Louis B. Kushner, Rothman, Gordon, Foreman & Groudine, Pittsburgh, for appellant in No. 336.
Israel Packel, Atty. Gen., Francis A. Zulli, Asst. Atty. Gen., Harrisburg, for appellant in No. 337.
Thomas E. Sterling, J. F. Wildeman, Harrisburg, State College, for appellee, Erika S. M. Zelem.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., filed a dissenting opinion in which Eagen and Manderino, JJ., join.
In 1966, Erika S. M. Zelem, appellee, became a laboratory technician at the Veterinary Science Division of Pennsylvania State University. On October 1, 1967, the university entered into a collective bargaining agreement (Agreement I) with Teamsters Local Union No. 8, one of the appellants and the employee organization representing the bargaining unit of which Miss Zelem was a member. The agreement, which was extended by mutual consent to June 30, 1970, contained a union security provision best described as a modified-agency shop. Under its terms, all employees who were members of the bargaining unit, but who had not joined the union, were required to pay to the union an amount equal to the regular initiation fees and dues as a condition of employment. However, Agreement I specifically exempted those nonmember
employees whose employment predated the agreement. Appellee, who had never joined the union, was thus exempt from the agency-shop provisions.
A renewal contract (Agreement II) was subsequently executed between the union and the university, effective for the period from July 1, 1970 to May 31, 1973. This contract contained a strict agency-shop provision by the terms of which all employees, including those in the position of appellee, were required to pay the equivalent of the union's regular initiation fees and the union dues. In order to avoid discharge, appellee paid under protest, but she then filed a complaint charging the university and the union with an unfair labor practice under § 1201 of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563, 43 P.S. § 1101.101 et seq.
The Pennsylvania Labor Relations Board ("board"), also an appellant, issued a nisi decision and order, joined in by two members with one member dissenting, sustaining a finding of an unfair labor practice. It then reversed itself and entered a final order, with one member dissenting, upholding the challenged union security provision. On appeal, the Court of Common Pleas of Centre County reversed the board and found in favor of appellee. An equally-divided Commonwealth Court affirmed that decision, and we granted allocatur petitions filed by the union and the board, because the case raises an important question concerning the proper interpretation of § 904 of PERA and its relationship to other provisions of the act, particularly §§ 401 and 705.
In determining the extent to which a public employer, such as the university, and a union are permitted to agree to a union security provision, there are three pertinent provisions of the act.
Section 401, while permitting public employees to join an employee organization or to engage in lawful concerted
activities for purposes of collective bargaining, specifically states that:
". . . 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 ...