Here's a small slice of the Federation's contact with the city
slice of it. Of particular interest is section 4.2. The current
contract will be negotiated in Oct. The last contract was for three years.
For those interested in the other side of the discussion, read Will
Aitchison's "The Rights of Law Enforcement Officers". He is an attorney and
has been practicing labor relations for 30 years.
ARTICLE 4
DISCIPLINE
Section 4.1 The City will discipline employees who have completed the required
probationary period only for just cause. The unit of measurement for any
suspensions which may be assessed shall be in hours. Investigations into an
employee's conduct which do not result in the imposition of discipline shall
not be entered into the employee's official personnel file.
Section 4.2 A suspension, written reprimand, demotion or discharge of an
employee who has completed the required probationary period may be appealed
through the grievance procedure as contained in Article 5 of this Agreement.
Also, an oral reprimand imposed on an employee who has completed the required
probationary period which results from a sustained finding by the Civilian
Review Authority following an evidentiary hearing may be appealed through the
grievance procedure as contained in Article 5 of this Agreement. In the
alternative, where applicable, an employee may seek redress through a procedure
such as Civil Service, Veteran's Preference, or Fair Employment. Except as may
be provided by Minnesota law or by Section 5.10 of this Agreement, once a
written grievance or an appeal has been properly filed or submitted by the
employee or the Federation on the employee's behalf through the grievance
procedure of this Agreement or another available procedure, the employee's
right to pursue redress in an alternative forum or manner is terminated.
Section 4.3 Employees shall receive copies of and be permitted to respond to
all letters of commendation or complaints that are entered and retained in the
official personnel file. Upon the written request of employees, the contents
of their official personnel file shall be disclosed to them, their Federation
Representative, and/or their legal counsel.
Section 4.4 � Investigatory Interviews.
(a) Before taking a formal statement from any employee, the City shall
provide to the employee from whom the formal statement is sought a written
summary of the events to which the statement relates. To the extent known to
the City, such summary shall include: the date and time (or period of time if
relating to multiple events) and the location(s) of the alleged events; a
summary of the alleged acts or omissions at issue; and the policies, rules or
regulations allegedly violated. Except where impractical due to the immediacy
of the investigation, the summary shall be provided to the employee not less
than two (2) days prior to the taking of his/her statement. If the summary is
provided to the employee just prior to the taking of the statement, shall be
given a reasonable opportunity to consult with a Federation representative
before proceeding with the scheduled statement.
(b) In cases where the City believes that providing the pre-statement
summary would cause a violation of the Minnesota Government Data Practices Act
or cause undue risk of endangering a person, jeopardizing an ongoing criminal
investigation or creating civil liability for the City, the City shall notify
the Federation�s President or attorneys of the reasons it believes that the pre-
statement summary should not be given.
(c) Nothing herein shall preclude an investigator, whether during or
subsequent to the taking of a formal statement, from soliciting information
which is beyond the scope of the pre-statement summary but which relates to
information provided during the taking of the statement and which could form
the basis of a disciplinary action.
(d) An employee from whom a formal statement is requested is entitled to have a
Federation representative present during the taking of such statement.
(e) For the purpose of this Section 4.4, a �formal statement� is a written,
recorded or transcribed record, whether in a narrative form or in response to
questions, which is requested to be provided by any sworn employee as part of
an investigation of alleged acts or omissions by a sworn employee(s) which may
result in the imposition of discipline against any sworn employee(s).
ARTICLE 5
SETTLEMENT OF DISPUTES
Section 5.1 � Scope. This article shall apply to all members of the
bargaining unit, but only as to resolution of grievances and not to interest
arbitration.
Section 5.2 - Letter of Inquiry. Any employee may initiate a �letter of
inquiry� for the purpose of requesting from the City or the Federation
information on salary, working conditions and/or benefits. The request shall
be presented to the Federation in writing. A Federation representative shall
process the letter of inquiry. Where the Federation representative believes it
necessary, may request in writing from the Director of Employer/Employee
Relations such information or interpretation necessary to enable the Federation
to prepare a response to the inquiry. The Director of Employer/Employee
Relations shall respond to such request by the Federation within ten (10) days
of receipt. The Federation then will respond to its member.
Section 5.3 - Informal Problem Resolution. From time to time, concerns
regarding possible violations of this agreement may arise. Many of these
concerns can be resolved informally. A concern that cannot be resolved
informally and which is subsequently presented to the Employer formally
pursuant to the procedures set forth in this Article is called a grievance.
Section 5.4 � Grievance Procedure. Grievances shall be resolved in the
manner set out below. The City will cooperate with the Federation to expedite
the grievance procedure to the maximum extent practical.
