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10/03/97 PHILADELPHIA FRATERNAL ORDER CORRECTIONAL

COMMONWEALTH COURT OF PENNSYLVANIA


October 3, 1997

PHILADELPHIA FRATERNAL ORDER OF CORRECTIONAL OFFICERS, LORENZO NORTH, BARBARA STURGIS, PRESTON CORLEY, MELVIN CARR, CHERYL GLENN, DOMINIQUE MACKEY, DAVID WEAVER, WILLIAM DOUGHERTY, PETITIONERS
v.
EDWARD G. RENDELL, CITY OF PHILADELPHIA; TOM RIDGE, COMMONWEALTH OF PENNSYLVANIA; L. DENNIS MARTIRE; JOHN MARKLE, JR., AND EDWARD FEEHAN, PLRB, RESPONDENTS

Before: Honorable Joseph T. Doyle, Judge, Honorable Doris A. Smith, Judge, Honorable Rochelle S. Friedman, Judge, Honorable James R. Kelley, Judge, Honorable Jim Flaherty, Judge. Opinion BY Judge Friedman. Dissenting Opinion BY Judge Kelley. Judge Leadbetter did not participate in the decision in this case.

The opinion of the court was delivered by: Friedman

ORIGINAL JURISDICTION

OPINION BY JUDGE FRIEDMAN

FILED: October 3, 1997

This case presents us with a constitutional challenge to the validity of a City of Philadelphia (City) ordinance enacted in 1961 (1961 Ordinance) and of section 2003 of the Public Employe Relations Act (PERA), *fn1 which, by saving the 1961 Ordinance, authorizes the City to recognize the American Federation of State, County and Municipal Employees, District Council 33, A.F.L.-C.I.O. (AFSCME or District Council 33) as the exclusive bargaining representative for City correctional employees for purposes of collective bargaining between those employees and the City.

On December 16, 1996, the Philadelphia Fraternal Order of Correctional Officers (PFOCO) and its members, Lorenzo North, Barbara Sturgis, Preston Corley, Melvin Carr, Cheryl Glenn, Dominique Mackey, David Weaver, and William Dougherty (collectively, Petitioners), *fn2 filed a Verified Amended Complaint and Petition for Review (Complaint/Petition) against Edward G. Rendell, in his official capacity of Mayor of the City, and the City (together, City Defendants), and against Tom Ridge, in his official capacity as Governor of the Commonwealth of Pennsylvania, the Commonwealth, the Pennsylvania Labor Relations Board (PLRB), and L. Dennis Martire, John Markle, Jr. and Edward Feehan, in their official capacities as members of the PLRB (collectively, Commonwealth Defendants). *fn3 In the Complaint/Petition, Petitioners set forth an original action for declaratory, injunctive and compensatory relief, challenging the 1961 Ordinance and section 2003 of PERA on the grounds that they infringe on Petitioners' rights of association and deprive Petitioners of equal protection under the law. Additionally, Petitioners invoke this court's appellate jurisdiction, seeking to have this court set aside a PLRB order dismissing PFOCO's representation petition.

Petitioners claim that, by force of law, the individual Petitioners and other City correctional employees represented by District Council 33 and its affiliate AFSCME Local 159 have been, and continue to be, prohibited from freely choosing the labor organization to act as their collective voice in matters of labor relations with the City. Further, Petitioners allege that, unless the City and Commonwealth Defendants are prevented from enforcing the provisions of the 1961 Ordinance and section 2003 of PERA, City correctional employees will continue to be deprived of their right to freely elect the employee organization of their choice, and PFOCO will continue to be deprived of its right to be fairly elected as the exclusive bargaining agent of the City correctional officers. (Complaint/Petition, paras. 45-46.) To this end, the Complaint/Petition challenges the constitutionality of the 1961 Ordinance and section 2003 of PERA, setting forth three counts for relief.

In Count One, raised against both the City Defendants and the Commonwealth Defendants, Petitioners assert that the 1961 Ordinance, section 2003 of PERA and the final order of the PLRB violate Petitioners' fundamental right of association without compelling justification, in contravention of Article I, section 7 of the Constitution of the Commonwealth of Pennsylvania. (Complaint/Petition, para. 48.) In Count Two, raised against the Commonwealth Defendants, Petitioners assert that the 1961 Ordinance, section 2003 of PERA and the final order of the PLRB deny Petitioners the right to freely choose their employee organization, in violation of PERA, and violate Petitioners' rights to equal protection under the law without compelling justification, in contravention of Article I, sections 1 and 26 of the Constitution of the Commonwealth of Pennsylvania. (Complaint/Petition, para. 50.) In Count Three, raised against the PLRB and individual Defendants Martire, Markle and Feehan, Petitioners allege that the final order of the PLRB is erroneous, contrary to law, in violation of the Pennsylvania Constitution and against the clear and substantial weight of the evidence. (Complaint/Petition, para. 52.)

Based on these allegations, Petitioners request that this court: (A) enter an order declaring the 1961 Ordinance and section 2003 of PERA to be in violation of the Constitution of the Commonwealth of Pennsylvania; (B) enter an order restraining Defendants from enforcing, complying with or applying the 1961 ordinance and section 2003 of PERA as a bar to any other employee organization becoming the exclusive bargaining agent for City employees, in accordance with the relevant provisions of PERA governing representation petitions and elections; (C) enter an order setting aside the final order of the PLRB and directing the PLRB to conduct an election among the members of the bargaining unit as defined in the Petition for Representation Election; (D) award Petitioners any money damages that they have incurred as a result of the Defendants' unlawful policies; (E) award Petitioners their costs and disbursement in this action, including reasonable attorney's fees; and (F) grant such other relief as is appropriate and equitable.

