6-1
Purpose
6-2 Employee-Employer Relations Systems
6-3 Commission Authority
6-4 Rights of Employer
6-5 Rights of Employees
6-6 Determination of Representation
6-7 Dues and Fees
6-8 Recognition Rights for Labor Organizations
6-9 Negotiations and Impasse
6-10 Commission Review and Action
6-11 Unfair Labor Practices for the Employer
6-12 Unfair Labor Practices for Employees or Labor Organizations
6-13 Unfair Labor Practice Procedures
6-14 Administration
6-15 Strikes
6-16 Payroll Deduction of Contributions to Separate Segregated Funds
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* Editor’s Historical Notes: |
| |
1. |
The Civil Service Commission first approved the Employee Relations Policy (ERP) on August 20, 1976 [CS‑6154]. This first ERP created a “meet and confer” system. |
| |
2. |
The Commission approved a motion in which it “adopted the concept of collective bargaining” on December 17, 1979 [CS‑6287]. |
| |
3. |
The Commission adopted a revised ERP on April 25, 1980, effective immediately [CS-6305]. The revised ERP created the first Commission-approved collective bargaining system for classified employees. |
| |
4. |
The Commission converted the ERP to rule status on December 18, 1981 [CS-6373]. |
| |
5. |
The Commission substantially amended Chapter 6 on December 18, 1998, effective immediately [CS-6905]. |
|
6-1
Purpose |
| 6-1.1
Purpose |
This chapter provides classified employees with a voice in determining their compensation and other conditions of employment. This chapter permits (1) employees in eligible positions to engage in a form of collective bargaining with the employer and (2) employees in nonexclusively represented positions to meet and confer with the employer. |
| 6-1.2
Constitutional Authority |
The civil service commission recognizes that there are fundamental economic, political, and legal differences between employer-employee relations in the state service and those in the private sector and other public sector employment. It is the view of the commission that constitutional provisions do not prohibit the commission from establishing a form of collective bargaining analogous to that in other public sector employment, so long as the collective bargaining agreements are subject to review, modification, and approval by the commission.
The constitution requires the commission to perform a combination of quasi-legislative, quasi-judicial, and administrative functions. This chapter integrates the constitutional responsibilities of the commission (article 11, section 5) with that of the legislature (article 4 and article 11, section 5) and the executive branch of government (article 5). |
|
[Rule
6-1 last amended effective March 18, 2001] |
| 6-2
Employee-Employer Relations Systems |
| 6-2.1
Collective Bargaining Authorized |
|
The civil service commission authorizes classified employees in eligible positions to organize, elect an exclusive representative, and negotiate with the employer over proper subjects of bargaining. |
| (a) |
Rights and obligations. The employer, employees, and exclusive representatives have the rights and obligations provided in the civil service rules and regulations. |
| (b) |
Subjects of bargaining. The employer and the exclusive representative are required to bargain in good faith over mandatory subjects of bargaining. The employer may, but is not required to, negotiate over permissive subjects of bargaining. A party cannot bargain over prohibited subjects of bargaining. |
| (c) |
IIntent; retention of authority. The civil service commission intends to defer to and approve collective bargaining agreements negotiated in good faith between the employer and an exclusive representative when permitted by this chapter. However, the commission is obligated to retain and exercise its constitutional authority in all matters. The commission expressly retains the authority to do all of the following: |
| |
(1) |
Review, modify, or reject, in whole or in part, each proposed collective bargaining agreement. |
| |
(2) |
Determine, during the term of a collective bargaining agreement, if a provision previously approved has been applied or interpreted to violate or otherwise rescind, limit, or modify a civil service rule or regulation governing a prohibited subject of bargaining, notwithstanding any contrary provision of the agreement. |
| (d) |
Collective bargaining agreement as substitute rules. Each collective bargaining agreement approved by the civil service commission is expressly subject to and governed by the civil service rules and regulations. The approval of a collective bargaining agreement by the commission is a quasi-legislative act. The provisions of a collective bargaining agreement, when approved by the commission, become a subset of
the civil service rules governing rates of compensation and other conditions of employment for the eligible employees in the applicable unit. |
| (e) |
Collective bargaining agreement as a binding agreement. An approved collective bargaining agreement is binding only between the employer and the exclusive representative. A collective bargaining agreement is not binding on the civil service commission. |
| 6-2.2
Limited-Recognition Organizations Authorized |
| The civil service commission authorizes classified employees in nonexclusively represented positions to designate limited-recognition organizations to meet and confer with the employer over rates of compensation and other conditions of employment and to represent members in civil service grievance proceedings. The employer, employees, and the limited-recognition organizations shall have the rights and obligations provided in the civil service rules and regulations. |
|
[Rule 6-2 last amended effective December 19, 2007] |
| 6-3
Commission Authority |
| 6-3.1
Commission Relationship to Collective Bargaining |
The ability of eligible employees to elect an exclusive representative and engage in collective bargaining is a privilege granted by the civil service commission under its exclusive constitutional authority. However, the commission cannot delegate its constitutional responsibilities to the collective bargaining parties and the privilege to engage in collective bargaining remains subject to the commission’s sovereign authority and the rules of the commission. |
