Guide to Managing Human Resources
Chapter 20: Represented and Non-represented Employees
Contents
- Summary
- Managers, Supervisors, and Work Leaders
- Employee Representation
- Employee Complaint Procedures
- Arbitration of Employee Complaints
- Arbitration under Personnel Policies for Staff Members
- Arbitration under the Collective Bargaining Agreements
- Preparing for the Arbitration Hearing
- At the Arbitration Hearing
- Notice
Summary
Labor relations between the University and/or employees and employee organizations are governed by the Higher Education Employer-Employee Relations Act (the HEERA). The HEERA is administered by the Public Employment Relations Board (PERB). Most campus employees have the right to form, join, and participate in unions as well as the right not to form, join, or participate in unions. Most employees may elect unions or employee organizations to represent them in negotiations regarding terms and conditions of employment. Employees may be represented by individuals or by unions during investigative interviews or in the grievance process.
Before the passage of the HEERA in 1979, two parties participated in departmental personnel activities: you, as a representative of the University, and your employees. Systemwide staff personnel policies, campus procedures, and departmental work rules were conceived and put into operation by the University. Managers and supervisors were able to act more or less unilaterally in making decisions about employees. After 1979 a third party, the union, was legally inserted as a participant in the University's personnel activities. On many issues concerning employees the University must consult with and in some cases reach agreement with the union before acting.
While the legalistic framework of the work environment may have changed, the needs of employees and the principles of good personnel management have not. This chapter will discuss some of your common responsibilities in areas where the union may or may not be a participant. It is not intended to modify the fundamental principles of human resources, personnel management, and employee communications, or to change the way you relate to your employees.
Managers, Supervisors, and Work Leaders
To function well, an organization needs designated managers and supervisors who have specific enduring assignments. Usually the charge given to such a manager or supervisor is responsibility for continuing operations. In some cases work leaders or forepersons assure that day-to-day operational tasks are completed accurately and on time. The rights and responsibilities of managers, supervisors, and work leaders are different.
Organize work to recognize the real and legal differences between managers, supervisors, and work leaders to:
- Preserve organizational integrity
- Treat each type of employee as anticipated by the Higher Education Employer-Employee Relations Act (HEERA)
- Assure that everyone's rights and responsibilities are respected
Under the HEERA most employees including work leaders can be exclusively represented by an employee organization. Exclusively represented employees are covered by a labor contract. On their Personnel Action Forms, these rank and file employees have an "E" Employee Relations Code. The Employee Relations Code is assigned to each position by the Human Resources Classification Unit based on a review of the job description or the job vacancy listing. Case law under HEERA has not generally supported a management structure that establishes supervisors with responsibility for fewer than 1.0 FTE.
Although supervisors may join and participate in employee organizations, they cannot be exclusively represented on supervisory employer-employee relations issues. Neither can they participate in the same local union as exclusively represented employees. Supervisors have a "C" Employee Relations Code. Managerial employees (Employee Relations Code "A") are not covered by the HEERA and thus have no legal rights to join or participate in employee organizations. A managerial employee is one who has significant responsibilities for formulating or administering policy or programs.
In addition to managers, confidential employees (Employee Relations Code "F") are also excluded from HEERA and thus have no employee organizational rights. A confidential employee is one who is required to develop or present management's position with respect to negotiations with unions, or whose duties normally require access to confidential information that contributes significantly to the development of such management positions. As a practical matter almost all confidential employees are in Human Resources and the Chancellor's Office.
A supervisor must perform at least three of the following tasks to be considered a supervisor under the HEERA:
- Independently selects subordinates OR participates in the interview process and recommends who should be hired to a higher level manager, who customarily gives substantial weight to the recommendation.
- Independently determines the performance ratings and independently communicates them to a subordinate OR the supervisor; initially decides the ratings to be given a subordinate; submits them for review to a higher-level manager who customarily approves the recommended evaluation; and formally communicates the performance evaluation to the subordinate.
- Exercises independent judgment in determining what work is to be done and who will do it OR is given work by a higher-level administrator and then exercises independent judgment to determine the distribution of the work to subordinates.
- Independently decides within budgetary limitations the amount of subordinate merit increases, determines who will be selected for promotional opportunity and decides which positions to recommend for reclassification OR makes recommendations on these actions to a higher level manager, who customarily gives substantial weight to the recommendation.
- Has independent authority to issue written warnings and suspensions OR independently determines what discipline (including dismissal) should be imposed on a subordinate and submits and/or recommends the same for review and/or approval to a higher-level manager, who customarily gives substantial weight to the supervisor's recommendation.
- Has independent authority to resolve grievances or complaints OR independently formulates a resolution to a grievance or complaint and submits the proposed resolution to a higher-level manager, who customarily approves the proposed resolution.
