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PENNSYLVANIA LABOR RELATIONS BOARD v. STATE COLLEGE AREA SCHOOL DISTRICT (06/06/73)

decided: June 6, 1973.

PENNSYLVANIA LABOR RELATIONS BOARD
v.
STATE COLLEGE AREA SCHOOL DISTRICT



Appeals from the Order of the Court of Common Pleas of Centre County in case of The Pennsylvania Labor Relations Board v. State College Area School District, The Board of School Directors, Nos. 98 and 99 October Term, 1972.

COUNSEL

Clarence C. Morrison, for appellant, State College Education Association.

James L. Crawford, with him James F. Wildeman and Francis A. Zulli, Assistant Attorneys General, for appellant, Pennsylvania Labor Relations Board.

John R. Miller, with him Miller, Kistler & Campbell, Inc., for appellee, State College Area School District.

William Fearen, with him Cleckner & Fearen, for Pennsylvania School Board Association.

Woodley B. Osborne, with him, of counsel, Stephen R. Goldstein and Robert A. Gorman, for American Association of University Professors.

Richard Kirschner, with him Markowitz and Kirschner, for American Federation of State, County and Municipal Employees, AFL-CIO.

Leonard M. Sagot, with him Thomas W. Jennings, and, of counsel, Ettinger, Poserina, Silverman, Dubin, Anapol and Sagot, for Pennsylvania Federation of Teachers.

Jerome H. Gerber, with him Handler, Gerber, Widmer and Weinstock, for Pennsylvania State AFL-CIO.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. Opinion by Judge Kramer, Concurring in Part and Dissenting in Part. Judges Crumlish, Jr., and Blatt join in this opinion.

Author: Mencer

[ 9 Pa. Commw. Page 231]

The State College Education Association (Teachers) and the Pennsylvania Labor Relations Board (Labor

[ 9 Pa. Commw. Page 232]

Board) filed separate appeals from a final order of the Court of Common Pleas of Centre County, under date of November 7, 1972, affirming in part and reversing in part a final order of the Labor Board.

The teachers, on February 26, 1971, filed a charge of unfair labor practices with the Labor Board and against the State College Area School District (School Board). It was alleged by the Teachers that the School Board had engaged in unfair labor practices contrary to the provisions of Section 1201, subsection (a), clause (5) of Article XII of the Act of July 23, 1970, P.L. 563, 43 P.S. § 1101.1201(a)(5) (Act 195). These provisions prohibit public employers, their agents or representatives from refusing to bargain collectively in good faith with an employe representative which is the exclusive representative of employes in an appropriate unit, including but not limited to the discussing of grievances with the exclusive representative.

The refusal alleged here centers around 21 items about which the Teachers sought to bargain with the School Board. The School Board admits its refusal to bargain on these items*fn1 and asserts that they were items of inherent managerial policy and, therefore, were not subject to collective bargaining because of the provisions of Section 702 of Act 195, 43 P.S. § 1101.702. Following hearings before a hearing examiner, during which all parties were afforded the opportunity to present testimony, introduce evidence and cross-examine witnesses, the Labor Board issued a nisi decision and order on October 14, 1971, dismissing the charge of unfair labor practice against the School Board. Exceptions were filed to this order by the Teachers and after oral argument and the presentation of briefs, the Labor

[ 9 Pa. Commw. Page 233]

Board, on June 26, 1972, issued its final order in which it ruled that the School Board had failed to bargain in good faith with the Teachers on five of the 21 items. The Labor Board affirmed its ruling as to the other 16 items and held that these were not bargainable and, therefore, the School Board had not violated the provisions of Act 195 as to those 16 items.

Both the School Board and the Teachers petitioned the Court of Common Pleas of Centre County for review of the final order of the Labor Board in accord with the provisions of Section 1502, as amended, of Act 195, 43 P.S. § 1101.1502. The Court of Common Pleas of Centre County affirmed the final order of the Labor Board as to the 16 items which were held to be nonbargainable and reversed the final order of the Labor Board as to the five items which the Labor Board had ruled to be proper subjects for mandatory collective bargaining. These appeals followed.

In Pennsylvania Labor Relations Board v. Kaufmann Department Stores, Inc., 345 Pa. 398, 29 A.2d 90 (1942), the Supreme Court held that the scope of appellate review is limited to a determination of whether the findings of the Labor Board are supported by substantial and legally credible evidence and whether the conclusions deduced therefrom are reasonable and not capricious, arbitrary or illegal. Kaufmann was interpreting in this regard identical language as we have here. Section 1501 of Act 195, 43 P.S. § 1101.1501, provides, inter alia, that "[t]he findings of the board as to the facts, if supported by substantial and legally credible evidence shall be conclusive."

