DocketNumber: Appeal, No. 167 C.D. 1985
Citation Numbers: 100 Pa. Commw. 50, 514 A.2d 255
Judges: Barry, Palladino, Rogers
Filed Date: 8/20/1986
Status: Precedential
Modified Date: 6/24/2022
Opinion by
This is an appeal by petitioner, American Federation of State, County and Municipal Employees, Coun
(a) Public Employers, their agents or representatives are prohibited from:
(1) Interfering, restraining or coercing employes in the exercise of the rights guaranteed in Article IV of this act.
(3) Discriminating in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any employe organization.
Id. §§1101.1201(a)(1), (3).
On March 7 and 8, 1984, a district of the Pennsylvania Department of Transportation (DOT), a department of the Commonwealth of Pennsylvania, conducted “desk audits” or investigatory proceedings designed to determine more accurately employee responsibilities as part of a classification review. During this classification review, DOT denied requests made by employees, the steward and local union president as well as AFSCME council representatives, that employees be represented by a bargaining representative during these desk audits. On March 12, 1984, AFSCME, Council 13, filed A Charge of Unfair Labor Practices. On March 14, 1984, the Secretary issued a complaint on AFSCMEs charges. On June 28, 1984, a hearing was held before a PLRB hearing examiner who issued a proposed decision
Under Pennsylvania Social Services Union v. Pennsylvania Labor Relations Board, 68 Pa. Commonwealth Ct. 307, 449 A.2d 96 (1982), our scope of review is limited to determining whether the findings of fact by the PLRB are supported by substantial evidence and whether its conclusions of law are correct and not arbitrary or capricious. In addition, we recognize that “the PLRB, by virtue of its experience and expertise, is better qualified than the courts to address the complexities of disputes of this nature and therefore, the courts should not lightly substitute their judgment for that of the PLRB.” Id. at 312, 449 A.2d at 98.
In Weingarten a lunch counter salesperson for a lobby food operation was secretly observed by another company employee responsible for “loss prevention” or shop lifting and employee dishonesty. Following this observation, the salesperson was subjected to intense interrogation regarding these observations. Her requests for the presence of a union shop steward or bargaining representative were denied. Although no disciplinary
The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board. The Court of Appeals impermissibly encroached upon the Board’s function in determining for itself that an employee has no ‘need’ for union assistance at an investigatory interview. ... It is the province of the Board, not the courts, to determine whether or not the ‘need’ exists in light of changing industrial practices and the Board’s cumulative experience in dealing with labor management relations.
Weingarten, 420 U.S. at 265.
In recognition of the U.S. Supreme Court’s deference to the NLRB’s trial and error administrative decision-making process, we must only look as far as the NLRB’s recent decisions to determine at which stage the Weingarten issue is in the “evolutionary process”. In Stewart-Warner Corp., 253 NLRB No. 161, 105 L.R.R.M. (BNA) 1678 (1980), and United States Postal
We agree with the Administrative Law Judge that, on the record in this case, the ‘fitness for duty’ examinations in question were not part of a disciplinary procedure and do not fall within the purview of Weingarten. Thus, while the examinations were prompted by personnel problems such as excessive absenteeism because of alleged illness or injury, and the examinations might lead to recommendations respecting the employees’ future work assignments, there is insufficient evidence establishing that the examinations were calculated to form the basis for taking disciplinary or other job-affecting actions against such employees because of past misconduct. Noteworthy also is the. absence of evidence that questions of an investigatory nature were in fact ashed at these examinations. In addition, these particular medical examinations do not meet with the tests set forth in the Weingarten*58 line of cases, or the rationale underlying these tests which envision a ‘confrontation between the employee and his employer.
105 L.R.R.M. (BNA) at 1200 (emphasis added).
In justification of our conclusion here, we note Justice Brennans summarizing remarks in Weingarten: “In sum, the Board has reached a fair and reasoned balance upon a question within its special competence, its newly arrived at construction of §7 does not exceed the reach of that section, and the Board has adequately explicated the basis of its interpretation.” 420 U.S. at 265. In the case before us, both the hearing examiner and the PLRB provide a well reasoned analysis citing both Stewart-Warner and United States Postal Service to support their decision that Section 1201(a)(1) and (3) does not mandate the presence of a bargaining representative upon request at a desk audit.
