Governor John Kasich has announced his intention to push for a radical retrenchment of Ohio’s Public Employee Bargaining Law, Ohio Revised Code Chapter 4117.  Passed in 1983 during the first year of Governor Richard Celeste’s term, the bill gave unions representing state employees the right to bargain with the state, allowed unions representing state and local governments, including school districts, the right to bargain and gave the right to strike to non-safety unions.  Safety unions gained the right to arbitration (called “conciliation” under the Act) but not the right to strike. 

In the years since its passage, the Act has predictably resulted in a shift of governmental funding towards wages and benefits.  The dispute resolution processes in the Act have removed key fiscal decisions from the control of elected officials and placed them in the hands of private arbitrators, many of whom have primary locations outside of Ohio and certainly outside the boundaries of local governments.  Also unsurprisingly, the incidence of strikes by public sector unions has dropped.

All of these effects were predictable [and were predicted–see Bumpass & Ashmus, Public Sector Bargaining in a Democracy—An Assessment of the Ohio Public Employee Collective Bargaining Law, 33 Cleveland St. L. Rev. 593 (1984-85)], but there was little or no pressure, except from local officials, to do much about them.  The November 2010 elections, however, brought strong Republican majorities to both houses of the General Assembly along with a Republican Governor.  Coupled with a serious fiscal crisis for the state and many of its political subdivisions, there is a significant chance that the Act will be amended along the lines proposed by Gov. Kasich. 

While a detailed analysis of the potential changes is beyond the scope of this entry, the current bill (Sub. S. B. No. 5—Jones) would eliminate mandatory bargaining rights for state employees, remove many subjects (class size, for example) from the permissible scope of bargaining, remove safety supervisors from unions, outlaw strikes and eliminate mandatory arbitration of contract disputes.  Local government and school district employees would retain bargaining rights.  This would indeed be a major retrenchment of union power over Ohio’s public employee terms and conditions of employment.

An interesting element in the discussion is the extent to which the debate about public sector unionization’s adverse impact on state and local government operations is likely to fuel debate over unionization in the private sector, where at least one study (pdf) has shown that right-to-work states out-compete their mandatory union membership peers. There are already questions being asked at news conferences about the willingness of the Governor to support a Right to Work Law for Ohio.   Gov. Kasich has so far expressed his preference to see whether manufacturing sector unions will be a positive force in his attempts to recruit new businesses to Ohio.  The other shoe could well drop, though, if the unions seek to thwart the Governor’s ambitious development agenda. 

The Department of Labor has been taking aggressive steps to prevent employers from exercising their rights to provide information to their employees during union campaigns.  Under the Labor-Management Reporting and Disclosure Act, employers must disclose the amounts they spend on consultants either attempting to influence their employees about the choice of unionization or providing information to employers about certain union activities. 

The consultants must also report—not only for that employer, but for all their labor clients.  Not surprisingly, this is a considerable deterrent to the free flow of relevant information to employees. Under the current interpretation of the Act, which has stayed fairly consistent since 1959, employers who hire lawyers to advise them about how to avoid unlawful communications have not had to report.  This is due to the “advice” exception. 

This exception has allowed employers to get the advice they need without having to file the burdensome disclosures required by the Department of Labor for paid consultants, and has enabled law firms to avoid having to face a federal requirement to violate their duties of confidentiality to their clients if they give legal advice during union campaigns.

The Obama administration, through the DOL’s Office of Labor-Management Standards, has begun the process of changing this interpretation by narrowing the advice exception.  The rulemaking process is lengthy, and may face barriers in a Congress where the majority in the House is Republican. 

Meanwhile, OLMS has begun a new campaign of sending intimidating letters to law firms who enter appearances in representation cases pending before the National Labor Relations Board.  The letters “remind” the firms that there are reporting obligations and, of course, tell the firms that their identities are now known to the Department of Labor enforcers. Here is an excerpt from one such letter.

Information obtained by OLMS from the national Labor Relations Board (NLRB) indicates that you have identified yourself as the representative of _______ an employer who is a party to a petition for a representation election to be conducted by the NLRB _____.  As such, you may have Form LM-20 and Form LM-21 reporting obligations is you have engaged or will engage in persuader or information-supplying activities pursuant to your agreement or arrangement with the employer. OLMS has sent a similar letter informing the employer of its potential Form LM-10 reporting obligations.

[Identifying information removed.]

This is the first time, to my knowledge, that an agency of the federal government has contacted law firms simply on the basis of their entering an appearance in a case before a tribunal. The threat is obvious, and this is even before the regulations have been changed.  What will happen to attorney-client privilege if and when the advice exception is vitiated remains to be seen.  Employers, law firms, and associations need to be concerned about this effort.

The NLRB has now settled the “Facebook” complaint that has gained great attention.  See Cleveland.com Article.  In NLRB v. American Medical Response of Connecticut, Inc., the Board took the position that the employer violated the National Labor Relations Act when it terminated an employee for making nasty statements about her supervisor on Facebook.  The NLRB’s rationale was that the negative post, and responses from co-workers, constituted concerted, protected activity under the Act.  In other words, the Board feels that the conduct should be just as protected as Norma Rae’s holding up a cardboard “union” sign at the mill.  Additionally, the NLRB stated that the employer’s prohibitive electronic communication policies also violated the law. 

The settlement required the employer to revise its policies.  The NLRB press release press release makes no mention of whether the affected employee received compensation under the agreement.  According to the article linked above, she is not being reinstated.

Should employers revise their electronic communication policies based on the settlement?

A few considerations.  First, the settlement does not establish precedent, but it certainly and clearly signals to employers the position that the NLRB will take on this issue, at least under the current administration.  Second, there are weaknesses to the NLRB’s position that are yet to be addressed in litigation.

Nonetheless, the most cautious of employers will want to review the language in their electronic communication policies, and consider the following tweaks: 

  • Revise general statements that absolutely prohibit making any type of statements about the Company over the internet via blogging, social networking sites or otherwise;
  • Qualify any such prohibitions with language like the following, “except as otherwise protected by law.”
  • Remove statements that prohibit employees from communicating about the employer without permission, but make sure your policies adequately protect confidential business information and trade secrets.