Perhaps the most telling quote on this whole topic of employer communications during labor negotiations was referenced in the Janesville Board of Education, Decision No. 8791-A (3/69): "If we were to eliminate remarks critical of employee and of employer representatives from the bargaining process as prohibited practices, the process might collapse, perhaps from shock alone."
The Wisconsin Employment Relations Commission (WERC) has a duty to enforce Wisconsin Stats. Section 111.70(2)-(4). This statute states in essence that management may not bargain with individual employees and must bargain with their designated bargaining representative. Wis. Stats. Section 111.70(2)-(4) states as follows regarding an employer's obligations:
May not refuse to bargain collectively in good faith with employees' designated representative or, conversely, may not bargain individually with employees.
May not (a) interfere with, restrain or coerce municipal employees in the exercise of their rights to organize and join labor organizations, to bargain collectively through representative of their own choosing, and (b) to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection.
The Wisconsin statutory provision is brief and parallels a similar obligation under The National Labor Relations Act impacting private employers. The WERC has taken a "hands off" approach to what is considered "bad faith" bargaining. The WERC has been quoted as stating that "Municipal Employment Relations Act (MERA) was not enacted to grant the WERC an unlimited authority to generally oversee an employer's employment relations decisions" Milwaukee Public Schools Dec. No. 20005-B (WERC 2/84)
One of the reasons that the WERC will stay out of the collective bargaining process is because Wisconsin has "interest-arbitration" and if there is a difference of opinion or the parties aren't getting along, either party can file for "Interest- Arbitration" to resolve the dispute. Moreover, the relief that is garnered as a result of filing a prohibited practice charge regarding "bad faith" bargaining, takes anywhere from six to eighteen months to resolve. Finally, it is a costly endeavor, and if one party is successful, the remedy requires the posting of a notice indicating that they will bargain in good faith in the future. There are no attorneys' fees to be paid to the prevailing parties nor are there any punitive or other compensatory damages.
Relevant Wisconsin Case Law
The case law in Wisconsin is well developed and provides many options for management to communicate with its employees during labor negotiations as follows:
A. Janesville Board of Education
Janesville Board of Education, Dec. No. 8791-A (3/69). Chairman of the Board, during published interview, expressed his opinion as to the impact of the union offer on the education system. The union contended that the only reasonable inference that could be drawn is that the chosen representative was acting irresponsibly and improperly and not as an organization of professional educators interested in improving the quality of education. Further, the board argued that, in the exercise of their collective power, the union was exerting undue pressure as to wages and benefits which should be resisted as such demand burdened the educational system with unacceptable costs. Such remarks were found not to be violative of the statute by the WERC. (See also, Lisbon-Pewaukee Joint School District No. 2, Dec. No. 14691-A (6/76)).
B. City of Madison Joint School Dist.
City of Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission, 429 U.S. 167 (1976). Discussion during open meeting of Board of Education by non-union teacher who, over union objection, addressed pending negotiations and the union's demand for a fair share clause did not present such an overwhelming danger to labor management relations as to justify curtailing the free speech which occurred. It is improper to put restraint on teachers' expressions to the Board on matters involving the operations of schools. The teacher involved addressed the Board not merely as "one of its employees but also as a concerned citizen seeking to express his views on an important decision of his government." Id. at 175.
C. Ashwaubenon School District
Ashwaubenon School District, Dec. No. 14774-A (10/77). WERC affirmed right of the municipal employer to communicate with individuals as to the impact of the economic offer currently on the table to each individual teacher. What has been offered to the union in the course of collective bargaining may be communicated. The WERC cautioned that such statements "must stop short of coercion, threats or interference with employee rights, and the employer's statements must not constitute bargaining with the employees rather than their majority collective bargaining representative" (footnotes deleted).
D. Milwaukee Board of School Dirs.
Milwaukee Board of School Directors, Dec. No. 27867-B (5/95). Employer remarks which inaccurately or critically portray the employees' labor organization and thus may have a reasonable tenancy to "restrain" employees from exercising the Section 111.70(2) right of supporting their labor organization generally are not violative of 111.70(3)a.1. unless the remarks contain implicit or express threats or promises of benefits.
E. City of Marshfield WWTP
City of Marshfield Waste Water Treatment Plant, Dec. No. 28973-A (11/97). Employer communicated directly with members of the bargaining unit, including union stewards, at an employee meeting immediately prior to a union ratification vote. Employer communicated that acceptance of the contract at a 3% wage increase would result in layoffs, whereas a 2.75% increase previously offered by the city would not result in layoffs.
The union objected on the grounds that the employer had to support a tentative agreement and was directly "dealing" with the employees. Upon examination of the record, WERC held that there was no illegal direct dealing nor were there threats of layoffs if the tentative agreement was ratified. Rather, the employer shared the effects of accepting the tentative agreement with the employees. "Unlawful individual bargaining does not occur simply because an employer conducts an informational meeting with its employees without the union staff representative/business agent being present." (footnotes deleted).