Definitions:
A �grievance� is any matter concerning the interpretation, application, or
alleged violation of any currently effective agreement between the City and the
bargaining unit.
A �disciplinary grievance� is a matter concerning the interpretation,
application, or alleged violation of Article 4.
A �non-disciplinary grievance� is a matter concerning the interpretation,
application, or alleged violation of any provision of the currently effective
agreement other than Article 4.
Non-disciplinary grievances shall be initiated at Step One. Disciplinary
grievances shall be initiated at Step Two.
Subd. 1. - Step One.
To initiate a non-disciplinary grievance, an employee (or a Federation
representative acting on behalf of the employee) shall, within the time period
specified below, inform the employee�s immediate supervisor of the grievance in
writing on the standard grievance form. If the employee has initiated the
grievance without the assistance of a Federation representative, the employee
shall present a copy of the grievance to the Federation at the time it is
presented to his/her supervisor. If an employee expressly requests a
discussion with the immediate supervisor concerning the written grievance, such
discussion shall take place within three (3) days after filing the grievance,
unless the time is mutually extended. The discussion with the immediate
supervisor shall be held with one of the following:
a. The employee accompanied by a Federation representative;
b. The Federation representative alone if the employee so requests;
c. The employee alone on his/her own behalf.
Within ten (10) days after the grievance is filed or the discussion meeting
concludes, whichever is later, the immediate supervisor shall state his/her
decision in writing, together with the supporting reasons, and shall furnish
one (1) copy to the employee who filed the grievance, one (1) copy to the
Federation, and one (1) copy to the Director of Employer/Employee Relations.
Each step one decision shall be clearly identified as a �step one decision.�
A grievance must be commenced at step one no later than twenty (20) calendar
days from the discovery of the grievable event(s) or from when the event(s)
reasonably should have been discovered, or twenty (20) calendar days from the
receipt of the Employer�s response to a related letter of inquiry, whichever is
earlier.
Subd. 2 - Step Two.
A. Initiation of disciplinary grievance.
A disciplinary grievance shall be commenced by the Federation by submitting to
the disciplined employee�s bureau head a written statement of the grievance on
the standard grievance form within twenty (20) days after the imposition of
discipline.
B. Appeal of Step One Decision on Non-disciplinary grievance.
If the step one decision on a non-disciplinary grievance is not satisfactory, a
written appeal may be filed by the Federation with the employee�s bureau head
within ten (10) days of the date of the step one decision. A copy of the
appeal shall be sent to the Director of Employer/Employee Relations.
C. Step Two procedure.
Upon request of either party, all necessary persons shall have a reasonable
opportunity to be heard at step two. If a meeting is requested by the
Federation, the bureau head shall schedule a meeting. Prior notification of at
least three (3) days shall be given to the Federation.
Within twenty (20) days after the meeting or the receipt of the initial
disciplinary grievance or of the non-disciplinary grievance appeal, whichever
is later, the bureau head shall present a written decision to the Federation.
The step two decision shall clearly identify that answer as a �step two
decision.�
A Class Grievance, one that impacts more than three (3) bargaining unit
members, may be initiated at Step 2.
Subd. 3 - Step Three.
If the step two decision is not satisfactory, a written appeal may be filed by
the Federation with the Chief of Police, within ten (10) days of the date of
the step two decision. Upon request of the Federation, a meeting shall be held
between the Chief of Police, and the Federation President. The meeting shall
be scheduled by the Chief of Police, and held within twenty (20) days after
receipt of the written appeal.
The Chief of Police, shall have the full authority of the City Council to
resolve the grievance.
Within twenty (20) days after the step three meeting or receipt of the step
three appeal, whichever is later, the Chief of Police shall send a written
response to the Federation. The step three decision shall clearly identify that
answer as a �step three decision.�
Subd. 4 - Step Four - Regular Arbitration.
Within twenty (20) days of the date of the step three decision the Federation
shall have the right to submit the matter to arbitration by informing the
Director of Employer/Employee Relations that the matter is to be arbitrated.
If the matter is to be arbitrated, a single arbitrator shall be selected from
the panel of mutually agreed upon arbitrators. The initial panel of
arbitrators and the process for removing, replacing and renewing the
arbitrators on the panel shall be established by the mutual written agreement
of the parties within thirty (30) days of the ratification of this agreement or
as soon thereafter as the parties are able to do so. Arbitrators shall be
selected from the panel on a rotating basis. If a grievance is referred to
arbitration before the parties are able to agree on the selection of a panel of
arbitrators, the party referring the grievance to arbitration shall petition
the Bureau of Mediation Services to provide a
list of nine (9) qualified arbitrators from which the parties may select an
arbitrator to hear the grievance. The Employer and Federation shall select an
arbitrator using the alternate strike method with the party exercising the
first strike selected by coin flip.