Tasks Typical of a Work Leader
Usually work leaders spend a substantial portion of their time performing work identical to that assigned to their subordinates who are exclusively represented employees. A work leader typically:
- Distributes work to subordinates according to directions from a higher-level supervisor or follows past practice in distributing work.
- Keeps time records and approves short absences for subordinates.
- Screens applications to verify that mandatory job requirements are met and may participate in selection committees.
- Gathers information relating to an incident that may result in the discipline of a subordinate and refers it to a higher-level manager for appropriate action.
- Receives recommended performance evaluations from the various people for whom his subordinate works, adds none of his own input, and compiles the information into one official performance evaluation.
Work Leaders Are Not Supervisors
Managers and supervisors are responsible for representing management in the work place. Thus, it has traditionally been held that it would be a conflict of interest to assign supervisory duties to exclusively represented employees, such as work leaders. You would, in effect, be asking a bargaining unit employee to represent management before another bargaining unit employee.
Because the supervisor/work leader distinction is universally recognized outside the University, arbitrators and agency investigators will make certain assumptions:
- A work leader cannot give direct orders; therefore, failure to follow such orders is not insubordination.
- Work leaders may not be required to perform true supervisory tasks.
- It is difficult to compel a work leader to testify in an arbitration hearing involving another exclusively-represented employee.
Employee Representation
The campus has both exclusively-represented employees and non-represented employees.
An organization which has won the right (by employee vote conducted by the PERB) to represent a certain group of employees with related job classifications is known as an exclusive representative. The University may address only that organization concerning matters of rights for those employees. These employees are covered by a bi-lateral agreement -- a labor contract negotiated between the University and the exclusive representative.
A list of the exclusive representatives at the University is available on the Labor Relations website, where you will find more information about all aspects of labor relations at the University.
Non-Exclusively Represented Employees
Employees including supervisors who are covered by the Personnel Policies for Staff Members do not have exclusive representatives. The University is obligated to notify individual employees of proposed changes in their wages, hours, terms, and conditions of employment, and to meet and discuss those changes with employees or their representatives, including employee organizations.
Supervisors also have rights under the HEERA to be represented in grievances and in meetings with management regarding their terms and conditions of employment; however, there are legal restrictions on those rights. Supervisory employees cannot elect an exclusive bargaining agent or negotiate collective bargaining agreements. Further, supervisory employees cannot represent non-supervisory employees, or vice versa, in grievances or in discussions with management over wages, hours, or terms and conditions of employment. Managers and confidential employees do not have rights under the HEERA. They may not be represented in grievance matters investigatory interviews by supervisory or rank and file employees.
Employee Complaint Procedures
In any employment situation, disagreements or differences between employees and supervisors can occur. When they do, it is important that you respond quickly and effectively so that a minor issue does not grow into one which cannot be resolved. If informal efforts to resolve a difference or dispute fail, all staff employees have access to a complaint procedure. These complaint procedures provide a precise structure for formally resolving issues in an orderly fashion. If efforts fail to resolve the disagreement or difference at each step of the procedure, certain issues can be submitted to arbitration, in which a third party makes a decision based on evidence and testimony provided at a formal hearing.
- Respond quickly, fairly, and effectively to complaints so that a minor issue doesn't grow into one which cannot be resolved. Conduct a thorough investigation to make informed decisions during the grievance process.
- Work with the employee and the representative, if any, to resolve the problem.
- See all sides of the issues and be willing to change your decision if warranted by the new information gained during the grievance meeting.
Your most important role in responding to a complaint is to formulate your position on the employee's verbal or written grievance. To make an informed decision that can be supported by your department and the campus, you must know all the facts--adverse facts as well as favorable ones. Thus, you must objectively investigate the assertions made by the employee.
The following guidelines will help you to conduct a thorough investigation:
- Keep records of all matters investigated.
- Who are witnesses and exactly what did they see and hear?
- What documents are pertinent to the complaint?
- How was the investigation conducted? In discipline cases it is important to record the steps of your investigation, such as when the grievant was interviewed, by whom, and who was present.
- Examine the labor agreement or personnel policy cited by the grievant.
- Is the labor agreement or personnel policy provision relevant? Is it ambiguous? How have you generally interpreted the provision? Have you administered this provision consistently?
- Does the labor agreement or personnel policy address the matter in dispute? If so, is there a past practice covering it? Is the practice fixed and established? Has it been relied on before? How long has the practice existed?
- What evidence supports the employee's interpretation of the labor agreement or personnel policy?
- Determine whether other employees have been treated differently under similar circumstances.
- If other employees have been treated differently, what is the reason? What records are available which demonstrate the facts? What records can be compiled to illustrate these facts?
