ORIGINAL 2 STATE OF NEVADA LOCAL GOVERNMENT EMPLOYEE - MANAGEMENT RELATIONS BOARD

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CITY OF RENO, Petitioner, v. RENO FIREFIGHTERS LOCAL 731, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS; THE INTERNATIONAL UNION OF OPERATING ENGINEERS, STATIONARY LOCAL #39, AFL-CIO; THE RENO ADMINISTRATIVE AND PROFESSIONAL GROUP; THE RENO POLICE PROTECTIVE ASSOCIATION; THE RENO POLICE SUPERVISORY AND ADMINISTRA TIVE EMPLOYEES ASSOCIA TION; THE RENO FIRE DEPARTMENT ADMINISTRATORS' ASSOCIATION; Respondents. I Petition For Declaratory Relief The City of Reno (the "City") petitions the Local Government Employee-Management Board for declaratory relief as follows: 1. The City is a municipal corporation and a local government employer within the ITEM NO.: CASE NO.:

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jJJ -0'/6 tJ'I'1

RECEIVED
DEC 13 2011
STATE OF NEVADA
E.~.R.B.

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meaning ofNRS 288.060.

2.

Respondents are the employee organizations recognized by the City as the

exclusive bargaining representati ves for specified bargaining units comprised of City employees as follows: A. Reno Firefighters Local 731, International Association of Firefighters

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Reno City Attorney

("Local 731 "), is the exclusive bargaining representative for all non-supervisory, supervisory and emergency support services personnel engaged in fire prevention, suppression and fire

P.O. Box 1900
Reno, NV 89505

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equipment/apparatus

repair and maintenance in the Reno Fire Department and all non-

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supervisory, supervisory and emergency support services personnel employed by the City to provide emergency medical services. The City and Local 731 are parties to a collective bargaining agreement with a term of July 1,2011 through June 30,2013, approved by the Reno City Council on July 6, 2011. The address for Local 731 is 390 Kirman Avenue, Reno, NV 89502.

B.

The International Union of Operating Engineers, Stationary Local #39,

AFL-CIO ("Local 39"), is the exclusive bargaining representative for all personnel employed by the City in the positions described in the attached Exhibit 1 known as the Supervisory Unit and for all personnel employed by the City in the positions described in the attached Exhibit 2 known as the Non-Supervisory Unit. The City and Local 39 are parties to a collective bargining

agreement with a term of July], 2006 through June 30, 2011. The address for Local 39 is 390 Kirman Avenue, Reno, NV 89502. C. The Reno Administrative and Professional Group CRAPO") is the

exclusive bargaining representative for all personnel employed by the City in the positions described in the attached Exhibit 3 known as the Administrative Unit and for all personnel employed by the City in the positions described in the attached Exhibit 4 known as the Professional Unit. The City and RAPG are parties to a collective bargaining agreement for the Administrative Unit with a term of July 1, 2006 through June 30, 2011. The City and RAPG are parties to a collective bargining agreement for the Professional Unit with a term of July 1, 2011 through June 30, 2013, approved by the Reno City Council on September 28,2011 subject to the requirements 0[2011 Senate Bill 98 ("S.B. 98"). The address for RAPG is Steve Bigham, President, RAPG, P.O. Box 1900, Reno, NV 89505. D. The Reno Police Protective Association ("RPP A") is the exclusive

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Reno City Altorney P.O. Box 1900 Reno, NV 89505

bargaining representative for all City employees within the non-supervisory law enforcement classifications of Detective and Police Officer. The City and RPP A are parties to a collective bargining agreement with a term of July 1,2011 through June 30, 2013, approved by the Reno City Council on July 13,2011. The address for RPPA is P.O. Box 359, Reno, NV 89504.

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3 ("RPSAE")

E.

The Reno Police Supervisory bargaining representative

and Administrative for all classified

Employees employees

Association of the City

is the exclusive

within the police administrative Administrative Lieutenant

law enforcement

officer class of Deputy Chief (the supervisory law enforcement officer class of law enforcement

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Unit), the police administrative Supervisory

(the Administrative

Unit) and the police supervisory Unit).

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officer class of Sergeant (the Supervisory bargaining agreements

The City and RPSAE are parties to collective Unit and the Supervisory Unit with a

for the Administrative

Supervisory

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term of July I, 2011 through June 30, 2013, approved 2011. The City and RPSAE are parties to a collective

by the Reno City Council on July 13, bargaining agreement for the by the Reno

Administrative

Unit with a term of July 1,2011 through June 30, 2013, approved

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City Council on July 13, 2011 subject to the requirements Al Snover, President,

of S.B. 98. The address for RPSAE is

RPSAE, P.O. Box 1900, Reno, NV 89505. The Reno Fire Department representative Administrators' Association ("RFDAA") positions is the

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exclusive bargaining

for all career management

and administrative

above the level of first-line training, emergency

supervision,

except for the Fire Chief, engaged in fire prevention, within the City of Reno and any other services. The City and RFDAA are parties

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medical services and suppression

areas for which the City may provide fire protection to a collective approved bargaining agreement

with a term of July 1~2010 through June 30, 2013, of S.B. 98. The

by the Reno City Council on July 13, 2011 subject to the requirements is P.O. Box 50591, Reno NV 89513-0591.

address for RFDAA 3. Governor

On June 1,2011, Sandoval

during the final full week of the 2011 legislative

session,

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issued a press release in which he announced leadership.

a budget and reform agreement Sandoval announced that

reached with legislative the agreement Agreements

Among others things, Governor bargaining

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"[ d]ramatically will be re-opened

changes collective

for local government and supervisory

employees. employees will

during times of fiscal emergency bargain."

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Reno City Attorney P.O. Box 1900 Reno, NV 89505

not be allowed to collectively

A copy of the press release is attached as Exhibit 5.

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4.

On June 6, 2011, the Nevada Legislature approved S.B. 98 with an effective date

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of Jul y 1, 2011. Governor Sandoval approved S.B. 98 on June 16, 2011. A copy of the enrolled version of S.B. 98 is attached hereto as Exhibit 6. 5. As relevant to this petition, S.B. 98 made the following changes to Chapter 288 of

Nevada Revised Statutes: A. a new subsection Section 5 of S.B. 98 amended NRS 288.075 to add 1(b) which provided an additional definition of

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"supervisory employee" as follows:

(b) Any individual or class of individuals appointed by the employer and having authority on behalf of the employer to: (1) Hire, transfer, suspend, layoff, recall, terminate, promote, discharge, assign, reward or discipline other employees or responsibility to direct them, to adjust their grievances or to effectively to recommend such action; (2) Make budgetary decisions; and (3)Re consulted on decisions relating to collective bargaining, if, in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. The exercise of such authority shall not be deemed to place the employee in supervisory employee status unless the exercise of such authority occupies a significant portion of the employee's workday.
B. Section 6 of S.B .. 98 amended NRS 288.140(1) and added subsection (4) to NRS 288.140 as follows:

(1) It is the right of every local government employee, subject to the [limitation] limitations provided in [subsection] subsections 3[,] and 4 to join any employee organization of the employee's choice or to refrain from joining any employee organization. A local government employer shall not discriminate in any way among its employees on account of membership or nonmembership in an employee organization.

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Reno City Attorney 1'.0. Box 1900 Reno, NV 89505

(4) The following persons may not be a member of an employee organization: (a) A supervisory employee described in paragraph (b) of subsection 1 of NRS 288.075, including but not limited to appointed officials and department heads who are primarily responsible for formulating and administering management, policy ami programs.

