Transcript What Supervisors Should Know About Collective Bargaining

Collective Bargaining
What Supervisors Should Know
Department of Budget and Management
Office of Personnel Services and Benefits
2013
What is collective bargaining?
Collective bargaining is the mutual obligation
of the employer and the employee exclusive
representative, also referred to generally as
“the Union”, to negotiate in good faith at
reasonable times and places with respect to
wages, hours, and other terms and
conditions of employment
The Units
A – Labor and Trades
B – Administrative, Technical, and Clerical
C – Regulatory, Inspection, and Licensure
D – Health and Human Service Nonprofessionals
E – Health Care Professionals
F – Social and Human Service Professionals
G – Engineering, Scientific and Administrative
Professionals
H – Public Safety and Security/BWI Firefighters
I – Sworn Police Officers
Which agencies are included in
collective bargaining?
Principal departments within the Executive Branch
(Aging, Agriculture, DBM, DBED, Disabilities, Education,
Environment, DGS, DHMH, DHCD, DHR, DoIT, DJS,
DLLR, DNR, Planning, DPSCS, MSP, MDOT, including
MdTA civilian employees and police officers at the rank
of first sergeant and below, and Veterans Affairs);
Maryland Insurance Administration;
Department of Assessments and Taxation;
The State Lottery Agency
Comptroller of Maryland
Maryland State Department of Education
Employees in included agencies
are in bargaining units, except:









Student employees
Contractual employees
Temporary employees
Members of boards or commissions
Confidential employees
Managerial employees
Supervisory employees
Special appointees
The chief administrative or executive officer of
an agency
Who is a
“confidential” employee?
An employee who has access to confidential or
discretionary information regarding the formulation of
policies or procedures with a nexus to labor relations
in State government or whose access to confidential
or discretionary information is used to formulate the
budget; or
Whose functional responsibilities or knowledge
concerning employee relations makes membership in
an employee organization incompatible with the
employee’s duties; or
An employee who is the personal secretary of the
chief administrative or executive officer of an agency
Who is a “managerial” employee?
A managerial employee is an employee who is:


engaged predominately in executive and
management functions; or
charged with the responsibility of directing the
effectuation of management policies and
practices
A “supervisory” employee:
Has authority to hire, transfer, suspend, lay off, recall,
promote, or discharge other employees, or to
recommend such action if, in connection with the
foregoing, the exercise of such authority is not of a
merely routine or clerical nature but requires the use
of independent judgment
The exclusive representatives

A, B, C, D and F – American Federation of State,
County, and Municipal Employees (AFSCME)

E – AFT-Healthcare Maryland

G – Maryland Professional Employees Council


H – AFSCME/Teamsters/ International Association of
Fire Fighters
I – State Law Enforcement Officers Labor Alliance
(SLEOLA)/Fraternal Order of Police Lodge #34
How long does an organization
remain an exclusive representative?
An organization will remain an exclusive representative
until another organization provides a petition for
representation showing that at least 30% of the
employees in the unit want the petitioner to be the
exclusive representative
Once this occurs, an election will be held to determine
the exclusive representative
Employee organizations that are
not exclusive representatives
These organizations may not negotiate with
management regarding wages, hours, and terms and
conditions of employment
An organization that is not the exclusive
representative still may represent employees in
Title 11 disciplinary appeals and Title 12 grievances
Service Fees
A service fee is a charge assessed to non-union
members of a bargaining unit for work that an
exclusive representative performs related to the
administration of the MOU, collective bargaining
and representation of all bargaining unit employees
If you supervise bargaining unit employees, you
should know what a service fee is, but you should
refer your employees’ questions about these fees to
their exclusive representative(s)
Memoranda of Understanding