One representative of the Federation, the Grievant and all necessary employee
witnesses shall receive their regular salary and wages for the time spent in
the arbitration proceeding, if during regular work hours.
The arbitrator shall render a written decision and the reasons, therefore
resolving the grievance, and order any appropriate relief within thirty (30)
days following the close of the hearing or the submission of briefs by the
parties. The decision and award of the arbitrator shall be final and binding
upon the City, the Federation and the employee(s) affected.
The arbitrator shall have no authority to amend, modify, nullify, ignore, add
to, or subtract from the provisions of this agreement. The arbitrator is also
prohibited from making any decision that is contrary to law or to public policy.
Section 5.5 � Mediation. The City and the Federation, by mutual
agreement, may utilize the grievance mediation process in an attempt to resolve
a grievance before going to arbitration.
The objective of mediation is to find a mutually satisfactory resolution to the
dispute. The parties shall mutually choose a mediator or have a mediator
assigned by the Bureau of Mediation Services.
One representative of the Federation, the Grievant and all necessary employee
witnesses shall receive their regular salaries or wages for the time spent in
the grievance mediation proceeding, if during regular working hours.
The following procedures shall apply to mediations conducted under this Section:
(a) Arbitration time frames shall be tolled during the mediation procedure;
however, there shall be no additional extensions without written mutual
agreement.
(b) Grievances that have been appealed to arbitration may be referred to
mediation if both the Federation and the City agree.
(c) Mediation conferences shall be scheduled in the order in which the
grievance is appealed to mediation with the exception of suspension or
discharge grievances, which shall have priority.
(d) Promptly after both parties have agreed to mediate, the parties shall
notify the Bureau of Mediation Services. The Bureau of Mediation Services
shall arrange for the conference.
(e) The mediation proceedings shall be informal in nature, and the goal will be
to mediate up to three (3) grievances per day.
(f) Each party shall have one (1) principal spokesperson that will have the
authority to agree upon a remedy of the grievance at the mediation conference.
(g) One (1) Grievant will have the right to be present for each grievance.
(h) The issue mediated will be the same as the issue the parties have failed to
resolve through the grievance process. The rules of evidence will not apply,
and no transcript of the mediation conference shall be made.
(i) The mediator may meet separately with the parties during the mediation
conference. The mediator will not have the authority to compel the resolution
of a grievance.
(j) Written material presented to the mediator or to the other party shall be
returned to the party presenting the material at the termination of the
mediation conference, except that the mediator may retain on (1) copy of the
written grievance to be used solely for the purposes of statistical analysis.
(k) If no settlement is reached during the mediation conference, the mediator
shall provide the parties with an immediate oral advisory opinion. The opinion
will involve the interpretation or application of the collective bargaining
agreement and the reasons for his/her opinion. The parties may agree that no
opinion shall be provided.
(l) The advisory opinion of the mediator, if accepted by the parties, shall not
constitute a precedent, unless the parties otherwise agree.
(m) If no settlement is reached as a result of the mediation conference, the
grievance may be scheduled for arbitration in accordance with � Step Four� of
the grievance procedure.
(n) In the event a grievance that has been mediated is subsequently arbitrated,
no person who served as the mediator may serve as the arbitrator. In the
arbitration hearing, no reference to the mediator�s advice or ruling may be
entered as testimony nor may either party advise the arbitrator of the
mediator�s advice or ruling or refer at arbitration to any admissions or offers
of the settlement made by the other party at mediation.
(o) By agreeing to schedule a mediation conference, the City does not
acknowledge that the case is properly subject to arbitration and reserves the
right to raise this issue notwithstanding its agreement to schedule such a
conference.
(p) The fees and expenses of the mediator and mediation office, if any, shall
be shared equally by the parties.
Section 5.6 - Expedited Arbitration. Upon the mutual agreement of the
parties, any grievance to be arbitrated may be referred to expedited
arbitration where the time frame for effective resolution is so short that the
normal arbitration procedure would be untimely. Upon such referral, the
Federation and the City will make immediate (within twenty-four (24) hours)
arrangements with the panel selected by the parties, or if none has been
selected, with the Bureau of Mediation Services. The expedited arbitration
procedure shall begin as soon as the parties and the arbitrator can initiate a
hearing. It shall be the specific request of both the Federation and the City
to have a decision within seven (7) days of the hearing, and that no briefs
will be filed.
