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decided: October 16, 1974.


Appeal from decree of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1973, No. 993, in case of Philadelphia Federation of Teachers Local No. 3, AFT, AFL-CIO v. Board of Education of the School District of Philadelphia.


Vincent J. Salandria, for appellant.

Leonard M. Sagot, with him Thomas W. Jennings, and Ettinger, Poserina, Silverman, Dubin, Anapol & Sagot, for appellee.

Thomas A. Beckley, Thomas M. Hyndman, and Beckley & Grove, for amicus curiae.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Nix and Mr. Justice Manderino join in this dissenting opinion.

Author: Pomeroy

[ 458 Pa. Page 343]

The Philadelphia Federation of Teachers Local No. 3, AFT, AFL-CIO ("the Federation") brought suit against the Board of Education of the School District of Philadelphia ("the School Board"), appellant, to enforce the dues deduction provision of a collective bargaining agreement. At issue is the scope of rights accorded to public employees under § 401 of the Public Employe Relations Act (Act 195).*fn1 Specifically, we must decide whether the School Board is obligated to deduct Federation dues from the salaries of teachers who resigned from the Federation and revoked their dues deduction authorizations before the collective bargaining agreement was signed, but after its designated effective date.

The Federation represents approximately 18,000 employees of the Philadelphia School District. The School Board and the Federation entered into a collective bargaining agreement for a two-year period ending on August 31, 1972. Following an oral extension of this agreement to September 5, 1972, the Federation called a strike. The strike lasted until September 27th, when the parties entered into a "Memorandum of Understanding" reinstating the expired agreement until December 31, 1972. The Memorandum stipulated that the terms and provisions of any new collective bargaining agreement would be retroactive to September 1, 1972. Upon its expiration at year-end, the Memorandum of Understanding was orally extended until January 8, 1973. On that date, the parties having failed to agree on a new contract, the Federation again called a strike.

[ 458 Pa. Page 344]

On or about March 1, 1973, the Federation and the School Board signed a collective bargaining agreement for the period from September 1, 1972 to August 31, 1976. This agreement, like its predecessor, contains maintenance of membership and dues deduction provisions authorized by Act 195.*fn2 The teachers returned to work on Thursday, March 1, 1973.

During the January 8th to March 1st strike, approximately three thousand Federation members who had executed dues check-off authorizations prior to August 31, 1972, continued to report for work. A smaller group of employees, numbering approximately 469, notified the School Board that they were with-drawing from the Federation and revoked their dues check-off authorizations. So far as the record shows, no Federation dues were deducted from salaries paid

[ 458 Pa. Page 345]

    during the strike. On March 9th, the first payday following termination of the strike, the School Board resumed dues deductions from the salaries of Federation members in accordance with the agreement. No dues, however, were deducted from the salaries of employees who had revoked their dues deduction authorizations, and no back dues for periods beyond the pay period immediately preceding March 9th were deducted with respect to teachers who had retained Federation membership while working during the strike.

The Federation filed a complaint in equity seeking to compel the School Board to deduct the uncollected dues.*fn3 The case was submitted to the court on a stipulation of facts as a "Case Stated in Equity." The chancellor found that the parties had intended the March 1st agreement to be effective retroactively to September 1, 1972, and concluded that the dues deduction revocations submitted after September 1st were governed

[ 458 Pa. Page 346]

    by the new agreement. He thereupon decreed that the case be submitted to arbitration in accordance with the terms of the March 1st agreement and § 903 of Act 195.*fn4 In a subsequent stipulation, dated August 16, 1973, the parties agreed to forego arbitration and to treat the court's decree as a final decree having the legal effect of declaring ineffectual any letter of resignation and revocation of authorization of dues deduction dated before August 16 or after August 31, 1972. This appeal by the School Board followed.*fn5

Long before the enactment of Act 195, our courts recognized the common law right of an employee to resign at will from a labor organization. Fisher v. Stevens Coal Co., 143 Pa. Superior Ct. 115, 17 A.2d 642 (1941). This right, with one significant modification,

[ 458 Pa. Page 347]

    is expressly recognized in § 401 of Act 195, which provides: "It shall be lawful for public employes to organize, form, join or assist in employe organizations or to engage in lawful concerted activities for the purpose of collective bargaining or other mutual aid and protection or to bargain collectively through representatives of their own free choice and such employes shall also have the right to refrain from any or all such activities, except as may be required pursuant to a maintenance of membership provision in a collective bargaining agreement." (Emphasis supplied.)