| (a) |
Review and approval required. A collective bargaining agreement or any provision of a collective bargaining agreement cannot take effect or be enforceable between the parties unless the civil service commission has reviewed and approved the agreement or provision. |
| (b) |
Commission authority. The civil service commission retains the authority to (1) approve, modify, or reject, in whole or in part, a proposed collective bargaining agreement presented to it for review and (2) to impose on the parties and eligible employees a collective bargaining agreement as modified by the commission. |
| (c) |
Modification of agreement during term. Notwithstanding that the civil service commission previously approved the provisions of a collective bargaining agreement, the commission retains the authority, during the term of a collective bargaining agreement, to modify the agreement without the approval of the parties, as provided in rules 6-3.5, 6-3.6,
and 6-3.9(c). |
| (d) |
Effect of agreement on civil service commission. The civil service commission (including civil service staff) (1) is not a party to a collective bargaining agreement approved by the commission; (2) does not become a party to the collective bargaining agreement by virtue of the commission’s review, approval, or modification; (3) is not subject to any of the provisions of a collective bargaining agreement; and (4) is not subject to the jurisdiction of an arbitrator or other fact-finder acting under authority of a collective bargaining agreement approved by the commission. |
| 6-3.2
Prohibited Subjects of Bargaining |
| (a) |
Prohibitions. |
| |
(1) |
Interpretation or application. A collective bargaining agreement, impasse panel recommendation, settlement agreement, or arbitrator’s decision under a collective bargaining agreement cannot be interpreted or applied to violate, rescind, limit, or modify a civil service rule or regulation governing a prohibited subject of bargaining. |
| |
(2) |
Settlement. An appointing authority or labor organization cannot approve or implement a settlement of any claim or grievance or take any other action that violates, rescinds, limits, or modifies a civil service rule or regulation governing a prohibited subject of bargaining. |
| (b) |
Prohibited subjects of bargaining. The civil service authority, policy, rules, regulations, procedures, and practices governing or regulating any of the following are prohibited subjects of bargaining: |
|
(1) |
Classification. The determination of the classification and grade assignment of a new or existing position in the classified service. Although the rates of compensation for an existing class of positions is a mandatory subject of bargaining, the state personnel director retains the sole authority to establish the initial rate of compensation for a newly-created class of positions when the new classification is included in the official classification plan. |
|
(2) |
Selection. The determination of the qualifications of candidates for positions in the classified service, including, but not limited to, appraisal, probation, and appointment. |
|
(3) |
Class clusters. The determination of classification equivalency or eligibility, including, but not limited to, the creation of class clusters and preauthorized lateral job change lists. |
|
(4) |
Working out of class. The determination of working out of class, including, but not limited to, (1) whether an employee has worked out of class, (2) the duration of any working-out-of-class assignment, (3) the classification and level of the duties and responsibilities performed while working out of class, (4) the amount of any working-out-of-class pay or benefits due an employee, and (5) the rights of an employee seeking review of a working-out-of-class claim. |
|
(5) |
Disbursements for personal services. Review and approval or disapproval of requests by agencies to make disbursements for personal services outside the classified service. Notwithstanding this subsection, the following are proper subjects of bargaining: |
| |
|
(A) |
Notice to the exclusive representative of a request for permission by the appointing authority to make disbursements for personal services outside the classified service. |
| |
|
(B) |
The obligations to meet and confer regarding the impact of a decision to make disbursements for personal services outside the classified service. |
| |
|
(C) |
Reasonable efforts on the part of the employer, not involving a delay in implementation, to reduce the impact on current classified employees of a decision to make disbursements for personal services outside the classified service. |
|
(6) |
Political or union activity. Political activity or union activity by classified employees during actual-duty time. |
|
(7) |
Civil
service authority. The authority of the civil service commission, the state personnel director, or civil service staff established by law, including the civil service rules and regulations. |
|
(8) |
System
of collective bargaining. The system of collective bargaining created in the civil service rules, the bargaining relationships authorized in the rules, and the limitations, restrictions, and obligations on the collective bargaining parties, collective bargaining agreements, and eligible employees established in the civil service rules and regulations. |
|
(9) |
Outside
the bargaining unit. Conditions of employment outside the bargaining unit. |
|
(10) |
Patents
and copyrights.
Compensation related to patents and copyrights. |
|
(11) |
Union
leave. The requirements and limitations on union leave in rule 6
3.9(c). |
|
(12) |
Strikes. The requirements and limitations on strikes and strike-related grievances. |
|
(13) |
Excluded
positions. The requirements, limitations, and procedures regarding excluded positions in rule 6-6.4. |
|
(14) |
Abolition
or creation of positions. The constitutional authority of an appointing authority to create or abolish positions for reasons of administrative efficiency and the grievance and appeal rights of classified employees aggrieved by the abolition or creation of a position. |
|
(15) |
Assumptions.