The City Defendants filed preliminary objections to Count One of the Complaint/Petition, and the Commonwealth Defendants filed preliminary objections to Counts One and Two of the Complaint/Petition. In addition, AFSCME, which was granted intervenor status, filed a motion for summary relief, seeking dismissal of the entire action. Petitioners filed a consolidated response to the City Defendant's preliminary objections and to AFSCME's motion for summary relief and also filed a cross-motion for summary relief. Both sets of preliminary objections and the cross-motions for summary relief were consolidated for argument before this court and are now before us for Disposition.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioners have sought previously to have the 1961 Ordinance, as saved by section 2003 of PERA, declared unconstitutional. See Philadelphia Fraternal Order of Correctional Officers v. Rendell, No. 96-1834, 1996 U.S. Dist. LEXIS 7621, (E.D. Pa. May 31, 1996, as amended, August 14, 1996), ("the federal action"). In March 1996, Petitioners filed the federal action in the United States District Court for the Eastern District of Pennsylvania, naming as defendants the identical parties named as Defendants in the present case, and alleged that the courts' construction of the 1961 Ordinance and section 2003 of PERA violated Petitioners' right of association under the First Amendment to the United States Constitution (Count I), their right to equal protection under the Fourteenth Amendment to the United States Constitution (Count II), and their right to equal protection under Article I, sections 1 and 26 of the Pennsylvania Constitution (Count III). As in the present case, Petitioners sought declaratory, injunctive and compensatory relief based on these allegations. However, by order dated May 31, 1996, the district court granted the City Defendants' and Commonwealth Defendants' motions for summary judgment on each count of Petitioners' complaint. First, the district court rejected Petitioners' First Amendment claim, holding that there is no constitutionally protected right to choose a collective bargaining agent. (LEXIS 7621 at 25.) The court then rejected Petitioners' federal equal protection claim; determining that Petitioners' complaint involved neither a suspect class nor any fundamental rights, the court evaluated Petitioners' claim under the "rational relationship" test and concluded that the purposes set forth in the preamble to the 1961 Ordinance constituted legitimate government interests sufficient to meet that standard. (LEXIS 7621 at 34, 40.) Applying the same analysis to Petitioners' state equal protection claim, the district court also found no violation of the Pennsylvania Constitution.

Following the issuance of this decision, Petitioners filed a motion to alter and amend judgment. Petitioners contended that, by virtue of the Eleventh Amendment, the district court lacked subject matter jurisdiction to consider Petitioners' state constitutional claims against the Commonwealth Defendants once it had dismissed the federal constitutional claims; Petitioners also urged the district court to exercise its discretion to dismiss the state law claims against the City Defendants. The district court agreed in part and, in an amended decision, dismissed the state law claims against the Commonwealth Defendants without prejudice. However, the district court denied Petitioners' motion with respect to the City Defendants, rendering that judgment final. An appeal of the district court's decision is now pending before the United States Court of Appeals for the Third Circuit.

In the previous federal action, the parties submitted a Stipulation of Undisputed Facts, a copy of which has also been provided as part of the record to this court. Our recitation of facts is drawn from that stipulation together with relevant allegations from Petitioners' Complaint/Petition.

On April 4, 1961, Richardson Dilworth, then-Mayor of the City, signed into law the 1961 Ordinance entitled: "To authorize the Mayor to enter into an Agreement with District Council 33, American Federation of State, County, and Municipal Employees, A.F.L.-C.I.O., Philadelphia and Vicinity, regarding its representation of certain City employees." (Complaint/Petition, para. 15; Stipulation of Facts, No. 9.) The effect of the 1961 Ordinance, which still remains in effect as amended, was to codify under color of law the status of District Council 33 as the exclusive bargaining agent for the City's Civil Service employees. *fn4 Pursuant to the recognition conferred on District Council 33 by the 1961 Ordinance, the City and District Council 33 have entered a continuous series of written contracts, the most recent of which has been in force since July 1, 1996 and is due to expire on June 30, 2000. (Complaint/Petition, paras. 16-17.)

On July 23, 1970, the Governor of Pennsylvania signed PERA into law. Under section 603 of PERA, 43 P.S. § 1101.603, a group of public employees who wish to remove an employee organization as their exclusive bargaining representative may file a rival representation petition with the PLRB. If the election conducted pursuant to this representation petition results in the rival organization's selection as representative, the new organization replaces the former organization as the employees' bargaining representative. (Complaint/Petition, para. 22.) However, section 2003 of PERA saved the 1961 Ordinance insofar as it is inconsistent with PERA provisions that otherwise would give the PLRB jurisdiction to entertain a representation petition and conduct a representation election among employees covered by the 1961 Ordinance. Section 2003 of PERA provides:

Present provisions of an ordinance of the City of Philadelphia approved April 4, 1961, entitled 'An Ordinance to authorize the Mayor to enter into an agreement with District Council 33, American Federation of State, County and Municipal Employes, A.F.L.-C.I.O., Philadelphia and vicinity regarding its representation of certain City Employes,' which are inconsistent with the provisions of this act shall remain in full force and effect so long as the present provisions of that ordinance are valid and operative.

43 P.S. § 1101.2003.

This court interpreted this statutory savings provision in Employees of the City of Philadelphia v. Pennsylvania Labor Relations Board, 23 Pa. Commw. 233, 350 A.2d 923 (Pa. Commw. 1976), petition for allowance of appeal denied, No. 2390 Allocatur Dkt. 1976 (Pa., filed May 25, 1976) (Deputy Sheriff's Case), holding that the PLRB lacked jurisdiction to consider a representation petition filed under PERA by a rival union seeking to represent City Deputy Sheriffs covered by the 1961 Ordinance. We determined that such employees could not change their exclusive bargaining representative by filing a petition for representation, as expressly provided for by PERA, because the 1961 Ordinance, as saved by section 2003 of PERA, acts as an absolute bar on those City employees' rights to select the labor organization of their choice for collective bargaining purposes. (Complaint/Petition, paras. 19-21.) Based on the Deputy Sheriff's Case, the PLRB consistently has refused to entertain representation petitions filed with respect to employees who fall within the scope of the 1961 Ordinance. *fn5 (Complaint/Petition, para. 23; Stipulation of Fact, No. 11.)

