decided: December 27, 1985.
HAZLETON AREA EDUCATION ASSOCIATION, APPELLANT
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LABOR RELATIONS BOARD, APPELLEE
Appeal from the Order of the Court of Common Pleas of Luzerne County in the case of Hazleton Area Education Association v. Pennsylvania Labor Relations Board, No. 1117-C of 1982.
Peter J. O'Brien, O'Brien and Miller, for appellant.
John B. Neurohr, with him, James L. Crawford, William J. Maikovick and Kathryn Speaker MacNett, for appellee.
Thomas H. Kohn, with him, Thomas W. Jennings, Sagot & Jennings, for intervenor appellee, Hazleton Area Federation of Teachers.
President Judge Crumlish, Jr., and Judges Rogers, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by President Judge Crumlish, Jr. Judge Doyle dissents.
[ 93 Pa. Commw. Page 647]
The Luzerne County Common Pleas Court affirmed a Pennsylvania Labor Relations Board decision ordering the Hazleton Area Education Association to reimburse each non-union bargaining unit member. The Association appeals; we affirm.
In Hazleton Area School District v. Hazleton Area Education Association, 47 Pa. Commonwealth Ct. 255, 408 A.2d 544 (1979), the Association successfully recovered wrongfully withheld wages for 600 members of its bargaining unit of whom approximately 300 employees are dues-paying Association members. Prior to distribution to each unit member, the Association required each unit member to pay a $12 "administrative fee" for its cost of litigation. The Hazleton Area Federation of Teachers (Federation), a separate union which represents approximately 200 bargaining unit members, filed an unfair labor practice charge against the Association, alleging violation of Section 1201(b)(1) of the Public Employe Relations Act (PERA).*fn1
Our scope of review of an unfair labor practice Board decision is limited to a determination of whether the Board's findings are supported by substantial evidence and whether the conclusions drawn therefrom are reasonable and not capricious, arbitrary or illegal. Minersville Area School District v. Pennsylvania Labor Relations Board, 82 Pa. Commonwealth Ct. 506, 475 A.2d 962 (1984).
The issue is whether it is an unfair labor practice for a certified collective bargaining representative to
[ 93 Pa. Commw. Page 648]
uniformly assess the cost of litigation against all union and non-union members of a particular bargaining unit.
The Association contends that requiring the payment of the fee does not compel non-union members to "assist" or "join" the union.*fn2 Rather, the Association argues that Section 903 of PERA*fn3 expressly provides that "[t]he costs of arbitration shall be shared equally by the parties." We disagree.
Public employees have the right under Section 401 to refrain from joining or assisting employee organizations. See Pennsylvania Labor Relations Board v. Zelem, 459 Pa. 399, 329 A.2d 477 (1974). The only exception is where the employee's assistance is "required pursuant to a maintenance of membership provision in a collective bargaining agreement." Section 401 of PERA. Such a provision can only provide that union members pay all dues and assessments while registered as a condition of employment.*fn4
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We hold that the fee assessment of non-union unit members violates PERA and constitutes an unfair labor practice by usurping an employee's right to refrain from assisting employee organizations.
Section 903 of PERA supports our conclusion. We have consistently held that only the bargaining representative and the employer are the "parties" to an arbitration award. Maggs v. Pennsylvania Labor Relations Board, 50 Pa. Commonwealth Ct. 549, 413 A.2d 453 (1980). A bargaining unit member is not a "party" to the agreement.
The decision of the Luzerne County Common Pleas Court at No. 1117-C of 1982 dated January 9, 1984, is affirmed.
Judge Doyle dissents.