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Erie County Technical School v. Pennsylvania Labor Relations Board

Commonwealth Court of Pennsylvania

August 25, 2017

Erie County Technical School, Petitioner
v.
Pennsylvania Labor Relations Board, Respondent

          Argued: April 6, 2017

          BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

          OPINION

          PATRICIA A. McCULLOUGH, JUDGE

         Erie County Technical School (School) petitions for review of the October 18, 2016 final order of the Pennsylvania Labor Relations Board (PLRB) that dismissed the School's exceptions to the hearing examiner's decision and order, concluding that the school violated sections 1201(a)(1) and (5) of the Public Employe Relations Act (PERA)[1] by engaging in a coercive tactic and not bargaining in good faith.

         The genesis of this case stems from the fact that, during a lengthy negotiation process with the exclusive representatives of the Erie County Technical School Federation of Teachers (Union), the School sent a letter - dubbed as a "memorandum" - directly to the Union's members. In this memorandum, the School simply recounted the "Final and Best Offer" it proposed to the Union and reiterated that at the last bargaining meeting, the School informed the Union that the offer, particularly a term regarding the retroactivity of wage increases, will remain on the table for a few days, after which point it may be withdrawn. On appeal, the School, alluding to the Free Speech Clause of the First Amendment, asserts that the memorandum is nothing more than an accurate depiction of what occurred at the last meeting and does not constitute an unfair labor practice. We agree and reverse the PLRB.

         Facts/Procedural History

         The facts are undisputed and the only issue in this case is whether the legal conclusions the PLRB derived from those facts were in error. In January 2014, the parties began negotiations for a successor collective bargaining agreement (CBA), but they were unproductive, and the CBA expired four months later in June. During the fall of 2014, the parties resumed negotiations and these meetings continued for approximately one year without any agreement. (PLRB's Final Order and Decision at 1.)

         On December 2, 2015, the parties had an unsuccessful negotiation session in which a mediator was present. On December 11, 2015, the School sent a letter to Union's members, which stated:

On September 21st [2015], after nearly two years of negotiations, the [School's] Negotiating Committee presented a Final and Best Offer to the Negotiating Committee of the [Union]. We again met with the [Union's] team on December 2nd.
We have enclosed for your review the [School's] Final and Best Offer. If you should have any questions about this offer, you should direct them to the [Union's] Negotiating Committee as they are your exclusive bargaining representatives. At the December 2nd meeting, the Committee advised the [Union's representatives] that if an agreement was not ratified by December 14th, there was no guarantee the wage increases proposed would be retroactive.

(Id.; Reproduced Record (R.R) at 70a.) As specified in the letter, the School attached a copy of its Final and Best Offer. (PLRB's Final Order and Decision at 1.)

         On December 14, 2015, the Union filed a charge alleging, inter alia, that the Union committed unfair labor practices under sections (a)(1) and (5) of PERA. A hearing was held before a hearing examiner on March 10, 2016, at which both parties presented testimony and documentary evidence establishing the facts above. In concluding that the Union violated PERA, the hearing examiner provided the following rationale:

The memorandum is 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 is to directly communicate with the bargaining unit members in the context of ongoing negotiations. Further, the memorandum contains the statement "At the December 2nd meeting, the [School's] Committee advised the [Union's representatives] that if an agreement was not ratified by December 14th, there was no guarantee the wage increases proposed would be retroactive." This is a clear effort by the School to coerce the bargaining unit members by threatening to remove benefits from their "Final and Best Offer." This statement is a bald appeal by the School directly to the bargaining unit members and goes beyond a mere informational statement.

(PLRB's Final Order and Decision at 1, quoting Hearing Examiner's Decision at 3.)

         Thereafter, the School filed exceptions, alleging that the hearing examiner erred in concluding that it violated sections 1201(a)(1) and (5) of PERA because the memorandum was an objective account of the status of negotiations. The School further alleged that the language regarding retroactivity was not coercive or threatening because it accurately portrayed what had occurred at the December 2, 2015 meeting with the Union and was merely a factual representation of the School's bargaining position.

         The PLRB disagreed, concluding that the memorandum "was a direct communication to the bargaining unit members in an attempt to coerce employees, and contained a veiled threat of reprisals through the loss of retroactive pay increases." (PLRB's Final Order and Decision at 5.)

         In making this determination, the PLRB first recounted that under the First Amendment, an employer is generally allowed to communicate with unionized employees during negotiations, even though the union's representatives are the exclusive bargaining agents for the union's members. However, the PLRB stated, the employer cannot make direct or indirect threats or communicate in a coercive manner and, also, cannot attempt to negotiate directly with the union members, instead of their representatives, in an attempt to circumvent the collective bargaining process. The PLRB then found that the current facts rendered this case indistinguishable from its previous decision in Pennsylvania Labor Relations Board v. Portage Area School District, 7 PPER 325 (Nisi Decision and Order, 1976), where the PLRB concluded that a school district's superintendent violated PERA when he sent a letter to the union's members during negotiations for a successor agreement which said that the district would terminate all ongoing fringe benefits if the parties did not reach an agreement before the expiration of their contract. (PLRB's Final Order and Decision at 3.)

         In likening this case to Portage Area School District, the PLRB concluded:

Similarly, here, the School's memorandum was specifically addressed to all [the Union's] members and contained a statement that if an agreement was not reached by December 14, 2015, "there was no guarantee the wage increase proposed would be retroactive." Notably, the [Union's] members received the School's memorandum just three days before the School's self-imposed December 14, 2015, deadline. Clearly, the intent of the memorandum was to bypass the Union and coerce the [Union's] members into pressuring the Union to reach an agreement under threat of the loss of retroactive wage increases.

(Board's Final Order and Decision at 4.) In other words, the PLRB, while noting that "veiled threats are as unlawful as direct threats, " held that "the statement [was] a threat to [the Union's] members that they [would] lose their retroactive pay if they do not ratify the School's proposal by December 14th." (Id. quoting Hearing Examiner's Decision at 3-4.)

         Accordingly, the PLRB determined that the School violated sections 1201(a)(1) and (5) of PERA and ordered the School to cease and desist from refusing to bargain in good faith. The ...


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