DocketNumber: 80-3-791
Judges: O'Brien, Kauffman, Flaherty
Filed Date: 7/20/1981
Status: Precedential
Modified Date: 10/19/2024
OPINION OF THE COURT
This is an appeal from an order of the Commonwealth Court dated November 6, 1980, granting appellees preliminary injunctive relief from the Commonwealth’s enforcement of financial disclosure requirements pursuant to Executive Order 1980-18. The order stipulated that an appeal by the Commonwealth would not act as an automatic supersedeas under Pa.R.A.P. 1736. On November 7, 1980, the Commonwealth filed a notice of appeal to this Court pursuant to 42 Pa.C.S.A. §§ 723(a), 5105, and Pa.R.A.P. 311(a)(4), and requested a stay pursuant to Pa.R.A.P. 1732(b), which we denied.
Appellees commenced this action in Commonwealth Court on October 31,1980, by a Petition for Review and Motion for Temporary Restraining Order. Appellees are Nicholas Mazzie, an employee of the Department of Agriculture, and Council 13, American Federation of State, County and Municipal Employees, AFL-CIO (hereinafter, AFSCME), the exclusive bargaining agent for approximately 1,500 Commonwealth employees affected by Executive Order 1980-18. On November 3, 1980, the Joint Bargaining Committee of
On September 3, 1980, Governor Thornburgh issued a three-part Executive Order 1980-18, promulgating a Code of Conduct for certain state officials and employees of the executive branch. Part I of the Code, entitled “Restricted Activities”, prohibits certain activities which could present a conflict of interest with public employment. Part III, entitled “Criminal Charges”, contains procedures to be followed if persons subject to the Code are charged with criminal conduct. Part II of the Code requires certain executive branch officials and employees to file a “Statement of Financial Interest” disclosing five types of information: (1) in-state and out-of-state real property interests; (2) personal economic interests such as stocks and bonds; (3) interest in any business entity doing business with a government agency; (4) gifts in excess of $100 other than from family members; and (5) certain liabilities. In this action appellees contest only Part II of the Code requiring disclosures of financial information.
Persons subject to the filing requirements are the Governor, Lieutenant Governor, heads of agencies and departments, their deputy secretaries, and those at the level of bureau head and above. Also covered are those persons in sensitive positions such as procurement officers and purchasing agents, employees who administer grants and subsidies, employees who perform or review licensing and inspecting functions, those who render or review decisions concerning
Approximately 15,500 out of the 100,000 employees of the executive branch are subject to the filing requirement, including at least 4,500 members of collective bargaining units. Under terms of the Executive Order, the Financial Statements are not to be made available for commercial purposes but will be available upon request for “inspection by accredited reporters employed by general news organizations.” Failure to comply with disclosure requirements may be the basis for disciplinary action, including discharge.
The original deadline for filing the Statements of Financial Interest was set for November 3, 1980. On or about October 22, 1980, the Commonwealth began distributing financial disclosure forms to affected employees. Council 13, AFSCME, took the position that the Code’s disclosure requirement constituted a violation of the collective bargaining agreement between Council 13 and the Commonwealth. After meeting unsuccessfully with various Commonwealth officials to resolve the problem, on October 28 and November 3, 1980, the Union filed grievances with the Bureau of Labor Relations for the Commonwealth charging Governor Thornburgh with unilaterally altering the terms and conditions of employment without prior discussion or negotiation with Council 13 in violation of Article I, Section 1 and Article XXXVII, Section 6 of its collective bargaining agreement with the Commonwealth. On November 3, 1980, Council 13 filed an unfair labor practice charge with the Pennsylvania Labor Relations Board, charging respondents with violating Sections 803 and 1201(a)(4), (5), and (9) of the PERA, 43 P.S. §§ 1101.803, 1101.1201(a).
On October 31, 1980, appellees commenced this action in Commonwealth Court to enjoin the Commonwealth from requiring state employees under the Governor’s jurisdiction to comply with Executive Order 1980-18 and from taking disciplinary action against any employees who refuse to comply. On that same day, the court entered a temporary
On appeal the Commonwealth maintains that Commonwealth Court was not justified in enjoining enforcement of Part II of Executive Order 1980-18 since appellees failed to establish the necessary prerequisites for granting a preliminary injunction.
This Court has defined the general standard of review on appeal from the grant or denial of a preliminary injunction as follows:
“[0]n an appeal from the grant or denial of a preliminary injunction, we do not inquire into the merits of the controversy, but only examine the record to determine if there were any apparently reasonable grounds for the action of the court below. 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 Chancellor.”
