Stewards' ManualStewards' Manual Sat, 07/14/2018 - 2:58pm
What is MAPE?What is MAPE?
A brief history and structure
MAPE is the Minnesota Association of Professional Employees, an independent union of primarily State of Minnesota professional employees. There are approximately 13,000 members. As a member of Unit 214, the state’s “General Professional Unit, you are represented by MAPE in contract negotiations and other activities related to your employment with the State of Minnesota.
MAPE is also a membership organization. While non-members in the bargaining unit are also represented by MAPE, and therefore, contribute their “fee-payer” share of dues for this service, only members have voting privileges and the ability to participate fully in the governance of their bargaining unit representative, MAPE. Only members can vote on whether to accept the contract negotiated with State of Minnesota every two years. In addition, only members have the right to vote in MAPE elections, run for office, or vote on other issues affecting the membership.
The MAPE collective bargaining agreement in conjunction with the Public Employment Labor Relations Act (PELRA) and other relevant laws, establishes the terms of your employment and your fellow professional employees who work for the State of Minnesota.
Who MAPE represents
As stated above, MAPE represents state employees in the “General Professional Unit,” which includes those professionals who are not managerial, supervisory, or academic. MAPE-represented state professionals belong to more than 400 classifications and work throughout Minnesota and occasionally out of state in all segments of state service.
How MAPE came to be
• In 1972, Minnesota state government created the Public Employee Labor Relations Act (PELRA), which codified and standardized the rules governing public employment in Minnesota.
• PELRA established in law the rights of public employees to organize into unions. Prior to PELRA, public employees in Minnesota lacked these rights.
• Initially, state professional employees organized under AFSCME, the Association of Federal, State, County, and Municipal Employees.
• In 1980, state professional employees elected to decertify their association with AFSCME and form an independent union, the Minnesota Association of Professional Employees, MAPE.
• In 1999, amidst much turmoil in the union, MAPE faced a representation election, a challenge to whether MAPE would continue to represent State of Minnesota professional employees. MAPE won the election; thereby, preserving its role as the exclusive representative of State of Minnesota professional employees.
• Arguably, MAPE as we know it came to be in 2001 when MAPE employees went on strike for the first time in their history. While we did not get everything we wanted, we did preserve health care benefits and sent a message to the state that has benefited us in subsequent contract negotiations. The strike clearly strengthened MAPE as an organization.
What MAPE does
Article II of MAPE’s Constitution states the following:
The purpose of MAPE is to represent its members with respect to all terms and conditions of employment, to promote the welfare of the membership, and to advance the interests of all governmental employees. MAPE is dedicated to the principle of fair and equal representation obtained by democratic methods.
Indeed, this stated purpose is the basis for all MAPE activity, much of which is described below. And although fee payers are technically non-members, they are fully represented by the union when it comes to contract enforcement.
Governance: from Delegate Assembly to locals
The highest decision-making authority within MAPE resides in the Delegate Assembly. Delegates elected by each of the 21 regions gather on an annual basis to establish MAPE’s policy, direction, and budget for the ensuing year. The Delegate Assembly has the authority to create MAPE policies, approve budgets, levy dues, amend the governing documents, and adopt procedures for statewide, regional and local officer elections. In addition, only the Delegate Assembly has the authority to amend the constitution.
Board of Directors
When Delegate Assembly is not in session, the Board of Directors, composed of a director elected from each of the 21 regions plus the Statewide Officers, is responsible for the administration and operation of the union. It has all of the legislative and policy-making authority of the Delegate Assembly, except the power to amend the Constitution.
The five Statewide Officers compose the Executive Committee: President, 1st Vice President, 2nd Vice President, Secretary, and Treasurer. The 1st Vice President provides leadership in areas of contract enforcement, and the 2nd Vice President concentrates on organizing membership.
Day-to-day coordination of MAPE activities resides with the President and the Executive Director. The Executive Director is an employee of the union and supervises and directs the activities of the staff.
During the President’s term of office, he or she is on “lost-time” status -- on leave from his or her state of Minnesota job while working for MAPE. MAPE’s Bylaws establish the President as chair of the Executive Committee, the Board of Directors, and the Delegate Assembly. The President can call special meetings of the Board of Directors or Delegate Assembly and participate in statewide standing committees, departmental meet and confers, statewide labor management committees, negotiations, and political action. The President also makes committee appointments, including chairs, which are generally subject to Board approval.
Regions and locals
As stated earlier, MAPE has established 21 regions of the state. Each region has an elected director who serves on the Board of Directors. Regions’ membership numbers are balanced to ensure fair representation. Regions are further subdivided into locals. Locals are geographic units as described in the MAPE Bylaws.
The structure of locals within a region varies. The composition of locals has been determined by the number of MAPE members in the region and is also influenced by the nature of the Region. Some regions are large and have one Local representing the members within the area. While in the tightly populated Regions in St. Paul, a region may be a matter of few blocks with one large Local. Locals are identified by three- or four-digit numbers with the first one or two digits representing the region.
A local is the “governing” unit of MAPE most connected to the majority of MAPE members. It is the level where most contact and communication with members takes place. Elaine Bernard, labor activist and scholar, states the local is where members (1) join the union, (2) experience the union, (3) become involved in the union, and shape the character of the union.
A local is also a financial unit with its’ own budget and funds. Each local receives a portion of members’ dues to fund Local activity.
MAPE Bylaws provides the following guidance regarding a Local’s purpose and activity:
A local’s purpose is to provide for direct delivery of member service through regular membership meetings, Local officers and Local stewards. Locals provide grassroots membership direct access to information and services such as contract negotiations, grievance handling and MAPE-provided training and education.
The MAPE Bylaws state that each Local has at least five executive offices (President, Vice President, Secretary, Membership Secretary, and Treasurer) and can elect other officers as necessary.
The Bylaws further indicate that Stewards are also organized around the Local structure. Paralleling the Director, each Region has a Chief Steward who organizes and communicates with the Local Stewards from the Region. Chief Stewards also convene in the Employee Rights Committee (ERC), chaired by the statewide 1st Vice President. The ERC is the state-wide body of the Steward system, and among other things, hears appeals of MAPE-represented employees whose grievances the MAPE’s Arbitration Team has declined to take to Arbitration.
Stewards work with Business Agents, paid staff of MAPE, to enforce the contract through processing grievances, representing employees in investigations, and working with the employer when solutions mutually agreeable to both sides can be identified. Stewards also perform organizing and communication functions.
Meet and confer
The Legislature recognizes that professional employees possess knowledge, expertise, and dedication which is helpful and necessary to the operation and quality of public services and which may assist public employers in developing their policies. It is, therefore, the policy of this state to encourage close cooperation between public employers and professional employees by providing for discussions and mutual exchange of ideas regarding all matters that are not terms and conditions of employment. (Minnesota Statute 179A.08, subd. 1). The ability and insight of professionals warrants specific statutory language within PELRA. In subdivision 2, PELRA sets into law the “meet and confer” process.
The professional employees shall select representatives to meet and confer with a representative or committee of the public employer on matters not specified under section 179A.03, subdivision 19, relating to the services being provided to the public. The public employer shall provide the facilities and set the time for these conferences to take place. The parties shall meet at least once every four months.
The MAPE President, with Board approval, appoints interested members to serve as MAPE representatives on departmental meet and confer teams. These teams, along with a business agent, meet with a department’s commissioner and upper management to discuss issues of mutual concern on a quarterly basis or as needed. Topics have included flextime policies, training policies, workload, pending legislation, budget concerns and classification issues.
In addition, the MAPE contract extends the meet and confer concept (Article 32) to the local level so that consultations between MAPE professionals and management in the workplace can “deal with mutually identified issues through a problem - solving approach.”
Every two years, MAPE meets and negotiates a contract with the State of Minnesota that establishes certain terms and conditions of employment for all MAPE represented employees, including pay and benefits such as health care insurance and retirement accounts. The contract is a negotiated agreement between the employer and MAPE. As such, it provides a written guarantee regarding key features of our employment.
Each MAPE region elects a representative member to the MAPE Negotiations Committee. The Statewide President may also appoint up to three at-large members (with certain restrictions) and appoints the Negotiations Committee chair (s). All MAPE members have the opportunity through surveys, feedback to their region’s Negotiations Committee representative, and regional meetings to help determine MAPE’s priorities in negotiations with the State of Minnesota.
The Negotiations Committee works in partnership with MAPE staff. Together they form the “negotiations team,” and engage in direct negotiations with the State of Minnesota representatives selected by the governor to form his or her team.
In addition to the main contract, numerous contract supplements are also negotiated by MAPE members working with MAPE staff. The supplements set terms and conditions of employment specific to state departments and agencies.
Contract settlements must be approved by a vote of MAPE membership and by the Legislature.
