M. Kiddo v. American Federation of State, County and Municipal Employees, Local 2206 ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Kiddo, Joan Hordusky, :
Mike Dzurko, Christine Arnone, :
Jennie Clay, Madelyn Groover, :
Melissa Guzowski and Jeff Granger :
:
v. : No. 468 C.D. 2019
: Argued: May 11, 2020
American Federation of State, County :
and Municipal Employees, Local :
2206; American Federation of State, :
County and Municipal Employees, :
District Council 85; Randy Procious :
in his official Capacity; Shane Clark :
in his official Capacity; and Erie Water :
Works :
:
Appeal of: American Federation of :
State, County and Municipal Employees, :
Local 2206; American Federation of :
State, County and Municipal Employees, :
District Council 85; Randy Procious; :
and Shane Clark :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: August 3, 2020
American Federation of State, County and Municipal Employees
(AFSCME), Local 2206 (Local 2206), AFSCME, District Council 85 (District
Council 85) (together, Union), Randy Procious, and Shane Clark (collectively,
Union Defendants) appeal from the March 19, 2019 Order of the Court of
Common Pleas of Erie County (trial court) that granted the Motion for Preliminary
Injunction/Renewed Motion for Preliminary Injunction and Request for
Emergency Relief (Motion) filed by Mark Kiddo, Joan Hordusky, Mike Dzurko,
Christine Arnone, Jennie Clay, Madelyn Groover, Melissa Guzowski, and Jeff
Granger (collectively, Employees). The trial court enjoined Erie Water Works
(EWW) from voting on and entering into any contract with Union until
Employees’ civil complaint (Complaint), in which they alleged the Union
Defendants breached their duty of fair representation to Employees during the
presentation and ratification of a new collective bargaining agreement (CBA) by
their bargaining unit, was resolved. Prior to the trial court’s Order, a Hearing
Officer of the Pennsylvania Labor Relations Board (PLRB) found that EWW had
committed unfair labor practices under the Public Employe Relations Act1 (PERA)
relating to the CBA bargaining and directed EWW’s Board of Directors (Board) to
vote on the CBA. On appeal, Union Defendants argue the trial court abused its
discretion in granting the Motion because Employees did not meet any of the six
requirements for obtaining a preliminary injunction, and, in particular, did not
establish that they would suffer immediate and irreparable harm that was not
speculative or merely economic if the Motion was denied.
I. Background
A. Complaint
On December 5, 2018, Employees filed the Complaint alleging the
following. Employees work for EWW, a municipal water authority for the City of
1
Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101-1101.2301.
2
Erie (City), and are members of Local 2206, which is a part of District Council 85.2
Local 2206 represents 18 to 20 EWW employees3 and some City employees. Mr.
Procious, who works for the City, and not EWW, is President of Local 2206, and
Mr. Clark is employed by District Council 85. EWW and Local 2206 entered into
a CBA governing Employees for the period between January 1, 2013, and
December 31, 2017 (Prior CBA). Before the Prior CBA’s expiration, EWW and
Union began negotiations on a successor CBA, and Mr. Procious and Mr. Clark
were members of Union’s negotiating team. Mr. Kiddo and another employee
advised members of Union’s negotiating team and/or Mr. Procious that they
wanted the new CBA to include, among other things, a post-employment subsidy,
which is a monthly stipend a retiree receives until the retiree becomes eligible for
Medicare. This benefit was available to EWW’s other unionized employees, who
were represented by the Teamsters Union, and non-unionized administrative
employees.
Employees alleged that, in the course of negotiations, EWW presented to
Union’s negotiating team a document titled “Final Offer” on December 22, 2017.
The Final Offer included two options that, relevant to the current dispute, provided
as follows: Option 1, a 5-year contract that included a post-employment subsidy of
$400 per month, a 3% wage increase over the contract term, and a provision that
placed employees hired after January 1, 2018, in a defined contribution retirement
plan; and Option 2, a 4-year contract that included a 2.5% wage increase but
2
Ms. Hordusky worked for EWW and was a member of Local 2206 during the
underlying events but retired from her employment on October 30, 2018, and, therefore, is no
longer a member of Local 2206. (Complaint (Compl.) ¶ 8.)
3
EWW is a “public employer,” Employees are “public employe[s],” and Union is an
“employe organization” and the exclusive representative of Employees pursuant to, respectively,
Sections 301(1)-(3) and 606 of PERA, 43 P.S. §§ 1101.301(1)-(3), 1101.606.
3
maintained the defined benefit pension plan for all employees. Employees aver
that EWW intended, and expressed to Union’s negotiating team, that its Final
Offer contained both options and that both options should be presented to the
bargaining unit for potential ratification. According to the Complaint, per a
January 4, 2018 email with EWW, Mr. Clark indicated he understood the Final
Offer to include both options and questioned whether both options had to be
presented to the bargaining unit members, but, in subsequent communication on
January 5, 2018, Mr. Clark advised EWW that Union was not obligated to present
the Final Offer to the members and would only be presenting Option 2 for
ratification.
On January 11, 2018, Union negotiating team presented, as EWW’s Final
Offer, Option 2 to the membership for ratification. Employees allege the
membership was not informed that the Final Offer had contained any other options
or that EWW had been willing to agree to other options. They further aver the
ratification meeting involved “heated” discussion during which Union officials
stated that if the membership did not approve the presented offer, people would
lose their pensions. (Complaint (Compl.) ¶¶ 42-43.) “In reality, [Employees]
would not lose their pensions if they rejected the . . . [presented o]ffer.” (Id. ¶ 44.)
The membership voted to ratify the presented offer. (Id. ¶ 43.) Employees allege
that had Mr. Procious and Mr. Clark informed the bargaining unit that Option 1
was available, rather than concealing that information, Employees would not have
ratified Option 2, but would have voted for Option 1. Employees presented
affidavits in this regard.
Employees allege that, thereafter, EWW sent a letter to the bargaining unit
members, dated February 8, 2018, informing them that the Final Offer had
4
included the two options, attached to which was a document purportedly reflecting
the two options presented to the negotiating team. Through emails on February 14
and 15, 2018, Employees and other bargaining unit members conferred and 13
members, a majority of the bargaining unit, stated that they wanted a revote. On
February 21, 2018, Mr. Kiddo filed an internal grievance against Mr. Procious and
Mr. Clark requesting that the January 11, 2018 vote be cancelled and a revote be
held to consider both options. After a hearing on the grievance, AFSCME Judicial
Panel Chairperson Richard Abelson issued a decision (Abelson Decision), finding
that Mr. Procious and Mr. Clark had not violated Section 7 of the AFSCME
Constitution,4 pertaining to membership participation in ratifying contracts. Mr.
