(a) The requirement that Employers enter into, and comply with, Labor Peace Agreements with Labor Organizations when required under this
Article VIII, and the requirement that Excursion Vessel Operators contractually obligate subcontractors to be bound by that requirement, are essential considerations for the Port’s agreement to an Excursion Vessel Lease covered by this Article.
(b) The Agency shall be authorized to coordinate implementation and enforcement of this
Article VIII and may promulgate appropriate guidelines or rules for such purposes. Any guidelines or rules promulgated by the Agency shall have the force and effect of law and may be relied on by Employers, Employees, and other persons to determine their rights and responsibilities under this Article. Any guidelines or rules may establish procedures for ensuring fair, efficient, and cost-effective implementation of this Article, including supplementary procedures for helping to inform Employees of their rights under this Article, for monitoring Employer compliance with this Article, and for providing administrative hearings to determine whether an Employer or other person has violated the requirements of this Article.
The Agency is authorized to investigate any possible violations of this
Article VIII. An Employee or other person may report to the Agency any suspected violation of this Article. The Agency shall encourage reporting pursuant to this subsection by keeping confidential to the maximum extent permitted by applicable laws, the name and other identifying information of the Employee or person reporting the violation. Provided, however, that with the authorization of such person, the Agency may disclose his or her name and identifying information as necessary to enforce this Article or for other appropriate purposes.
After investigating a possible violation of this Article, and providing the Employer with the opportunity to respond to the allegations, if the Agency determines that a violation has occurred, it may issue a Determination of Violation. The Determination of Violation shall identify the violation and the factual basis for the determination. The Agency shall serve the Determination of Violation on the Employer by United States mail and the date of service shall be the date of mailing. In the Determination of Violation, the Agency may order any appropriate relief including, but not limited to, requiring the Employer to enter into a Labor Peace Agreement, and the payment of an additional sum as an administrative penalty in the amount of $100 for each day that the violation occurred or continued. To compensate the City for the costs of investigating and remedying the violation, the Agency may also order the violating Employer to pay to the City an amount that does not exceed its enforcement costs.
(c) An Employer may appeal from a Determination of Violation in accordance with the following procedures:
(1) Any appeal from a Determination of Violation (referred to in this subsection (c) as “Appeal”) shall be filed in writing by the party filing the Appeal (referred to as “Appellant”) within 15 days of the date of service of the Determination of Violation. Appellant shall file the Appeal with the City Controller and serve a copy on the Agency. Failure by the Appellant to file a timely, written Appeal shall constitute concession to the violation, and the violation shall be deemed final upon expiration of the 15-day period.
(2) Following the filing of the Appeal and service of a copy on the Agency, the Agency shall promptly afford Appellant an opportunity to meet and confer in good faith regarding possible resolution of the Determination of Violation in advance of further proceedings under this subsection (c), with the intention that such meeting occur, if feasible, within 30 days of the date the Appeal is filed.
(3) After the expiration of 30 days following the date the Appeal is filed, any party may request in writing, with concurrent notice to all other parties, that the Controller appoint a hearing officer to hear and decide the appeal. If no party requests appointment of a hearing officer, the Notice of Violation shall be deemed final on the 60th day after the date the Appeal is filed.
(4) Within 15 days of receiving a written request for appointment of a hearing officer, the Controller shall appoint an impartial hearing officer who is not part of the Agency and immediately notify the Agency and Appellant, and their respective counsel or authorized representative if any, of the appointment. The appointed hearing officer shall be an Administrative Law Judge with not fewer than two years of experience in labor or employment law, or an attorney with not fewer than five years’ experience in labor or employment law.
(5) The hearing officer shall promptly set a date for a hearing. The hearing must commence within 45 days of the date of the Controller’s notice of appointment of the hearing officer, and conclude within 75 days of such notice. The hearing officer shall conduct a fair and impartial evidentiary hearing in conformance with the time limitations set forth in this subsection (c)(5) and in any applicable rules and regulations, so as to avoid undue delay in the resolution of any Appeal. The hearing officer shall have the discretion to extend the times under this subsection (c)(5), and any time requirements under any applicable rules and regulations, only upon a determination of good cause.
(6) Appellant shall have the burden of proving by a preponderance of the evidence that the basis for the Determination of Violation, and/or the amount of penalty payments at issue in the Appeal, is incorrect.
(7) Within 30 days of the conclusion of the hearing, the hearing officer shall issue a written decision affirming, modifying, or dismissing the Determination of Violation. The decision of the hearing officer shall consist of findings and a determination. The hearing officer’s findings and determination shall be the final administrative determination.
(8) Appellant may appeal a final administrative determination only by filing in San Francisco Superior Court a petition for a writ of mandate under California Code of Civil Procedure, section 1094.5, et seq., as applicable and as may be amended from time to time.
(9) Failure to appeal a Determination of Violation shall constitute a failure to exhaust administrative remedies, which shall serve as a complete defense to any petition or claim brought by the Employer against the City regarding the Agency’s Determination of Violation.
(d) The City Attorney may bring a civil action in a court of competent jurisdiction against an Employer for violating any requirement of this Article, and, upon prevailing, shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation, including a civil penalty, and shall be awarded reasonable attorneys’ fees and costs. In any administrative or civil action brought under this Article, the Agency or court, as the case may be, shall award interest on all amounts due and unpaid at the rate of interest specified in subdivision (b) of Section 3289 of the California Civil Code.
(e) An Employer seeking to challenge the applicability of this
Article VIII by civil action must first seek an exemption under Section
23.73, as an administrative prerequisite to suit. The Employer must file any civil action within 60 days from the date of the Agency’s denial of the application for an exemption.
(f) The remedies, penalties, and procedures provided under this Chapter are cumulative.
(g) Notwithstanding anything contained in this
Article VIII, the remedy for violation of the terms of this
Article VIII shall not include termination of any Excursion Vessel Lease, nor shall any such violation defeat or render invalid or affect in any manner the status or priority of the lien of any mortgage, deed of trust, or other security interest made for value and encumbering any real property affected by an Excursion Vessel Lease, including, without limitation, any leasehold estate or other interest in such real property or improvements on such real property.
(Added by Ord. , File No. 180802, App. 10/5/2018, Eff. 11/5/2018)
