Appeal from the Order of the Pennsylvania Labor Relations Board in case of Pennsylvania Labor Relations Board v. Berks County, Case No. PERA-C-13, 132-C.
Alan S. Readinger, First Assistant County Solicitor, for petitioner.
James L. Crawford, General Counsel, with him, Anthony C. Busillo, II, and Theodore M. Lieverman, Kirschner, Walters & Willig, for respondents.
Alaine S. Williams, for intervenors.
President Judge Crumlish and Judges Rogers, Blatt, MacPhail and Doyle. Opinion by Judge Rogers. Judge Mencer did not participate in the decision in this case. Concurring and Dissenting Opinion by Judge MacPhail.
[ 66 Pa. Commw. Page 619]
Berks County seeks review of a final order of the Pennsylvania Labor Relations Board (Board) dated March 4, 1980, dismissing exceptions to a Nisi Order dated November 30, 1979, and ordering the county to cease and desist from engaging in what the Board concluded was the unfair labor practice of refusing to bargain collectively and in good faith with the American Federation of State, County, and Municipal Employees, District Council 88 (union), the exclusive representative of the county's court-related employees, concerning terms and conditions of employment of the members during the year 1979.
The cause was argued before this Court on March 2, 1982, and in response to a suggestion that matters concerning a collective bargaining agreement for 1979 might then be moot, the Court was advised by the Board that it considered the case to involve an important issue capable of repetition but also likely to avoid appellate review. The issue which the Board asserts should be decided in this case is that of whether the requirement of Section 801 of the Public Employe
[ 66 Pa. Commw. Page 620]
Relations Act*fn1 that an impasse in negotiations be submitted to mediation no later than 150 days prior to the public employer's budget submission date is mandatory, with the effect of relieving the public employer of any duty to negotiate with a union, when through no fault of either party, the provision cannot be complied with, or whether Section 801 is directory only so that the employer must negotiate, submit to mediation and, if necessary, go to arbitration whenever the union, otherwise appropriately, requests it. After a painstaking review of the facts and circumstances of this case, which we are about to record, we have concluded that this case does not presently present the issue desired to be resolved.
The facts adduced at a hearing conducted before a Board examiner on October 5, 1979, are, except as we shall indicate, undisputed. The union was certified for the purpose of collective bargaining by an order of the Board which became final on November 29, 1978.*fn2 On December 18, 1978 the union requested that the county engage in negotiations intended to produce a collective bargaining agreement for 1979. By letter dated December 20, 1978, the county solicitor responded to this request in pertinent part as follows:
[ 66 Pa. Commw. Page 621]
The commissioners are not unwilling to negotiate, but such negotiations must relate to the fiscal year 1980 since the budget has been fairly ...