Mounting dissatisfaction with the level of representation by District Council 33 and its affiliate Local 159 led, in 1995, to the creation of PFOCO, and within only a few months, PFOCO had secured the support of a majority of the rank and file members of the bargaining unit. *fn6 (Complaint/Petition, paras. 31-33; Stipulation of Facts, No. 14.) On April 29, 1996, *fn7 PFOCO filed a petition for a representation election with the PLRB *fn8 and submitted authorization cards signed by well over a majority of the members of the bargaining unit currently represented by AFSCME Local 159. (Complaint/Petition, para. 39.)

On May 3, 1996, the Secretary of the PLRB issued a decision declining to direct a hearing on PFOCO's representation petition on the grounds that the PLRB lacked jurisdiction over the petition by virtue of the 1961 Ordinance referred to in section 2003 of PERA. PFOCO filed exceptions to the Secretary's determination, contending that the PLRB's and the courts' construction of the 1961 Ordinance and section 2003 of PERA violates the subject employees' right of association and equal protection under both the United States and Pennsylvania Constitutions. On October 8, 1996, the PLRB issued an order dismissing PFOCO's exceptions and rendering the decision of the Secretary absolute and final. (Complaint/Petition, paras. 40-41, Exhibits E and F.) In doing so, the PLRB relied upon the decision rendered in Petitioners' prior federal action, in which the district court rejected Petitioners' claim that the 1961 Ordinance and section 2003 of PERA violated its members' right of association under the First Amendment to the United States Constitution and their right to equal protection under both the Fourteenth Amendment of the United States Constitution and the equal protection provisions of Article I, sections 1 and 26 of the Pennsylvania Constitution.

Having provided the necessary background, we now address the matters before us.

PRELIMINARY OBJECTIONS - CITY DEFENDANTS

In their preliminary objections, the City Defendants assert that the doctrine of res judicata bars Petitioners' freedom of association claim set forth in Count One of the Complaint/Petition, the only count brought against the City Defendants.

Before we determine whether res judicata applies here, however, we will consider Petitioners' contention that City Defendants' res judicata challenge must be stricken because it was improperly raised in the form of a preliminary objection rather than pleaded in a responsive pleading as "New Matter." Pa. R.C.P. No. 1030(a). As a general rule, res judicata is an affirmative defense and should be pleaded as new matter; however, the proper method for challenging the procedural propriety of another party's preliminary objections raising res judicata is by filing preliminary objections to the challenged preliminary objections. Because Petitioners here did not file preliminary objections challenging the method the City Defendants used to assert res judicata, the challenge to that defect is deemed waived. See Pa. R.C.P. No. 1032(a); Corbett v. Desiderio, 698 A.2d 134 (1997); Bradford County Citizens in Action v. Board of Commissioners of Bradford County, 64 Pa. Commw. 349, 439 A.2d 1346 (Pa. Commw. 1982); Swartz v. Masloff, 62 Pa. Commw. 522, 437 A.2d 472 (Pa. Commw. 1981).

Having determined that we can consider the City Defendants' preliminary objections, we next decide whether the doctrine of res judicata is applicable here. Under Pennsylvania law, the doctrine of res judicata provides that a final valid judgment on the merits by a court of competent jurisdiction precludes any future action between the parties and their privies on the same cause of action. Dempsey v. Cessna Aircraft Co., 439 Pa. Super. 172, 653 A.2d 679 (1995), appeal denied, 541 Pa. 631, 663 A.2d 684 (1995); Malone v. West Marlborough Township Board of Supervisors, 145 Pa. Commw. 466, 603 A.2d 708 (Pa. Commw. 1992). A judgment is deemed final for purposes of res judicata or collateral estoppel unless or until it is reversed on appeal. Shaffer v. Smith, 543 Pa. 526, 673 A.2d 872 (1996); Philadelphia Electric Co. v. Pennsylvania Public Utility Commission, 61 Pa. Commw. 325, 433 A.2d 620 (Pa. Commw. 1981). For res judicata to apply, the prior and present cases must share four "identities": (1) identity of the thing sued upon or for; (2) identity of the cause of action; (3) identity of the parties; and (4) identity of the capacity of the parties to sue or be sued. Dempsey ; Mason v. Workmen's Compensation Appeal Board (Hilti Fastening Systems Corp.), 657 A.2d 1020 (Pa. Commw. 1995), appeal denied, 542 Pa. 679, 668 A.2d 1140 (1995); Miller v. Commonwealth, 111 Pa. Commw. 240, 533 A.2d 819 (Pa. Commw. 1987). Further, res judicata bars subsequent litigation not only of issues litigated in the first proceeding but also issues which should have been previously litigated, if they were part of the same cause of action. Commonwealth ex rel. Bloomsburg State College v. Porter, 148 Pa. Commw. 188, 610 A.2d 516, 520 (Pa. Commw. 1992), appeal denied, 534 Pa. 650, 627 A.2d 181 (1992). Causes of action may be considered identical when, in both the current and prior proceedings, the subject matter and the ultimate issues are the same. Miller.

In the federal action, the district court rejected Petitioners' First Amendment claim and held that there is no constitutionally protected right to choose a collective bargaining agent. The City Defendants assert that Petitioners' freedom of association claim set forth in Count One of the Complaint/Petition involves the identical parties, is based on identical factual averments, and raises the same basic legal issue as the allegation made by Petitioners in Count I of the federal action. The only difference between the two actions is that, in the present action, Petitioners have asserted a violation of associational rights as protected by the state, rather than the federal, constitution. Thus, because the claim against the City set forth in Count One of the Complaint/Petition could have, and should have, been brought in the federal action, that count should be dismissed. We agree.

