memo: TO: Executive Board Members, Council Leaders and L/M Chairs LS ! FROM: Susan M. Kent —heow 9 Kot DATE: December 17, 2014 RE: Employer Petition Seeking Designation of PEF Positions as M/C ‘The purpose of this memo is to provide guidance and information regarding the December 12, 2014, employer petition filed by the State which seeks to have approximately 2,500 state employees currently in the PS&T Unit designated as Management/Confidential employees. That petition was received by PEF on December 15, 2014. On closer examination of the petition, Counsel discovered the number of PEF members impacted is more than double the number Counsel initially advised. Additionally, as explained below, PEF requests that you forward certain information from your impacted members to your Field Representative. We are in the process of emailing individual ‘members. Initially, we want to once again emphasize that no PEF member can be designated as M/C until there is a final decision by the Public Employment Relations Board (“PERB"). That process provides an opportunity for PEF and the member to contest such placement. Further, based on PEF’s experience, that process can take months, and potentially years, to reach a final decision. ‘That being said, PEF has already begun its investigation and preparation to meet this challenge with appropriate PEF departments handling various aspects of the case. Under the Taylor Law, both a union and a public employer can petition PERB to change the designation of an employee. PEF filed a petition on August 26, 2014, seeking to move about 3,000 titles from the M/C designation to the PEF bargaining unit. On December 12", the State, through its representative, the Governor's Office of Employee Relations (“GOER’), filed what is called an “employer petition” seeking to move about 2,500 PEF positions from PEF to M/C.Simultaneously with the filing of the employer petition, under the PERB rules, the State is required to serve notice on the individual members whom they seek to have designated as M/C. As you probably already know, our members have been getting those notices, In conjunction with these notices, some of our members have been asked to, in some way, acknowledge receipt of the notices. PEF is interested in those acknowledgement forms and process so that we can insure the notice was done properly and challenge the notice in our PERB response if necessary. In order to assist us with collecting those acknowledgment forms, and information about the process, we would like you to get that information from your impacted members, forward that information to your assigned field representative, who will then forward that information to the PEF Legal Department, As we have previously advised, if a member is directed to sign an acknowledgement of receipt of the “notice”, he or she should do so. (We previously forwarded a copy of the notice to field representatives.) Any additional issues relating to a management request or order to sign an acknowledgment that a “notice” was received, should be directed to your field representative. ‘The next step in this process is for PERB’s Director of Public Employment Practices and Representation, Monte Klein, to review the petition. If he finds that it is in compliance with PERB laws and rules, a copy will be mailed to PEF and our time to answer will begin to run, We would have ten working days to answer. However, that timeframe is routinely extended. If the Director finds the petition is deficient, he will return it to the State’s representative, GOER, and provide them an opportunity to cure any defect. Once PEF answers, a conference will be scheduled to discuss the case and, if the case cannot be settled, it will proceed to hearings. Unlike in PERB improper practice charges which are adversarial in nature, in this case, PERB is acting in the role of investigating the issue. GOER has the burden of proof, and PEF and members can present evidence to show that the position should not be designated M/C. Also, you should know that PERB makes its decision on a position by position basis and not a title basis. As far as the legal standard involved, in brief, in order for a position to be designated as MIC, PERB must find that the individual in the position challenged by GOER formulates policy, assists directly in the conduct of collective negotiations or has a major role in the administration of such agreements, or acts in a confidential capacity to managerial employees (Civil Service Law §201.7). We strongly believe the petition does not provide any rationale for designating these titles which have been in PEF for decades as management/confidential. We will continue to keep you updated regarding the State’s petition, and be assured, we will be fighting this with all involved PEF departments working together. If you have any questions, please contact my Executive Assistant, Jane Briggs, at jbriggs@pef.org or 800-342-4306 ext. 211.