               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Erie County Technical School,                 :
                 Petitioner                   :
                                              :    No. 1818 C.D. 2016
             v.                               :
                                              :    Argued: April 6, 2017
Pennsylvania Labor Relations                  :
Board,                                        :
                 Respondent                   :


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE ANNE E. COVEY, Judge


OPINION BY
JUDGE McCULLOUGH                                                  FILED: August 25, 2017


               Erie County Technical School (School) petitions for review of the
October 18, 2016 final order of the Pennsylvania Labor Relations Board (PLRB) that
dismissed the School’s exceptions to the hearing examiner’s decision and order,
concluding that the school violated sections 1201(a)(1) and (5) of the Public Employe
Relations Act (PERA)1 by engaging in a coercive tactic and not bargaining in good
faith.

         1
         Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §1101.1201(a)(1), (5). Section
1201(a)(1) and (5) state:

             (a) Public employers, their agents or representatives are prohibited
             from:

             (1) Interfering, restraining or coercing employes in the exercise of the
             rights guaranteed in Article IV of this act.

(Footnote continued on next page…)
              The genesis of this case stems from the fact that, during a lengthy
negotiation process with the exclusive representatives of the Erie County Technical
School Federation of Teachers (Union), the School sent a letter – dubbed as a
“memorandum” – directly to the Union’s members. In this memorandum, the School
simply recounted the “Final and Best Offer” it proposed to the Union and reiterated
that at the last bargaining meeting, the School informed the Union that the offer,
particularly a term regarding the retroactivity of wage increases, will remain on the
table for a few days, after which point it may be withdrawn. On appeal, the School,
alluding to the Free Speech Clause of the First Amendment, asserts that the
memorandum is nothing more than an accurate depiction of what occurred at the last
meeting and does not constitute an unfair labor practice. We agree and reverse the
PLRB.

                               Facts/Procedural History
            The facts are undisputed and the only issue in this case is whether the
legal conclusions the PLRB derived from those facts were in error. In January 2014,
the parties began negotiations for a successor collective bargaining agreement (CBA),
but they were unproductive, and the CBA expired four months later in June. During
the fall of 2014, the parties resumed negotiations and these meetings continued for

(continued…)

                                      *       *      *

            (5) Refusing to bargain collectively in good faith with an employe
            representative which is the exclusive representative of employes in an
            appropriate unit, including but not limited to the discussing of
            grievances with the exclusive representative.

Id.



                                              2
approximately one year without any agreement. (PLRB’s Final Order and Decision
at 1.)
             On December 2, 2015, the parties had an unsuccessful negotiation
session in which a mediator was present. On December 11, 2015, the School sent a
letter to Union’s members, which stated:

             On September 21st [2015], 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.
(Id.; Reproduced Record (R.R) at 70a.) As specified in the letter, the School attached
a copy of its Final and Best Offer. (PLRB’s Final Order and Decision at 1.)
             On December 14, 2015, the Union filed a charge alleging, inter alia, that
the Union committed unfair labor practices under sections (a)(1) and (5) of PERA. A
hearing was held before a hearing examiner on March 10, 2016, at which both parties
presented testimony and documentary evidence establishing the facts above.         In
concluding that the Union violated PERA, the hearing examiner provided the
following rationale:

             The memorandum is directly addressed to the bargaining
             unit members rather than being information that is publicly
             released such as an update on a website or a statement made
             to the press. Thus, the obvious intent of the memorandum


                                           3
            is to directly communicate with the bargaining unit
            members in the context of ongoing negotiations. Further,
            the memorandum contains 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.” This is a clear
            effort by the School to coerce the bargaining unit members
            by threatening to remove benefits from their “Final and
            Best Offer.” This statement is a bald appeal by the School
            directly to the bargaining unit members and goes beyond a
            mere informational statement.
(PLRB’s Final Order and Decision at 1, quoting Hearing Examiner’s Decision at 3.)
            Thereafter, the School filed exceptions, alleging that the hearing
examiner erred in concluding that it violated sections 1201(a)(1) and (5) of PERA
because the memorandum was an objective account of the status of negotiations. The
School further alleged that the language regarding retroactivity was not coercive or
threatening because it accurately portrayed what had occurred at the December 2,
2015 meeting with the Union and was merely a factual representation of the School’s
bargaining position.
            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.” (PLRB’s Final Order and Decision at 5.)
            In making this determination, the PLRB first recounted that under the
First Amendment, an employer is generally allowed to communicate with unionized
employees during negotiations, even though the union’s representatives are the
exclusive bargaining agents for the union’s members. However, the PLRB stated, the
employer cannot make direct or indirect threats or communicate in a coercive manner
and, also, cannot attempt to negotiate directly with the union members, instead of


