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06/20/97 PLAINFIELD TOWNSHIP POLICEMEN'S

COMMONWEALTH COURT OF PENNSYLVANIA


June 20, 1997

PLAINFIELD TOWNSHIP POLICEMEN'S ASSOCIATION, BY AND THROUGH JOSEPH STRAKA, PETITIONERS
v.
PENNSYLVANIA LABOR RELATIONS BOARD, RESPONDENT

Appealed From No. PF-C-95-114-E. State Agency, Pennsylvania Labor Relations Board.

Before: Honorable Doris A. Smith, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Friedman.

The opinion of the court was delivered by: Friedman

OPINION BY JUDGE FRIEDMAN

FILED: June 20, 1997

Plainfield Township Policemen's Association (Association), by and through Joseph Straka, appeals from an order of the Pennsylvania Labor Relations Board (PLRB) which sustained the exceptions of Plainfield Township (Township) to the Proposed Decision and Order (PDO) of a PLRB Hearing Examiner and concluded that the Township did not engage in unfair labor practices contrary to sections 6(1)(a) and (e) of the Pennsylvania Labor Relations Act (PLRA), *fn1 as read in pari materia with what is commonly called the Collective Bargaining by Policemen or Firemen Act (Act 111). *fn2

In 1981, the Township enacted a police pension ordinance pursuant to the Police Pension Fund Act (Act 600). *fn3 The ordinance, as originally enacted, required 25 years of service for pension eligibility; however, in July 1985, the Township amended the police pension ordinance to reduce the service requirement to 20 years.

Several years later, the Association, as designated bargaining representative for the Township's police officers, negotiated a collective bargaining agreement with the Township, which was effective from January 1, 1988 through December 31, 1990. That agreement, however, did not address the subject of police pensions. Provisions regarding police pensions were also absent from successive collective bargaining agreements between the parties, including the agreement which was in effect during calendar year 1995.

On or about August 30, 1993, the Township received an audit report from the Department of the Auditor General, which stated that the Township's police pension ordinance did not conform to Act 600 because it provided an annuity after only 20 years of service and recommended that the Township amend its police pension ordinance. Subsequently, by ordinance enacted on April 12, 1995, the Township amended the police pension ordinance to require 25 years of service for receipt of a pension.

In response to the Township's modification of the police pension ordinance, the Association filed an unfair labor practice charge with the PLRB, alleging that the Township had made unilateral changes in the pension plan without prior collective bargaining with the Association. After hearings upon the matter, the Hearing Examiner issued a PDO, stating that, because pensions are subject to bargaining, the Township had a duty to bargain with the Association over any changes in the police pension ordinance. Although the Township argued that implementation of the 25-year service requirement was necessary for compliance with Act 600, the Hearing Examiner determined that such a change could not be imposed unilaterally and, accordingly, concluded that the Township had engaged in unfair labor practices contrary to sections 6(1)(a) and (e) of the PLRA. *fn4

The Township filed timely exceptions to the Hearing Examiner's PDO which the PLRB sustained, concluding that the Township had not engaged in unfair labor practices contrary to sections 6(1)(a) and (e) of the PLRA and Act 111 by amending the police pension ordinance to require 25 years of service for pension eligibility.

On appeal to this court, *fn5 the Association argues that the PLRB erred as a matter of law in sustaining the Township's exceptions. Specifically, the Association argues that, even though the terms of the pension benefits were illegal under Act 600 and had never been submitted to collective bargaining, the Township could not unilaterally change the terms of the pre-existing pension benefits. According to the Association, the Township was required to submit any changes in the pension plan to collective bargaining because pension benefits are a mandatory subject of collective bargaining. *fn6 We disagree.

The only issue before us is whether the change in the police pension ordinance, necessitated by the need to comply with Act 600, constituted a unilateral change in the collective bargaining agreement in violation of the PLRA. *fn7 We hold that it did not.

Initially, we point out that we are unpersuaded by the Association's assertion that the amendment to the pension ordinance was a "unilateral change." Because the term "unilateral change" is a controlling term of art in labor law specifically referring to changes to collective bargaining agreements, it is irrelevant for determining the propriety of a legislative enactment such as the ordinance in question. In fact, enactment of an ordinance, by its very nature, is a unilateral action taken by a legislative body; thus, amendment of an ordinance is not equivalent to a unilateral change in a collectively bargained agreement.

In arguing that the Township's amendment of the legitimately-enacted ordinance was, in fact, a "unilateral change" to the collective bargaining agreements between the parties, the Association seeks to retroactively incorporate the pre-existing ordinance into the negotiated collectively bargained agreements. *fn8 This it cannot do. Although the Association had both the right and the opportunity under section 1 of Act 111 to bargain collectively with the Township in negotiating pension benefits in its collective bargaining agreements, and, therefore, could have incorporated the ordinance's provisions into the collective bargaining agreements, the Association did not do so. Having failed to do so, the Association cannot complain, but must suffer the consequences of its failure to exercise its right to bargain pension terms for its members. *fn9

Accordingly, we affirm.

ROCHELLE S. FRIEDMAN, JUDGE

ORDER

AND NOW, this 20th day of June, 1997, the final order of the Pennsylvania Labor Relations Board, dated June 11, 1996, at case no. PF-C-95-114-E, is affirmed.

ROCHELLE S. FRIEDMAN, JUDGE


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