February 22, 2017 Managerial and Confidential Employees
KEEPING YOU INFORMED…
We suggest that, at least once each year, you review the composition of your bargaining units to determine whether there are any employees who should be removed due to their “managerial” or “confidential” status. Employees who are formally designated as either “managerial” and/or “confidential” by the Public Employment Relations Board (“PERB”) are excluded from the definition of “public employee.”
“Managerial” designations may be warranted if an 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 play a major role in the administration of collective bargaining agreements or personnel administration, provided that this role requires the exercise of independent judgment and is not of a routine or clerical nature (e.g., a Superintendent or an Assistant Superintendent of Schools, a Director of Labor Relations or Operations, and some department heads). “Confidential” designations may be warranted if an employee assists a managerial employee on a regular basis, in a personal confidential capacity, on confidential matters involving personnel or labor relations.
In order to designate an employee as “managerial” or “confidential,” the employer must file a petition with PERB setting forth: (i) the affected employees’ name(s) and job title(s); (ii) whether the job title(s) is within a bargaining unit; (iii) all relevant job descriptions; and (iv) a factual statement in support of the application. The union is also given a copy of the petition and the opportunity to contest it. If the matter cannot be resolved, a hearing will be held at which PERB will consider the employee’s assigned job duties and those he/she actually performs. After the hearing, PERB will issue a decision addressing whether the employee is “managerial” or “confidential.” If one of these designations is granted, the employee will then be removed from the bargaining unit.
Please do not hesitate to contact Gregory Gillen at GG@lambbarnosky.com or any of our other attorneys if you have any questions regarding the information contained in this memorandum.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2017