February 12, 2018 Managerial and Confidential Employees
KEEPING YOU INFORMED…
This may be a good time for you to 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” and, therefore, cannot be included in a bargaining unit. An employee can be removed from a bargaining unit if a union agrees to do so or if PERB grants a petition designating him/her as managerial or confidential.
An employee may be designated as “managerial” if he or she: (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).
An employee may be designated as “confidential” if he or she assists a managerial employee on a regular basis, in a personal confidential capacity, on confidential matters involving personnel or labor relations.
To designate an employee as “managerial” or “confidential,” an 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 contact Lauren Schnitzer at (631) 694-2300 or any of our other attorneys if you have questions regarding whether a particular employee meets the definition of “managerial” and/or “confidential” or need assistance with the filing of a managerial/confidential petition with PERB.
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 2018