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AMERICAN FEDERATION STATE v. COMMONWEALTH PENNSYLVANIA (08/01/88)

decided: August 1, 1988.

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, DISTRICT COUNCIL 33, LOCAL 159, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LABOR RELATIONS BOARD, APPELLEE. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, DISTRICT COUNCIL 33, AFL-CIO AND AFSCME LOCAL 159, APPELLANTS V. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LABOR RELATIONS BOARD, APPELLEE



Appeals from the Order of the Court of Common Pleas of Philadelphia County, in the case of American Federation of State, County and Municipal Employees, District Council 33, Local 159 v. Pennsylvania Labor Relations Board, Nos. 1842 May Term, 1985 and 4461 August Term, 1985, dated March 31, 1986.

COUNSEL

Samuel L. Spear, with him, Louis H. Wilderman, Spear, Wilderman, Sigmond, Borish, Endy and Silverstein, for appellants.

John Best Neurohr, with him, James L. Crawford, for appellee.

Anthony C. Busillo, II, for intervenor, Lodge No. 5, Fraternal Order of Police.

Judges Barry and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barry. Judge Colins dissents.

Author: Barry

[ 118 Pa. Commw. Page 314]

This case concerns the union representation of deputy sheriffs in the Philadelphia County Sheriff's office. The deputy sheriffs had been represented by Appellant, the American Federation of State, County and Municipal Employees (AFSCME), for several years prior to 1984. In that year a representation election was conducted by the Pennsylvania Labor Relations Board (PLRB) in which the deputy sheriffs overwhelmingly chose the Fraternal Order of Police (FOP) as their collective bargaining representative. AFSCME before the election had filed two charges of unfair labor practices with the PLRB against the City and County of Philadelphia and Sheriff Ralph Passio and filed a third charge shortly after the election. The charges were ultimately dismissed by the PLRB. AFSCME filed two petitions with the Philadelphia County Common Pleas Court seeking review of the order dismissing the charges and the order certifying the results of the election. The petitions were consolidated and the court affirmed the PLRB's orders. Two separate appeals regarding each order were filed with this court and were subsequently consolidated.

Our scope of review is limited to determining whether the PLRB's findings are supported by substantial evidence and whether its conclusions are reasonable and not capricious, arbitrary or illegal. Hazleton Area Education Assoc. v. Pennsylvania Labor Relations Board, 93 Pa. Commonwealth Ct. 646, 503 A.2d 71 (1985). We accept the PLRB's conclusions and therefore affirm.

The first charge of unfair labor practice concerns the fact that the Sheriff implemented changes in the conditions of employment without consulting or negotiating with AFSCME. This charge was withdrawn after both sides agreed to negotiate, but AFSCME later sent a letter

[ 118 Pa. Commw. Page 315]

    to the PLRB alleging that the Sheriff had violated the agreement by refusing to negotiate. The PLRB treated the letter as an exception to the Nisi Order of Withdrawal which had been issued.

In its Final Order dismissing the charges, the PLRB found that both parties had attempted to negotiate but failed because of scheduling conflicts. This finding is supported by substantial evidence and will not be overturned.

The second charge of unfair labor practice is that Sheriff Passio aided the FOP in attempting to unseat AFSCME as representative of the deputy sheriffs. The third charge alleges that Sheriff Passio influenced the representation election in which the FOP was chosen to replace AFSCME. In addition to these charges, in its petition for review of the Order of Certification, AFSCME argues that Sheriff Passio's active membership in the FOP should have disqualified the FOP as a permissible choice in the representation ...


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