Count Two of the Complaint/Petition asserts the same equal protection claim under the Pennsylvania Constitution that Petitioners raised previously in Count III of the complaint in the prior federal action. Moreover, that state equal protection claim is necessarily premised, at least in part, upon Petitioners' claim that the 1961 Ordinance, as saved by section 2003 of PERA, deprives them of their constitutional rights to freedom of association. Thus, it is clear that Petitioners' cause of action in the prior federal litigation encompassed alleged deprivations of their rights under both the federal and state constitutions. Because, in the federal action, Petitioners chose to assert a violation of both state and federal equal protection rights, and in view of the fact that they asserted a violation of associational rights under the First Amendment, Petitioners clearly could, and should, have raised their freedom of association claim under the Pennsylvania Constitution in the federal action as well.

Petitioners concede that three of the four identities required for res judicata are present here, but contend that, because the identity of cause of action is missing, res judicata cannot be applied. Petitioners maintain that their suit in federal court, in which they sought to vindicate their rights under the federal constitution pursuant to section 1983 of the Civil Rights Act, 42 U.S.C. § 1983 (1988), is a cause of action which has been recognized as separate and distinct from any state law causes of action that may arise from the same set of facts. Petitioners then go on to cite numerous cases standing for the proposition that federal and state constitutional claims may be deemed separate causes of action and, thus, may be brought in separate actions in federal and state courts. However, we are not swayed by Petitioners' argument. Even if state and federal causes of action may, or possibly should, be brought as separate actions, the fact remains that Petitioners chose to litigate both state and federal claims in the federal action. They cannot now avoid the consequences of that decision. Accordingly, we grant the City Defendants' preliminary objections to Count One of the Complaint/Petition. *fn9

PRELIMINARY OBJECTIONS - COMMONWEALTH DEFENDANTS

The Commonwealth Defendants have filed preliminary objections in the nature of a demurrer to Counts One and Two of the Complaint/Petition, seeking dismissal of those counts as failing to state a cause of action upon which relief can be granted. *fn10 The Commonwealth Defendants contend that the 1961 ordinance and section 2003 of PERA, which together preserve the exclusive bargaining representative status of AFSCME for certain City employees, including the correctional officers here, and precludes the PLRB from conducting a representation election among those employees, does not violate the Pennsylvania Constitution's provisions relating to free speech, free association and equal protection. The Commonwealth Defendants believe that this contention is evidenced by the fact that identical claims have been advanced and rejected under the First and Fourteenth Amendments to the United States Constitution and the equal protection provisions of the Pennsylvania Constitution, and nothing suggests that the Pennsylvania Constitution offers broader rights than those afforded by the United States Constitution.

DEMURRER TO COUNT ONE

In Count One of the Complaint/Petition, Petitioners allege that the 1961 Ordinance and section 2003 of PERA violate Article I, section 7 of the Pennsylvania Constitution by depriving Petitioners of their fundamental right of association without compelling justification. The Commonwealth Defendants, however, assert that there is no constitutionally protected right to collectively bargain; to the contrary, any rights that an employee may have to bargain collectively with an employer are based purely upon a statutory grant of such rights. Thus, the Commonwealth Defendants maintain that Count One of the Complaint/Petition fails to state a claim upon which relief can be granted.

The Commonwealth Defendants note the obvious similarity between Petitioners' current contention and the claim they made under the First Amendment in the federal action, in which the district court, recognizing that there is no First Amendment right to collectively bargain, Babbitt, et al. v. United Farm Workers National Union et al., 442 U.S. 289, 60 L. Ed. 2d 895, 99 S. Ct. 2301 (1979); Smith v. Arkansas State Highway Employees, Local 1315, 441 U.S. 463, 60 L. Ed. 2d 360, 99 S. Ct. 1826 (1979), *fn11 held that the right to choose a collective bargaining agent is not protected by the First Amendment.

Although recognizing that state constitutional provisions may provide broader free speech and assembly rights than the United States Constitution, the Commonwealth Defendants assert that Article I, section 7 of the Pennsylvania Constitution *fn12 does not provide any greater rights with respect to collective bargaining than those provided by the First Amendment of the United States Constitution. Indeed, the Commonwealth Defendants maintain that this Conclusion is inherent in the district court's rejection of Petitioners' state equal protection claim in the federal action. The Commonwealth Defendants point out that the district court, in its analysis of Petitioners' state equal protection claim, examined the disparate treatment of employees covered by the 1961 Ordinance under the rational relationship test rather than the strict scrutiny test urged by Petitioners and, thus, implicitly rejected Petitioners' assertion that the courts' construction of section 2003 of PERA and the 1961 Ordinance impact a fundamental right under the free speech and association provision of the Pennsylvania Constitution.

We agree that, just as there is no fundamental right to engage in collective bargaining under the United States Constitution, the Petitioners have no constitutionally protected right to collectively bargain under the provisions of the Pennsylvania Constitution. See Wilkinsburg Police Officers v. Commonwealth, 129 Pa. Commw. 47, 564 A.2d 1015 (Pa. Commw. 1989), aff'd, 535 Pa. 425, 636 A.2d 134 (1993). In fact, however, Petitioners recognize that they have no federal or state constitutional right to compel the government to listen to, respond to, recognize or bargain with a labor union, and that the correctional officers' right to engage in collective bargaining has a purely statutory basis. Indeed, Petitioners claim that, contrary to the understanding of the Commonwealth Defendants, Petitioners do not premise their argument on the existence of a constitutional right to collectively bargain; rather, they challenge the violation of their rights to association resulting from the application and enforcement of the legislatively created collective bargaining process. While conceding that a state may refuse to grant its employees a statutory right to bargain collectively, Petitioners assert that, once a state enacts a system of collective bargaining, it may not prohibit its employees from freely choosing their own collective bargaining representative. Thus, Petitioners urge an approach to constitutional analysis similar to that used in Packel v. Pennsylvania Interscholastic Athletic Association, 18 Pa. Commw. 45, 334 A.2d 839 (Pa. Commw. 1975).

