The opinion of the court was delivered by: James Gardner Colins, Senior Judge
Submitted: January 20, 2012
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY SENIOR JUDGE COLINS
Petitioner American Federation of State, County, and Municipal Employees, District Council 47, Local 2187 (AFSCME), petitions for review of the May 17, 2011 Final Order of Respondent Pennsylvania Labor Relations Board (Board), in which the Board determined that Intervenor City of Philadelphia Streets Department (City) did not commit unfair labor practices when it laid off Marguerite Morgan instead of Rosemary Ray. On appeal, AFSCME claims (1) that the Board erred as a matter of law by failing to utilize super seniority as required by the Collective Bargaining Agreement (CBA) between the City and AFSCME, and (2) that substantial evidence does not support the Board's finding that Morgan's layoff was not the result of anti-union animus. For the reasons discussed below, we affirm the Board.
The facts found by the Board's Hearing Examiner are summarized as follows. In June 2009, the City initiated a series of layoffs due to lack of funds. (Preliminary Decision and Order (PDO), Findings of Fact (F.F.) ¶4, Reproduced
Record (R.R.) at 47a.) The Streets Department Commissioner, Clarena Tolson, determined several classes of employees in the Streets Department were to be laid off. (Id.) In the Streets Department's Administrative Section, Tolson included in the layoff, among other classes, the class of Departmental Accounting System Specialist. (Id.) At the time, there were only two employees in the Administrative Section who held that position: Marguerite Morgan and Rosemary Ray. (F.F. ¶5, R.R. at 48a.)
Morgan was the AFSCME Executive Board Liaison for both the Streets Department and the Municipal Services Building. (F.F. ¶¶3, 5, R.R. at 47a-48a.) Morgan was also the union's chief steward for the Streets Department, the department in which she worked, and she supervised all other chief stewards. (Id.) Ray was a shop steward, but in another department. (Id.)
Under Section 17(C) of the CBA, union stewards and elected officials are to receive super seniority credit in the event of layoffs, meaning that they have greater protection against being laid off than employees who are not shop stewards or elected officials. (F.F. ¶6, R.R. at 48a.) The parties had never before encountered the situation here, where two union stewards, and only two union stewards, held a position subject to layoffs. (PDO at 3, R.R. at 49a.) Given this "unusual scenario," the City decided that neither Ray nor Morgan could be afforded super seniority credit. (F.F.
¶¶7, 10, R.R. at 48a; Sept. 10, 2010 Hearing Transcript (Sept. 2010 H.T.) at 200, R.R. at 291a.) According to the City, Section 17(C) applied to both of them, and neither could have one more layoff point than the other. (Id.) Because super seniority produced a tie, the City resorted to the layoff point score and tie-breaking procedures set forth in the City of Philadelphia Civil Service Regulations and the City of Philadelphia Office of Human Resources Layoff Policies and Procedures. (F.F. ¶¶8-10, R.R. at 48a.) Applying those procedures, the City calculated that Ray had a higher total layoff point score than Morgan, and higher component scores for performance and seniority. (F.F.
¶11, R.R. at 48a.) As a result, Ray retained her position as Departmental Accounting System Specialist, and Morgan was laid off.*fn1 (Id.)
Following Morgan's layoff, AFSCME filed charges of unfair labor practice on October 5, 2009, and amended them on November 2, 2009, alleging violations of the Pennsylvania Public Employee Relations Act (PERA), Sections 1201(a)(1), (3), and (5).*fn2 AFSCME claimed that the City had violated its bargaining obligation under Section 1201(a)(5) of PERA by denying Morgan super seniority, and that the City, in violation of Section 1201(a)(3), discriminatorily laid off Morgan because she was a union steward and spent considerable amount of time representing union members, filing grievances, and otherwise carrying out functions under the CBA. The City responded that it had simply followed its existing procedures for layoffs and, in doing so, the process resulted in Morgan being selected for layoff.