With the contract in place, MAPE ensures contract enforcement both through agreement with the employer and through dispute with the employer. The contract provides a “Grievance Procedure” for resolving certain kinds of disputes between the State of Minnesota as the employer and MAPE—namely, disputes or disagreements “as to the interpretation or application of any term or terms of this agreement (contract).”
One important function of stewards is contract enforcement. Working with business agents, stewards engage represented employees to understand workplace problems and when necessary initiate the grievance process to address discrepancies between the contract and the employer’s workplace behavior. These disputes often emerge from disciplinary action against specific employees but may involve other violations of the contract by the employer, and may involve a group of employees.
MAPE’s full-time business agents and trained stewards work together to advocate for represented employees in the grievance process. This process includes representing employees in investigations, in grievance hearings, and through arbitration if necessary.
MAPE’s legislative affairs staff works to protect MAPE represented employees’ interests by monitoring proposed legislation, opposing legislation detrimental to MAPE employees, and facilitating the passage of legislation favorable to MAPE represented employees and to successful state operations. The Government Relations Committee (GRC), comprised of MAPE members, assists the legislative affairs staff with these tasks. They also develop MAPE legislative positions and priorities consistent with members’ interests.
MAPE’s Political Action Committee (PAC) screens, endorses and supports candidates for state office who support MAPE positions, priorities, and objectives.
Other external relations
MAPE communicates with decision-makers and voters through a number of methods including press events, press releases, and purchased media. To advocate for MAPE priorities, MAPE works with other labor and non-labor organizations. These organizations share MAPE’s values and interests, and strategic partnerships are formed to effectively advance MAPE’s objectives.
Code of conductCode of conduct
Approved by the MAPE Employee Rights Committee (ERC) 10/16/02
A MAPE steward must represent loyalty to the organization and its membership at all times. This accountability supersedes any conflicting loyalty with the employer, interest groups, other elected office or committee appointment.
Stewards must avoid conflict of interest with respect to their role as Steward as defined by MAPE Constitution and Bylaws, the MAPE Contract, MAPE Policy Manual, state and federal laws.
A) MAPE stewards, as required by law, will fairly and equally represent all MAPE members. If there is a conflict of interest, the Steward will make every effort to ensure that the member(s) is/are represented fairly.
B) MAPE Stewards will respect data privacy and will not divulge or discuss individual member information regarding grievances with anyone other than MAPE certified Stewards or MAPE staff directly involved with administering the MAPE contract.
C) Chief Stewards will respect decisions made by vote or consensus by the ERC as a body or the chair of the ERC. Individual positions of ERC members will not be discussed outside the ERC.
Contract languageContract language
Article 7 of the MAPE contract addresses Association Rights, and in Section 7 of the article (Association Security), the contract recognizes stewards and the communication activities in which they can engage without the loss of pay: posting of official MAPE notices on bulletin boards, distribution of Association newsletters, and official communication with the Appointing Authority (i.e. management).
Article 8 grants any employee who is called to an investigatory meeting that may result in discipline the right to Association representation. In practice, the representative will often be a steward. In Article 9, the steward’s role in representing employees is described, and stewards are granted release time, within certain parameters, during work hours to investigate and present grievances.
Duty of fair representationDuty of fair representation
MAPE, as the exclusive bargain unit representative for general State of Minnesota professional employees, takes on a responsibility to fairly represent all such employees, regardless of their membership status and personal attributes. As a steward — in other words as an official representative of the union — you take on the same responsibility.
That means that regardless of your personal opinion of the affected employee, you must act in good faith to represent that employee to the best of your ability. Further, it means that a steward does not get to choose which employees that he/she will represent. If an employee has legitimate concerns, it is your duty to advocate for him/her. It does not mean, however, that you must necessarily do what the represented employee demands, must take all grievances to the arbitration level, or must file a grievance every time a represented employee registers a complaint. In other words, you as a steward are bound by the duty of fair representation but not to the point that you suspend your own judgment as to what the best course of action is for the represented employee in the specific situation that he or she finds herself.
Failure to adhere to the duty of fair representation is a serious matter as it can leave the union liable for damages, including for discrimination.
Equality principleEquality principle
Stewards are afforded special status when they engage in their official union role under what is commonly referred to as the equality principle.
In short, stewards obtain equal status to management when acting in an official union capacity. That means that conduct that might be considered grounds for discipline — insubordination for instance — must be tolerated by management when an employee is performing in their role as a steward. Adversarial and spirited exchanges of views and/or debates can be part of the process when a steward communicates with management. While granting a steward the status of an equal opposing party to management, the equality principle does not mean that a steward can do whatever he/she wants, namely engaging in insulting, threatening or abusive behaviors. If management inappropriately disciplines a steward acting in an official capacity, they can be sanctioned for engaging in an unfair labor practice.
Closely related to the equality principle is the equal standards principle, which prohibits holding stewards to higher standards than other employees since they “should know better” than others.
Many roles of a MAPE stewardMany roles of a MAPE steward
Before considering the specifics associated with being a MAPE steward, it is useful to think of stewarding in the broadest and simplest term. A steward is essentially a union representative in the work place.
The Steward’s Multiple Roles
To be a union representative in the workplace involves playing multiple roles: advocate for employees, communicator with management, information source for employees, enforcer of the contract, and the willing listener for beleaguered employees.
As an advocate for employees, a steward may be called on to represent and support employees when they are investigated under threat of being disciplined, represent employees in grievances, help employees appeal inaccurate position descriptions and performance reviews, and insure that working conditions are safe, fair, and equitable.
As a communicator with management, the steward may sometimes serve as the “official” voice of the union. Stewards help to resolve conflicts through reasoned and sustained dialog while at other times serving as a dissenting voice when management oversteps its bounds or pursues foolish courses of action.
As an information source for employees, the steward may disseminate official communication from MAPE, educate employees on the language and meaning of the contract, and facilitate useful communication between management and MAPE represented employees.
As an enforcer of the contract, the steward monitors the work place to make sure that the mutually agreed to contract between MAPE and the State of Minnesota is followed and also ensures that individual employees’ and the union’s rights under the contract are not violated.
Finally, there are times when the steward simply listens to the concerns of the beleaguered employees without necessarily taking action on their behalf. The frustrations of the work place can be many: the steward can play an important and useful part in helping employees vent their frustrations and explore solutions for problems without taking official action.
Stewarding as Shared Endeavor and a Learning Process
While this may seem a bit overwhelming, remember that a steward does not operate alone. Business agents, professional employees of MAPE responsible for multiple roles similar to stewards, are valuable partners and can be sources of information, guidance, and consultation. Each of the 21 MAPE regions has a chief steward, who often has significant stewarding experience and can similarly provide information and guidance. Fellow stewards both in your work place and outside of it can also help you to address the demands of being a MAPE steward. In addition, MAPE has staff charged with specific tasks to facilitate the day-to-day operations of the organization. Finally, elected officials at the state, region, and local levels also serve as official MAPE representatives whose duties and roles will complement and overlap with stewards’.
It is important to remember that stewards are not expected to know and retain all information and resources. Just as a librarian is not expected to “know” everything in a library, a steward cannot possibly be fully cognizant of everything related to union activities at all times. Rather, for a steward, the important knowledge is how to access the information necessary to be an effective union representative in the work place. When in doubt consult fellow stewards, the chief steward, business agents, other appropriate staff, and other MAPE activists. Do not be afraid to tell employees that you will need to get back to them if you need to consult others or do research to adequately address their concerns. If a situation calls for expertise beyond your own, call in and defer to the business agent or an experienced steward, including the region’s chief steward.
Moreover, a steward should recognize that the steward learning process is largely experiential. Even highly experienced stewards encounter new situations and must adapt to them - thereby acquiring new knowledge and skills. While it is a good idea to familiarize yourself with the contract — both as a steward and an employee of the State of Minnesota — you will develop specific knowledge of contract articles and sections as the need arises and in consultation with other union representatives. Again, the general principle is to know where to find the information you need, not necessarily to have it memorized.
Representation During an Investigation
The details of your role in an investigation are described elsewhere in this manual. Please note that as this is sometimes the first contact you have with a member in trouble, your preparation of the member for this grueling procedure is crucial.
Grievance handling is covered elsewhere in your training materials. However, no discussion of stewarding could be complete without addressing the handling of grievances. Indeed, many employees think of stewarding as primarily being about the grievance process. There are two important principles when it comes to representing employees in the grievance process - the Duty of Fair Representation and the Equality Principle.
To Grieve or Not To Grieve
The filing of grievances constitute a primary tool for enforcing the contract, but it is worthwhile to remember that not all conflicts in the workplace necessarily require the need for a grievance. Sometimes, a conflict may not be a matter of major disagreement about the meaning of a contract clause or an outright violation of contractual language.
