removed from either the reemployment or reinstatement list. (k) Restoration of Benefits Upon Reemployment Following a Reduction in Force: Upon reemployment following a reduction in force, an individual will have the following benefits restored: (1) Prior sick leave accruals. (2) City Service Seniority at time of layoff for purposes of determining merit increases, vacation accruals and future reduction in force. (3) The salary paid to an employee who is reemployed shall be equivalent to the salary paid at the time of layoff. If the employee chooses to be reemployed in a classification which has a salary range lower than the classification from which he/she was laid off, then salary placement will be equivalent to the salary paid at the time of layoff, or at the top of the salary range of the lower classification as reflected in the current effective salary plan at the time of reemployment, whichever is lower. (I) Payoff of Accruals Upon Layoff: Laid off employees are to be paid for all accrued holiday, vacation, compensation time and overtime when separated as a result of a layoff. The sick leave accruals of such employee will remain on the books and will be reinstated if they are reappointed. (m) Retirement Contribution: The disposition of the retirement contributions of a laid off employee shall be governed by the provisions of the State of California Public Employees' Retirement Law as contained in the Government Code. (n) Severance: CCEA represented employees involuntarily separated from the City service due to layoff shall receive ninety days (720 hours) of base salary, computed at the employee's actual salary at the time of separation, provided that the employee who was involuntarily separated enters into, executes, and does not rescind or revoke the Separation Agreement and General Release, attached hereto as Exhibit A and incorporated herein. The Separation Agreement and General Release is not subject to negotiation, either individually or collectively. Page 3 of 3 CCEA REVISED PROPOSAL ARTICLE 44 Date: September 16, 2013 Tentative Agreement entered into on: [Date] Pending City Council Approval On Behalf of tlie City of Carlsbad On Beiialf of CCEA: O By:_ ^\ I A Page 4 of 4 SEPARATION AGREEMENT AND GENERAL RELEASE This Separation Agreement and General Release of All Claims ("Agreement") is made and entered into by and between the City of Carlsbad ("CITY") and ("EMPLOYEE") with reference to the following facts: Due to economic reasons the CITY has decided to reduce its workforce by instituting a reduction in force or layoff in EMPLOYEE'S job classification. In consideration of the mutual covenants and promises contained herein, the parties hereto agree as follows: 1. Termination of Employment Relationship The employment relationship which existed between EMPLOYEE and the CITY prior to the effective date of this Agreement shall cease to exist as of , 20 , with EMPLOYEE'S last actual day at work being , 20 . 2. Benefits of Agreement A. In consideration of EMPLOYEE entering into this Agreement, the CITY will record EMPLOYEE'S separation from the CITY as a reduction in force when applying for unemployment with the State of California Employment Development Department (EDD). EMPLOYEE agrees to use the date of , 20 as the effective date of separation. B. While EMPLOYEE'S separation date is , 20_, any health insurance benefits EMPLOYEE receives will continue until , 20 ; dental and vision, if any, will continue until , 20 . C. EMPLOYEE will receive ninety days (720 hours) of base salary to be paid in a lump sum direct deposit within two weeks after this document has been received by the CITY and the right to rescind this Agreement, pursuant to Section 7 Right to Revoke Agreement, has expired. D. EMPLOYEE understands and agrees that EMPLOYEE will receive no further wage, severance, vacation or other similar payments from the CITY other than those vested benefits or rights of EMPLOYEE to which EMPLOYEE would othen/vise be entitled upon separation. E. EMPLOYEE agrees that he/she has not and will not file any complaints, charges or lawsuits against the CITY at any time hereinafter with any governmental agency or any court arising out of his/her employment with the CITY. EMPLOYEE further agrees not to institute or join any action, lawsuit or proceeding against the CITY arising out of his/her employment; however, he/she shall not be limited from pursuing claims or other enforcement activities for the sole purpose of enforcing EMPLOYEE'S rights under this Agreement. EMPLOYEE fully releases and discharges the CITY, its council members, officers, employees, agents and attorneys, from all actions, causes of action, claims, judgments, obligations, damages, and liabilities of whatsoever kind and character, including, but not limited to, any actions, causes of action, claims, judgments, obligations, damages, or liabilities relating to EMPLOYEE'S employment with the CITY, including, but not limited to, those arising out of any claims for violation of any alleged contract, express or