Clarence C. Morrison, Pa. State Ed. Ass'n, Harrisburg, for appellant in No. 49.
Israel Packel, Atty. Gen., James L. Crawford, James F. Wildeman, Francis A. Zulli, Raymond W. Cramer, Asst. Attys. Gen., Harrisburg, for Pa. Labor Relations Bd.
Robert M. Rowlands, Richard Kirschner, Markowitz & Kirschner, Philadelphia, for appellant in No. 50.
John R. Miller, Jr., Miller, Kistler, Campbell & Mitenger, Bellefonte, for appellee in No. 50.
Jerome H. Gerber, Handler, Gerber & Weinstock, Harrisburg, for amicus curiae, Pa. State AFL-CIO.
William Fearen, Cleckner & Fearen, Harrisburg, for amicus curiae, Pa. School Boards Ass'n.
Woodley B. Osborne, Washington, D. C., for amicus curiae, American Ass'n of University Professors; Stephen R. Goldstein, Robert A. Gorman, Philadelphia, of counsel.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a concurring opinion in which Jones, C.j., joined. Eagen, J., filed a dissenting opinion.
The subject of this appeal is the relatively recent enactment of the Public Employee Relations Act.*fn1 The dispute centers upon the tension evoked between what the legislature has specifically made bargainable and what the legislature has also specifically allowed management to reserve to its unilateral decision-making. In this instance we are required to interpret section 701 and determine its scope in light of sections 702 and 703.
The State College Area Education Association (Association) filed with the Pennsylvania Labor Relations Board (Board) an unfair labor charge consisting of twenty-three items on which the Board of School Directors of State College Area School District (School District) refused to bargain, allegedly in violation of section 701. The Association asserted that the School District
violated section 1201(a)(5)*fn2 of the Act 195 by refusing to negotiate the questioned issues. The School District filed a timely answer, denying that it refused to negotiate on Item 19 (which was subsequently withdrawn) and admitting refusal to bargain on the remaining items contending that these items were not matters where they were mandated to bargain. Following hearings before a hearing examiner, during which Items 19 and 23 were withdrawn by the Association, the Board issued a nisi decision and order dismissing the charge of unfair labor practice against the School District. Exceptions were filed and oral argument was had followed by a final order in which the Board ruled that the School District had failed to bargain in good faith with the Association on five of the remaining twenty-one items. The Board affirmed its rulings as to the other sixteen items holding that these were not bargainable.
Both the School District and the Association petitioned the Court of Common Pleas of Centre County for review. That court affirmed the final order of the Board as to the sixteen items which were held to be non-bargainable and reversed the Board's final order as to the five items which the Board had found to be proper subjects for mandatory collective bargaining under section 701. Both the Association and the Board filed appeals to the Commonwealth Court from the order of the Court of Common Pleas of Centre County which resulted in an affirmance of the order with three judges of the Commonwealth Court concurring in part and dissenting in part. We granted allocatur and this appeal follows.
It is argued that the absence of precedent interpreting the relatively new Act 195 in this area and the similarity of language between section 701, now under consideration, and section 8(d) of the National Labor Relations Act, 29 U.S.C. 158(d), would suggest that the National Labor Relations Board's cases and federal decisions interpreting section 8(d) should provide compelling authority for the resolution of the current dispute. Since N. L. R. B. v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958), private employers are required to bargain only with respect to those matters which directly relate to "wages, hours and working conditions." Other matters of mutual concern may be discussed if both parties agree. When a subject under discussion is not mandatory a strike or lockout may not be used to compel negotiation or agreement. Allied Chemical and Alkali Workers of America v. Pittsburgh Plate Glass Co., 404 U.S. 157, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971); Fibreboard Paper Products Corp. v. N. L. R. B., 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). While this basic dichotomy has been followed under Act 195, it does not necessarily follow that federal precedent relating to private employment is particularly helpful in resolving the difficulties arising in the public sector.
Although these decisions may provide some guidance, we are mindful of the distinctions that necessarily must exist between legislation primarily directed to the private sector and that for public employes. The distinction between the public and private sector cannot be minimized. Employers in the private sector are motivated by the profit to be returned from the enterprise whereas public employers are custodians of public funds and mandated to perform governmental functions as economically
and effectively as possible. The employer in the private sector is constrained only by investors who are most concerned with the return for their investment whereas the public employer must adhere to the statutory enactments which control the operation of the enterprise. We emphasize that we are not suggesting that the experience gained in the private sector is of no value here, rather we are stressing that analogies have limited application and the experiences gained in the private employment sector will not necessarily provide an infallible basis for a monolithic model for public employment.*fn3
We also recognize the wisdom of refraining from attempting to fashion broad and general rules that would serve as a panacea. The obviously wiser course is to resolve disputes on a case-by-case basis until we develop, through experience in the area, a sound basis for developing overall principles.
Guided by these preliminary observations, we will now proceed to consider the sections in question and determine their applicability to the items at issue. Section 701 provides:
"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."
That the right to collective bargaining as to "wages, hours and other terms and conditions of employment" is not unlimited, is made clear by the two succeeding sections. Section 702 states:
"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, ...