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(b) A doctor or physician who is employed by a local government employer. (c) Except as otherwise provided I this paragraph, an attorney who is employed by a local government employer and who is assigned to a civil law division, department or agency. The provisions of this paragraph do not apply with respect to an attorney for the duration of a collective bargaining agreement to which the attorney is a party as of July 1, 20Il. 5. As used in this section, "doctor or physician" means a doctor, physician, homeopathic physician, chiropractic physician, practitioner of Oriental medicine, podiatric physician or practitioner of optometry, as those terms are defined or used, respectively, in NRS 630.014, 630A.050, 633.091, chapter 634 of NRS, chapter 634A of NRS, chapter 635 of NRS or chapter 636 of NRS.

follows:

c.

Section 8 of S.B. 98 amended NRS 288.170(6) as

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6.

As used in this section [, "eonfidential] :

(a) "Confidential employee" means an employee who is involved
in the decisions of management affecting collective bargaining.

(b) "Supervisory employee" means a supervisory employee described in paragraph (a) of subsection I ofNRS 288.075.
6.

15 16 17 18 19 20 21 committee report regarding the meaning ofS.B. 98. A copy of that floor statement is attached hereto as Exhibit 7 and incorporated herein by this reference. As stated in such remarks, the requirement that an employee "[b]e consulted on decisions relating to collective bargaining" under NRS 288.075(b)(3), "does not mean that the supervisory employee actually is consulted or would have to be consulted on particular collective bargaining decisions; instead, it means that the supervisory employee is part of management such that there is the possibility that the supervisory employee could be consulted on a collective bargaining decision." III On June 6, 2011, Assemblyman Peter Goicoechea, the minority Assembly leader

and a member of the Assembly Conference Committee appointed to resolve differences between the Senate and Assembly versions of the bill, made a floor statement on the S.B. 98 conference

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In connection with the application of the requirement that such a supervisory

employee "[m]ake budgetary decisions" under NRS 288.075(b)(2), the City alleges that this requirement is applicable to any employee authorized to assist in developing, monitoring, analyzing, and managing the annual budget for his/her department and determining how to apply those resources to projects and programs throughout the fiscal year. Three specific activities are alleged to be relevant: A. Advising a department director on budgetary

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needs at a department, division, or program level; or B. materials, purchased negotiating goods and Recommending with vendors, the purchase of services or developing specifications scope of work for for

services,

or developing

professional service contracts; or C. Having authorization to sign purchase orders or contracts.

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8.

In connection with the application of the requirement that such a supervisory

employee under NRS 288.075(1)(b)(3), "[b]e consulted on decisions relating to collective bargaining", the City alleges that this requirement is applicable to employees whose duties involve operational areas that may be addressed through collective bargaining such as staffing, scheduling, deployment, training, compensation, personnel decisions or other matters addressed in collective bargaining agreements. 9. The City alleges that, by reason of the enactment of S.B. 98, any "supervisory is prohibited from being a member of an employee

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employee", as defined in NRS 288.075(I)(b),

organization, from collectively bargaining and from being covered by a collective bargaining agreement. The City further alleges that its interpretation of the requirements of S.B. 98 regarding such definition of a "supervisory employee" is consistent with the legislative intent of that definition, the stated understanding of Governor Sandoval and the floor statement by Assemblyman Goicoechea. III

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Kcnll Cily t\ttorncy P.O. Ro~ 1900 Reno, NV 89505

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10. The City alleges that by reason of the enactment

ofS.B.

98 and the foregoing

facts,

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certain employees

or classes of employees

who were, prior to the enactment Unit represented

of S.B. 98, members of the by

of the Administrative Administrative the RFDAA,

Unit or the Professional

by RAPG, members

Unit represented

by RPSAE, or members of "supervisory

of the bargaining

unit represented

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fall within the definition

employee"

under NRS 288.075(1 )(b).

11. The City alleges, upon information
employee organizations

and belief, that some or all of the respondent and applied in a manner, in part and applied.

contend that S.B. 98 must be interpreted than the City contends

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or in whole, differently

it should be interpreted

12. Rather than proceeding of S.B. 98 upon employees

in a unilateral

manner to impose its view of the requirements of a supervisory employee for with under

it contends

fall within the definition

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NRS 288.075(1 )(b) with the potential of being required to defend numerous alleged prohibited practices,

complaints judgment

the City requests this Board to issue its declaratory and application Any employee

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respect to the interpretation

of S.B. 98 and find and declare as follows: or class of employees of a local

A.
government employee

employer

who falls within

the definition

of a supervisory

under NRS 288.075(1)(b) organization and

is prohibited that the

from being a member of of whether an

an employee employee

determination

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falls within that definition

is not dependent

upon a temporary

change in circumstances. B. government employee collective Any employee or class of employees of a local

employer under NRS

who falls within 288.075(l)(b) and from being

the definition is prohibited included

of a supervisory from engaging in unit

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Reno City Attorney P.O. Box 1900 Reno, NV 89505

bargaining

in any bargaining

under NRS Chapter 288.

C.
Unit or Professional represented

None of the employees Unit represented

formerly

in the Administrative Unit

by RAPG, the Administrative unit represented

by RPSAE,

or the bargaining

by the RFDAA under NRS

who fall within

the definition

of "supervisory

employee"

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288.075( 1)(b) may engage in collective bargaining or be included in any

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bargaining unit under any collective bargaining agreement made on or after July 1,2011 D. The determination of whether any employee or class of employees falls within the definition of a supervisory employee under NRS 288.075(1 )(b) must take into account and be consistent with the floor statement by Assemblyman Goicoechea and the factors alleged above in paragraphs 7 and 8. Points and Authorities 1. Introduction

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Governor Sandoval reached an agreement with legislative leadership on a budget and reform agreement just days before the 2011 Legislature adjourned. Among other things, the purpose of the agreement was to dramatically change collective bargaining for local government employees. That purpose was achieved when S.B. 98 was passed by the Legislature on June 6, 2011, and signed by Governor Sandoval on June 16,2011. S.B. 98 became law on July 1,2011.

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The purpose of the City'S declaratory relief action is to request that this Board interpret S.B. 98 in accordance with established rules of construction in order to provide guidance to local government employers and employee organizations throughout the State as to the law's proper application in accordance with the allegations of this petition.

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Rules of construction

The construction of a statute is a question of law. Del Papa v. Board of Regents, 114 Nev. 388, 392, 956 P.2d 770 (1998). With regard to statutory construction, the Supreme Court held that: The leading rule for the construction of statutes is to ascertain the intention of the legislature in enacting the statute, and the intent, when ascertained will prevail over the literal sense. The meaning of words used in a statute may be sought by examining the context and by considering the reason or spirit of the law or the causes which induced the legislature to enact it. The entire subject matter and the policy of the law may also be involved to aid in its interpretation, and it should always be construed so as to avoid absurd results.

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Reno City Attorney

P.O. Box 1900
Reno, NV 89505

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Advanced Sports Info., Inc. v. Novotnak, 114 Nev. 336, 340, 956 P.2d 806 (1998), (quoting

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Moody v. Manny's Auto Repair, 110 Nev. 320,325,871
Courts must construe court must read each sentence, purpose of the legislation. construction,

P.2d 935, 938 (1994».

statutes to give meaning to all of their parts and language. Id. A phrase, and word to render it meaningful within the context of the

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Id. No provision of a statute should be rendered nugatory by a court's
if such a result can be avoided. Different provisions ofa so

nor should any language be made mere surplusage, P.2d 560 (2000). and consistent

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In re Estate of Thomas, 116 Nev. 492,495,998
statute must be reconciled as to make them consistent 457, 777 P .2d 1318 (1989). as far as practicable and harmonious.

with the intent of the legislature,

Rose v. First Fed. Sav. & Loan Ass'n, 105 Nev. 454,

When a statute is clear on its face a court may not go beyond the language of the statute 13 14 15 16 17 18 has no application. 19 20 21 Legislative intent can be determined by looking at the entire act and construing in determining the legislature's intent. Mckay v. Board of Supervisors, 102 Nev. 644,648, proffered 730

P.2d 438, 441 (1986). reasonably

But when either of the interpretations

by the parties can be and the plain

drawn from the language of the statute, the statute is ambiguous

meaning rule has no application.

