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County of Berks v. Pennsylvania Labor Relations Board

Commonwealth Court of Pennsylvania

September 17, 2013

County of Berks and Berks County Prison Board, Petitioners
v.
Pennsylvania Labor Relations Board, Respondent

Argued: May 15, 2013

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, BERNARD L. McGINLEY, Judge, RENÉE COHN JUBELIRER, Judge, ROBERT SIMPSON, Judge, MARY HANNAH LEAVITT, Judge, P. KEVIN BROBSON, Judge, PATRICIA A. McCULLOUGH, Judge

OPINION

RENÉE COHN JUBELIRER, Judge

The County of Berks and Berks County Prison Board (together, the County) petition for review of the Final Order of the Pennsylvania Labor Relations Board (PLRB) dismissing the County's exceptions and making final and absolute the Hearing Examiner's Proposed Decision and Order finding that the County committed an unfair labor practice in violation of Section 1201(a)(1) of the Public Employe Relations Act[1] (PERA). In this appeal, the County argues that the PLRB's Final Order denies the County the benefits of its bargain, infringes upon the County's constitutional right to free speech, and fails to conclude that the County established an affirmative defense. Discerning no error, we affirm.

The PLRB summarized the relevant findings as follows:

The County and [Pennsylvania Social Services Union, Local 668, Service Employees International Union (Union)] are parties to a collective bargaining agreement [CBA] that covers the wages, hours and terms and conditions of employment of employes at Berks County prison. On August 1, 2008, the County and the Union entered into a side agreement for an alternative work schedule that allows employes to choose to work a four days a week, ten hours a day schedule (also known as the 4-10 agreement). The 4-10 agreement also provides that "[t]he County has approved a compressed work week program on a trial basis and may revert back to the original 5 day work week at any time with a thirty (30) day notification to the [a]ffected employees."
Caseworkers at the prison are in charge of orienting and completing an intake assessment and classification of every inmate who enters the prison. Four caseworkers, including Karen Arms, requested to have off either Mondays or Fridays under the 4-10 schedule. Because caseworkers employed at the prison preferred to have three-day weekends, the 4-10 schedule caused the work of processing prisoners to back up on Mondays and Tuesdays.
In April 2009, Arms took an extended leave of absence to work directly for the Union. While Arms was on leave, Kevin Neff, the chief shop steward for the Union, and the County met on May 11, 2010, and negotiated a modified 4-10 scheduling agreement to assist the County with the problems caused by employes taking off Fridays and Mondays. [The modified agreement required that one caseworker . . . switch her day off from Friday to Thursday, and required that an additional caseworker . . . "adjust their (sic) Monday off schedule as needed based on substantial operational needs, as it applies to the Work Release Coordinator position."] The modified 4-10 agreement preserved the parties' contractual rights contained in the collective bargaining agreement and the original 4-10 agreement.
Later in 2010, Arms informed the prison that she would return from her extended leave. Initially, upon her return, Arms worked the five day schedule, eight hours a day. Arms was entitled under the [collective bargaining agreement] to return to the schedule she was on when she took extended leave, and asked to return to the 4-10 schedule, which request the County granted.
On or about October 20, 2010, Christina Parish, Arms' supervisor, informed Neff, the chief shop steward, that Arms would have to switch her day off to Tuesday, Wednesday or Thursday or the County will give the Union thirty days['] notice to end the 4-10 schedule for all bargaining unit employes. Parish admitted to Arms that she has made that statement to Neff. Arms decided to agree to return to the five day schedule out of fear that if she did not do so the 4-10 schedule would be taken from the rest of the bargaining unit.

(Final Order at 1-2 & n.1 (citations and footnote omitted).)

The Union filed a charge of unfair labor practices with the PLRB. It alleged that the County "coerced Karen Arms to change her hours of work established by the collective bargaining agreement under the threat of her coworkers losing their long established work schedules and thus violate[d] [PERA]." (Charge of Unfair Labor Practice(s), Specification of Charges ¶ 21, R.R. at 7a.) The Secretary of the PLRB issued a complaint and notice of hearing. (Complaint and Notice of Hearing, R.R. at 2a-3a.) Thereafter, a Hearing Examiner held a hearing at which the County and the Union presented witness testimony and submitted documentary evidence. Both parties then submitted post-hearing briefs. After the close of the record and submission of briefs, the Hearing Examiner issued a Proposed Decision and Order.

The Hearing Examiner credited Arms' testimony regarding the statement made by Parish and found that the County coerced Arms into making the schedule change. (Proposed Decision and Order at 4.) He rejected the County's suggested interpretation of the facts, and the County's argument that staffing concerns outweighed any possible interference with Arms' rights. (Proposed Decision and Order at 4.) As a result, the Hearing Examiner determined the County committed an unfair labor practice by threatening Arms that if she chose to work the contractually provided alternate work schedule, the County would eliminate the program for the entire bargaining unit. (Proposed Decision and Order at 5.) Thus, the Hearing Examiner determined the County violated Section 1201(a)(1) of PERA. (Proposed Decision and Order, Conclusions of Law ¶ 4.)

