“Here, the department asserted a prima facie case that AFSCME failed to bargain in good faith by sending the postcard containing the misrepresentation that the pay raise would be in jeopardy unless employees ratified the collective bargaining agreement,” Thomas wrote, in an opinion joined by Judge M. Kemmerly Thomas.
But Judge Scott Makar dissented, writing that the union corrected the information that had been mailed in the postcard. He also wrote that “communications are protected free speech and cannot form the basis for sanction as an unfair labor practice with very limited exceptions.”
“Allowing the claim in this case to proceed seemingly opens the barn door to strategic claims attempting to cast routine communications (even those temporarily erroneous) as unfair practices, thereby creating a potential chilling effect on the bargaining process itself,” Makar wrote.
Makar also wrote that the “oddity is that bargaining for the pay raise was over and done and the pay raise had already been implemented, such that the postcard was simply like a postscript to a letter already written and delivered; it could have no substantial effect on a legislative process that was already completed and in effect.”
“Public employees who felt they were misled had an individual remedy: an unfair labor practice on their own behalf, which did not materialize,” Makar wrote. “Employees, not the employer, are in the best position to assert whether they were coerced, restrained, or adversely affected by what the union did in this case.”
But the majority opinion, which sent the case back to the Public Employees Relations Commission, said that “even were we to agree with the commission’s arguments regarding standing — which we do not — the department showed that its interests would be substantially affected by the unfair labor practices proceeding.”
“AFSCME’s postcard provided incorrect and misleading information concerning the effect of the agreement on the 3% raise and encouraged state employees to ratify the agreement in order to protect the raise, when the raise had already been approved by the Legislature,” the majority opinion said. “This misleading information affected the negotiation and ratification process, and the department had to expend its resources to try to refute the misinformation. The department, therefore, suffered an injury in fact that was substantial and sufficient to confer standing.”