Id. at 649. S.B. 98 is ambiguous

and the plain meaning rule

the statute as a whole in light of its purpose. Colello v. Administrator, Real Estate Division, 100 Nev. 344,347,683 determines P.2d 15, 16 (1984). When a statute is ambiguous, intent by evaluating the legislative the Supreme Court the statute

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Reno City A tturney P.O. Box 1900 Reno. NV 89505

the Legislature's

history and construing

in a manner that conforms to reason and public policy.
126 Nev. Adv. Op. 20, 234 P.3d 912, 918 (2010). scheme must be construed result. ld. harmoniously

Great Basin Water Network v. Taylor,
possible, statutes within a statutory or absurd

Whenever

with one another to avoid an unreasonable

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The expressly stated purpose of the statute is also a factor to be considered. Hotel

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Employees & Restaurant Employees Int'l Union

v,

State, 103 Nev. 588, 591, 747 P.2d 878

(1987). The intent may be ascertained from a consideration of the condition of the law before the enactment and the cause for the change. Stale ex rei. O'Meara v. Ross, 20 Nev. 61,63 (1887). Ambiguous statutes must be construed so as to avoid absurd results. Star Ins. Co. v. Neighbors, 122 Nev. 773, 776,138 P.3d 507 (2006). When interpreting a statute, any doubt as to legislative intent must be resolved in favor of what is reasonable, as against what is unreasonable, so as to avoid absurd results. Steward v. Steward, 111 Nev. 295, 302, 890 P.2d 777 ( 1995). Courts must construe statutes and ordinances to give meaning to all of their parts and language. Board of County Comm'rs v. CMC of Nevada , 99 Nev. 739, 744,670 P.2d 102 (1983). The court should read each sentence, phrase, and word to render it meaningful within the context of the purpose of the legislation. ld. A reading of legislation which would render any part thereof redundant or meaningless, where that part may be given a separate substantive interpretation, should be avoided. Id. As relevant to this petition, S.B. 98 made the following changes to Chapter 288 of Nevada Revised Statutes: A. Section 5 of S.B. 98 amended NRS 288.075 to add a new subsection
1 (b)

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which

provided

an additional

definition

of

"supervisory employee" as follows:
1(b) Any individual or class of individuals appointed by the employer and having authority on behalf of the employer to: (1) Hire, transfer, suspend, layoff, recall, terminate, promote, discharge, assign, reward or discipline other employees or responsibility to direct them, to adjust their grievances or to effectively to recommend such action,' (2) Make budgetary decisions; and (3)Be consulted on decisions relating to collective bargaining, if, in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. The exercise of such authority shall not be deemed to place the employee in supervisory employee status unless the

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P.p. nox 1900 Keno, NV 89505

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exercise of such authority occupies a significant portion of the employee's workday. 2 3
4 5 6 7 (1) It is the right of every local government employee, subject to the [limitation] limitations provided in [subsection] subsections 3[,] and 4 to join any employee organization of the employee's choice or to refrain from joining any employee organization. A local government employer shall not discriminate in any way among its employees on account of membership or nonmembership in an employee organization. This type of supervisory employee is referred to herein as a "managerial supervisor". B. Section 6 of S.B. 98 amended NRS 288.140(1) and added subsection (4) to NRS 288.140 as follows:

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(4) The following persons may not be a member of an employee organization: (a) A supervisory employee described in paragraph (b) of subsection 1 of NRS 288.075, including but not limited to appointed officials and department heads who are primarily responsible for formulating and administering management, policy and programs. (b) A doctor or physician who is employed by a local government employer. (c) Except as otherwise provided in this paragraph, an attorney who is employed by a local government employer and who is assigned to a civil law division, department or agency. The provisions of this paragraph do not apply with respect to an attorney for the duration of a collective bargaining agreement to which the attorney is a party as of July 1, 2011. 5. As used in this section, "doctor or physician" means a doctor, physician, homeopathic physician, chiropractic physician, practitioner of Oriental medicine, podiatric physician or practitioner of optometry, as those terms are defined or used, respectively, in NRS 630.014, 630A.050, 633.091, chapter 634 of NRS, chapter 634A of NRS, chapter 635 of NRS or chapter 636 ofNRS.
C. follows: As used in this section [, "confidential]: employee" means an employee who is involved in the decisions of management affecting collective bargaining. 6. Section 8 of S.B. 98 amended NRS 288.170(6) as

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(a)

"Confidential

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Reno City Attorney P.O. Box 1900 Reno, NV H9505

(b)

"Supervisory employee" means a supervisory employee

described in paragraph (a) of subsection 1of NRS 288.075.
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3. Any employee or class of employees of a local government within the definition of a supervisory employee under NRS 288.075(1)(b) being a member of an employee organization and that the determination employee falls within that definition is not dependent upon a temporary circumstances.

employer who falls is prohibited from of whether an change in

NRS 288.140(4) expressly provides that a supervisory employee described in NRS 288.075(1 )(b) may not be a member of an employee organization. The latter provision describes appointed by

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such supervisory employees as including "[ajny individual or class of individuals the employer and having authority

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on behalf of the employer to hire, transfer, suspend, lay oft:

recall, terminate, promote, discharge, assign, reward or discipline other employees or responsibility to direct them, to adjust their grievances or to effectively to recommend such action." (emphasis added). There should be no dispute about the meaning of this provision. Any "individual" or "class of individuals" that meets the description cannot be a member of an employee organization. Although a "class of individuals" is not defined in S.B. 98 or elsewhere in Chapter

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288, the dictionary meaning of a "class" is "a group, set, or kind sharing common attributes." Webster's Collegiate Dictionary, loth ed. (2002). Thus, the apparent intent of the provision is to make the determination applicable to all employees in a particular classification as long as the employees in that classification are authorized to take one or more of the specified employment actions. NRS 288.075(1)(b) does go on to state that "[t]he exercise of such authority shall not be deemed to place the employee in supervisory employee status unless the exercise of such authority occupies a significant portion of the employee's workday." The purpose of this provision appears to be intended to ensure that supervisory authority is conferred on an employee in good faith and not simply to bring an employee within the definition. To carry out this

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intended purpose, the City contends that merely because a supervisor happens to not exercise his

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authority to take one or more of the specified employment actions on a particular day would not exempt that employee from being classified as a managerial supervisor. Likewise, the City contends that an employee who is otherwise within a supervisory class of employees, but does not actually supervise other employees because of some temporary situation such as a vacancy in the position supervised or a similar circumstance, should be classified as a managerial supervisor. To hold otherwise would result in situations where a supervisory employee would be prohibited from being a member of an employee organization on particular days and a member on other days, a situation that would be unworkable for the employer as well as for the employee. Ambiguous statutes must be construed so as to avoid absurd results that could not have been intended by the Legislature. Therefore, the City expressly requests that this Board determine that a supervisory employee or class of employees described in NRS 288_075(1 )(b) may not be a member of any employee organization and that the determination of whether an employee falls within that definition is not dependent upon a temp.orary change in circumstances. 4. Any employee of a local government supervisory bargaining employer who falls within the definition of a from engaging in collective

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employee under NRS 288.075(1)(b) is prohibited and from being included in any bargaining

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unit under NRS Chapter 288.

