SMCCE 2.2 Agency Shop

A. The Council agrees that it has the duty to provide fair and non-discriminatory representation to all employees in all classes in the units for which this section is applicable regardless of whether they are members of the Council.

B. As soon as possible after the Council has presented evidence to the County, either by an election conducted by the State Conciliation Service or by a showing of Council dues payment which evidence must be presented to the County, that it represents a majority of the employees in that bargaining unit, all employees employed in that unit, except supervisors as defined in Section 2.2 C. below, shall as a condition of employment either:

1. Become and remain a member of the Council, or;

2. Pay to the Council an agency fee in an amount which does not exceed an amount which may be lawfully collected under applicable constitutional, statutory, and case law (e.g., Hudson v. Chicago Teachers Union, Local No. 1, AFL-CIO), which shall be equal to or less than the monthly dues made during the duration of this Memorandum of Understanding, it being understood that it shall be the sole responsibility of the Council to determine an agency fee which meets these criteria; or

3. Do both of the following:

a. Present to the Council and the Controller a written declaration that the employee is a member of a bona fide religion, body, or sect which has historically held a conscientious objection to joining or financially supporting any public employee organization as a condition of employment; and

b. Pay a sum equal to the agency fee described above to one of three negotiated non-religious, non-labor, charitable funds that are exempt from taxation under Section 501 (c) (3) of the Internal Revenue Code.

Negotiated charitable funds are:

  1. San Mateo County Health Center Foundation
  2. San Mateo County Mental Health Association’s Spring Street Shelter for the Homeless Mentally Ill
  3. San Mateo County Service League

C. For the purpose of this section, a supervisor or supervisory employee shall be an employee who regularly supervises the work of two or more employees and whose work customarily and regularly involves spending more than 50% of work time on supervisory, rather than journeyperson, activity. Supervisors as defined above shall not be subject to the provisions of this Section 2.2, Agency Shop, but shall continue to be covered by Section 2.1, Dues Deduction.

D. As a condition of employment, all new employees who are hired into non-supervisory classifications covered by this MOU on or after the effective date of this Agency Shop provision as specified above, shall at the time of hire execute an authorization for the payroll deduction of one of the options specified in Paragraph B. 1, 2, and 3 above.

1. If the form authorizing payroll deduction is not returned to the County Controller within 30 calendar days, the Controller shall so notify the Council, providing the employee’s name, address, and classification. The Council may then, in writing with a copy to the employee, direct that the Controller withhold the Agency Fee from the employee’s salary and the Controller shall pay an equal amount to the Council.

2. Within 10 working days of the date the Council issues such direction that such Agency Fee be withheld, the Council shall provide to the County confirmation that the agency fee payer has been furnished a copy of the Council’s “Hudson Procedure”.

E. Those non-supervisory employees who elect membership in the Council shall continue to pay Council dues for the duration of this MOU and each MOU thereafter. Any employee who is a member of the Council shall have the right to withdraw from the Council by discontinuing dues deduction and selecting one of the options specified in Paragraph B. 2. or 3. above. Said withdrawal shall be communicated by the employee, in writing, to the Council and the County Controller, to be delivered by certified mail.

F. The Council shall provide the County with a copy of the Council’s “Hudson procedure” for the determination and protest of its agency fees. The Council shall provide a copy of said “Hudson procedure” to every agency fee payer covered by this MOU as provided in Sections J.1.b. and J.2.c. below, and annually thereafter, and as a condition to any percentage change in the agency fee.

G. If, after all other involuntary and insurance premium deductions are made in any pay period, the balance is not sufficient to pay the deduction of Council dues, agency fee, or charity fee required by this Section, no such deduction shall be made for the current pay period.

H. The provisions of Paragraph B. and D. shall not apply during periods that an employee is separated from the bargaining unit, but shall be reinstated upon the return of the employee to the bargaining unit. For the purpose of this Paragraph, the term separation includes transfer out of the bargaining unit, layoff, and leave of absence without pay.

I. Annually, the Council shall provide the Director of Human Resources with copies of the financial report which the Council annually files with the California Public Employee Relations Board, the United States Department of Labor (Form LM-2), or the Council’s balance and operating statement for the prior year. Failure to file such a report within sixty (60) days after the end of its fiscal year shall result in the termination of all agency fee deductions without jeopardy to any employee, until such report is filed.

J. Compliance

1. New Employee (Non-Supervisory)

a. Any employees hired after the effective date of this Section 2.2 into a non-supervisory job class or positions covered by this MOU shall be provided by the County with and shall execute an “Employee Authorization for Payroll Deduction” form selecting one of the following: 1) Council dues; 2) agency fee; or 3) if he/she qualifies, a fee equal to agency fee payable to one of three negotiated charities.

b. Every other week, the County shall furnish the Council with copies of all such authorization documents. Within 10 work days of receipt, the Council shall furnish all agency fee payers with copies of the Council’s “Hudson procedure” and shall provide to the County confirmation of such mailing.

2. Current Employees (Non-Supervisory)

a. An employee employed in a bargaining unit that has been granted Agency Shop in accordance with Section B. above in a non-supervisory job class or position covered by this MOU shall be provided by the County with an “Employee Authorization for Payroll Deduction” form and a cover letter agreed to by the parties, via paycheck distribution.

b. If the form authorizing payroll deduction is not returned to the County Controller within 30 calendar days after receipt of notice of the Agency Shop provision and the “Employee Authorization for Payroll Deduction,” the Controller shall so notify the Council, providing the employee’s name, address, classification, and department. The Council may then, in writing, direct that the County withhold the agency fee from the employee’s salary, in which case the employee’s paycheck shall be reduced by an amount equal to the agency fee and the County shall pay an equal amount to the Council.

c. Within 10 working days of the date it issues such direction that agency fees be withheld, the Council shall provide to the County confirmation that it has furnished each agency fee payer with a copy of the Council’s “Hudson procedure.”

K. The Council shall indemnify, defend, and hold the County harmless against any and all claims, demands, suits, orders, or judgments, damage related to dues deduction and union security, or other forms of liability that arise out of or by reason of this Council Security Section, or action taken or not taken by the County under this Section. This includes, but is not limited to, the County’s attorney’s fees and costs.

L. The County shall hand out agreed upon Council materials along with the Agency Shop forms.