                                         4
their representatives, in an attempt to circumvent the collective bargaining process.
The PLRB then found that the current facts rendered this case indistinguishable from
its previous decision in Pennsylvania Labor Relations Board v. Portage Area School
District, 7 PPER 325 (Nisi Decision and Order, 1976), where the PLRB concluded
that a school district’s superintendent violated PERA when he sent a letter to the
union’s members during negotiations for a successor agreement which said that the
district would terminate all ongoing fringe benefits if the parties did not reach an
agreement before the expiration of their contract. (PLRB’s Final Order and Decision
at 3.)
             In likening this case to Portage Area School District, the PLRB
concluded:

             Similarly, here, the School’s memorandum was specifically
             addressed to all [the Union’s] members and contained a
             statement that if an agreement was not reached by
             December 14, 2015, “there was no guarantee the wage
             increase proposed would be retroactive.” Notably, the
             [Union’s] members received the School’s memorandum just
             three days before the School’s self-imposed December 14,
             2015, deadline. Clearly, the intent of the memorandum was
             to bypass the Union and coerce the [Union’s] members into
             pressuring the Union to reach an agreement under threat of
             the loss of retroactive wage increases.
(Board’s Final Order and Decision at 4.) In other words, the PLRB, while noting that
“veiled threats are as unlawful as direct threats,” held that “the statement [was] a
threat to [the Union’s] members that they [would] lose their retroactive pay if they do
not ratify the School’s proposal by December 14th.”             (Id. quoting Hearing
Examiner’s Decision at 3-4.)




                                          5
             Accordingly, the PLRB determined that the School violated sections
1201(a)(1) and (5) of PERA and ordered the School to cease and desist from refusing
to bargain in good faith. The School then filed a petition for review in this Court.


                                      Discussion
             The School maintains that the memorandum reflects “an objective and
factual recital of the School’s position on retroactive pay, exactly as it was expressed
to the [Union] at its December 2, 2015 meeting” and “cannot be considered
coercive.” (School’s brief at 8.) Referencing the First Amendment, the School
further argues that it “exercised its well-established right to inform its employees of
the state of negotiations and proposal which were previously presented to the Union.”
Id. at 12. For these reasons, the School contends that the Board’s legal conclusions
with respect to coercive activity and bad faith are unsustainable as a matter of law.
             Section 1201(a)(1) of PERA generally prohibits attempts by the
employer to exercise coercion or control over the union and its members by
forbidding employers from “[i]nterfering, restraining or coercing employes in the
exercise of the rights guaranteed in” PERA. 43 P.S. §1101.1201(a)(1). A finding of
a violation of section 1201(a)(1) naturally requires a finding of interference with or
restraint or coercion of employees in the exercise of their rights guaranteed by section
401 of PERA, 43 P.S. §1101.401. That section of PERA is the “employe rights”
provision and provides, in part, that “[i]t shall be lawful for public employes . . . to
bargain collectively through representatives of their own free choice[.]” 43 P.S.
§1101.401.
             Pursuant to section 1201(a)(5) of PERA, an employer is obligated to
bargain in good faith with the union’s “exclusive representative.”              43 PS.



                                           6
§1101.1201(a)(5). Although it appears that the duty of good faith has not been
defined or elaborated upon in much detail by the courts of this Commonwealth, the
PLRB predicated the section 1201(a)(5) violation as being dependent upon the
section 1201(a)(1) violation, concluding that where an employer deals directly with a
union’s members, and therefore violates the rights conferred under section 1201(a)(1)
of PERA, the employer is not bargaining in good faith and also violates section
1201(a)(5). See PLRB’s Final Order and Decision at 3 (“An employer’s threats,
coercion, and direct dealing with employes to circumvent the employe representatives
are unfair labor practices under Sections 1201(a)(1) and (5) of PERA.”) (citation
omitted); accord Allied Chemical & Alkali Workers, Local Union No. 1 v. Pittsburgh
Plate Glass Co., 404 U.S. 157, 163 n.6 (1971).
             Because both violations stem from, and are based entirely upon, the fact
that the School sent the memorandum to the Union’s members directly, the unfair
labor charges under sections 1201(a)(1) and (a)(5) of PERA necessarily rise and fall
together. The primary question presented, therefore, is whether the memorandum can
be said to have interfered with the Union’s members’ right – or coerced or threatened
them with respect to their right – to bargain collectively through the Union.
             Both the PLRB and this Court have recognized that “the employer has a
First Amendment right under the Constitution of the United States to communicate
his general views to his employees.”        Pennsylvania Labor Relations Board v.
Stairways, Inc., 425 A.2d 1172, 1178 (Pa. Cmwlth. 1981); see American Federation
of State, County, & Municipal Employees, Local Union No. 1971 v. Philadelphia
Office of Housing and Community Development, 31 PPER ¶31055, 2000 PA PED
LEXIS 13, at *14 (Final Order 2000) (“[A]n employer has a protected right to free
speech.”). In its opinions, the PLRB has stated:



                                           7
             Ordinarily, rights of free speech remain operational during
             periods of negotiation between the parties . . . . The law is
             equally well established that an employer is not precluded
             from communicating, in noncoercive terms, with employes
             during negotiations, so long as such communications are
             not an attempt to negotiate directly with bargaining unit
             members.
Chester County Intermediate Unit No. 24 Education Association, PSEA-NEA v.
Chester County Intermediate Unit No. 24, 35 PPER ¶110, 2004 PA PED LEXIS 24,
at **3-4 (Final Order 2004).
             In applying this standard, the PLRB and/or hearing examiners acting on
behalf of the PLRB have created a set of parameters to gauge, in general, when an
employer commits an unfair labor practice in commenting on the status of
negotiations with a union’s representatives.
             For example, when a public employer placed a “Negotiations Timeline”
on its website that provided a chronological summary of the negotiations that had
occurred between bargaining representatives for the union and the employer, the
PLRB found that no unfair labor practices were committed under sections 1201(a)(1)
and (a)(5) of PERA. The PLRB reasoned that the employer acted lawfully because
the timeline was not “an attempt to negotiate directly with individual bargaining unit
members” and, although it included the employer’s “impressions and opinions of
the negotiating process,” it did not contain any “specific factual misrepresentation or
mischaracterization.”   Chester County Intermediate Unit No. 24, 2004 PA PED
LEXIS 24 at **3-5. The PLRB further determined that “to the extent that the [u]nion
regards the information in the ‘Negotiations Timeline’ to be inaccurate or requiring a
response from the [u]nion, the [u]nion remains free to communicate its position as it
deems appropriate.” Id. at **6-7.




                                           8
             In another case, a public employer held a “meet and discuss” session
with the union’s representatives and two days later sent an email to the union’s
members, informing them of the meeting and listing and discussing five specific
“problems,” each dealing with the issue of employee scheduling. The email stated:
“We will meet with your representatives again in about two weeks to get their input
into solving these problems. I would like all of you to know what issues we have
discussed with your union representatives. If you have ideas on how these issues
might be resolved, please submit them to your union representatives within the next
two weeks.” Pennsylvania Social Service Union Local 668 Service Employees
International Union v. Department of Public Welfare, Erie CAO, 41 PPER ¶35, 2010
PA PED LEXIS 53, at *2 (Proposed Decision and Order, 2010).                     One of the
“problems” involved the employee’s request for time off, and the email expressly
advised the union’s members that, despite the past practice of the parties, “[t]here is
no local Leave Agreement and the leave request period could be changed to a
different time.” Id. at *4. The email then concluded: “I am sharing this information
with you so that you are aware of the issues we are currently discussing with your
labor representatives.” Id.
             The hearing examiner dismissed the unfair labor charges, explaining as
follows:

             A close review of the record does not show that [the
             employer] engaged in direct dealing when she sent the
             email. Notably, the record shows that the parties held a
             meet and discuss session about the subject matter of the
             email (scheduling) two days before [the employer] sent the
             email, so it is apparent that she only sent the email after [the
             union’s representatives] had a meaningful opportunity to
             consider any proposals about scheduling. Moreover, the
             record shows that her email was not coercively phrased.



