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PORT AUTHORITY ALLEGHENY COUNTY v. DIVISION 85 (02/24/78)

decided: February 24, 1978.

PORT AUTHORITY OF ALLEGHENY COUNTY
v.
DIVISION 85, AMALGAMATED TRANSIT UNION; JOSEPH W. BARTLETT, BUSINESS AGENT; WADE L. WELSH, PRESIDENT; JOHN A. REMARK, FINANCIAL SECRETARY AND WILLIAM J. LANGE, RECORDING SECRETARY, INDIVIDUALLY AND AS TRUSTEES AD LITEM, APPELLANTS. PORT AUTHORITY OF ALLEGHENY COUNTY, APPELLANT V. DIVISION 85, AMALGAMATED TRANSIT UNION; JOSEPH W. BARTLETT, BUSINESS AGENT; WADE L. WELSH, PRESIDENT; JOHN A. REMARK, FINANCIAL SECRETARY AND WILLIAM J. LANGE, RECORDING SECRETARY, INDIVIDUALLY AND AS TRUSTEES AD LITEM, APPELLEES



Appeals from the Orders of the Court of Common Pleas of Allegheny County in case of Port Authority of Allegheny County v. Division 85, Amalgamated Transit Union; Joseph W. Bartlett, Business Agent; Wade L. Welsh, President; John A. Remark, Financial Secretary; and William J. Lange, Recording Secretary, Individually and as Trustees ad litem, No. GD 76-26790.

COUNSEL

James Q. Harty, with him Reed, Smith, Shaw & McClay; Robert M. Brown ; and Ruffin, Hazlett, Perry & Lonergan, for Port Authority of Allegheny County.

Joseph J. Pass, Jr., with him Samuel J. Pasquarelli, and Jubelirer, McKay, Pass & Intrieri, for Division 85, Amalgamated Transit Union, et al.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers and Blatt. Opinion by President Judge Bowman. Dissenting Opinion by Judge Blatt.

Author: Bowman

[ 34 Pa. Commw. Page 73]

The Port Authority of Allegheny County (PAT) is a "body corporate and politic" created pursuant to the Second Class County Port Authority Act (Port Authority Act), Act of April 6, 1956, P.L. (1955) 1414, as amended, 55 P.S. § 551 et seq., under which it is charged with owning and operating a county-wide mass transportation system. PAT is the plaintiff in equity proceedings initiated in the Court of Common

[ 34 Pa. Commw. Page 74]

Pleas of Allegheny County. Division 85, Amalgamated Transit Union (Div. 85), a defendant in the equity proceedings, is the bargaining representative of the vast majority of PAT's employes. Also named parties defendants are individual officers of Div. 85 (hereinafter collectively designated Div. 85). PAT and Div. 85 have, since 1964, entered into successive collective bargaining contracts of three years duration. These consolidated appeals have their genesis in a strike by PAT employes initiated on December 1, 1976, immediately following the expiration of the collective bargaining contract entered into on February 5, 1974, effective December 1, 1973, and which expired on November 30, 1976.

The strike followed rejection by Div. 85 of PAT's final offer made on November 30, 1976. A three-count complaint in equity was promptly filed by PAT seeking preliminary and permanent injunctive relief and to compel compliance by Div. 85 with the collective bargaining impasse procedures contained in Sections 801 and 802 of the Public Employe Relations Act (Act 195), Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.801, .802.

Count I of PAT's complaint asserted that Div. 85 refused PAT's November 23, 1976 offer of arbitration extended pursuant to Section 13.2 of the Port Authority Act, added by the Act of October 7, 1959, P.L. 1266, 55 P.S. § 563.2, and that under Section 13.2 Div. 85 was required to enter into binding arbitration, which procedure, ipso facto, precludes strikes.

