Pennsylvania Commonwealth Court Permits Direct Communication with Bargaining Unit in Certain Circumstances

The Pennsylvania Commonwealth Court recently decided the case of Erie County Technical School v. Pennsylvania Labor Relations Board.  This case dealt with an issue that often comes up during the course of collective bargaining negotiations, specifically, the extent to which a public sector entity may communicate directly with union members without committing an unfair labor practice. In this case, during the course of collective bargaining negotiations, the Erie County Technical School, after two years of negotiations, sent a letter directly to the members of the Erie County Technical School Federation of Teachers.  The letter was sent December 11, 2015, and detailed a negotiation session which was held on September 21, 2015.  The School classified the letter as a “memorandum” in which it gave the details of the Final and Best Offer the School presented to the Union at the September 21 bargaining session. The memorandum also informed the Union membership that the offer, which included a term regarding the retroactivity of wage increases, “would only remain on the table for a few days, after which the School would consider withdrawing it.”  Essentially, the School’s position was that it was simply providing the Union membership with an accurate depiction of the discussions that took place during the September 21, 2015 negotiation session. The Union then filed an unfair labor practice charge against the School, alleging a violation of Sections 1201 (a)(1) and (5) of PERA.  Section 1201 (a)(1) prohibits attempts by an employer to exercise coercion or control over a union and its members by forbidding employers from interfering, restraining or coercing employees in the exercise of their rights. Section 1201 (a)(5) obligates an employer to bargain in good faith with a union’s “exclusive representative.”  After a hearing on the matter, the hearing examiner concluded that the School violated PERA because the memorandum was “directly addressed to the bargaining unit members rather than being information that is publicly released such as an update on a website or a statement made to the press, thus, the obvious intent of the memorandum [was] to directly communicate with the bargaining unit members in the context of ongoing negotiations.” Further, the hearing examiner concluded that the fact that the memorandum contained a statement that if the agreement was not ratified by a certain date, the proposal involving retroactive wage increases would be withdrawn, constituted a “clear effort by the School to coerce the bargaining unit members by threatening to remove benefits.”  The Pennsylvania Labor Relations Board agreed with the hearing examiner’s findings and upheld the determination.

The School filed an appeal maintaining that the memorandum reflected “an objective and factual recital of the school’s position on retroactive pay, exactly as [was] expressed to the union at its December 2, 2015 meeting” and could not be considered coercive. The school further argued that it “exercised its well-established right to inform its employees of the state of negotiations and proposals which were previously presented to the Union.”

On appeal, the Commonwealth Court affirmed the long established rule that is also recognized by the PLRB, that an employer has the right under the First Amendment to the Constitution of the United States to communicate its general views to its employees. The Court reviewed a number of cases which address this issue, one of which determined that a public employer acted lawfully where it placed a “Negotiations Timeline” on its website that provided a chronological summary of the negotiations that had occurred between the bargaining representatives for a union and an employer.  In that case, the employer did not commit an unfair labor practice because the timeline was not an “attempt to negotiate directly with individual bargaining unit members and, although it included the employer’s impressions and opinions of the negotiating process, it did not contain any specific factual misrepresentation or mischaracterization.”  In a second case referenced by the Erie County Court, a public employer held a meet and discuss session with the union’s representatives and, two days later, sent an email to the union membership, informing them of the meeting and listing five specific problems with employee scheduling.  The email went on to state that the school stated that it would be meeting with the union representatives again, and if any of the members had any ideas to address these issues they should submit them to the union representatives. In holding that this employer did not commit an unfair labor practice, the Court found that the email was not coercively phrased, nor did it misrepresent the union’s position.

In this case, the Court reviewed the Erie County Technical School’s memorandum and found that the memorandum was factually accurate and did not attempt to bypass the Union’s representatives by submitting a new proposal directly to the Union membership.  Rather, the School simply recounted the Final and Best Offer that it had submitted to the Union and, further, that it had informed the Union’s representatives that the School’s Final and Best Offer specifically included a provision stating that retroactive wage increases might not be on the table in the near future.  The Court further found that the Union’s representatives had more than two months to consider the School’s Final and Best Offer before the School presented it to the Union’s members and, consequently, the “representatives had a meaningful opportunity to consider the proposed matter in the context of bargaining without external influences or reactions from employees.”  The Court found that it was “difficult to see how the School interfered with the right of the Union’s members to bargain collectively through their representatives because the School first submitted the offer to the representatives, did not bypass or otherwise undermine their authority to consider the proposal or negotiate a successor agreement, and told the Union’s members to contact their representatives if they had any questions.”  Finally, although the PLRB held that the School’s memorandum was virtually identical to a letter sent by a school district to a union in the case of Pennsylvania Labor Relations Board v. Portage Area School District, the Commonwealth Court concluded that the letters were, in fact, distinguishable. The Court found that the Portage letter stated that the school district would eliminate the union members’ existing fringe benefits while the parties negotiated a successor CBA.  In the instant matter, the memorandum merely indicated that the retroactive pay increase “may or may not” be part of a successor agreement if the agreement was not ratified in the proposed timeframe.  Put simply, the Portage letter constituted a threat, whereas the Erie memorandum simply advised the Union of the status of negotiations.  The Court found that “while the former situation constituted a threat by the employer to discontinue benefits that were to continue in force per the prior CBA – or disrupted the status quo – during the negotiation process and used this threat to urge coercive acceptance of a successor agreement, the latter scenario pertained to the status of the negotiations and related to the potential terms or conditions to be included in the successor agreement itself… the Union’s members were not yet vested with the right  to the wage increase and retroactivity of that wage increase, and, for purposes of labor law, the School could not have unlawfully terminated or threatened to terminate a right that never existed in the first place.”  “Merely bargaining by refining, withdrawing, or countering a proposal could not be deemed coercive because these are the basic tools of the negotiation process.”

The Court then reviewed the Fourth Circuit Court of Appeals case of American Pine Lodge Nursing and Rehabilitation Center, which it termed as the most comprehensive compilation of case law and discussion on direct dealing cases involving employer’s communication with employees. The court found “an employer may speak freely to his employees about a wide range of issues including the status of negotiations, outstanding offers, its position, the reasons for its position, and objectively supportable, reasonable beliefs concerning future events… the employer may freely communicate with employees in non-coercive terms, as long as those communications do not contain some sort of express or implied quid pro quo offer that is not before the union.”

Although this case was recently decided and could be modified on appeal, the decision of the Commonwealth Court reaffirms the right of a school or other public entity to communicate with members of the bargaining unit during the course of labor negotiations, and provides guidelines for permissible direct communication with union membership to avoid violations of Sections 1201 (a) (1) and (5) of PERA.  Prior to communicating with bargaining unit members, the proposal must first have been presented to the union to avoid being accused of bargaining directly with the union membership. It is critical that any communication to the membership must be factually accurate and in presented in non-coercive terms.

Please contact a member of Maiello, Brungo & Maiello’s Public Sector Law team with questions.