The matter was assigned to a Hearing Examiner who conducted hearings on September 10 and November 16, 2010.*fn3 In dismissing AFSCME's claims, the Hearing Examiner issued the Proposed Decision and Order on January 13, 2011, finding (1) that the City had a sound arguable basis in the CBA for applying tie-breaking procedures to determine whether Ray or Morgan would be laid off, and (2) that the City's decision to layoff Morgan was based on the application of those procedures and not on anti-union animus. AFSCME filed exceptions, which the Board dismissed, making the PDO absolute and final. This appeal followed.*fn4
On appeal, AFSCME first argues that the Board erred as a matter of law in concluding that the layoff did not violate Section 1201(a)(5) of PERA. AFSCME contends that, under the clear wording of Section 17(C) of the CBA, only Morgan was entitled to super seniority because only Morgan served as a union steward in the unit designated for layoff. Although Ray was a union steward, she, unlike Morgan, had no role or function serving other District Council 47 employees in the layoff unit. Accordingly, AFSCME argues that the City violated its bargaining rights, and failed to bargain in good faith under section 1201(a)(5), by denying Morgan the benefits of super seniority. AFSCME also makes the related argument that the Board erred by applying the "sound arguable basis" standard to the City's interpretation of the CBA because, in AFSCME's view, the CBA language is clear and does not require any interpretation. AFSCME argues plainly, "There is no contract dispute here." (AFSCME Brief at 13.)
The City argues that Section 17(C) affords super seniority to all shop stewards and union officials so long as the unit or class in which they work will be affected by a proposed layoff. Faced with a tie between Morgan and Ray, both union stewards and the only employees working as Departmental Accounting System Specialist, the City applied tie-breaking procedures that resulted in Morgan's layoff. The City contends that it had a sound arguable basis in the CBA for applying those procedures under the circumstances, and that the Board correctly ruled in its favor.
We agree with the City and affirm the Board on this issue.
The PLRB exists to remedy violations of statute, i.e., unfair labor practices, and not violations of contract. Pa. State Troopers Ass'n v. Pa. Labor Relations Bd., 761 A.2d 645, 649 (Pa. Cmwlth. 2000). Where a breach of contract is alleged, it should be resolved by an arbitrator using the grievance procedure set forth in the parties' collective bargaining agreement.*fn5 Id. However, the Board is empowered to review an agreement to determine whether the employer has clearly repudiated its provisions, because such repudiation may constitute both an unfair labor practice and a breach of contract. Id.; Capitol Police Lodge No. 85 v. Pa. Labor Relations Bd., 10 A.3d 407, 410-11 (Pa. Cmwlth. 2010) (citing Wilkes- Barre Twp. v. Pa. Labor Relations Bd., 878 A.2d 977, 982 (Pa. Cmwlth. 2005)); Millcreek Twp. Sch. Dist. v. Pa. Labor Relations Bd., 631 A.2d 734, 737-38 (Pa. Cmwlth. 1993) (holding that an employer's unilateral change in the terms and conditions of employment set forth in a collective bargaining agreement is considered a refusal to bargain in good faith and is an unfair labor practice in violation of Section 1201 of PERA).
A public employer may raise "contractual privilege" as an affirmative defense to a charge of unfair labor practices alleging a failure to bargain in good faith. Capitol Police Lodge No. 85, 10 A.3d at 409-10; Pa. State Troopers Ass'n, 761 A.2d at 651. The defense calls for "the dismissal of an unfair labor practice charge where the employer establishes a sound arguable basis in the language of the CBA for the employer's claim that its action was permissible under the CBA." Capitol Police Lodge No. 85, 10 A.3d at 410; Pa. State Troopers Ass'n, 761 A.2d at 651. "Long standing precedent provides that if an employer articulates a sound arguable basis for its interpretation of the parties' CBA, the [Board] will dismiss an ...