Is More Collective Bargaining Transparency Wise? – Part 2

Recently, I wrote about Pennsylvania Senate Bill 645, which would create the “Public Employer Collective Bargaining Transparency Act.” The bill would require that collective bargaining agreements be made public in advance of their adoption, and I had suggested that although the intentions might be noble the law actually might be counterproductive.

I also mentioned that the bill had one other goal. This second new requirement would be to make clear that certain records relating to bargaining would be subject to disclosure under the Right to Know Law. Specifically, the law would clarify that the draft collective bargaining agreement is subject to disclosure once it is advertised as being ready for adoption. More troubling, though, is the requirement that the public employer would need to disclose “any documents that are presented by a public employer or received by a public employer from an employee organization, in the course of collective bargaining.”

Once again, though, this could create more problems than it solves. Bargaining sometimes requires candid and private communication, and that type of communication can be stifled when one party or another hesitates based on the fear that that their work product would or could be viewed later by parties for whom it was not intended.

The bill’s goal – creating accountability to collective bargaining – is noble. At the end of the day, though, local elected officials ARE accountable for the decisions they make with respect to collective bargaining agreements, just as with any other decisions they make involving public money and public trust. If the public disapproves of the way elected officials are handling bargaining, they can replace them with new elected officials.

At the state level, of course, the process is different. State contracts are negotiated by the Governor, the executive, rather that by the legislature. At least one proponent of the bill, the Commonwealth Foundation, correctly notes that the bill would would allow legislative input and oversight that currently is lacking at the state level. A better solution, though, would be to require legislative input by, for example, requiring a legislative ratification of state collective bargaining agreements.

At this point, the bill is still in committee in the state House, but we will keep an eye on it to see what, if any, changes public employers can expect.

Bill Aims to Bring More Transparency to Public Collective Bargaining – But is it Wise?

A series of bills introduced in the Pennsylvania House and Senate this session would bring more transparency to the process of public sector bargaining. Whether this would be a benefit for the taxpayers, as suggested by the bills’ proponents, though, remains to be seen.

Last month Senate Bill 645 passed the Senate and was referred to the House, where the bill sits in the State Government Committee. This bill, known as the “Public Employer Collective Bargaining Transparency Act” would require that all public employers provide public notice of any proposed collective bargaining agreements in advance of, and for thirty days after, the signing of any agreement. Absent the public notice, the agreement would be void.

Currently, Pennsylvania’s Sunshine Law permits public employers to conduct bargaining in executive session, and most bargaining sessions in fact do occur in private. Often, and in fact by design, many times the agreements that result from the bargaining are not made known until after the employer and the employees’ union both approve the deal.

The bill would require the public notice presumably so that the public would be able to offer input into the agreement before it is already approved. Sponsors and supporters of the bill also have complained that the state legislature, which must fund these agreements with the state’s various unions, does not know what will be in those agreements and has no input into the terms that it will be obligated to try to fund.

While the argument has more merit with respect to state union contracts, since the legislature has no advanced input either, the proposed rule might be counterproductive at a local level, where the same problem does not exist. I wrote above that if often is by design that the details of an agreement are kept quiet until the agreement can be approved by the union membership and the governing body of the local government. This is intended to limit the extent to which the union members and supporters can place pressure on the governing body in an effort to influence the governing body’s vote on the agreement. In that sense, providing advanced public notice of a proposed agreement is likely to aid the union more so than the taxpayers.

If the stated goal of the bill is to provide more transparency in an attempt to limit union influence, the means employed to achieve that goal is not well suited to the goal, at least at the local level.

In a future post, I will address the bill’s second major requirement, which likewise may be counterproductive as well. In the meantime, I will continue to watch the progress of this bill and the others like it.

[EDIT: Read Part 2 here]

Could Teacher Layoffs Be Based on Performance Rather Than Seniority?

If some Pennsylvania state lawmakers have their way, teacher layoffs soon can be based on performance rather than just seniority. Although the idea is not new, the proposal once again has been made to amend the PA School Code to eliminate the longstanding requirement that when schools lay off teachers they eliminate the positions of the least senior employees.