In Packel, the Pennsylvania Attorney General sought to invalidate a bylaw of the Pennsylvania Interscholastic Athletic Association (PIAA) which precluded girls from competing or practicing against boys in any athletic contest on grounds that it violated the equal protection clause of the Fourteenth Amendment of the United States Constitution and the Pennsylvania Equal Rights Amendment, Article I, section 28 of the Pennsylvania Constitution. To escape constitutional scrutiny, the PIAA argued that, because there was no legally cognizable right to participate in interscholastic sports, the PIAA fell outside the purview of the Equal Rights Amendment. However, this court stated:

There is no fundamental right to engage in interscholastic sports, but once the state decides to permit such participation, it must do so on a basis which does not discriminate in violation of the constitution.

Packel, 334 A.2d at 842.

Based on Packel, Petitioners agree that the lack of a fundamental right to collectively bargain means that they could not compel the City or Commonwealth to grant them collective bargaining rights if none existed ; however, because the 1961 Ordinance provides a legislatively created right of the City's workers to engage in collective bargaining, and because PERA grants all public employees such a legislatively created right, Petitioners maintain that the Pennsylvania Constitution imposes limitations on the existing system of collective bargaining. Through this suit, Petitioners seek to define those limitations. Thus, Petitioners argue that the issue in Count One is not whether a public employer can be compelled to listen to a rival union, but whether a public employer can compel its employees to speak only through the union selected by the government, prohibiting those employees from speaking through any other labor organization. Petitioners note that this is the first opportunity for this court to define the scope of a public employee's rights to association under the Pennsylvania Constitution, *fn13 and, in this regard, they argue that Pennsylvania's constitutional provisions guaranteeing free speech and associational rights can, and should, be held to provide more expansive individual rights than does its offspring, the First Amendment to the United States Constitution. *fn14

Despite Petitioners' attempt to recast the issue by distinguishing the right to choose an exclusive bargaining representative from the right to engage in collective bargaining, we must conclude that, under the facts here, the distinction is purely semantic. Indeed, the undisputed facts clearly indicate that Petitioners have freely exercised their constitutional rights of association in that disgruntled City correctional employees, dissatisfied with AFSCME's representation, have formed a rival organization, PFOCO, without suffering any governmental interference with their organizational efforts or retaliation for their expressed dissatisfaction. What Petitioners have been unable, but now seek, to do is compel the City, through the PLRB certification process, to recognize and bargain with this rival union.

To accomplish this, Petitioners first acknowledge that the right to associate with labor organizations, which is protected by the First Amendment, is independent of the alleged right to compel a state to sit down at the bargaining table and negotiate. Petitioners, however, maintain that a bar on state-mandated compulsory union affiliation flows from the employee's fundamental constitutional right to associate with the bargaining representative of his or her choice. *fn15 Petitioners then cite numerous cases purporting to establish that, once a mechanism for collective bargaining has been statutorily granted, public employees have a constitutionally protected right to choose their exclusive bargaining representative free from government coercion. Specifically, Petitioners rely upon Brown v. Alexander, 718 F.2d 1417 (6th Cir. 1983), Atkins v. Charlotte, 296 F. Supp. 1068 (W.D.N.C. 1969), City and Borough of Sitka v. International Brotherhood of Electrical Workers, 653 P.2d 332 (Alaska 1982), Kenai Peninsula Borough School District, etc., 590 P.2d 437 (Alaska 1979), and Civil Service Personnel Association, Inc. v. City of Akron, 48 Ohio St. 2d 25, 356 N.E.2d 300 (Ohio 1976). We do not believe that these cases support a constitutional basis for the coupling of the associational right to join a union with the obligation of the public employer to bargain with the union selected by a majority of public employees in the present situation. *fn16

Moreover, to the extent that these cases do support Petitioners' position, *fn17 their precedential effect has since been brought into question. Indeed, several of the cases Petitioners rely upon have recently been considered in Indiana State Teachers Association v. Board of School Commissioners of the City of Indianapolis, 918 F. Supp. 266 (S.D.Ind. 1996), aff'd, 101 F.3d 1179 (7th Cir. 1996), (ISTA). In that case, the employer, like the City here, had long recognized and negotiated with a local affiliate of AFSCME as the bargaining representative of its nonprofessional employees and rejected a request by a rival organization for an election among those employees between it and the AFSCME local. The court, rejecting the application of City of Akron, Kenai and City and Borough of Sitka, stated:

[Those cases] fly in the face of binding Seventh Circuit and Supreme Court precedent which clearly establishes ... that the First Amendment goes no further than to establish the right to organize and speak without retaliation.

....

Without a constitutional right to collectively bargain, there can be no corresponding constitutional right to select a bargaining representative.

ISTA, 918 F. Supp. at 269, 270.

Petitioners contend that ISTA actually supports their position because ISTA recognizes that if there is no statutory basis for asserting and enforcing employee collective bargaining rights, then employees have no constitutional right to select their own bargaining representative. Petitioners note that the school board in ISTA voluntarily recognized the union as its non-certified employees' exclusive bargaining agent, without establishing any statutory right of those employees to compel the school board to engage in collective bargaining. Thus, according to Petitioners, the court relied on the absence of any statutorily created right to collectively bargain to reject the non-certified employees' constitutional challenge. Petitioners reason that, whereas the employees in ISTA lacked any statutory right to compel a public employer to recognize and collectively bargain with the union chosen by the employees, Petitioners here already enjoy these established statutory rights under the 1961 Ordinance and PERA. Petitioners are incorrect in this assertion.