Stewards should be willing to engage management in discussion about work place problems. Sometimes a simple misunderstanding can be resolved with a frank and sincere discussion that identifies a mutually agreed-to solution. At other times, filing a grievance will force management “to the table,” where a solution can be identified before going to a higher step or arbitration. The point e is to not think of grievances as ends in themselves but as tools to arrive at resolution of work place problems, while, of course, meeting the duty of fair representation.
On the other hand, there will be times when management digs in and maintains an unreasonable position despite all union attempts to find common ground. Likewise, disciplinary action almost always requires the filing of a grievance if management refuses to reconsider. Make no mistake - grievances should be filed in these circumstances.
Steward as Organizer - adapted from Steward Update Newsletter
Union building in the most important duty of any union leader. A union is a member organization, and it cannot survive unless we are constantly working to engage our members and train the next generation of leaders.
The list of steward duties can seem endless, but the majority of a steward’s responsibilities fall under the umbrella of organizing. A steward listens to co-workers, helps them solve problems; speaks on behalf of those who face injustices, and mobilizes people to address problems in the workplace. Here are the basic tasks associated with organizing.
1. Meet and ask.
It is absolutely imperative you introduce yourself and the union to every new employee in your workplace as soon as possible. Do not assume the new employee knows she or he is in a union, or that she or he understands what being in a union means. It is critical to walk through the basics such as explaining what the union does and why she or he should join. Surveys show a worker develops an opinion about a union within the first six to twelve months on the job.
2. Educate your members.
Nobody wants to be told what to think, but it is important the union be a source of information and analysis for its members. You play a valuable role in providing reliable information to your co-workers.
3. Recruit volunteers.
Too often a local union relies on a small number of dedicated members rather than attempting t to increase the pool of people who can be asked to take on a task. Building the union means getting people engaged. It is best to start with small tasks: food committee, meeting set up, or good and welfare.
4. Organize and mobilize.
Stewards are the key job action leaders in every workplace. If an important issue arises at your job site, you need to be able to identify the informal leaders in every work group and coordinate with them to get information to members and get members involved in an appropriate action.
Contract Enforcement and The Role of the Union Steward
The key to effective contract enforcement is the work and activity of the union steward at each work location. The steward enforces the contract, protects the rights of co-workers, and continues the collective bargaining process between the union and management on a daily basis.
The most comprehensive and clearly written grievance is of little value to employees if dedicated and well-trained stewards do not advocate for it, and business agents do not use it intelligently and aggressively.
Tips to help you keep your eyes on the process and gain justice for members:
• Encourage members to submit all appropriate grievances.
• If a member has an obvious grievance and will not file it, find out why.
• If a member has a complaint, not a grievance, take the time to explain why it is not a grievance.
• Do not make promises you cannot keep.
• Know your MAPE agreement.
• Obtain all the relevant facts about the grievance and record them.
• Make sure the grievant knows what the issues are.
• Be honest with the grievant.
• Separate personal vendettas from real grievances.
• Keep the grievant informed at every step.
• Try to settle the grievance early in the process.
• Try to retain your member's confidence at all times.
• Discourage members from processing their own grievances or settling privately with
• Take the time to listen to the grievant.
• Keep written records of all conversations. You will need them.
• Know your rights. You are management's equal in all matters relating to the contract and the union-employer relationship.
Investigations and Investigatory Interviews
MAPE stewards can often be called on to represent employees who are being interviewed by the employer as part of an investigation. If the interview could lead to discipline, then the employee has a right to union representation by virtue of what are commonly called Weingarten rights.
Weingarten rights are named after the Supreme Court decision in NLRB v. Weingarten Inc. (1975), which established that union represented employees have a right to union representation at interviews that could lead to discipline.
The employee must specifically request union representation before the employer is required to provide it. When in doubt, it is always safer for the employee to request representation.
Once the request for representation has been made by an employee, the employer has three options:
- Stop the meeting, call the steward and then continue the meeting with the steward present.
- Tell the employee that the meeting will be terminated unless they agree to proceed without a steward.
- If the steward is unavailable, stop the meeting altogether and schedule it for a later date and time.
Accommodation of a request for representation is required when the employee has a reasonable belief that the investigatory interview could result in his or her discipline. In most cases, representation is granted if an employee requests it. A general investigation that does not target specific employees, however, will not necessarily provide the employee Weingarten rights. For instance, in the case of missing property form a state workplace, a supervisor asking general questions of all employees about the property’s whereabouts would not necessarily trigger Weingarten rights. But if an employee was directly responsible for securing that missing property and is being asked specific questions about its location, then Weingarten rights can be properly invoked—one can reasonably suspect that discipline could be imminent.
Employees should be reminded that a request for union representation is not an admission of guilt. All employees would be wise to have a steward or business agent present at an investigatory interview. Having union representation means having support, having a witness, and having an advocate. Employees should always clarify the nature of meetings with supervisors that become one- way interrogations and request union representation if they believe that they are being investigated.
Since investigations can arise suddenly in the workplace, MAPE stewards should be prepared to represent employees who have been called to an investigatory interview.
Typically the employer will supply a “Tennessen Warning” to the employee who will be questioned in an investigatory interview. The Tennessen Warning must advise the employee of (1) why the data (the interview responses) is being collected; (2) how the collecting agency intends to use the data; (3) what the consequences of refusing to answer questions are and whether the employee is legally required to supply the data; (4) what if any discipline might result from refusing to respond to questions; and (5) what other persons or agencies are authorized by law to receive the data.
A Tennessen Warning is not an inherently union related phenomenon. It is a requirement of the Minnesota Data Practice Act (Minnesota Statute 13.04 subd. 2) that is triggered when an individual is requested by a governmental entity to supply private or confidential information about themselves. The necessity for a Tennessen Warning is triggered when an individual is asked by a governmental entity to supply private or confidential data concerning themselves, regardless of the context.
Perhaps the most important element of the Tennessen Warning is the requirement that employees being interviewed be told of the consequences of refusing to provide information that is requested of them. If employees are advised that they will be disciplined for refusing to answer questions, statements made under any threats of such discipline (duress) cannot be used against the employee in a subsequent criminal proceeding. Conversely, if the employee is told that there are no consequences for refusing to answer questions, then there is no coercion. Any statements would be admissible in court against the employee at a later date.
Failing to issue the warning is or can be a violation of the Data Practices Act, and can create the basis for an argument that information obtained without the benefit of a warning should be excluded from evidence. While important, the Tennessen Warning is not an issue that supersedes all other issues. However, a proper Tennessen Warning should answer the basic questions regarding the nature of the investigation, but a Steward should be prepared to ask some basic questions.
Steward’s Role in Investigatory Interviews
An investigatory interview is called by the employer and, as such, the meeting “belongs to employer.” The employer is within its right to ask questions of the employee.
The steward’s level of participation in the meeting depends to some extent on the competence of the investigator conducting the interview. If the investigator conducts the meeting correctly, the Steward may only ask some routine questions and occasionally ask for clarification of a question for the employee. If, however, the investigator is sloppy or incompetent, the steward may have to intervene repeatedly to guarantee that the represented employee’s rights are not violated.
Stewards can typically do the following in an investigatory interview when appropriate:
- Insist prior to the questioning that the employer give some indication of what is being investigated (e.g. theft, stakeholder complaints, tardiness, etc.).
- Consult with the employee in private prior to the questioning or at any time during the meeting (breaking during the meeting for private consultation is commonly called “caucusing”).
- Speak during the meeting. Although the steward has no right to bargain over the purpose of the meeting, he or she can object to irrelevant, offensive, or overly general (“fishing expedition”) lines of questioning.
- Ask the interviewer to clarify a question so the employee understands the question. Confirm that an employee understands a question has been asked by the interviewer by directly consulting the employee.
Before allowing the questioning to proceed, the Steward should make sure that he or she possesses satisfactory answers to these basic questions: (1) Is this an investigation that may lead to discipline? (2) Is there a possibility of criminal charges? (3) If the employee refuses to answer questions, is he or she subject to discipline? (If yes, state “for the record” that the employee will be answering questions under duress and compulsion); and (4) What is the nature of this investigation?
If the employer indicates that criminal charges are a possibility, then a steward should immediately call for a recess and advise the employee to seek legal counsel.
For the employee being investigated, the presence of a Steward at an investigatory meeting can be helpful in many ways. A steward can sometimes:
- Help a fearful or inarticulate employee explain what happened.
- Stop an employee from losing his/her temper and making the situation worse.
- Help prevent supervisors from giving a false account or "spinning" the employee's answers.
- Serve as a witness and recorder of the meeting.
- Help keep the supervisor on track and prevent a “fishing expedition” line of questioning.
- Raise extenuating circumstances.
An investigatory meeting is the employer's meeting. Be respectful, just as you, the steward, expect the employer to be respectful at the union driven meetings like grievance hearings. That said, remember the "equality principle" which sets your authority as a steward as equal to the employer. Your obligation is to represent the employee interests to the best of your ability and as an equal to management.
