You have the right to communicate with your employees and prospective employees on their terms and conditions of employment as long as the communication is not coercive with respect to the employees’ rights to join or participate in a union. This communication can occur:
- In a pre-employment interview
when interviewing candidates for employment;
- In an “on-boarding” discussion with a new hire;
- In personnel policies/manuals adopted by the employer
Public employer communications with employees that are factual and non-coercive are permitted. Civil Service Law §209-a provides:
Improper employer practices. It shall be an improper practice for a public employer or its agents deliberately (a) to interfere with, restrain or coerce public employees in the exercise of their rights guaranteed in section two hundred two of this article for the purpose of depriving them of such rights; (b) to dominate or interfere with the formation or administration of any employee organization for the purpose of depriving them of such rights; (c) to discriminate against any employee for the purpose of encouraging or discouraging membership in, or participation in the activities of, any employee organization; (d) to refuse to negotiate in good faith with the duly recognized or certified representatives of its public employees; (e) to refuse to continue all the terms of an expired agreement until a new agreement is negotiated, unless the employee organization which is a party to such agreement has, during such negotiations or prior to such resolution of such negotiations, engaged in conduct violative of subdivision one of section two hundred ten of this article; (f) to utilize any state funds appropriated for any purpose to train managers, supervisors or other administrative personnel regarding methods to discourage union organization or to discourage an employee from participating in a union organizing drive; or (g) to fail to permit or refuse to afford a public employee the right, upon the employee’s demand, to representation by a representative of the employee organization, or the designee of such organization, which has been certified or recognized under this article when at the time of questioning by the employer of such employee it reasonably appears that he or she may be the subject of a potential disciplinary action. If representation is requested, and the employee is a potential target of disciplinary action at the time of questioning, a reasonable period of time shall be afforded to the employee to obtain such representation. It shall be an affirmative defense to any improper practice charge under paragraph (g) of this subdivision that the employee has the right, pursuant to statute, interest arbitration award, collectively negotiated agreement, policy or practice, to present to a hearing officer or arbitrator evidence of the employer’s failure to provide representation and to obtain exclusion of the resulting evidence upon demonstration of such failure. Nothing in this section shall grant an employee any right to representation by the representative of an employee organization in any criminal investigation. (underscoring added for emphasis)
Given the possibility of being charged with an improper practice under CSL §209-a.1 (a), (b), (c) or (f), some public employers may feel overly constrained in their communications with their employees regarding issues such as agency fees, the Janus decision and the recent amendments to the Taylor Law. Such trepidation is misplaced. It is only communication by public employers that is intended to interfere, restrain, discourage or coerce from exercising their rights to join, form or participate in unions that could form the basis of an improper practice charge. Providing employees, even employees represented by a union with factual information in a non-coercive, non-threatening manner does not violate the law.
Most notably, you may notify employees specifically about their Janus rights. The Janus decision makes the issue of agency fee arrangements a prohibited subject of bargaining so discussing the commonly accepted implications of the decision cannot constitute a violation.[1] An example of a permissible notification letter is included in the appendix.
Furthermore, informing employees of changes in law in a factual manner is not a “direct dealing,” another prohibited practice, as a direct dealing charge requires negotiating with an employee for the purpose of reaching an agreement.[2]
What the public employer should
do:
- Notify all current employees in writing about the ruling in Janus v. AFSCME (see appendix)
- Ensure that communications with
applicants and new hires explain:
- They have the right the choose whether or not to join a union
- The annual dues rate of their unit’s exclusive representative
- That withdrawal of dues deduction authorization is subject to restrictions
- That the terms and conditions (e.g. pay and benefits) of their position and title are the same regardless of their membership choice.
- Make all collective-bargaining agreements, side letters, and bargaining unit definitions publicly available on the internet.
- Update the employee manual to
reflect that:
- They have the right the choose whether or not to join a union
- The terms and conditions of employment (e.g. pay and benefits) of a title are not affected by union membership
- Communications should be statements of fact that advise the employee of his/her rights and options. For example, see appendix.
[1] An employer’s communications to bargaining unit members the substance of negotiations and mediation where merely informative and not threatening or coercive is not violative of the Taylor Law. (Greenburgh 11 Union Free School District 32 PERB 3035 (1999)). An employer’s meeting with employees to inform them of previously made decision on lay-offs and transfers was not a violation. (City of Rochester, 35 PERB 4537 (2002)).
[2] To constitute a violation, the union must show that the employer was dealing with a unit employee on a mandatory subject of bargaining City University of New York, 38 PERB 3011(2005). Town-Village of East Rochester, 38 PERB 4503 (2005) involving pre- and post hire discussion of terms and conditions of employment is not a violation even if the employer made some misstatements as the employer was merely sharing information believed to be accurate.