Appeal from the Order of the Pennsylvania Labor Relations Board in the case of American Federation of State, County and Municipal Employees, Council 13, AFL-CIO v. Commonwealth of Pennsylvania, Richard Thornburgh, Governor, Case No. PERA-C-85-292-E.
John D. Raup, Chief Counsel, with him, Frank A. Fisher, Jr., Deputy Chief Counsel, for petitioner.
James L. Crawford, for respondent.
Stuart W. Davidson, Kirschner, Walters & Willig, for intervenor, AFSCME Council 13.
President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, McGinley and Smith. Opinion by Judge Doyle. Judge Smith dissents. This decision was reached prior to the resignation of Judge MacPhail.
[ 120 Pa. Commw. Page 337]
The Commonwealth of Pennsylvania (Commonwealth) petitions for review of an order of the Pennsylvania Labor Relations Board (Board) finding that the Commonwealth had violated Section 1201(a)(5) of the Public Employee Relation Act (PERA)*fn1 by refusing to enter into binding interest arbitration with the American Federation of State, County and Municipal Employees, Council 13 (AFSCME) over certain issues the Commonwealth deemed to be matters of inherent managerial prerogative.
The Commonwealth and AFSCME were parties to a collective bargaining agreement concerning the employment of corrections officers and psychiatric security aides. The agreement was scheduled to expire on June 30, 1985. In May, 1984, the parties began negotiating for a new collective bargaining agreement. Included among AFSCME's initial and supplemental list of demands were issues the Commonwealth deemed to be matters of inherent managerial prerogative.*fn2 On May 28, 1985, AFSCME wrote a letter to then Governor Thornburgh declaring that the negotiations between the parties were at an impasse and requesting binding interest
[ 120 Pa. Commw. Page 338]
arbitration. The Commonwealth responded to AFSCME by letter of June 29, 1985 stating that:
This is in response to your letter to Governor Thornburgh dated May 28, 1985 regarding your demand to proceed directly to binding interest arbitration for the Correction Officers/Psychiatric Security Aides unit.
The proposal submitted by AFSCME contains several demands which the Commonwealth believes are not mandatory subjects of bargaining under Section 702 of Act 195. Your negotiators have been advised of the Commonwealth's position regarding these specific demands. However, as of this date, the specific demands which the Commonwealth believes are not mandatory subjects of bargaining are still on the table and it is our understanding that AFSCME intends to present these demands to the interest arbitration panel.
Please be advised that it is our position that an interest arbitration panel has no authority to review or rule on matters which are not mandatory subjects of bargaining. In addition, the panel cannot decide if a particular item is or is not a mandatory subject of bargaining.
Therefore, the Commonwealth will not appoint an arbitrator until the issues noted above have been resolved.
As a result of this response, AFSCME filed an unfair labor practice charge with the Board on June 21, 1985 concerning the Commonwealth's refusal to arbitrate. A week later the parties agreed to submit to arbitration all issues the Commonwealth deemed not to be matters of inherent managerial prerogative. The Commonwealth still refused, however, to arbitrate those issues it believed to be non-mandatory subjects of bargaining.
[ 120 Pa. Commw. Page 339]
While the issues that both the Commonwealth and AFSCME agreed were the proper subjects of bargaining were before the arbitration panel, the question of whether the other eight issues were the proper subjects of bargaining under Section 701 of PERA, 43 P.S. § 1101.701, or were matters of inherent managerial policy not subject to bargaining under Section 702, 43 P.S. § 1101.702, was first adjudicated by a hearing examiner on behalf of the Board. The hearing examiner framed the issue thusly:
This case presents a procedural question: whether the Board or the interest arbitration panel convened under Section 805 of the Act [PERA] should determine whether a particular bargaining demand is subject to arbitration by the interest arbitration panel.
The hearing examiner then found that the Commonwealth had committed an unfair labor practice. The Board upheld the hearing examiner's finding of an unfair labor practice on the rationale that the Commonwealth's refusal to submit the disputed issues to arbitration would allegedly violate one of the policies underlying Section 805 of PERA, 43 P.S. § 1101.805, that is, the prompt resolution of public sector labor disputes. Moreover, the Board stated that the Commonwealth would not be harmed by first ...