Prepare the Employee in Advance for the Investigation
If you are contacted to represent an employee in an investigation, meet with that employee as soon as possible. They are going to be fearful and your role is to try and give them some sense of control over an unsure situation by sharing information. Most investigations unfold in a similar way, so sharing the details of the process and how he/she should respond will help to reduce their apprehension. Try and determine with the employee what he/she thinks might be the reason for the investigation. He/she may know what it is about or he/she may not. It may help the employee to talk about it.
Give the following information and advice:
- At the beginning of the investigatory hearing, you will likely be offered a Tennessen Warning and asked to sign it. Sign it, and ask for a copy.
- A Tennessen Warning exists because of Minnesota Law, specifically the Minnesota Data Practices Act. Minnesota Statute 13.04, subd. 2.
- The necessity of a Tennessen Warning is triggered when an individual is asked to supply private or confidential data concerning themselves.
- In the case of an investigation, the Tennessen warning will outline why the data is being collected, who will have access to it, and how the data collected will be used.
- You will be asked questions regarding the nature of your job and eventually they will lead into questions related to why they are conducting this investigation.
- Tell the truth to the best of your recollection. Do not lie.
- Do not volunteer more information than is necessary to answer the question. Yes and no answers are perfectly acceptable. Do not ramble.
- Do not feel pressured to make something up in order to answer a question. “I do not remember,” is the answer appropriate when you do not recall the information for which you are being asked.
- Do not answer questions that are not clear to you. Make the investigator clarify any question that you do not understand.
- Try to keep your emotions in check. Getting angry or defensive could hurt your case.
- As your steward, I will be taking notes, but feel free to jot down anything you want to talk with me about later or at a break.
- At any point that you feel you need a break or want to consult with me, state your desire for a break. As your steward, I may call for a break to talk with you or if I feel you need it.
- At the close of the investigatory hearing, formally request a copy of your interview statement.
- As your steward, my role is not to mount a defense (that will come later if discipline is imposed and a grievance is filed). I will be there to take notes, consult with you, help keep the investigator away from fishing beyond the scope of the investigation and to force clarity at the start of the questioning. To do that I will ask the following questions:
- What is the nature of this investigation? (Upon hearing something that is a surprise to you, I will call for a caucus with you to get the back story).
- Is there a possibility of criminal charges? (If the answer is yes or maybe, I will advise the employer that the investigation should be re-scheduled until you secure legal counsel).
- If the employee refuses to answer questions, is he or she subject to discipline? (If yes, I will state “for the record” that the employee will be answering questions under duress and compulsion.)
- After the investigation is completed, I will meet with you to debrief and talk about possible “next steps” on the part of the employer and the response from the union based on those actions.
- It may take several days or even weeks before we hear anything from the employer. During that time, try to remain calm and continue to do your job to the best of your ability. When we hear from the employer, we will meet again, but I am available to meet with you whenever you want to talk.
Just cause: Seven tenetsJust cause: Seven tenets
Article 8, section 1, Discipline and Discharge, of the MAPE/State of Minnesota Agreement states:
“Disciplinary action may be imposed on employees only for just cause and shall be corrective where appropriate.”
Most of the grievances filed by unions on behalf of their members are disputes over the just cause principle as it applies to disciplining an employee. What does just cause mean?
In determining just cause an arbitrator searches for the reasonableness and fairness to any disciplinary action. Was the employer’s decision to discipline right and fundamentally fair? It is generally agreed that seven basic questions need to be answered in the affirmative in order for a proper disciplinary action to have taken place. A “no” answer to one or more of these questions can weaken an employer’s case.
Did the employer give the employee forewarning or previous knowledge of the possible consequences of the employee’s disciplinary conduct?
- IS THE RULE OR ORDER REASONABLE?
Were the employer’s rules or managerial orders reasonable and conducive to:
(a) the orderly, efficient, and safe operation of the employer’s business?
(b) the performance that the employer might properly expect of the employee?
Did the employer, before disciplining the employee, make an effort to determine if the employee violated or disobeyed a rule or order of management?
- FAIR INVESTIGATION
Was the employer’s investigation conducted objectively?
During the investigation did the employer discover substantial proof that the employee had violated the rule or order?
- EQUAL TREATMENT
Has the employer applied rules, orders, and penalties evenhandedly and without bias to all employees?
Was the discipline reasonably related to:
(a.) the seriousness of the employee’s proven offense?
(b.) the employee’s service record?
Procedures for filing a grievance
When you are in the worksite serving as a steward, it will not be uncommon for co-workers to come to your desk to ask questions about the contract or to ask about filing a grievance. If you are in the middle of some work that needs to get done or it is not a good time for you, you should not feel hesitant to request an appointment so that your schedule is not disrupted.
After you are trained as a steward, you are, of course, not expected to know all the answers to questions about the contract. You should not hesitate to ask for assistance from a MAPE business agent or your Chief Steward any time a question is not clear or if the answer is not readily apparent. You can simply tell the person that you will get answers to his/her questions and get back to them. If you feel it would be more expedient, you may simply have them call the MAPE office for further assistance.
When you have been given information that appears to be a contract violation, you should not hesitate to call for assistance to determine what contract article(s) should be cited and to get the facts documented for the Business Agent to easily file the grievance within the allotted time frame.
A formal grievance will be given a MAPE internal system generated identification number at the time the Business Agent files the grievance.
There is more than one type of grievance:
- Informal: an employee who has a grievance may (or have a steward) bring it to the supervisor’s attention orally indicating that it is a grievance. If the matter cannot be resolved in this manner, it should immediately be taken to the formal process. This informal process does not change the timelines for filing a formal grievance.
- Formal: the grievance is formalized by reducing it to writing and having been filed by the business agent with the appropriate supervisory person and HR. This filing must occur within the 21-calendar-day timelines as described in Article 9. This action will begin the 10-calendar-day employer timeline for responding to a grievance meeting request.
What happens if the employer does not respond?
- If the employer fails or refuses to respond to a meeting request within ten (10) days, the union can conclude that the grievance is denied at that level and move the grievance to the next step. It is wise to keep a tickler file to remind you when the ten (10) calendar days expire.
- When the union concludes, after ten (10) calendar days that the grievance is denied, it then has ten (10) days to move it to the next level. This is done by presenting or mailing the grievance form to the next appropriate level supervisor, i.e., central personnel office, warden, local personnel office, chancellor, executive director, commissioner.
Grievance fact sheet:
It is important to note that you are only asked to conduct responsibilities which you are comfortable with. You will not be expected to handle issues without assistance. Whenever you want the chief steward or another more experienced steward or the business agent to help, assistance will be provided upon your request.
In many cases the business agent will become involved in all grievances at the second level, but many stewards do write and present the arguments at this level with the Business Agent present. This is important because many grievances at this level have the potential to be appealed to arbitration. The information gathered at this meeting is important for that process.
If the grievance is denied at the second (2nd) step, it then may be appealed to arbitration. The agency file on this matter is then transferred out of the agency to Minnesota Management and Budget (MMB). It generally takes at least thirty (30) days for the Employee Relations representative to receive and review the documents.
The process of negotiating a settlement between the agency and the grievant begins with the Business Agent acting as the intermediary for the grievant and the MMB representative on behalf of the agency. Arbitration becomes an option if a settlement cannot be reached and negotiation breaks down.
Data practices and access to investigation reports by stewards
The Minnesota Government Data Practices Act can be found in statute: https://www.revisor.mn.gov/statutes/?id=13 .
MAPE’s procedures for accessing investigatory reports are as follows:
- The Steward of Record shall be entitled to data relating to a member’s grievance. The steward may have to sign an agency stipulation regarding protecting the confidentiality of the data if the data is obtained directly from the agency. MMB provides direction to agencies on these issues. A template stipulation agreement can be found here as well as MMB's policy on releasing data to union representatives: http://www.mmb.state.mn.us/doc/persl/1412.pdf.
- If the arbitration team decides to not pursue a grievance to arbitration and the member appeals to the Employee Rights Committee (ERC), a copy of the investigative report (may or may not be redacted) may be included in the background material distributed to the ERC for the appeal.
- A member has the right to request a copy of his/her investigative report from the employer and will have the opportunity to review the report and provide response to all issues raised. The agency will probably provide only the investigation material relating to the member and may exclude witness testimony or redact witness testimony. The member may view MAPE’s copy of the investigation report (which may be redacted) but will not be allowed to have a copy of MAPE’s material. The Steward of Record’s copy of the report also cannot be reproduced.
- Investigative reports are to be maintained by staff and the steward of record and will not be distributed, except in the case of an appeal to the ERC (See No. 2 above).
- Investigative Reports may be redacted by the Employer, or MAPE, as deemed necessary to protect confidentiality.
