Labor Relations: The Meet and Confer Process

could be found to be unlawfully overbroad. For instance, a rule that prohibits employees from engaging in “disrespectful,” “negative,” “inappropriate,” or “rude” conduct towards the employer or management may be found unlawful. According to the NLRB, employee criticism of an employer does not lose the Act’s protection simply because the criticism is false or defamatory, so a rule that bans false statements will be found unlawfully overbroad unless it specifies that only maliciously false statements are prohibited. On the other hand, a rule that requires employees to be respectful and professional to coworkers, clients, or competitors, but not the employer or management, will generally be found lawful, because employers have a legitimate business interest in having employees act professionally and courteously in their dealings with coworkers, customers, employer business partners, and other third parties. 260 In addition, rules prohibiting conduct that amounts to insubordination would also not be construed as limiting protected activities. 261  Agencies should not prohibit or remove employee organization postings on designated bulletin boards based on the content, unless that speech is so flagrant, insulting or insubordinate that it causes a substantial disruption in the workplace. Speech may also be unprotected if it is demonstrably false, and the poster/writer knew or should have known the statement was false, or acted in reckless disregard to the truth. 262

Dues Deduction

 An agreement should address indemnification of the employer by the association pursuant to any disputes arising out of the deduction of dues or other union-based fees.

 An agreement should require refund of erroneously transmitted deductions.

 An agreement should state that it is the responsibility of the union to collect dues or other union-based fees if an employee has insufficient salary to cover the required dues or other union-based fees.  An employer should negotiate a provision which identifies circumstances for cessation of deductions for dues.

Recognition

 A recognition clause should carefully specify classes and positions included in unit and covered by the MOU (if necessary, by attachment), and should carefully specify all exclusions.  An employer should negotiate to exclude employees designated as temporary and part- time.

 A description of the initial grant of recognition may be useful for historical purposes.

 If applicable, a recognition provision may address the representation status of newly created classifications.

Concerted Activity/“No Strike” Clause

 An agreement should specify that the “no strike clause” covers sympathy strikes. 263

Labor Relations: The Meet and Confer Process ©2019 (s) Liebert Cassidy Whitmore 46