The determinations by the state personnel director or the civil service commission authorized in rule 2-16
[Assumptions], including, but not limited to, an assumption of a position, classification of an assumed position, initial appointment to an assumed position, initial treatment of an assumed employee, and initial pay and benefits of an assumed employee. |
| 6-3.3
Incorporation by Reference |
| The incorporation by reference of a civil service rule or regulation regarding a proper subject of bargaining in an approved collective bargaining agreement cannot diminish the authority of the civil service commission or state personnel director to amend or repeal the rule or regulation with respect to nonexclusively represented employees. |
| 6-3.4
Modification after Approval |
| A primary or secondary collective bargaining agreement approved by the civil service commission remains in effect between the parties during its approved term, unless otherwise amended by the commission during its term as provided in rules 6 3.5 or 6 3.8(c). An amendment to an existing collective bargaining agreement is a quasi-legislative act. |
| 6-3.5
Modification of Agreement or Arbitrator's Decision |
| Notwithstanding any contrary rule or provision of a collective bargaining agreement, the civil service commission reserves the exclusive authority to determine during the term of a collective bargaining agreement if a provision previously approved has been applied or interpreted to violate or otherwise rescind, limit, or modify a civil service rule or regulation governing a prohibited subject of bargaining. |
| (a) |
Complaint. Any person may file a complaint with the state personnel director that a collective bargaining agreement, arbitrator’s decision, or settlement agreement under a collective bargaining agreement has been applied or interpreted to violate or otherwise rescind, limit, or modify a civil service rule or regulation governing a prohibited subject of bargaining. The director shall investigate the complaint. After providing notice to the parties and an opportunity to be heard, the director shall determine if a violation has occurred. The definition of prohibited subjects of bargaining shall be liberally construed to enforce the constitutional authority of the civil service commission. |
| (b) |
Remedy. If the state personnel director determines that a violation has occurred, the director shall issue a report of findings to the civil service commission. The director may also take any one or more of the following actions: |
| |
(1) |
Issue an order to cure or correct the violation. |
| |
(2) |
Issue an order to enjoin future violations. |
| |
(3) |
Recommend to the civil service commission that it amend the existing collective bargaining agreement to cure or correct the violation. |
|
(4) |
In the case of an arbitrator’s decision, the state personnel director may also exercise superintending authority to vacate or modify the decision of the arbitrator or remand the matter to the arbitrator for further consideration. |
| (c) |
Appeal. A party to the collective bargaining agreement who is aggrieved by a final decision of the state personnel director may file an application for leave to appeal to the civil service commission within 28 calendar days after the decision is issued. |
| (d) |
Exclusive
jurisdiction. The procedures provided in this rule and in the regulations are the exclusive procedures for determining if a collective bargaining agreement, arbitrator’s decision, or settlement agreement has been applied or interpreted to violate or otherwise rescind, limit, or modify a civil service rule or regulation governing a prohibited subject of bargaining. A provision of a collective bargaining agreement, including a grievance procedure permitted by rule 6-9.6 [Negotiated
Grievance Procedures], cannot replace, interfere with, or limit this exclusive jurisdiction or the superintending authority of the state personnel director or the civil service commission. |
| 6-3.6
Application of Civil Service Rules and Regulations |
| (a) |
Nonexclusively represented employees. The rates of compensation for all classifications and other conditions of employment for nonexclusively represented employees are established in the civil service rules and regulations. An appointing authority may establish (1) individual levels of compensation within the rates fixed by the civil service commission for each classification and grade and (2) agency work rules that are not inconsistent with the constitution or applicable law, including the civil service rules and regulations. |
| (b) |
Exclusively represented employees. The rates of compensation for all existing grades within a classification of positions and other conditions of employment for exclusively represented positions may be established in a collective bargaining agreement approved by the civil service commission and in the civil service rules and regulations governing prohibited subjects of bargaining. An approved collective bargaining agreement supersedes civil service rules and regulations governing proper subjects of bargaining that would otherwise apply in the absence of the collective bargaining agreement. However, a collective bargaining agreement cannot contravene the civil service rules and regulations governing prohibited subjects of bargaining. |
| 6-3.7
Civil Service Staff Neutrality |
| (a) |
General. Except as provided in subsection (b), the state personnel director and other civil service staff shall not participate as advocates on behalf of either management or employees in the collective bargaining process. |
| (b) |
Exception for civil service human resources staff. Civil service human resources staff may provide assistance to management in labor relations, including collective bargaining, discipline, and grievance processing. In providing such assistance, civil service human resources staff may act only at the direction of the appointing authority and may not disclose confidential matters related to the collective bargaining process except as authorized by the appointing authority or as required by the civil service commission. |
| 6-3.8
Limitations on Term of Collective Bargaining Agreements |
| (a) |
Division
of agreement. A primary collective bargaining agreement may be undivided or may be subdivided into two sections. If the agreement is divided, the parties shall divide it, to the extent practicable, into one section with only economic provisions and one section with only noneconomic provisions. When a provision is submitted to the civil service commission or an impasse panel for review, each provision must be clearly marked to indicate whether it is included in the economic section or the noneconomic section. |
| (b) |
Limitation on term. Each collective bargaining agreement must contain an effective date and a termination date. If the agreement is divided into economic and noneconomic sections, the sections may have different effective and termination dates. However, the maximum term of a unitary agreement, section of a divided primary agreement, or provision in an agreement cannot exceed 3 years. |
| (c) |
Rates
of compensation; legislative.After the civil service commission approves a collective bargaining agreement, the state personnel director shall give annual notice of approved increases in the rates of compensation to the governor for transmittal to the legislature as part of the governor’s budget. If the legislature rejects or reduces the increases in rates of compensation approved by the commission, the commission shall amend the collective bargaining agreement to conform to the legislative action. |
| (d) |
Evergreen
provisions prohibited. A provision of a primary or secondary collective bargaining agreement cannot authorize a provision of that agreement to be automatically extended beyond 3 years or beyond the approved expiration date of the primary agreement, whichever occurs earlier. If the parties agree that a provision of an agreement should continue in effect beyond the earlier of 3 years or the approved expiration date without further negotiation, the parties must resubmit the entire agreement to the civil service commission for review as provided in rule 6-10 [Commission Review and Action].