When agreement is reached in the collective
bargaining process, a Memorandum of
Understanding (MOU) reduces the agreement to
written form
Each bargaining unit has its own MOU; therefore, a
supervisor should know to which bargaining unit or
units the supervisor’s employees belong
While there may be great similarities among MOUs,
it is important to have a working knowledge of each
MOU that is applicable to a supervisor’s employees,
as there may be differences
Please note...
This presentation provides highlights of the
various MOUs. This document does not
contain every provision, so…read them!
(Please)
Management Rights
Include the right to:
 Appoint, promote, transfer, reassign, discipline, and
terminate employees under the appointing
authority’s jurisdiction;
 Direct and assign work; and
 Determine and re-determine the methods, means,
personnel and funding necessary to maintain
efficient and effective government operations and
effectuate the mission and objectives of the agency
Union stewards
If you supervise an employee who is a union steward,
you should understand the role that stewards play in
administering the MOU; stewards may be granted paid
time off not to exceed the employee’s normally
scheduled work day, including reasonable travel time,
to attend a variety of meetings, such as grievances,
Labor Management Committee meetings, and
negotiating sessions
Typically, the Union will provide the names of
employees to be released 48 hours prior to the
scheduled meeting time
Distribution of union information
At non-secure facilities, the Union is permitted to place
or distribute materials at mutually agreed upon
locations, before and after work, and during breaks and
meal periods
At secure facilities, the Union may place informational
materials for employees at the worksite in limited
designated areas
When stewards distribute Union materials, this activity
must take place during non-work hours
Information provided to the
exclusive representative
Twice a year, upon request, the following must be
provided for bargaining unit employees: name; position
classification; bargaining unit; home and work site
addresses where the employee receives interoffice or
U.S. mail; and home and work site telephone numbers
Where email addresses are readily available in an
automated fashion, these addresses must be made
available by each Department
Employees may opt out so that their information is not
released to the Union
Labor-Management Committees
As a supervisor, you or one of your employees may
be asked to serve on a Labor-Management
Committee (LMC), so it is a good idea to know a bit
about how these work
LMCs facilitate communication between the
exclusive representative and the employer by
providing a forum for discussion and negotiation of
agency-specific issues
More on LMCs…
LMCs may be at the Statewide level but, more
typically, are at the departmental or agency level
The MOUs contain specific provisions relating to the
makeup of the LMC and the LMC members will
establish procedures for scheduling meetings
Any agency-specific agreement reached at the LMC
that would change, modify or alter the terms of an
existing MOU is not effective until reduced to written
form and approved by the appropriate representatives
of the Union and the State
Beware when changing…
Whenever bargaining unit members are affected by a
planned change in days or hours of operation of an
office, the Union must be provided with notice and the
opportunity to bargain over the implementation of such
changes
Additionally, changes in procedures for selecting shifts
and attendance recording practices (e.g., time clocks)
must be negotiated where bargaining unit members will
be affected by such changes
Schedule changes
The MOUs typically contain provisions relating to
schedule changes; for example:
Involuntary schedule changes must be rotated
equitably among employees to meet operational
needs and must be for the total hours of the
scheduled work day that is being changed
Employees in the same classification may swap shifts,
with prior approval of management
Split shifts having more than a one-hour break are not
permitted unless requested by the affected employees
Schedule changes and
previously approved leave
The MOUs typically contain language relating to
involuntary schedule changes. If an employee
previously has been approved to take leave that is for
more than 3 days, the employer may not impose a
schedule change that will make it impossible for the
employee to use the leave
Even in the case of leave requests of 3 days or fewer
(considered “short term leave”), if the leave was
approved 30 days in advance, this rule applies
Requests for personal and
annual leave
Employees may request the use of short-term leave,
which is defined in the MOU as 3 days or less (annual
leave, compensatory time use, or personal leave) at
any time
Requests will not be denied unreasonably
Supervisors should refrain from asking an employee
why (s)he wishes to take annual, personal or
compensatory time off
“Vacation” periods
Vacation periods are periods of leave that are
requested and approved at least 30 days in advance
