CITY OF SAN JOSE

AND

MUNICIPAL EMPLOYEES FEDERATION (MEF)

LOCAL 101 AFSCME, AFL-CIO

  MEMORANDUM OF AGREEMENT

July 1, 2001 - June 30, 2004

TABLE OF CONTENTS

   PDF VERSION 

 For comments or questions contact Employee Services 

The Memorandum of Agreement hereinafter referred to as the Agreement or MOA is made and entered into at San José, California, this 22nd day of June, 2001, by and between the City of San José, hereinafter referred to as the City or Management and the Municipal Employees' Federation, American Federation of State, County, and Municipal Employees (AFSCME), Local No. 101, AFL-CIO, hereinafter referred to as the Employee Organization, Municipal Employees' Federation (MEF), or Union.

ARTICLE 1         PURPOSE

The parties agree that the purpose of this Memorandum of Agreement is: To promote and provide harmonious relations, cooperation and understanding between the City and the employees covered herein; to provide an orderly and equitable means of resolving differences which may arise under this Agreement, and to set forth the full agreements of the parties reached as a result of meeting and conferring in good faith regarding matters within the scope of representation for employees represented by the Municipal Employees' Federation, AFSCME, Local No. 101, AFL-CIO.

TOP

ARTICLE 2         PERIOD OF MEMORANDUM OF AGREEMENT

2.1     This Agreement shall become effective July 1, 2001 except where otherwise provided, and shall remain in effect through June 30, 2004. No amendment or change to the provisions of this Agreement shall be valid or binding unless reduced to writing and signed by duly authorized representative(s) of the parties. Copies of this Agreement, as originally executed, shall be printed in a number sufficient to provide one copy for each employee represented by the Union, and distributed as soon as practical. The costs of such printing shall be shared equally by the parties, unless the printing of such Agreements are reproduced utilizing City facilities, in which case the City shall bear the cost of such printing.

2.2     It is the mutual desire of the parties to conclude the meet and confer process as early as possible prior to the expiration of this Agreement. Therefore, it is agreed that the Union shall exert every reasonable effort to submit any proposed changes or additions to this Agreement on or before April 1, 2004. The City agrees to begin the meet and confer process as soon thereafter as is reasonably possible.

TOP

ARTICLE 3         AGREEMENT CONDITIONS

3.1     Full Understanding, Modification And Waiver

3.1.1     This Agreement sets forth the full and entire understanding of the parties regarding the matters set forth herein, and any and all prior or existing Memoranda of Understanding, understandings and agreements, whether formal or informal, are hereby superseded and terminated in their entirety.

3.1.2     Existing benefits within the scope of representation, provided by ordinance or resolution of the City Council or provided in the San José Municipal Code shall be continued without change during the term of this Agreement. Such existing benefits, which are referenced in the Agreement, shall be provided in accordance with the terms of the Agreement.

3.1.3     It is the intent of the parties that ordinances, resolutions, rules and regulations enacted pursuant to this Memorandum of Agreement be administered and observed in good faith.

3.1.4     Although nothing in this Agreement shall preclude the parties from mutually agreeing to meet and confer on any subject within the scope of representation during the term of this Agreement, it is understood and agreed that neither party may require the other party to meet and confer on any subject matter covered herein or with respect to any other matter within the scope of representation during the term of this Agreement.

3.2     Separability.     Notwithstanding any other provisions of this Agreement to the contrary, in the event that any Article, or subsections thereof shall become invalid by law or any benefits provided by this Agreement impose additional obligations on the City by law, the parties shall meet and confer on the Article or subsections thereof affected. In such event, all other provisions of this Agreement not affected shall continue in full force and effect.

3.3     Concerted Activity.     It is understood and agreed that:

3.3.1     Participation by any employee represented by the Union in picketing with respect to any issue concerning matters within the scope of representation provided or proposed to be provided by the City of San José for employees in this unit, or participation in a strike, work stoppage or slowdown, or any other concerted activity which diminishes services provided by an employee in this unit, or the failure to perform lawfully required work, shall subject the employee to disciplinary action up to and including discharge.

3.3.2     If the Union, its officers or its authorized representatives violates provision 3.3.1 above or tolerate the violation of provision 3.3.1 above and after notice to responsible officers or business representatives of the Union, such officers or business representatives fail to take such prompt affirmative action as is within their power to correct and terminate the conduct described in provision 3.3.1 above, in addition to any other law, remedy or disciplinary action to which it or its officers or representatives may be subject, said Union shall, by action of the Municipal Employee Relations Officer or designee, also be subject to suspension or revocation of the recognition granted to such Union and the Municipal Employee Relations Officer or designee, may suspend or cancel any or all payroll deductions payable to or in behalf of members of such Union, and prohibit or restrict the use of any City facility of any nature whatsoever and prohibit or restrict access by said officers or representatives to work or duty stations of employees in the representation unit. Such action on the part of the Municipal Employee Relations Officer or designee shall not be subject to review under the provisions of Article 21, Grievance Procedure.

3.4     Non-Discrimination

3.4.1     The parties agree that they, and each of them, shall not discriminate against any employee on the basis of race, religion, color, creed, age, marital status, national origin, ancestry, sex, sexual orientation, medical condition or handicap. The parties further agree that this Section 3.4.1 shall not be subject to the Grievance Procedure provided in this Agreement.

3.4.2     The parties agree that they, and each of them, shall not discriminate against any employee because of membership or lack of membership in the Union, or because of any authorized activity on behalf of the Union. The parties further agree that this Section 3.4.2 may be subject to the Grievance Procedure provided in this Agreement.

TOP

ARTICLE 4         RECOGNITION

4.1     Pursuant to Resolution No. 39367 of the City Council of the City of San José and the provisions of applicable state law, the Municipal Employees' Federation, AFSCME, Local No. 101, AFL-CIO, hereinafter referred to as the Employee Organization or Union is recognized as the exclusive representative for the purpose of meeting and conferring on matters within the scope of representation for employees assigned to the classifications listed in the Exhibits attached and incorporated by reference into this Agreement. The classifications listed in the Exhibits and subsequent additions thereto or deletions therefrom shall constitute an appropriate unit.

4.2     The City agrees to meet and confer with the Union prior to contracting out work currently performed by bargaining unit members whenever such contracting out would result in material reduction of work done by bargaining unit members or would have significant adverse impact on bargaining unit work. It is agreed that position reductions, which result in lay-off of employees in the bargaining unit constitute significant impact on bargaining unit work.

TOP

ARTICLE 5         MANAGEMENT RIGHTS

5.1     Except to the extent that the rights are specifically limited by the provisions of this Agreement, the City retains all rights, powers, and authority granted to it or which it has pursuant to any law or the City Charter, including, but not limited to: The right to direct the work force; increase, decrease or re-assign the work force; hire, promote, demote; discharge or discipline for cause; transfer or reclassify employees; provide merit increases; assign employees days of work, shifts, overtime and special work requirements, and to determine the necessity, merits, mission and organization of any service or activity of the City or of any City Department, Agency or Unit.

5.2     The City has the sole and absolute right to determine the nature and type of, assign, reassign, revoke assignments of or withdraw assignments of, City equipment, including motor vehicles, to or from employees during, after or before hours of duty, without consultation or meeting and conferring with the employees affected or the Union.

TOP

ARTICLE 6         UNION RIGHTS

6.1     Authorized Representatives

6.1.1     For purposes of administering the terms and provisions of the various ordinances, resolutions, rules and regulations adopted pursuant to this Memorandum of Agreement:

6.1.1.1     Management's principal authorized agent shall be the Municipal Employee Relations Officer, or a duly authorized representative except where a particular Management representative is otherwise designated.

6.1.2     The Union's principal authorized agent shall be the President, or duly authorized representatives.

6.2     Release Time

6.2.1     Release time from regular City duties shall be provided to designated Union representatives in accordance with the following provisions.

6.2.2     Designated Union Representatives.     The following designated Union representatives shall be eligible for release time to attend meetings as listed in this Article.

