Pittsburgh City Fire Fighters Local No. 1 v. Barr , 408 Pa. 325 ( 1962 )

Opinion by

Mr. Justice Cohen,

This is an appeal from an order of the Court of Common Pleas of Allegheny County sustaining preliminary objections to appellant’s complaint in mandamus to compel appellee, the City of Pittsburgh (City), to submit to the grievance procedures of the Act of 1947, June 30, P.L. 1183, as amended, 43 P.S. §215.1.

Appellant, Pittsburgh City Fire Fighters (Fire Fighters) is an organization representing firemen employed by appellee in the bureau of fire. In 1960, City granted a wage increase to the firemen but refused Fire Fighters’ demand for a wage formula tying in the wages of firemen to other wages in the city. Thereupon, the union requested City to submit this issue to a panel appointed under the Act of 1947. City refused and appellant filed its action in mandamus. City filed preliminary objections in the nature of a demurrer to the complaint and requested that it be dismissed for failure to state a cause of action. The court below sustained the preliminary objections and dismissed the complaint. This appeal followed.

The purpose of the Act of 1947 is clearly set forth in section 1 of its provisions which, in pertinent part, states: “. . . In order to avoid or minimize any possible controversies by making available full and adequate governmental facilities for the adjustment of grievances, the governmental agency involved, at the request of the public employes, shall . . . set up a panel of three members, one to be selected by the employes, one by the governmental agency, and the two so selected to select a third member.” The Act of 1947 was an attempt by the legislature to provide a type of grievance machinery in aid of public employees who, by proscription of law (43 P.S. §215.2) are forbidden to go out on strike. The findings of the panel are merely advisory and are not binding upon the governmental authorities. The prime purpose of the legislation was to furnish a forum to which aggrieved public employees could carry their demands and there subject them to the light of public opinion. Erie Firefighters Local No. 293 v. Gardner, 26 Pa. D. & C. 2d 327 (1961), aff’d per curiam 406 Pa. 395, 178 A. 2d 691 (1962).

The only issue confronting us here is whether the provisions of the Act of 1947 providing for the “adjustment of grievances” is applicable to disagreements between a municipality and its employees concerning the adoption of new contractual provisions relative to a wage plan.

The courts in this Commonwealth have not previously considered what constitutes a grievance under the Act of 1947. There is, however, adequate authority in the field of industrial and municipal labor relations to assist us in our analysis of this question.

In Elgin, Joliet and Eastern Railway Co. v. Burley, 325 U.S. 711, 89 L. Ed. 1886, 65 S. Ct. 1282 (1945), the United States Supreme Court held that under the Railway Labor Act of 1934, 48 Stat. 1185, c. 691, as amended, 45 U.S.C.A. §151 et seq., the individual employee has the right to control the processing of his own grievances regardless of the existence of a collective bargaining agent among the employees. During the course of its opinion the court differentiated between disputes concerning the making of collective agreements and disputes over grievances in the following terms:

“. . . Congress has drawn major lines of difference between the two classes of controversy.

“The first relates to disputes over the formation of collective agreements or efforts to secure them. They arise where there is no such agreement or where it is sought to change the terms of one, and therefore the issue is not whether an existing agreement controls the controversy. They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past.

“The second class, however, contemplates the existence of a collective agreement already concluded or, at any rate, a situation in which no effort is made to bring about a formal change in terms or to create a new one. The dispute relates either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case. In the latter event the claim is founded upon some incident of the employment relation, or asserted one, independent of those covered by the collective agreement. ... In either case the claim is to rights accrued, not merely to have new ones created for the future.

“The so-called minor disputes, . . . involving grievances, affect the smaller differences which inevitably appear in the carrying out of major agreements and policies or arise incidentally in the course of an employment. They represent specific maladjustments of a detailed or individual quality. . . .” (325 U. S. at 723, 724).

