At the end of 2021, the State Board of Labor Relations (SBLR) issued a decision that serves as an important and cautionary reminder to take seriously the prohibition against direct dealing and union retaliation.
The Municipal Employee Relations Act (MERA), like many collective bargaining statutes across the country, prohibits an employer from negotiating terms or conditions of employment directly with an employee. The employer must negotiate with the employee’s bargaining unit representative as the exclusive bargaining agent. This is the prohibition against direct dealing. Moreover, employers may not discriminate nor retaliate against employees for engaging in protected concerted activity (i.e. a union representative policing the collective bargaining agreement’s terms).
In this SBLR decision, four non-union employees became eligible for promotion to full-time bargaining unit positions. The employer provided each of these employees with an offer letter stating that upon successful completion of a six-month probationary period they would receive a pay increase in accordance with the collective bargaining agreement.
Following the presentation of the offer letters, the employer provided these employees with a memorandum of understanding that asked the employees to waive and substitute the contractual six-month probationary period for a twelve-month probationary period. This MOU included signatures lines for the four employees and the bargaining unit secretary treasurer. Unsurprisingly, the union representative pushed back and refused to sign the agreement that attempted to modify the duration of the probationary period provided in the contract. Subsequently, the employer chose not to hire these four individuals for the full-time bargaining unit positions.
Soon after, the employer contracted with one or more of these employees to perform the same work at the same pay rate as the full-time bargaining unit position that the Employer did not hire them in. When those employees submitted applications to join the union and authorized dues deductions, the employer stated that the applications for membership in the union should be rescinded because the offer of employment for the full-time bargaining unit positions had also been rescinded.
The State Board of Labor Relations found that seeking the employee’s agreement to waive the contractually defined probationary period at odds with the union contract was a form of direct dealing. Additionally, rescinding the job offers to the employees because the union demanded the employer respect the six-month probationary period in the agreement constituted retaliation for engaging in protected activities under MERA.
The SBLR exercised its broad remedial power issuing a cease and desist order, an order requiring the employer to hire the employees at the union negotiated rate of pay, back pay retroactive to the date the employees’ promotion would have been effective, conferring all contractual benefits that the employees would have been entitled to retroactive to the effective date of hire, and the requirement to pay the Union all dues, retroactive to the date of original hire, for the employees who have not opted out of dues payment per the Janus v. AFSCME Council 31, U.S. Supreme Court decision.
A public sector employer can glean a few lessons from this SBLR decision. First, employers should respect the plain language terms of a collective bargaining agreement and do so even when promoting non-bargaining unit employees into bargaining unit positions. Employers should not take adverse action against employees because their union engaged in protected activities. Perhaps, most importantly, should there be any questions on whether certain actions are permissible under MERA, public sector employers should consult with an experienced labor attorney before they make a questionable personnel decision.