6.2.2.1     Union President.     The Union President and/or designated representative(s) shall be granted release time from regular City duties to attend the following functions.

• To attend Civil Service Commission meetings when matters affecting the Union are considered.
• To attend City Council meetings when matters affecting the Union are considered.
• To attend Federated Retirement Board meetings.
• To attend grievance meetings when used to facilitate settling of grievances.
• To attend Benefit Review Forum meetings.
• To attend meetings scheduled by Administration when attendance is requested.
• To attend other meetings and trainings approved by the Employee Relations Manager, or designee.

6.2.2.2     Chief Steward.     The Chief Steward and/or designated representative(s) shall be granted release time from regular City duties to attend the following functions.

• To attend grievance meetings when used to facilitate the settling of grievances.
• To attend other meetings and trainings approved by the Employee Relations Manager or designee.

6.2.2.3     Department Stewards.     Department Stewards shall be granted release time from regular City duties to attend the following functions:

• To investigate and/or process a grievance only on the shift in the department(s) or section of a department(s) for which designated.
• To attend other meetings and trainings as approved by the Employee Relations Manager or designee.

6.2.2.3.1     Department Steward Authority.     A Department Steward shall function under the terms of the grievance procedure and only on the shift and in the department(s) or sections of a department(s) designated. Exceptions to this section may be made by mutual agreement of the parties.

6.2.2.3.2     Ratio of Department Stewards.     Department Stewards shall be designated in the ratio of approximately one Steward for every 50 full-time equivalent (FTE) positions in the representation units. Shift and geographical locations may require an adjustment to the above ratio as approved by the Employee Relations Manager or designee.

6.2.2.3.3     The Union shall designate as Stewards only full-time or part-time benefited employees who have satisfactorily completed an initial probationary period during the employee's current term of employment.

6.2.2.3.4     In the event the parties agree that a Steward or other representative of the Union is permitted to investigate and/or process a grievance other than as provided in 6.2.2.3.1 above, such representative shall continue to investigate and/or process the grievance, even if the department or section of a department in which the grievance arose is subsequently assigned to another representative.

6.2.3     Authorization For Release Time.     If the designated Union representative finds it necessary to leave assigned duties to investigate or process a grievance, or attend a meeting as defined in this Article, the representative must inform the immediate supervisor of the general nature for the release time and receive authorization from the immediate supervisor prior to leaving assigned duties. Upon return to assigned duties, the representative must report back to the immediate supervisor.

6.2.3.1     Outside Department.     If it is necessary for a Steward or Officer to handle a grievance in a department other than the regularly assigned department, the Steward or Officer shall report to the immediate supervisor of the aggrieved employee, the employee involved in the grievance, or the function being investigated.

6.2.3.2     Reasonable Release Time.     Authorization for a Union representative, as defined above, to leave assigned duties shall not be unreasonably withheld by the supervisor.

6.2.3.3     Processing Grievances During Regular Work Hours.     Although grievances may be investigated and/or processed during normally scheduled working hours, the Union agrees that the time spent by its designated representatives shall be kept to a minimum and that no Union representative shall be entitled to any additional compensation or premium pay for any time spent in processing grievances outside such representative's regularly scheduled hours. The Union also agrees it will not process grievances during periods of overtime.

6.2.4     Notification.     The Union agrees to notify the Employee Relations Manager, or designee, in writing of any changes of Officers or Stewards within 30 days of such change.

6.2.5     Release Time For Steward Training.     The Chief Steward and Department Stewards shall be granted a maximum of eight hours paid release time during each calendar year to participate in training sessions related to the provisions of this agreement, jointly conducted by Union and City representatives according to an outline of such training activities to be submitted by the Union to Employee Relations for approval a minimum of 21 calendar days prior to the training session. In addition, each calendar year, newly appointed Stewards shall be granted an additional eight hours paid release time to participate in basic training sessions conducted by Union and City representatives.

6.2.6     The City will provide up to three hours of paid release time per month for up to five Stewards designated by the Union for the purpose of attending the Union's monthly Stewards' meeting.

6.2.7     Release Time Restriction.     Release time shall not be provided for lobbying or political purposes.

6.3     Maintenance Of Membership (General Supervision Employees, Union Code 052/07 Only)

6.3.1     Except as otherwise provided herein, each employee who, on July 1, 2001 is a member in good standing of the Union shall thereafter, as a condition of employment, maintain such membership for the duration of this Agreement, to the extent of paying the periodic dues uniformly required by the Union as a condition of retaining membership.

6.3.2     Any employee who, on July 1, 2001 is not a member of the Union, nor any person who becomes an employee after July 1, 2001, shall not be required to become a member as a condition of employment. Any such employee who thereafter becomes a member of the Union shall thereafter maintain such membership for the duration of the Agreement, except as otherwise provided herein.

6.3.3     Any employee who, on July 1, 2001, was a member of the Union, and any employee who subsequently becomes a member may during the period beginning June 1, 2004 through June 30, 2004, resign such membership, and thereafter, shall not be required to join as a condition of employment. Resignation shall be in writing addressed to the City's Municipal Employee Relations Officer, or designee, with a copy to the Union.

6.3.4     The Union shall indemnify the City and hold it harmless against any and all suits, claims, demands and liabilities that may arise out of or by reason of the application of or implementation of the provisions of this Article.

6.4     Agency Fee (General Miscellaneous Employees, Union Code 051/05 Only)

6.4.1     Employee Rights

6.4.1.1     The City and the Union recognize the right of employees to form, join and participate in lawful activities of employee organizations and the equal, alternative right of employees to refuse to form, join and participate in employee organizations. Neither party shall discriminate against an employee in the exercise of these alternative rights.

6.4.1.2     Accordingly, membership in the Union shall not be compulsory. An employee has the right to choose, either; to become a member of the Union; or, to pay to the Union a fee for representation services; or, to refrain from either of the above courses of action upon the grounds set forth in Section 6.4.6 below.

6.4.2     Employee's Obligation to Exclusive Representation.     An employee who is a member of the Union on July 1, 2001 and any employee who becomes a member after July 1, 2001 shall maintain such membership, except as provided during the change of status period set forth in Section 6.4.2.4 below.

6.4.2.1     Any person who becomes an employee on or after August 12, 1984, must, within 30 days after their employment, submit to the City either:

1.     A signed authorization to deduct dues as a member of the Union; or

2.     Voluntarily sign and deliver to the City a written assignment authorizing deduction of the properly established Agency Fee as defined in Section 6.4.3 below, subject to the conditions set forth elsewhere in the Agreement for payroll deductions. Upon voluntary authorization duly completed and executed, the City shall deduct from the pay of an employee and pay to the Union the normal and regular monthly Agency Fee; or

6.4.2.2     A signed affidavit that the employee qualifies for an exemption as set forth in Section 6.4.6.1 below. In this case the employee must designate a charity from Section 6.4.6.2 to which the appropriate amount will be paid through payroll deduction.

6.4.2.3     If a person fails to make any of the designations set forth above within the 30 day period, they will be given notice by the City that the Agency Fee deduction will be made beginning with the first full pay period following the expiration of the 30 day period. The City and the Union agree that the Agency shop fee shall be paid in exchange for representation services necessarily performed by the Union in its capacity as exclusive bargaining agent and in conformance with its duty of fair representation of said employee who is not a member of the Union.

6.4.2.4     During the period June 1, 2004 through and including June 30, 2004 any employee who is a member of the Union may, by written notice to the Municipal Employee Relations Officer, or designee, resign such membership and change their status to the Agency Fee or exempt category in accordance with the provisions of this Article.

6.4.2.5     Upon the return from leave of absence of any employee or upon the recalling of an employee from layoff status on or after July 1, 2001 the employee's options under this Article will be determined by their original date of hire.

6.4.2.6     The parties expressly agree that the authority granted the Municipal Employee Relations Officer, or designee, under the Concerted Activity Article of this contract, to cancel payroll deductions in the event of a concerted activity extends to the cancellation of Agency Fee and dues deductions.