|
[Rule 6-3 last amended effective December 19, 2007] |
| 6-3.9
Union Leave |
| A classified employee shall not engage in union activities during actual-duty time. A classified employee may engage in union activities only while on approved union leave or on off-duty time. |
| (a) |
Exclusively represented employees. An appointing authority may approve union leave for an exclusively represented employee only to the extent authorized in the collective bargaining agreement. |
| (b) |
Nonexclusively represented employees. An appointing authority may approve union leave for a nonexclusively represented employee only to the extent authorized in the civil service rules and regulations. |
| (c) |
Limitations
and reporting requirements. The grant of authority for union leave is expressly conditioned on compliance with the following: |
| |
(1) |
A classified employee is prohibited from engaging in union activities or political activities during actual-duty time. An appointing authority shall discipline any employee who engages in union activities or political activities during actual-duty time. |
| |
(2) |
A manager or supervisor is prohibited from permitting a classified employee to engage in union activities or political activities during actual-duty time. The appointing authority shall discipline a manager or supervisor who permits an employee to engage in union activities or political activities during actual-duty time. |
| |
(3) |
A classified employee shall accurately report on a biweekly basis the amount and type of union leave taken. |
| |
(4) |
An appointing authority shall accurately enter on a biweekly basis the amount of union leave reported by employees. |
|
(5) |
The state employer shall report annually to the civil service commission on the state subsidy for union activities.The report must include the amount, type, and value of all state-paid union leave, administrative leave banks, administrative union officer leave, and any other arrangement by which an employee receives any compensation, benefit, or benefit accrual paid in whole or in part by the state for union activities. |
|
(6) |
The state employer or an appointing authority are prohibited from entering into any formal or informal written or unwritten agreements permitting classified employees to engage in union activities on actual-duty time or to receive any compensation, benefit, or benefit accrual paid in whole or in part by the state for union activities, unless expressly included in a collective bargaining agreement approved by the civil service commission. |
|
[Rule 6-3 last amended effective December 19, 2007] |
| 6-4
Rights of Employer |
| 6-4.1
Management Rights |
| The employer may determine or exercise the following without engaging in collective bargaining: |
| (a) |
Matters of managerial policy. |
| (b) |
Mission of the agency. |
| (c) |
Budget. |
| (d) |
The method, means, and personnel by which government operations are to be conducted. |
| (e) |
Organizational structure. |
| (f) |
Standards of service and maintenance of efficiency. |
| (g) |
The right to select, direct, or assign, employees and to initiate lateral job changes. |
| (h) |
The right to discipline employees for just cause. |
| (i) |
The right to relieve employees from duty and abolish positions for reasons of administrative efficiency including, for example, lack of work, lack of adequate funding, change in agency mission, or reorganization of the work force. |
| (j) |
In case of emergency, the right to take whatever action may be necessary to carry out the agency’s mission. |
| 6-4.2
Substantial Adverse Impact |
| If a determination or exercise of rights by the employer produces substantial adverse impact on employees covered by a collective bargaining agreement, the modification and remedy of any resulting impact is subject to collective bargaining unless the parties have already bargained such matters. |
| 6-4.3
Duty to Bargain |
| The employer shall not bargain over management rights that are prohibited subjects of bargaining. The employer may, but is not required to, bargain over management rights that are permissive subjects of bargaining. |
| 6-4.4
Authority of Governor |
| The civil service commission recognizes that the governor has the following responsibilities and authority: |
| (a) |
To develop, direct, and coordinate the employer’s employment relations policy. |
| (b) |
To negotiate with exclusive representatives. |
| (c) |
To recommend to the civil service commission, in consultation with principal departments and elected department heads, a comprehensive plan for rates of compensation and other conditions of employment for nonexclusively represented employees. |
|
[Rule 6-4 last amended effective August 26, 2007] |
| 6-5
Rights of Employees |
| 6-5.1
Participation by Employees |
| Employees may organize, form, assist, join, or refrain from joining labor organizations. Eligible employees may also engage in concerted activities for collective bargaining with the employer. |
| 6-5.2
Resignation |
No eligible employee is required to become or remain a member of a labor organization. An employee has the right to resign from a labor organization at any time. A resignation is effective no later than 28 calendar days after the employee gives written notice to the labor organization. A provision of a collective bargaining agreement or labor organization constitution or bylaws cannot limit or condition the right of an eligible employee to resign at any time. |
| 6-5.3
Exclusively Represented Employees |
| Eligible employees have the right to exclusive representation as provided in these rules. When the state personnel director has certified an exclusive representative, employees in the unit have the following rights to be represented: |
| (a) |
Bargaining. With respect to proper subjects of bargaining, exclusively represented employees may be represented only through their exclusive representative. |
| (b) |
Grievances under collective bargaining agreement. With respect to grievances brought under the provisions of the collective bargaining agreement, an employee may be represented only by the exclusive representative. However, an employee or group of employees has the right at any time to present grievances to the employer and to have the grievances adjusted, without the intervention of the exclusive representative, as long as the adjustment is not inconsistent with the terms of a collective bargaining agreement then in effect. The employer shall give the exclusive representative an opportunity to be present at any such adjustment. |
