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(a) Scope. The requirements of this Article apply only to the procedures for determining employee preference regarding whether to be represented by a labor organization for purposes of collective bargaining and/or by which labor organization to be represented. Accordingly, this Article does not apply to the process of collective bargaining in the event a labor organization has been recognized as the bargaining representative for employees of employers subject to this Article. Moreover, nothing in the Article requires an employer or other entity subject to this Article to recognize a particular labor organization; nor does any provision of this Article require that a collective bargaining agreement be entered into with any labor organization, or that an employer submit to arbitration regarding the terms of a collective bargaining agreement.
(b) Exemptions. The requirements of this Article shall not apply to:
(1) Employers employing fewer than the equivalent of 50 full-time or part-time employees, provided that:
(i) When a restaurant is located on the same premises as a hotel and routinely provides food or beverage services to the hotel's guests, employees of the restaurant and hotel shall be aggregated for purposes of determining the applicability of this ordinance;
(ii) All employees employed in all restaurants which operate under the jurisdictional control of the San Francisco Airport Commission and which are owned, operate or managed by the same owner, operator or manager shall be aggregated for purposes of determining the applicability of this Ordinance; or
(2) Employers commencing operation in a hotel or restaurant in a hotel or restaurant project before the effective date of this Ordinance, or a hotel or restaurant project under any subcontract or City contract entered into before the effective date of this ordinance ("pre-existing agreement"). This exemption applies to an Employer and to his or her family for the duration of such Pre-Existing Agreement, unless it is amended during its term resulting in a Substantial Amendment, as defined in Section 23.51(13). This exemption shall apply beyond the expiration of the Pre-Existing Agreement if it is renewed or extended without a change in ownership of the Employer, and without changes resulting in Substantial Amendment, as defined in Section 23.51(13). For purposes of this exemption, "change in ownership" shall mean a change in ownership, from the effective date hereof, of 25% or more, unless such change is among members of the same family; or
(3) Any employer which is signatory to a valid and binding collective bargaining agreement covering the terms and conditions of employment for its employees at that hotel or restaurant project, or which has entered into a card check agreement with a labor organization regarding such employees which agreement provides at least equal protection from labor/management conflict as provided by the minimum terms provided in Section 23.51(1); or
(4) Any hotel or restaurant project where the Mayor or the Mayor's designee determines that the risk to the City's financial or other nonregulatory interest resulting from labor/management conflict is so minimal or speculative as not to warrant concern for the City's investment or other nonregulatory interest; or
(5) Any hotel or restaurant project where the developer, manager/operator or employer, is an agency of the federal government or a statewide agency or entity ("public agency") and that public agency would prohibit application of this Article; or
(6) Any hotel or restaurant project where the requirements of this Article would violate or be inconsistent with the terms or conditions of a grant, subvention or agreement with a public agency related to such hotel or restaurant project, or any related rules or regulations.
(Formerly Sec. 23.34; added by Ord. 6-98, App. 1/16/98; amended by Ord. 108-99, File No. 990298, App. 5/7/99; amended and renumbered by Ord. 15-01, File No. 001965, App. 2/2/2001)
(a) The requirement that employers enter into and comply with card check agreements with labor organizations in the circumstances provided in this Article, and the requirement that developers and manager/operators contractually obligate their successors, assigns or subcontractors to be bound by that former requirement are essential consideration for the City's agreement to any City contract containing that requirement.
(b) The City shall investigate complaints that this Article has been violated or that a card check provision included in a City contract or subcontract pursuant to this Article has been breached, and may take any action necessary to enforce compliance, including but not limited to instituting a civil action for an injunction and/or specific performance.
(c) In the event the City brings a civil enforcement action for violation of this Article, any taxpayer or any person or association by or with a direct interest in compliance with this Article may join in that enforcement action as a real party in interest. In the event the City declines to institute a civil enforcement action for violation of this Article, a taxpayer or directly interested person or association may bring a civil proceeding on its own behalf and on behalf of the City against that employer and seek all remedies available for violation of this Article and/or breach of a card check agreement required by this Article available under state law, including but not limited to monetary, injunctive and declaratory relief. In view of the difficulty of determining actual damages incurred by such a violation, liquidated damages may be awarded at the rate of $1,000 per day of violation, to be distributed equally between a private plaintiff, if any, and the general fund of the City, unless such liquidated damages award is found to be so excessive in relation to the violator's resources as to constitute a penalty.
(d) Any action challenging the applicability of this Article to a particular employer may be brought only after first seeking an exemption pursuant to Section 23.53, and must be commenced within 60 days after notification that such exemption has been denied by the City.
(e) Notwithstanding anything else contained herein, in no event shall the remedy for a breach of the terms of this Article include termination of any such subcontract or City contract, nor shall any such breach defeat or render invalid or affect in any manner whatsoever 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 such subcontract or City contract, including, without limitation, any leasehold estate or other interest in such Real Property or improvements on such Real Property.
(Formerly Sec. 23.35; added by Ord. 6-98, App. 1/16/98; amended and renumbered by Ord. 15-01, File No. 001965, App. 2/2/2001)
This Ordinance shall become effective 30 days after it is enacted, is intended to have prospective effect only, and shall not be interpreted to impair the obligations of any Pre-Existing Agreement to which the City is a party, unless such Pre-Existing Agreement has been Substantially Amended after the effective date of this Ordinance.
(Formerly Sec. 23.36; added by Ord. 108-99, File No. 990298, App. 5/7/99; renumbered by Ord. 15-01, File No. 001965, App. 2/2/2001)
If any part or provision of this Ordinance, or the application thereof to any person or circumstance, is held invalid, the remainder of this Ordinance, including the application of such part or provisions to other persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end, the provisions of this Ordinance are severable.
(Formerly Sec. 23.37; added by Ord. 108-99, File No. 990298, App. 5/7/99; renumbered by Ord. 15-01, File No. 001965, App. 2/2/2001)
Compliance with the Labor and Employment Code. | |
Application. | |
No Cause of Action Against the City. | |
Preemption. | |
Severability. |
When the City sells real property for Housing Development or leases real property as a landlord or as a tenant, and the real property in each of these types of transactions is located within the jurisdictional boundaries of the City, the City, in the applicable sales contract or lease and all contracts for a Covered Real Estate Project thereunder, shall require compliance with the Prevailing Wage, apprenticeship, and local hiring requirements as set forth in through of the Labor and Employment Code, as applicable this Article VII.1
CODIFICATION NOTE
The requirements of this Article VII are intended to have prospective effect only, and shall not be interpreted to impair the obligations of any existing sales contract, lease, or amendment thereto entered into by the City before the operative date of this Article VII. Where the Covered Construction or Covered Project involves Housing Development on real property sold by the City, the requirements of this Article VII shall terminate upon issuance of a final certificate of occupancy for the Covered Construction or Covered Project.
In no event shall any person or entity have the right to bring an action against the City based on any alleged failure to enforce or negligent enforcement of the requirements of this Article VII.
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