Employment Law Daily ‘Non-threatening’ letter to bargaining rep did not violate state labor law or First Amendment
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Friday, April 22, 2016

‘Non-threatening’ letter to bargaining rep did not violate state labor law or First Amendment

By Marjorie Johnson, J.D. An assistant superintendent’s letter to the exclusive bargaining representative of the county board of education’s professional employees, which among other things reminded the rep that it could not represent principals and assistant principals and suggested that some of the rep’s statements “could be construed as intimidating,” did not violate the Tennessee Education Professional Negotiations Act (EPNA). Rather, the letter merely expressed the board’s views on employee-employer relations and contained no threat of reprimand or promise of benefit. The Sixth Circuit affirmed summary judgment in favor of the board on the association’s EPNA claims as well as its First Amendment expressive association claim (Hamilton County Education Association v. Hamilton County Board of Education, April 20, 2016, Suhrheinrich, R.). Hamilton County Education Association (HCEA) was the exclusive bargaining representative for the Hamilton County Department of Education professional employees. In May 2011, HCEA and the Hamilton County Board of Education (the Board) entered into a three-year collective bargaining agreement (CBA). Meanwhile, the Professional Educators Collaborative Conferencing Act (PECCA) was passed by the Tennessee legislature, which amended and replaced EPNA. However, PECCA would not govern the parties’ relationship until the expiration of their existing agreement on June 30, 2014. New PECCA provisions. PECCA implemented two relevant changes. First, it created a new category of board employees known as “management team” members who were no longer considered “professional employees” entitled to participate in concerted activities as part of a “professional employee organization”, which included principals and assistant principals. PECCA also made it unlawful for a professional employee organization to coerce or attempt to intimidate professional employees who choose not to join such an organization. Notes from HCEA meeting. Following HCEA’s monthly meeting in September 2013, a teacher received a copy of her HCEA representative’s notes. She forwarded them to the Board’s assistant superintendent for HR and expressed concern over reports of “horror stories” from other counties where CBAs expired. The notes suggested that if HCEA’s membership fell below a majority, its CBA would become void and teachers would be subjected to unfavorable working conditions. The assistant superintendent also obtained a promotional flyer that was distributed at the meeting which referred to a competing organization (the Professional Educators of Tennessee) as a “cheap dime-store knockoff,” and learned that the HCEA president was encouraging principals to maintain their HCEA membership. Board’s letter. The assistant superintendent wrote a letter to the HCEA president in which she referred to her comments to the principals and noted that under PECCA, it could not represent principals and assistant principals. She concluded, “I trust that this information will be shared appropriately with any [department of education] administrators.” She also suggested that the statements at the meeting describing the potential consequences of decreased membership “could be construed as intimidating” and pointed to the document that referred to a competing organization in “pejorative ways.” She concluded by citing to PECCA’s new prohibition on coercing or intimidating employees who choose not to join a professional employee organization and stated that the department “respectfully asks that HCEA and its representatives refrain from continuing such negative or coercive statements” and that continued coercion would “result in an official request for a retraction of such statements or in clarification/correction of these statements by the district.” Lower court proceedings. The HCEA alleged that the Board’s letter (1) interfered with, restrained, or coerced employees in the exercise of their rights to self-organization and concerted activities; (2) interfered in the administration of HCEA and assisting its rival organization; and (3) infringed on its First Amendment rights. The district court dismissed all claims on summary judgment, finding that the Board’s letter did not contain any threat of reprisal or significantly burden HCEA’s expressive activity. Mootness. The Sixth Circuit first agreed with the district court’s determination that the EPNA claims did not become moot when PECCA became effective since the applicable EPNA provisions continued to exist in identical form in PECCA, just in a different numbered section of the Tennessee Code. Indeed, the two statutes were not only “sufficiently similar” to present the same controversy—they were totally identical. Non-threatening. Appropriately considering NLRA caselaw, the lower court also correctly concluded that the Board’s letter was non-threatening. Notably, the law’s language granting protection for employer expression was not limited to speech that discriminated on the basis of union membership but broadly protected “any views or opinions on the subject of employer-employee relations.” Moreover, the assistant superintendent did not go beyond an expression of opinion by insisting that her views be communicated to HCEA members and that HCEA refrain from certain statements. And although the HCEA suggested that her statements interfered with its recruiting methods, they did not threaten discharge or any other disciplinary response. In sum, the letter expressed the board’s views on employee-employer relations and contained no threat of reprimand or promise of benefit. First Amendment claim. HCEA also failed to revive its First Amendment claim. While the Board’s letter expressed its view that HCEA should inform principals and assistant principals of their altered status under PECCA, it did not dictate whether HCEA could accept them as members. Similarly, its request that HCEA refrain from making comments the board rightly or wrongly believed to be improper did not constitute a “a general prohibition against certain forms of advocacy,” nor did it “impose sanctions for the expression of particular views.” In sum, nothing in the letter hindered employees’ association with HCEA, prevented employees from soliciting others to join HCEA, or discouraged HCEA from advocating on behalf of its members.

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