| (c) |
Technical complaints and civil service grievances. With respect to technical complaints and grievances brought under exclusive civil service procedures, an exclusively represented employee may represent himself or herself or may choose to be represented by one of the following: |
| |
(1) |
An employee or agent of the employee’s exclusive representative. |
| |
(2) |
An attorney. |
| |
(3) |
Another exclusively represented classified employee who is a member of the same bargaining unit. |
| 6-5.4
Nonexclusively Represented Employees |
| A nonexclusively represented employee who is scheduled for a disciplinary conference or who appears as a party in a civil service proceeding may represent himself or herself or may choose to be represented by one of the following: |
| (a) |
An employee or agent of a limited-recognition organization. |
| (b) |
An attorney, except as limited in rule 2-8.2(c)
[Ethical Standards and Conduct: Prohibitions]. |
| (c) |
Another nonexclusively-represented classified employee, except as limited in
rule 2-8.2(c)
[Ethical Standards and Conduct: Prohibitions]. |
| |
(1) |
If the representative is an employee of the same agency as the charged employee, the appointing authority shall release the representative from regularly scheduled work without loss of pay or leave credits to attend the disciplinary conference or civil service proceeding. |
| |
(2) |
If the representative is an employee of a different agency than the charged employee, the representative may be absent from the workplace to attend the disciplinary conference or the civil service proceeding only if the representative’s appointing authority has approved annual or personal leave. |
|
[Rule 6-5 last amended effective August 26, 2007] |
| 6-6
Determination of Representation |
| 6-6.1
Unit Determination and Redetermination |
| (a) |
Unit determination. The state personnel director shall legislatively establish the most appropriate units of eligible employees organized along broad occupational lines with a community of interest. |
| (b) |
Unit redetermination. The director, upon request of the state employer or a labor organization, may abolish, redefine, realign, or merge, in whole or in part, recognized units, if the director determines that the existing units are no longer the most appropriate units. The state employer and all labor organizations that may be affected by a change in the existing units shall meet and discuss the proposed changes before a request is filed with the director. |
| |
(1) |
Any abolition, redefinition, realignment, or merger of a unit takes effect only at the end of the term of an affected collective bargaining agreement, unless the state employer and the exclusive representative agree to an earlier date. |
| |
(2) |
The state employer or a labor organization may file with the civil service commission an application for leave to appeal a unit determination by the director. The application must be filed within 28 calendar days after the director’s decision is released. The director’s decision is stayed if a timely application is received by the commission. |
| (c) |
Exceptions. This rule applies only to the actions to redefine recognized units. This rule does not apply to actions that result from (1) the creation or abolition of one or more classifications, (2) the merger of two or more existing classifications into a single classification, or (3) the designation of an eligible position as an excluded position. |
| (d) |
Transfer of recognition rights. Two or more existing exclusive representatives may agree to combine some or all of their existing business operations and staff. Any such combination that results in a transfer of recognition rights is subject to the review and approval of the state personnel director and requires the prior affirmative vote of a majority of the members voting. |
| 6-6.2
Petition for Election; Showing of Interest |
| (a) |
Petition for election. An eligible employee, or any individual or labor organization acting on behalf of an eligible employee, may petition for a unit election. The petition must be accompanied by suitable evidence that at least 30 percent of the eligible employees in the unit either want to be represented by another identified organization or no longer want to be represented by an exclusive representative. |
| (b) |
Showing of interest. The state personnel director shall order an election if the director finds a bona fide question of representation exists and the petitioner shows the interest of 30 percent or more of the eligible employees actively at work in the unit. Otherwise, the director shall dismiss the petition as insufficient. Although the director shall consider any irregularity that might otherwise preclude the existence of a bona fide question of representation, the sufficiency of showings of interest is a matter for administrative determination. The director’s decision is not subject to collateral attack by the parties. When a petition is dismissed, the petitioning party must be informed of the reason for the dismissal. The petitioning party may file an application for leave to appeal the director’s decision to the civil service commission. A petitioner whose petition is dismissed cannot file another petition in the same unit within the 12-month period following the date of the dismissal. |
| (c) |
Intervenors. When the state personnel director authorizes an election, another organization may intervene and be placed on the ballot if the organization submits suitable evidence that at least 10 percent of the eligible employees actively at work in the unit wish to be represented by the intervening organization. |
| (d) |
Certification elections. Certification elections are conducted and supervised by the state personnel director upon determination of the eligible voters by agreement or hearing. The ballots for a certification election must contain an appropriate space for employees to indicate that no representation is desired. |
| 6-6.3
Certification; Run-off Election |