                                            9
             Furthermore, the record does not show that [the employer]
             misrepresented [the union’s] position.
Id. at **12-13. In so holding, the hearing examiner in Social Service Union Local
668 noted that the union “cited a host of direct dealing cases as controlling authority,”
but found that “[a]ll of them were distinguished on the facts by [a] former hearing
examiner.” Id. at **14. Adopting the reasoning of that hearing examiner, the hearing
examiner ultimately concluded that the cases relied upon by the union were “not on
point because they either involved attempts to directly negotiate with employes or
employer communications during contract negotiations which did not give an
objective account of the status of those negotiations.” Id. at **15.
             Conversely, in distilling prior precedent, the PLRB has concluded that,

             an employer engages in direct dealing and bypasses the
             exclusive bargaining representative when 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 employes, who may not be privy to the full
             panoply of issues relevant to the proposal or the
             negotiations in general.
Philadelphia Office of Housing and Community Development, 2000 PA PED LEXIS
at *17. As a concrete illustration of this principle, in Philadelphia Federation of
Teachers, Local # 3 v. Philadelphia School District, 25 PPER ¶25049 (Proposed
Decision and Order 1994), a hearing examiner determined that an employer exceeds
the limits of free speech in labor relations and engages in unlawful direct dealing with
its employees when it presents its employees with a new, specific proposal at a staff
meeting and the proposal concerned a matter that was the subject of negotiations
between the employer and the union negotiators. The hearing examiner concluded
that such direct dealing destabilizes the status of the union, as the exclusive


                                           10
bargaining representative, and undermines the employees’ confidence and trust in the
union. See Philadelphia Office of Housing and Community Development, 2000 PA
PED LEXIS at *15 (summarizing this decision).
             In Portage Area School District, the school district’s superintendent sent
a letter to all bargaining unit members during negotiations for a successor agreement,
which stated that the district would terminate existing fringe benefits, such as health
insurance, if the parties did not reach an agreement before expiration of the parties’
CBA. The PLRB concluded that the school district committed an unfair practice by
sending the letter to the union’s members stating, in relevant part, as follows:

             A threat made during the pendency of negotiations to
             unilaterally eliminate economic fringe benefits because a
             successor collective bargaining agreement has not been
             negotiated can only be viewed by the [PLRB] as a device to
             intimidate or coerce the [union] and its members to reach
             such an agreement. A threat so made is as disruptive to the
             collective bargaining practice as is an actual unilateral
             cessation of such benefits.

                                     *     *      *

             Here, the threatening letter was specifically addressed to
             “Members of the Portage Area Education Association.”
             Said letter specifically states that [the school district’s]
             payment of certain economic fringe benefits would be
             discontinued “for all members of the Portage Area
             Education Association.” When viewed in the context of
             negotiations, it appears, and we infer, that members of the
             [union] were singled out, since they were the ones who
             would vote to ratify any [CBA], and they were the ones
             who, because of their relation to the [union], could put
             pressure on the [union’s representatives and members] to
             reach such an agreement. Nothing in the record tends to
             alter this inference.

             An attempt to interfere with the administration or existence
             of an employe organization may be direct or indirect.

                                           11
             Where unlawful threats are made to members of the
             employe organization, which are found to be designed to
             place economic coercion on those members so as to force
             an agreement, such tends to weaken the position of the
             employe organization at the bargaining table, tends to
             interfere with the internal processes of the organization, and
             tends to weaken the collective bargaining process, itself.
(PLRB Final Order and Decision at 3-4, quoting Portage Area School District, 7
PPER at 236-237.)
             Upon our review, the School’s memorandum, on balance, appears to us
to be more closely aligned with the correspondence in the PLRB cases that have
found that the employer did not engage in an unfair labor practice. It is undisputed
that the memorandum was factually accurate from an objective standpoint, informing
the Union’s members of what had happened at the prior meeting and directed them to
take any issues that they may have had to their representatives. Unlike the situation
in Philadelphia School District, the School did not bypass the Union’s representatives
and submit a new proposal to the Union’s members. Instead, the School advised the
Union’s representatives that its “Final and Best Offer,” specifically the term
pertaining to retroactive wage increase, may not be on the table in the near future, and
twelve days later, relayed this information to the Union’s members. The Union’s
representatives also had more than two months to consider the Final and Best Offer
before the School presented it to the Union’s members and, consequently, the
representatives had “a meaningful opportunity to consider the proposed matter in the
context of bargaining without external influences or reactions from employes.”
Philadelphia Office of Housing and Community Development, 2000 PA PED LEXIS,
at *17. In these circumstances, it is difficult to see how the School interfered with the
right of the Union’s members to bargain collectively through their representatives
because the School first submitted the offer to the representatives, did not bypass or