The means for scheduling and approving vacation
periods shall be established by the LMC
The Employer agrees it will not cancel vacation
periods
Sick leave
An employee may be required to provide an original
certificate of illness/disability only when an absence is
for five (5) or more consecutive work days unless:
When the employee has a consistent pattern of
maintaining a zero or near zero sick leave balance
without documentation of the need for such relatively
high utilization; or
When the employee has 6 or more occurrences of
undocumented sick leave occurrences within a 12month period
Sick leave continued…
After the first instance of an employee being absent for
more than four consecutive days without
documentation, the Employer may place the employee
on notice that future absences of more than three
consecutive days, within a rolling twelve month period,
will require documentation
Whenever a certificate is required, it must be signed by
a “health care provider” (see SPP §9-504 for a list of
qualifying professionals)
Sick leave –
requiring certification
Before imposing a certification requirement, the
employee must be orally counseled that future
undocumented absences may trigger the requirement
If there is another undocumented absence after
counseling, place the employee on written notice
that future use of sick leave will have to be certified
(for 6 months). If the employee does not comply,
the certification requirement will be extended for 6
months from the date of the lack of compliance*
Although a certification requirement is not a
disciplinary action, an employee may grieve alleged
misapplication of this procedure
*And discipline may be appropriate for non-compliance
More on sick leave…
chronic conditions
An employee who has a chronic slip on file still will be
required to provide a sick certificate if the employee is
absent for 5 or more consecutive days
Unless the employee has a condition identified as a
permanent disabling condition, the Employer should
require certification and follow-up reports from a health
care provider no more frequently than every 6 months
to verify the continued existence of the chronic
condition
Acceptable documentation for
sick leave purposes
For absences of 4 hours or less, an employee
may submit a copy of the universal health insurance
claim form or similar document from the health care
provider’s office, which contains the name, address,
and telephone number of the provider, and the date
of treatment
For absences of less than 5 consecutive days, an
employee may provide a certificate from a health
care provider that the employee (or immediate
family member) visited the office or was unable to
work on the day(s) of absence
Sick leave to care for child or
other immediate family member
Keep in mind that an employee who works less than
a full work day to provide care to the employee’s
child or immediate family member is not required to
provide certification unless management has a basis
to believe sick leave is being used improperly
Sick leave use in such circumstances shall not count
as an “occurrence”
Disciplinary action
and sick leave
Disciplinary action may be taken when an employee
uses sick leave for a reason not contemplated by law,
or for failing to properly notify the Employer of the use
of sick leave, or failure to provide appropriate
documentation when properly required to do so
Keep in mind that an employee may not be penalized
with regard to scheduling, overtime eligibility,
performance evaluations or other right or benefit
because the employee has used sick leave or is subject
to a documentation requirement
“Tardiness” and the MOU
For employees of Bargaining Units A, B, C, D, F and H,
the MOU requires that supervisors normally will excuse
infrequent tardiness (which is defined in the MOU as
no more than 4 in a 12-month period) at worksites
where an absence of a very limited duration does not
impair operations or generate overtime
When an employee is disciplined for tardiness, being
tardy normally will not be considered “insubordination”
Official Personnel File
Only one OPF may be kept at the appropriate
personnel office
Supervisors may keep working files, but records of
previous discipline not found in the OPF cannot be
used against an employee in any future disciplinary
proceeding
Grievances may not be kept in the employee’s OPF
Official Personnel File
Derogatory material placed in an employee’s OPF must
be initialed and dated by the employee and a copy
provided to him/her. If the employee refuses to sign,
notate that on the material and place it in the OPF.
Employees have the right to respond in writing and/or
through grievance procedure to any materials placed in
their OPF. Any written response by the employee shall
be appended to the appropriate document
Any derogatory material placed in an OPF without
following this procedure will be removed from the file
and given to the employee
Appraising performance
Performance appraisals occur at 6-month
intervals, in December and June of each year,
based on the employee’s entry-on-duty date
Ratings are:



Outstanding;
Satisfactory; or
Unsatisfactory
Mid-cycle evaluations
Typically, mid-cycle evaluations are less formal. If
the employee’s performance at mid-cycle is overall
Satisfactory or Outstanding, the supervisor may
meet with the employee and document this in some
way, whether that is via email, memo, or an agencygenerated form
A full-blown evaluation is needed only if the
employee’s overall performance at mid-cycle is
Unsatisfactory
A mid-cycle “rating” is not grievable but the
employee may provide written comments
Things to remember when
evaluating performance…





If the employee was unable to perform certain job duties,
these standards or applicable elements should not be rated;
Consider the impact of equipment and resource problems,
lack of training, frequent interruptions, and other matters
outside of employee’s control;
Pre-approved time away from the job (leave, authorized
union duty time, etc.) must not be considered negatively;
No quotas or prescribed rating distributions may be imposed;
If an employee deals with Private Service Providers there are
provisions in the MOU with which you should be familiar
End-of-cycle “Unsatisfactory”
When an employee receives an overall
Unsatisfactory rating on an end-of-cycle appraisal,
the employee must be notified that the employee
has 180-days from the date of receipt of a
Performance Improvement Plan to improve to the
level of overall Satisfactory
Performance Improvement Plans
A Performance Improvement Plan should:




Identify unacceptable performance;
Describe what the employer will do to assist the
employee to improve;
Describe what the employee must do to improve
during the 180-day improvement period; and
Identify meeting dates to evaluate the
employee’s performance during the
improvement period
The End of the 180-day
Improvement Period…
An employee who fails to achieve an overall
Satisfactory rating at the end of the 180-day
improvement period shall be terminated
The termination must occur within 30 calendar
days from the end of the 180-day improvement
period
Disciplinary actions
An employee who is a bargaining unit member may
request representation by the employee’s exclusive
representative in any investigatory interview or
discussion, conference or meeting, if the employee
is the subject of the investigation, and at any
disciplinary hearing, discussion, conference or
meeting (including settlement discussions) where
the employee is the subject of the investigation
More on the right to union
representation…
The Union representative has 1 hour to appear for the meeting
if there is one on duty at the worksite. If not, the employee will
be given at least 4 hours to obtain a Union representative, but
the employee must sign a waiver of time limits for imposing the
disciplinary action (extending the time limits by one workday for
an FLSA non-exempt employee or 5 workdays for an FLSA
exempt employee)
If the Union cannot or does not have a representative available
within a reasonable period of time, the meeting still may take
place. If the Employer disapproves release time for the
representative, the meeting shall be delayed until the
representative is released from duty
More on disciplinary actions and
the right to union representation
Employees are required to give prompt, accurate
answers to all questions concerning matters of official
interest put to him/her by the Employer. The Union
representative’s role is to assist in clarifying questions
and otherwise advise the employee of his/her rights.
The Union representative may not answer for the
employee, dominate the meeting or interfere with the
investigative process
This right does not exist for a meeting solely related to
performance or during a performance review (unless
the meeting may result in disciplinary action)
Duty of employer prior to
imposing a disciplinary action
Before taking any disciplinary action related to
employee misconduct, an appointing authority or
designee must:





Investigate the alleged misconduct;
Meet with the employee* at which time the
employee shall be notified of the misconduct and
provided an explanation of the Employer’s evidence;
Consider any mitigating circumstances;
Determine the appropriate discipline, if any; and
Give the employee a written notice of the disciplinary
action to be taken and the employee’s appeal rights
*Unless the employee is unavailable or unwilling to meet
Disciplinary actions related to
employee performance
Handled much the same as disciplinary action for misconduct, before
disciplining for performance, the appointing authority or designee must:
Investigate the performance problems, including a review of the
employee’s most recent performance appraisals;
Notify the employee in writing of the deficiency, including specific
instances of unacceptable performance and the standards or behavioral
elements of the employee’s position that are tied to these instances of
unacceptable performance, and describe the efforts made by the
Employer to assist the employee in improving performance;
Meet with the employee to hear the employee’s explanation unless the
employee is unavailable or unwilling to meet; and
Give the employee written notice of the disciplinary action along with
the employee’s appeal rights
Offers of settlement
An employee has up to 4 hours, or where less than 4 hours
remain in the employee’s work day, until noon of the next
regularly scheduled workday (excluding weekends and holidays)
after a settlement offer is made to advise whether it is accepted
If this time frame would cause the disciplinary action to be
untimely, the employee must sign a waiver of time limits for
imposing the disciplinary action (1 day for non-exempt, 5 days
for exempt employees) if he or she wishes to take advantage of
this provision in the MOU
If the extended time frame to impose discipline expires before
the employee makes a decision, the offer is rescinded and the
initial discipline is considered imposed within the appropriate
time frame and cannot be appealed as being untimely
More on disciplinary actions…
After 24 months without any further disciplinary
action, the record of any prior disciplinary action, up
to and including suspensions of 5 days, shall be
expunged at the employee’s request
When determining the appropriate level of disciplinary
action to take, an appointing authority may not take
into consideration a written reprimand or counseling
memorandum that was issued more than 12 months
prior to the current infraction
Dispute Resolution Procedure
There is a procedure for resolving disputes that arise
concerning the application or interpretation of terms
found only in the MOU. This procedure is the
exclusive procedure for addressing such complaints
The parties are the exclusive representative and the
Employer in this forum. The exclusive representative
is the only representative who may represent
employees in disputes regarding the terms found only
in the MOU
Compare: complaint vs.
appeal or grievance
Issues otherwise appealable through existing
disciplinary appeals/grievance procedures established
by law or regulation are not subject to the MOU’s
dispute resolution procedure
In the grievance or disciplinary appeals forum, the
parties are the employee (whether the employee
represents him/herself, is represented by an exclusive
representative, a representative of another union, an
attorney or someone else) and the employer or DBM
Dispute Resolution Procedure
Step One – Within 15 days after the event giving
rise to the complaint or within 15 days following the
time when the employee reasonably should have
known of its occurrence, the employee aggrieved
and/or the Union representative shall discuss the
dispute with the employee’s immediate supervisor.
The supervisor has 3 days to resolve or respond
orally to the employee and/or the Union
representative
Dispute Resolution Procedure
continued…
Step Two – If the dispute has not been settled at
Step 1, a written complaint may be filed and
Presented to the employee’s appointing authority
and/or designee within 7 days after receiving the
Step 1 response. An exclusive representative must
sign the complaint. The appointing authority or
designee shall meet with the employee and the
employee’s Union representative and render a
decision in writing no later than 20 days after
receiving the complaint
More on the
Dispute Resolution Procedure
Step Three – If not settled at Step 2, a written
complaint may be filed with the Head of the Principal
Unit within 7 days after receipt of Step 2 answer.
The Head of the Principal Unit or designee will meet
with the employee and the Union representative and
render a written decision within 20 days after
receiving the written appeal. When the appointing
authority also is the Head of the Principal Unit, this
step is skipped and the Step 2 decision is appealed
directly to Step 4
The final word on the
Dispute Resolution Procedure
Step Four – If the dispute has not been settled at Step 3, the
Union’s Executive Director or President or designee, may file a
written complaint with the DBM Secretary or designee, within 30
days of the Step 3 response. If the Secretary does not concur
with the Step 3 decision, the Secretary shall render a decision
that is binding on the unit. If the Secretary concurs with the
Step 3 decision, the Secretary shall notify the Union within 30
days
Step Five – The Union can appeal the decision of the Secretary
within 30 days to fact-finding
…And, the fact finder’s decision may be appealed to the State
Labor Relations Board