- Chief Stewards who are not the agent of record for a specific grievant may discuss the matter(s) with the Steward of Record and/or business agent, and will be provided a copy of the investigative report on request. On closure (settlement or, arbitration award) all investigative reports will be returned to the Business Agent of record.
Past practicePast practice
ast practice may be the most misunderstood term in labor relations. In examining many published decisions, it becomes apparent that there are no unanimously accepted standards for defining past-practice. Arbitrators frequently, although not always, have recognized a wide authority in management to control the methods of operation and to direct working forces. This authority includes the right, without penalty, to make if these changes do not violate a right of employees spelled out in a collective bargaining agreement.
Past practice arguments are sometimes made to support a desired interpretation of existing contract language. Additionally they are made to convince an arbitrator that, absent any language, a practice has become a binding unwritten contract between the parties.
Some of the prerogatives for which management will usually succeed in thwarting a union’s challenge citing past practice are:
- Changing work schedules.
- Determining the number of employees needed on a job or a shift.
- Adding or eliminating position duties within reasonable limits.
- Eliminating positions altogether.
- Discontinuing a particular service.
- Not filling a vacancy.
- Changing pay periods.
Generally, the following conditions need to be met before an arbitrator will validate a past practice argument:
- The application of the practice must be clear and consistent.
- The application of the practice must be repeated over a period of time.
- The employees and management have accepted the practice as the appropriate and customary means of behaving.
- The practice should relate to its origin and/or purpose. If it was originally started to address a specific issue, it should not be broadened in scope.
- The parties should have a mutual understanding when the practice began. It should not have been a unilateral decision on the part of management that was well within their discretion to change in the future. One of the arbitrators, Mario Bognanno, offered this definition of past-practice: “A practice (binding past-practice) is a reasonable uniform response to a recurring situation which over a substantial period of time has been recognized by the parties, explicitly or implicitly, as the correct response.”
Letters of expectation and corrective action plansLetters of expectation and corrective action plans
Letters of expectation and corrective action plans are often used as discipline even though both documents have disclaimers stating, “This is not formal discipline.” These documents should not have punitive language and should not lead an employee to believe that the letter is actual discipline. Both a corrective action plan and a letter of expectation must have clearly defined start and end dates. The employee cannot be on informal probation indefinitely.
A corrective action plan must have clear expectations outlining what behavior(s) need to change. Letters of expectation and corrective action plans should not be vague. They should not be placed in an employee’s personnel file. These documents should also not be utilized as a precursor to formal discipline (written discipline, suspension, or discharge). The documents should also not be referenced in a performance review.
Please note that if the document has a punitive tone and the employee believes that discipline can be imposed, he/she has the right to have a steward present when discussing a corrective action plan or letter of expectation.
Personnel filesPersonnel files
Accessing Personnel Files
A form is included below that, when signed by a member, provides you with permission to access his/her personnel file on his/her behalf. This is most useful when a member is out on suspension, investigatory or medical leave, or has been terminated.
Employee personnel file release:
Position description and appealPosition description and appeal
Your position description is an extremely important document. Unfortunately, employees too often ignore this document. Under the provision of Article 6 – Employee Rights, employees, upon request, shall be provided a copy of their position description. This position description should accurately reflect the duties being performed by the employee.
The contract language does make it clear that the position description cannot be grieved. However, each agency needs to have an internal appeal process to deal with disagreements about how a position is described. Your union recommends that you do not rely on the employer to write the position description. Generally, this will cause more disputes later. When you have written your position description, it must be signed by your supervisor and placed in your personnel file to make it official. The employee may take the initiative to update a position description each time there are significant changes that should be addressed. These changes should be noted and entered into the position description. This would not be necessary for a short-term project. Position descriptions are important in grievances involving work performance.
Disputes regarding position descriptions are most common when employees are re-writing the document for the purpose of seeking a reallocation. A reallocation refers to changes in responsibility, discretion, and independence that may lead to a higher classification with a higher salary. These changes usually take place over a period of 15 to 24 months. During this process, an accurate position description is a must. Since reallocations are based specifically on the position description, it is extremely important that it be up-to-date.
The bottom line is, “Don’t underestimate the importance of the position description.”
Performance appraisalsPerformance appraisals
Performance reviews and appeals
Article 6 of the MAPE contract, Employee Rights, addresses Position Descriptions and Performance Appraisals.
Position Descriptions (Section 2.)
In short, Article 6, Section 2 of the contract explicitly states that position descriptions are to be accurate regarding “duties, responsibilities, goals, and performance indicators.”
In practice, an employee should work with his or her immediate supervisor to assure that the position description under which he or she works accurately reflects the reality of the job. Position descriptions themselves are not grievable under the contract, but the contract mandates that there must be “an internal departmental appeal procedure to review disputes regarding the accuracy of position descriptions.” In other words, an employee should periodically review his or her position description with the supervisor to determine its accuracy--for instance at the time of the annual performance appraisal. If disputes arise with supervisors regarding the position description, then employees can avail themselves of the position description appeal procedure. Further guidance is provided by the State of Minnesota Management and Budget (MMB) Office (formerly known as DOER—Department of Employee Relations) Administrative Procedure 20—which states that position descriptions should be rewritten every three years.
Accurate position descriptions are important since an employee’s annual performance appraisal will largely be based on the indicators described therein. Long term employees at the top of their pay ranges may be lax in monitoring the accuracy of their position descriptions (and in insisting on annual performance appraisals). They should be encouraged to update position descriptions since their performance can only be evaluated accurately by a supervisor if the position description is current and reflective of their real work.
Performance Appraisals (Section 3.)
The contract is clear. Performance appraisals should take place at least annually and cannot be substituted with “work plans, coaching sessions and letters of expectation.”
The contract further mandates that performance appraisals “shall indicate the employee’s overall level of performance” and that members of the MAPE bargaining unit shall not conduct performance appraisals for each other. Many employees seem to ignore the performance appraisal process if their supervisors neglect to conduct an annual review as step increases often happen regardless of whether an appraisal takes place. In addition, when employees get to the top of their pay range, an appraisal may seem to be nothing but a distractive nuisance. Employees should be encouraged to pursue performance appraisals (and accurate position descriptions) as a way to protect themselves if performance issues suddenly arise in the workplace.
Many employees are resistant to signing their performance appraisal if they disagree with it, but the contract makes clear that signing a performance appraisal “does not indicate the acceptance or rejection of the appraisal.” Employees have thirty days from date of receipt of performance appraisals to file a written response in their personnel files, an important right (see below). Administrative Procedure 20 describes the performance appraisal process in some detail and is included in your steward training materials.
DEPARTMENT OF EMPLOYEE RELATIONS STATUTORY EFF. DATE 12-23-82 ADMINISTRATIVE PROCEDURE 20 REFERENCE 43A.20 REV. DATE COMMISSIONER'S SIGNATURE Nina Rothchild /s/
JOB CLARIFICATION/PERFORMANCE APPRAISAL
Description and Scope - Employee Performance Appraisal is a system that ensures a continuous process of reviewing, analyzing and evaluating employee performance. The system is based upon individual position descriptions, established performance indicators, formal performance review and individual development planning.
Objectives -- To establish a clear understanding between supervisor and employee of the employee's job duties, responsibilities, accountabilities and authorities. To establish a formal evaluation process to determine how well the employee meets the standards of performance for those job duties and to provide opportunity and direction to improve work performance. To provide managers with information on which to base, in whole or in part, various personnel decisions, such as salary increases, promotions and discipline.
Definitions -- Key Terms --
"Individual Development Plan" means a three-step process that includes: identification of the employee's specific needs for growth and improvement, assignment of priorities to identified needs and proposed solutions to development needs.
"Performance Indicators" mean the statements or conditions that measure the quality or quantity of work to be performed, the time frame in which the work is to be completed and/or the resources to be used to complete the job.
"Performance Review" means a periodic assessment of an employee's performance and discussion of that assessment with the employee. A formal performance rating is assigned during the review. Informal reviews are also conducted with the employee; these reviews are held more frequently and are less structured than the formal "performance review."
"Position Description" means a formal definition of the duties, responsibilities, working relationships and performance expectations of a position in state service. Position Descriptions are to be written in the format indicated by the instructions accompanying the Position Description Form.
A. Appointing Authorities:
-- Ensure that managers and supervisors conduct a minimum of one performance review for each employee annually.
-- Ensure that each employee has a position description.
-- Ensure that each employee has an opportunity to prepare an individual development plan if needed or wanted by the individual.
-- Department of Employee Relations:
-- Develop and maintain a statewide employee performance appraisal system.
A. Position Description:
- Each employee must have an accurate up-to-date position description. This must be provided no later than six months after appointment or promotion.
