Borough v. Pennsylvania Labor Relations Board

DISSENTING OPINION BY

Senior Judge FRIEDMAN.

Because the majority has exceeded this court’s scope of review in reversing the determination of the Pennsylvania Labor Relations Board (Board) and has ignored the plain language of Section 6(2)(d) of the Pennsylvania Labor Relations Act (PLRA),¹ which states that it shall be an unfair labor practice “[t]o engage in a secondary boycott,” (emphasis added), I respectfully dissent.

In determining the meaning of “secondary boycott” as contained in Section 6(2)(d) of the PLRA, the majority relies on federal interpretation of Section 8(b)(4) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(b)(4). Section 6(2)(d) of the PLRA provides that it shall be an unfair labor practice: 43 P.S. § 211.6(2)(d) (emphasis added). However, Section 8(b)(4) of the NLRA, which does not contain the language “secondary boycott,” prohibits a labor organization “to engage in, or to induce or encourage any individual ... to engage in, a strike...” 29 U.S.C. § 158(b)(4) (emphasis added).

To engage in a secondary boycott, or to hinder or prevent by threats, intimidation, force, coercion or sabotage the obtaining, use or disposition of materials, equipment or services, or to combine or conspire to hinder or prevent by any means whatsoever, the obtaining, use or disposition of materials, equipment or services.

By its terms, the first clause of Section 6(2)(d) of the PLRA requires participation in a work stoppage. A work stoppage did not occur in this case. Unlike Section 8(b)(4) of the NLRA, Section 6(2)(d) of the PLRA does not contain the words “induce or encourage.” Therefore, I would agree with the Board that an actual strike or cessation of services by a neutral employer must occur for a labor organization to violate the first clause of Section 6(2)(d) of the PLRA. Thus, I strenuously disagree with the majority’s holding that the phrase “ ‘to engage in a secondary boycott’ as set forth in Section 6(2)(d) of the PLRA proscribes ‘union pressures calculated to induce [or encourage] the employees of a secondary employer to withhold their services in order to force their employer to cease dealing with the primary employer.’ ” (Maj. Op. at 223 (quoting National Labor Relations Board v. Servette, Inc., 377 U.S. 46, 52-53, 84 S.Ct. 1098, 12 L.Ed.2d 121 (1964)).) While Section 8(b)(4) of the NLRA prohibits a labor organization to “induce or encourage” a strike, such language is not present in Section 6(2)(d) of the PLRA.²

“Our scope of review is limited. A decision of the Board must be upheld if the Board’s findings are supported by substantial evidence, and if the conclusions drawn from those facts are reasonable, and not capricious, arbitrary[,] or illegal.” Joint Bargaining Committee of the Pennsylvania Social Services Union v. Pennsylvania Labor Relations Board, 503 Pa. 236, 469 A.2d 150, 152 (1983). Further, this court “ ‘will not lightly substitute its judgment for that of a body selected for its expertise whose experience and expertise make it better qualified than a court of law to weigh facts within its field.’ ” Borough of Ellwood City v. Pennsylvania Labor Relations Board, 606 Pa. 356, 998 A.2d 589, 594 (2010) (citation omitted).

The majority has exceeded this court’s scope of review. Based on the Board’s findings, I would conclude that the Local 1813 Union, via issuance of the letter, did not engage in a secondary boycott. Accordingly, I would affirm the Board’s decision.³

1 . Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. § 211.6(2)(d).

2 . Moreover, although the majority relies on National Labor Relations Board v. Glaziers and Glassworkers Local Union No. 1621, 632 F.2d 89 (9th Cir.1980), and National Labor Relations Board v. Retail Clerks Union, Local 1179, Retail Clerks International Association, AFL-CIO, 526 F.2d 142 (9th Cir.1975), for the proposition that "the use of discipline by the [Local 1813] Union under the circumstances of this case tends to frustrate the Commonwealth's policy against secondary boycotts set forth in Section 6(2)(d) of the PLRA,” (Maj. Op. at 225), those cases are distinguishable. Specifically, those cases involved a union member challenging discipline imposed by the union. This case does not involve a challenge to the union’s discipline. Rather, the issue here is whether a letter sent to firefighters, reminding them of their union obligations, constitutes an unfair labor practice.

Additionally, this court’s limited scope of review of a Board decision differs from that of a federal appeals court. Federal courts of appeal will uphold the decision of the National Labor Relations Board (NLRB) if the NLRB’s findings of fact are supported by substantial evidence and if the NLRB correctly applied the law. National Labor Relations Board v. General Truck Drivers, Warehousemen, Helpers and Automotive Employees of Contra Costa County, 20 F.3d 1017, 1021 (9th Cir.1994). The federal appeals court "defer[s] to the [NLRB's] interpretation of the NLRA where that interpretation is ‘reasonably defensible.’ ” Washington State Nurses Association v. National Labor Relations Board, 526 F.3d 577, 580 (9th Cir.2008) (citation omitted).

3 . I would further conclude that the Board correctly determined that the Union did not violate the second clause of Section 6(2)(d) of the PLRA by "hindering] or preventing] by threats, intimidation, force, coercion or sabotage the obtaining, use or disposition of ... equipment or services_" 43 P.S. § 211.6(2)(d). Also, I would affirm the Board’s determination that Chambersburg Borough committed an unfair labor practice under Sections 6(l)(a) and (c) of the PLRA, 43 P.S. § 211.6(l)(a) and (c).