| The state personnel director shall certify a labor organization as the exclusive representative of all eligible employees in a unit if the organization receives a majority of valid ballots cast in the certification election. If none of the choices on the ballot receives a majority of the votes cast, the state personnel director shall conduct a run-off election. The run-off ballot contains only the two choices receiving the most and the second most votes in the original election. |
| (a) |
Election bar. If the members choose “no representation,” the state personnel director shall not conduct an election in the unit for 24 months after the election results are certified. If an exclusive representative is certified, the state personnel director shall not accept a new petition in the unit for 24 months after the certification. |
| (b) |
Contract bar. Notwithstanding subsection (a), if the civil service commission has approved a collective bargaining agreement for a unit, the state personnel director shall not consider any new petitions during the term of the agreement except during the window period. |
| (c) |
Window period. If the collective bargaining agreement is a unitary agreement, election petitions may be accepted only during a 2-month window period ending 6 months before the expiration of the agreement that would otherwise constitute a bar to an election. If the agreement is divided into economic and noneconomic sections, election petitions may be accepted only during a 2-month window period ending 6 months before the expiration of the noneconomic section of the agreement. |
| (d) |
Post-election provisions; certification. When a newly elected exclusive representative is certified in a unit after an election and replaces an exclusive representative, the following conditions will be observed: |
| |
(1) |
The former exclusive representative shall immediately cease to represent the employees in the unit. |
| |
(2) |
The newly elected exclusive representative may either assume and administer the existing contract until its expiration or repudiate the existing contract. |
| |
(3) |
In either case, the newly elected exclusive representative shall negotiate a new contract with the office of state employer. |
| |
(4) |
No dues or service fees may be paid to the former exclusive representative beyond those deducted for the pay period in which the certification is issued. |
| |
(5) |
Dues and service fees cannot be deducted and paid to the new exclusive representative until the requirements of the regulations on dues deductions are fulfilled. |
| (e) |
Post-election
provisions; decertification. When an exclusive representative is decertified in a unit after an election, the following conditions will be observed: |
| |
(1) |
The former exclusive representative shall immediately cease to represent the employees in the unit. |
| |
(2) |
Any primary or secondary collective bargaining agreements are immediately void and the unit members are subject to the rates of compensation and other conditions of employment applicable to other nonexclusively represented employees. |
| |
(3) |
After the end of the pay period in which the decertification is issued, the state shall not deduct dues or service fees from any classified employee or pay dues or service fees to the former exclusive representative, except dues and service fees deducted through the pay period in which the decertification is issued. |
| 6-6.4
Excluded Positions |
| (a) |
Designation. The state employer, in consultation with the appointing authorities, shall designate the confidential, managerial, and supervisory excluded positions. If the state employer intends to change the designation of an eligible position to an excluded position, the state employer shall give written notice to any affected exclusive representative at least 29 calendar days before the designation becomes effective. |
| (b) |
Review of designation. If an exclusive representative disagrees with an intended designation of the state employer, the exclusive representative may petition the state personnel director to review the designation. The exclusive representative must file its petition with the director no later than 28 calendar days after the date of the notice of intent. |
| (c) |
Procedure. If a petition is filed, the director may solicit additional information from interested persons and may hold an informal conference to discuss the intended designation. The director shall administratively determine whether a position is an excluded position. |
| (d) |
Appeal
to commission. The decision of the director is final unless the state employer, the attorney general, the secretary of state, or an exclusive representative aggrieved by the decision files an application for leave to appeal with the civil service commission within 28 calendar days after the decision. |
| (e) |
Exclusive
procedure. The procedure authorized in this rule is the exclusive procedure for resolving disputes concerning the designation of an eligible position as an excluded position. |
|
[Rule 6-6 last amended effective August 26, 2007] |
| 6-7
Dues and Fees |
| 6-7.1
Membership Dues for Exclusive Representatives |
| If agreed to in a collective bargaining agreement, the state may deduct the dues of a member of an exclusive representative through payroll deduction. Notwithstanding any contrary provision of a collective bargaining agreement, an appointing authority shall not deduct membership dues unless the employee has filed a prior, voluntary, written authorization. |
| 6-7.2
Service Fee Authorized |
| Nothing in this rule precludes the employer from making an agreement with an exclusive representative to require, as a condition of continued employment, that each eligible employee in the unit who chooses not to become a member of the exclusive representative shall pay a service fee to the exclusive representative. If agreed to in a collective bargaining agreement, the state may deduct the service fee by payroll deduction. An appointing authority shall not deduct a service fee unless the employee has filed a prior written authorization or as otherwise authorized in a collective bargaining agreement. |
| 6-7.3
Limitations on Service Fee |