Kiddo appealed to AFSCME’s full Judicial Panel, which affirmed.
Based on the above facts, Employees assert a single count in the Complaint.
They contend Union Defendants are trustees of the rights of the bargaining unit
members, who are beneficiaries of the fiduciary obligations owed to them by
Union, and, as such, bear a heavy duty of fair representation to those it is bound to
protect. (Id. ¶ 60.) Employees allege Union Defendants breached this duty of fair
representation by, among other things: misrepresenting and/or concealing what
EWW’s Final Offer was to the bargaining unit for consideration and ratification;
4
Section 7 of the AFSCME Constitution provides:
Members shall have the right to full participation, through discussion and vote, in
the decision-making processes of the union, and to pertinent information needed
for the exercise of this right. This right shall specifically include decisions
concerning the acceptance or rejection of collective bargaining contracts,
memoranda of understanding, or any other agreements affecting their wages,
hours, or other terms and conditions of employment. All members shall have an
equal right to vote and each vote cast shall be of equal weight.
(Reproduced Record (R.R.) at 37a.)
5
misleading the bargaining unit membership of the consequences of not ratifying
Option 2; and violating Union’s internal rules.5 This reflects, they argue, that
Union Defendants were not acting in good faith, in a reasonable manner, and
without fraud. Due to Union Defendants’ actions, Employees, and the
membership, ratified a less favorable offer, resulting in Employees suffering or in
the future suffering pecuniary injuries including a loss or decrease of pay raise and
loss of the post-employment subsidy.
B. Union’s Unfair Labor Charge Against EWW
Following the January 11, 2018 ratification vote and EWW’s February 8,
2018 letter to the bargaining unit members, EWW decided it would not present
Option 2 to its Board for a vote. As a result, Union filed unfair labor practice
charges against EWW with the PLRB on March 8, 2018. (Trial Ct. Op. at 7.) The
Hearing Officer held a hearing on the unfair labor charges in July 2018, and, on
January 31, 2019, issued a proposed decision and order sustaining the unfair labor
charges against EWW. (Reproduced Record (R.R.) at 575a-85a.) The Hearing
5
The duty of fair representation requires unions to “serve the interests of all members
without hostility or discrimination toward any, to exercise its discretion with complete good faith
and honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171, 177 (1967). Unions
have a fiduciary obligation to represent all of their members fairly and to protect the members’
rights. Connelly v. Steel Valley Educ. Ass’n, 119 A.3d 1127, 1134 (Pa. Cmwlth. 2015). “A
union’s actions can be considered arbitrary only if, in light of the factual and legal landscape at
the time of the union’s actions, the union’s behavior is so far outside a wide range of
reasonableness . . . as to be irrational.” Id. (internal citations and quotations omitted). A civil
claim based on a union’s alleged breach of its duty of fair representation does not implicate
PERA because “[i]ndividual claims by employees against [their] union . . . do not qualify as
unfair labor practices.” Id. at 1133 (quoting Case v. Hazelton [sic] Area Educ. Support Pers.
Ass’n (PSEA/NEA), 928 A.2d 1154, 1161 (Pa. Cmwlth. 2007)). Therefore, jurisdiction over duty
of fair representation claims is within the local county court of common pleas, not the PLRB. Id.6
Officer found that EWW had violated PERA because, among other reasons, EWW
directly negotiated with the bargaining unit, the “Final Offer” it sent to bargaining
unit members differed from the “Final Offer” presented to the negotiating team
despite being characterized as accurate and complete by EWW, and EWW was
working directly with Mr. Kiddo and his counsel to delay the Board’s vote pending
resolution of the Complaint.6 (Id. at 582a-84a.) The Hearing Officer directed
EWW to “[i]mmediately bargain in good faith, and submit the terms of the CBA as
it existed in Option 2 on December 22, 2017, without the inclusion of Option 1 or
any other unaccepted proposal, to the Board . . . for ratification[.]” (Id. at 585a.)
EWW filed exceptions to the proposed decision and order on February 20, 2019,
but EWW withdrew those exceptions after the trial court issued the Order granting
the Motion.
C. Motion
On December 18, 2018, Employees filed the initial Motion for Preliminary
Injunction, seeking to enjoin EWW from executing Option 2 as ratified on January
6
The Hearing Officer explained that EWW’s arguments that it intended the two options
to be inseparable and to be presented to the bargaining unit members were “belied by its own
proposal document, drafted by labor counsel, which expressly state[d] that ‘the Union will select
one of the following options to apply to all of its members.’” (R.R. at 582a (citation omitted).)
The Hearing Officer found, crediting Mr. Clark’s testimony, that EWW and the negotiating team
had reached an agreement to present Option 2 to the members and EWW later changed its mind
and insisted on the presentation of both options. (Id.) Further, according to the Hearing Officer,
EWW imposed a condition on its approval of the successor CBA by insisting that the choice
stated in the Final Offer be presented to the bargaining unit and then refused to hold a vote on the
CBA until Union acceded to the demand, which is an unfair labor practice. (Id. at 583a.) The
Hearing Examiner also found that EWW engaged in unfair labor practices by communicating
directly with the bargaining unit members, in misrepresenting to the membership what was
actually presented to the negotiating team, and in stating that its representation was the “accurate
and complete version of the [F]inal [O]ffer,” when that representation was not. (Id.)
7
11, 2018, by the bargaining unit.7 Therein, Employees alleged many of the above
facts regarding the ratification of Option 2 during the January 11, 2018 meeting
and the events that followed. Employees averred additional facts they believed
would establish the necessary requirements to obtain a preliminary injunction.
Union Defendants filed a Memorandum of Law opposing the Motion and the
affidavit of Mr. Clark. In the Memorandum of Law, Union Defendants argued that
Employees could not meet the standard for obtaining a preliminary injunction.
They disputed that EWW advised them that it expected both options of the Final
Offer to be presented to the bargaining unit. Rather, Mr. Clark indicated the
language of the Final Offer reflected it was Union’s choice as to which option to
present and that Union did not agree, at the December 22, 2017 meeting, to present
both options. Union’s negotiating team told EWW’s negotiating team that it was
going to present Option 2 to the membership at that meeting. Citing various email
correspondence, Union Defendants indicated that they again informed EWW of
their understanding prior to the January 11, 2018 meeting with the bargaining unit
members.
An initial hearing was held in February 2019, but the trial court continued
the hearing to June 2019, with the understanding that no vote would be scheduled
by EWW. However, EWW’s counsel advised Employees’ counsel that a
ratification vote of Option 2 would be held on March 21, 2019, in compliance with
the PLRB’s Hearing Officer’s Decision. Based on that information, Employees
filed the Renewed Motion for Preliminary Injunction on March 7, 2019, because,
7
The initial Motion for Preliminary Injunction also sought an injunction against Union to
preclude Union from taking any disciplinary action against Employees for filing the Complaint.