- The position description for employees who work less than 100 days per calendar year may be written on a Position Description Form or may consist of a memo to the employee outlining specific duties, responsibilities and tasks that the employee is expected to perform.
- Where practical, employees who work more than 100 days per calendar year shall have the opportunity to review and provide input into the content of the position description before it is finalized.
- The position description shall be reviewed at least annually and rewritten at least every three years.
B. Formal Performance Review:
- Each employee who works more than 100 days per calendar year shall have a formal performance review (coaching/counseling) session at least annually.
- Employees shall have the opportunity to review and comment on their performance ratings before they become official.
- Employees who have not attained permanent status in their positions should be formally evaluated and counseled on their job performance every three months. Employees who are serving a probationary period of less than six months should be formally evaluated at the mid-point of the probationary period.
-- Where practical, probationary employees shall be formally reviewed at least twice during the probationary period.
-- The review date should provide sufficient time for the employee to alter or improve unacceptable performance before the end of the probationary period.
-- Nothing in this Procedure shall be construed as preventing an appointing authority from terminating a probationary employee at any time.
- Additional formal reviews should be conducted when any significant change in performance occurs.
- Performance ratings may be appealed to the appointing authority within 30 days of the official date of rating. The decision of the appointing authority is final and shall become the official evaluation of that employee for the specified evaluation period.
- Three signatures added after the performance review is completed (or changed) are required to make the performance review official:
a. The signature of the person being rated is required in order to document that the person received the evaluation and is aware of its contents.
b. The signature of the rater is required in order to communicate to the person being rated who actually performed the evaluation.
c. The signature of the next level of management is required in order to establish that the rater is speaking for the organization, or at least, that the organization is aware of and accepts the evaluation as written.
C. Individual Development Plans:
- Each employee who works more than 100 days per calendar year shall have an individual development plan on file if needed to improve present performance, prepare for promotional opportunities, required to undertake new responsibilities or to undertake career development goals, or if wanted by the employee.
- The individual development plan shall be reviewed and updated at the time of the annual performance review and shall be monitored during the appraisal period.
D. Informal Performance Reviews: Informal reviews or coaching sessions should be conducted more frequently than once a year at the discretion of the appointing authority.
E. Documentation and record keeping:
- Formal performance review information shall be maintained in the employee's personnel file for a minimum of three years.
- Employee performance appraisal reports are available for inspection by the following:
a. The employee or employee's designated representative with written approval from the employee.
b. The appointing authority and individuals within the agency whose work assignments reasonably require access to this information.
c. The Commissioner of Employee Relations and employees of DOER whose work assignments reasonably require access to this information.
Performance Appraisal Appeals
While the contract precludes grieving of “the substantive judgment of supervisor regarding the employee’s performance,” it does provide for an appeal process (as described in Administrative Procedure 20) within 30 days of the date of the rating. That appeal is presented to the “Appointing Authority,” usually the Human Resources office 0r the raters supervisor, and the decision of the Appointing Authority is final.
For this reason, it is important that the employee also file the aforementioned written response for inclusion in his or her personnel file: even if the Appointing Authority upholds the rater’s determination, the employee’s written rebuttal will remain in the personnel file.
Section 3 of Article 6 further states the following: “At the employee’s request, an Association Representative may be present during the appeal meeting(s).” In other words, a steward, as the “Association Representative,” can clearly be at the meeting. The contract is mute, however, regarding the steward’s role.
In essence, it is the employee who is responsible for making the presentation in this forum. The steward/representative is there to provide support, to ensure that the employee is able to make their points, and to ensure management treats the employee respectfully.
Progression (Step) Increases in Salary
Section 2 of Article 34 of the contact (Wages) states that employees may receive annual step increases, “provided satisfactory performance is indicated by the Appointing Authority.”
(This language is superseded by any agreement by MAPE and the State to language that suspends step increases.)
That section goes on to clarify that an Appointing Authority must notify the employee in writing if the step increase will be withheld. If the Appointing Authority does not, then the step increase will be granted. Further, it is explicitly stated that, while the “substantive judgment of the employee’s supervisor regarding his/her performance” cannot be grieved, the progression increase denial can be grieved.
Steward/Representatives should pay particular attention to lack of training, lack of management support, and unreasonable workload issues when seeking the necessary information to argue a grieved progression denial. Any improvements in performance support an argument for reversing the denial of the progression step increase. The contract specifically states that the withheld increase “may be subsequently granted” if the Appointing Authority certifies that “the employee has achieved a satisfactory level of performance."
Meet and conferMeet and confer
Minnesota Statute 179A.07, Subd. 3. “Meet and Confer. A public employer has the obligation to meet and confer, under section 179A.08, with professional employees to discuss policies and other matters relating to their employment which are not terms and conditions of employment.”
Minnesota Statute 179A.08 Subd. 1. “Professional employees. The legislature recognizes that professional employees possess knowledge, expertise, and dedication which is helpful and necessary to the operation and quality of public services and which may assist public employers in developing their policies. It is, therefore, the policy of this state to encourage close cooperation between public employers and professional employees by providing for discussions and the mutual exchange of ideas regarding all matters that are not terms and conditions of employment.”
Professional employees are the only public employees of the state of Minnesota that are guaranteed this right to meet and confer with their employers. Another subdivision of the law specifies that when an exclusive bargaining representative is involved that the meet and confer will include the union (179.07, Subd. 4).
Questions and answers about meet and confer
Q: Does MAPE participate in the meet and confer process?
A: Yes. Dozens of meet and confers take place each year. In some departments several are held each year. In other departments they may occur infrequently.
Q: What topics are covered in meet and confers?
A: Topics have included: Classification study results, staffing patterns, safety issues, budgetary information, legislative updates, program planning, training opportunities, etc. In addition to these “approved” topics, areas that involve terms and conditions of employment have also been discussed in this forum.
Q: How can I become a member of a meet and confer team?
A: Contact your meet and confer chairperson or the MAPE office and submit your name for consideration.
Q: Can I have input into the meet and confer process without being a member of the team?
A: Yes. If you have an idea or a concern, contact any member of your meet and confer team or the MAPE office.
Q: How effective are the meet and confer meetings?
A: Results vary, depending on the issues involved and the receptiveness of the departments. In all cases, however, the better prepared a team is, the better the outcomes.
Q: Who represents management in the meet and confer session?
A: In many departments, the commissioner, assistant commissioners, deputy commissioners, and other top level management attend the meet and confers. In some departments, designees are assigned the responsibility by the commissioner. In almost all cases, personnel and labor relations representatives are present.
Important resources and PELRAImportant resources and PELRA
Employee rights and responsibilities under the Family and Medical Leave Act (FMLA)
Basic leave entitlement
FMLA requires covered employers to provide up to 12 weeks of unpaid job-protected leave to eligible employees for the following reasons:
• For incapacity due to pregnancy, prenatal medical care or child birth;
• To care for the employee’s child after birth, or placement for adoption or foster care;
• To care for the employee’s spouse, son or daughter, or parent, who has a serious health condition;
• For a serious health condition that makes the employee unable to perform the employee’s job.
Military family leave entitlements
Eligible employees with a spouse, son, daughter, or parent on covered active duty or call to covered active duty status may use their 12-week leave entitlement to address certain qualifying exigencies. Qualifying exigencies may include attending certain military events, arranging for alternative childcare, addressing certain financial and legal arrangements, attending certain counseling sessions, and attending post-deployment reintegration briefings.
FMLA also includes a special leave entitlement that permits eligible employees to take up 26 weeks of leave to care for a covered service member during a single 12-month period. A covered service member is a current member of the Armed Forces, including a member of the National Guard or Reserves, who has a serious injury or illness incurred in the line of duty on active duty that may render the service member medically unfit to perform his or her duties for which the service member is undergoing medical treatment, recuperation, or therapy; or is in outpatient status; or is on the temporary disability retired list. A covered service member also includes a veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.
Benefits and protections
During FMLA leave, the employer must maintain the employee’s health coverage under any “group health plan” on the same terms as if the employee had continued to work. Upon return from FMLA leave, most employees must be restored to their original or equivalent positions with equivalent pay, benefits, and other employment terms. Use of FMLA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee’s leave.
Employees are eligible if they have worked for a covered employer for at least one year, for 1,250 hours over the previous 12 months, and if at least 50 employees are employed by the employer within 75 miles. Statewide policy on sick leave http://www.mmb.state.mn.us/doc/persl/1337.pdf.
To provide guidelines to agencies on managing sick leave use by employees.
- To improve productivity through better attendance.
- To minimize costs associated with employee absences due to sick leave.
- To maintain overall agency morale by ensuring each employee meets his/her own work requirements.
- To ensure that sick leave use is consistent with the provisions of the collective bargaining agreements or plans.
- To standardize sick leave procedures.
- To communicate to supervisors expectations regarding sick leave.
- Analyze Attendance Records: Supervisors should regularly review employee attendance records for evidence of abuse or excessive use.