implied; any covenant of good faith and fair dealing, whether express or implied; any tort; any administrative remedy; any federal, state, or local law, statute or regulation based on or related to the Americans with Disabilities Act (42 U.S.C. §§12101-12213); the Federal Family Medical Leave Act (29 U.S.C. 2601-2654); the California Family Rights Act (Gov. Code §§12945.1-12945.2); the Age Discrimination in Employment Act (29 U.S.C. §§621-634); Title VII, Civil Rights Act of 1964 (42 U.S.C. §§2000-2000(e)1- 17); and the California Fair Employment and Housing Act (Gov. Code § § 12900- 12996). EMPLOYEE understands and expressly agrees that this Agreement extends to all claims of every nature and kind whatsoever, known or unknown, suspected or unsuspected, past or present, and all rights under Section 1542 of the California Civil Code are hereby expressly waived. Section 1542 reads as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. 3. Entire Agreement This Agreement constitutes the sole and exclusive understanding of the parties and shall not be subject to modification in the absence of the mutual written consent of EMPLOYEE and the CITY. 4. Severability If any provision of this Agreement as applied to either party or to any circumstances shall be adjudged to be illegal, invalid or inoperable, such illegality, invalidity or inoperability shall not affect the remainder hereof, its validity or enforceability, in any jurisdiction. 5. Controlling Law This Agreement shall be construed and enforced in accordance with the laws of the State of California. Any action to enforce this Agreement shall be brought in the Superior Court of California, County of San Diego, North County Judicial District. 6. Advisement-to Consult with Experts The CITY offers no advice or counseling by way of this Agreement and strongly urges EMPLOYEE to seek appropriate advice or counsel from a qualified attorney or professional of EMPLOYEE'S choice and EMPLOYEE'S own expense. 7. Right to Revoke Agreement A. EMPLOYEE may revoke this Agreement within seven (7) business days of the date of EMPLOYEE'S signature. Revocation can be made by delivering a written notice of revocation to the CITY's current Human Resources Director. For this revocation to be effective, written notice must be received no later than close of business on the seventh (7th) business day after EMPLOYEE signs this Agreement. B. If EMPLOYEE exercises his/her right to revoke consent to this Agreement during the seven (7) day period after he/she signs this Agreement, this Agreement shall not be effective or enforceable and EMPLOYEE will not receive the payment and/or benefits described in Paragraph 2, Section C. 8. Non-Admission of Liability The parties recognize that the making of this Agreement is voluntary and should not in any way be construed as an admission or indication that the EMPLOYEE or the CITY violated any law, or regulation or any right founded in any applicable constitutional or statutory provision, common law, contract or public policy. The Parties expressly deny unlawful and/or wrongful conduct arising out of or in connection with the employment of EMPLOYEE and/or the termination of the employment relationship. 9. Reemployment Rights EMPLOYEE and CITY agree that any rights to reinstatement to any current or future vacancy will be governed by the layoff provision (Article 44) ofthe Memorandum of Understanding between the CITY and the Carlsbad City Employees' Association (CCEA) in effect at the time of the separation. 10. Effective Date of Agreement Provided no notice of revocation is received by CITY pursuant to Section 7, this Agreement shall become effective on the eighth (Sth) business day from the date in which this Agreement is signed and dated by EMPLOYEE. If the Agreement is not dated by Employee, then the effective date of this Agreement shall be the seventh (7th) calendar day after receipt of the Agreement by CITY. EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS READ THIS AGREEMENT AND THAT HE/SHE UNDERSTANDS IT AND IS VOLUNTARILY ENTERING INTO IT. IF EMPLOYEE IS AT LEAST 40 YEARS OF AGE AT THE TIME THIS AGREEMENT IS SIGNED BY SAID EMPLOYEE, YOU ARE HEREBY NOTIFIED THAT IN ACCORDANCE WITH THE AGE DISCRIMINATION IN EMPLOYMENT ACT (29 U.S.C. §§621-634), EMPLOYEE HAS BEEN GIVEN AT LEAST FORTY-FIVE (45) DAYS TO CONSIDER THIS AGREEMENT AND UNDERSTANDS THAT AFTER IT IS SIGNED, HE/SHE MAY REVOKE THIS AGREEMENT BY DELIVERING A WRITTEN NOTICE OF REVOCATION TO THE HUMAN RESOURCES DIRECTOR OF THE CITY OF CARLSBAD NO LATER THAN SEVEN (7) DAYS AFTER HE/SHE EXECUTES THIS AGREEMENT, AND THAT THIS AGREEMENT DOES NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL AFTER THE SEVEN (7) DAY PERIOD HAS EXPIRED. IN WITNESS HEREOF, CITY has executed and entered into this Agreement by causing its name to be subscribed hereunder by duly authorized officers. EMPLOYEE has executed and entered into Agreement by subscribing his/her name hereto. City of Carlsbad City Manager Date Employee Date Approved as to Form Date by City Attorney