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decided: June 24, 1983.


Appeal from the Order of the Pennsylvania Labor Relations Board in the case of Pennsylvania Labor Relations Board v. Upper Darby Township, Mayor Eugene D. Kane, Howard I. Hatoff, Arbitrator, Case No. PF-C-80-37-E.


Alexander A. DiSanti, Richard, Brian, DiSanti & Hamilton, for petitioner.

Ellis H. Katz, with him, James L. Crawford, Anthony C. Busillo, II and Alvin S. Ackerman, for respondents.

Judges Blatt, Craig and Doyle, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 75 Pa. Commw. Page 193]

The Delaware County Lodge No. 27, Fraternal Order of Police (FOP) seeks review of the refusal of the Pennsylvania Labor Relations Board (PLRB) to issue a complaint against Upper Darby Township, the employer, based upon the FOP's charge of unfair labor practice.*fn1

This dispute involves the FOP's assertion that the township delayed the collective bargaining process for fiscal year 1980 with the intention of causing the FOP to fail to comply with the mandatory time requirements established in Act 111,*fn2 which provides for collective bargaining between policemen and their public employers, and mandates binding arbitration, with no right to strike, if bargaining reaches an impasse. In describing the factual background, we note two significant deadlines imposed in section 3 of Act 111, which provides:

Collective bargaining shall begin at least six months before the start of the fiscal year of the political subdivision or of the Commonwealth, as the case may be. Any request for arbitration,

[ 75 Pa. Commw. Page 194]

    as hereinafter provided, shall be made at least 110 days before the start of said fiscal year.*fn3

On May 7, 1979, the FOP filed a petition for investigation and certification of representatives with the PLRB seeking to represent the township's police officers.*fn4 On May 19, 1979, the PLRB received a request for intervention from the Local Representatives Association of Upper Darby Police Officers (association). Thereafter, the FOP filed a request for an expedited election with the PLRB under section 7(c) of the Pennsylvania Labor Relations Act (PLRA),*fn5 and on June 19, 1979, the township's police officers held an election, which resulted in an overwhelming victory for the FOP.

Thereafter, the PLRB delayed the certification of the FOP, after the township had petitioned the PLRB to determine whether higher-ranked police officers were included in the bargaining unit. On July 23, 1979, a PLRB examiner conducted a hearing, which involved the township and FOP, regarding the make-up of the appropriate bargaining unit.

Concurrent with the election and related litigation, the FOP attempted unsuccessfully to enter into negotiations with the township to reach a collective bargaining agreement for fiscal year 1980. On September 6, 1979, the FOP began arbitration proceedings

[ 75 Pa. Commw. Page 195]

    with the township under section 4 of Act 111.*fn6 On October 18, 1979, before any further action by the PLRB, the township filed a motion to reopen the record, alleging that it wished to present "newly discovered evidence concerning the alleged improprieties involved in the election process." Also on that day, the township withdrew its designation of the arbitrator that it had selected to represent the township in collective bargaining negotiations.

Frustrated by what it perceived as delay tactics, the FOP, on November 19, 1979, filed a charge of unfair labor practice, alleging that the township had unlawfully refused to negotiate and participate in arbitration proceedings under sections 1, 2 and 4 of Act 111.*fn7 The board consolidated the township's allegations and the FOP's unfair labor practice charges, and conducted a second hearing on November 29, 1979.

On February 27, 1980, the PLRB issued an order*fn8 that (1) all police officers, except the superintendent of

[ 75 Pa. Commw. Page 196]

    police, were to be included in the bargaining unit; (2) the results of the June 19, 1979 election were to be set aside because of improprieties in selecting the election site in that a PLRB agent conducted a pre-election conference and arranged for various details regarding the election with the FOP's counsel, without consulting with the township's counsel; and (3) because there was a legitimate question as to the certification of the FOP as the representing unit of the police officers, under the Midwest Piping rationale,*fn9 the township's withdrawal of its arbitrator and refusal to bargain could not be considered an unfair labor practice. FOP filed no exceptions to that order.