- Determine whether any personal, departmental, political or other issues are pertinent to the complaint.
- Get and study any records that bear on the complaint, such as attendance records (for all employees) and workload measures.
- Do the records clarify the facts? Are any other records available? What can be produced from the records to clarify the facts? Do the facts as clarified support the grievant or management?
- Determine whether the grievance has any equal opportunity implications.
- Identify the resolution the employee or union is seeking.
- Determine the extent of liability.
- Are there class action suit aspects to the grievance?
Once you have formulated your position based on a thorough investigation, you can address the employee's informal complaint. It is best to resolve issues at this stage before positions become hardened and intractable.
If you cannot resolve a grievance informally you may receive a written grievance, forwarded to you by Human Resources.
When you attend meetings to discuss the complaint with the employee, your role is to supply the factual information that supports the action you took and to listen for new information from the employee that could affect your decision. You should be as forthcoming as possible so that the employee and the representative, if any, will fully understand your position. You should also be willing to change your decision if warranted by new information gained during the meeting.
During the grievance meeting, remember the following:
- Maintain a problem-solving approach. Your objective should be to work with the employee and the representative, if any, to resolve a specific problem.
- Avoid taking the grievance personally. Grievances are filed against management, not against individuals.
- Stick to the subject. Avoid getting sidetracked into issues that do not relate specifically to the problem at hand.
- Allow the representative some latitude. The representative is responsible for assertively and constructively presenting the employee's case to management. Some of the advocate's behavior is motivated by the need to maintain an image with employees as someone who does not cower in the presence of management.
- Maintain self control. Losing control during the meeting may cause you to make rash promises or threats. Be aware of posturing; the representative may be trying to put you in a position to make an incorrect decision.
- Be aware of the political implications of the grievance. Unions have internal pressures and are subject to pressures from their constituents. This is why certain grievances are pursued with vigor beyond the importance of the issues.
You can always ask for time to think over the contents of the meeting and to discuss how it is being conducted with the Labor Relations Specialist.
You may have to process complaints using different procedures, which are described in the specific labor agreement or policy covering the employee who files the complaint.
In many cases, after further investigation of information exchanged during grievance meetings, you and/or the employee may change your assessment of the issues in the complaint. Maybe there were extenuating circumstances that you did not know until the meeting; maybe at the meeting the employee came to understand that other employees were treated in the same manner. Further, either party may decide that pursuing the grievance is not as important as settling the complaint; or you could conclude that it is not worth the time, effort, and expense involved in pursuing the matter. Additionally, in some cases, you may be
advised by the Labor Relations Specialist conducting your meeting with the employee that you do not have a reasonable chance of prevailing should the employee further appeal the grievance.
In such cases, Labor Relations can represent you in seeking a no-fault, non-precedent-setting, written settlement with the employee and, if applicable, the union. The specific terms of the settlement agreement are structured to address the precise issues of the grievance. Typically, for grievances involving discipline or dismissal, in exchange for your reducing the penalty, the employee agrees to drop all complaint proceedings against the department , e.g., you exchange the possibility of your two-day suspension prevailing in a grievance hearing with an uncontested letter of warning, which cannot be grieved.
Arbitration of Employee Complaints
When efforts to resolve an employee's complaint through the grievance procedure fail, the employee and/or union can, in certain instances, appeal the matter to arbitration. At an arbitration hearing, a neutral third party hears testimony and reviews written exhibits presented by the employee/union and the University. The neutral party issues a written decision, which in most instances is final and binding on both parties.
Arbitration Under the Collective Bargaining Agreements
Under the labor agreements, only the union can appeal issues to arbitration. The arbitrator, whose decisions are final and binding, is selected from a permanent preapproved panel. Costs are shared equally by the union and the University. Any grievance can be taken to arbitration, but the University may argue at the hearing that a particular issue is non-arbitrable based on the specific wording of the contract provision being arbitrated.
Preparing for the Arbitration Hearing
After the employee or union appeals the grievance to arbitration, you will be contacted by the Labor Relations Specialist in Human Resources who will represent you at the hearing. The Labor Relations Specialist will work with you to decide on the arbitrators you would prefer to hear the grievance. Using the method specified in the appropriate policy or contract, the Labor Relations Specialist and the employee or union will then select the arbitrator. Based on the schedules of all likely arbitration participants, a date for the hearing will be determined by Human Resources. If a non-University arbitrator is selected, the hearing will normally be held approximately two months after selection of the arbitrator. Hearings involving University hearing officers can normally be scheduled sooner.
Approximately three weeks before the arbitration hearing, you will be contacted by the Labor Relations Specialist to schedule a meeting to review the pertinent documents and to make a final determination as to the witness list.
Since you are the expert on the facts, you will have to gather all the documents used in the decision that provoked the grievance. You also will be asked to identify other employees who can provide pertinent verbal information.