| The amount of a service fee cannot exceed the employee’s proportionate share of the costs of the activities that are necessary to perform its duties as the exclusive representative in dealing with the employer on labor-management issues. The service fee may include only the costs germane to collective bargaining, contract administration, grievance adjustment, and any other cost necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues. |
| 6-7.4
Right of Fee-Payer to Object |
| An employee required to pay a service fee has the right to object to the amount of the service fee and obtain a reduction of the service fee to exclude all expenses not germane to collective bargaining, contract administration, and grievance adjustment, or otherwise necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues. Each collective bargaining agreement must provide a procedure that provides an objector with the following rights: |
| (a) |
The right to financial information sufficient to determine how the service fee is calculated. |
| (b) |
The right to challenge the amount of the service fee before an impartial decision-maker. |
| (c) |
The right to have any disputed amount of the service fee placed in escrow by the exclusive representative pending a final decision. |
| 6-7.5
Posted Notice |
| Each appointing authority shall post in conspicuous places a notice, in the form prescribed by the state personnel director, informing employees of the rights and obligations set forth in this rule. |
| 6-7.6
Accounting |
| An exclusive representative shall account for and report fees and expenses in such detail as necessary to allow employees to determine the proportionate costs of expenditures necessarily or reasonably incurred for the purposes of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues. Each exclusive representative shall provide three copies of an audited report accounting for its fees and expenses to the state personnel director annually. |
|
[Rule
6-7 last amended effective April 29, 2004] |
| 6-8
Recognition Rights for Labor Organizations |
| 6-8.1
Rights of Exclusive Representatives |
| An exclusive representative (1) has the duty of fair representation of all employees in the unit, (2) may engage in collective bargaining with the employer, and (3), when mutual agreement is reached, may submit to the civil service commission for approval a written collective bargaining agreement regarding proper subjects of bargaining. |
| 6-8.2
Limitation on Representation |
| A labor organization certified as an exclusive representative in a unit is prohibited from representing (1) any employee in an eligible position prior to being certified as the exclusive representative in the employee’s unit and (2) any employee occupying an excluded position. |
| 6-8.3
Limited-Recognition Organizations |
| Employees in excluded positions are not eligible for exclusive recognition but may join and be represented by limited-recognition organizations, unless otherwise prohibited by this rule. Employees in eligible positions in units that have not yet elected an exclusive representative may join and be represented by limited-recognition organizations. However, a limited-recognition organization shall not represent nor seek to represent an employee in an eligible position after an exclusive representative has been certified in the employee’s unit. |
| (a) |
Limited-recognition
status and payroll deduction of dues. The state personnel director shall recognize as a limited-recognition organization an organization that registers with the director and provides (1) a copy of its constitution, bylaws, or other governing documents; (2) the names and addresses of its officers; (3) proof of registration as a nonprofit corporation in the state of Michigan; and (4) proof of membership of 50 or more excluded employees. Proof of membership must be in the form of signed membership application forms. Upon submission to the office of the state employer of 50 or more appropriate dues deduction cards, such an organization has the privilege of payroll deduction of dues for members who are excluded. An employee cannot have the privilege of payroll deduction of dues to more than one organization. |
| (b) |
Limited
recognition rights. An organization granted limited recognition under this rule also has the following rights: |
| |
(1) |
The right to express the interests of its members. |
| |
(2) |
The right to represent its members in civil service grievance hearings and technical appeals, when requested by the member. |
| |
(3) |
The right to be heard by the employer, the employment relations board, and the civil service commission. |
| |
(4) |
The right to union leave for union activities as may be provided in the regulations. |
| (c) |
Limitations
for certain excluded employees. |
|
(1) |
Limited membership permitted. The following employees may join a limited-recognition organization but are prohibited from serving in any official capacity, including, but not limited to, serving as an officer, agent, or representative of the limited recognition organization: |
|
|
(A) |
An appointing authority who is a classified employee. |
|
|
(B) |
An excluded employee occupying a position in human resources under the direction of an appointing authority, other than the state personnel director. |
|
(2) |
Membership prohibited. Notwithstanding subsection (c)(1), the following employees are prohibited from joining or being represented by a limited-recognition organization: |
| |
|
(A) |
An employee of the civil service commission. |
|
|
(B) |
An employee of the office of the state employer. |
|
[Rule 6-8 last amended effective August 26, 2007] |
| 6-9
Negotiations and Impasse |
| 6-9.1
Primary Negotiations |
| The state employer, acting in consultation with principal departments, the attorney general, and the secretary of state, shall direct primary negotiations on behalf of the employer. The state employer shall coordinate all negotiations and administration of collective bargaining agreements with the appointing authorities. Upon request of the attorney general or the secretary of state, the state employer shall reserve all noneconomic issues in the office of attorney general or department of state for secondary negotiations. The parties may coordinate bargaining between the state employer and more than one exclusive representative. |
| 6-9.2