Petitioners maintain that they have undisputed statutory rights to collective bargaining in that, since 1961, the City has recognized the statutory right of its employees to speak through an exclusive bargaining representative, to compel the City to engage in collective bargaining and to enter into written agreements. Although this is undoubtedly true, we point out that those statutorily granted rights are not, and never were, unlimited. The 1961 Ordinance, while providing for collective bargaining for the City's civil service employees, only authorized the Mayor to enter into collective bargaining agreements with AFSCME District Council 33 regarding its representation of certain City employees. The enactment of PERA in 1970 did nothing to expand those rights. Section 2003 of PERA, by saving the 1961 Ordinance under which AFSCME acquired the exclusive right to represent the City's correctional officers, preserved the preexisting bargaining relationship between District Council 33 and the City and insulated City correctional officers from the election mechanism provided by PERA to other public employee groups covered by that act. Because the government had no constitutional obligation to provide any collective bargaining rights at all, it does not violate the constitution by offering them in this limited fashion. See Babbitt.

Petitioners remain free to associate with whomever they choose; the fact that the City did not authorize collective bargaining with the labor organization with which Petitioners have chosen to associate themselves raises no constitutional claim. As the Court in Smith stated:

The public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so. But the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.

....

Far from taking steps to prohibit or discourage union membership or association, all that the Commission has done in its challenged conduct is simply to ignore the union. That it is free to do.

Id. at 465, 466 (citations omitted).

Because we can discern no basis for a different interpretation under the Pennsylvania Constitution, we believe that the reasoning of these First Amendment cases applies with equal force here.

However, Petitioners assert that two overriding policy considerations, majority rule and viewpoint discrimination, favor this court's extension of the fundamental right of public employees to affiliate with the union of their choice into the area of choice of exclusive bargaining representative under the Pennsylvania Constitution. With respect to the first of these considerations, Petitioners argue that the limitations and interferences on free speech rights inherent in the establishment of an exclusive bargaining agent can only be countenanced when employers recognize the exclusive bargaining representative chosen by the employees themselves. In that case, the infringement of free speech is justified by the cardinal collective bargaining principle of majority rule and the state's legitimate interest in ensuring that its public employers hear only one voice presenting the majority view of its employees. Based on this reasoning, Petitioners assert that there is simply no precedent or justification for imposing a bargaining representative for an extended period on an unwilling

majority of workers. We believe that Petitioners' reasoning is flawed.

Initially, we note our agreement with the district court in the federal action that the cases relied on by Petitioners do not support Petitioners' contention that constitutionally guaranteed free speech rights necessitate a majority rule requirement in the context of labor relations; rather, these cases merely comment on the majority rule provisions of certain labor statutes. *fn18 (See LEXIS 7621 at 23 n.8.) Moreover, contrary to Petitioners' claims, we conclude that the statutory scheme set forth in the 1961 Ordinance, as saved by section 2003 of PERA, respects the principle of majority rule.

As justification for the Mayor's authorization to enter a collective bargaining agreement with District Council 33, the 1961 Ordinance provides in relevant part:

Whereas, District Council 33 ... is the exclusive bargaining agent for certain Civil Service employees in the City; and

Whereas, District Council 33 has enrolled as Union members the majority of permanent, full-time employees of the City....

(City Defendants' preliminary objections, Exhibit A at 259-60.) *fn19

City correctional employees, represented by Local 159 of District Council 33, constitute only a portion of the City's civil service employees covered by the 1961 Ordinance. Recognizing that a majority of all of the City's permanent, full-time employees were District Council 33 members, the City properly placed those employees within the ambit of the 1961 Ordinance and designated District Council 33 as their exclusive bargaining agent; in taking this action, the City safeguarded its legitimate interest in ensuring that it would hear only one voice representing the majority view of its employees so that the City would not be overburdened by having to deal with labor-related matters in a piecemeal fashion.

However, even accepting the constitutional propriety of state-imposed union affiliation in the abstract, Petitioners maintain that, where that union deprives its members of freedom of expression and penalizes them for expressing "hostile" views, the legislative scheme recognizing the union's exclusive status must be rejected as unconstitutional viewpoint discrimination. Petitioners admit that neither the City Defendants nor the Commonwealth Defendants have retaliated against them for their advocacy of a union other than AFSCME. Nevertheless, Petitioners assert that the actions of AFSCME, certainly indicate viewpoint-based discrimination where PFOCO members have been penalized and subject to discipline when their views differed from those of the government-sponsored union. *fn20 Thus, Petitioners reason that application of the 1961 Ordinance results in a chilling of the correctional officers' freedom to express political views in violation of the public policy of this Commonwealth. *fn21 To this assertion, we can only repeat our prior statement acknowledging that neither the City Defendants nor the Commonwealth Defendants have restricted City correctional officers from voicing their opinions on any labor relations matters or from aligning themselves, or refusing to align themselves, with the views of any labor organization.

Our supreme court has held that an act of the General Assembly will not be held unconstitutional unless it "clearly, palpably and plainly violates the constitution." Daly v. Hemphill, 411 Pa. 263, 271, 191 A.2d 835, 840 (1963). Because the allegations in the Complaint/Petition do not set forth such a violation of Petitioners' rights of association under Article I, section 7 of the Pennsylvania Constitution, we grant the Commonwealth Defendants' preliminary objection to Count One of the Complaint/Petition.

DEMURRER TO COUNT TWO

In Count Two of the Complaint/Petition, Petitioners allege that section 2003 of PERA and the 1961 Ordinance, as interpreted by this court, violate the equal protection provisions of Article I, sections 1 and 26 of the Pennsylvania Constitution. *fn22 The Commonwealth Defendants assert that this count also fails to support a cause of action upon which this court may grant relief. Based on our previous Discussion, in which we concluded that section 2003 of PERA and the 1961 Ordinance do not infringe on Petitioners' fundamental constitutional right of free speech and association under the Pennsylvania Constitution, we agree with the Commonwealth Defendants that the district court's equal protection analysis is persuasive authority to dismiss Count Two of Petitioners' Complaint/Petition as failing to state a claim upon which relief may be granted.