However, Union eventually agreed not to take any such action against Employees and, therefore,
this request became moot.
8
they averred, if EWW ratified those terms and conditions, Employees would be
“permanently foreclose[d]” from obtaining the equitable relief they sought.
(Renewed Motion for Preliminary Injunction ¶ 16, R.R. at 344a (emphasis
omitted).) Therefore, Employees requested the trial court to either issue the
injunction or hold a hearing prior to the Board’s scheduled vote. Union
Defendants filed a supplemental memorandum of law, in which they did not
dispute that the Board was going to vote but argued that any alleged harm was
either speculative or merely economic in nature. The trial court held a hearing on
March 15, 2019, at which Union Defendants presented their evidence and
Employees offered rebuttal.
II. Trial Court Proceedings on Motion
A. Evidentiary Hearings
The parties filed a Joint Stipulation with the trial court, in which they
stipulated that EWW presented the “Final Offer” to Union’s negotiating team on
December 22, 2017. A copy of the “Final Offer” from the December 22, 2017
meeting, as well as a copy of what was presented to the bargaining unit members at
the January 11, 2018 meeting, were attached as exhibits. The former reflected both
Option 1 and Option 2; the latter reflected only the terms of Option 2. They further
stipulated that Union Defendants presented only Option 2 to the bargaining unit
members, who voted to approve that option. Employees offered the testimony of
Mr. Kiddo and Ms. Clay, both bargaining unit members, as well as Aaron
Stankiewiz, EWW’s Human Resources Manager and member of EWW’s
negotiating team. They also presented affidavits of other bargaining unit members
who supported the action and wanted a revote. Union Defendants presented the
9
testimony of Mr. Clark and documentary evidence, including correspondence with
EWW’s management regarding the Final Offer, and the PLRB Hearing Officer’s
Proposed Decision and EWW’s exceptions thereto. Union Defendants questioned
the trial court’s jurisdiction given the decisions of the PLRB Hearing Officer and
Chairperson Abelson, which they contended Employees were attempting to
collaterally attack.
Relevantly, Mr. Kiddo testified consistently with the facts averred in the
Complaint regarding the post-employment subsidy and its availability to EWW’s
other employees and his request that Local 2206’s new CBA contain that benefit.
For Mr. Kiddo, the post-retirement subsidy would likely result in his receiving an
additional $25,000 to $28,000. Unlike prior negotiation teams, Mr. Kiddo
explained, Union’s negotiation team did not keep him or any other bargaining unit
member informed of the negotiations. He further described the January 11, 2018
meeting as being “chaotic” when the topic of the post-employment subsidy came
up. (Feb. 26, 2019 Hr’g Tr. at 33, R.R. at 378a.) Mr. Kiddo indicated that one or
more union officials said that members would lose their pensions or may have to
work nights and weekends if they pursued the post-employment subsidy, and
another called him selfish for wanting that benefit. According to Mr. Kiddo, the
bargaining unit members were never informed that EWW had presented two
options in the Final Offer or that EWW was willing to agree to a post-employment
subsidy. Mr. Kiddo testified that this information would have affected his vote
because he would have voted for Option 1. He stated he voted against Option 2
because he believed Union Defendants could have done better, particularly because
EWW had agreed to provide the post-employment subsidy to EWW’s non-
unionized administrative employees and those employees represented by the local
10
Teamsters.8 Mr. Kiddo testified that, upon receiving the letter from EWW in
February 2018, he and 12 other members contacted Union asking for a revote on
the Final Offer as presented on December 22, 2017, a request that was denied. On
cross-examination, Mr. Kiddo acknowledged that approving Option 1 would mean
that employees hired after January 1, 2018, would not have the defined benefit
pension plan, but instead would have a defined contribution retirement plan. This
would result in those employees having different terms and conditions of
employment than he has, but Mr. Kiddo stated that he had different terms and
conditions than those who had worked longer for EWW than he had due to
changes in the CBAs.
Ms. Clay, a member of the bargaining unit, testified that she, too, wanted the
post-employment subsidy in the new CBA. She explained that Union did not
update the bargaining unit regarding the negotiations and, when she asked a
member of the negotiating team about the desired benefit, the team member would
not discuss the ongoing talks. Ms. Clay testified that the way Option 2 was
presented at the January 11, 2018 ratification meeting reflected that it was EWW’s
final offer and that if it was not accepted, worse offers would be forthcoming.
According to Ms. Clay, the meeting was uncomfortable, others were frustrated, and
she felt pressured to vote. When Mr. Kiddo asked about the post-employment
subsidy, Ms. Clay became upset because she really wanted that benefit to be
included in the new CBA. Ms. Clay, like Mr. Kiddo, testified that there was no
mention that EWW had included two options in its Final Offer and that the other
8
It also appears that the post-employment subsidy is a benefit that the City offers to some
of its unionized employees. Mr. Kiddo testified that this benefit is in the City’s CBA with Local
2206, which covers Mr. Procious. (R.R. at 443a.)
11
option included the post-employment subsidy. Had that information been provided
to her, Ms. Clay indicated it would have affected her vote. She voted against
Option 2 because she wanted Union to fight back and was distressed by what
happened at the meeting. Ms. Clay explained that, upon learning of EWW’s full
Final Offer, she was surprised that both options were not presented at the meeting
given that it did not require employees to work nights and weekends or for
employees to forgo their retirement benefits. Ms. Clay joined in Mr. Kiddo’s
request for a revote.
Mr. Stankiewiz testified that he had negotiated multiple contracts for EWW
and that EWW’s Final Offer to Union included the two options. Upon learning
that only Option 2 was presented to the bargaining unit for ratification, Mr.
Stankiewiz explained that EWW’s management chose not to present the agreement
to EWW’s Board because, if the Board voted to approve that option, it would be
binding on EWW and the bargaining unit. Mr. Stankiewiz testified that he would
receive the post-employment subsidy benefit, and that Union’s and the City’s
CBA, which applies to Mr. Procious, as well as the CBA between EWW and its
other unionized employees, include that benefit. He acknowledged that, during the
negotiations, EWW proposed that employees work nights and weekends, but that
was not in the Final Offer. In addition, Option 2, presented at the December 22,
2017 meeting, was the first time that EWW presented an offer that did not alter the
existing pension plan. Mr. Stankiewiz testified about the difference between the
two types of retirement plans at issue in Option 1 and Option 2, and that, under
Option 1, a person hired after January 1, 2018, would not have the option to join
the existing defined benefit pension plan.