6.4.2.7     The Union specifically agrees that the provisions of Section 6.4.7 of this Article apply to any claims against the City or any of its agents or employees regarding the payroll deduction of an Agency Fee.

6.4.3     Definition of Agency Fee.     The Agency Fee collected from non-member bargaining unit employees pursuant to Section 6.4.2 of this Agreement shall be limited to the Union (local, state, and national) annual costs for representing such employees. Such amount shall be those amounts for full-time and part-time employees as are certified to the Municipal Employee Relations Officer, or designee, from time-to-time by the designated officer of the Union as the Agency Fee.

6.4.3.1     The Union certifies that this "representation fee" includes only those costs actually incurred by the Union in representing employees, who are not also members of the Union, in matters specifically and directly connected with the enforcement and administration of this Agreement, the adjustment of grievances, and litigation pertaining thereto. The Union further certifies that this "representation fee" excludes all other costs, fees, and adjustments including, but not limited to: Union fines, back dues, initiation fees, or any other charge required as a condition of Union membership; any and all amounts which may be used, directly or indirectly, for political or ideological activities, any and all amounts which do not constitute costs actually incurred by the Union in representation matters specifically and directly connected with the bargaining of, enforcement and administration of this Agreement, the adjustment of grievances, and litigation pertaining thereto. The Union specifically agrees that the provisions of Section 6.4.7 of this Article apply to any claims against the City or any of its agents or employees regarding the appropriateness of the amount of any "representation fee" set forth in this Section.

6.4.4     Part-time Unbenefited Employees.     All part-time unbenefited employees hired on or after August 12, 1984, are subject to the provisions of this Article.

6.4.5     Annual Verification of Agency Fee by Union.     The Union shall submit to the City a detailed written financial report of its financial transactions in the form of a balance sheet and an operating statement, certified as to accuracy by the Union's Treasurer. Each year such reports shall be verified and submitted in writing to the City by the Union within 60 days of July 1.

6.4.6     Employees Exempted From Obligation to Pay Union.

6.4.6.1     Any employee shall be exempted from the requirements of Section 6.4.2 above if such employee is a member of a bona fide religion, body or sect which has historically held conscientious objections to joining or financially supporting public employee organizations.

6.4.6.2     Such exempt employee shall, as an alternative to payment of an Agency Fee to the Union, pay an amount equivalent to such Agency Fee to either:

a. The United Way; or,

b. Combined Health Appeal (C.H.A.); or,

c. Any charity jointly agreed upon by the City and the Union. Such charities cannot be affiliated in any manner with the Union, nor can such charity be related to an established religious organization.

6.4.7     Hold Harmless.     The Union shall hold the City harmless and shall fully and promptly reimburse the City for any reasonable legal fees, court costs, or other litigation expenses incurred in responding to or defending against any claims against the City or any of its agents, or employees, in connection with the interpretation, application, administration or enforcement of any section in this Memorandum pertaining to Agency Fees. The existence of or extent of any indemnification obligation under this provision shall be subject to the grievance procedure spelled out in this Agreement.

6.4.8     Expiration Date of Agency Fee Provisions.     It is agreed and understood by the parties to this Agreement that the provisions, rights and obligations herein pertaining to payment of any Agency Fee and dues deduction shall not survive beyond the term of this Agreement, and shall accordingly expire on June 30, 2004. As such, the City will no longer collect or transmit dues to the Municipal Employees' Federation beyond the date of expiration of this agreement. However, pursuant to Government Code Section 3502.5, this Article 6 may be rescinded in its entirety by a majority vote of all the employees in the unit covered by this Agreement. It is understood and agreed that: (1) a request for such a vote must be supported by a petition containing the signatures of at least 30% of the employees covered by this Article; (2) such vote shall be by secret ballot; and (3) such vote may be taken at any time during the term of this Agreement; but, in no event shall there be more than one vote taken during such term.

6.5     Dues Deduction

6.5.1     The City will deduct from the pay of each employee covered by this Agreement, while such employee is assigned to a classification included in a representation unit represented by the Union, dues uniformly required as a condition of membership, pursuant to the Union's constitution and by-laws provided that the employee has signed an appropriate Authorized Dues Deduction card. Such authorization shall be on a form approved by the Municipal Employee Relations Officer or designee.

6.5.2     Payroll dues deductions shall be in the amount certified to the Municipal Employee Relations Officer or designee from time to time by the designated Officer of the Union as regular monthly dues.

6.5.3     Deductions shall be made from wages earned by the employee for the first two pay periods in each month for dues for the preceding month. The City will remit to the designated Officer of the Union the amounts so deducted accompanied by a list of the employees for whom the deduction was made. The deductions and the list will be remitted to the Union not later than 21 days following the pay period in which the deductions were made.

6.5.4     Properly executed dues deduction cards and an alphabetical list of the additional employees authorizing the deduction shall be submitted to the Municipal Employee Relations Officer or designee on or before the Monday of the week preceding the beginning of the pay period in which deductions are to be made.

6.5.5     If, through inadvertence or error, the City fails to make the authorized deduction, or any part thereof, the City shall assume no responsibility to correct such omission or error retroactively.

6.5.6     It is expressly understood and agreed that the Union will refund to the employee any Union dues erroneously withheld from an employee's wages by the City and paid to the Union. In the event the Union fails to refund the dues erroneously withheld within a reasonable period of time following notification, the City will make such refund and deduct the amount from the amount due to the Union.

6.5.7     The Union shall indemnify the City and hold it harmless against any and all suits, claims, demands and liabilities that may arise out of or by reason of any action that shall be taken by the City for the purpose of complying with the foregoing provisions of this Article, or in reliance on any list or certification which shall have been furnished to the City under the above provisions.

6.6     Bulletin Board

6.6.1     Recognized employee organizations may use designated portions of City bulletin boards in departments which have employees in the representation units for which the Union is recognized.

6.6.2     Subject to the provisions contained herein, the following types of Union notices and announcements listed below may be posted on the bulletin boards:

6.6.2.1     Meetings, elections, welfare, recreational and social affairs and such other notices as may be mutually agreed upon between the Union and the Municipal Employee Relations Officer or designee.

6.6.3     All material shall identify the Union responsible for its posting. Copies of all material to be posted must be filed with the Municipal Employee Relations Officer or designee who shall have the sole and exclusive right to order the removal of any objectionable material.

6.6.4     The Municipal Employee Relations Officer or designee shall notify the Union of any material ordered removed. The Union shall be given the opportunity to revise the material to delete the objectionable section or sections.

6.6.5     The City reserves the right to determine where the bulletin boards shall be placed and what portion of such bulletin boards are to be allocated to employee organizations.

6.6.6     Failure of the Union to abide by the provisions of this Article shall result in the forfeiture of the Union's right to have materials posted on City bulletin boards. The City agrees it will not exercise its rights provided herein in an arbitrary and capricious manner.

6.7     Advance Notice

6.7.1     Whenever the City changes work rules or work place policies, or issues new work rules or work place policies, the Union will be given at least ten (10) working days notice, absent emergency, before the effective date of the rule or policy. This notice is provided in order that the Union may discuss the rule or policy with the City before they become effective if the Union so requests.

6.7.2     In cases of emergency when the City Council, City Manager or Department Head determines that an ordinance, rule, resolution, or regulation must be adopted immediately without prior notice, City management shall provide such notice at the earliest practical time.

6.8     New Employee Orientation.     The City shall provide designated MEF representative(s) reasonable access to new employees during the quarterly new employee orientations to provide information on MEF. Attendance at any presentations by MEF shall be voluntary on the part of the new employee. The Human Resources Department shall work out arrangements with designated MEF representatives.

6.9     Employee Lists.     The City shall provide at no charge to the Union, a monthly printout listing bargaining unit employees by department and position, full-time equivalency, and employee address. The City shall also provide at no charge to the Union, a quarterly printout listing bargaining unit employees alphabetically by employee address, position title, employment date, full-time equivalency, and leave of absence status. The Union agrees that such information will be treated in a confidential manner.

