Commonwealth v. State Conference of State Police Lodges of the Fraternal Order of Police , 513 Pa. 285 ( 1987 )

OPINION OF THE COURT

PAPADAKOS, Justice.

In this case Appellant, State Conference of State Police Lodges of the Fraternal Order of Police (F.O.P.), appeals from an Opinion and Order of Commonwealth Court, 88 Pa.Commonwealth Ct. 356, 489 A.2d 317, (Rodgers, J., dissenting) striking an arbitration award of an agency shop. The award of an agency shop had been made pursuant to the Act of June 24, 1968 (Act 111), P.L. 237, 43 P.S. §§ 217.1-217.10. The parties to the arbitration proceeding were Appellee, the Commonwealth, as public employer; and Appellant, the F.O.P., as exclusive representative of uniformed State Police employees for purposes of Act 111. The arbitration award read as follows:

Award: The demand of the F.O.P is granted. The following language shall be added to the contract between the parties.

All employees who do not become Union members after January 1, 1984, shall as a condition of employment pay to the Union each month, a service charge as a contribution toward administration of this Agreement, an amount equal to the regular monthly dues and assessments of the Union. Upon failure to pay the charge, the Employer shall discharge the employee when advised by the Union.

Appellee made a number of arguments before Commonwealth Court to the effect that the agency shop award was illegal. Appellee argued that the award was a violation of the constitutional rights of those employees choosing not to join the union because the award did not provide assurances that payments by non-members would not be used for activities other than collective bargaining activities. Commonwealth Court properly concluded that Appellee, the Commonwealth, lacked standing to assert such rights on behalf of public employees. See, Board of Commissioners of Montgomery County v. Lukens, 51 Pa.Commonwealth Ct. 576, 415 A.2d 118 (1980), aff'd. per curiam, 494 Pa. 64, 428 A.2d 972 (1981).

Appellee also argued that an agency shop provision was outside the scope of Act 111 arbitration. After reviewing Sections 1 and 4 of Act 111, Commonwealth Court properly concluded that, although Act 111 was silent on the subject, silence could not be interpreted as precluding an agency shop from a collective bargaining agreement between a public employer and public employees, particularly where Act 111 is construed in conjunction with the Pennsylvania Labor Relations Act (PLRA), Act of June 1,1937, P.L. 1168, as amended, 43 P.S. §§ 211.1-211.13. This Court previously determined that Act 111 and the PLRA are to be construed, within certain limits, as a single statute. See, Philadelphia Fire Officers Association v. Pennsylvania Labor Relations Board, 470 Pa. 550, 369 A.2d 259 (1977). Section 6(l)(c) of the PLRA, 43 P.S. § 211.6(l)(c), provides that:

... nothing in this act, or in any agreement approved or prescribed thereunder, or in any other statute of this Commonwealth, shall preclude an employer from making an agreement with a labor organization ... to require, as a condition of employment, membership therein, if such labor organization is the representative of the employes ____

Certainly, under this statute, an agency shop cannot be precluded from being a proper subject of collective bargaining. Commonwealth Court was, therefore, correct in its determination that Act 111 and the PLRA, when read together, do not exclude the issue of an agency shop as a topic for collective bargaining and arbitration, and, therefore, that union membership and payment of fees and assessments by non-union employees are permissible subjects for bargaining and arbitration.¹

Commonwealth Court decided, however, that the award of an agency shop here was illegal under Section 711 of The Administrative Code of 1929 (Code), Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 251. Section 711(b) of the Code, 71 P.S. § 251(b), details the court-martial procedure to be followed in the event any enlisted member of the State Police is dismissed or refused re-enlistment by the State Police Commissioner before the member has reached mandatory retirement age. Commonwealth Court felt that the arbitration award in the instant case would compel the discharge of a member of the State Police without regard to that procedure. Assuming that a non-union member does not pay the required fees and assessments, dismissal is mandatory. A hearing pursuant to Section 711(b) of the Code would be solely to determine whether the police officer had paid dues and assessments as required by the F.O.P. A finding that payment had not been made would mandate dismissal under the arbitration award. Commonwealth Court thought this contrary to Section 711(b) of the Code which provides, inter alia, that the Court-martial Board shall recommend discharge, demotion, or refusal of re-enlistment to the Commissioner, who then has discretion either to follow or disregard the recommendation.