In West Texas Utilities Co. v. National Labor Relations Board, 206 F. 2d 442, 446 (1953), cert. den. 346 U. S. 855, 98 L. Ed. 369, 74 S. Ct. 70 (1953), the United States Court of Appeals for the District of Columbia stated: “. . . As we view the word ‘grievances’ it does not encompass, for example, the setting of wage rates for a large percentage of the employees in a certified bargaining unit. The word ‘grievances,’ in the field of industrial relations, particularly in unionized companies, usually refers to ‘secondary disputes in contrast to disagreements concerning broad issues such as wage rates, hours and working conditions.’ . . .” See also Chicago River & Indiana Railroad Company v. Brotherhood of Railroad Trainmen, 229 F. 2d 926 (1956), aff’d 353 U. S. 30, 1 L. Ed. 2d 622, 77 S. Ct. 635 (1957).

We are also cognizant of cases taking a contrary position. In National Labor Relations Board, v. Kearney and Trecker Corporation, 237 F. 2d 416 (1956), the United States Court of Appeals for the Seventh Circuit stated that under section 9(a) of the National Labor Relations Act of 1935, 49 Stat. 453, as amended, 29 U.S.C.A. 159: “a ‘grievance’ is not necessarily limited to minor matters but may entail problems arising under a collective bargaining agreement. . . .”

Similarly, in National Labor Relations Board v. North American Aviation, Inc., 136 F. 2d 898 (1943), the Court of Appeals for the Ninth Circuit pointed out that grievances do not encompass merely “small out-of-mind” matters. See also the comments of Chief Judge Learned Hand in Douds v. Local 1250, Retail Wholesale Department Store Union of America, C.I.O., 173 F. 2d 764 (1949) in regard to this question.

In the only case we could find involving the duty of a governmental body to submit to mediation “grievances” with its employees, the Michigan Supreme Court, in Garden City School District v. Labor Mediation Board, 358 Mich. 258, 99 N.W. 2d 485 (1959) held that the state labor mediation board had jurisdiction to mediate disputes relative to salaries and other conditions of employment between a school board and its teachers. In the course of its opinion, the court stated: “. . . The word ‘grievance’ must be read in the statute in its generally accepted sense, rather than as defined by usage in some contract cases. We know of no grievance more likely to provoke the sort of dispute which the labor mediation board [is] . . . designed to avoid than those concerning wages or salary.” (99 N.W. 2d at 488). As in the case of the Pennsylvania provision (43 P.S. §215.1), the Michigan statute does not define the term “grievances.”

After consideration of both x>ositions, we are persuaded that the interpretation of grievances evidenced in the latter group of cases is the proper one in the context of the relationship of governmental employees to their governmental unit. This relationship is not analogous to that of an industrial worker with his company. The latter, through his bargaining agent, enters into contractual negotiations with the employer at periodic intervals — usually, immediately prior to the expiration of the existing contract. At such time, the union representatives and the company officials sit down and review the existing collective bargaining agreement, provision by provision. Through this process, they arrive at mutually agreeable provisions relative to wages, working conditions, vacation benefits, unemployment security and the host of other details relevant to modern day employment.

These provisions remain in force until the contract expires. Prior to expiration, they will, once again, be renegotiated.

During the interim, while the contract is in force, alleged abuses or violations of the provisions are handled by the grievance procedure provided for under the collective bargaining agreement. Such grievances concern disturbances in the daily course of labor-management relations. Accordingly, in our opinion, the adjustment of “grievances” in the industrial context does not encompass the consideration of major contractual revisions which go to the heart of the collective bargaining agreement between the parties.

The situation of the municipal employee, however, is fa.r different. While governmental units recognize unions, such as Fire Fighters, as the bargaining agents of the municipal workers, they do not sit down and enter into collective bargaining agreements containing provisions governing employment. Indeed, absent statutory authorization, a governmental unit does not have power to bind itself to its employees by the terms of a contract. See Scott v. Philadelphia Parking Authority, 402 Pa. 151, 166 A. 2d 278 (1960). Rather, wages, hours, retirement benefits and many other conditions of employment are established by ordinance or directive of the duly authorized municipal authority — in the instant case, the Pittsburgh City Council. Similarly, many of the details concerning the day-to-day working conditions of municipal employees (e.g. type of shifts, clothing requirements, etc.) are regulated by order of the proper administrative department — here the fire bureau. Provisions contained in ordinances relative to wages and other matters can be changed only by getting the city council to amend or rewrite the ordinance. Revision of such provisions does not come about from a periodic review of a labor contract as in the industrial context, but results solely and exclusively from the decision of the city authorities to change the existing terms by the enactment of new or amended legislation.