Based on a review of your documents and interviews with all potential witnesses, you and the Labor Relations Specialist will decide what will finally be used in the grievance hearing. The Labor Relations Specialist will schedule at least one (usually two) appointments to review pertinent testimony with each University witness and to point out areas where they may be
cross-examined, to avoid surprises at the hearing.
At the hearing you will be represented by the Labor Relations Specialist. Also in attendance will be one departmental representative (the department chair, the department's chief staff manager, or you); the grievant; the grievant's representative, if any; the arbitrator; and a court reporter or someone operating a tape recorder. The individual labor contract may provide for attendance by others.
If the case involves discipline or dismissal, the University presents its case first and must prove that it acted in accordance with the policy or labor agreement provision cited in the employee's grievance. In most other cases, the employee must proceed first and must prove that the cited policy or contract provision was violated.
After an opening statement, the first party questions the witnesses it calls to support its side. Through these witnesses, documents are also entered into evidence. The second party has a chance to cross-examine the witnesses.
After the first party completes its case, the second party makes an opening statement, calls its witnesses, and introduces its evidence.
After all the testimony has been presented, both sides can make verbal closing remarks or agree to submit written briefs. The brief usually contains a summary of each party's case and presents arguments to support its position. Briefs are usually due 30 days after the hearing or, if transcripts are made, 30 days after receipt of the transcripts. The arbitrator usually issues a decision within 30 days after the hearing or after the briefs are received.
Notice
When your department or unit is contemplating changes to the working environment that will affect an employee or group of employees, you must provide information about certain kinds of changes to the exclusive representatives . Of course you will want to begin informing your employees about your plans as early as possible. When a proposal has reached the stage of being reasonably certain (but not cast in stone yet), it is time to send information to the unions involved.
Notice is the term used to describe this information process. You'll hear it referred to as both a verb and a noun.
In some cases, whether or not to provide notice is outlined in a labor contract . Case law issued by the Public Employee Relations Board of the State of California also creates the obligation to notice.
For employees not represented by an exclusive representative you are obligated to provide notice directly to the employees. The University has a policy of providing simultaneous notice to employee organizations that have expressed an interest in representing
such employees .
One way to find out whether notice is needed is to look up the action you are proposing in the contract.
The best way to find out what your notice obligations are is to contact your Employee Relations Specialist as soon as you begin thinking about any of the changes listed below:
- Layoff
- Reorganization
- Changes in Work Rules
- Changes in Hours of Work, or Shifts
- Major Relocations
The lead time for notice depends on the action you are considering. One issue would be a major reorganization that could create new reporting lines for employees, necessitate possible layoffs, create new layoff units, or change layoff units. (Most reorganizations don't include all of these actions.)
Layoffs require notice to exclusive representatives , before the formal letter to the employee. The terms of the individual contract will identify the notice requirements.
The obligation to provide advance notice of a proposed change in terms and conditions of employment is derived either from the case law interpreting HEERA for not exclusively-representative employees, or from the provisions of the existing labor contract for employees who are exclusively represented.
For non-exclusively-represented employees who have collective bargaining rights (excluding managers and confidential employees), the case law requires the employer to provide reasonable notice of substantial changes in terms and conditions of employment, with the opportunity for the employee to comment before the change is implemented. A reasonable notice period is generally interpreted to be 30 days, although there may be some flexibility in extenuating circumstances.
Since many employees may access their rights to preference for rehire for up to two months before the effective date of a layoff, the earlier you can provide the notice information, the better (see Chapter 1, Employment for preferential rehire). The notice period to the union is not supposed to overlap the formal written letter of layoff, since the notice period is really a proposal stage. Sometimes a union will agree to a department giving the employee the written letter of layoff during the notice period, but with the understanding that the layoff is technically still within the proposal or notice period.
If you are considering major changes such as a reorganization or a layoff of a number of employees, ask your Employee Relations Specialist early in the process what information on will be needed. Often the ERS will schedule a meeting with other Personnel specialists in Employment, Classification, and Labor Relations to help you get the full picture of what may be involved in your proposal.
Labor Relations needs to know:
- Date of the proposed action
- Detailed reason(s) for the proposed action
- Number of and classifications of affected employees
- Policies or contracts under which affected employees are covered (identify each employee by policy or contract)
- If applicable, current and proposed organization charts
- If a layoff, and if not in seniority order, information on why order is different
- Name, title, phone number of one contact person in the department
Some actions don't call for notice; two examples are a change of assignment or supervisors within the same classification and department. Employees don't have a right to always perform the same set of duties within their classification, nor do they have a right to the same supervisor forever.
There are other times when notice may not be necessary, but it's best to check before you assume you don't have to provide it.