12
On Union Defendants’ behalf, Mr. Clark explained the relationship between
District Council 85, of which he is the chief negotiator, and Local 2206, with the
former being the sole bargaining agent for the latter. Mr. Clark described the
process for negotiating CBAs, including that while employer proposals need not be
presented to the bargaining unit for approval, tentative agreements should be
presented, and if no tentative agreement can be reached, the employer’s final offer
will be presented. He testified that if the bargaining unit did not approve a
tentative agreement or final offer, the negotiating team would meet with the
employer again and renew negotiations.
Mr. Clark testified about his understanding of what a final offer is generally
and of the Final Offer presented by EWW at the December 22, 2017 meeting. He
explained “[a] final offer is generally when we’ve negotiated for quite some time
and we are just locked up and can’t move any further on anything and the
employer has decided they’re [sic] going to come forward with their [sic] last, best
or final offer during negotiations.” (March 15, 2019 Hr’g Tr. at 15, R.R. at 479a.)
Mr. Clark explained the differences between Option 1 and Option 2, that the Final
Offer was worded to allow Union to decide which option to present to the
members, and that, after EWW presented the Final Offer at the December 22, 2017
meeting, the negotiating team caucused and decided that it would present only
Option 2 to the bargaining unit because it preserved the defined benefit pension
plan. The Final Offer presented to the negotiating team stated “the Union will
select one of the following options to apply to all of its members.” (R.R. at 642a.)
Mr. Clark stated Union informed EWW it would be taking Option 2 to the
membership and asked EWW to revise the offer so that only Option 2 was
included. According to Mr. Clark, there was no objection at that meeting to their
13
only presenting one part of the Final Offer to the membership and, in fact, they
shook hands on it. Mr. Clark indicated he subsequently received an email from
EWW’s chief negotiator with a reformatted offer that included both Option 1 and
Option 2, and the email stated that EWW’s Final Offer included both options and
EWW was allowing the bargaining unit to decide which option to accept. Mr.
Clark stated he was never confused about presenting only a part of the Final Offer
and the only confusion in that regard was on EWW. Because the negotiating team
did not agree that both options in the Final Offer had to be presented to the
membership, Mr. Clark testified they presented Option 2 to the membership for
approval on January 11, 2018.
Regarding the January 11, 2018 meeting, Mr. Clark explained that, because
no tentative agreement had been reached, he advised the bargaining unit that he
would stay at the meeting as long as needed to answer any questions and to make
them comfortable to vote. He denied making any recommendations regarding
which way they should vote and, when the post-employment subsidy was
discussed, Mr. Kiddo became agitated about the benefit not being in the presented
offer. Mr. Clark acknowledged that he raised his voice during the meeting, but
denied making threats. Mr. Clark stated he advised the membership that the
negotiating team chose not to pursue the post-retirement subsidy because it would
have “done away with the defined benefit plan for new hires,” a price they thought
was too great for that benefit. (March 15, 2019 Hr’g Tr. at 29, R.R. at 493a.)
Ultimately, 15 of 18 members present voted to approve Option 2, but,
notwithstanding Union’s ratification of that contract, Mr. Clark testified that EWW
had not yet voted to approve or reject the contract. He acknowledged receiving the
request for a revote on the Final Offer and explained that because EWW had not
14
approved the new contract, membership’s wages have been frozen since December
21, 2017, although any increase would be retroactive.
Finally, Mr. Clark expressed his understanding of the AFSCME Constitution
and what must be presented to bargaining unit members during the negotiation of a
CBA. He explained that this document did not require the negotiating team to
bring “proposals” that the team finds unacceptable to the bargaining unit. This
interpretation, he asserted, was consistent with the interpretation found in the
Abelson Decision. Mr. Clark agreed on cross-examination that he is required to be
honest with and act in good faith and fairness toward the bargaining unit, and that
he cannot defraud members, make misrepresentations regarding an employer’s
offers, and may not hide relevant and important information from members when
they meet to vote on a contract. Mr. Clark indicated it would be inappropriate to
present something that had not “been put on the table by the employer” or to
present “whatever [the negotiating team] want[ed] to present” for voting. (Id. at
42, R.R. at 506a.) He acknowledged that Option 1 contained terms and conditions
of employment that would be relevant to the bargaining unit’s decision on
approving or rejecting the offer presented to them. Mr. Clark testified that he
owed a duty to all workers covered by the CBA, not only Union members, and
observed that, even if the post-employment subsidy was included in this CBA, that
did not guarantee it would be included in subsequent CBAs.
Mr. Kiddo testified in rebuttal. He stated the bargaining unit members’ trust
and confidence in Union to adequately protect their interests has been reduced after
the negotiating team did not present all of EWW’s Final Offer. However, he
acknowledged that he was unsure if granting the injunction would remedy that
harm. (Id. at 61-62, R.R. at 525a-26a.)
15
B. Trial Court’s Opinion and Order
Following the hearings, the trial court issued its March 19, 2019 Order,
granting the Motion and enjoining EWW from voting on and entering into a
contract with Union until the Employees’ action was resolved. In its subsequently
filed opinion, the trial court explained its reasons for granting the Motion.
The trial court found Union Defendants’ arguments that the trial court lacked
jurisdiction based on the PLRB decision unavailing because individual claims by
union members against their union for breach of the duty of fair representation do
not fall within the PLRB’s jurisdiction. (Trial Ct. Op. at 37-38 (citing Case v.
Hazelton [sic] Area Educ. Support Pers. Ass’n (PSEA/NEA), 928 A.2d 1154, 1161
(Pa. Cmwlth. 2007)).) The trial court then explained how Employees had
established the six requirements for obtaining a preliminary injunction.9 The trial
9
A party seeking the preliminary injunction is required to show that:
(1) “an injunction is necessary to prevent immediate and irreparable harm that
cannot be adequately compensated by damages”;
(2) “greater injury would result from refusing an injunction than from granting it,
and, concomitantly, that issuance of an injunction will not substantially harm
other interested parties in the proceedings”;
(3) “a preliminary injunction will properly restore the parties to their status as it
existed immediately prior to the alleged wrongful conduct”;
(4) “the activity it seeks to restrain is actionable, that its right to relief is clear, and
that the wrong is manifest, or, in other words, must show that it is likely to
prevail on the merits”;
(5) “the injunction it seeks is reasonably suited to abate the offending activity”;
and
(6) “a preliminary injunction will not adversely affect the public interest.”
