Appeals from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Petition of Empoyees of the Sanitation Department of the Borough of Wilkinsburg v. Pennsylvania Labor Relations Board and Borough of Wilkinsburgh, No. S.A. 136 of 1973.
Robert L. Potter, with him Jonathan L. Alder, Reed, Smith, Shaw & McClay, and, of counsel, James M. McElfish, Borough Solicitor, for appellant Borough.
Raymond W. Cromer, with him James F. Wildeman and James L. Crawford for appellant, Board.
Byrd R. Brown, with him Doris A. Smith, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Mencer, Rogers and Blatt. Judges Kramer and Wilkinson, Jr. did not participate. Opinion of Judge Mencer.
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We are confronted in these appeals with further important questions relative to the scope of bargaining requirements of the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.101 et seq. (PERA).
The Employees' Committee of the Wilkinsburg Sanitation Department (Committee), on March 29, 1972, filed a charge of unfair labor practices with the Pennsylvania Labor Relations Board (Labor Board) against the Borough of Wilkinsburg (Borough). It was asserted by the Committee that the Borough had engaged in unfair labor practices in violation of Section 1201, subsection (a), clauses (3), (5), and (9), of PERA.*fn1 On April 12, 1972, the Board issued a complaint based upon these charges and set a date for a hearing. Following two days of testimony, the Board entered a Nisi Decision and Order on September 28, 1972.
[ 16 Pa. Commw. Page 643]
The Board concuded that the Borough had not committed the unfair labor practices charged by the Committee. Exceptions were filed by the Committee and denied on February 1, 1973 by a final order of the Board, from which an appeal was taken to the Court of Common Pleas of Allegheny County. Without the taking of additional evidence, that court entered an order on April 4, 1974 by which it reversed that part of the Board's order dismissing charges of violation of Section 1201(a)(5) of PERA and sustained that part of the Board's order dismissing charges of violation of Section 1201(a)(3) and (9).
On May 1, 1974, the Borough filed an appeal in this Court from that portion of the order of April 4, 1974 which reversed the Labor Board's dismissal of charges of a violation of Section 1201(a)(5) of PERA, and two days later, May 3, 1974, the Labor Board filed an appeal from the same portion of said order. No cross appeal has been filed by the Committee from the order under challenge here; therefore, these appeals only raise for our determination the correctness of the lower court's reversal of the Labor Board's conclusion of law that the Borough had not violated Section 1201(a)(5) of PERA.
In order to facilitate an understanding of the factual setting so important to a legal resolution of these appeals, we report here the findings of fact made by the Board, which our examination of the record discloses are supported by substantial and legally credible evidence:
"1. The Borough of Wilkinsburg is a political subdivision of the Commonwealth of Pennsylvania with its principal office at 605 Ross Avenue, Wilkinsburg, Pennsylvania.
"2. The Employees' Committee of the Wilkinsburg Sanitation Department is an employe organization which exists for the purpose, in whole or in part,
[ 16 Pa. Commw. Page 644]
of dealing with employers concerning grievances, employer-employe disputes, wages, rates of pay, hours of employment, and other conditions of work with its principal office at 605 Ross Avenue, Wilkinsburg, Pennsylvania.
"3. The employes of the Sanitation Department of the Borough of Wilkinsburg negotiated with said borough for a number of years prior to 1971 and as a result thereof, reached agreements on wages and other conditions of work.
"4. On January 11, 1971, the Borough of Wilkinsburg and the Employees' Committee of the Wilkinsburg Sanitation Department, entered into a collective bargaining agreement, which agreement by its terms expired on December 31, 1971.
"5. Pursuant to a Joint Request for Certification at Case No. PERA-R-1165-W, the Board on July 1, 1971, certified the Employees' Committee of the Wilkinsburg Sanitation Department, as the exclusive representative of the employes of the Borough of Wilkinsburg, in a subdivision of the employer unit, comprised, with certain exclusions, of employes of the Sanitation Department for the purpose of collective bargaining with respect to wages, hours and terms and conditions of employment.
"6. Representatives of the Borough of Wilkinsburg and the Employees' Committee of the Wilkinsburg Sanitation Department met on December 9, 1971, for the purpose of negotiating a new contract, at which time the Employees' Committee presented their contract demands consisting, inter alia, of a $2,500 annual wage increase, i.e. a 25% wage increase for each employe, whereupon, the borough counter-offered a 5.5% wage increase for each employe.
"7. Thereafter, representatives of the Borough of Wilkinsburg and the Employees' Committee, representing
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employes of the Sanitation Department of said borough, met for collective bargaining purposes on January 7, January 19, January 22, January 31, February 23, February 28, March 6, March 15 and March 26, 1972.
"8. At the meeting on January 7, 1972, after bargaining, the Employees' Committee accepted the 5.5% wage increase offered by the borough, but suggested an increase of four (4) hours over the forty-eight (48) hour incentive plan then in existence, which suggestion would with the 5.5% wage increase, result in a 10% increase in annual income for each employe.
"9. At said meeting on January 7, 1972, the borough announced an improved plan for hospitalization for all employes of the borough, which plan was one of the demands of the Employees' Committee, and the borough then compared its costs in operating its Sanitation Department with the costs of the Borough of Mount Lebanon which engaged a private contractor to pick up its garbage and rubbish.
"10. At said meeting on January 7, 1972, the borough's representatives indicated to the Employees' Committee, that the borough was thinking of engaging an independent contractor to haul its garbage and rubbish.
"11. A state mediator attended the meeting of January 19, 1972, however, there was no change in the positions of either side.
"12. At the meeting of January 22, 1972, pursuant to the request of the Employees' Committee, three (3) members of the Borough Council, who comprised the Council's Sanitation Committee also attended said meeting.
"13. At said meeting of January 22, 1972, the Employees' Committee again presented their demands and stated their position and in addition, a discussion
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ensued regarding the respective costs of garbage collection systems in other municipalities and the borough again, through its counsel, mentioned that it was considering a private contractor.
"14. Following the meeting of January 22, 1972, the Administrative Assistant for the borough prepared figures showing the cost of the borough's garbage and rubbish collection compared with other municipalities and said figures indicated that the borough's costs were substantially higher than other comparable municipalities and this subject was discussed at the next meeting on January 31, 1972.
"15. At the meeting on January 31, 1972, neither side changed its position and the main subject discussed was the borough's intention of submitting bids to private contractors to haul its rubbish and garbage.
"16. On February 14, 1972, the Borough Council duly authorized the advertising for bids of private contractors for the collection of garbage and rubbish in the borough, according to specifications.
"17. The meeting on February 23, 1972, was with members of the Borough Council, and the Employees' Committee presented their position and contract demands directly to said Councilmen.
"18. On February 28, 1972, at a Council meeting, the Borough Council opened the bids received from the private contractors to perform the work on the basis of the specifications, and thereafter a business report was run on the three lowest bidders by the borough's Administrative ...