F. City of Beloit
City of Beloit, Dec. No. 27779-B (9/94). WERC held that it is appropriate for one party to advise the other during collective bargaining of the potential negative consequences if a proposal or position were to be included in the successor agreement. If the employer were to advise the union that acceptance of the union's wage demand would require the layoff of employees and "the totality of the circumstances surrounding, the employer's statement establish that the employer is not motivated by a desire to threaten employees for the exercise of their right to collectively bargain, that employer is acting, in a legal manner consistent with the collective bargaining process."
Rather than seeking to deter employees from the exercise of their rights, the employer is seeking to persuade employees to change their position at the bargaining table. In essence, WERC stated that parties are free to take whatever position they wish at the table, but they cannot expect to be insulated from the consequences if those proposals are successful.
G. Marathon County,
Marathon County, Dec. No. 26915-A (12/91), The union did not violate Section 111.70(3)(b) 3., Stats. when it communicated directly with members of the county board via letter as to its dissatisfaction with the process utilized on health insurance. The letter did not seek to bargain directly with the county board but rather attempts to influence the course of negotiations. Such communication is a right afforded to both employers and employees and is not violative of MERA.
H. St. Croix County
St. Croix County, Dec. No. 28791-A (5/97). The distribution of a personnel handbook and request that employee sign a receipt stating, among other things, that the employee had read the material and agreed to conduct themselves in a manner consistent with the guidelines as well as to seek immediate interpretation about the personnel handbook is not a prohibited practice. The obligation to bargain in good faith with a designated representative does not foreclose all communications by an employer with employees and remarks which critically or inaccurately portray the employee's labor organization are not violative of the statutes.
An employer cannot threaten or coerce employees or portray the employer as protector of their rights rather than the bargaining representative and cannot deal with the union through employees rather than vice versa. Since the handbook was clearly subject to the terms of any applicable collective bargaining agreement, there is no evidence that the county refused to bargain with the union on any mandatory subject of bargaining. Thus, the distribution of the handbook and the request to sign the receipt was not individual bargaining, nor did it restrain, coerce or interfere with employees nor bypass the union in violation of MERA.
I. City of Milwaukee
City of Milwaukee, Dec. No. 26354-A (4/92). City solicitation of direct employee input regarding the need for a random substance abuse testing program as well as the means by which such program would be effected was found to be violative of 111.70(3)(a)1.,4. and 5., Stats.
The city exceeded its first amendment rights in this case. The notice to participate in a public meeting on the foregoing issues was read directly to individual officers at roll call, distributed to the League of Martin and posted on departmental bulletin boards. The meeting was more than a "town meeting" conducted by a governmental entity seeking the individual views of its citizenry. The "interested persons" sought to provide input were a class clearly including, if not restricted to, individual police officers.
The meetings were intended to draw out the views of individual officers. The notice went to far as to solicit "recommendations on a program so be developed and implemented." The examiner went on to state that whether or not the decision to implement a random drug testing program and its impact are mandatory subjects of bargaining was irrelevant to the conclusion. The fact that a subject may be permissive did not provide license to the city to circumvent the majority representative of the police officers.
J. Milwaukee Board of School Dirs.
Milwaukee Board of School Directors, Dec. No. 27867-B (WERC, 5/95). "[I]n recognition of the employer's free speech rights and of the general benefits of 'uninhibited' and 'robust' debate in labor disputes, employer remarks which inaccurately or critically portray the employees' labor organization and thus may well have a reasonable tenancy to 'restrain' employees from exercising the Sec. 111.70(2) right of supporting their labor organization generally are not violative of Sec. 111.70(3)(a)1, Stats., unless the remarks contain implicit or express threats or promises of benefit. Similarly, employer conduct which may have a reasonable tenancy to interfere with employee exercise of Sec. 111.70(2) rights will not be found violative of Sec. 111.70(3)(a)1, Stats., if the employer had valid business reasons for its actions." Milwaukee Board of School Directors, Dec. No. 27867-B (WERC, 5/95).
Options for Management to Communicate During Negotiations
A. Negotiation "notes" distributed or posted.
B. Surveys of employees.
C. Bulletin board postings.
D. Minutes of negotiations.
E. Distribution or posting of proposals.
F. Direct memos or correspondence to the bargaining unit.
G. Verbal communications at employee meetings or roll call.
H. Communications with individual employees.
I. During open session of governmental body.
J. Communicating the final offer to the union membership at the point of "impasse."
As a practical matter, neither unions nor employers will be able to obtain any meaningful relief under these circumstances. The political process will undoubtedly play a major role in resolving these disputes based primarily upon timing and the overall objectives of the respective parties.
The best advice for management representatives is to meet with elected officials and department heads in executive session and warn them of the do's and don'ts of communicating regarding the status of negotiations. If properly forewarned - elected officials can deflect inappropriate contacts.