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COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (04/28/83)

decided: April 28, 1983.

COMMONWEALTH OF PENNSYLVANIA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LABOR RELATIONS BOARD, RESPONDENT. COUNCIL 13, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, INTERVENOR



Appeal from the Order of the Pennsylvania Labor Relations Board in case of Pennsylvania Labor Relations Board v. Commonwealth of Pennsylvania (Venango County Board of Assistance), Case No. PERA-C-10, 850-W.

COUNSEL

Robert F. Beck, Assistant Attorney General, with him, John D. Raup, Chief Counsel, for petitioner.

Frayda Kamber, with her, James L. Crawford, Cheryl G. Young and Anthony C. Busillo, II, for respondent.

Judges Rogers, Williams, Jr. and Palladino, sitting as a panel of three. President Judge Crumlish, Jr. and Judges Rogers, Blatt, Williams, Jr., Craig, MacPhail and Doyle. Opinion by Judge Rogers. Dissenting Opinion by Judge MacPhail. President Judge Crumlish, Jr. joins in this dissent. Dissenting Opinion by Judge Doyle.

Author: Rogers

[ 74 Pa. Commw. Page 3]

The Commonwealth of Pennsylvania, as the employer of unionized workers of the Venango County Board of Assistance, here seeks review of an order of the Pennsylvania Labor Relations Board (PLRB) requiring it to cease certain activities which the PLRB has determined constitute unfair labor practices within the meaning of Section 1201 of the Public Employee Relations Act (PERA), 43 P.S. § 1101.1201. Specifically, on December 5, 1977, during the term of a collective bargaining agreement effective from July, 1976 until the end of June, 1978, the Executive Director of the Board of Assistance imposed a ban on tobacco smoking by employees at their work stations thereby unilaterally discontinuing a more permissive practice previously applicable. It is not disputed that this ban was imposed and that no attempt was made by the Director prior to its imposition to initiate negotiations on the matter with the exclusive bargaining representative of the employees -- intervenor AFSCME District Council 13. The PLRB concluded that this unilateral change in working conditions by the employer during the effective term of a collective bargaining agreement constitutes a "[r]efus[al] to bargain collectively in good faith" prohibited by PERA Section 1201(a)(5), 43 P.S. § 1101.1201(a)(5).

The Commonwealth makes three arguments challenging the legal correctness of the Board's order. First, the Commonwealth asserts that the matter of whether to permit employee smoking at their work stations is one of "inherent managerial policy" expressly removed from the scope of mandatory bargaining by PERA Section 702, 43 P.S. § 1101.702. Second, the Commonwealth contends that the availability

[ 74 Pa. Commw. Page 4]

    to the union of the alternative remedy of grievance arbitration ousts the PLRB of jurisdiction of this dispute. Finally, it is agued that a provision of the parties' collective agreement has the effect of empowering the employer to make unilateral changes in working conditions like that here involved. We will consider these arguments seriatim.

Before commencing our inquiry we note that it is clearly established that the employer's unilateral accomplishment of a change in working conditions made by statute the subject of mandatory bargaining is an unfair labor practice irrespective of whether the employer's unilateral action takes place during the term of a collective agreement or following the expiration of such an agreement or during the course of negotiations intended to culminate in an agreement. First National Maintenance Corp. v. National Labor Relations Board, 452 U.S. 666 (1981); Ford Motor Company v. National Labor Relations Board, 441 U.S. 488 (1979); Fibreboard Corp. v. National Labor Relations Board, 379 U.S. 203 (1964); National Labor Relations Board v. Katz, 369 U.S. 736 (1962). See Pennsylvania Labor Relations Board v. Williamsport Area School District, 486 Pa. 375, 406 A.2d 329 (1979) (employer's unilateral change in working conditions following the expiration of a collective agreement is an unfair labor practice); Appeal of Cumberland Valley School District, 483 Pa. 134, 394 A.2d 946 (1978) (employer's unilateral change during collective negotiations is an unfair labor practice); Pennsylvania Labor Relations Board v. Mars Area School District, 480 Pa. 295, 389 A.2d 1073 (1978) (employer's unilateral change during the term of a collective agreement is an unfair labor practice).

Nevertheless, as we have indicated, the Commonwealth here interposes three defenses to the unfair labor practice charge. The Commonwealth first relies

[ 74 Pa. Commw. Page 5]

    on PERA Section 702, 43 P.S. § 1101.702 which provides:

Matters not subject to bargaining

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 service, 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, hours and terms and conditions of employment as well as the impact thereon upon request by public employe representatives.

The proper interpretation of this provision as well as of PERA Section 701, 43 P.S. § 1101.701 which specifies the matters required to be submitted to bargaining as "wages, hours and other terms and conditions of employment," was set forth in Pennsylvania Labor Relations Board v. State College Area School District, 461 Pa. 494, 507, 337 A.2d 262, 266 (1975):

Thus we hold that where an item of dispute is a matter of fundamental concern to the employes' interest in wages, hours and other terms and conditions of employment, it is not removed as a matter subject to good faith bargaining under section 701 simply because it may touch upon basic policy. It is the duty of the Board in the first instance and the courts thereafter to determine whether the impact of the issue on the interest of the employe in wages, hours and terms and conditions of employment outweighs ...


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