TOP

ARTICLE 7         HOURS OF WORK AND OVERTIME

7.1     The work week shall be seven days commencing at 12:01 a.m. Sunday and ending at 12:00 midnight the following Saturday.

7.2     The work day, for pay purposes, shall be a 24-hour period commencing with the beginning of the employee's regularly scheduled shift.

7.3     The normal work schedule shall be 40-hours consisting of five consecutive days of eight hours each, exclusive of a lunch period, Monday through Friday.

7.4     The work period for purposes of the Fair Labor Standards Act may be designated for each employee as appropriate so that there is no overtime built into the regularly scheduled workweek.

7.5     The City may establish a work schedule other than Monday through Friday where the interests of, or service to, the public requires. Employees assigned to a five day, eight hour schedule or to a schedule including nine hour days shall be given two consecutive days off, and whenever possible, employees assigned to a four day, ten hour shift shall be given three consecutive days off, even though such days off are in different work weeks, except where, due to a change in the employee's work schedule, it is impossible to provide two or three consecutive days off, whichever is applicable.

7.6     Time spent on paid sick leave, disability leave, holiday leave, vacation leave, military leave, compensatory time off duty, or other authorized paid leave shall be deemed time worked for purposes of this Article.

7.7     Rest Period Full-time Employees.     A 15-minute rest period will be provided in each half of the regularly scheduled work shift. Insofar as is possible, rest periods shall be scheduled in the middle of each half of the shift. It is understood and agreed that the inability to permit an employee to take a rest period shall not be a basis for any claim for overtime compensation.

7.7.1     Rest Period Part-time Employees.     Part-time employees will be provided a 15-minute rest period during each uninterrupted work period of at least four hours.

7.8     An employee authorized or required to perform work at home which requires at least 1/2 hour shall be compensated for the time worked to the nearest 1/2 hour at the appropriate rate.

7.9     Part-time Employees

7.9.1     The Department Director or designee, subject to regulation and control by the City Manager or designee, shall determine the number of hours of work per work day and work week for part-time employees. Such employees, however, shall not be required to work a normal work schedule except on an intermittent basis.

7.9.1.1     If a part-time employee is scheduled and reports to work for a shift which is then canceled, the employee shall, at the City's discretion, either work a minimum of two hours or be credited with two hours work at the employee's straight time pay rate. If the employee is notified prior to the start of the shift that the shift is canceled, the employee is not entitled to the two-hour minimum.

7.9.2     Part-time Employee Benefits Eligibility

7.9.2.1     As used in this Agreement, the term "regularly scheduled part-time position" shall mean:

7.9.2.1.1     A position within a department designated by the department in writing as requiring at least 20 hours and not more than 39 hours of regularly scheduled work per week on a year round basis for an indefinite period of time, and shall include positions in the classification of School Crossing Guard PT (2441) which are so designated and approved as requiring at least 20 hours per week regularly scheduled work for the entire period when the school is in session.

7.9.2.1.2     Effective October 1, 1999, two or more positions held by the same employee within a department which the department has designated in writing as requiring, together and in total, at least 20 hours and not more than 39 hours of regularly scheduled work per week on a year round basis for an indefinite period of time.

7.9.2.1.3     The inadvertent absence of written designation by a department is not intended to deny eligibility for benefits to employees who would otherwise be eligible.

7.9.2.1.4     The City will review annually to determine whether appropriate levels of benefits are provided to each benefited part-time employee.

7.9.2.2     Eligible part-time employees will receive benefits as specified in the appropriate sections of this MOA.

7.9.2.3     Designations made pursuant to the foregoing may be made or rescinded at any time at the discretion of the City Manager or designee, or the Department with the approval of the City Manager or designee.

7.9.2.4     As used in this Agreement, the term "indefinitely assigned" shall mean an assignment to a regularly scheduled part-time position without limitation of any kind as to duration. Nothing herein contained, however, shall be construed to limit the right of the Department Director or the City Manager or designee, as contained in Section 7.9 of this Agreement, to determine the days of the week and hours of each day when any such part-time employee shall be required to work, or whether such part-time employee shall work at all, notwithstanding the above mentioned designation, scheduling and assignment.

7.9.2.5     In the event Section 7.9.2.4 is invoked as to whether an employee shall be required to work at all, at the employee's written request, the appropriate department shall provide a reason for its action in writing. The action and the reason given for the action shall not be subject to the grievance procedures of this agreement.

7.10     Reduced Workweek

7.10.1     Eligibility.     Full-time employee.

7.10.2     Rules.     Employee may request a reduced work week for personal or medical reasons. The department's approval is completely discretionary when the request is for personal reasons.

7.10.3     When the request is to accommodate an attempt by the employee to return to work from an illness or injury, the department will make reasonable accommodation to facilitate the employee's return to full duty via a reduced schedule which is deemed to be medically appropriate. The employee may be required to provide medical verification for the necessity of a reduced schedule.

7.10.4     Compensation.     An employee who elects one of the options above shall be paid a salary which equals the hourly rate for the salary range and step to which he/she would otherwise be entitled pursuant to this Agreement times the number of hours actually worked during each biweekly pay period.

7.10.5     Process.     Each employee electing one of the options specified above shall enter into a written agreement with their department to work under the terms of the voluntary reduced work week schedule elected and approved by the department. The Agreement may be approved for a period of up to 6 months and may be renewed as long as the schedule is mutually acceptable. Either party may require the return to full time status with reasonable notice.

7.10.6     Termination of Agreement.     Any voluntary reduced work week agreement entered into shall terminate immediately upon the effective date of the transfer, promotion, or demotion of the employee entering into such agreement.

7.10.7     Non-grievable.     Neither the failure of a department to enter into a voluntary reduced work week agreement with any employee nor the termination by a department of any such agreement, shall be subject to the Grievance Procedure provided in Article 21 of this Agreement.

7.10.8     Proration of Benefits.     Holiday benefits and the City's contribution for premiums for health, dental, and life insurance shall be prorated from the amount contributed for full time employees, based on the number of hours scheduled, as follows:

a.     35-40 hours         100%

b.     30-34 hours         75%

c.     25-29 hours         62.5%

d.     20-24 hours         50%

e.     Less than 20         None

7.10.8.1     Benefits which accrue on an hourly basis:

a.     Vacation

b.     Sick Leave

c.     Seniority

d.     Retirement (Note that retirement contributions will be deducted as a percentage of salary earned and that service credit will be defined in the applicable San José Municipal Code).

7.11     Alternative Work Schedule

7.11.1     The City and the Union agree that the availability of Alternative Work Schedules is a valuable benefit to employees in that it promotes job satisfaction, and is of benefit to the City in that it reduces traffic congestion and demands on limited parking facilities. The use of alternative schedules is encouraged, where it can be accommodated without impairing departmental operations or public service.

7.11.2     As an alternate to the normal work schedule assigned by the Department in accordance with Section 7.3, and subject to the concurrence and approval of respective Department Heads, a regular full-time employee may elect to work an alternative work schedule. The following conditions and restrictions apply to all employees electing an alternative schedule.

7.11.2.1     An employee may elect to establish a biweekly work schedule which varies from the normal schedule in the number of hours worked per day and in the number of days worked per week, except that no single workday may exceed 10-hours, and total scheduled hours may not exceed 80 hours in any biweekly pay period. Unless otherwise specified in this Memorandum of Agreement, alternate schedules shall not include paid lunch periods. The employee may elect a different schedule for each calendar week within a biweekly period. Examples of schedules which may be elected include:

• Four 10-hour days each week
• Four 9-hour days and one 4-hour day each week
• Eight 9-hour days, one 8-hour day, and one day off each biweekly pay period

7.11.2.2     No alternative work schedule may be established in which overtime is incurred as a part of the established work schedule either under this agreement or under Federal or State law.