(Footnote continued on next page…)
16
court concluded that Employees had established a clear right to relief and were
likely to prevail on the merits, noting that they need not prove the merits of their
case but only need to present substantial legal questions that would need to be
resolved to determine the parties’ rights. (Id. at 35.) The trial court explained that
Employees presented evidence that “strongly suggest[ed]” that Union Defendants
concealed information from and actively misled bargaining unit members at the
January 11, 2018 meeting regarding the terms of EWW’s Final Offer, presented an
“altered” offer that was different from the Final Offer EWW had presented, and
misled members regarding the potential consequences of their rejecting the offer
presented at the meeting. (Id.) The trial court was unpersuaded by Union
Defendants’ arguments that there was no clear right to relief here due to the
Abelson Decision because that decision did not address the claims that were before
the trial court. (Id. at 37-38 (citing Abelson Decision at 4 n.110).) The trial court
also questioned the reasonableness of the Abelson Decision.
Second, the trial court held that Employees established that immediate and
irreparable harm that could not be compensated by damages would occur if the
_____________________________
(continued…)
Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d 995, 1001 (Pa. 2003).
10
In footnote 1, Chairperson Abelson explained he would
not be addressing the content of the offer(s) submitted by management, nor
[would he] be addressing the merits of those offers or the correctness of the
union’s bargaining team in rejecting one of the options and agreeing to
recommend the other option to the membership for ratification. The Judicial
Panel will not insert itself into the collective bargaining process. The sole issue
before [him] is whether the accused parties violated the [AFSCME] Constitution
when it failed to bring the entire final offer (Option 1 and Option 2) to the
membership for their vote.
(R.R. at 263a.)
17
preliminary injunction was not granted. It agreed with Employees that allowing
EWW to ratify Option 2 “would, in effect, undermine the collective bargaining
process, given the apparent breach of the duty of fair representation which led to
the vote by union members in favor of” that contract. (Id. at 38.) Further, the trial
court explained EWW’s ratification would require Employees to work under the
less favorable conditions and terms of Option 2 and would “foreclose [Employees]
from seeking relief, including the opportunity to revote on the Final Offer.” (Id.)
The trial court rejected Union Defendants’ arguments because it was unlikely
EWW’s Board would refuse to ratify Option 2 given that Union would likely bring
an action under PERA for doing so, an undermining of the collective bargaining
process would occur, and the members’ continued loss of confidence in Union
constituted non-economic damages.
Third, the trial court concluded Employees established that greater harm
would result from refusing the injunction and that the other interested parties
would not be substantially harmed because not enjoining EWW would result in the
execution of a CBA that was the result of “inadequate representation.” (Id. at 39.)
In addition, not granting the preliminary injunction, the trial court held, would limit
“the opportunity for full and fair discussion between union members and union
representatives of [EWW’s] Final Offer and for a meaningful vote on the entirety
of [that] Final Offer.” (Id.) Thus, the trial court explained, “[m]aintaining the
status quo will not substantially harm other interested parties in the proceedings.”
(Id.)
On the final three requirements for obtaining a preliminary injunction, the
trial court found that Employees met their burden of proof. The trial court held
that preventing EWW from ratifying Option 2 properly restores the parties to the
18
status quo that existed prior to the alleged wrongful conduct because “[t]he parties
will continue to work under the terms of an expired CBA which the parties have
honored as controlling the terms of employment.” (Id.) It also concluded that the
preliminary injunction is reasonably suited to abate the offending activity by
preventing EWW from ratifying Option 2 and allowing the parties to litigate their
claims fully and for Employees to seek redress for the alleged violation of their
right to fair representation. Finally, the trial court held the public interest would
not be adversely affected by granting the preliminary injunction because there was
no evidence of adverse impact on the public and enjoining EWW would promote
the public interest by allowing Employees to resolve their claims, consistent with
their right to fair representation.
Union Defendants appealed and, at the direction of the trial court, filed a
Concise Statement of Errors Complained of on Appeal (Statement) pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b), Pa.R.A.P. 1925(b). The trial
court issued its Rule 1925(a) opinion indicating Union Defendants’ appeal was
without merit for the reasons set forth in its earlier opinion. The matter is now
ready for this Court’s consideration.
III. Union Defendants’ Appeal
A. General Legal Principles
Before addressing the parties’ arguments, we set forth the legal standards
applicable to our review of the grant or denial of a preliminary injunction. An
appellate court reviews an order granting or denying a preliminary injunction for
19
an abuse of discretion.11 Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount,
Inc., 828 A.2d 995, 1000 (Pa. 2003). Under this standard, the appellate court does
not inquire into the controversy’s merits but examines the record “to determine if
there were any apparently reasonable grounds for the action of the court below.”
Id. (quoting Roberts v. Bd. of Dirs. of Sch. Dist. of Scranton, 341 A.2d 475, 478
(Pa. 1975)). “Only if it is plain that no grounds exist to support the decree or that
the rule of law relied upon was palpably erroneous or misapplied will we interfere
with the decision of the [trial court].” Roberts, 341 A.2d at 478. The “apparently
reasonable grounds” standard applies where a trial court has granted, as here, a
prohibitory injunction.12 City of Phila. v. Dist. Council 33, Am. Fed’n of State, Cty.
& Mun. Emps., AFL-CIO, 598 A.2d 256, 259 (Pa. 1991).
“A preliminary injunction is an extraordinary remedy.” Hart v. O’Malley,
676 A.2d 222, 223 n.1 (Pa. 1996). There are six “essential prerequisites” that a
party seeking a preliminary injunction must establish in order for a court to issue
the injunction. Summit Towne Centre, Inc., 828 A.2d at 1001 (internal quotation
marks omitted). If any are unmet, the injunction will not be granted. Id. As
described by our Supreme Court, the party seeking the preliminary injunction is
required to show that:
(1) “an injunction is necessary to prevent immediate and irreparable
harm that cannot be adequately compensated by damages”;
11
An appellate court’s “scope of review in preliminary injunction matters is plenary.”
SEIU Healthcare Pa. v. Commonwealth, 104 A.3d 495, 501 n.7 (Pa. 2014).
12
A prohibitory injunction enjoins a person or entity from taking action that would
change the status quo, but a mandatory injunction requires a person or entity to take positive
action to preserve the status and is subject to stricter scrutiny. Mazzie v. Commonwealth, 432
A.2d 985, 988 (Pa. 1981).
20
(2) “greater injury would result from refusing an injunction than from
granting it, and, concomitantly, that issuance of an injunction will
not substantially harm other interested parties in the proceedings”;
(3) “a preliminary injunction will properly restore the parties to their
status as it existed immediately prior to the alleged wrongful
conduct”;
(4) “the activity it seeks to restrain is actionable, that its right to relief
is clear, and that the wrong is manifest, or, in other words, must
show that it is likely to prevail on the merits”;
(5) “the injunction it seeks is reasonably suited to abate the offending
activity”; and
(6) “a preliminary injunction will not adversely affect the public
interest.”