                                           12
otherwise undermine their authority to consider the proposal or negotiate the
successor agreement, and told the Union’s members to contact their representatives if
they had any questions.
               Moreover, although the PLRB found the memorandum to be “virtually
identical” to the letter in Portage Area School District, (PLRB’s Final Order and
Decision at 3), there is a fundamental distinction between the two. In Portage Area
School District, the school district told the union members that it would unilaterally
eliminate their existing and ongoing right to fringe benefits while the parties
negotiated a successor CBA. Here, by contrast, the School advised the Union’s
members that a favorable term of a proposed successor CBA may or may not be part
of the successor agreement in the event the successor agreement is not ratified within
a prescribed timeframe.         While the former situation constitutes a threat by the
employer to discontinue benefits that continue in force per the prior CBA – or
disrupted the status quo – during the negotiation process and used this threat to urge
coercive acceptance of a successor agreement, the latter scenario pertained to the
status of the negotiations and related to the potential terms or conditions to be
included in the successor agreement itself.2

       2
          See generally Pennsylvania Labor Relations Board v. Williamsport Area School District,
406 A.2d 329 (Pa. 1979) (explaining that under sections 1201(a)(1) and (a)(5), the unlawful
unilateral cessation of benefits occurs when the employer disrupts the status quo by failing to abide
by the terms and conditions of an expired CBA during negotiations); and compare with Fairview
School District v. Unemployment Compensation Board of Review, 454 A.2d 517 (Pa. 1982)
(concluding that the school district did not violate the status quo by refusing to pay stepped-up
salary increases after the collective bargaining agreement expired); Neshaminy Federation of
Teachers Local Union 1417 v. Pennsylvania Labor Relations Board, 986 A.2d 908 (Pa. Cmwlth.
2009) (reinforcing the principle that wages and wage increases are mandatory subjects of bargaining
and concluding that the school district did not violate the status quo or commit an unfair labor
practice by refusing to pay increases that could have been deemed to have accrued during expiration
period).



                                                 13
              Put simply, the Union’s members were not yet (and may never be)
vested with the right to the proposed wage increase and retroactivity of that wage
increase, and, for purposes of labor law, the School could not have unlawfully
terminated or threatened to terminate a right that never existed in the first place. This
is because “[a]bsent abuse not present here, it is perfectly legitimate for a party to
retract a proposal before the other side has accepted it,” Soule Glass and Glazing Co.
v. National Labor Relations Board, 652 F.2d 1055, 1083 (1st Cir. 1981) (citation
omitted), and “[t]he withdrawal of previous proposals or tentative agreements does
not in and of itself establish the absence of good faith.” Mead Corp. v. National
Labor Relations Board, 697 F. 2d 1013, 1022 (11th Cir. 1983). Contrary to the
PLRB’s conclusion, the memorandum was not a veiled threat of reprisal “through the
loss of retroactive pay increases.” (PLRB’s Final Order and Decision at 5.) Merely
bargaining by refining, withdrawing, or countering a proposal cannot be deemed
coercive because these are the basic tools of the negotiation process.
              Our conclusion that the School did not run afoul of sections 1201(a)(1)
and (a)(5) of PERA finds ample support in the decisions of the federal courts of
appeals, which are seemingly unanimous in holding that an employer does not
commit an unfair labor practice in circumstances that are materially indistinguishable
from the facts of this case.3, 4

       3
         These cases are brought under the National Labor Relations Act (NLRA), 29 U.S.C.
§§151—168, and concern purported violations of sections 8(a)(1) and/or (a)(5), 29 U.S.C.
§158(a)(1), (a)(5). See, e.g., Americare Pine Lodge Nursing & Rehabilitation Center v. National
Labor Relations Board, 164 F.3d 867, 876-77 & 878-89 (4th Cir. 1999); accord Overnite
Transportation Co. v. National Labor Relations Board, 280 F.3d 417, 432-33 (4th Cir. 2002) (en
banc) (“In this case, [the employer] informed the Teamsters of its proposed productivity plan before
informing the representative employees of the plan. The plan was sent to union representatives on
December 11, 1995, by overnight mail. When [the employer] presented the plan to its
representative employees on December 13, it was merely exercising its right to publicize its
(Footnote continued on next page…)

