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Collective Bargaining What Supervisors Should Know. Department of Budget and Management Office of Personnel Services and Benefits 2013. What is collective bargaining?.

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collective bargaining what supervisors should know
Collective BargainingWhat Supervisors Should Know

Department of Budget and Management

Office of Personnel Services and Benefits

2013

what is collective bargaining
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
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
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
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
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
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
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
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
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
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
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
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
Please note...

This presentation provides highlights of the

various MOUs. This document does not

contain every provision, so…readthem!

(Please)

management rights
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
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
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
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
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
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
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
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
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
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

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
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
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
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
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
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
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 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
“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
Official Personnel File

Only one OPF may be kept at the appropriate

personnel office

Supervisors may keep working files, but records of

previous disciplinenot 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 file1
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
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
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 agency-

generated 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
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
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
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
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
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
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
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
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
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
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
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
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
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 procedure1
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
Dispute Resolution Procedurecontinued…

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
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
The final word on theDispute 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

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