Id.B. Parties’ Arguments
On appeal, Union Defendants argue the trial court abused its discretion in
granting the Motion and issuing the preliminary injunction because there are no
reasonable grounds to conclude Employees established any of the requirements for
obtaining that relief. They contend that: Employees’ alleged harm is speculative
and can be remedied by monetary damages; greater injury will occur from the
denial of the injunction because the members of the bargaining unit have been
working under the terms and conditions of the Prior CBA, which has resulted in a
wage freeze; and Employees are not likely to prevail on the merits because internal
union affairs should be governed by the union and there is no obligation for Union
Defendants to have acted in a different way under either PERA or the AFSCME
Constitution. Union Defendants also assert the trial court’s Order went beyond
what was necessary to abate the offending activity by precluding EWW’s Board
from engaging in any additional collective bargaining. Further, they argue the
21
Order infringes upon the decisions of the PLRB’s Hearing Officer and Chairperson
Abelson, and Employees’ collateral attack on those determinations should not be
sanctioned as it alters the status quo and adversely affects the public’s interest by
undermining PERA and ensuring internal union governance.
The PLRB filed an amicus brief in favor of reversing the trial court’s Order.
The PLRB contends that the Order precludes the PLRB’s ability to enforce the
Hearing Officer’s Decision and, more importantly, PERA, where EWW was found
to have committed multiple unfair labor practices. This result, the PLRB asserts,
adversely affects the public’s interest and results in substantial harm to the
interested parties and, therefore, the trial court’s Order should be reversed.
Employees respond there was no abuse of discretion because reasonable
grounds support the trial court’s Order. They assert they will suffer immediate and
irreparable harm because they have lost the meaningful ability to vote on Option 1,
the collective bargaining process would be undermined, and their confidence in
Union Defendants will be harmed if the injunction is overturned. Employees
maintain greater injury will occur because they will have lost the ability to revote
on EWW’s whole Final Offer, neither Union nor EWW suffer any harm, and there
will be no adverse effect on the public’s interest. Employees contend the status
quo was the situation prior to the January 2018 ratification meeting and allowing
EWW’s Board to vote on Option 2 would alter that status quo, which makes the
trial court’s Order reasonably suited to abate the offending activity. They further
argue that they sufficiently demonstrated a clear right to relief because substantial
legal questions exist as to whether there was a breach of the duty of fair
representation and neither those questions, nor the trial court’s authority to resolve
22
those questions, are affected by the determinations made by the PLRB’s Hearing
Officer or Chairperson Abelson.13
C. Discussion
Because Union Defendants assert that Employees did not satisfy any of the
six prerequisites for obtaining a preliminary injunction, we begin our analysis with
the first of those prerequisites: that the party seeking a preliminary injunction must
establish that “an injunction is necessary to prevent immediate and irreparable
harm that cannot be adequately compensated by damages.” Id. In reviewing this
prerequisite, we are mindful that the alleged harm or consequences must not be
speculative in nature and “speculative considerations . . . cannot form the basis for
issuing [a preliminary injunction].” Novak v. Commonwealth, 523 A.2d 318, 320
(Pa. 1987) (citation omitted).
Union Defendants argue that Employees had to show by “concrete
evidence” that they would suffer immediate and irreparable harm that was not
speculative and not economic in nature. (Union Defendants’ Brief (Br.) at 43
(quoting Summit Towne Centre, Inc., 828 A.2d at 1003).) They maintain that a
review of the evidence reveals that there were no reasonable grounds for the trial
court to have found that Employees’ alleged harm met this standard. Instead,
Union Defendants assert, Employees’ arguments presume that the Board would
approve Option 2 and that, if they prevail in their action and obtain the right for a
revote, the membership would ratify Option 1, both of which are speculative in
nature. According to Union Defendants, the trial court’s conclusion that EWW
would ratify Option 2, resulting in immediate and irreparable harm, is not
13
EWW has not filed a brief in this matter.
23
supported by the record. Further, they argue, there is no evidence as to why
Employees would be irreparably harmed if the revote requested in the Complaint
was delayed, citing Smith v. Bowers, 337 F. Supp. 2d 576, 592 (S.D.N.Y. 2004), or
that Employees would suffer anything more than economic harm that could be
compensated with damages. Finally, to the extent Employees relied on their
alleged loss of confidence in Union to adequately represent them, Union
Defendants argue that Mr. Kiddo acknowledged that he did not know if the grant
of the injunction would restore his trust in Union. (Union Defendants’ Br. at 48-49
(citing R.R. at 524a-26a).)
Employees respond that immediate and irreparable harm will occur if EWW
ratifies Option 2 because it will change the terms of a CBA without bargaining unit
support and will undermine the collective bargaining process. Dist. Council 33,
598 A.2d at 260. Employees also argue the injunction was proper to stop the
ratification of Option 2, which was the result of that unlawful conduct, namely
presenting only part of EWW’s Final Offer, despite knowing EWW intended both
options to be presented. See Pa. Gaming Control Bd. v. City Council of Phila., 928
A.2d 1255, 1258 (Pa. 2007) (enjoining the inclusion of a ballot question that would
essentially prohibit locating licensed gaming facilities within particular areas of the
City of Philadelphia as being unlawful because the city and the voters could not
interfere with the Pennsylvania Gaming Control Board’s (Board) sole authority
over the licensing and locating of gaming facilities); Hempfield Sch. Dist. v.
Election Bd. of Lancaster Cty., 574 A.2d 1190, 1193 (Pa. Cmwlth. 1990)
(enjoining the local election board’s inclusion of a nonbinding referendum on the
school district’s decision to construct a new high school as being per se immediate
irreparable harm where the election board lacked the authority to authorize the
24
referendum). Employees assert these cases stand for the proposition that where
“the threatened harm is a vote procured through unlawful conduct, then an
injunction is proper to prevent the vote from taking place.” (Employees’ Br. at 17).
These actions have resulted in the loss of confidence in Union and have “upset the
‘peaceful labor of union members,’ [a] harm [that is] not compensable by
damages.” (Employees’ Br. at 19 (quoting Trial Ct. Op. at 39).) Further, allowing
the Board to vote on Option 2, Employees contend, “foreclose[s] Employees’
ability to revote on EWW’s Final Offer and forever alter[s] the parties’ posture.”
(Id.) All of these harms, Employees contend, are non-economic and cannot be
compensated by monetary damages.
