Appeal, No. 260, Jan. T., 1951, from order of Court of Common Pleas of Lancaster County, Dec. T., 1950, No. 8, in case of Lancaster Yellow Cab & Baggage, Inc., v. Pennsylvania Labor Relations Board. Order affirmed.
George L. Reed, Solicitor, with him M. Louise Rutherford, Deputy Attorney General, and Robert E. Woodside, Attorney General, for appellant.
George B. Balmer, with him W. Hensel Brown and Snyder, Balmer & Kershner, for appellee.
Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an appeal from a final decree of the lower court dismissing an appeal by the Lancaster Yellow Cab & Baggage, Inc. (hereinafter called the "Company") from an order of the Pennsylvania Labor Relations Board (hereinafter called the "Board"), and directing the Company to comply with the order as modified by the court. In dismissing the appeal the court below sustained an exception by the Company and overruled the Board as to that portion of its order which directed the Company, upon request, to reinstate certain named employes without back pay. The appeal here is taken by the Board and is concerned only with the lower court's ruling that the Board should not have ordered reinstatement of the employes.
The employes that the Board ordered reinstated were the Company's night taxicab drivers. The facts as taken from the Board's findings are as follow: During the day of June 9, 1949, a dispute arose between the Company management and the day cab drivers. The next day, after attempts by the business agent of the Union (the bargaining agent of the employes) to contact the president and secretary of the Company and its attorney, the day cab drivers, in violation of a collective bargaining agreement which was then in effect, parked their cabs and refused to work. When the night cab drivers arrived for work on June 10, 1949, their trip cards were not available and they were told by the manager in the presence of the president that there was no work. On June 11th and June 13th a supervisor for
the Company solicited the employment of other men who had been used during a previous strike. The Company then by its attorney informed the Union that it refused to discuss the grievance of the cab drivers (both day and night shift) which it was required to do under the collective bargaining agreement. Further letters between the Union and the Company resulted in no change in position by either party and on July 5, 1949, the Company informed one of the day drivers that he was dismissed and one of the night shift drivers that he was no longer considered an employe.
On August 1, 1949, a charge of unfair labor practices under Section 6, subsection (1), clauses (a) and (e), of the Pennsylvania Labor Relations Act, as amended, was filed with the Board by the Union and a complaint was issued on August 2, 1949. After a hearing the Board entered a nisi decision on March 29, 1950, which, in substance, ordered the employer to cease and desist from discriminating against employes in regard to hire and tenure of their employment because of their membership in the Union, to bargain collectively and to reinstate the night shift drivers without back pay. Exceptions were dismissed and a final order entered October 26, 1950. A petition for review was filed by the Company and a petition for enforcement of the order was filed by the Board. The lower court after argument modified the order in the manner above stated.
The issue involved herein is a narrow one and requires only an answer to the question whether the Pennsylvania Labor Relations Board may properly direct an employer who has been found guilty of unfair labor practices within the meaning of Section 6, subsection 1, clauses (a) and (e), but who has not been charged with an unfair labor practice under clause (c) of such section, to reinstate without back pay employes
who were not permitted by the employer to return to work and who were later discharged.
Subsection 1 of Section 6 of the Pennsylvania Labor Relations Act of 1937, as amended, 43 PS § 211.6, under which the controversy arises, in six clauses, (a), (b), (c), (d), (e), and (f), defines unfair labor practices by the employer. The particularly pertinent clauses are (a), (c) and (e), which read as follows: "(a) To interfere with, restrain or coerce employes in the exercise of the rights guaranteed in this act.... (c) By discrimination in regard to hire or tenure of employment, or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this act, or in any agreement approved or prescribed thereunder, or in any other statute of this Commonwealth, shall preclude an employer from making an agreement with a labor organization (not established, maintained or assisted by any action defined in this act as an unfair labor practice) to require, as a condition of employment, membership therein, if such labor organization is the representative of the employes, as provided in section seven (a) of this act, in the appropriate collective bargaining unit covered by such agreement when made and if such labor organization does not deny membership in its organization to a person or persons who are employes ...