In the previous federal litigation, the district court rejected Petitioners' equal protection arguments under both the United States Constitution and Pennsylvania Constitution. In so doing, the district court reasoned that, because the challenged statutory scheme did not substantially impact on any fundamental constitutional right of free speech or association, and because there was no claim that the Petitioners belong to a protected class for equal protection analysis, consideration was confined to whether the statutory classification, i.e., City employees covered by the 1961 Ordinance, was rationally related to a legitimate governmental interest, under which standard legislative classifications are presumed to be valid. See Lyng v. International Union, United Automobile Aerospace & Agricultural Implement Workers of America, UAW, 485 U.S. 360, 99 L. Ed. 2d 380, 108 S. Ct. 1184 (1988). The district court went on to conclude that the purposes of the 1961 Ordinance set forth in its preamble -- reduction of administrative costs, stabilization of the employer/employee relationship, uniformity in personnel administration and consistency in the treatment of its employees -- constituted legitimate governmental interests, and that the 1961 Ordinance and section 2003 of PERA had a rational relationship to the achievement of those legitimate governmental interests. Therefore, the district court found no violation of the equal protection clause of the Fourteenth Amendment. Finally, utilizing the same analysis for the state equal protection claim, in accordance with our supreme court's decision in Love v. Borough of Stroudsburg, 528 Pa. 320, 597 A.2d 1137 (1981), *fn23 the district court also dismissed Petitioners' claims that the 1961 Ordinance and section 2003 of PERA violated the equal protection provisions of the Pennsylvania Constitution. Contrary to Petitioners' assertions, we conclude, as did the district court, that by serving the purposes set forth in the preamble to the 1961 Ordinance, the challenged statutory scheme fosters legitimate governmental interests in a manner which is neither arbitrary nor unreasonable.

Accordingly, because section 2003 of PERA and the 1961 Ordinance do not violate the equal protection provisions of the Pennsylvania Constitution, we grant the Commonwealth Defendants' preliminary objection to Count Two of the Complaint/Petition.

MOTION BY INTERVENOR FOR SUMMARY RELIEF

Intervenor AFSCME, District Council 33 requests summary relief in its favor pursuant to Pa. R.A.P. 1532(b). AFSCME maintains that the parties here are identical to the parties in the federal action and, because the constitutional challenges asserted here in both the original and appellate claims are identical to those previously raised and rejected in the federal action, the doctrines of res judicata and collateral estoppel bar Petitioners from relitigating those constitutional claims. Thus, AFSCME asserts, it has a clear right to judgment in its favor and against Petitioners, dismissing the action. *fn24

Having already dismissed Counts One and Two of the Complaint/Petition, we need only consider AFSCME's motion as it relates to the appellate claims made by Petitioners in Count Three. In this regard, AFSCME simply notes that, in its final order, the PLRB found the district court's analysis of the state constitutional claims persuasive and, on that basis, dismissed Petitioners' exceptions regarding those same claims raised before the PLRB. AFSCME then asserts that Petitioners' Count Three of the Complaint/Petition, petitioning for review of the PLRB's final order, should be dismissed under the doctrine of collateral estoppel because the PLRB's resolution of the constitutional claims was correct and in accord with the district court's Disposition resolving those claims against Petitioners in the federal action. Balent v. City of Wilkes-Barre, 542 Pa. 555, 669 A.2d 309 (1995).

Petitioners assert, however, that AFSCME's motion to dismiss the appellate portion of the Complaint/Petition must be rejected because collateral estoppel cannot be invoked to bar litigation of issues which were not actually litigated in the previous action. Collateral estoppel operates as a bar to relitigation of an issue only when: (1) the legal or factual issues are identical; (2) they were actually litigated; (3) they were essential to the judgment; and (4) they were material to the adjudication. PMA Insurance Group v. Workmen's Compensation Appeal Board (Kelley), 665 A.2d 538 (Pa. Commw. 1995), appeal denied, 544 Pa. 618, 674 A.2d 1078 (1996). Petitioners thus claim that the doctrine cannot apply to the PLRB decision where none of the state constitutional issues, as presented there, were considered in that same form in the previous federal action. Petitioners essentially then repeat their prior argument that the current state constitutional claims present different legal issues from the state and federal constitutional claims previously litigated in the federal action. Because we have already concluded that the Pennsylvania Constitution affords no broader interpretation to the asserted claims of Petitioners than does the United States Constitution, we must agree that AFSCME's right to relief is clear, and we grant its motion for summary relief and dismiss the entire action. In doing so, we necessarily deny Petitioners' cross-motion for summary relief.

ROCHELLE S. FRIEDMAN, JUDGE

Judge Leadbetter did not participate in the decision in this case.

ORDER

AND NOW, this 3rd day of October , 1997, upon consideration of the preliminary objections filed by the City Defendants, Edward G. Rendell and the City of Philadelphia, and the Commonwealth Defendants, Tom Ridge, the Commonwealth of Pennsylvania, L. Dennis Martire, John Markle Jr., and Edward Feehan and the Pennsylvania Labor Relations Board (PLRB), and the motion for summary relief filed by Intervenor American Federation of State, County and Municipal Employees, District Council 33, A.F.L.-C.I.O., and the cross-motion for summary relief filed by the Petitioners, Philadelphia Fraternal Order of Correctional Officers and Lorenzo North, Barbara Sturgis, Preston Corley, Melvin Carr, Cheryl Glenn, Dominique Mackey, David Weaver, and William Dougherty, we hereby:

1. sustain the City Defendants' preliminary objections;

2. sustain the Commonwealth Defendants' preliminary objections;

3. grant Intervenors' motion for summary relief, thereby affirming the order of the PLRB, dated October 8, 1996, and dismissing Petitioners' Verified Amended Complaint in its entirety; and

4. deny Petitioners' cross-motion for summary relief.