We have deviated from this standard only in those cases where we were required to review the grant of a mandatory preliminary injunction. Generally, preliminary injunctions are preventive in nature and are designed to maintain the status quo until the rights of the parties are finally determined. There is, however, a distinction between mandatory injunctions, which command the performance of some positive act to preserve the status quo, and prohibitory injunctions, which enjoin the doing of an act that will change the status quo. This Court has engaged in greater scrutiny of mandatory injunctions and has often stated that they should be issued more sparingly than injunctions that are merely prohibitory. Thus, in reviewing the grant of a mandatory injunction, we have insisted that a clear right to relief in the plaintiff be established. Roberts v. School District of Scranton, supra; Zebra v. Pittsburgh School District, 449 Pa. 432, 296 A.2d 748 (1972); McMullan v. Wohlgemuth, 444 Pa. 563, 281 A.2d 836 (1971). However, since the preliminary injunction appealed from in this case is merely prohibitory, we will not review the merits of the controversy but will only determine if there were any apparently reasonable grounds to support that action and will reverse only if no such grounds exist. Bell v. Thornburgh, supra; Roberts v. School District of Scranton, supra.
In the Commonwealth Court petitioners made three basic arguments as to why they were entitled to relief: (1) the Governor has no inherent or statutory authority to promulgate a Code of Conduct and the Code is, in any case, pre-empted by the Ethics Act;
The court did not rule on petitioners’ substantive claims but instead premised its grant of injunctive relief on the third of these contentions concluding that petitioners have the right to pursue and exhaust their administrative remedies under their collective bargaining agreements or before the Labor Relations Board before complying with the financial disclosure provisions of the Code of Conduct.
It found as a matter of fact that a collective bargaining agreement exists between petitioners and the Commonwealth; that petitioners have filed a grievance with the Commonwealth pursuant to the grievance and arbitration machinery contained in the collective bargaining agreement; and that petitioners have filed a charge of unfair practice with the Pennsylvania Labor Relations Board charging the Commonwealth with violations of the Public Employe Relations Act.
The court stated that a status quo prohibitory injunction was necessary to allow petitioners an opportunity to challenge the financial disclosure provisions before the established administrative bodies. Further, it recognized that, because the forms require detailed financial information which would be available to the media upon request, petitioners’ privacy rights would be waived, for all practical purposes, once the forms were filed. Finally, the court reasoned that provisions of the Ethics Act would adequately protect the public against harm from conflict of interest activities until final disposition of the matter by the Commonwealth Court.
The Commonwealth contends the preliminary injunction should be vacated since the Code’s requirement of financial disclosure is not a required subject of collective bargaining between the Commonwealth and the unions. Thus, it impliedly argues that petitioners have no right to submit the issue to grievance and arbitration proceedings. It maintains the disclosure requirement is a matter of “inherent managerial policy” which Section 702 of the Public Employe Relations Act, 43 P.S. § 1101.702, specifically excludes from the bargaining requirement. Section 702 provides:
“Public employers shall not be required to bargain over matters of inherent managerial policy, which shall include but shall not be limited to such areas of discretion or policy as the functions and programs of the public employer, standards of services, its overall budget, utilization of technology, the organization structure and selection and direction of personnel. . . . ”
In addition, the Commonwealth asserts that its collective bargaining agreement with AFSCME expressly grants to the Commonwealth, as employer, the right to manage its operations in accord with applicable laws.
Appellees argue that promulgation of such a Code is not a matter of inherent managerial policy but rather a new term and condition of employment inasmuch as the Code contains penalty provisions which make financial disclosure a condition of employment. Moreover, appellees argue the financial disclosure requirement invades the privacy of employees which was heretofore protected by the collective bargaining agreement. Thus, they contend that Executive Order 1980-18 is a new term and condition of employment, and the Commonwealth’s failure to negotiate with the unions over imposition and implementation of this new term properly gave rise to an arbitrable grievance under the agreement.
In our view the threshold issue of whether the Code of Conduct is a matter of inherent managerial policy or is a new term and condition of employment should be determined in the first instance by the PLRB and the arbitrator. Pennsylvania labor policy not only prefers but requires the
In light of this explicit expression of legislative intent, our courts have been vigilant in protecting the arbitrator’s domain. We have ruled that, unless the contract expressly excludes a particular grievance from arbitration, the arbitrator first must be permitted to decide the appropriateness of the matter for arbitration. Pittsburgh Joint Collective Bargaining Committee v. City of Pittsburgh, 481 Pa. 66, 391 A.2d 1318 (1978); Board of Education of the School District of Philadelphia v. Philadelphia Federation of Teachers, supra.
We are, therefore, in accord with the Commonwealth Court’s decision which permits petitioners to exhaust their administrative remedies without filing financial disclosure forms.
“The [Pennsylvania Labor Relations] [B]oard is empowered, as hereinafter provided, to prevent any person from engaging in any unfair practice listed in Article XII of this Act. This power shall be exclusive and shall not be affected by any other means of adjustment or prevention that may have been or may be established by agreement, law, or otherwise.” (Emphasis added.)