Although Section 711 of the Code does not specify the grounds for discharge of members of the State Police, Commonwealth Court found the arbitration award of an agency shop to be in conflict with the Administrative Code and, hence, that Court struck down the award. We think Commonwealth Court's reasoning on this point is erroneous and that the award, therefore, must be reinstated.

We have consistently held that arbitration panels are empowered to award any terms or conditions of employment to which a public employer and its police employees might have voluntarily agreed. See, City of Washington v. Police Department, 436 Pa. 168, 259 A.2d 437 (1969). See also, Guthrie v. Borough of Wilkinsburg, 508 Pa. 590, 499 A.2d 570 (1985); Township of Moon v. Police Officers, 508 Pa. 495, 498 A.2d 1305 (1985); F.O.P. v. Hickey, 499 Pa. 194, 452 A.2d 1005 (1982). As already noted, an agency shop is a legitimate subject for collective bargaining, and, hence, arbitration under § 6(l)(c) of the PLRA. Indeed, that section is emphatic to the effect that “nothing ... in any other statute of this Commonwealth” precludes an agency shop agreement. The Statutory Construction Act, 1 P.C.S. § 1921(a), requires that every statute shall be construed, if possible, to give full effect to all its provisions. The Administrative Code must, therefore, be construed, if possible, so as not to conflict with the PLRA and Act 111, and we think that that is readily done.

Commonwealth Court has misconstrued the nature and function of administrative agency discretion here. Discretion does not entail unbridled freedom for an agency to do absolutely whatever it pleases. Flagrant abuse of discretion, as a matter of law, can occur, and our courts will provide a remedy upon such an occurrence. See, Petition of Acchione, 425 Pa. 23, 227 A.2d 816 (1967); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); Schwartz, Administrative Law, §§ 217-218 (Little, Brown & Company, 1976). Agency discretion can and, it has been argued, should be confined by enactment of agency rules and regulations. See, K. Davis, Administrative Law Treatise, § 4.03 (3rd Edition, West Publishing Co., 1972). Agency rules and regulations, when properly adopted, have the force and effect of law, at least vis a vis the administrative agency or body itself, Pennsylvania Human Relations Commission v. Norristown Area School District, 473 Pa. 334, 350, 374 A.2d 671, 679 (1977), citing K. Davis, Administrative Law Treatise, § 5.01 (Supp.1976), and hence rein in agency discretion to a significant degree.

Under § 711(a) of the Administrative Code, 71 P.S. § 251(a), the Commissioner of the Pennsylvania State Police is authorized to “make rules and regulations, subject to the approval of the Governor, prescribing qualifications prerequisite to, or retention of, membership in the force; for the enlistment, training, discipline, and conduct of the members of the force; for the selection and promotion of such members on the basis of merit; for the filing and hearing of charges against such members, and such other rules and regulations as are deemed necessary for the control and regulation of the State Police Force.”

We think it clear that such rules and regulations, once promulgated, are binding on both the Court-martial Board and on the Commissioner just as statutes would be, and that, given due regard for the facts or evidence in a given proceeding, they would confine and limit the discretion of the Commissioner in reviewing a Court-martial Board recommendation. The Commissioner, in other words, could not ignore or refuse to follow his own rules. Analytically, we see no difference between such rules or regulations, and standards (mandatory or otherwise) adopted as a result of collective bargaining or arbitration duly conducted under statutes authorizing the same (which occurred here). § 711(b) of the Code establishes due process procedures for aggrieved members of the State Police force, but cannot legitimately be read to prohibit the normal process of substantive confinement of administrative discretion through rule-making under § 711(a) of the Code, or through collective bargaining or arbitration properly conducted under other statutes. Under the circumstances, the arbitration award of an agency shop was not contrary to the provisions of the Administrative Code. The award must, therefore, be reinstated.

It is so ordered.

HUTCHINSON, J., files a dissenting opinion.

1 . The Public Employe Relations Act, Act of July 23, 1970 (Act 195), P.L. 563, 43 P.S. §§ 1101.101, etseq., is inapplicable to this case. See, Geriot v. Council of Borough of Darby, 491 Pa. 63, 417 A.2d 1144 (1980).