ROCHELLE S. FRIEDMAN, JUDGE

DISSENTING OPINION

BY JUDGE KELLEY

FILED: October 3, 1997

Because I believe that section 2003 of the PERA *fn1 deprives Petitioners of equal protection of the law as guaranteed by Article 1, Sections 1 *fn2 and 26 *fn3 of the Pennsylvania Constitution, I would deny the Commonwealth Defendants' preliminary objection in the nature of a demurrer to Count Two of the Petitioners' Complaint/Petition, and I would grant the Petitioners' request for summary relief on this basis. Accordingly, I respectfully Dissent.

In outlining the circumstances under which the PERA was enacted by the General Assembly, the Pennsylvania Supreme Court has noted:

Prior to the passage of [the PERA] the prior law prohibited all strikes by public employes and did not require collective bargaining by public employers. The chaotic climate that resulted from this obviously intolerable situation occasioned the creation of a Governor's Commission to Revise the Public Employe Law of Pennsylvania. This commission, which is commonly referred to as the Hickman Commission, issued a report recommending the repeal of the then existing law and the passage of new law which would permit the right of all public employes to bargain collectively. In recommending this change the commission suggested the need for collective bargaining to restore harmony in the public sector and to eliminate the numerous illegal strikes and the widespread labor unrest.

"The 1947 Act does not require public employers to bargain collectively with their employes. This has led to an almost complete breakdown in communication where the public employer has not chosen to recognize the right of its employes to bargain collectively. In our judgment, this inability to bargain collectively has created more ill will and led to more friction and strikes than any other single cause."

The declaration of policy contained in [section 101 of the PERA] clearly establishes that the legislature concurred with the commission's belief that the right to collective bargaining was necessary to promote orderly and constructive relationships between public employers and employees.

In this setting we are forced to conclude that the legislature at the time of the passage of [the PERA] fully recognized that the right of collective bargaining was crucial to any attempt to restore harmony in the public sector. It would be absurd to suggest that the legislature deliberately intended to meet this pressing need by providing an illustory [sic] right of collective bargaining.

Pennsylvania Labor Relations Board v. State College Area School District, 461 Pa. 494, 502-03, 337 A.2d 262, 266 (1975) (footnotes omitted).

As noted by the majority, under section 603 of the PERA, *fn4 a group of public employees who wish to remove an organization as their exclusive bargaining representative may file a rival representation petition with the PLRB. If the rival organization is selected as the representative in the election conducted pursuant to this petition, the rival organization replaces the former organization as the employees' exclusive bargaining representative.

In this case, under the provisions of the 1961 Ordinance which is saved by section 2003, the exclusive bargaining representative of the Petitioners is District Council 33. Although District Council 33 garnered a majority of the votes of Petitioners' bargaining unit in 1961, in 1995 PFOCO received the majority of the votes of the unit due to dissatisfaction with District Council 33's representation. However, as also noted by the majority, the 1961 Ordinance, as saved by section 2003, acts as an absolute bar to Petitioners' right to change their exclusive bargaining representative under Employees of the City of Philadelphia v. Pennsylvania Labor Relations Board, 23 Pa. Commw. 233, 350 A.2d 923 (Pa. Commw. 1976).

Because District Council 33 was elected as the exclusive bargaining representative prior to the adoption of the 1961 Ordinance, the Petitioners are represented by an exclusive bargaining representative for which they never voted. In addition, even though they are dissatisfied with District Council 33's representation, under the 1961 Ordinance and section 2003 they are precluded from removing this representative. Moreover, their inability to remove District Council 33 as their representative will continue until their employer, the City of Philadelphia, amends its 1961 Ordinance. Thus, as long as the City of Philadelphia is satisfied with District Council 33's representation of the Petitioners, District Council 33 will remain as their exclusive bargaining representative.

To summarize, in the instant case we are faced with an anomalous situation in which: the employees are represented by an exclusive bargaining representative for which they have never voted; the employees are precluded from removing this exclusive bargaining representative due to an ordinance enacted by their employer; and the employees' exclusive bargaining representative is beholden to their employer, and not the employees whose interests they purport to represent. Certainly, any collective bargaining rights which are exercised by the employees in such a scheme are entirely illusory, and such a scheme does nothing to further the laudable purposes of the PERA.

In rejecting the Petitioners' claim that this statutory scheme offends their equal protection rights under the Pennsylvania Constitution, the majority adopts the federal district court's Conclusion that the purposes of the 1961 Ordinance set forth in its preamble, i.e., reduction of administrative costs, stabilization of the employer/employee relationship, uniformity in personnel administration and consistency in the treatment of its employees, constitute legitimate governmental interests. Majority Opinion, p. 40. The majority also finds that the 1961 Ordinance and section 2003 of the PERA bear a rational relationship to the achievement of these legitimate interests. Id. Indeed, the majority finds "that by serving the purposes set forth in the preamble to the 1961 Ordinance, the challenged statutory scheme fosters legitimate governmental interests in a manner which is neither arbitrary nor unreasonable." Id., p. 41. I find such a determination to be untenable.

Clearly, requiring employees to be represented by an exclusive bargaining representative which they did not elect and which is beholden to the employer, and precluding the employees from ever removing this representative, in no way advances the stabilization of the employer/employee relationship. Any collective bargaining rights which exist in such a case are clearly illusory, and do not promote any of the purported goals which the PERA was enacted to achieve.

In sum, I am convinced that the provisions of Section 2003, which classifies the Petitioners differently from all other public employees in this Commonwealth and precludes them from exercising the collective bargaining rights which all other public employees enjoy, are eminently arbitrary and unreasonable and deny the Petitioners the equal protection of the law as guaranteed by Article 1, Sections 1 and 26 of the Pennsylvania Constitution. Accordingly, I would deny the Commonwealth Defendants' preliminary objection in the nature of a demurrer to Count Two of the Petitioners' Complaint/Petition, and I would grant the Petitioners' request for summary relief on this basis.

JAMES R. KELLEY, Judge


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