                                                14
(continued…)

bargaining position. The record does not suggest that the proposal was coercive in any way. To the
contrary, represented employees were told that [the employer] was negotiating over the increase
with the union and that they should refer feedback and questions to their union representatives.
Those negotiations were scheduled to begin around December 17, 1995 . . . . The Teamsters,
however, rejected the offer.”); Facet Enterprises, Inc. v. National Labor Relations Board, 907 F.2d
963, 968-69 (10th Cir. 1990) (“On December 2, 1983, [the employer] sent a letter to its striking
Detroit employees enclosing a copy of the company’s latest bargaining proposal and exhorting
employees to return to work under the terms of that offer . . . . On December 13, 1983, [the
employer] mailed a second letter to the striking Detroit employees responding to some of press
releases issued by the Union . . . . Standing alone, the two letters [the employer] sent to its Detroit
employees would be insufficient evidence to support a finding of direct dealing. Rather, the letters
are legitimate attempts to communicate [the employer’s] bargaining position and controvert public
statements by the Union.”); see also Royal Typewriter Co. v. National Labor Relations Board, 533
F.2d 1030, 1034 & 1038 (8th Cir. 1976) (“The Union contends that the Board erred in failing to find
a separate Section 8(a)(1) violation in three speeches made on February 21, 1969, by [the
employer’s] attorney, to the . . . employees . . . . [F]rom our review of the text of the speeches –
basically a report on what [the attorney] had told the Union during negotiations – we find the
Board’s decision to reject this contention to be supported by the record.”); cf. also Philip Carey
Manufacturing Co. v. National Labor Relations Board, 331 F.2d 720, 727 (6th Cir. 1964) (“The
Company’s superseniority proposal was first made in its letter of September 26 . . . . The Board
noted that after that date there were no further meetings until the Company withdrew its
superseniority proposal . . . . There can be no doubt that the Union opposed vigorously the
superseniority proposal and that it immediately became a major obstacle in negotiations . . . . The
letter of September 26 said simply that, unless agreement was reached, the Company would make
superseniority a part of its proposed contract. This did not mean necessarily that the Company
was putting superseniority into effect, in violation of §8(a)(3), and we find that this letter, in and of
itself, [was not] in violation of §8(a)(5).”) (emphasis in original).

       4
          Because sections 1201(a)(1) and (a)(5) of PERA are modeled after sections 8(a)(1) and
(a)(5) of the NLRA, this Court may rely upon federal case law interpreting those provisions as
persuasive authority. Office of Administration v. Pennsylvania Labor Relations Board, 916 A.2d
541, 550 (Pa. 2007) (“[O]ur Court has not hesitated to consider, and to follow, federal interpretation
of the NLRA due to the similarity between the federal labor law and our own laws dealing with
labor relations.”); see also Pennsylvania Labor Relations Board v. Mars Area School District, 389
A.2d 1073, 1076 (Pa. 1978); accord In re Appeal of Cumberland Valley School District, 394 A.2d
946, 950 (Pa. 1978).



                                                  15
             In perhaps the most comprehensive compilation of case law and
discussion on direct-dealing cases involving an employer’s communications with
employees, the United States Court of Appeals for the Fourth Circuit explained:

             The [National Labor Relations Board (NLRB)] and the
             courts unanimously have recognized that an employer
             violates §8(a)(1) and (a)(5) if it engages in direct dealing
             with employees and thereby interferes in the collective
             bargaining process and in the union’s role as the exclusive
             bargaining representative. Improper direct dealing is
             characterized by actions that persuade employees to believe
             that they can achieve their objectives directly through the
             employer and thus erode the union’s position as the
             exclusive bargaining representative. Another way to frame
             the question of direct dealing is whether the employer has
             chosen to deal with the Union through the employees, rather
             than with the employees through the Union . . . .
Americare Pine Lodge Nursing & Rehabilitation Center v. National Labor Relations
Board, 164 F.3d 867, 875 (4th Cir. 1999) (citations omitted).         The court then
continued:

             Counterbalancing the prohibition against direct dealing is
             an employer’s strong interest in preserving its right to free
             speech . . . .