In their reply brief, Union Defendants argue the cases Employees cite are
distinguishable. In Hempfield School District, the injunction was properly granted
because there was no legal authority for the local election board to include a
nonbinding referendum on the ballot. Pennsylvania Gaming Control Board is
inapplicable, Union Defendants argue, because the proposed ordinance that would
allow Philadelphia’s electorate to usurp the Gaming Control Board’s statutory
authority to locate licensed facilities within the city was unlawful and, therefore,
the injunction preventing the ordinance from being voted upon was properly
granted. In contrast to these cases, Union Defendants maintain, there can be no
question regarding the Board’s authority under PERA to vote on Option 2, in
accordance with the Hearing Officer’s Decision, as the Board is EWW’s governing
body, authorized to enter into contracts on EWW’s behalf. Union Defendants
argue District Council 33 does not support Employees’ claim of immediate and
irreparable harm because, in that case, the public employer was preliminarily
enjoined from enacting an ordinance that would have unilaterally reduced the
25
union members’ pension benefits, and no such unilateral action occurred here. In
fact, they maintain, District Council 33 actually supports the reasonableness of
Union Defendants’ rejection of Option 1 because, like the ordinance in District
Council 33, that option would have diminished the retirement benefits of part of
the bargaining unit.
In considering the parties’ arguments on whether this requirement was
satisfied, we remain cognizant that a preliminary injunction is an “extraordinary
remedy,” Hart, 676 A.2d at 223 n.1, that Employees had to demonstrate, through
“concrete evidence,” that the “injunction is necessary to prevent immediate and
irreparable harm that cannot be adequately compensated by damages,” Summit
Towne Centre, Inc., 828 A.2d at 1001-02, and that the harm is not speculative in
nature, Novak, 523 A.2d at 320. Employees have argued, and the trial court found,
that Employees would be forced to work under less favorable employment terms as
to wages and benefits if the Board is not enjoined from ratifying Option 2 pursuant
to the Hearing Officer’s Decision. Our review, however, reveals that these alleged
harms are speculative and/or economic in nature and, therefore, are insufficient to
support the grant of the Motion.
First, there is nothing in the Hearing Officer’s Decision that requires the
Board to approve Option 2, only that it vote on Option 2. Employees speculate
that the Board will ratify Option 2, rather than reject that option and return to the
bargaining table, as the basis of all of their alleged harms. But “[s]peculative
considerations . . . cannot form the basis for issuing a [preliminary injunction].”
Novak, 523 A.2d at 320 (first alteration added); Reed v. Harrisburg City Council,
927 A.2d 698, 704 (Pa. Cmwlth. 2007). The standard for obtaining a preliminary
injunction requires there to be “actual proof of irreparable harm,” not speculation
26
or conjecture as to a potentially adverse result. Reed, 927 A.2d at 706 (emphasis
omitted). “Speculative” can be defined as “theoretical,” and “conjecture” as “the
formation or expression of a[] . . . theory without sufficient evidence for proof” or
a “guess.”14 For example, claims that something may happen in the future if the
injunctive relief is denied is speculative and insufficient to support the grant of a
preliminary injunction. See Yarmoski v. Lloyd, 531 A.2d 1169, 1171-72 (Pa.
Cmwlth. 1987) (holding that the alleged harm, the potential that the petitioner
“may be sued . . . at some future point” if the preliminary injunction was denied,
was speculative and could not be considered immediate and irreparable harm)
(emphasis added). Like the petitioner’s allegations in Yarmoski, Employees’
allegations of immediate and irreparable harm are based on what may happen
when EWW’s Board votes on whether to ratify Option 2, which the Board is not
required to ratify by the Hearing Officer’s Decision. Thus, the premise of
Employees’ arguments, the ratification of Option 2, is theoretical, making it a
speculative consideration that should not be the basis for granting a preliminary
injunction. Novak, 523 A.2d at 320.
Second, to the extent Employees assert that Option 2’s benefits and wages
are less favorable than those in Option 1, such harm is economic in nature and can
be remedied by damages.15 Although Employees maintain they will be required to
work under less favorable conditions if Option 2 is ratified, the bargaining unit has
been working under the terms and conditions set forth in the Prior CBA. Option 2
includes an increase in wages, which while less than those available in Option 1, is
14
See https://www.dictionary.com/browse/speculative#, and https://www.dictionary.com/
browse/conjecture# (last visited July 31, 2020).
15
Under either Option 1 or Option 2, the bargaining unit members will be entitled to the
increase in their wages retroactively.
27
more than what the bargaining unit is receiving under the Prior CBA. More
importantly, the pertinent differences between Option 1 and Option 2 is the
different level of wage increases over the term of the CBA and the availability of
the post-employment subsidy, both of which are monetary in nature and can be
remedied through the payment of damages should Employees prevail on their
Complaint. Similarly, ratification of Option 2, which maintains the defined benefit
pension plan, results in no change to the bargaining unit members’ pensions,
including those who were hired after January 2018, while Employees’ litigation is
pending and is similar to the Prior CBA under which they have been working.
In sum, Employees’ arguments in these regards are insufficient because they
are based on speculation and/or economic harms that can be remedied by damages.
This is particularly evident because the parties have agreed that if Employees are
successful in their action, and if the bargaining unit, a majority of which have not
joined Employees in this litigation, votes for Option 1 instead of Option 2, and if
EWW ratifies Option 1, the relevant terms of Option 1, with the exception of the
change in retirement plan for the employees who were hired after the expiration of
the Prior CBA and prior to the ratification of Option 1, can be applied
retroactively. Thus, the alleged harms cited above do not support the conclusion
that non-speculative, irreparable, immediate harm that cannot be remedied by
damages would occur if the injunction was denied.
We now turn to the two non-economic harms alleged. The first, that
Employees’ confidence in Union Defendants has been diminished, thereby
undermining, in Employees’ view, the collective bargaining process, is not
persuasive since Mr. Kiddo acknowledged that granting the injunction was not
likely to remedy this harm. (March 15, 2019 Hr’g Tr. at 61-62, R.R. at 525a-26a.)
28
The second is Employees’ assertion, which the trial court found persuasive, that
allowing the Board to ratify Option 2 would preclude a future vote on the complete
Final Offer should Employees prevail. However, Employees did not present any
“concrete evidence,” Summit Towne Centre, 828 A.2d at 1002, indicating how or
why the Board’s ratification of Option 2, which is not required by the Hearing
Officer’s Decision, would preclude the bargaining unit members from voting on a
complete Final Offer if Employees are successful in their action. Thus, they did
not establish the requisite level of harm that warrants the grant of the extraordinary
relief of a preliminary injunction.
Further, the appropriate remedy for a breach of the duty of fair
representation varies depending on the nature of the particular breach. Vaca v.
