The opinion of the court was delivered by: Judge Smith-ribner
Argued: September 10, 2008
BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.
The Association of Pennsylvania State College and University Faculties, known as "APSCUF" (Union), petitions for review of a Final Order of the Pennsylvania Labor Relations Board (Board) that dismissed exceptions filed by the Union and made absolute and final the decision of the Board Secretary not to issue a complaint on a charge of unfair labor practices against the Pennsylvania State System of Higher Education (PASSHE). The Secretary determined that the matter was moot because the parties had ratified a successor collective bargaining agreement. The question presented here is whether the Board erred as a matter of law or acted arbitrarily or capriciously in determining that the unfair labor practice charge should be dismissed as moot on the basis that the issues raised were neither of great public importance nor capable of repetition but likely to evade review.
The Union and PASSHE were negotiating an agreement to succeed the one set to expire on June 30, 2007. On June 25, 2007, the Union filed an unfair practice charge with the Board alleging in part that PASSHE was violating Section 1201(a)(1) and (5) of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §1101.1201(a)(1) and (5), by threatening employees with loss of already-earned pay and benefits should they strike.*fn1 The specification of charges first alleged that PASSHE published internet notices and mailed a letter on June 22, 2007 to bargaining unit members stating that PASSHE would terminate health care and other benefits to employees with summer school assignments if they went out on strike. Under the existing agreement, employee benefits received during the summer were earned by working the regular nine-month academic year, and employees with no summer school assignments automatically received benefits during the summer. PASSHE confirmed that it would continue benefits for those not working. See Specification of Charges, Ex. A; Reproduced Record (R.R.) 3a.
The specification of charges asserted second that PASSHE informed employees that anyone failing to report for a summer class after June 30, 2007 would be considered to be on strike, and their classes would be canceled and their pay and benefits stopped. The Union alleged that PASSHE unilaterally changed terms and conditions of employment by abrogating sick leave and other provisions of the collective bargaining agreement. Third, it asserted that PASSHE informed employees that any failure to report for a summer class after June 30, 2007 would result in a forfeiture of pay for the entire summer course, including for classes already taught, which allegedly unilaterally changed the terms and conditions of employment by abrogating their right to be paid for work performed and violated Section 1006 of the PERA, 43 P.S. §1101.1006. The Union sought a restraining order against PASSHE pursuant to Section 1401 of the PERA, 43 P.S. §1101.1401.
On July 2, 2007, the Union and PASSHE reached tentative agreement, subject to ratification. On August 23, 2007, the Union requested the Board to issue a complaint and repeated this request on October 26, 2007. On November 2, 2007, the Board Secretary issued an interim order dismissing the unfair labor practice charge as moot since the parties had ratified a new agreement. The Union filed exceptions requesting that the Board decide the case under recognized exceptions to the mootness doctrine, i.e., the matter was of great public importance and the issues were capable of repetition but likely to evade review. The Board dismissed the Union's exceptions on December 18, 2007.
The Board stated that the Secretary dismissed the charges relating to Section 1201(a)(1) and (5) of the PERA as moot, citing Temple Ass'n of University Professionals, Local 4531 v. Temple University, 25 PPER (LRP) ¶25121 (Final Order, 1994), and AFSCME District Council 33 v. City of Philadelphia, 36 PPER (LRP) 95 (Proposed Decision and Order, 2005), aff'd, 36 PPER (LRP) 158 (Final Order, 2005). The Board noted that issuance of a complaint is not a matter of right but is within its sound discretion, citing Pennsylvania Social Servs. Local 668 v. Pennsylvania Labor Relations Board, 481 Pa. 81, 392 A.2d 256 (1978), and that it will dismiss as moot any charge involving alleged bad-faith bargaining where the parties have reached an agreement but may hear a moot charge if it presents an issue of great public importance that is capable of repetition but likely to evade review. Temple Ass'n of University Professionals.
The Board compared this case to United Transp. Union Local 1594 v. Southeastern Pennsylvania Transportation Authority, 37 PPER (LRP) 119 (Final Order, 2006), where the Board declined to issue a complaint in regard to an unfair labor practice charge after the parties entered into a new agreement and there were no allegations of residual effects of the employer's threats. The Board referred to Medical Rescue Team South Authority v. Ass'n of Professional Emergency Medical Technicians, 30 PPER (LRP) ¶30063 (Final Order, 1999), and it stated that continued litigation over alleged past misconduct that no longer affects the parties was not a matter of great public importance. It declined to speculate as to whether PASSHE will make the same alleged threats to bargaining unit members in the future and thus concluded that the Union failed to demonstrate that the underlying factual situation was one that is capable of repetition but likely to evade review.*fn2
The Union argues that the Board erred as a matter of law in dismissing the unfair labor practice charge as moot because the issues involved are of great public importance and are likely to recur yet evade review. The Union's charge alleged that PASSHE's threats violated Section 1201(a)(1) and (5) of the PERA by interfering with, restraining or coercing employees in the exercise of their rights to organize and to engage in concerted activities under Section 401. In its August 23, 2007 letter to the Board, the Union noted that even if the tentative agreement was ratified the conduct complained of was likely to recur in subsequent negotiations. It asserted that PASSHE's threats were in direct contravention of established legal precedent; therefore, the issues raised should be litigated leading to a cease and desist remedy to prevent future violations.
The Union points out that in a case addressing a nearly identical situation the Supreme Court stated: "Because the teachers have long since returned to the classroom, this appeal is technically moot. Yet, the issue it raises is one of important public interest, capable of repetition, which is apt to elude review. Therefore, we shall entertain the appeal." Jersey Shore Area School District v. Jersey Shore Educ. Ass'n, 519 Pa. 398, 401, 548 A.2d 1202, 1204 (1988) (deciding after an enjoined strike was over the technically moot question of how to reconcile the right of teachers to strike under the PERA with the mandate under Section 1501 of the Public School Code of 1949 (School Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §15-1501, for public schools to provide at least 180 days of instruction).
The Union represents that its agreements with PASSHE always have expired on June 30, which makes a strike likely over the summer if one is to occur. PASSHE's threats go to the heart of the ability of the Union to conduct an effective strike. The vast majority of the Union's members work the regular academic year, for which they receive benefits including medical insurance, dental and eye care and life insurance for the entire year. If any Union members accept summer work they receive extra pay but no extra benefits. Consequently, PASSHE's threats were to take away benefits that summer faculty already had earned solely because of the exercise of the right under Article IV of the PERA to engage in a lawful work stoppage. The Union maintains that this is contrary to the ruling in Bailey v. Ferndale Area School District, 454 A.2d 207 (Pa. Cmwlth. 1982), that withholding accrued benefits from strikers is inherently destructive of employee rights and is an unfair labor practice. PASSHE also ...