Once it is determined that all managerial supervisors are prohibited from being a member of any employee organiz.ation, the next issue presented is determining the legal impact of that prohibition. In advance of S.B. 98's passage, Governor Sandoval stated, in announcing a budget

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and reform agreement reached with legislative leadership, that the agreement "[ dJramatically changes collective bargaining for local government employees" and that "supervisory employees III

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will not be allowed to collectively bargain." With the passage of S.8. 98, that agreement was 2 3 4 5 6 7 8
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fulfilled. As stated above, the expressly stated purpose of a statute is a factor to be considered in ascertaining the meaning of a statute. Hotel Employees & Restaurant Employees Int'l Union State, 103 Nev. 588, 591, 747 P.2d 878 (1987). The undisputable purpose ofS.B. 98 was to dramatically change collective bargaining for local government employees by prohibiting supervisory employees from collectively bargaining. The intent may be also ascertained from a consideration of the condition of the law before the enactment and the cause for the change. Prior to the passage of S.B. 98, managerial supervisors were not prohibited from being members of an employee organization or from participating in collective bargaining. According to the title of the bill, S.B. 98 is "[a]n Act relating to local governments; revising provisions relating to collective bargaining between local government employers and employee organizations; and providing other matters properly relating thereto." (emphasis added). The title of the bill refers only to revising provisions relating to collective bargaining between local government employers and employee organizations. The actual language of S.B. 98 must be construed with these purposes in mind. Prior to the enactment of S.B. 98, NRS 288.075(1) defined a "supervisory employee" only as: any individual having authority in the interest of the employer to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline other employees or responsibility to direct them, to adjust their grievances or effectively to recommend such action, if in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. The exercise of such authority shall not be deemed to place the employee in supervisory employee status unless the exercise of such authority occupies a significant portion of the employee's workday. III
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This definition is now found in NRS 288.075(1)(a). 2 referred to herein as an "immediate supervisor".

This type of supervisory employee is

Prior to the enactment of S.B. 98, an

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immediate supervisor was prohibited by NRS 288.170(3) only from being a member of the same bargaining unit as the employees under his or her direction. That same prohibition has been kept in effect under Section 8 of S.B. 98. By prohibiting immediate supervisors only from being in the same bargaining unit as employees under their direction, the Legislature impliedly recognized that immediate supervisors could be members of an appropriate bargaining unit as long it did not include employees under their direction. Section 5 ofS.B. 98, however, amended NRS 288.075 to add a new subsection (I)(b) which provided an additional definition of "supervisory employee" as follows:

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(b) Any individual or class of individuals appointed by the employer and having authority on behalf of the employer to: (/) Hire, transfer, suspend, layoff, recall, terminate, promote, discharge, assign, reward or discipline other employees or responsibility to direct them, to adjust their grievances or to effectively to recommend such action; (2) Make budgetary decisions; and (3)Re consulted on decisions relating to collective bargaining, if, in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the U.5e of independent judgment. The exercise of such authority shall not be deemed to place the employee in supervisory employee status unless the exercise of such authority occupies a significant portion of the employee's workday.
As stated above, this type of supervisory employee is referred to herein as a "managerial supervisor." The first factor relating to the exercise of supervisory duties is identical under each definition of a supervisory employee. The definition of a managerial supervisor, however, goes far beyond the definition of an immediate supervisor and requires that a supervisor make budgetary decisions and be consulted on decisions relating to collective bargaining in order to be

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classified as a managerial supervisor. But, because the first factor relating to the exercise of

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supervisory duties is identical under each of the definitions, while all managerial supervisors would qualify as immediate supervisors, not all immediate supervisors would qualify as managerial supervisors. As discussed above, prior to the enactment of S.B. 98 an immediate supervisor was prohibited by NRS 288.170(3) from being a member of the same bargaining unit as the employees under his or her direction. S.B. 98 added subsection 6(b) to NRS 288.170 which states:
6.

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As used in this section:

(b) "Supervisory employee" means a supervisory employee described in paragraph (a) of subsection 1ofNRS 288.075.
By providing this definition, the Legislature obviously intended to distinguish an immediate supervisor from a managerial supervisor. As a result of this definition, the prohibition ofNRS 288.170(3) against a supervisory employee being in the same bargaining unit as the employees under his or her direction is applicable only to immediate supervisors. No express provision prohibits a managerial supervisor from being in the same bargaining unit as an employee under that supervisor's direction. What did the Legislature intend when it expressly prohibited an immediate supervisor from being in the same bargaining unit as an employee supervised, but made no such express prohibition with respect to a managerial supervisor? One could assert that the Legislature's decision to not expressly prohibit a managerial supervisor from being a member of the same bargaining unit as an employee he supervised means that a managerial supervisor could be in the same bargaining unit as an employee he supervises. However, any such construction of the statute would lead to an absurd result. Why would the legislature specifically prohibit immediate supervisors from being members in a bargaining unit with employees under their direction, but not likewise prohibit managerial supervisors? The only reasonable answer is that that the Legislature saw no need to expressly enact that prohibition because it intended to prohibit

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managerial supervisors from taking part in collective bargaining and being a member of any 2 3 4 5 6 7 8 9 10
]1

bargaining unit by prohibiting them from being members of an employee organization. This is the only rational answer that is consistent with Governor Sandoval's understanding that S.B. 98 would dramatically change collective bargaining for local government employees and prohibit supervisory employees from collectively bargaining. This is the only rational answer that is consistent with S.B. 98's title which states that the bill revises "provisions relating to collective bargaining between local government employers and employee organizations." This is the only rational answer to the question presented. As further evidence of the Legislature's intent, the amendment to NRS 288.140 made by S.B. 98 must also be examined. Section 6 of S.B. 98 amended NRS 288.140(1) and added subsection (4) to NRS 288.140 as follows:
(1) It is the right of every local government employee, subject to the [limitation] limitations provided in [subseetion} subsections 3[,] and 4 to join any employee organization of the employee's choice or to refrain from joining any employee organization. A local government employer shall not discriminate in any way among its employees on account of membership or nonmembership in an employee organization.

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(4) The following persons may not be a member of an employee organization: (a) A supervisory employee described in paragraph (b) of subsection J of NRS 288.075, including but not limited to appointed officials and department heads who are primarily responsible for formulating and administering management, policy and programs. (b) A doctor or physician who is employed by a local government employer. (c) Except as otherwise provided I this paragraph, an attorney who is employed by a local government employer and who is assigned to a civil law division, department or agency. The provisions of this paragraph do not apply with respect to an attorney for the duration of a collective bargaining agreement to which the attorney is a party as of July 1,2011. 5. As used in this section, "doctor or physician" means a doctor, physician, homeopathic physician, chiropractic physician, practitioner of Oriental medicine. podiatric physician or practitioner of optometry, as those terms are defined or used, respectively, in NRS 630.014, 630A.050, 633.091, chapter 634 of NRS, chapter 634A of NRS, chapter 635 of NRS or chapter 636 ofNRS.
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P.O. Box 1900
Reno, NV 89505

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1 2 3
4

Prior to the enactment employees enforcement

of these provisions,

NRS 288.140 granted local government provided in subsection 3 regarding law

the right, subject only to the limitation officers, to join any employee organization.

organization

of the employee's

choice or to refrain managerial supervisors,

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6 7

from joining any employee physicians

As a result of S.B. 98 however, by a local government

and civil law attorneys

employed

employer

are also prohibited

from being members

of an employee

organization. stated in NRS 288.140 (3) and (4), employees organization. NRS 288.140(1). have the right

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Apart from the prohibitions

to decide whether to join an employee explicitly authorizes a nonunion

NRS 288.140(2)

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member to act on his own behalf with respect to any condition

of his employment.

Cone v. Nev. Servo Emples. UnioniSE1U Local 1107, 116 Nev. 473, 478, 998
Contrary to the right of employees organization, in general to decide for themselves however, NRS 288.140(4) of employee prohibits If

P .2d 1178 (2000).

whether they want to join an employee employees in certain specified categories

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from being members

organizations.

NRS 288.140(4) organization attorneys employee

is applied literally, the only effect would be to prevent an employee dues from managerial supervisors, physicians and civil law by the appropriate

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from collecting

even though those employees organization.

could continue to be represented

But if that was the only intended impact of the change, bargaining for local government employees

S.B. 98 would
or prohibit Local of dues paid

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not dramatically supervisory government

change collective

employees employers

from collectively

bargaining

as stated by Governor employee

Sandoval.

do not gain any benefit by depriving If the impact of

organizations

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by these categories

of employees.