7.11.2.3     The alternative schedule is designed to accommodate the needs of the employee and the work unit. Once elected and approved, it is intended to continue for an indefinite period. However, should the needs of the employee or work unit dictate, the alternative schedule may be terminated with reasonable notice.

7.11.2.4     It is further understood that any alternative schedule agreement entered into pursuant to the provisions herein, shall terminate immediately upon the date of the transfer, promotion or demotion of the employee.

7.11.2.5     Neither the failure of the Department to enter into an alternative schedule agreement, nor the termination by the Department of any such agreement, shall be subject to the Grievance Procedure provided in Article 21. An employee may have the denial of an alternate work schedule reviewed by the Department Director or designee. The decision of the Department Director or designee shall be final.

7.11.2.6     Whenever possible, employees assigned to a four day, ten hour shift shall be given three consecutive days off, even though such days off are in different work weeks, except where, due to a change in the employee's work schedule, it is impossible to provide two or three consecutive days off, whichever is applicable.

7.11.3     Employees assigned to radio dispatch operations in either the Fire or Police Departments may work alternate work schedules, based upon the needs of the department and the need to provide quality service to the public. Due to the critical nature of the position and the restrictions placed upon the employees, any shift of eight hours or greater will include a 30 minute paid lunch break. The work schedules of Public Safety Dispatchers assigned to staff support positions do not include paid lunch breaks.

7.12     Overtime and Compensatory Time

7.12.1     An employee who works a normal work schedule as defined by Section 7.3 and is authorized or required to work overtime who works in excess of 40 hours per work week, shall be compensated at the rate of 1-1/2 times the employee's hourly rate, except when such excess hours result from a change in such employee's work week or shift or from the requirement that such employee fulfill their work week requirement.

7.12.2     Part-time employees are only eligible for overtime pay or compensatory time if the employee works over 12 consecutive hours in the same assignment or over 40 hours in one week, or if the overtime exceeds eight hours and is scheduled without a 24-hour notice.

7.12.3     An employee who is assigned or elects and is approved for an alternative work schedule as defined by Section 7.11 and is authorized or required to work overtime who works in excess of the regular daily hours scheduled under that alternative work schedule, or in excess of 80 hours per biweekly pay period, shall be compensated at the rate of 1-1/2 times the employee's hourly rate, except when such excess hours result from a change in such employee's workweek or shift or from the requirement that such employee fulfill their workweek requirement.

7.12.4     If an employee is scheduled to work overtime on the employee's day off and the work is canceled within 24 hours of the scheduled overtime, the employee is entitled to two hours compensation at the appropriate rate. If the overtime is canceled at least 24 hours before the work is scheduled, no compensation is due.

7.12.5     Overtime worked shall be compensated at the 1-1/2 times rate. An employee assigned to work overtime may elect to either be paid for such overtime or be credited with compensatory time off, provided that the election of compensatory time off does not interfere with the Department's or the City's ability to recover funds related to the overtime assignment; the employee makes such election during the pay period in which the overtime is worked; and in the event the employee requests payment for such overtime, the department's budget can accommodate such payment.

7.12.5.1     Once compensatory time off has been approved and scheduled, the employee shall be permitted to take such time off, unless emergency circumstances necessitate cancellation of the time off. In such event, the employee will remain credited with the time canceled.

7.12.5.2     Compensatory time off credited to an employee, which is not taken within 26 pay periods following the pay period in which the overtime is worked, shall be paid to the employee at the appropriate rate. An employee may be required to take the compensatory time off prior to the expiration of this time period, if the Department's budget will not accommodate payment of such time.

7.12.5.3     Notwithstanding any other provision of Section 7.12.5 to the contrary, the Department Director or designee, may announce the intent of the Department to pay employees the appropriate rate for accrued compensatory time that is not used as of a date specified by the department. This announced intent may apply to an entire department or to a specified section(s) of a department. The announcement will also specify a date by which time each affected employee must elect to either:

a.     be paid for all accrued, unused compensatory time, or

b.     be paid for all but 24-hours of such accrued, unused compensatory time, or

c.     retain all accrued, unused compensatory time, subject to other applicable provisions of Section 7.12.5.

7.12.5.4     Any employee not making an election will retain their compensatory time, subject to other provisions of Section 7.12.

7.12.5.5     Compensatory Time Payoff.     An employee who separates from employment by reason of resignation, discharge or retirement and who upon the effective date of such separation has accrued unused compensatory time shall be paid for such hours of unused compensatory time at the employee's straight time hourly rate. In the event the termination results from the death of the employee, the payment, if any, shall be made to the executor of the Will or the administrator of the estate.

7.12.5.6     Public Safety Dispatchers.     For purposes of the FLSA a 480 hour cap shall apply to Dispatchers on compensatory time accumulation. All compensatory time shall, however, be subject to being paid off if not used within 26 pay periods after it is earned, pursuant to Section 7.12.5.2 of this Agreement.

TOP

ARTICLE 8         SHIFT BIDDING

8.1     The work unit may determine the method for assigning shifts. Should a conflict arise, seniority in class shall be used to assign shifts subject to:

1.     operational needs,

2.     the Department Director's, or designee's, right to deny a shift assignment based upon the need to provide quality service to the public, or

3.     the need to assign employees based on special skills.

8.2     The work unit may agree to define seniority as time in class within department in lieu of time in class city-wide.

8.2.1     Employees accrue seniority for the time they work in each of the following classifications: Public Safety Dispatcher I, Public Safety Dispatcher II, Senior Public Safety Dispatcher and Supervising Public Safety Dispatcher. For purposes of calculating seniority for vacation and shift bidding, both full-time and part-time service days are combined under the above classifications.

8.2.2     Employees in the Police Department who are promoted within their current job series shall accrue seniority in the promoted class commencing on the date of appointment. However, if the employee returns to their former class within three (3) years of appointment to the higher class, either voluntarily or due to rejection, the seniority accrued in the higher class shall be counted as departmental seniority in the previous class(es) and any seniority accrued in the higher class(es) shall be forfeited.

8.2.3     Once employed by the City, employees shall accrue seniority in terms of service days which are based upon hours of paid time. Unpaid time (e.g. unpaid leaves, suspensions, etc.) does not count as service days.

8.3     A shift vacancy which occurs outside the normal bidding process may be filled by an administrative placement.

8.4     Communications Employees' Shift Assignments.     Employees shall have the right on at least an annual basis to bid for shift assignments based upon seniority in class within department, subject to the right of the Department Director, or designee, to deny such bid based upon the need to provide quality service to the public. The denial of a bid for a shift assignment shall not be subject to the grievance procedure.

8.4.1 Shift trades shall be permitted.     The denial of a shift trade shall not be subject to the grievance procedure.

8.5     Denial of Shift Bid.     Any employee eligible to request a shift assignment whose request for assignment is denied, shall be entitled to a written explanation of the denial from the Department Head or his/her designee. Such request shall be made in writing within five working days following the denial. A written explanation shall be given to the employee within five working days following receipt of the request.

8.5.1     For Police Department personnel, in the event the matter is not resolved by the Chief of Police or his/her designee, the employee may within five working days of receipt of the decision submit a written request for review to the City Manager or his/her designee. The request must include the reason or reasons why the employee is not satisfied with the decision previously rendered. A written decision shall be given to the employee within ten working days following receipt of the request. The decision of the City Manager or his/her designee shall be final and binding.

TOP

ARTICLE 9         TEMPORARY MODIFIED DUTY

9.1     The City and MEF recognize that, from time to time, employees may be unable to perform their full range of duties required of their position due to a work-related injury or illness. In order to provide gainful employment to these individuals and to maximize productivity, the City may create temporary modified job duties.

9.2     The City has the exclusive right to determine whether or not to create or eliminate temporary modified job duties and to assign eligible employees to fill such jobs.

9.2.1     The City shall not discriminate in assigning temporary modified job duties.

9.2.2     Employees assigned to temporary modified duties shall continue to accrue class seniority and other benefits based on hours worked.