Sipes, 386 U.S. 171, 195 (1967). In Smith, the union members who filed the
breach of the duty of fair representation claim sought, like Employees do here, a
revote on the agreement and a preliminary injunction to stop the implementation of
the collective bargaining agreement. 337 F. Supp. 2d at 579. The preliminary
injunction was denied, allowing the agreement to go into effect and the court, in
denying the preliminary injunction, noted the union members had not established
that irreparable harm would result in delaying the revote and implementation of the
agreement because, although the ultimate remedy might be more complex to
implement should they prevail, it could be done. Id. at 592. Here, although
Employees may question how the remedy could be implemented if Option 2 is
ratified, they prevail, and Option 1 is subsequently ratified, the fact that
implementing any remedy would be challenging or more complex if the
preliminary injunction is denied does not mean there is irreparable, immediate
harm. Id. Further, as discussed above, the harms caused by allowing EWW’s
29
Board to vote on and potentially ratify Option 2 now, rather than waiting for the
resolution of this litigation which may result in the ratification of Option 1, are
economic and can be remedied by damages. Thus, these reasons also support the
conclusion that non-speculative, irreparable, immediate harm that cannot be
remedied by damages would not result if the injunction was denied.
Finally, Employees argue that Pennsylvania Gaming Control Board,
Hempfield School District, and District 33 support the conclusion that immediate
and irreparable harm will occur if EWW’s Board was to ratify Option 2, but such
arguments are misplaced. In Pennsylvania Gaming Control Board, the Gaming
Control Board (Board) sought a preliminary injunction to prevent the City of
Philadelphia (Philadelphia) from submitting a ballot question asking whether the
home rule charter should be amended to prohibit the location and licensing of
gaming facilities in certain places after the Gaming Board had approved two slot
machine licenses in Philadelphia. The Supreme Court granted injunctive relief,
rejecting Philadelphia’s argument that the injunction would be merely advisory as
no vote had taken place, holding that the vote itself was unlawful because
Philadelphia, and its voters, had no right to even consider the location of a licensed
gaming facility because such issue remained within the Gaming Board’s sole
authority. Pa. Gaming Control Bd., 928 A.2d at 1265. In Hempfield School
District, a school district sought to enjoin a county election board from including a
nonbinding referendum on a ballot asking if the voters agreed with the school
district’s plan to construct a new high school on the basis that the election board’s
actions were unlawful. This Court, on appeal from the denial of the injunction,
reversed because the election board lacked any legal authority to place the
referendum on the ballot. Hempfield Sch. Dist., 574 A.2d at 1192-93. The actions
30
of the election board which were an unlawful attempt to infringe upon the school
district’s board of directors’ authority, we held, constituted per se immediate and
irreparable harm. Id. at 1193. Unlike in Pennsylvania Gaming Control Board and
Hempfield School District, the Board is not exceeding its authority were it to ratify
Option 2 on EWW’s behalf. In fact, the Board’s authority to act for EWW is
unquestioned. Therefore, the bases for the grant of injunctive relief in those cases
is not present here.
We also agree with Union Defendants that District Council 33 provides little
guidance to the circumstances here. In that case, the union sought a preliminary
injunction to preclude Philadelphia’s enforcement of a city ordinance that
unilaterally changed the pension plan for Philadelphia’s employees, including
union members, by reducing the pension benefit and making it more difficult to
become eligible for a pension. 598 A.2d at 257-58. After the court of common
pleas granted the preliminary injunction and this Court affirmed, Philadelphia
appealed to the Supreme Court. That Court, too, affirmed, citing the evidence that
unilateral enforcement of the ordinance “would result in an immediate diminution
of benefits to [union] members,” which would have affected the union’s
membership because no one “would have any use for a union powerless to enforce
its current collective bargaining unit.” Id.at 260. District Council 33 does not
require a different result here. That matter involved an employer’s unilateral
change to the bargaining unit members’ pension plans, not a challenge to a union’s
actions during the ratification process. Further, the union there established that
irreparable harm, the unilateral change of the bargaining unit members’ pension
plans and corresponding negative consequences to the union’s membership, would
occur absent the grant of the preliminary injunction. In contrast, the vote by
31
EWW’s Board on ratifying Option 2, whether it is approved or rejected, will not
change the bargaining unit’s pension plans because it was only Option 1 that
involved a change to those plans or affected Union’s membership, and Employees
have not established non-speculative, immediate and irreparable harm that cannot
be remedied by monetary damages will occur in the absence of the preliminary
injunction.
Under these particular circumstances and for the above reasons, there do not
appear to be reasonable grounds upon which the trial court could rely to find that
Employees established that they would suffer non-speculative, immediate and
irreparable harm that could not be compensated by damages. Should Employees
prevail in their duty of fair representation case, there is no indication that they
cannot be put in the situation they would have been had EWW not voted on Option
2. Indeed, if Option 2 is ratified, even if it is ultimately set aside in favor of Option
1, the current bargaining unit members will obtain the benefit of the salary
increases set forth in Option 2 and new employees will continue to be enrolled in
the defined pension plan until Option 1 is ratified, if that occurs. Thus, the trial
court abused its discretion in holding that Employees satisfied this requirement,
and, because all of the requirements must be established in order to obtain a
preliminary injunction, they did not meet their burden of proving their entitlement
to that relief.16
16
Because of our disposition, it is not necessary to address whether Employees satisfied
any of the other requirements.
32
IV. Conclusion
Because we conclude there are not reasonable grounds in the record to
support the conclusion that Employees would suffer from irreparable, immediate
harm that was not speculative and could not be remedied by damages, the trial
court abused its discretion in granting the Motion. Accordingly, we reverse.
_____________________________________
RENÉE COHN JUBELIRER, Judge
33
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Kiddo, Joan Hordusky, :
Mike Dzurko, Christine Arnone, :
Jennie Clay, Madelyn Groover, :
Melissa Guzowski and Jeff Granger :
:
v. : No. 468 C.D. 2019
:
American Federation of State, County :
and Municipal Employees, Local 2206; :
American Federation of State, County :
and Municipal Employees, District :
Council 85; Randy Procious in his :
official Capacity; Shane Clark in his :
official Capacity; and Erie Water Works :
:
Appeal of: American Federation of :
State, County and Municipal Employees, :
Local 2206; American Federation of :
State, County and Municipal Employees, :
District Council 85; Randy Procious; and :
Shane Clark :
ORDER
NOW, August 3, 2020, the Order of the Court of Common Pleas of Erie
County, entered in the above-captioned matter, is REVERSED.
_____________________________________
RENÉE COHN JUBELIRER, Judge