S.B. 98 was limited to a reduction in the
change collective Prohibiting bargaining or

number of dues paying employees, prohibit supervisory employees

it would not dramatically bargaining.

from collectively

employees

in those

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Reno City Attorney 1).0. II(l~ 1<)00 Reno, NV 119505

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groups from being a member of an employee organization only serves this purpose if the

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Legislature actually intended NRS 288.140(4) to act to bar such employees from engaging in collective bargaining and from being included in any bargaining unit. For the foregoing reasons, the City requests that this Board find and determine that any employee of a local government employer who falls within the definition of a supervisory employee under NRS 288.07S(1)(b) is prohibited from engaging in collective bargaining and from being included in any bargaining unit under NRS Chapter 288. 3. None of the employees formerly in the Administrative or Professional Units represented by RAPG, the Administrative Unit represented by RPSAE, or the bargaining unit represented by the RFDAA who fall within the definition of "supervisory employee" under NRS 288.075(1)(b) may engage in collective bargaining or be included in any bargaining unit under any collective bargaining agreement made on or after July 1. 2011. The City alleges that certain employees or classes of employees formerly in the Administrative or Professional Units represented by RAPG, the Administrative Unit represented by RPSAE, and the members of the bargaining unit represented by the RFDAA fall within the definition of "supervisory employee" under NRS 288.075(1 )(b). The collective bargaining agreement with the Administrative Unit represented by the RAPG expired on June 30, 2011, and no agreement on a successor contract has been reached. The City Council approved successor collective bargaining agreements with terms beginning on July 1,2011, for each of the remaining foregoing units after S.B. 98 had gone into effect. Each of these Council approvals was made subject to the requirements of S.B. 98. The agreements with the RAPG and RFDAA were signed by the respective employee organizations after July 1, 2011. The agreement with the RPSAE for the Administrative Unit has not, as far as the City is aware, yet been signed on behalf of the RPSAE. The City contends that by reason of the fact that the foregoing agreements were III

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1

approved after the effective date of S.B. 98, each such agreement is subject to the requirements of that law. Parties are presumed to contract with reference to existing statutes. Gilman v. Gilman, 114 Nev. 416,426,956 P.2d 761 (1998). Applicable statutes will generally be incorporated into

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4 5 6 7 8

the contract. Id. It is fundamental that no contract between individuals can make it lawful to do that which a statute positively commands shall not be done. 17A Am Jur 2nd, Contracts, sec. 252 (1991). Thus, because the provisions of S.B. 98 must prevail over the terms of any collective bargaining agreement made on or after July 1,2011, and in view of the foregoing discussion, no managerial supervisor can be included in any bargaining unit under any such agreement or engage in collective bargaining. The City requests that this Board find and determine that none of the employees formerly in the Administrative or Professional Units represented by RAPG, the Administrative Unit represented by RPSAE, or the bargaining unit represented by the RFDAA who fall within the definition of "supervisory employee" underNRS 288.075(l)(b) may engage in collective bargaining or be included in any bargaining unit under any collective bargaining agreement made on or after July 1,2011. 4. The determination of whether any employee or class of employees falls within the definition of a supervisory employee under NRS 288.075(1) (b) must take into account and be consistent with the floor statement by Assemblyman Goicoechea and the factors alleged in paragraphs 7 and 8 of the petition.

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Reno City Allorney P.O. Box 1900 Reno, NV 89505

As discussed above, NRS 288.075(1)(b) requires any individual or class of individuals to have the following authority in order to be classified as a managerial supervisor: (1) Hire, transfer, suspend, layoff, recall, terminate, promote, discharge, assign, reward or discipline other employees or responsibility to direct them, to adjust their grievances or to effectively to recommend such action; (2) Make budgetary decisions; and (3)Be consulted on decisions relating to collective bargaining,

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if, in connection with the foregoing, the exercise of such authority is not

2 3
4

of a merely routine or clerical nature, but requires the use of independent judgment.
In addition to possessing the authority to perform one or more of the requisite acts under subsection (1), the City interprets the requirement that the employee or class of employees make budgetary decisions as being applicable to any employee authorized to assist in developing, monitoring, analyzing, and managing the annual budget for his/her department and determining how to apply those resources to projects and programs throughout the fiscal year. The City asserts that the following specific activities are relevant in determining whether any individual or class of individuals engages in making budgetary decisions: A. Advising a department director on budgetary needs at a

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department, division, or program level; or B. Recommending the purchase of services or materials,

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negotiating with vendors, developing specifications for purchased goods and services, or developing contracts; or C. Having authorization to sign purchase orders or contracts. scope of work for professional service

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In connection with the application of the requirement that a supervisory employee or class of employees under NRS 288.07S(1)(b)(3) be consulted on decisions relating to collective

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bargaining, the City interprets that requirement as being applicable to employees or any class of employees bargaining, whose duties involve operational areas that may be addressed through collective which could include staffing, scheduling, deployment, training, compensation,

personnel decisions or other matters addressed in collective bargaining agreements. Finally, as stated in the floor statement by Assemblyman Peter Goicoechea on the S.B. 98 conference committee report regarding the meaning ofS.B. 98, the requirement that an employee be consulted on decisions relating to collective bargaining in order to be considered to

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be a supervisory employee under NRS 288.075(b)(3), "does not mean that the supervisory

2
3 4 5 6 7 8
9 10

employee actually is consulted or would have to be consulted on particular collective bargaining decisions; instead, it means that the supervisory employee is part of management such that there is the possibility that the supervisory employees could be consulted on a collective bargaining decision." The City asserts that, consistent with this statement, an employee or class of employees is not required to be consulted or have to be consulted on particular collective bargaining decisions to be a managerial supervisor as long as there is the possibility that the supervisory employees could be consulted on a collective bargaining decision. Because the foregoing factors are consistent with the intention of determination of whether any employee or class of employees falls within the definition of a supervisory employee under NRS 288.07S(1)(b), the City requests that this Board determine and order that the determination of whether any employee or class of employees falls within the definition of a supervisory employee under NRS 288.075( 1) (b) must take into account and be consistent with the floor statement by Assemblyman Goicoechea and the factors set forth above in paragraphs 7 and 8.

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5.

Relief Requested

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The City requests this Board to issue its declaratory judgment with respect to the interpretation and application of S.B. 98 and find and declare as follows: A. Any employee or class of employees of a local government employer who falls within the definition of a supervisory employee under NRS 288.07S(1)(b) is prohibited from being a member of an employee organization and that the determination of whether an employee falls change in

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Reno City Attorney P.O. Box 1900 Reno, NV 89505

within that definition circumstances.

is not dependent upon a temporary

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B. 2 3 4 5 6 7 8
9

Any employee or class of employees of a local government

employer who falls within the definition of a supervisory employee under NRS 288.075(1)(b) is prohibited from engaging in collective bargaining and from being included in any bargaining unit under NRS Chapter 288. C. None of the employees formerly in the Administrative Unit or Professional Unit represented by RAPG, the Administrative Unit

represented by RPSAE, or the bargaining unit represented by the RFDAA who fall within the definition of "supervisory 288.075(l)(b) employee" under NRS

may engage in collective bargaining or be included in any

10
]1

bargaining unit under any collective bargaining agreement made on or after July 1,2011 D. The determination of whether any employee or class of

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21

employees falls within the definition of a supervisory employee under NRS 288.075(1 )(b) must take into account and be consistent with the floor statement by Assemblyman Goicoechea and the factors alleged above in paragraphs 7 and 8 of the petition.

DATED this

'lc f< day of December,

2011.