9.3     Employees assigned to temporary modified job duties shall be returned to their regular jobs at such time as they are medically certified as capable of performing the full range of duties of said job.

9.4     If temporary modified job duties cannot be accommodated by the employee's department, the City will attempt to find temporary modified job duties elsewhere in the City. Departmental seniority will not be affected.

9.5     This Article, Article 9, is not subject to the grievance procedure.

TOP

ARTICLE 10         LEAVES

10.1     Holidays

10.1.1     Except as otherwise provided, each full-time employee shall be eligible for paid holiday leave on each of the following specified holidays, and on no other day, during the term of this Agreement:

New Years Day	Columbus Day
Martin Luther King Day	Veterans Day
President's Day	Thanksgiving Day
Memorial Day	Day After Thanksgiving
Independence Day	Christmas Eve Day
Labor Day	Christmas Day
	New Years Eve Day

10.1.2     Except as otherwise designated, any holiday specified herein, including any other day proclaimed or designated by the City Council as a holiday for which full-time employees are entitled to holiday leave, which falls on a Sunday shall be observed for purposes of this Article on the following Monday. Such holidays which fall on a Saturday shall be observed on the preceding Friday.

10.1.2.1     In continuous operations and those which require employees to work on Saturdays and Sundays, when a holiday falls on a Saturday or Sunday, the actual holiday will be observed rather than the city-observed holiday.

10.1.3     Except as otherwise provided, no such full-time employee shall be required to work on any of said holidays; provided, however, that subject to regulation and control by the City Manager, or designee, the head of any department of the City government may specify the days of the week and the hours of such days when any such employee in their department or under their jurisdiction shall be required to work, and may require any such employee to work on any or all of said holidays. Each full-time employee who is required to work on any of said holidays shall receive the salary that he/she would be entitled to for that day at his/her regular rate of pay, and in addition thereto, he shall receive compensatory time off duty equal to 1-1/2 times the number of hours the employee works on said holiday.

10.1.4     If any of said holidays falls on a full-time employee's regular day off, during which the employee is not required to work, such employee shall be entitled to compensatory time off duty equal to the number of regularly scheduled hours which the employee works during their assigned work day. Said compensatory time off duty shall be credited to such employee in accordance with Article 7, Section 7.12 provided, however, that upon written request by the employee to the Department Director, or designee, within not more than 30 calendar days after the holiday when such compensatory time was earned, such employee shall receive and be given, in lieu of such compensatory time off, such additional compensation as shall equal the number of hours of compensatory time credited to the employee multiplied by the employee's equivalent hourly rate.

10.1.5     Said compensatory time off duty shall be credited to such employee in accordance with Section 7.12 of this Agreement; provided, however, that upon written request by the employee to the Department Director, or designee, within not more than 30 calendar days after the holiday when such compensatory time was earned, such employee shall receive and be given, in addition to their regular pay for such holiday and in lieu of such compensatory time off, such additional compensation as shall equal the number of hours of compensatory time credited to the employee multiplied by the employee's equivalent hourly rate.

10.1.6     The compensation above provided to any employee who may be required to work on any or all of said holidays shall be inclusive of any overtime compensation or other benefits to which such employee may be entitled under the provisions of any other ordinance or resolution of the City of San José, or other applicable law, and not in addition thereto.

10.1.7     An employee who is scheduled to work on a holiday, and who does not work due to illness or injury for which they would otherwise be eligible for sick leave, shall be credited with sick leave for the day and shall not be eligible for holiday leave.

10.1.8     Reduced Work Week - Holiday Benefits.     Paid holiday leave shall be granted to employees on a reduced work schedule based on the number of hours per week the employee is regularly scheduled to work under the reduced schedule. Holiday compensation for such employees shall be as follows:

Regularly Scheduled Hours per Week	Hours of Paid Leave for Each Holiday
35-39	8 Hours
30-34	6 Hours
25-29	5 Hours
20-24	4 Hours
Less than 20	0

10.1.8.1     If a holiday falls on a day in which the employee is regularly scheduled to work a number of hours in excess of the paid holiday leave listed above, the employee shall arrange in advance with their supervisor to either work additional hours on another day of the week or to take vacation, compensatory time off or lost time for the excess hours.

10.1.9     Alternative Work Schedule - Holiday Benefits.     The following provisions for holiday and other paid leave shall apply to employees on an alternative work schedule.

10.1.9.1     If an employee takes paid leave (e.g. holiday, sick leave, vacation, compensatory time off, etc.) on a scheduled workday, the employee shall be entitled to pay for the number of hours the employee was scheduled to work that day.

10.1.9.2     If a holiday is observed on an employee's scheduled day off, the employee shall be credited with eight hours compensatory time off at the 1.0 rate for a full day holiday.

10.1.9.3     If an employee on an alternate schedule works on a holiday, the employee shall receive eight hours of compensatory time at the 1.0 rate for a full day holiday, and in addition shall receive pay or compensatory time off at the 1.5 rate for the number of hours actually worked.

10.1.9.4     If any of said holidays falls on a full-time employee's regular day off, during which the employee is not required to work, such employee shall be entitled to receive eight (8) hours of compensatory time off duty at the 1.0 rate. Said compensatory time off duty shall be credited to such employee in accordance with Section 7.12 provided, however, that upon written request by the employee to the Department Director, or designee, within not more than 30 calendar days after the holiday when such compensatory time was earned, such employee shall receive and be given, in lieu of such compensatory time off, such additional compensation as shall equal the number of hours of compensatory time credited to the employee multiplied by the employee's equivalent hourly rate.

10.1.10     Part-Time Employees - Holiday Benefits.     Holiday leave with pay and compensation for time worked on a holiday shall be granted to eligible part-time employees on the same basis and subject to the same restrictions, conditions and limitations as apply to such leave with pay and such compensation for full-time employees; provided, however, that each eligible part-time employee shall be entitled to holiday leave with pay for a number of hours each holiday based on the number of hours per week such part-time employee is indefinitely assigned to work in the employee's regularly scheduled part-time position. Such number of hours shall be in accordance with the following hours per week scheduling:

Regularly Scheduled Hours Per Week	Hours of Leave with Pay Each Holiday
30-39 Hours	6 Hours
25-29 Hours	5 Hours
20-24 Hours	4 Hours

10.1.10.1     Compensation for holidays shall be according to the above schedule regardless of the number of hours any eligible part-time employee may have been scheduled to work or would have been required to work on any designated holiday.

10.1.10.2     Each part-time employee who is not eligible to receive supplemental benefits provided by this Article and who is required to work on any of said holidays shall receive the salary that the employee would be entitled to for the hours worked on that day at the employee's regular rate of pay, and in addition thereto, shall receive compensation in a sum equal to one-half times the employee's regular hourly pay multiplied by the number of hours worked by the employee on such holiday, provided and excepting, however, that no part-time employee who is required to work on any of said holidays and who received a flat daily rate of pay, plus room and board shall be entitled to or shall be paid any compensation in addition to the employee's regular flat daily rate of pay plus room and board.

10.1.11     Library Holiday Schedule.     Due to the scheduling needs of the public library the above listed holidays may be observed on a day other than the date designated by the City. A calendar listing the dates of holiday observance for the library shall be provided to library employees in a timely manner, but at a minimum by October 31 for the upcoming calendar year. Library employees regularly scheduled for a Tuesday through Saturday work week shall work Monday through Friday when December 25 and January 1 fall on a Saturday.

10.1.12     Holiday Closure.     The City Manager, or designee, may determine that all non-essential City operations close for a Holiday Closure during the Christmas and New Year holidays. In such event, employees shall be encouraged to take time off, however, it shall not be a requirement. Employees electing to take time off may choose to take vacation, compensatory time, personal leave or lost time during the closure period. Employees taking lost time during the closure shall continue to receive vacation, sick leave, city-wide and department seniority accruals. Eligible employees who have been employed with the City for less than 13 bi-weekly pay periods, may use available vacation leave during the holiday closure.

