On Monday, December 15, 2014, PEF and approximately 2,500 state employees received notice from the Governor’s Office of Employee Relations (“GOER”) that on December 12, 2014, the State filed an employer petition which attempts to move their titles into the M/C class. The purpose of this memo is to provide guidance and information to you regarding the employer petition filed by the State. While we initially thought the number of impacted PEF members was around 1,000, upon examination of the petition, Counsel discovered the number of PEF members impacted is more than double the number Counsel initially advised.
Click here for a list of the agencies and titles impacted.
We know this is very upsetting to you and we want to 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 positions 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 (a copy of this notice is attached). In conjunction with these notices, some of our members have been asked to, in some way, acknowledge receipt of the notices. If you are directed to sign an acknowledgement of receipt of the “notice”, and you have in fact received such notice, you should do so. We are looking into how this notification was done to ensure the State has followed PERB rules and we are also looking into what the exact requirement is for an employee to sign such a notice.
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 M/C, 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 this 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 Jane Briggs, at Jane Briggs or 800-342-4306 ext. 211.
NOTICE to All Affected Members
Please be advised that your employer, the State of New York, filed an Employer Application for the Designation of Persons as Managerial or Confidential with the New York State Public Employment Relations Board to designate your title as Managerial/Confidential dated December 12, 2014.
If you have any questions, please contact your union.