Now that the New Year has begun, 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.  We are writing to remind you that employees who have been designated by the Public Employment Relations Board (“PERB”) as “managerial” and/or “confidential” are not considered to be “public employees” and, therefore, cannot be included in a bargaining unit. 

An employee may be designated as “managerial” if he or she 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). 

An employee may be designated as “confidential” (e.g., usually clerical personnel) if he or she 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 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. 

Please do not hesitate to contact us if you have any questions concerning managerial and/or confidential employees or with respect to filing a managerial/confidential application with PERB.

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 2014