- Ensure Appropriate Use: Supervisors should ensure that the reason for the use of sick leave is allowable under the terms of the collective bargaining agreement or plan.
- Ensure Confidentiality: Supervisors should maintain the confidentiality of the reasons for employees’ use of sick leave.
- Recognize Good Attendance: Supervisors should recognize good attendance through appropriate methods.
- Manage Sick Leave: Supervisors should regularly monitor and manage all of the sick leave used by employees in accordance with the following guidelines.
Monitoring Use of Sick Leave
Supervisors should monitor the amount of sick leave used by employees and should review sick leave usage for individual employees when use exceeds six (6) separate instances in a fixed twelve (12) month period.
Instances shall include:
All actual sick leave used as well as other types of leave used in lieu of sick leave (e.g. same-day vacation leave requested in lieu of sick leave, leave without pay taken for sick leave reasons).
Instances shall not include:
Any FMLA qualifying time or time taken for prescheduled doctor’s appointments, bereavement leave, workers compensation, or sick leave used in conjunction with the birth or adoption of a child or for the period of time that a doctor certifies a female employee unable to work because of pregnancy.
Recognizing sick leave use problems
If an employee exceeds the standard set out above, the supervisor needs to consider the following to factors identify sick leave use problems:
- The frequency of and the reasons for sick leave use. (Absences necessitated by chronic long-term illnesses/disabilities may require different considerations than casual, intermittent absences.)
- The employee’s unused sick leave balance.
- The impact of the employee’s absences on the workplace (e.g., disruptions in work schedules, overtime costs, incomplete projects).
Responding to sick leave problems
If the supervisor determines a problem exists then the supervisor shall:
- Counsel the employee on his/her use of sick leave.
- Refer the employee to the Employee Assistance Program, if appropriate.
- Check with the Personnel Office about possible alternative arrangements for the employee (e.g., part-time work schedules, disability leaves of absence), if appropriate.
Document all of these actions.
If the above methods are unsuccessful, a supervisor should consider the effect that the sick leave use has on the employee’s performance and the operations of the employer. Discipline may be taken on the basis of the absences affecting the employee’s performance, or the operations of the employer, and may be taken even when the reasons for sick leave use have been legitimate. If the employer is in the course of progressive discipline with an employee, the six instance standard in a twelve month period is not renewed.
Performance reviews - sick leave
Supervisors should also reflect how the employee’s attendance has affected his/her ability to complete the tasks on the employee’s performance review.
Sick leave abuse
Abuse of sick leave is defined as the use of sick leave for purposes other than those in the collective bargaining agreements or plans.
Supervisors should periodically analyze attendance records for evidence of possible abuse (e.g., patterns of absences on Fridays/Mondays, seasonal absences, absences when a vacation request has been denied).
Sick leave should be denied when there is evidence or reason to believe abuse has occurred until or unless the employee provides satisfactory evidence of legitimate use of sick leave. Where a supervisor has reason to suspect that an employee is abusing sick leave, the supervisor may require the employee to provide doctor’s statements for a fixed duration to verify legitimate use of sick leave. Discipline employees for the abuse of sick leave.
Use of vacation leave in lieu of sick leave
Employees must use their sick leave accruals for absence requests allowing for use of sick leave accruals pursuant to labor contract provisions. Vacation leave will not be granted in lieu of sick leave except in the following instances (Please note, employees are NOT required to use vacation leave if they do not want to):
- Employees who have exhausted their sick leave accruals may request to use vacation leave in lieu of sick leave in accordance with labor contract provisions. Such vacation requests shall be for the total hours of the employee’s work schedule and for consecutive scheduled days of work for the total hours of vacation requested by the employee up to the extent of the employee’s vacation accruals. Vacation leave will not be granted on a stop and start basis with leave without pay time in between vacation time.
- Employees may be allowed to substitute vacation leave for sick leave when they are subject to losing vacation accruals while absent due to vacation cap restrictions. Such use shall be only to the extent necessary to prevent loss of the employee’s vacation benefits.
All labor contract provisions, policies, and work rules governing sick leave requests will continue to apply to requests for vacation in lieu of sick leave.
Definition of serious health condition
A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee’s job, or prevents the qualified family member from participating in school or other daily activities. Subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than three consecutive calendar days combined with at least two visits to a health care provider or one visit and a regimen of continuing treatment, or incapacity due to pregnancy, or incapacity due to a chronic condition. Other conditions may meet the definition of continuing treatment.
Use of leave
An employee does not need to use this leave entitlement in one block. Leave can be taken intermittently or on a reduced leave schedule when medically necessary. Employees must make reasonable efforts to schedule leave for planned medical treatment so as not to unduly disrupt the employer’s operations. Leave due to qualifying exigencies may also be taken on an intermittent basis.
Substitution of paid leave for unpaid leave
Employees may choose or employers may require use of accrued paid leave while taking FMLA leave. In order to use paid leave for FMLA leave, employees must comply with the employer’s normal paid leave policies.
Employees must provide 30 days advance notice of the need to take FMLA leave when the need is foreseeable. When 30 days’ notice is not possible, the employee must provide notice as soon as practicable and generally must comply with an employer’s normal call- in procedures.
Employees must provide sufficient information for the employer to determine if the leave may qualify for FMLA protection and the anticipated timing and duration of the leave. Sufficient information may include that the employee is unable to perform job functions, the family member is unable to perform daily activities, the need for hospitalization or continuing treatment by a health care provider, or circumstances supporting the need for military family leave. Employees also must inform the employer if the requested leave is for a reason for which FMLA leave was previously taken or certified. Employees also may be required to provide a certification and periodic recertification supporting the need for leave.
Covered employers must inform employees requesting leave whether they are eligible under FMLA. If they are, the notice must specify any additional information required as well as the employees’ rights and responsibilities. If they are not eligible, the employer must provide a reason for the ineligibility. Covered employers must inform employees if leave will be designated as FMLA-protected and the amount of leave counted against the employee’s leave entitlement. If the employer determines that the leave is not FMLA- protected, the employer must notify the employee.
Unlawful acts by employers
FMLA makes it unlawful for any employer to: 1) Interfere with, restrain, or deny the exercise of any right provided under FMLA;
2) Discharge or discriminate against any person for opposing any practice made unlawful by FMLA or for involvement in any proceeding under or relating to FMLA.
An employee may file a complaint with the U.S. Department of Labor or may bring a private lawsuit against an employer. FMLA does not affect any Federal or State law prohibiting discrimination, or supersede any State or local law or collective bargaining agreement which provides greater family or medical leave rights.
For additional information: 1-866-4US-WAGE (1-866-487-9243) TTY: 1-877-889-5627 www.wagehour.dol.gov.
For the State of Minnesota FMLA Policy and FAQ, refer to the MMB website www.mmb.state.mn.us/doc/persl/1409.pdf.
Coordination with collective bargaining agreements/plans
A. FMLA qualifying leaves of absence will be identified as those authorized under collective bargaining agreements or plans, i.e., medical leave or personal leave, dependent on which leave is appropriate.
B. The FMLA provides for an unpaid leave under certain circumstances. The employer shall require an employee to use sick leave for situations required by the collective bargaining agreements (e.g., for the employee’s own serious health condition). The employer shall only require an employee to use vacation in specific instances allowed by the collective bargaining agreements. However, the employee may request and the employer shall grant vacation or compensatory time. All paid time counts toward the twelve (12) weeks of FMLA qualifying leave.
C. Complying with notice/call-in policies of the Appointing Authority. An Appointing Authority may require an employee to comply with its usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. Failure to comply may result in the delay or the denial of the leave.
Job benefits and protection
A. During an FMLA qualifying leave, the employee and dependent health and dental insurance is maintained on the same basis as coverage would have been provided if the employee had been continuously employed during the entire leave period.
B. An eligible employee returning from a FMLA qualifying leave is entitled to be returned to the same position and shift that the employee held when the FMLA qualifying leave began, or to an equivalent position and shift with equivalent benefits, pay, and other terms and conditions of employment.
C. Provided the employee returns to work immediately following his/her FMLA qualifying leave (i.e., does not follow the FMLA qualifying leave with additional unpaid leave), benefits must be resumed upon the employee's return to work at the same level as were provided when leave began. Any new or additional coverage or changes in health benefits must be made available to an employee while on FMLA qualifying leave.
Public Employment Labor Relations Act (PELRA)
Minnesota Statutes 179A.01 – 1709A.25
179A.01 PUBLIC POLICY - It is the public policy of this state and the purpose of sections 179A.01 to 179A.25 to promote orderly and constructive relationships between all public employers and their employees.