Moreover, under Section 1501 of the PERA, 43 P.S. § 1101.1501, the PLRB may petition the Commonwealth Court to enforce its order concerning a Commonwealth employee:
“The board shall except where an employe of the Commonwealth is involved have power to petition the court of common pleas of any county wherein the unfair practice in question occurred, or wherein any person charged with the commission of any unfair practice resides or transacts business, for the enforcement of such order and for appropriate temporary relief or restraining order .... In the instance of the exception involving the said Commonwealth employes, the board shall file its petition in the Commonwealth Court.” (Emphasis added.)
In light of Section 1501, the Commonwealth maintains the General Assembly has designated the PLRB as the party who should seek redress from the courts even where temporary relief is sought. It argues that this procedure insures that a preliminary determination of the merit of a claim will be made by the PLRB before the courts become involved in a labor dispute. Thus, it contends, Commonwealth Court should not have granted injunctive relief on the petition of appellees.
Moreover, we do not agree with the Commonwealth’s interpretation of Section 1501. A close reading of that section, entitled “Judicial Relief”, makes it clear that Section 1501 authorizes the PLRB to seek an injunction in connection with its right to seek court enforcement of its order following a determination that an unfair labor practice has occurred. The section requires the PLRB to file with the court a record of the proceedings upon which its order was entered. This requirement clearly indicates that a PLRB determination will precede its petition for injunctive relief. Furthermore, the court is given the power to enter a “decree enforcing, modifying, and enforcing as so modified, or setting aside, in whole or in part, the Order of the Board.” This provision also clearly implies that a determination will precede the PLRB’s right to invoke the court’s jurisdiction.
Section 1401 of the PERA provides additional support for the view that the PLRB cannot claim exclusive authority to seek a status quo injunction prior to making a determination on an unfair practice charge. That section permits the PLRB to apply for injunctive relief before a determination is made, but this power is specifically limited to situations where the unfair labor practice allegedly occurred during
We conclude that there were reasonable grounds to support the Commonwealth Court’s grant of injunctive relief to petitioners pending arbitration of this dispute, and we will affirm the order of that court.
. A preliminary injunction of any kind should be granted only where the rights of the plaintiff are clear, the need for relief is immediate and injunctive relief is necessary to avoid injury which is irreparable and cannot be compensated for by damages. Township of South Fayette v. Commonwealth, 477 Pa. 574, 385 A.2d 344 (1978); Roberts v. School District of Scranton, 462 Pa. 464, 341 A.2d 475 (1975).
. The Public Officials Ethics Act, Act of October 4, 1978 (No. 170), P.L. 883, as amended, 65 P.S. § 401 et seq., proscribed certain conflict of interest activities, created a State Ethics Commission, and required disclosure of certain financial information by candidates for public office, elected officials, appointed officials, and public employees with responsibility for taking or recommending official action of a non-ministerial nature. Pursuant to this Act, the Ethics Commis
. Article II of the agreement entitled “Management Rights” provides in its entirety:
“Section 1. It is understood and agreed that the Employer, at its sound discretion, possesses the right, in accordance with applicable law, to manage all operations including the direction of the working force and the right to plan, direct, and control the operation of all equipment and other property of the Employer, except as modified by this or unit agreements.
“Matters of inherent managerial policy are reserved exclusively to the Employer. These include but shall not be limited to such areas of discretion or policy as the functions and programs of Employer, standards of service, its overall budget, utilization of technology,*137 the organizational structure and selection and direction of personnel.
“Section 2. The listing of specific rights in this Article is not intended to be nor should be considered restrictive or a waiver of any of the rights of management not listed and not specifically surrendered herein whether or not such rights have been exercised by the Employer in the past.
. Furthermore, the Commonwealth argues that the Governor is statutorily authorized to supplement the Ethics Act:
“Any governmental body may adopt requirements to supplement this act, provided that no such requirement shall in any way be less restrictive than the act.”
Section 11 of the Act, 65 P.S. § 411.
. Section 903 of the Public Employe Relations Act, 43 P.S. § 1101.-903, provides as follows:
“Arbitration of disputes or grievances arising out of the interpretation of the provisions of a collective bargaining agreement is mandatory.. . [T]he final step [of the grievance procedure] shall provide for a binding decision by an arbitrator....”
. See also United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). We note that federal labor policy merely favors the submission of disputes to arbitration while Pennsylvania law expressly requires arbitration.
. In deciding this case we are guided by the recent Third Circuit decision in United Steelworkers of America v. Fort Pitt Steel Casting, 598 F.2d 1273 (3d Cir. 1979), a suit brought under Section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185(a). That case held that the District Court had properly enjoined the employer from taking certain actions pending arbitration where (1) the grievance procedure was mandatory under the collective bargaining agreement; (2) the employer was seeking to interfere with and frustrate the arbitration process; and (3) there was a threat of irreparable injury to union members.