Maintenance of membership is defined in § 301(18) of the Act: "'Maintenance of membership' means that all employes who have joined an employe organization or who join the employe organization in the future must remain members for the duration of a collective bargaining agreement so providing with the proviso that any such employe or employes may resign from such employe organization during a period of fifteen days prior to the expiration of any such agreement." Also pertinent is § 705 of the Act, which provides that "[m]embership dues deductions and maintenance of membership are proper subjects of bargaining with the proviso that as to the latter, the payment of dues and assessments while members, may be the only requisite employment condition."*fn6

The foregoing sections of Act 195 define the maximum degree of union membership security which a collective bargaining agreement between a union and a public employer may provide. It is only during the term of such an agreement that an employee's right

[ 458 Pa. Page 348]

    to resign from a union may be restricted; the Act permits no abridgment of this right in the absence of an agreement. Implicit in this statutory scheme is the recognition that periods when no agreement is in effect are the times when an employee's freedom to choose which, if any, labor organization will represent him may be most important.

The lower court was of the opinion that the decision of the Federation and the School Board to apply their current agreement retroactively to September 1, 1972, effectively eliminated any hiatus between agreements. The court concluded that any teacher who retained Federation membership after August 31, 1972, the date of expiration of the antecedent agreement, was bound by the maintenance of membership provision of the March 1, 1973, agreement. This reasoning is specious, however, for it overlooks the cardinal fact that the employees who submitted their resignations prior to March 1st were not parties to the agreement which was entered into on that date, and, thus, that the provisions of that agreement cannot affect the exercise of statutorily protected rights by such employees. The Federation and the School Board were, of course, free to choose any date they pleased as the effective date of their new contract, but the law will limit the adverse effect of their choice on third parties. NLRB v. Mechanical & Allied Production Workers Local 444, 427 F.2d 883 (1st Cir. 1970). It could not seriously be argued that, had the retroactive application of the March 1, 1973 agreement reached to August 16, 1972, it would nullify a resignation during the statutorily guaranteed escape period of the last fifteen days of the prior agreement, which expired by its terms on August 31, 1972. An employee's right to resign from his union at a time when no contract whatever is in force can be no less inviolate than the right to resign during the escape

[ 458 Pa. Page 349]

    period of a previous contract. To hold otherwise would be to place an impermissible burden on the liberty of employees to choose their own bargaining representatives. See Colonie Fibre Co. v. NLRB, 163 F.2d 65 (2d Cir. 1947).

A similar factual situation confronted the Tennessee Court of Appeals in Murtha v. Pet Dairy Products Co., 44 Tenn. App. 460, 314 S.W.2d 185 (1957) (cert. denied by the Supreme Court of Tennessee, June 6, 1958). In that case, a collective bargaining agreement expired on May 31, 1955. A new contract, containing a dues deduction provision applicable to all union members, was signed on October 27, 1955, to be effective as of October 1st. The court held that the October 27th agreement did not bind employees who had resigned from the union and revoked their dues deduction authorizations between May 31st and October 27th, including those who had resigned after October 1st. We see no basis for reaching a different conclusion in the present case with respect to the retroactive effect of the March 1, 1973, contract. We hold that under Act 195, the retroactive application of a collective bargaining agreement containing maintenance of membership and dues deduction provisions cannot nullify otherwise valid resignations of employees from the union which occur before the agreement is executed. It follows that, to the extent that the Federation claim depends on the retroactive application of the March 1st agreement to employees who submitted such resignations and revoked their dues deduction authorizations prior to March 1, 1973, the preliminary objection in the nature of a demurrer should have been sustained.

We emphasize that our decision is limited to the legal impact of the March 1st agreement on resignations submitted before that date. We express no opinion as to whether the resignations of the individual employees

[ 458 Pa. Page 350]

    involved are otherwise valid.*fn7 The record before us is inadequate for any such determination, which in any event should be left to the lower court in the first instance.

The decree*fn8 of the court below is reversed, and the case is remanded for further proceedings consistent with this opinion. Each party to bear own costs.


Decree reversed and case remanded.

Dissenting Opinion by Mr. Justice Roberts:

I dissent.

From the very start of negotiations, the Federation and the Board intended that any agreement they reached be applied retroactively. This purpose was expressed in the September 27, 1972, Memorandum of Understanding and achieved by the terms of the contract.

[ 458 Pa. Page 351]

A retroactive contract, entered following the termination of a previous agreement, conceptually and practically eliminates any gap between the expiration of the old compact and the signing of the new. It provides for continuity of the contractual relation regardless of any period during which, in fact, there was no contract.

Under the terms of the contract and section 301(18) of Act 195, the Board was obligated to the Federation to withhold the dues of members who failed to revoke their authorization between August 17, 1972 and August 31, 1972, the period provided under the contract and the Act. Because of the bargained-for retroactivity clause, the Board's duties under the checkoff provision must be considered to be unaffected by the hiatus between September 1, 1972, and March 1, 1973. The Board's obligation continued just as if the contract had been signed on August 31, and had become effective on September 1. Any revocation of authorization tendered after the contractual and statutory withdrawal dates cannot alter the Federation's and the Board's rights and obligations under the contracts.

I would affirm the decision of the chancellor.

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