179A.04 COMMISSIONER'S POWER, AUTHORITY, AND DUTIES
179A.06 RIGHTS AND OBLIGATIONS OF EMPLOYEES
179A.07 RIGHTS AND OBLIGATIONS OF EMPLOYERS
179A.08 POLICY CONSULTANTS
179A.09 UNIT DETERMINATION
179A.10 STATE UNITS
179A.11 UNIVERSITY OF MINNESOTA
179A.12 EXCLUSIVE REPRESENTATION; ELECTIONS; DECERTIFICATION
179A.13 UNFAIR LABOR PRACTICES
179A.14 NEGOTIATION PROCEDURES
179A.16 INTEREST ARBITRATION
179A.17 NEW EXCLUSIVE REPRESENTATIVES
179A.18 STRIKES AUTHORIZED
179A.19 ILLEGAL STRIKES
179A.21 GRIEVANCE ARBITRATION
179A.22 STATE AND ITS EMPLOYEES; NEGOTIATIONS
179A.23 LIMITATION ON CONTRACTING-OUT OF SERVICES PROVIDED BY MEMBERS OF A STATE OF MINNESOTA OR UNIVERSITY OF MINNESOTA BARGAINING UNIT
179A.24 APPLICATION OF SECTIONS 185.07 TO 185.19
179A.25 INDEPENDENT REVIEW
Definitions of labor relations termsDefinitions of labor relations terms
ARBITRATION – A formal hearing of a grievance by an independent third party (an arbitrator) who is empowered by the parties to the grievance to resolve the grievance. The arbitration normally involves the testifying of witnesses, the presentation of evidence, and advocacy by the union and state advocates (business agents and Labor Relations Representatives). (See also expedited arbitration)
ARBITRATION TEAM – The team is comprised of the MAPE Business Agents, the Executive Director, the Chair of the Employee Rights Committee and the steward of record for the grievance under discussion. The Team discusses current grievances as to merit and arbitrability and votes on whether or not to proceed to arbitration.
ARBITRATOR – An independent third party who conducts arbitrations and/or expedited arbitrations. He/she is empowered to resolve grievances that have been brought before him/her.
AWARD – In labor/management arbitration, the final decision of an arbitrator, often binding on both parties to the dispute.
BARGAINING UNIT – The group of employees determined by the Legislature to be performing work of a similar level of responsibility and requiring similar levels of decision-making. MAPE is the exclusive bargaining representative for the professional-level bargaining unit (214). The unit comprises both fee-payer and dues- paying members of the unit, and represents its members in negotiating the terms and conditions of employment with the state and in enforcing the contract rights of all the members of the unit.
BOARD OF DIRECTORS – The body of MAPE regional directors and the statewide officers of MAPE who meet regularly to conduct the business of MAPE.
BUREAU OF MEDIATION SERVICES (BMS) – BMS is a Minnesota state agency that provides mediators for negotiations between most unions and employers within the state of Minnesota (public and private). It is charged with determining which of the state’s bargaining units a new job classification should properly be assigned to. This determination occurs as a result of BMS holding a Unit Determination Hearing.
BUSINESS AGENT – Persons hired by MAPE to provide professional advocacy skills in the handling of grievances and members' rights. Business agents also serve on the MAPE Arbitration Team.
COLLECTIVE BARGAINING – The process of negotiating a contract and enforcing the contract through the grievance procedure. This written contract normally covers all employees in the bargaining unit – members and fee payers.
CONTRACT – A labor agreement between management and employees that clearly states the rights, terms and conditions, benefits, wages and conflict resolution processes available to and mutually agreed upon by both parties.
CONTRACTING OUT – A practice of the employer having work performed by an outside contractor and not by regular employees in the bargaining unit.
MMB – Minnesota Management and Budget, the department that handles state employee relations for the state of Minnesota including representing the State of Minnesota in negotiation and administration of collective bargaining agreements and labor plans.
DUTY OF FAIR REPRESENTATION – A standard which the Supreme Court requires of unions in their advocacy for employees. It basically states that unions must provide adequate advocacy for both fee payer and members of the unions in negotiations and the grievance-handling processes. It states that those unions should treat their members fairly in their advocacy activities.
EMPLOYEE RIGHTS COMMITTEE (ERC) – A MAPE group composed of the chief stewards from each region. The ERC hears appeals by grievants who have been notified by the Arbitration Team that their grievance is being recommended to be dropped/withdrawn. The group also provides advice to the decision-making bodies of MAPE on grievance handling processes and training.
EXPEDITED ARBITRATION – A shorter version of a regular arbitration. It will be used when questions of fact are the basis of the grievance, when many items may be stipulated to by the parties, and when there is not a clear interpretation of the meaning of the contract language at issue in the grievance.
FEE PAYER – A state employee covered by the MAPE contract who chooses to have non- member status and pays 85% of dues. Fee payers are entitled to full representation in grievance handling and in the negotiations process. They cannot vote, be a steward, serve on a committee or run for office at any level.
FRINGE BENEFITS – All non-wage benefits in a union contract such as paid holidays, paid vacation, insurance and pensions, which are paid in whole or part by the employer.
GOOD FAITH BARGAINING – All parties in the negotiations process must come to the table with open minds and flexible positions. If a party brings an unwavering position they are not bargaining in good faith.
GRIEVANCE – A dispute or disagreement as to the interpretation or application of any term or terms of the MAPE contract. It is a complaint based upon a violation of an employee’s rights. The form on which the complaint is established in writing is sometimes known as the grievance.
INVESTIGATION – Employers have the authority to conduct investigations which may lead to discipline. Employees have the right to have a Union Steward/Business Agent present during such investigations. If an employee’s discipline was based on questions asked by the supervisor or other agent of the state, and a union representative was requested and not present, the contractual rights of the employee have been violated.
JOB ACTION – Any activity that is used by union members to demonstrate their views to management. A job action can be anything from a solidarity activity, like wearing a certain color clothing on a certain day or working to rule, to a strike.
JUST CAUSE – There are seven tenets (tests) of just cause that Arbitrators have recognized as being relevant criteria for determining whether there is a basis for imposing discipline on an employee. The MAPE contract does not stipulate for just cause standards to be in place for an employee to be placed on investigatory leave, but the employer must have “a reasonable basis” to do so. The full definition of “reasonable basis” is continuing to be enunciated through grievance action and negotiations.
LABOR RELATIONS REPRESENTATIVE – An employee of MMB who provides Labor Relations advice to the various departments of the state. The Labor Relations Representative is typically the individual who provides the advocacy of the departments in an arbitration as the union’s Business Agent does for the union.
MANAGEMENT CLAUSE – A provision in the collective bargaining agreement that sets out the scope of management rights, functions and responsibilities. The clause sets forth those functions of management that are not subject to collective bargaining.
MEDIATOR – A mediator helps parties to resolve differences during a negotiations process in which the parties are at impasse (no progress). The Bureau of Mediation Services employs mediators.
NOTICE OF STRIKE – According to State Law, MAPE must file for mediation with the Bureau of Mediation Services, allow 45 days to transpire from that date, and then file a written notice to terminate the continuing contract 10 days before the actual termination date before a strike can be implemented.
PAST PRACTICE – If the language of the contract is unambiguous, the past practices of the parties do not override the language of the contract. An arbitrator could rule that the language must rule and the past practice be discontinued. If the language is unclear or ambiguous, an arbitrator could use the past practice arguments of the advocates to determine what the parties had agreed the language actually meant. SCAB – A union term for a worker who refuses to go out on strike with his coworkers. It is also used to describe a worker who is hired to replace a striking worker.
SENIORITY – A worker’s length of service with an employer or within a classification. Seniority is often used to determine layoffs, promotions, recalls or transfers.
STEP 1 GRIEVANCE – The presentation between advocates for the union and the supervisor of the grievant, to attempt to resolve a grievance. If the grievance is denied at Step 1, we move to step 2.
STEP 2 GRIEVANCE – The presentation between advocates for the union and Commissioner’s Designee, usually the Human Resource Division, to attempt to resolve a grievance. If the grievance is denied at Step 2, the grievance comes before the Arbitration Team for a decision on arbitration.
STEWARD – A voluntary position within MAPE and most unions. A Steward is trained to represent all MAPE bargaining unit employees with respect to investigations, filing and presenting grievances and advocating on their behalf.
TIMELINE – There are requirements in the MAPE contract regarding when grievances are properly filed with reference to when a grievable issue occurred and when responses were made to the grievance meetings. An Arbitrator could rule against the union’s grievance if the union’s representatives do not adhere to the time lines.
WORK–TO–RULE – Following the labor agreement – enforced to the letter, i.e., coming in exactly at starting time, taking all appropriate breaks, including lunch, on time and leaving exactly on time.
ZIPPER CLAUSE – A clause in the collective bargaining agreement considered to denote waiver of the right of either party to require the other to bargain on any matter not covered in an agreement during the life of a contract, thus limiting the terms and conditions of employment to those set forth in the contract.