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AMERICAN FEDERATION STATE v. COMMONWEALTH PENNSYLVANIA (03/07/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 7, 1986.

AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, DISTRICT COUNCIL 83, AFL-CIO, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LABOR RELATIONS BOARD AND INDIANA COUNTY, RESPONDENTS

Appeal from the Order of the Pennsylvania Labor Relations Board in the case of Pennsylvania Labor Relations Board v. Indiana County, Case No. PERA-C-82-456-W.

COUNSEL

Alaine S. Williams, with her, Samuel Issacharoff, Kirschner, Walters, Willig, Weinberg & Dempsey, for petitioner.

Kathryn Speaker MacNett, with her, James L. Crawford, for respondent.

Alex E. Echard, for intervenor, Indiana County.

President Judge Crumlish, Jr. and Judges Rogers, Craig, MacPhail, Doyle, Colins and Palladino. Opinion by Judge Craig. Judge MacPhail dissents.

Author: Craig

[ 95 Pa. Commw. Page 466]

American Federation of State, County and Municipal Employees, District Council 83, AFL-CIO (AFSCME) appeals from an order of the Pennsylvania Labor Relations Board (PLRB) affirming a hearing examiner's decision that Indiana County did not commit an unfair labor practice in refusing to implement an interest arbitration award. We reverse.

AFSCME is the certified bargaining representative for the Indiana County prison guards. AFSCME and the county commenced negotiations, pursuant to the wage reopener clause in their collective bargaining

[ 95 Pa. Commw. Page 467]

    agreement, concerning changes to be effective January 1, 1982, but reached an impasse after numerous negotiating sessions.*fn1 Pursuant to section 805 of the Public Employe Relations Act (PERA),*fn2 they referred the dispute to an arbitration panel. On March 25, 1982, the panel of arbitrators issued an award directing the county to pay all bargaining unit employees a twenty cent per hour wage increase.

On August 25, 1982, AFSCME filed an unfair labor practice with the PLRB alleging that the county had violated the PERA by refusing to implement the arbitration award.*fn3 On September 17, 1982, the PLRB issued a complaint and on May 4, 1983, held a hearing before a hearing examiner. After the PLRB by a two-to-one vote approved the hearing examiner's decision against AFSCME, this appeal followed.*fn4

The issue before us is whether the wage increase provision of the arbitration award in favor of AFSCME requires a "legislative enactment" for its implementation, so that in accordance with the terms

[ 95 Pa. Commw. Page 468]

    of section 805, the award would have to be considered only advisory.

In County of Lawrence v. Pennsylvania Labor Relations Board, 79 Pa. Commonwealth Ct. 14, 469 A.2d 1145 (1983) we said:

The question whether an arbitration award is advisory is a determination of fact; the County is burdened with demonstrating whether a legislative enactment is required to execute the award.

County of Lawrence, 79 Pa. Commonwealth Ct. at 19, 469 A.2d at 1147. Our Supreme Court in Franklin County Prison Board v. Pennsylvania Labor Relations Board, 491 Pa. 50, 417 A.2d 1138 (1980) held that the existence of the elements required to make the award advisory must be " demonstrated " by the public employer, Franklin County, 491 Pa. at 62, 417 A.2d at 1144. (Emphasis in original.)

The PLRB read and adopted the hearing examiner's Finding No. 12 as stating "that the Commissioners would have had to borrow money to fund the award . . . since there were not sufficient funds available out of current revenues. . . ." In fact, the hearing examiner's Finding No. 12 actually read:

12. That the County would have had to borrow money to implement the interest arbitration award. It did not do so because it did not believe it had enough money coming in to pay back any borrowed money that year. (Emphasis supplied.)

Thus the hearing examiner recognized that budget amounts can be funded -- when temporary funding is needed -- by tax anticipation borrowing under section 1771 of the County Code,*fn5 provided that repayment

[ 95 Pa. Commw. Page 469]

    with subsequent tax receipts in the current fiscal year is possible. However, because the testimony on behalf of the county commissioners was extremely general and vague, containing no numerical specifics nor any explanation of the budget page which the county introduced in its exhibits, the record lacks any substantial evidence as a basis for finding that budgetary amounts were insufficient or that tax anticipation borrowing could not be used to fund the implementation.*fn6 All the hearing examiner could find was as stated, that the county commissioners did not "believe" that future tax receipts would permit them to undertake the tax anticipation funding process.

The county, in addition to its failure to demonstrate insufficiency of budgetary amounts and inability to fund those amounts, also failed to sustain its burden of showing that implementation could not have been achieved by budget transfers from one category of the year's budget to another. The PLRB, continuing to misplace the burden, stated that "even had the record demonstrated a surplus in the general fund, we would find the act of transferring funds from the general fund to the prison budget to constitute legislative action."

[ 95 Pa. Commw. Page 470]

This court has currently decided that precise question otherwise in County of Lehigh v. American Federation of State, County and Municipal Employees, Page 470} District Council 88, Local 543, AFL-CIO, 95 Pa. Commonwealth Ct. 486, 505 A.2d 1104 (1986) which we consolidated for oral argument with this case.*fn7 In that case, we held that the transfer of funds from one line item to another, where there are sufficient funds in the budget to make the transfer, does not require a legislative enactment. However, where there are not sufficient funds in the budget to make such a transfer, implementation would require a legislative enactment. Therefore, the PLRB's conclusion that the transfer of funds from one line item to another necessarily requires legislative enactment is contrary to our holding and therefore is reversed.

Accordingly, because the county has not demonstrated the necessity of a legislative enactment for the implementation of the arbitration award in this case, the county commissioners' unsupported rejection of that award constituted an unfair labor practice. The decision of the PLRB is reversed, and this case is remanded with a direction that the arbitration award be enforced.

Order

Now, March 7, 1986, we reverse the order of the Pennsylvania Labor Relations Board at No. PERA-C-82-456-W, dated May 17, 1984, and remand this case to it, directing that the arbitration award be enforced.

Jurisdiction relinquished.

Judge MacPhail dissents.

Disposition

Reversed and remanded.


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