The proposals, found in Senate Bill 5 and House Bill 805, would permit districts that need to lay off teachers to select the worst performing teachers instead of the least senior, using annual performance ratings as the guide. According to reports the bills’ sponsors say that it too often is the case that good teachers are let go while poorer performing teachers are kept, and they note that Pennsylvania is one of only six states that still requires these decisions to be made on the basis of seniority only.

Again, the proposal is not new, but the bills do have bi-partisan support. They have been referred to the respective Education Committees in each chamber, and we will continue to monitor their progress.

US Supreme Court Building

Court Gives Employers Big Win: No Obligation to Pay Employees for Post-shift Security Inspections

In a unanimous decision today, the United States Supreme Court ruled that employers do not need to pay employees for the time spent in post-shift security inspections.  In this case, an employer operated a warehouse and shipping facility for, and given the employee access to the large inventory in the warehouse, the employer required its employees to undergo an inspection after the conclusion of their shift and before they could leave the job site.

The employees argued that the time spent going through these security checks – as much as 25 minutes each time – was compensable under the Fair Labor Standards Act, which requires that working time be compensated at a minimum wage.

The 9th Circuit Court of Appeals ruled that the employees were entitled to paid for this time, since they were required by the employer to be there.  A unanimous United States Supreme Court, however, reversed that decision, making clear that this kind of time is not compensable.

Under the Fair Labor Standards Act, all hours worked must be compensated, but certain preliminary and postliminary activities are not compensable.  For example, the time spent putting on protective gear or uniforms is not compensable.  The test for determining whether or not the time is compensable includes a requirement that the activity performed during that time be the type of duties the employee was hired to perform or that the activity be integral to those duties the employee was hired to perform.

Here, the Court wrote:

“To begin with, the screenings were not the principal activities the employees were employed to perform—i.e., the workers were employed not to undergo security screenings but to retrieve products from warehouse shelves and package them for shipment. Nor were they ‘integral and indispensable’ to those activities.”

There have been a series of cases all holding the same thing, so this result was expected.  The good news is that the unanimous decision shows the court considers this concept to be well settled.  Employers always should consult with counsel to make sure they are considering the correct hours to be compensable and non-compensable, but this provides more good news for employers as a confirmation that these kinds of postliminary activities need not be considered compensable.

NLRB: Employees Have Right to Discuss Their Discipline

Once again the National Labor Relations Board (NLRB) has invalidated an employer’s policy that required confidentiality with respect to personnel matters, when it ruled a few weeks ago that an employee was fired illegally after he refused his employer’s directive not to talk about certain discipline he received.

Philips Electronics North America had employed Lee Craft in its Tennessee facility, and in a few short years it gave Mr. Craft several oral and written reprimands and suspensions, as well as a demotion, for harassment and intimidation of others. On one instance, the company disciplined him for his behavior, giving him a final warning that any future incidents would result in discharge. They also reminded him of a company policy that prohibited employees from discussing discipline with others.

When Craft did discuss his discipline with co-workers, the company fired him for violating the company policy.

The NLRB, however, concluded, consistent with other recent decisions, that employees have a statutory right to discuss their discipline with others, and any policy that attempts to prohibit such activity would be invalid and unenforceable.

Employees have a right, pursuant to the National Labor Relations Act, to engage in “concerted activity” – activity that is in concert with others – intended to protect or promote their interests in their working conditions. The NLRB has taken a very broad view of what kinds of activity constitute “concerted activity.” A number of times, when confronted with an employer policy that prohibits discussion of things such as discipline, wages, benefits, etc., the NLRB has invalidated such policies, concluding that employees are entitled to, and perhaps need to, discuss those topics with one another in order to be able to engage in any kind of meaningful concerted activity.

Certainly, it can be necessary or at least helpful in some circumstances to require that some information be kept confidential, but employers should be careful to make sure they do not run afoul of the NLRA’s protection afforded to concerted activity.