The County filed exceptions with the PLRB, challenging the Hearing Examiner's Proposed Decision and Order. The County argued that the Hearing Examiner erred in finding a violation of Section 1201(a)(1) "where the County had stated business concerns for its desire to eliminate the 4-10 schedule, and [it] had a contractual right to end the program on thirty days['] notice to the Union. (Final Order at 2.)

The PLRB issued a Final Order in which it dismissed the County's exceptions, and made the Hearing Examiner's Proposed Decision and Order absolute and final. Based upon the totality of the circumstances, the PLRB determined that, "the Hearing Examiner did not err in finding that the County's threat to eliminate the 4-10 scheduling agreement had a tendency to coerce employes in the exercise of the protected act of asserting their contractual rights." (Final Order at 3.) The PLRB concluded that:

Here, for over a year, Arms' caseworker position remained vacant as she did not work for the County, and thus did not work Mondays. Indeed, since Arms began her leave from the County in April, 2009 to work for the Union, which encompassed both before and after the May 11, 2010 modified 4-10 agreement, the County had four employes scheduled to work on Mondays. Notably, before going back to her 4-10 schedule with Mondays off, Arms asked Parish if there were any foreseeable scheduling problems. In response, Parish did not identify any potential issues. Arms and Parish continued to discuss Arms' return to her 4-10 schedule several times, and mutually agreed on a date for Arms to return to her schedule with Mondays off. After Arms returned to her previous 4-10 schedule with Mondays off, the County continued, as before, to have four caseworkers scheduled for Mondays.
Moreover, Arms testified that since her return to the County in late 2010, she was assigned duties in the community reentry center (CRC), not as an intake caseworker, and that Mondays were not busy for her. It is undisputed that the County's alleged concerns about the backlog are with the intake caseworkers, not counselors, such as Arms' assignment at the CRC.
Despite numerous advance opportunities to discuss Arms' return to her 4-10 schedule and any corollary scheduling concerns, it was not until after Arms, then a counselor at CRC, exercised her contractual right to return to her 4-10 schedule with Mondays off that the County threatened to eliminate the 4-10 scheduling option for all bargaining unit employes because of alleged issues of staffing with intake caseworkers. To a reasonably objective employe, it would appear that the County's threat to eliminate the 4-10 scheduling was not out of a concern over staffing, but in response to Arms' exercise of her contractual right to return to her 4-10 schedule. The message sent to the employes by the County's actions is that exercise of contractual rights may result in similar threats or unilateral actions to eliminate those contractual rights.

(Final Order at 2-3 (footnotes and citations omitted).) The County now petitions this Court for review.[2]

Initially, we note that in reviewing a PLRB determination under PERA, our Court has "recognize[d] that the 'PLRB possesses administrative expertise in the area of public employee labor relations and should be shown deference'" and that this "'Court will not lightly substitute its judgment for that of the PLRB.'" Lehighton Area School District v. Pennsylvania Labor Relations Board, 682 A.2d 439, 442 (Pa. Cmwlth. 1996) (quoting American Federation of State, County, and Municipal Employees, Council 13 v. Pennsylvania Labor Relations Board, 616 A.2d 135, 137 (Pa. Cmwlth. 1992)). "It is within the province of the PLRB to weigh conflicting evidence, make appropriate credibility determinations, resolve primary issues of fact and draw reasonable inferences from the established facts and circumstances." Id. This Court must uphold the PLRB's decision "if its factual findings are supported by substantial evidence." Allegheny County Deputy Sheriffs' Association v. Pennsylvania Labor Relations Board, ___Pa. ___, ___, 41 A.3d 839, 843 (2012). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Delaware County Lodge No. 27, Fraternal Order of Police v. Pennsylvania Labor Relations Board, 694 A.2d 1142, 1145 n.5 (Pa. Cmwlth. 1997).

In support of its appeal, the County first argues that the PLRB erred in concluding that the County's legitimate exercise of its constitutional, statutory and contractual rights constituted a violation of Section 1201(a)(1) of PERA. It asserts this result contravenes both the clear statutory language and the underlying intent of PERA. The County contends the PLRB concluded that the County properly negotiated an agreement with the Union that modified employee schedules and expressly authorized the County to revert back to the original scheduling model at the County's sole discretion. Moreover, it argues, the PLRB recognized that the agreement obligated the County to notify affected employees of its decision to revert back to the original scheduling model 30 days prior to the change. Nevertheless, the County maintains, the PLRB improperly concluded that the County's fulfillment of this contractual requirement of notifying an affected employee of its decision to return to the original ...


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