Count II avers that PAT and Div. 85's membership are a public employer and public employes respectively, as those terms are defined in Sections 301(1) and (2) of Act 195, 43 P.S. § 1101.301(1), (2), and that Div. 85 is an employe organization as that term is defined in Section 301(3) of Act 195, 43 P.S. § 1101.301(3). PAT continues that mediation sessions commenced

[ 34 Pa. Commw. Page 75]

    on November 16, 1976, and that six more sessions were held between then and November 30, 1976. PAT then concludes that the strike was prohibited by Section 1002 of Act 195, 43 P.S. § 1101.1002, because the substantive provisions of Sections 801 and 802 of Act 195 had not been exhausted as of December 1, 1976, i.e., that the strike was unlawful in its inception.

In Count III, PAT asserts in the alternative that the strike created a "clear and present danger or threat to the health, safety and welfare of the public," and was, therefore, illegal under Section 1003 of Act 195, 43 P.S. § 1101.1003.

On December 2, 1976, a hearing was conducted on PAT's prayer for preliminary injunctive relief at which hearing PAT presented testimony to the effect that mass transit in Allegheny County was inoperative; that it serviced 360,000 riders per day; that supervisory employes were Div. 85 members; that the downtown Pittsburgh area was suffering traffic tieups somewhat greater than normal; that thirty-four negotiating sessions had been conducted but that the mediator did not participate until November 16, 1976; that the mediator was still trying to arrange sessions; that PAT sought to invoke arbitration under Section 13.2 of the Port Authority Act on November 23, 1976, but that Div. 85 refused to participate; and that Div. 85 had initially called for mediation on June 29, 1976.

To this evidence, Div. 85 demurred and after brief argument, the lower court reopened the record for testimony and argument on, inter alia, the issue of compliance with those portions of Sections 801 and 802 of Act 195 requiring participants in collective bargaining talks to call for mediation no later than 150 days prior to the public employer's "budget submission date," Section 301(12) of Act 195, 43 P.S. § 1101.301(12), requiring the mediator, in the event of an impasse, to request fact-finding from the Pennsylvania

[ 34 Pa. Commw. Page 76]

Labor Relations Board (Board) no later than 130 days prior to date of impasse.

The record reopened, PAT presented evidence that the Port Authority Act contained no budget submission date as its budget was not subject to approval or action by any other body; that it could not prepare its budget until the annual county budget containing subsidies was prepared; and that since 1971 its annual budget had been prepared on various dates roughly falling within a three months span.

In closing, PAT argued that Div. 85 had the burden of proving the legality of its strike under Section 1003 of Act 195; that it could not be bound by the time frame of Sections 801 and 802 of Act 195 as it had no "budget submission date"; that Sections 801 and 802 require twenty days of actual mediation rather than the mere passage of twenty days from the start of mediation; and that a failure on the part of PAT to negotiate in good faith, if, in fact, such was the case, would be an unfair labor practice and not a defense to an illegal strike. Section 1004 of Act 195, 43 P.S. § 1101.1004.

Div. 85 argued that it was PAT's burden to prove violations by Div. 85 of Sections 801 and 802 and that PAT had failed to meet said burden because no budget submission date had been established; that Act 195 requires merely the passage of twenty days from the start of mediation; that any violations of Sections 801 and 802 which did occur were PAT's responsibility because it failed to join in Div. 85's June 29, 1976 call for mediation; and that under the fourth paragraph of Section 13.2 of the Port Authority Act, preserving to employes of the formerly private transit companies "benefits" previously enjoyed, said employes continued to enjoy an unlimited right to strike.

The lower court then sustained Div. 85's demurrer to Counts I and III of PAT's complaint in equity and

[ 34 Pa. Commw. Page 77]

    on December 3, 1976, issued an order finding that Div. 85 was engaged in a work stoppage and that the mediation and fact-finding procedures contained in Sections 801 and 802 of Act 195 had not been exhausted. Accordingly, invoking Section 1002 of Act 195, the lower court enjoined Div. 85's strike and strike-related activities and ordered PAT and Div. 85 to resume Sections 801 and 802 collective bargaining procedures. Two December 4, 1976 orders issued in response to Div. 85's motions for clarification of the December 3, 1976 order directed PAT employes to return to work under the terms and conditions existing immediately prior ...


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