In accordance with the PLRB's order, a new election was held on April 3, 1980, and on April 21, 1980 the PLRB ruled that the new election had been conducted fairly and certified the FOP as the exclusive representative of the Upper Darby policemen.*fn10 Then, after the township continued to refuse to negotiate with the FOP regarding fiscal year 1980, the FOP requested that the secretary of the PLRB issue a complaint against the township on a charge of unfair practice, alleging that the township had engaged in unfair labor practices, in violation of section 6(1)(a), (c) and (e) of the PLRA, by refusing to enter into arbitration for the 1980 calendar year.*fn11

[ 75 Pa. Commw. Page 197]

The secretary refused to issue the complaint, and the PLRB affirmed that refusal, reasoning that the PLRB, in a previous order,*fn12 had dismissed a similar charge of the FOP after finding that "the township was under no duty to bargain with the FOP because of a pending question of representation, and because the mandatory timetables for requesting arbitration for the 1980 year had passed." Furthermore, the PLRB noted that, unlike the situation in International Association of Firefighters v. City of Johnstown, 468 Pa. 96, 360 A.2d 197 (1976), where the municipality had been the cause of the employee's failure to meet the Act 111 arbitration deadline, here, a legitimate question of representation had arisen, and the PLRB had been unable to resolve this dispute until after the Act 111 deadline had transpired. The FOP's appeal of that order, dated June 4, 1980, is now before us.

All final PLRB orders, including those refusing to institute an unfair practice complaint, are subject to judicial review. Pennsylvania Social Services Union Local 668 v. Pennsylvania Labor Relations Board, 481 Pa. 81, 392 A.2d 256 (1978).*fn13 The issuance of an unfair practice complaint is a discretionary determination

[ 75 Pa. Commw. Page 198]

    of the PLRB under section 8(b) of PLRA.*fn14 We do not review the PLRB's discretionary acts in the absence of bad faith, fraud, capricious action or abuse of power. Pennsylvania Social Services Union; Commonwealth v. Pennsylvania Labor Relations Board, 64 Pa. Commonwealth Ct. 525, 441 A.2d 470 (1982).

Act 111 requires timely adherence to the bargaining schedules set forth in sections 3 and 4 of the Act in order to perfect the right to arbitration. Bivighouse v. Borough of Telford, 66 Pa. Commonwealth Ct. 548, 445 A.2d 561 (1982). Nevertheless, our Supreme Court has recognized an exception to this strict time limitation where an employer has failed to act in good faith by engaging in dilatory bargaining tactics. International Association of Firefighters.

The FOP alleges here that the township engaged in dilatory bargaining tactics that ultimately were responsible for the FOP's inability to meet the specified deadlines, in that the township challenged the June 19, 1979 election, and refused to enter into arbitration while the FOP awaited final certification, and, again, after the FOP's certification on April 21, 1980.

The FOP, in asserting that the township should be required to arbitrate after the expiration of the Act 111 deadline for fiscal year 1980, is, in effect, urging that the PLRB consider the township's actions during 1979 as dilatory conduct, and, therefore, under the scope of the International Association exception. However, the PLRB, by its order of February 27, 1980, found that the township had not committed an unfair labor practice in refusing to negotiate.

Notably, the FOP did not file exceptions to the PLRB's February 27, 1980 order, and, in its present charge of unfair practice, has incorporated all of the acts previously complained of in its earlier charge,

[ 75 Pa. Commw. Page 199]

    citing only the additional facts of the FOP's April 21, 1980 certification and the FOP's subsequent request to arbitrate. In partial effect, the FOP seeks to relitigate the previous charge. However, we have held that a party may not collaterally attack a previous PLRB determination on the charge of unfair practices by filing a new charge based on the same facts. Nyo v. Pennsylvania Labor Relations Board, 53 Pa. Commonwealth Ct. 646, 419 A.2d 244 (1980).

In view of the FOP's non-appeal of the PLRB's February 27, 1980 order, we must accept as fact that the township's conduct in 1979 did not constitute an unfair practice. Thus, we must narrow our inquiry to the FOP's charge that the township engaged in an unfair practice by refusing to begin arbitration after the FOP's certification on April 21, 1980.

Because that request occurred more than seven months beyond the deadline set in Act 111, and absent any wrongdoing on the part of the township in or before 1979, we cannot say that the PLRB acted with bad faith, fraud, capricious action or abuse of power in not issuing an unfair practice complaint.

Accordingly, we affirm the decision of the PLRB.


Now, June 24, 1983, the order of the Pennsylvania Labor Relations Board, entered June 4, 1980, at No. PF-C-80-37-E, is affirmed.



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