JOHN 1. KADLIC Reno City Attorney

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By9~t:~

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Reno City Attorney P.O. B(J~ 1900 Renn, NV 89505

DONALD 1. CHRISTENSEN Deputy City Attorney Nevada State #1657 Post Office Box 1900 Reno,Nevada 89505 (775) 334-2050 Attorneysfor Petitioner

:~

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1

VERIFICATION

2 3 4
5 STATE OF NEVADA COUNTY OF WASHOE ) )ss. )

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7

I, Renee Rungis, Human Resources Director for the City of Reno, do hereby swear under penalty of perjury that the assertions of this Verification are true.
1.

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That] am the Director of Human Resources for the City of Reno and authorized

to execute this Verification on behalf of the City of Reno. 2. That T have read the foregoing Petition, and know the contents thereof; that the

same is true and correct of my own knowledge, save except those matters stated therein upon information and belief and as to those matters, I believe them to be true. DATED this ~ day of December, 2011.

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~e

.I.

Renee Rungis ~ Human Resources Director, City of Reno

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Reno Cily Artorney P.O. Box 1900 Reno, NV 89505

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2
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STATE OF NEVADA LOCAL GOVERNMENT EMPLOYEE - MANAGEMENT RELA TIONS BOARD

*******
CITY OF RENO,
Petitioner,

ITEM NO.: CASE NO.: A 1-046049

6

v. RENO FIREFIGHTERS LOCAL 731, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS; THE INTERNATIONAL UNION OF OPERATING ENGINEERS, STATIONARY LOCAL #39, AFL-CIO; TI-IE RENO ADMINISTRATIVE AND PROFESSIONAL GROUP; THE RENO POLICE PROTECTIVE ASSOCIATION; THE RENO POLICE SUPERVISORY AND ADMINISTRATIVE EMPLOYEES ASSOCIATION; THE RENO FIRE OEP ARTMENT ADMINISTRATORS' ASSOCIATION;
Respondents.

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1]

RECEtVED
DEC 1 A LUll
STATE OF NEVADA E.M.R.B.

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I AFFIDA VIT OF MAILING STATE OF NEV ADA COUNTY OF WASHOE
) ) ss.

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)

Tamme Sutton, after being first duly sworn under penalty of perjury hereby deposes and says: That Affiant is and was when the herein described delivery took place a citizen of the

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United States, over the age of 18 and not a party to nor interested 14th day of December,

in the within action; that on the copy of CITY OF

2011 Affiant caused a true and correct file-stamped Relief to be served via Certified

RENO'S Petition for Declaratory
parties:

U.S Mail to the following

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Reno City Attorney

III

P.O. Box .1900
Reno, NV 89505 -1-

IAFF Local 731 2
President: Dennis Jacobsen 390 Kirman Avenue Reno, NV 89502 Operating Engineers LOCAL 39 Business Representative: Jerry Frederick 390 Kirman Avenue Reno, NV 89505 RPSAE President: AI Snover P.O. Box 1900 Reno, NY 89505

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RAPG President: Steve Bigham P.O. Box 1900 Reno, NY 89505 RPPA President: Jason Soto P.O. Box 359 Reno, NY 89504 RFDAA President: Brent Swearingen P.O. Box 50591 Reno NY 89513-0591

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Dated this 141h day of December, 201]. SWORN AND~SCRIBED to before e this ~ day ofDecember, 2011.

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".0. Box 1900
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EXHIBIT 1

APPENDIX A ALPHABETICAL LIST OF CLASSES LOCAL 39 SUPERVISORY CLASS GRADE GS2
GS4

CLASS TITLE Evidence Technician Supervisor .Golf Services Coordinator Management Assistant Permit Services Supervisor Police Records Superv.isor Police Services Supervisor Public Safety Dispatch Supervisor Public Works Crew Supervisor Recreation Program Coordinator II Senior Building & Safety Inspector Senior Code Compliance Officer Senior Environmental Control "Officer Survey Party Chief Traffic Signal Maintenance Supervisor Tree Maintenance Crew Supervisor

GS3 GS1 GS2
GS1

Gsa GSa GS4 GS1 GSa GS1 GS1 Gsa GS2

EXHIBIT 2

APPENDIX A ALPHABETICAL LIST OF CLASSES

LOCAL 39 NON-SUPERVISORY

CLASS

GRADE G7 G9 G9 G 14 G 14 G 12 G 10 G8 G3 G7

CLASS TITLE Accounting Assistant Accounting Technician Administrative Secretary Code Compliance Inspector Combination Inspector Communications Technician Community Services Officer Computer Systems Technician Custodian Development Permit Technician Electrical Inspector Engineering Plans Examiner Engineering Technician I Engineering Technician II Environmental Control Officer Equipment Mechanic Equipment Service Writer Environmental Control Technician Equipment Operator II Equipment Parts Technician Equipment Service Worker Evidence Technician

G15
G 13 G7 G 11 G 14 G 13 G 11 G 12 G 11 G9 G8 G 10

City of Reno and Local 39 Non-Supervisory Unit Labor Agreement - July 1, 2006 - June 3D, 2011

-Page 58

G 11 G6

GIS Technician Graphics Arts Technician Greenskeeper Irrigation System Technician Maintenance Technician I Maintenance Technician II Maintenance Worker I Maintenance Worker II Maintenance Worker III Network Technician New Development Services Specialist Office Assistant I Office Assistant II Office Assistant III Park Ranger Parking Meter Technician Parking Compliance Technician Parks Maintenance Worker I Parks Maintenance Worker II Planning Technician Plans Examiner Police Assistant Police Assistant II Police Technician Public Safety Dispatcher Public Safety Dispatch Trainee Public Works Construction Inspector Records Technician Recreation Program Coordinator I

G9
G 10 G 11

G 13
G6

G8
G10

G6
G 14 G5 G6 G7 G 11 G 10 G8 G8 G 10 G8 G 15 G6 G8 G8 G 12 G 11 G 13

G3
G4

City of Reno and Local 39 Non-Supervisory Unit Labor Agreement - July 1. 2006 - June 3D, 2011

Page 59

"_
.
G8 G 14 G 13 G8 G 15 G 13 G 14 G 11 G 10 G 12 G8 G 12 G6 G 14 G 11 G 13 G 15 G 13 G 10 Reprographics Technician Revenue Officer Safety and Training Coordinator Secretary Senior Construction Inspector Senior Engineering Technician Senior Equipment Mechanic

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Senior Equipment Parts Technician Senior Greenskeeper Senior Irrigation System Technician Sewage Plant Operator I Sewage Plant Operator II Sidewalk Maintainer Sign Inspector Survey Instrument Technician Traffic Signal Mechanic Traffic Signal Technician Tree Maintenance Crew Supervisor Tree Maintenance Worker

City of Reno and Local 39 Non-Supervisory Unit Labor Agreement - July 1, 2006 - June 30, 2011

Page 60

.._..

EXHIBIT 3

APPENDIX A ALPHABETICAL LIST OF CLASSES RENO ADMINISTRA TIVEIPROFESSIONAL GROUP ADMINISTRATIVE UNIT Class Code

Class Title Accounting Manager Arts and Culture Manager Building Official Code Enforcement Manager Communications Manager Community Resources Manager Fleet Manager Golf Manager

5216 5728 5110 5139 5794 5112 5966 5722 5132 5734 5140 5730 5721 5108 5564 5106 5725 5730 5565 5720

Information Technology Manager
Maintenance Manager Network Manager Park Development Manager Park Manager Police Services Manager Principal Engineer/Engineering Manager

Prlncipal Planner/Planning Manager
Recreation Manager Resource Development Manager Traffic Engineer Youth Services Manager

Labor Agreement - July 1, 2006 - June 3D, 2011

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City of Reno and RAPG (Administrative Unit)

,

.

