KEEPING YOU INFORMED…

We are writing to remind you that any employee designated as “managerial” and/or “confidential” by the Public Employment Relations Board (“PERB”) is excluded from the definition of “public employee” and cannot be included in a bargaining unit. As the new calendar year begins, it is a good time for you to review the composition of your bargaining units to determine whether there are any employees who should not be in a union due to their “managerial” and/or “confidential” status.

A “managerial” employee (i) formulates employer-wide policy; (ii) may reasonably be required by the employer to conduct collective negotiations; or (iii) may reasonably be required to 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 (usually clerical personnel) assists a managerial employee on a regular basis in a confidential capacity in confidential matters involving personnel or labor relations.

To remove an employee from a bargaining unit due to the employee’s “managerial” and/or “confidential” status, a petition is filed with PERB. The petition must include, among other information: (i) the affected employees’ name(s) and job title(s); (ii) whether the job title(s) are within a bargaining unit; (iii) all relevant job descriptions; and (iv) a factual statement in support of the application. A copy of the petition is sent to the union, which has the right to dispute it.

If the petition is not resolved, the matter will proceed to a hearing at which the employee’s assigned job duties and those he/she actually performs will be analyzed. PERB will then issue a decision regarding whether the employee is “managerial” or “confidential.” If the employee is so deemed, he/she may be removed from the bargaining unit.

If you have any questions regarding the “managerial” and/or “confidential” status of employees or 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, 2015