In the realm of Ohio public sector labor relations, the Ohio Revised Code (ORC) Chapter 4117 lays out the ground rules for the relationship between public employers and their employees, particularly when employees choose to be represented by a union. A key aspect of these regulations is the prohibition of "unfair labor practices" (ULPs), actions by either the employer or the employee organization that undermine the rights guaranteed by this chapter. One such ULP that often raises questions is "direct dealing." This blog post will delve into what direct dealing entails and under what circumstances it can cross the line into an unfair labor practice for public employers in Ohio.

Understanding the Basics: What is Direct Dealing?

At its core, direct dealing occurs when a public employer bypasses the exclusive bargaining representative (the union) and communicates directly with bargaining unit employees on matters that are subject to collective bargaining. These matters primarily involve "wages, hours, or terms and other conditions of employment and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement". The certified exclusive representative holds the right to bargain collectively on behalf of all employees within the bargaining unit. Direct dealing undermines this exclusive representation by attempting to deal with the union through the employees, rather than with the employees through the union.

When Does Direct Communication Become an Unfair Labor Practice?

While employers routinely communicate with their employees on a variety of topics, direct dealing becomes an unfair labor practice under specific circumstances, primarily violating O.R.C. §§ 4117.11(A)(1) and (A)(5).

Circumventing the Exclusive Representative (4117.11(A)(5)): The most direct form of direct dealing that constitutes a ULP is when an employer negotiates or attempts to negotiate terms and conditions of employment directly with employees instead of their union. This refusal to bargain collectively with the recognized representative is explicitly listed as an unfair labor practice. The State Employment Relations Board (SERB) emphasizes the "mutual obligation" to negotiate in good faith with the exclusive representative to reach an agreement. Bypassing the union in this process demonstrates a lack of good faith and infringes upon the union's statutory right to represent its members. For instance, an employer cannot unilaterally change wages, hours, or working conditions without first bargaining with the union.
Interference, Restraint, or Coercion (4117.11(A)(1)): Even without explicit negotiation, an employer's direct communication can constitute interference, restraint, or coercion of employees in the exercise of their rights under Chapter 4117. This occurs when the employer's communication has a tendency to undermine the employees' reliance on their union representation or to influence their decisions regarding union activities. Examples include:
- Directly soliciting employee opinions or preferences on mandatory subjects of bargaining, circumventing the union's role as the collective voice. This is viewed as an attempt to deal with the union through the employees rather than the other way around.
- Communicating directly with employees about the status of negotiations in a way that attempts to pressure them to accept the employer's terms or to distrust their union. Even truthful communications about negotiations can be unlawful if they aim to circumvent the union.
- Granting benefits or making promises directly to employees during negotiations to discourage union support. Unilaterally denying an expected wage increase to proposed bargaining-unit employees because they requested a representation election has been considered an unfair labor practice.
- Polling employees directly on issues being negotiated.
- Intentionally leaving documents for employees to find that discuss management's negotiation strategies.

The Objective Standard:

It's important to note that SERB applies an objective standard when determining whether an employer's conduct constitutes interference, restraint, or coercion. The focus is not on the employer's intent or the employees' subjective views, but rather on whether the employer's actions, under the totality of the circumstances, would reasonably tend to interfere with, restrain, or coerce employees in the exercise of their rights.

Permissible Communication:

Not all employer communication with employees is prohibited. Employers generally retain the right to communicate about operational matters, safety concerns, and other topics that are not central to wages, hours, and terms and conditions of employment. Furthermore, there may be instances where an employer can communicate factual information, such as correcting misrepresentations made by the union. However, even these communications should be carefully crafted to avoid the appearance of undermining the union's role.

Consequences of Direct Dealing:

When SERB finds that an employer has engaged in direct dealing, it can issue a cease-and-desist order, requiring the employer to stop the unlawful practice. SERB may also order affirmative action, such as requiring the employer to bargain in good faith with the union, reinstate employees who were discriminated against due to their union activities (with or without back pay), or post notices informing employees of their rights and the employer's violation.

Conclusion:

Direct dealing is a subtle but significant concept in Ohio public sector labor law. While employers have a legitimate need to communicate with their employees, it is crucial to understand that bypassing the exclusive bargaining representative on matters of wages, hours, and terms and conditions of employment can constitute an unfair labor practice. By respecting the role of the union as the employees' exclusive representative and engaging in good-faith bargaining, public employers can foster more orderly and constructive relationships with their workforce.

Next Step: To further analyze a specific situation involving potential direct dealing, consider the following:

Identify the subject matter of the communication: Does it relate to wages, hours, or terms and conditions of employment?
Assess the context of the communication: Was it made during negotiations? Did it attempt to solicit individual agreements or opinions?
Consider the potential impact on employees: Would the communication reasonably tend to undermine their reliance on the union or interfere with their protected rights?

By carefully evaluating these factors in light of ORC Chapter 4117 and relevant SERB case law, you can gain a clearer understanding of whether direct communication crosses the line into an unlawful act of direct dealing.

Ohio Union Labor Lawyers