-

EXHIBIT 4

Class
Code

APPENDIX A ALPHABETICAL LIST OF CLASSES RENO ADM INISTRATIVE/PROFESSIONAL GROUP PROFESSIONAL UNIT

Class Title
Accountant Assistant Civil Engineer Assistant Golf Course Supervisor Assistant Planner Associate Civil Engineer Associate Planner Crime Analyst Data Base Administrator Environmental Services Supervisor

5214 5522 5717 5957 5561 5958 5947 5119 5745 5122 5131 5723 9311 5523 5520 5935 5934 5124
5118

GIS Administrator GIS Analyst Golf Course Maintenance Supervisor Horticulturist Hydrologist Junior Civil Engineer Landscape Architect Management Analyst I Network Analyst Network Program Manager Park Development Planner

5128 3131 9372
5959

Parks Maintenance Supervisor Property Program Manager Public Arts Specialist Purchasing Program Manager Recreation Supervisor
Page 28

5134 5727

Labor Agreement - July 1, 2011- June 30,2013 City of Reno and RAPG (Professional Unit)

5217 5215 5562 5954 5125 5939 5716 5114 9759 5126 5724 5719
5109

Revenue Program Manager Senior Accountant Senior Civil Engineer Senior GIS Analyst Senior Network Analyst Senior Planner Senior Services Liaison Senior Systems Analyst Survey Supervisor Systems Analyst Therapeutic Recreation Specialist Urban Forester Water Reclamation Facility Supervisor

(

Labor Agreement - July 1, 2011- June 30, 2013 City of Reno and RAPG (Professional Unit)

Page 29

,

.

EXHIBIT 5

Page 1 of2

Neva
Wednesday, June 01, 2011

Brian Sandoval
REPRESENTS HISTORIC REFORMS

mor

SANDOVAL REACHES BUDGET AGREEMENT WITH LEGISLATIVE LEADERS
CARSON CITY, NV - Governor Brian Sandoval joined Legislative leadership today to announce a budget and reform agreement for the upcoming biennium.

"This afternoon, I am proud of Nevada," Governor Sandoval said. "We have reached a groundbreaking agreement to bring the 2011 Legislative Session to a successful close by June 6th." The agreement represents historic reforms in education, collective bargaining, public employee benefits, and construction defects. It also balances the state budget, includes no new taxes, and partially extends "sunset" taxes by only two years.

The agreement completely eliminates the modified business tax on 70 percent of Nevada businesses, meaning 115,281 Nevada businesses will no longer pay the MBT. Total state spending will decrease biennium-over-biennium by $500 million.

The agreement:

• Ends teacher tenure. Poor-performing teachers are placed back on probation for ease of dismissal if necessary. • Ends the seniority system in school district lay-offs. other factors, induding performance and effectiveness, must now be induded. • Dramatically changes collective bargaining for local government employees. Agreements will be re-opened during times of fiscal emergency and supervisory employees will not be allowed to collectively bargain.

• Allows the governor to appoint the state superintendent of public instruction. A new State Board will also have members appointed by the governor and legislative leaders, as well as four members elected by the people of Nevada. • Saves an estimated $275 rnilllon over the next 30 years by removing eligibility of newly hired state employees for health insurance benefits during retirement under the Public Employee Benefit Plan, effective January I, 2012.

http://nv .gov /Gov PKaspx?id=42949705

92

6/24/2011

Page 20f2

• Allows passage of construction defect legislation this session. AS 401 wilt set new definitions and revise the statutes of limitation and repose.

• Conducts a complete analysis of PERSin order to give the 2013 Legislature and the Governor information they need to address unfunded liability. The study must include recommendations with actuarlallv-sound alternatives.

"As a result of unprecedented direction by the Supreme Court, we have done this work in five days, often working around the dock with our staff," Sandoval added. 'Tm proud of the hard work of all our legislators, from both parties and both houses, in finishing the people's business on time. Nevadans deserve leadership, stability, and consensus, and I believe this budget and reform package provide all three."

###

Mary-Sarah Kinner, Press Secretary - (775) 684-5667 Cell (775) 443-7530 Email: mskinner@gov.nv.gov Office of the Governor - 101 North Carson Street - Carson City, NV 89701 Fax (775) 684-7198 Grant Sawyer State Office Building. 555 East Washington, Suite 5100 . Las Vegas, NV 89101 . Fax (702) 486-2505

http://nv.gov/GovPR.aspx?id=4294970592

6/24/2011

·

"

EXHIBIT 6

Senate Bill No. 98-Senator Hardy CHAPTER .

AN ACT relating to local governments; revising provisions relating to collective bargaining between local government employers and employee organizations; and providing other matters properly relating thereto.
Legislative Counsel's Digest: Existing law states that certain persons may, and certain persons may not, be members of employee organizations for the purposes of collective bargaining. (NRS 288.140) Section 6 of this bill sets forth that the following persons are prohibited from being a member of an employee organization: (1) supervisory employees who have additional authority on behalf of the employer to make budgetary decisions and decisions relating to collective bargaining; (2) doctors and physicians who are employed by a local government employer; and (3) attorneys who are employed by a local government employer and assigned to a civil division, department or agency, except for the duration of a collective bargaining agreement to which the attorney is a party as of July 1,2011. Under existing law, a supervisory employee is prohibited from being a member of the same bargaining unit as the employees under his or her direction. (NRS 288.170) Section 5 of this bill revises the definition of "supervisory employee" (NRS 288.075) to create a second subset of supervisory employees who, on behalf of their employer, make budgetary decisions and decisions relating to collective bargaining. Section 8 of this bill makes technical changes to reflect that section 5 now sets forth two subsets of supervisory employees. Existing law sets forth the subjects over which local government employers and recognized employee organizations are required to bargain (mandatory bargaining), and the subjects that are reserved to such an employer without negotiation. (NRS 288.150) Section 7 of this bill adds to the list of mandatory bargaining topics the reopening of collective bargaining agreements in instances of fiscal emergency.
EXPLANA TION - Matter in b,,/ded uancs is new; matter between brackets ISHlilleel
ffiHtefffilt

is material to be omitted.

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

IN

Sections 1, 1.3, 1.7 and 2-4. (Deleted by amendment.) Sec. 5. NRS 288.075 is hereby amended to read as follows: 288.075 1. "Supervisory employee" means ftmyt : (a) Any individual having authority in the interest of the employer to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline other employees or responsibility to direct them, to adjust their grievances or effectively to recommend such action, if in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. The exercise of such authority shall not be deemed to place the employee in

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-2supervisory employee status unless the exercise of such authority occupies a significant portion of the employee's workday H; or (b) Any individual or class of individuals appointed by the employer and having authority on behalf of the employer to: (1) Hire, transfer, suspend, layoff, recall, terminate, promote, discharge, assign, reward or discipline other employees or responsibility to direct them, to adjust their grievances or to effectively to recommend such action; (2) Make budgetary decisions; and (3) Be consulted on decisions relating to collective bargaining, - if, in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. The exercise of such authority shall not be deemed to place the employee in supervisory employee status unless the exercise of such authority occupies a significant portion of the employee's workday. 2. Nothing in this section shall be construed to mean that an employee who has been given incidental administrative duties shall be classified as a supervisory employee. Sec. 6. NRS 288.140 is hereby amended to read as follows: 288.140 1. It is the right of every local government employee, subject to the [limitation] limitations provided in [subsection) subsections 3 hl and 4, to join any employee organization of the employee's choice or to refrain from joining any employee organization. A local government employer shall not discriminate in any way among its employees on account of membership or nonmembership in an employee organization. 2. The recognition of an employee organization for negotiation, pursuant to this chapter, does not preclude any local government employee who is not a member of that employee organization from acting for himself or herself with respect to any condition of his or her employment, but any action taken on a request or in adjustment of a grievance shall be consistent with the terms of an applicable negotiated agreement, if any. 3. A police officer, sheriff, deputy sheriff or other law enforcement officer may be a member of an employee organization only if such employee organization is composed exclusively of law enforcement officers. 4. The following persons may not be a member of an employee organization: (a) A supervisory employee described in paragraph (b) of subsection 1 of NRS 288.075, including but not limited to

