decided: February 11, 1981.
DR. LUTHER BURSE AND DR. ARTHUR T. DEGENARO AND OTHERS SIMILARLY SITUATED, PETITIONERS
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LABOR RELATIONS BOARD, RESPONDENT
Appeal from the Order of the Pennsylvania Labor Relations Board in the cases of Pennsylvania Labor Relations Board v. Commonwealth of Pennsylvania, No. PERA-C-10,479-C and Pennsylvania Labor Relations Board v. Association of State College and University Faculties, No. PERA-C-10,480-C.
Richard Kirschner, with him Deborah R. Willig, Kirschner, Walters & Willig, for petitioners.
Cheryl G. Young, with her James L. Crawford, Anthony G. Busillo, and Mary Teresa Gavigan, Assistant Attorneys General, for respondent.
Jerome H. Gerber, with him James L. Cowden, Handler and Gerber, P.C., for intervenor, Association of Pennsylvania State College and University Faculties.
President Judge Crumlish and Judges MacPhail and Williams, Jr., sitting as a panel of three. Opinion by President Judge Crumlish.
[ 56 Pa. Commw. Page 556]
This is an appeal from a final order of the Pennsylvania Labor Relations Board (Board) dismissing Petitioners'*fn1 unfair labor practice charges. We affirm.
On October 2, 1974, the Association of Pennsylvania State College and University Faculties (APSCUF) and the Commonwealth entered into a collective bargaining agreement (Agreement), to terminate August 31, 1977, which required all APSCUF
[ 56 Pa. Commw. Page 557]
members to maintain their union membership during the term of the Agreement,*fn2 but permitted membership resignations during a fifteen-day period immediately prior to the contract's expiration. The Agreement also authorized the Commonwealth, as employer, to deduct union dues from the salary of those faculty members who gave written authorization,*fn3 provided it was irrevocable outside the fifteen-day period.
During 1977, the College and University Faculty Association (CUFA), an affiliate of the Pennsylvania State Education Association (PSEA), began a campaign to supplant APSCUF as the collective bargaining agent for the state college and university faculty membership. Consequently, some petitioners resigned their membership while others resigned from the union and revoked their dues deduction authorizations during the last fifteen days of August, 1977.*fn4
Since APSCUF and the Commonwealth had extended the terms of their 1974 contract until June 30, 1979, APSCUF contended there was no resignation/revocation period in 1977 and proceeded to arbitration with the Commonwealth under the Agreement's grievance procedure. The parties agreed to
[ 56 Pa. Commw. Page 558]
place funds collected pursuant to check-off authorizations in an escrow account pending the arbitrator's decision.
Upon application, the arbitrator concluded that faculty members could resign membership and revoke their dues deduction authorization in August, 1977, but that membership resignation did not automatically revoke dues deduction authorizations.
In response, Petitioners charged unfair labor practices, alleging that the Commonwealth and APSCUF violated the Public Employe Relations Act (PERA) by continuing to collect and retain dues after union resignation.*fn5 The Board dismissed these charges, concluding that maintenance of membership and dues deductions are separate concepts, necessitating both membership resignation and specific revocation of dues deduction authorization. Therefore, those union members who executed only a valid membership resignation were bound by their deduction agreement until the next valid escape period.
Petitioners' challenge to the Board's findings requires a determination of whether a public employee continues to be bound by a dues deduction authorization agreement after he has terminated union membership.
At the outset, we conclude that the Board's reliance on private sector federal labor decisions is well-founded.
Not being unmindful of the distinctions between private and public labor legislation, Pennsylvania Labor Relations Board v. State College Area School District, 461 Pa. 494, 337 A.2d 262 (1975), we look to federal decisions for guidance where, as here, there is
[ 56 Pa. Commw. Page 559]
no meaningful difference between the established policies of PERA and the National Labor Relations Act (NLRA),*fn6 Appeal of Cumberland Valley School District, 483 Pa. 134, 394 A.2d 946 (1978). Our federal brothers have historically recognized the distinction between union membership and dues deduction agreements characterizing the latter as a simple contract between employee and employer which survives membership resignation. See National Labor Relations Board v. Shen-Mar Food Products, Inc., 557 F.2d 396 (4th Cir. 1977); Associated Press v. National Labor Relations Board, 492 F.2d 662 (D.C. Cir. 1974).*fn7
Initially, Petitioners contend that APSCUF By-laws Article III, which specifies three categories of dues-paying members, prohibits payments by non-union employees. We cannot agree.
There is no by-law prohibiting payments by bargaining unit members who do not maintain union membership. To the contrary, non-union members may contribute amounts equivalent to dues as their "fair share" support of the bargaining unit.*fn8 The policy
[ 56 Pa. Commw. Page 560]
of the Commonwealth and APSCUF, in promoting orderly and constructive relationships between public employees and their employers, is furthered by encouraging contribution by non-union bargaining unit members, thus permitting them to financially support a union bargaining on their behalf, although they are aloof from active unionism.
Petitioners also challenge the Board's conclusion that the Agreement's Article XXVI(b)(1) "check off" provision specifically authorizes deductions to APSCUF by non-union teachers.*fn9 Again, we disagree with Petitioners' position.
Article XXVI as a whole can be read sensibly only if its references to "faculty" and "faculty members" are interpreted to mean persons on the faculties of the
[ 56 Pa. Commw. Page 561]
state-owned colleges and university. Article XXVI(A)*fn10 provides in part that "[a]ll faculty members who are members of APSCUF as of the date of ratification of this Agreement . . . shall . . . maintain their membership in APSCUF. . . ." (Emphasis added.) To infer that the term "members" contemplates only union members ignores the clear distinction to be drawn between "faculty members" and union members, renders the phrase "members of APSCUF" superfluous, and results in a whimsical, unrealistic construction of Article XXVI(A).
The Board's conclusion that membership and dues deduction authorization are distinct concepts is bolstered further by the text of Article XXVI. Not only does the Agreement provide in separate clauses for maintenance of membership and dues deductions, but it specifies two separate and distinct acts by employees: (1) maintaining membership in the union, with an option to resign during a specified period, and (2) authorizing the employer to deduct dues from an employee's paycheck, with an option to revoke the authorization during a specified period.
Petitioners, in furtherance, urge us to consider Section 705 of the Act, 43 P.S. § 1101.705, which provides:
[ 56 Pa. Commw. Page 562]
Membership 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. (Emphasis added.)
Section 705 contains no language which limits dues deductions to union members, but requires APSCUF members to pay dues by whatever method they choose so long as they are members of the union. As we review it, dues deductions are provided as a convenience for employees to facilitate payment of dues by union members and is not required by PERA, the Agreement or a condition of continued employment.*fn11
[ 56 Pa. Commw. Page 563]
Lastly, we reject Petitioners' contention that the Board's decision creates a prohibited agency shop.
It is indisputable that agency shops are illegal in the public sector. See Pennsylvania Labor Relations Board v. Zelem, 459 Pa. 399, 329 A.2d 477 (1974). The essence of an agency shop is a requirement that all employees, union and non-union alike, pay a service fee to the union, as a condition of employment in order to help defer bargaining and contract administration expenses. No such employment condition is imposed by our decision which does not require employees to become union members, contribute to the union or enter into a dues deduction contract. We merely enforce today a contract between employee and employer which was never revoked in accordance with the contract terms.*fn12
Accordingly, we conclude that maintenance of membership and dues "check-off" authorization are separate contractual obligations which require separate acts of resignation and revocation under both PERA and the Collective Bargaining Agreement here at issue.
The decision of the Pennsylvania Labor Relations Board, dated August 7, 1979, is affirmed.