10.1.13     Holiday-In-Lieu Pay For Public Safety Dispatchers.     In lieu of the holiday compensation provided above, employees in the Public Safety Dispatcher class series (I, II, Senior and Supervising Public Safety Dispatcher) shall be paid an amount equal to 6.09% effective July 1, 1998, of base salary as holiday pay. Holiday-in-lieu compensation shall be included in the employee's final average salary for the purpose of pension calculation. Employees who are paid such holiday-in-lieu pay may be required to work on holidays, and do not receive any other form of holiday compensation under any other section of this Agreement.

10.2     Vacation and Personal Leave

10.2.1     Eligible Full-time Employee - Vacation. Each eligible full-time employee, who has been employed as such for at least 13 biweekly pay periods, shall be granted vacation leave with pay in accordance with the following:

10.2.1.1     Employees shall accrue a leave of absence with full pay for vacation purposes, pursuant to the provisions of Resolution No. 51872, or as amended. An employee shall be entitled to accrue vacation leave in the amount specified below for each cycle of 26 full biweekly pay periods immediately preceding December 31st, or portion thereof, in each year of employment as specified:

Years of Service	Hours of Vacation Per 26 Pay Period Cycle
First 5 years	80 hours
6 - 10 years	120 hours
11 - 12 years	136 hours
13 - 14 years	152 hours
15 or more years	168 hours

10.2.1.2     Carry-Over of Vacation Leave.     An employee may carry over to the next subsequent cycle of 26 biweekly pay periods, not more than 200 hours of the maximum allowable accrual in the previous cycle, whichever is less, of unused vacation leave, together with any earned vacation leave which the employee is prevented from using in the former cycle, during which it is accrued, because of service-connected disability. An employee carrying-over greater than the maximum allowable vacation hours shall have the excess amount deducted from the following year's accrual.

10.2.1.3     Reimbursement for Unearned Vacation Leave.     If the employment of any full-time employee should cease, and if the employee should have taken more vacation leave than accrued at the time of separation from employment, there shall be deducted from the employee's final pay, or the employee shall refund to the City such pay as the employee shall have received for vacation leave theretofore taken. The provisions of this Section 10.2.1.3 shall not apply to any full-time employee whose employment by the City is discontinued by reason of the employee's death, or entry into active duty with any of the Armed Forces of the United States that is reasonably likely to exceed one year in duration.

10.2.1.4     Payment for Unused Accrued Vacation Leave Upon Termination of Employment.     If the employment by the City of any full-time employee should cease, the employee shall be given, at the time of such separation from employment, full pay for any vacation leave which may then have accrued and is not used.

10.2.2     Vacation Pay.     If, in the judgment of the City Manager, or designee, it is desirable by reason of a shortage of staff or increased volume of work, to permit any full-time employee to work for the City during the time ordinarily allocated to such employee for vacation purposes, such work may be authorized. An employee who elects to perform such additional work shall be entitled to receive as additional compensation for such work an amount of money equal to the employee's regular pay for such hours of work if such were not rendered during vacation leave, or, in lieu thereof, the employee may elect, in writing, filed with the Director of Human Resources, or designee, to carry over such leave to the subsequent cycle of 26 biweekly pay periods.

10.2.3     Vacation Leave.     Use of accrued vacation or personal leave is subject to the advanced approval of the Department head or designee. Any and all leaves granted pursuant to this Article shall be granted at such time or times as will not reduce the number of employees below that which is reasonably necessary for the efficient conduct of the public business of such department, except no employee who is authorized to take a leave for vacation purposes shall be required to commence such leave at a time other than the beginning of a work week, unless the employee elects or consents to commence such leave at another and different time. Employees shall submit written requests for all vacation leave in advance and as early as practical. Written response to the leave request will be provided back to the employee within ten working days of the receipt of the written request. Nothing in this section shall interfere with an established vacation scheduling procedure.

10.2.3.1     Subject to the above provisions, preference of vacation leave timing in any calendar year shall be determined as follows:

10.2.3.1.1     In the absence of conflict, the work unit may determine the method for scheduling vacations. Should a conflict arise, preference of vacation leave timing shall be given in order of seniority, except that pre-approved vacation shall be honored, subject to operational requirements. For purposes of this section, seniority shall be determined first by the length of time served in the classification and, then, by time served in the City.

10.2.4     Computation of Vacation Leave.     For purposes of this Article, paid leave of absence from duty by reason of sick leave, holiday leave, vacation leave, disability leave, compensatory time-off, or any other paid leave, shall be deemed to be time worked. Prior periods of employment shall be credited to the employee for purposes of determining vacation eligibility, provided that during each such prior employment period, the employee achieved permanent status. An employee in an initial probationary status shall not be permitted to take a vacation during the first 13 pay periods of employment, even though such employee may, upon satisfactory completion of the probationary period, be entitled to additional vacation pursuant to the above.

10.2.5     Vacation Bidding - Public Safety Dispatcher.     Vacation bidding shall be governed by Section 10.2.3 of this Agreement, except that for the Dispatcher I and Dispatcher II classifications County service and City service in the Police Department and the Fire Department shall all be counted in determining the amount of seniority in class an employee has for the purposes of vacation bidding.

10.2.5.1     Seniority in class shall be used to bid against others within the same department (i.e., Police or Fire) and on the same shift.

10.2.5.2     Part-time Dispatchers shall bid with full-time Dispatchers for vacations.

10.2.6     Eligible Part-time Employees - Vacation.     During the term of this Agreement, and subject to the same restrictions, conditions, and limitations applicable to full-time employees as provided in this Agreement, except as otherwise hereinafter provided, eligible part-time employees, as described in Section 7.9.2, shall accrue and be granted leave of absence with full pay for vacation purposes on the following basis:

10.2.7     During the employee's first 10,400 hours of employment in a regularly scheduled part-time position, the employee shall accrue vacation leave at the rate of 0.03875 hours of vacation leave for each hour worked, exclusive of overtime.

10.2.8     During the employee's first 10,400 hours following the employee's first 10,400 hours in a regularly scheduled part-time position, the employee shall accrue vacation leave at the rate of 0.05875 hours of vacation leave for each hour worked, exclusive of overtime.

10.2.9     During the employee's first 4,160 hours following the employee's first 20,800 hours in a regularly scheduled part-time position, the employee shall accrue vacation leave at the rate of 0.06625 hours of vacation leave for each hour worked, exclusive of overtime.

10.2.10     During the employee's first 4,160 hours following the employee's first 24,960 hours in a regularly scheduled part-time position, the employee shall accrue vacation leave at the rate of 0.07375 hours of vacation leave for each hour worked, exclusive of overtime.

10.2.11     During each hour following completion of 29,120 hours of employment, in a regularly scheduled part-time position, the employee shall accrue vacation leave at the rate of 0.08125 hours of vacation leave for each hour worked, exclusive of overtime.

10.2.12     Carry over vacation shall be limited to 120 hours or the employee's maximum allowable accrual in the previous cycle, whichever is less.

10.2.13     Vacation leave may be taken only after completion of 1,040 hours of employment and in an amount equal to but not more than the amount of vacation accrued.

10.2.14     Any such part-time employee shall be entitled to paid vacation leave only for those days and number of hours the employee is in fact assigned to work or would have been required to work, notwithstanding the designation, scheduling and indefinite assignment made pursuant to this Article.

10.2.15     No eligible part-time employee shall be entitled to vacation leave with pay for any day or portion of a day during which the employee is absent, if in fact the employee is not assigned to work or would not have been required to work on that day or portion of that day, notwithstanding the designation, scheduling and indefinite assignment made pursuant to this Article.