Timing of Primary Negotiations |
| The state personnel director shall annually establish a time frame for the conduct of primary negotiations and impasse resolution. The time frame must coordinate with the legislative budget cycle and the constitutional provisions governing the timing of increases in rates of compensation for classified employees. If the collective bargaining parties cannot reach agreement by the date established by the director, the parties may refer the matter to the impasse panel for resolution. If a newly-certified exclusively representative cannot complete bargaining for a new agreement before a new fiscal year begins, the rates of compensation for its members are determined in the same manner as nonexclusively represented employees. |
| 6-9.3
Failure to Request Impasse |
| If the parties have not reached a voluntary agreement or timely requested impasse panel assistance by the date an existing collective bargaining agreement expires, the civil service commission may require the parties to refer unresolved issues to the impasse panel. The commission shall provide the parties written notice of its intention to consider a mandatory referral at least 28 calendar days in advance of its consideration. |
| 6-9.4
Impasse Resolution |
| If either party files a timely request for impasse panel assistance, the parties are eligible for impasse panel assistance. If neither party files a timely application, the parties are ineligible for impasse panel assistance, except as provided in rule 6-9.3. If the parties are ineligible for impasse panel assistance, the state personnel director may require the use of mediation, advisory arbitration, or fact-finding provided in the regulations. If the civil service commission approves increases in the rates of compensation too late to be included in the governor’s budget, the increases must be submitted under the waiver of notice provisions of article 11, section 5, of the constitution. |
| (a) |
Impasse
panel procedures. The impasse panel is governed by the civil service rules and regulations. |
| |
(1) |
Notice of impasse. The state personnel director shall notify the employment relations board if a party submits a request for impasse panel assistance. |
| |
(2) |
Required submissions by the parties. The state personnel director shall establish a date by which the parties must submit the following to the impasse panel: |
| |
|
(A) |
A joint certification of the text of all contract provisions to which the parties have tentatively agreed. |
| |
|
(B) |
A joint certification of the provisions over which the parties have negotiated in good faith but have failed to reach a proposed agreement. |
| |
|
(C) |
A submission by each party of proposed contract language for those provisions certified at impasse in subsection (B). |
| |
(3) |
Date of recommendation. The state personnel director shall establish the date by which the impasse panel must submit its recommendation to the civil service commission. |
| |
(4) |
Establish impasse panel. Upon notice by the state personnel director, the employment relations board shall designate the members of the impasse panel. The panel shall consider the submissions of the parties and shall make a recommendation to the civil service commission. |
| |
(5) |
Coordination. The impasse panel shall simultaneously consider all unresolved contract disputes certified at impasse on a coordinated basis in all bargaining units as prescribed in the regulations. |
| |
(6) |
Recommendation. The impasse panel shall send its recommendation to the civil service commission on or before the date established by the state personnel director. |
| |
(7) |
Voluntary agreement. The parties may resolve their impasse by voluntary agreement at any time before the civil service commission takes final action on the recommendation of the impasse panel. |
| (b) |
Impasse
panel criteria. The parties shall address, and the impasse panel shall consider, the following criteria, if relevant: |
| |
(1) |
Stipulations and agreements. |
| |
(2) |
The interests and welfare of the public. |
| |
(3) |
The financial condition and ability of the state. |
| |
(4) |
Comparison of the rates of compensation and other conditions of employment of classified employees with other governmental and private sector employees. |
| |
(5) |
Appropriate economic indicators and forecasts. |
| |
(6) |
Total compensation, including fringe benefits, presently received by employees. |
| |
(7) |
Such other factors that are normally taken into consideration in determining rates of compensation and other conditions of employment. |
| 6-9.5
No Disclosure |
A mediator cannot be required to disclose information relating to a particular dispute acquired while mediating the dispute under this rule. |
| 6-9.6
Negotiated Grievance Procedures |
| (a) |
Negotiated grievance procedure. An exclusive representative and the employer may agree upon a procedure for the resolution of grievances of exclusively represented employees against the departmental employer, subject to the limitations established in law, including the civil service rules and regulations. |
| (b) |
Jurisdictional
limitations on arbitrators. |
| |
(1) |
Notwithstanding any provision of a collective bargaining agreement, the authority of an arbitrator or other fact-finder under a procedure authorized in a collective bargaining agreement is subject to and subordinate to the limitations and restrictions on subject matter and personal jurisdiction imposed by the civil service rules and regulations. |
|
(2) |
Notwithstanding any provision of a collective bargaining agreement, an arbitrator or other fact-finder acting under a procedure authorized in a collective bargaining agreement is subject to the superintending control of the state personnel director, subject to appeal to the civil service commission, when the director is exercising the authority granted in rule 6-3.5 [Modification of Agreement
or Arbitrator's Decision]. |
| |
(3) |
None of the following disputes can be adjudicated in a grievance procedure authorized in a collective bargaining agreement, but can only be adjudicated in a civil service forum under the exclusive procedures provided for in the civil service rules and regulations: |
| |
|
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