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June 4, 1997


Appealed From No. PF-C-95-151-W. State Agency Pennsylvania Labor Relations Board.

Before: Honorable Doris A. Smith, Judge, Honorable Jim Flaherty, Judge, Honorable Samuel L. Rodgers, Senior Judge. Opinion BY Judge Flaherty.

The opinion of the court was delivered by: Flaherty


FILED: June 4, 1997

Indiana Borough (Borough) petitions for review of a final order of the Pennsylvania Labor Relations Board (PLRB or Board) finding that the Borough committed unfair labor practices (ULP) under Section 6(1)(a) and (e) of the Pennsylvania Labor Relations Act *fn1 (PLRA) by unilaterally changing the work schedule of its police officers, who are represented for collective bargaining purposes by the Indiana Borough Police Benevolent Association (Association), from a steady shift system to a rotating shift system without first fulfilling its bargaining obligations under Act 111. *fn2 We affirm.

The facts, as found by the Board, are essentially as follows. On July 16, 1992, the Borough and the Association entered into a collective bargaining agreement (CBA) effective from January 1, 1992 through December 31, 1993. In June, 1993, negotiations for a successor CBA were entered into culminating in another CBA effective January 1, 1994 through December 31, 1997. In February 1991, the Borough's mayor unilaterally implemented a steady shift schedule system in response to the requests of numerous police officers. At this time, the Borough assigned individual shifts based on both employee seniority and preference and reserved the right to alter the shift assignments based upon need. In September 1991, the Borough implemented the steady shift system permanently. Thereafter, to afford officers an opportunity to make a change in their shift assignment, the Borough posted sign-up sheets periodically but informed the officers that assignments would be made on the basis of seniority and could be altered by the Borough based on need. Officers were informed that the sign-up sheets did not guarantee any officer's shift preference all or most of the time. The Borough continued to use steady shifts until 1995.

During the negotiations on the CBA between the parties in 1992 and 1993, the Borough never requested that the officers' schedules be changed from a steady shift to a rotating shift, and at no time did the Association ever agree to the change.

On January 2, 1995, the Borough changed one day of the officers' weekly work schedule so that the officers would appear in court while on duty. In response to this change, the Association filed the first charge of ULP with the PLRB, which is currently pending and is otherwise unrelated hereto except that following April 19, 1995, the parties engaged in negotiations concerning the ULP charges over the "court day" scheduling, at which time the possibility of eliminating the steady shift system was also discussed by the Association. (R.R. at 39a, 40a.)

On May 18, 1995, the Borough unilaterally eliminated the steady shifts by posting a schedule implementing a rotating shift system as of June 19, 1995. On June 29, 1995, the Association filed the instant second ULP charges, alleging that the Borough was obligated to negotiate with and obtain agreement from the Association on the change in scheduling systems as a mandatory subject of bargaining under Act 111.

From the year 1992 to the present, the Borough and the Association were parties to two CBAs, the material provisions of which are the same for purposes of the matter currently in dispute. Article II of each CBA contained a "management rights" clause stating, in relevant part, as follows:

The collective bargaining unit agrees that except for limitations of other provisions of this agreement, express or implied, there are functions, powers, responsibilities and authorities belonging solely to the Borough, prominent among which, but by no means wholly inclusive, are; . . . the determination of work to be performed; the determination of operation schedules; the determination of the number of shifts to be worked. . . .

(R.R. at 312a, 327a.)(emphasis added). In addition, each CBA contained a clause stating as follows:

In the administration of all matters covered by this agreement, officials and employees are governed by the provisions of any existing and future laws or regulations including the provisions of the Borough Code and Code of Ordinances of the Borough of Indiana and the policies set forth specifically in the personnel compensation plan and the personnel rules and regulations; said Borough Code, Ordinances and manuals being incorporated herein by reference to the same extent and in the same manner as if said Borough Code, Ordinances and manuals were set forth herein in detail. This agreement is at all times to be applied subject to such laws, regulations and policies and the provisions of said manuals as the same now exist or as amended during the term hereof.

(R.R. at 313a, 328a.) Each CBA contained an additional clause entitled "PAST PRACTICES," which stated that "all existing benefits not modified by this Award shall remain as is." (R.R. at 325a, 341a.) Finally, ...

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