Section 5.7 - Time Limits. Time limits, specified in this procedure may be
extended by written mutual agreement of the parties. The failure of the City
to comply with any time limit herein means that the Federation may
automatically process the grievance to the next step of the grievance
procedure. Failure of the Federation or its employees to comply with any time
limit herein renders the alleged violation untimely and no longer subject to
the grievance procedure.
Section 5.8 - Grievance Forms. The parties shall jointly develop forms to be
used for the grievance procedure. Until such forms are developed, a grievance
may be commenced by any written statement which describes or identifies: the
factual basis of the dispute; the contract provisions at issue; and the name of
the grievant.
Section 5.9 - Arbitration Expenses. The fees and expenses of the Arbitrator
shall be divided equally between the Employer and the Association provided,
however, that each Party shall be responsible for compensating its own
representatives and witnesses. If either Party desires a verbatim record of
the proceedings, it may cause such record to be made provided it pays for the
cost of preparing the record. Further, if the party requesting the record
requests submitting post-hearing briefs, such party shall at its cost provide a
copy of the record to the other Party and to the Arbitrator.
Section 5.10 - Election of Remedy. Employees covered by Civil Service
systems created under Chapters 43A, 44, 375, 387, 419, or 420 of Minnesota
Statutes, by a home rule charter under Chapter 410 of Minnesota Statutes, or
under Laws of Minnesota, 1941, Chapter 423, may pursue a grievance through the
procedure established under this section. When a grievance is also within the
jurisdiction of appeals boards or appeals procedures created by Chapters 43A,
44, 375, 387, 419, or 420 of Minnesota Statutes, by a home rule charter under
Chapter 410 of Minnesota Statutes, or under Laws of Minnesota, 1941, Chapter
423, the employee may proceed through the grievance procedure or the Civil
Service appeals procedure, but once a written grievance or appeal has been
properly filed or submitted by the employee or on the employee�s behalf with
the employee�s consent, the employee may not proceed in the alternative manner.
Nothing in this contract shall prevent an employee from pursuing both a
grievance under this contract and a charge of discrimination brought under
Title VII, The Americans with Disabilities Act, the Age Discrimination in
Employment Act, or the Equal Pay Act.
Section 5.11 � No Waiver of Rights Without Written Agreement. In order to
facilitate the resolution of disputes or concerns in a more expedient and non-
adversarial manner, the Parties desire to be able to discuss the resolution of
such matters without having such discussions be construed as a waiver of either
the Employer's right to exercise its unabridged managerial prerogatives or the
Federation's right to negotiate over terms and conditions of employment. The
parties acknowledge the holding of the Minnesota Supreme Court in Arrowhead
Public Service Union v. City of Duluth [336 N.W.2d 68 (Minn. 1983), 116 LRRM
(BNA) 2187] as follows:
Without question, decisions concerning a City's budget, its programs and
organizational structure, and the number of personnel it employs to conduct its
operations are matters of [inherent managerial] policy. While a public
employer must negotiate terms and conditions of employment, it is not required
to negotiate matters of inherent managerial policy although it may do so
voluntary. When, however, a public employer negotiates matters of inherent
managerial policy which it has no obligation to negotiate and thereby
relinquishes the right to determine policy with respect to its budget, its
organizational structure and the number of personnel it should employ, the
public employer - like the collective bargaining representative which waives
the statutory right to bargain over a mandatory subject of bargaining - must do
so in clear and unmistakable language. [emphasis added; citations omitted]
Therefore, it is not a prerequisite to substantive and/or meaningful
discussions concerning a matter of interest to either the Employer or the
Federation or the Parties jointly that the Parties agree as to whether the
matter is a term and condition of employment or an inherent managerial policy
as those terms are defined and referenced in Minnesota Statutes Chapter 179A,
as amended. The Parties may freely discuss any such matters and may reach an
understanding regarding the extent to which the matter may be resolved and/or
the manner of resolution. However, unless the parties shall enter into a
written agreement which contains clear and unmistakable language documenting a
waiver of rights, neither the mere fact that the Parties had such discussions
nor the existence of any understanding regarding resolution of the matter shall
constitute or be construed to be a waiver of either: the Federation's right to
at any time thereafter assert or contest that the matter is a term and
condition of employment which is subject to collective bargaining and which may
not be unilaterally imposed; or the Employer's right to at any time thereafter
assert that the matter is one of inherent managerial policy not subject to
mandatory collective bargaining prior to implementation.
Greg Reinhardt
Excelsior
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