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Association of Pennsylvania State College and University Faculties v. Pennsylvania Labor Relations Board

November 17, 2010


Appeal from the Commonwealth Court Order entered on December 16, 2008, at 29 CD 2008, reversing an Order of the Pennsylvania Labor Relations Board at PERA-C-07-276-E 962 A.2d 709 (Pa. Cmwlth. 2008).

The opinion of the court was delivered by: Mr. Chief Justice CASTILLE*fn1


ARGUED: December 2, 2009


The Commonwealth Court's decision below reversed an order by appellant, the Pennsylvania Labor Relations Board (the "Board"), which dismissed a charge of unfair labor practices as moot. We now hold that the Commonwealth Court erred, and reinstate the Board's order.

On June 25, 2007, during negotiations for a successor collective bargaining agreement with the Pennsylvania State System of Higher Education ("PASSHE"), appellee Association of Pennsylvania State College and University Faculties (the "Association") filed a charge of unfair practices against PASSHE with the Board. The Association alleged that PASSHE had violated subsections 1201(a)(1), (3), and (5) of the Public Employe Relations Act ("PERA")*fn2 when it notified employees: 1) that it would terminate health care and other benefits to employees with summer school assignments if they went on strike; 2) that faculty members who failed to report for a summer school class would be "considered to be on strike" and have their classes canceled and pay and benefits stopped; and 3) that faculty members who failed to report for a summer school class would forfeit pay for the entire summer school course, including pay for classes already taught. The Association claimed that under the collective bargaining agreement between the parties, summer benefits are earned by working the nine-month academic year (not by working summer school), and PASSHE's threats unilaterally changed the terms and conditions of employment by abrogating the sick leave and other leave provisions of the collective bargaining agreement, as well as the right to be paid for work performed. The Association sought a restraining order against PASSHE, claiming an unfair practice.

On July 2, 2007, before the Board could respond to the Association's charge, the parties reached tentative agreement on the successor contract they had been negotiating.*fn3

Nonetheless, on August 23, 2007, the Association wrote to the Board and asked that it continue to process the charge against PASSHE because "the employer conduct complained of in the unfair practice charge is likely to recur in subsequent negotiations" and "there will be value to the parties in litigating the issues raised in the charge." On October 26, 2007, the Association again wrote to the Board and requested that it issue a complaint and set a hearing date on the alleged illegal employer conduct, because that conduct "is likely to recur in subsequent negotiations."

On November 2, 2007, the Board informed the Association that no complaint would be issued and that the unfair practice charge would be dismissed. The Board indicated that the Association failed to state a cause of action under Section 1201(a)(3) of PERA, and that its claims under Sections 1201(a)(1) and (5) were moot because the parties had ratified a successor agreement. The Association filed a timely statement of exceptions, specifically complaining about the Board's decision to dismiss the charges under subsections (1) and (5) as moot.

Upon consideration of the Association's exceptions, the Board issued its final order on December 18, 2007. The Board adverted to prior decisions where it had dismissed unfair practices charges as moot, where the parties had resolved the issues forming the basis for the charge through bargaining and a subsequent contract. Final Order dated December 18, 2007, at 2 (citing AFSCME Dist. Council 33 v. City of Philadelphia, 36 PPER 95 (2005); Temple Ass'n of Univ. Professionals, Local AFT v. Temple Univ., 25 PPER 25121 (1994)). The Board stated further that the Association had "failed to demonstrate that its Charge raises an issue of public importance," or that "the underlying situation presented here is one that is capable of repetition but likely to evade review." The Board refused to "speculate as to whether [PASSHE] will make the same alleged threats" in the future, and opined that "'continued litigation over past allegations of misconduct which have no present effects unwisely focuses the parties' attention on a divisive past rather than a cooperative future.'" Id. (quoting from Medical Rescue Team S. Auth. v. Ass'n of Prof'l Emergency Med. Technicians, 30 PPER 30063 (Final Order 1999)).

The Association appealed to the Commonwealth Court, arguing that the Board erred as a matter of law and acted "arbitrarily or capriciously" in dismissing the unfair practices charge as moot. The Association claimed that the issues involved herein were "of great public importance and likely to recur, yet evade review," adverting to well-established exceptions to the general rule that moot matters should not be decided. In response, the Board insisted that it did not abuse its discretion in dismissing the moot charge against PASSHE, and that no exception to the mootness doctrine applied.

In its opinion, the Commonwealth Court acknowledged that it was "acutely aware of the discretionary nature of the Board's decision regarding issuance of a complaint on an unfair labor practices charge and the correspondingly limited nature of [its own] review." Association of Pa. State College & Univ. Faculties v. Pa. Labor Relations Bd., 962 A.2d 709, 714-15 (Pa. Cmwlth. 2008) (citing Pennsylvania Soc. Servs. Union, Local 668 v. Pennsylvania Labor Relations Board, 392 A.2d 256 (Pa. 1978)). But, the court concluded that "the Board's refusal to issue a complaint, to exercise its exclusive jurisdiction and to decide the Union's unfair labor practice charge is manifestly unreasonable and consequently must be deemed an abuse of discretion." Id. at 717-18. The court determined that the Board has an improper, "acknowledged policy to effectively eliminate long-recognized exceptions to the ordinary rules of mootness, thereby allowing the complained of conduct to continue indefinitely." Id. at 717. The court held that the parties' dispute -- though moot -- was capable of repetition yet likely to evade review, reversed the Board's Final Order and remanded the matter to the Board for further proceedings. Id. at 718.

The Board filed a petition for allowance of appeal, which this Court granted, limited to the following rephrased issue:

Whether settlement of collective bargaining negotiations renders charges raised by Union members against [an employer] prior to ...

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