Accordingly, grievances affecting city employees are not merely the day-to-day complaints which normally are settled by the grievance procedure in the industrial context. Rather, in the governmental situation, these grievances also concern the main elements of an employment relationship — wages, hours, working conditions, etc., — matters which in the industrial situation are determined in the collective bargaining agreement.

Before appellants must present their wage demands to city council, they have the right to discuss such demands with municipal officials through the machinery of the grievance procedure. There, through the airing of the respective positions of the parties and the attendant coverage by the news media, appellant and other city employees, are afforded ample opportunity to place their position before the public and muster public sentiment on their side. Equally as important, through such a process, the parties often are able to arrive at a mutual understanding of their respective positions, thereby making the final negotiations more fruitful.

That it was within the contemplation of the legislature that major employee demands relative to wages, hours and working conditions would be discussed under the procedures of the Act of 1947 is demonstrable by the section referring to “adjustment of grievances” (above quoted) and by a second portion of the same provision. This provides: “. . . [NJothing contained in this act shall be construed to limit, impair or affect the right of any public employe to the expression or communication of a view, grievance, complaint or opinion on any matter related to the conditions or compensation of public employment, or the betterment thereof____” (43 P.S. §215.1).

In Broadwater v. Otto, 370 Pa. 611, 88 A. 2d 878 (1952), we held that before one could utilize the grievance procedure of the Act of 1947, he must be an employee of the governmental unit, and that a former employee could not assert as his grievance his allegedly improper discharge as an employee. In the course of the opinion, the court quoted an opinion given by the late Justice Thomas McKeen Chidsey when he was attorney general of the Commonwealth, wherein he stated, “ . . “It is quite clear that the grievance machinery was to provide for presentation of complaints respecting working conditions and compensation by those in employment and affected thereby, and the consideration of such complaints during employment in order to deter strikes in accordance with the over-all purpose of the legislation.” ’ ”

Accordingly, it is our opinion that to deny municipal employees the right to invoke grievance machinery to present demands concerning wages, hours and working conditions would be to defeat the entire purpose of the Act. of 1947. The providing of this facility for discussion is designed in no small measure to compensate, for-the inability to strike.

Indeed, it is difficult to believe that the legislature would have provided the elaborate process of hearings and of administrative review in section 1 of the Act {43 P.S. §215.1) if it were not contemplated that major areas of employee-government relations would be handled by-, the grievance procedure.

,. In deciding that the City must appoint a member to a. panel which will hear the appellant’s wage formula demands, we in no way determine the propriety of said demands or whether or not City could constitutionally adopt the wage plan desired. Indeed, the record is bare. as to any detailed information regarding such wage formula and we are unable to evaluate its features. Moreover, our holding in Erie Firefighters v. Gardner, supra, obviates the necessity of our deciding this, question entirely since we there held that the recommendations of the panel are not binding on the municipality. Consequently, we need not concern ourself with the suitability of the particular scheme.

• Accordingly, since under the Act of 1947, City is obligated to name a member of a panel to discuss wages for-, firemen, and it has refused to do so, mandamus is the proper remedy to compel the appointment of a panel member to participate in the grievance machinery. It is long settled that mandamus will lie to compel a public officer to perform a mandatory or ministerial act which he is legally obliged to perform and which the complainant is legally entitled to receive. See Getz v. Lehighton Borough, 407 Pa. 357, 180 A. 2d 230 (1962) ; Travis v. Teter, 370 Pa. 326, 87 A. 2d 177 (1952). The lower court, therefore, improperly dismissed appellant’s, complaint in mandamus.

Order reversed with a procedendo.

Mr. Chief Justice Bell dissents,