Collective Bargaining What Supervisors Should Know Department of

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, Do. IT, DJS, DLLR, DNR, Planning, DPSCS, MSP, MDOT, including Md. TA 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 State Department of Education

Employees in included agencies are in bargaining units, except: n n n n n 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: n n 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 n A, B, C, D and F – American Federation of State, County, and Municipal Employees (AFSCME) n E – AFT-Healthcare Maryland n G – Maryland Professional Employees Council n n 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 n n n 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 12 month 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 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… n n n 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: n n 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