We now turn to whether the PLRB improperly refused to extend its reasoning in Conneaut to the present case. In Conneaut, the PLRB extended the rule in Weingarten to include “any further meeting or interview beyond the first meeting to discuss a review of public employes performance evaluation or rating”. 12 Pa. Pub. Employees R. §12155 at 242. The performance rating to which the teacher in Conneaut was subjected was given pursuant to Section 1123 of the Public School Code of 1949, the Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §11-1123, which clearly provides for a teachers dismissal if the rating proves sufficiently unsatisfactory. This is a very limited extension of Weingarten. The PLRB clearly did not intend, by its holding in Conneaut, to generalize the Weingarten rule to any administrative action in which an employer attempted to ascertain his employees’ actual job functions for the purposes of reclassification. We reject AFSCME’s argument that the rights in question here
Finally, we address AFSCMEs contention that the PLRB abused its discretion by not considering AFSCMEs charge, raised for the first time in its exceptions to the hearing examiners proposed decision and order, that the Commonwealth was in violation of Section 1201(a)(5) of the Act. Section 1201(a)(5) reads as follows:
(a) Public employers, their agents or representatives are prohibited from:
*60 (5) Refusing to bargain collectively in good faith with an employe representative which is the exclusive representative of employes in an appropriate unit, including but not limited to the discussing of grievances with the exclusive representative.
43 P.S. §1101.1201(a)(5). AFSCME argues that, under 34 Pa. Code §95.98(a)(2), which reads, “No reference shall be made in the statement of exceptions to any matter not contained in the record of the case”, the Board should have considered its claim under Section 1201(a)(5) inasmuch as it is based on evidence already of record. AFSCME, however, inappropriately equates a “reference . . . made in the statement of exceptions” with the raising of a new charge of unfair labor practice. A “direct dealing” charge is a separate and distinct unfair labor practice charge from AFSCMEs Section 1201(a)(1) and (3) charges. We read 34 Pa. Code §95.98 as a restrictive provision precluding the filing of exceptions based on factual findings or legal issues which were not considered by the hearing examiner—not as a vehicle for filing new unfair labor practice charges in contravention of 34 Pa. Code §95.31.
Order
Now, August 20, 1986, we hereby affirm the order of the PLRB dated December 14, 1984, at No. PERA-C84-142-E, dismissing the exceptions filed by AFSCME to the hearing examiners proposed decision and order which dismissed AFSCMEs unfair labor practice charge against the Commonwealth of Pennsylvania.
This action was brought by Edward J. Keller acting as Trustee Ad Litem.
In Conneaut, a teacher who was given a performance rating subjecting him to disciplinary measures and possible dismissal was denied union representation at the rating meeting. The Board ruled in favor of the teacher, adopting the U.S. Supreme Courts ruling in Weingarten.
Although the PLRB attributed its dismissal to untimeliness, it is clear from its discussion that it found AFSCME to have waived the issue of “direct dealing” by failing to raise it before the hearing examiner.
Both the hearing examiners proposed decision and order and the Boards discussion in its final order make reference to the fact that the desk audits could result in a classification upward, downward or no change.
Section 7, provides:
The right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.
Id.
§95.31. Charges.
(a) All charges shall be in writing on forms supplied by the Board and shall be signed and sworn to before any person authorized to administer oaths. An original and three copies of the charge shall be filed with the Board by one or more public employes, or any employe organization, acting in their behalf, or by a public employer.
(b) The charge shall include the following information:
(1) The name, address, telephone number and affiliation, if any, of the charging party, and the title of any representative filing the charge.
(3) A clear and concise statement of the facts constituting the alleged unfair practice, including the names of the individuals involved in the alleged unfair practice, the time, place of occurrence and nature of each particular act alleged, and reference to the specific provisions of the act alleged to have been violated.
(c) After a charge has been filed, if it appears to the Board that formal proceedings in respect to the charge should be instituted, the Board, or any member of the Board, or the regional director, may issue and cause to be served upon the parties a complaint in the name of the Board, stating the alleged unfair practices, and containing a notice of hearing before a hearing examiner at a place stated in the complaint and at a time not less than five days after the service of the complaint unless involving charges under sections 803 or 1201(b)(6) or (7) of the act (43 P.S. §§1101.803 or 1101.1201(b)(6) or (7)).