The difficult question posed by these appeals can be stated thus: Do any of the 21 items about which the Teachers sought to bargain come within the scope of collective bargaining required under Act 195, known as the Public Employe Relations Act? The answer to this question must encompass a careful consideration of the

[ 9 Pa. Commw. Page 234]

    meshing and intertwining provisions of Sections 701, 702 and 703 of Act 195, 43 P.S. §§ 1101.701, 1101.702 and 1101.703. These three sections read as follows:

"Section 701 [§ 1101.701 Matters subject to bargaining]. Collective bargaining is the performance of the mutual obligation of the public employer and the representative of the public employes to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment, or the negotiation of an agreement or any question arising thereunder and the execution of a written contract incorporating any agreement reached but such obligation does not compel either party to agree to a proposal or require the making of a concession.

"Section 702 [§ 1101.702 Matters not subject to bargaining]. Public employers shall not be required to bargain over matters of inherent managerial policy, which shall include but shall not be limited to such areas of discretion or policy as the functions and programs of the public employer, standards of services, its overall budget, utilization of technology, the organizational structure and selection and direction of personnel. Public employers, however, shall be required to meet and discuss on policy matters affecting wages, hours and terms and conditions of employment as well as the impact thereon upon request by public employe representatives.

"Section 703 [§ 1101.703 Implementation of provisions in violation of, or inconsistent with statutes or home rule charters]. The parties to the collective bargaining process shall not effect or implement a provision in a collective bargaining agreement if the implementation of that provision would be in violation of, or inconsistent with, or in conflict with any statute or statutes enacted by the General Assembly of the Commonwealth of Pennsylvania or the provisions of municipal home rule charters."

[ 9 Pa. Commw. Page 235]

Perhaps our point of departure should be to recall the legal posture of public labor relations prior to Act 195. The Act of June 30, 1947, P.L. 1183, 43 P.S. § 215.1 et seq., known as The Public Employe Act of 1947, and which Act 195 specifically repealed as to public employes,*fn2 prohibited all strikes by public employes and did not require public employers to bargain collectively with their employes. Although strikes by public employes were particularly forbidden, numerous illegal strikes did occur and labor unrest in the public sector became widespread. This situation led to the creation of a Commission for the Revision of Pennsylvania Public Employe Laws which became known as the Hickman Commission.

Subsequent to the issuance of the report of the Hickman Commission various pertinent bills were introduced in the General Assembly of Pennsylvania. The final result was the enactment into law of Act 195. Article I, Section 101*fn3 of Act 195 is captioned "Public Policy" and reads as follows: "The General Assembly of the Commonwealth of Pennsylvania declares that it is the public policy of this Commonwealth and the purpose of this act to promote orderly and constructive relationships between all public employers and their employes subject, however, to the paramount right of the citizens of this Commonwealth to keep inviolate the guarantees for their health, safety and welfare. Unresolved disputes between the public employer and its employes are injurious to the public and the General Assembly is therefore aware that adequate means must be established for minimizing them and providing for their resolution. Within the limitations imposed upon the governmental processes by these rights of the public at large and recognizing that harmonious relationships

[ 9 Pa. Commw. Page 236]

    are required between the public employer and its employes, the General Assembly has determined that the overall policy may best be accomplished by (1) granting to public employes the right to organize and choose freely their representatives; (2) requiring public employers to negotiate and bargain with employe organizations representing public employes and to enter into written agreements evidencing the result of such bargaining; and (3) establishing procedures to provide for the protection of the rights of the public employe, the public employer and the public at large."

This declaration underscores two important factors. Act 195 is dealing in the public sector of labor relations and, secondly, it is intended to afford public employes a limited right of collective bargaining with public employers, subject, however, to the paramount rights of the public at large.

Since Act 195 deals with the public sector of labor relations and has as an integral part of its plan the limiting provisions to collective bargaining of Sections 702 and 703, it is unique and lends itself more to interpretation than to comparisons. Consequently, the myriad of National Labor Relations Board cases and Federal decisions dealing with statutes that do not contain such limitations to collective bargaining and generally dealing in the private sector of labor relations are of little precedent or real assistance, at least in the interpretation of Section 701.

Although in this case we have public employes who also come within the definition of professional employes as set forth at Section 301(7) of Act 195, 43 P.S. § 1101.301(7), it would appear that this fact has no relevance to interpreting Sections 701, 702 and 703. The definition of "professional employes would seem to be solely for the purpose of separating them from nonprofessional employes in making the determination

[ 9 Pa. Commw. Page 237]

    of the appropriate public employer unit in accord with the provisions of Section 604 of Act 195, 43 P.S. § 1101.604. The definition of "public employe" as set forth at Section 301(2) of Act 195, 43 P.S. § 1101.301(2), covers and does not exclude professional employes. Therefore, in considering Section 701, we are confined to public employes, and this section has the same application to school teachers as it does to all other public employes.

These preliminary observations then provide us with general concepts which serve as a basis upon which to launch our analysis of Sections 701, 702 and 703 and to thereafter make application to the specific 21 items here in question.

Applicable General Concepts

1. Prior to Act 195, public employes in Pennsylvania had no legal right to strike and public employers were not required to bargain collectively with their employes.

2. Act 195 was enacted to govern labor relations between public employes and public employers and cannot be solely interpreted by reference to rulings, decisions, or case law interpreting statutes ...


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