Direct Communication to Employees of Status of Negotiations Is Not An Unfair Labor Practice

by Tucker Arensberg, P.C.

Erie County Technical School v. Pennsylvania Labor Relations Board, 1818 C.D. 2016 (2017) (Commonwealth Court concluded that an employer’s direct communication with its employees concerning the status of ongoing negotiations was not an improper coercive tactic or bad faith bargaining).


In January 2014, Erie County Technical School (School) and the union representative of its teachers, the Erie County Technical School Federation of Teachers (Union), began negotiations for a successor collective bargaining agreement. The negotiations extended months beyond the expiration of the collective bargaining agreement in June 2014. In December 2015, the parties had an unsuccessful negotiation session in which a mediator was present. Several days later, the School sent a letter to the Union’s members, which stated:

On September 21st, 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.

As stated in the letter, the School attached a copy of its Final and Best Offer. Further, the memorandum contained 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.”

In response, the Union filed a complaint with the Pennsylvania Labor Relations Board (PLRB) charging that the School’s direct communication to the teachers via the memorandum violated the Public Employee Relations Act (PERA) by engaging in a coercive tactic and not bargaining in good faith. The School contended that the communication was protected by the First Amendment and that the memorandum was an accurate depiction of what occurred at the bargaining table. 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.”

On appeal, the Commonwealth Court reversed the PLRB’s order, concluding that the School’s informational communication to its teachers was not an unfair labor practice.


The Commonwealth Court noted that both Pennsylvania courts and the PLRB have recognized that an employer has a First Amendment right under the Constitution of the United States to communicate its general views to his employees and that such right remains operational during periods of labor negotiation․ Further, the Court observed that it is well established that an employer is not precluded from communicating, in noncoercive terms, with employees during negotiations, so long as those communications are not an attempt to negotiate directly with bargaining unit members.

In this context, the Court first reviewed whether the School’s memorandum to staff was threatening in nature. Although the memorandum stated that the retroactivity of proposed wage increases could be withdrawn by the School in further negotiations, the Court opined that, because employees did not have a vested right to retroactive wage increases, it was not coercive for the School to state that it could retract proposed retroactivity absent a prompt contract settlement.

Next, the Court considered whether the memorandum was direct dealing in derogation of the Union’s status as the exclusive bargaining representatives. Relevant to this inquiry is whether a bargainable matter is not first presented to the union representative in a bargaining atmosphere where the union negotiator has a meaningful opportunity to consider the proposed matter in the context of bargaining without external influences or reactions from employees, who may not be privy to the full panoply of issues relevant to the proposal or the negotiations in general. Here, the School’s memorandum recounted the terms of the actual proposal presented to the Union bargaining team days before. Thus, the Court concluded this factual recitation of what was presented at the bargaining table did not undermine the authority of the Union.

Consequently, the Court determined that the School’s memorandum to staff was not coercive and did constitute improper direct negotiations with staff members. Accordingly, the Court reversed the PLRB’s decision.

Practical Advice

This decision exemplifies the right of a school district to communicate directly with its employees regarding ongoing contract negotiations. A school district may speak freely to its staff about a wide range of issues including the status of negotiations, outstanding offers, its position, the reasons for its position, and objectively supportable, reasonable beliefs concerning future events. The school district cannot act in a coercive manner by making separate promises of benefits or threatening employees. As long as the school district communicates with employees in noncoercive and informational terms and those communications do not contain some sort of express or implied quid pro quo offer that is not before the union, an unfair labor practice is not committed.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Tucker Arensberg, P.C. | Attorney Advertising

Written by:

Tucker Arensberg, P.C.

Tucker Arensberg, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.