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COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (11/18/83)

decided: November 18, 1983.

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



Appeal from the Order of the Pennsylvania Labor Relations Board in case of Pennsylvania Labor Relations Board v. West Chester State College, Case No. PERA-C-11, 992-E, dated January 21, 1982.

COUNSEL

Frank A. Fisher, Jr., Assistant Counsel, with him John D. Raup, Chief Counsel, for petitioner.

James L. Crawford, with him Frayda Kamber, for respondent.

Alaine S. Williams, Kirschner, Walters, Willig, Weinberg & Dempsey, for intervenor.

Judges MacPhail, Doyle and Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 78 Pa. Commw. Page 421]

The Commonwealth of Pennsylvania, West Chester State College (Petitioner) seeks review of the final order by the Pennsylvania Labor Relations Board (Board), which determined that Petitioner committed an unfair labor practice, as defined by Section 1201(a)(5) of the Public Employe Relations Act (PERA),*fn1 by unilaterally invoking a twenty dollar ($20.00) parking fee on employees.

For a number of years, Petitioner encountered problems with traffic congestion and parking on the college campus. In November 1976, an All-College Parking Committee recommended that a fee be imposed on all members of the college community for the privilege of parking. After receiving various responses to this recommendation, including a letter from the American Federation of State, County and Municipal Employees (AFSCME) opposing the fee, the president of the college set forth a parking policy that effective September 1, 1978, all parking decals would be issued in accordance with the Parking Committee's recommended fee. On May 24, 1978, the Parking Committee unanimously approved a $20.00 parking fee.

From September 1977 until September 1978, labor-management meetings were held between management personnel and AFSMCE, at which time parking fees were discussed. AFSMCE was informed in these meetings that nothing definite had been decided about the parking fee. The question of parking fees was never a subject of negotiations in arriving at the collective bargaining agreement of August 24, 1978, effective July 1, 1978, between the Petitioner and AFSCME; and the agreement did not contain a reference to parking or parking fees.

[ 78 Pa. Commw. Page 422]

On December 4, 1978, AFSCME filed charges of unfair practice with the Board, alleging that Petitioner violated Sections 803, 1201(a)(5) and (9) of PERA. On January 28, 1980, the Board issued a nisi decision and order, and concluded that even though the subject of parking fees was a mandatory subject of bargaining, the existence of a "zipper clause" in the collective bargaining agreement waived the union's right to demand bargaining.*fn2 Timely exceptions were filed by the union.*fn3 The Board in its final order vacated its original conclusion to the contrary and concluded that Petitioner had violated Section 1201(a)(5) of PERA. It ordered the Petitioner to cease and desist from refusing to bargain and to bargain in good faith upon demand over the subject of the parking fee.

[ 78 Pa. Commw. Page 423]

Our review is limited to determining whether or not the Board's conclusions were reasonable or arbitrary, capricious or illegal. Commonwealth v. Pennsylvania Labor Relations Board, 64 Pa. ...


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