January 23, 2013 Managerial and Confidential Employees
KEEPING YOU INFORMED…
With the New Year upon us, it may be a good time to review the composition of your bargaining units to ascertain whether there are any employees who should not be in a union due to their “managerial” and/or “confidential” status. These individuals are not considered public employees and, therefore, cannot be included in a bargaining unit. A “managerial” employee formulates employer-wide policy and/or may reasonably be required by the employer to conduct collective negotiations or have a major role in the administration of collective bargaining agreements or personnel administration provided that this role is not of a routine or clerical nature and requires the exercise of independent judgment (e.g., a Superintendent or an Assistant Superintendent of Schools, a Director of Labor Relations or Operations, and some department heads).
A “confidential” employee (e.g., usually clerical personnel) assists a managerial employee on a regular basis in a confidential capacity in confidential matters involving personnel or labor relations.
The procedure for removing an employee from a bargaining unit due to the employee’s “managerial” and/or “confidential” status is to file an application with the Public Employment Relations Board (“PERB”). The application can be filed at any time and includes, among other things: the affected employees’ name(s) and job title(s); whether the job title(s) are within a bargaining unit; all relevant job descriptions; and a factual statement in support of the application. A copy of the application is sent to the union, which has the right to dispute the application all the way through a formal hearing at PERB.
If you have any questions regarding managerial and/or confidential employees or regarding filing a managerial/confidential application with PERB, please do not hesitate to contact us.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL
© Lamb & Barnosky, LLP, 2013