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-3appointed officials and department heads who are primarily responsible for formulating and administering management, policy and programs. (b) A doctor or physician who is employed by a local government employer. (c) Except as otherwise provided in this paragraph, an attorney who is employed by a local government employer and who is assigned to a civil law division, department or agency. The provisions of this paragraph do not apply with respect to an attorney for the duration of a collective bargaining agreement to which the attorney is a party as of July 1, 2011. 5. As used in this section, "doctor or physician" means a doctor, physician, homeopathic physician, osteopathic physician, chiropractic physician, practitioner of Oriental medicine, podiatric physician or practitioner of optometry, as those terms are defined or used, respectively, in NRS 630.014, 630A.050; 633.091, chapter 634 of NRS, chapter 634A of NRS, chapter 635 of NRS or chapter 6360fNRS.
Sec. 7. NRS 288.150 is hereby amended to read as follows: 288.150 1. Except as provided in subsection 4, every local government employer shall negotiate in good faith through one or more representatives of its own choosing concerning the mandatory subjects of bargaining set forth in subsection 2 with the designated representatives of the recognized employee organization, if any, for each appropriate bargaining unit among its employees. If either party so requests, agreements reached must be reduced to writing. 2. The scope of mandatory bargaining is limited to: (a) Salary or wage rates or other forms of direct monetary compensation. (b) Sick leave. (c) Vacation leave. (d) Holidays. (e) Other paid or nonpaid leaves of absence. (f) Insurance benefits. (g) Total hours of work required of an employee on each workday or workweek. (h) Total number of days' work required of an employee in a work year. (i) Discharge and disciplinary procedures. U) Recognition clause. (k) The method used to classify employees in the bargaining unit. (1) Deduction of dues for the recognized employee organization.

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(m) Protection of employees in the bargaining unit from discrimination because of participation in recognized employee organizations consistent with the provisions of this chapter. (n) No-strike provisions consistent with the provisions of this chapter. (0) Grievance and arbitration procedures for resolution of disputes relating to interpretation or application of collective bargaining agreements. (p) General savings clauses. (q) Duration of collective bargaining agreements. (r) Safety of the employee. (s) Teacher preparation time. (t) Materials and supplies for classrooms. (u) The policies for the transfer and reassignment of teachers. (v) Procedures for reduction in workforce. (w) Procedures and requirements for the reopening of collective bargaining agreements that exceed 1 year in duration for additional, further, new or supplementary negotiations during periods of fiscal emergency. The requirements for the reopening of a collective bargaining agreement must include, without limitation, measures of revenue shortfalls or reductions relative to economic indicators such as the Consumer Price Index, as agreed upon by both parties. 3. Those subject matters which are not within the scope of mandatory bargaining and which are reserved to the local government employer without negotiation include: (a) Except as otherwise provided in paragraph (u) of subsection 2, the right to hire, direct, assign or transfer an employee, but excluding the right to assign or transfer an employee as a form of discipline. (b) The right to reduce in force or layoff any employee because of lack of work or lack of money, subject to paragraph (v) of subsection 2. (c) The right to determine: (1) Appropriate staffing levels and work performance standards, except for safety considerations; (2) The content of the workday, including without limitation workload factors, except for safety considerations; (3) The quality and quantity of services to be offered to the public; and (4) The means and methods of offering those services. (d) Safety of the public.

-54. Notwithstanding the provisions of any collective bargaining agreement negotiated pursuant to this chapter, a local government employer is entitled to take whatever actions may be necessary to carry out its responsibilities in situations of emergency such as a riot, military action, natural disaster or civil disorder. Those actions may include the suspension of any collective bargaining agreement for the duration of the emergency. Any action taken under the provisions of this subsection must not be construed as a failure to negotiate in good faith. 5. The provisions of this chapter, including without limitation the provisions of this section, recognize and declare the ultimate right and responsibility of the local government employer to manage its operation in the most efficient manner consistent with the best interests of all its citizens, its taxpayers and its employees. 6. This section does not preclude, but this chapter does not require the local government employer to negotiate subject matters enumerated in subsection 3 which are outside the scope of mandatory bargaining. The local government employer shall discuss subject matters outside the scope of mandatory bargaining but it is not required to negotiate those matters. 7. Contract provisions presently existing in signed and ratified agreements as of May 15, 1975, at 12 p.m. remain negotiable. Sec. 8. NRS 288.170 is hereby amended to read as follows: 288.170 1. Each local government employer which has recognized one or more employee organizations shall determine, after consultation with the recognized organization or organizations, which group or groups of its employees constitute an appropriate unit or units for negotiating. The primary criterion for that determination must be the community of interest among the employees concerned. 2. A principal, assistant principal or other school administrator below the rank of superintendent, associate superintendent or assistant superintendent shall not be a member of the same bargaining unit with public school teachers unless the school district employs fewer than five principals but may join with other officials of the same specified ranks to negotiate as a separate bargaining unit. 3. A head of a department of a local government, an administrative employee or a supervisory employee must not be a member of the same bargaining unit as the employees under the direction of that department head, administrative employee or supervisory employee. Any dispute between the parties as to whether an employee is a supervisor must be submitted to the

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-6Board. An employee organization which is negotiating on behalf of two or more bargaining units consisting of firefighters or police officers, as defined in NRS 288.215, may select members of the units to negotiate jointly on behalf of each other, even if one of the units consists of supervisory employees and the other unit does not. 4. Confidential employees of the local government employer must be excluded from any bargaining unit but are entitled to participate in any plan to provide benefits for a group that is administered by the bargaining unit of which they would otherwise be a member. 5. If any employee organization is aggrieved by the determination of a bargaining unit, it may appeal to the Board. Subject to judicial review, the decision of the Board is binding upon the local government employer and employee organizations involved. The Board shall apply the same criterion as specified in subsection 1. 6. As used in this section f, "confidential} : (a) "Confidential employee" means an employee who is involved in the decisions of management affecting collective bargaining. (b) "Supervisory employee" means a supervisory employee described in paragraph (a) ofsubsection 1of NRS 288.075. Sec. 9. This act becomes effective on July 1,2011.
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EXHIBIT 7

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S.B.98
S.B. 98 prohibits certain local government employees from being members of an employee organization - specifically (1) doctors and physicians employed by local governments, (2) attorneys employed in the civil division of a local government and (3) certain supervisory employees. Such supervisory employee is defined as a person appointed by the employer who has authority on behalf of the employer to:

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1, Hire, transfer, suspend, lay off, recall, terminate, promote, discharge, assign, reward or discipline other employees OR responsibility to direct them, to adjust their grievances or effectively to recommend such action; AND 2. Make budgetary decisions; AND 3. Be consulted on decisions relating to collective bargaining. This does not mean that the supervisory employee actually is consulted or would have to be consulted on particular collective bargaining decisions; instead, it means that the supervisory employee is part of management such that there is the possibility that the supervisory employee could be consulted on a collective bargaining decision. Thus, to be prohibited from being a member of an employee organization, a supervisory employee must have authority in all 3 areas and the exercise of the authority must not be of a merely routine or clerical nature but require the use of independent judgment. S.B. 98 makes a subject of mandatory bargaining the procedures and requirements for the reopening of col1ective bargaining agreements that exceed I year in duration for additional, further, new or supplementary negotiations during periods of1!!£!! emergency s , We intend that "fiscal emergency' in this context be given its normal ordinary meaning and that definitions from other chapters and titles of NRS not be made applicable. In other words, where there is the term "fiscal emergency" defined for bonding requirements, that definition would not apply here because this is a different context.

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