             Drawing the line between an employer’s freedom to speak
             and direct dealing produces a relatively straightforward
             standard of permissible conduct. An employer may speak
             freely to its employees 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. But, under §8(c) the employer cannot act in a
             coercive manner by making separate promises of benefits or
             threatening employees. Thus the employer may freely
             communicate with employees in noncoercive terms, as
             long as those communications do not contain some sort
             of express or implied quid pro quo offer that is not
             before the union. This standard recognizes the right of

                                          16
             represented employees to negotiate exclusively through the
             union, while protecting the right of employers to tell their
             side of the story.
Americare Pine Lodge, 164 F.3d at 875 (citations omitted) (emphasis added). From
these premises, the court deduced the general proposition that “[c]ommunications to
employees that inform them of the employer’s bargaining position constitute no
violation” of the NLRA, because “employers may freely inform employees of
bargaining proposals, and certainly may do so if the proposals are already before the
union.” Americare Pine Lodge, 164 F.3d at 876.
             After providing the appropriate legal framework, the court in Americare
Pine Lodge applied the precepts to the facts before it. In that case, near the expiration
of a collective bargaining agreement, the employer sent a letter on July 5, 1995,
offering a one-year contract extension in return for hourly wage increases to the
business office of the union’s representative. The employer also sent copies of the
letters to the union’s members, and shortly thereafter, posted the letter near the
employees’ time clock so that the employees could read it. The offer, by its own
terms, was set to expire on July 17, 1995. However, the union’s representative
decided that the employees did not favor the offer and simply allowed the offer to
expire.
             On July 28, 1995, the employer in Americare Pine Lodge sent the
union’s representative another letter, which proposed an offer that contained the
hourly wage increase in the prior offer and clarified that the anniversary wage
increases in the former collective bargaining agreement would continue to be a term
in the new proposed collective bargaining agreement. In addition, the letter said that
the “proposal is much more than [the employer] will be offering if we have to bargain
in December 1995.” Id. at 872. This letter, too, was copied to the union’s members
and posted near the time clock, and the union’s members were informed that the offer

                                           17
would be withdrawn on August 4, 1995. Ultimately, the parties were unable to reach
an agreement and labor charges ensued.
            Relevant to the present case, the NLRB found that the employer engaged
in unlawful direct dealing by posting the letters at the employees’ work station and
also by suggesting that the same offer would not be forthcoming if negotiations were
conducted in December. In overruling the NLRB on the posting issue, the Fourth
Circuit concluded:

            [T]he publication of the exact offer that is properly before
            the union for consideration in no way erodes a union's
            position as the bargaining representative. There is no hint
            of a separate quid pro quo arrangement between the
            employer and employees in such circumstances and there is
            no danger of coercion. Instead, such notification tends to
            support the free exchange of information that aids
            employees in making informed decisions and promotes a
            stable bargaining environment . . . .

            [The employer] posted the letters only after it transmitted
            the letters to the Union and in exactly the same form . . . .
            There was no reference in the letters that could be construed
            as an invitation for direct bargaining. In summary, the
            letters were free of coercion, thus complying with §8(c),
            and communicated only proposals that were properly before
            the Union, thus complying with §8(a)(1) and (a)(5).
            Accordingly, we find no unfair labor practice under the
            [NLRA].
Americare Pine Lodge, 164 F.3d at 876-77.
            In reversing the NLRB on the second issue, the court determined:

            The [NLRB] concluded that the July 28 offer letter, which
            stated that the proposal was “much more than we will be
            offering if we have to bargain in December 1995,”
            constituted direct dealing because it invited abandonment of
            the union, presumably in favor of direct negotiation. This
            conclusion is unsupportable. [The] statement was neither a
            promise of benefit nor threat of detriment and was thus

                                         18
            protected under §8(c). The offer was placed before the
            Union, and the Union had the right to accept or reject the
            proposal. If rejected, the status quo simply would continue
            until the contract expiration. The language of the letter
            would certainly encourage the Union to consider the offer
            seriously, but we fail to see how it would encourage
            employees to abandon the Union in favor of direct
            negotiations. We find no substantial evidence of a violation
            in this statement.
Americare Pine Lodge, 164 F.3d at 879.
            Here, the School’s memorandum is just as innocuous (or even more so)
than the letters in Americare Pine Lodge. Therefore, we conclude that the PLRB
erred, as a matter of law, in determining that the School violated sections 1201(a)(1)
and (5) of PERA. Accordingly, we reverse.




                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge




                                         19
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Erie County Technical School,           :
                 Petitioner             :
                                        :    No. 1818 C.D. 2016
            v.                          :
                                        :
Pennsylvania Labor Relations            :
Board,                                  :
                 Respondent             :


                                    ORDER


            AND NOW, this 25th day of August, 2017, the October 18, 2016 final
order of the Pennsylvania Labor Relations Board is hereby reversed.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