10.2.16     Personal Leave.     Each full time employee shall be entitled to a total of 16 hours of personal leave per year. Such leave may be scheduled in one-half hour increments, at any time, subject to approval of the supervisor. Personal leave does not accrue. Any such leave not taken by the date of separation for employees separating during the year, or by the end of the last pay period in the calendar year for other employees, shall not be paid out nor carried over to subsequent years. Under no circumstances, such as promotion, transfer, and/or rehire, shall an employee receive more than 16 hours of Personal Leave in any given calendar year.

10.2.16.1     Employees hired on or after July 1 shall be entitled to only eight (8) hours of personal leave in the first payroll calendar year of employment.

10.2.16.2     Each benefited part-time employee shall be entitled to annual personal leave of 8 hours per year except that, in the first payroll calendar year of employment, employees hired before July 1st will get 8 hours of annual personal leave and employees hired on or after July 1st will get 4 hours of annual personal leave.

10.3     Sick Leave

10.3.1     Sick Leave - Full-time Employees.     Each full-time employee shall be entitled to sick leave with pay in accordance with the following provisions:

10.3.1.1     Sick leave shall accrue in an amount equal to the number of hours worked, excluding overtime, multiplied by a factor of 0.04616. Paid leave for holidays, vacation, disability, compensatory time off, or other paid leave shall be considered time worked for purposes of this section.

10.3.2     Sick Leave - Part-Time Employees

10.3.2.1     During the term of this Agreement, sick leave with pay shall be granted to eligible part-time employees in the amount of 0.04616 hour of sick leave for each hour worked, exclusive of overtime, and shall be subject to the same restrictions, conditions and limitations as are applicable to paid sick leave for full-time employees.

10.3.2.2     Any such part-time employee shall be entitled to paid sick leave only for those days and number of hours the employee is in fact assigned to work or would have been required to work, notwithstanding the designation, scheduling and indefinite assignment made pursuant to this Article.

10.3.2.3     No eligible part-time employee shall be entitled to sick leave with pay for any day or portion of a day during which the employee is absent, if in fact, the employee is not assigned to work or would not have been required to work on that day or portion of that day, notwithstanding the designation, scheduling and indefinite assignment made pursuant to this Article.

10.3.3     Use of Sick Leave.     Accrued sick leave may be utilized if the employee is required to be absent from work on account of non-job related illness or injury; routine medical or dental appointments; or for the care related to the illness or injury of the employee's child, mother, father, spouse or domestic partner registered with the Department of Human Resources.

Up to 48 hours of accrued sick leave per calendar year may be utilized if the employee is required to be absent for the care related to the illness or injury of the employee's grandchild, brother, sister, father-in-law, mother-in-law, stepfather, stepmother or stepchild.

The provisions of this section related to the use of sick leave for the care related to the illness or injury of the employee's family members as defined above shall expire at the end of the term of this Agreement. In the negotiations for a successor Agreement, the parties shall review and evaluate the appropriateness of this benefit.

10.3.3.1     Accrued sick leave may also be utilized for job-related illness or injury in accordance with the provisions of Section 10.4 Disability Leave, or if the employee is medically required to be absent from work between the date an examining physician determines the employee's condition to be "permanent and stationary" and the date the employee is so notified. Such accrued sick leave may not be utilized if the employee is otherwise entitled to temporary disability leave compensation for the above-referenced period of time. Accrued sick leave not to exceed three working days may be granted at the discretion of the Director of Human Resources or designee, following the notification referred to above. Telephone notice or a notice mailed to the employee's last known address of record shall be determined notice to the employee.

10.3.3.2     Accrued sick leave not to exceed three working days may be granted in circumstances where an alleged job-related illness or injury is involved, but the employee fails to provide medical verification of such job-related illness or injury.

10.3.3.3     Anything in this Article to the contrary notwithstanding, an employee who, pursuant to the provisions of Section 10.4 of this Agreement, has been receiving temporary disability leave compensation and who has received the maximum allowable amount of such compensation pursuant to Section 10.4, and who is entitled to Workers' Compensation temporary disability benefits, and has exhausted all other available paid leave, shall be permitted to utilize accrued sick leave subject to the following restrictions: Sick Leave shall be utilized in 1/2 hour increments, but in no event shall an employee receive an amount, including any Workers' Compensation temporary disability compensation, in excess of such employee's regular base pay.

10.3.3.4     Accrued sick leave may be used in accordance with the provisions of the Catastrophic Illness or Injury Time Donation Program.

10.3.4     Except as otherwise provided by resolution of the City Council, paid sick leave shall not be allowed for any absence from work occasioned by intoxication, chronic alcoholism or use of narcotics not prescribed by a licensed physician. If approved by the City, an employee who is enrolled and participating in a substance abuse treatment program may use sick leave for absences resulting from participation in such program. The City may require appropriate verification.

10.3.5     No employee shall be entitled to or be granted sick leave, either with or without pay, unless the employee notifies their immediate superior, Department Director or designee, of the employee's intent to take such sick leave due to a personal or family illness prior to the commencement of the sick leave where such notice is possible; provided, however, that the City Manager, or designee, may waive the requirement of such notice upon presentation of a reasonable excuse by such employee.

10.3.5.1     An employee may be required to furnish medical verification or other substantiation for any absence for which sick leave payment is requested.

10.3.5.2     A full-time employee of the City shall be entitled to sick leave without any pay if required to be absent from work on account of any non-job related illness, injury or disability, including absences related to pregnancy or childbirth, in all situations where such employee is not entitled to sick leave with pay. Any full-time employee who is unable to return to work after being absent on unpaid sick leave for 12 consecutive months or for 12 cumulative months in any period of 24 consecutive months shall be separated from City service.

10.3.5.3     A full-time or part-time employee on paid or unpaid medical leave which extends for a period of 30 or more calendar days shall inform the department of their medical status and probable date of return to work as soon as this information is known, and at least in intervals of no more than 30 calendar days. Such notice shall be in writing to the Department Director, or designee.

10.3.6     Sick Leave Payoff.     Sick Leave Payout shall be given to full-time and part-time benefited employees who are members of the Federated City Employees Retirement System the time of retirement or death under one of the following conditions:

10.3.6.1     Federated City Retirement System.     The employee is a member of the Federated City Retirement System, and retired under the provisions cited in the plan, and credited with at least 15 years of service in this retirement plan, or credited with at least ten years of service prior to a disability retirement.

10.3.6.2     Terminated Employee with Vesting Rights.     The employee has terminated service with the City in good standing, retained vesting rights in a retirement system according to provisions in the San José Municipal Code, and following such termination, qualifies for retirement and retires under the provisions cited in the code and has at the time of retirement credit for at least 15 years of service in the applicable retirement plan.

10.3.6.3     Death During Service.     The estate of any full-time employee who dies while in City service and prior to retirement, even though the employee is not credited with at least 15 years of service in any applicable retirement plan.

10.3.6.4     Death of Terminated Employee.     The estate of any full-time or eligible part-time employee who had terminated service with the City in good standing but had retained vesting rights in a retirement system according to provisions in the San José Municipal Code, and dies (on or after July 10, 1977) prior to becoming eligible for retirement allowances as cited under provisions of the San José Municipal Code, and has at the time of death credit for at least 15 years of service in the applicable retirement plan.

10.3.6.5     Payout shall be determined as follows.     If a full-time or eligible part-time employee at the time of retirement or death has earned unused sick leave hours, the employee or Estate shall be paid the equivalent of a specified percent of their hourly rate of pay at the time of retirement, termination or death, whichever comes first, multiplied by the total number of accumulated and unused hours of sick leave as of the date of retirement or death as follows:

Less than 400 hours: Hours accumulated × 50% of final hourly rate

or 400 - 799 hours: Hours accumulated × 60% of final hourly rate

or 800 - 1200 hours: Hours accumulated × 75% of final hourly rate

10.3.7     Sick Leave - Public Safety Dispatchers.     The provisions of Section 10.3.6 of this Agreement governing sick leave payout shall apply, except that County service shall be counted in meeting either the ten or 15-year eligibility requirement.

10.3.8     Use of previously accumulated sick leave hours. For purposes of determining the total number of accumulated and