Perry County v. Pennsylvania Labor Relations Board

McGINLEY, Judge.

Perry County (County) petitions for review of an order of the Pennsylvania Labor Relations Board (PLRB) which found that the County failed to demonstrate by a preponderance of the evidence that Sergeant John A. Seiders (Seiders), a correctional officer at the County’s prison, would have been dismissed in the absence of his participation in any protected activity. We affirm.

Seiders was hired by the County in 1989 as a correctional officer and was subsequently promoted to sergeant in October of 1990. In April of 1991 the Teamsters Local 776 (Union) started an organizing campaign at the prison. That month Seiders, along with ten of approximately twenty eligible employees, attended a Union organizing meeting and signed a Union authorization card. Seiders was vocally pro-Union and expressed a number of concerns regarding the operation of the prison. Seiders also distributed an additional four or five Union cards to employees who were not at the meeting. Seiders had previously informed Robert Shull (Shull), the warden, that he would be attending the Union meeting.

On September 23, 1991, the Union filed a petition for representation with the PLRB. On October 11, 1991, just eighteen days later, Shull called a mandatory staff meeting and informed all correctional officers that the Prison Board was unhappy with the operation of the prison and that each individual employee would be reevaluated. Shull further stated that there would be changes made, including promotions and demotions, and that some people would be terminated.

One week later, on October 17, 1991, Seiders was in charge of the 4 p.m. to midnight shift. His responsibility was to staff the central control room. At approximately 8 p.m., while Seiders and a visiting constable, Lieutenant Donald Reisinger (Reisinger) were in the central control room, a prisoner began a disturbance in the hallway leading to cell block A. Seiders, after checking that the other inmates were in their cells, left the control room and returned the inmate to his cell in cell block E. As a result, the central control room was abandoned for approximately twenty seconds.

Upon returning to the control room, Seiders realized that he erred when he left the room and that his conduct was contrary to standard operating procedures. He telephoned the warden who ordered him to write up a misconduct report. Seiders complied. By letter dated October 21, 1991, he was informed by Deputy Warden Leslie B. Noss (Noss) that the Prison Board’s Disciplinary Committee consisting of Shull, Noss and Reisinger charged him with three conduct violations: abandoning his post, conduct unbecoming an officer and breach of security resulting from the incident. Seiders was further informed that a hearing would be held on these charges.

On October 24, 1991, after a hearing the Disciplinary Committee concluded that Seiders committed all three violations. Each member recommended dismissal. Seiders was immediately suspended without pay pending dismissal. On October 29, 1991, Seiders appealed to the full Prison Board seeking a hearing. By letter dated November 21, 1991, the Prison Board notified Seiders that it concurred without conducting its own healing with the committee’s findings and that he was discharged from County employment effective October 25, 1991.¹ Approximately one to two weeks after the October 24, 1991, Disciplinary Committee hearing Shull, during a private conversation with a correctional officer at the prison, remarked that if Seiders had not gone to the Union, he would not have treated him as harshly as he did.

On January 27, 1992, the Union filed a charge of unfair labor practices against the County, alleging violations of Section 1201(a)(1) and (3) of the Public Employee Relations Act (PERA).² On February 3, 1992, the Secretary of the PLRB issued a complaint and notice of a hearing set for March 19, 1992.

After efforts at conciliation failed, a hearing was held and both parties presented testimony and introduced documentary evidence. On July 2, 1992, the hearing examiner issued a proposed decision finding that the County committed unfair labor practices as defined by Sections 1201(a)(1) and (3) of PERA and ordering that Seiders be reinstated. The County filed exceptions. On September 29,1992, the PLRB dismissed the exceptions and directed that the proposed decision be made absolute and final. The County appeals.³

The County presents two issues for our review. The County contends (1) that the PLRB’s conclusion that Seiders’ discharge was a result of anti-union animus is unsupported by substantial evidence and (2) that the PLRB erred because Seiders would have been discharged even in the absence of any union activity. Our scope of review of a PLRB order is limited to determining whether there has been a constitutional violation or an error of law and whether the necessary findings are supported by substantial evidence. City of Reading v. Pennsylvania Labor Relations Board, 130 Pa.Commonwealth Ct. 397, 403, 568 A.2d 715, 718 (1989). “As long as the Board’s findings are supported by substantial evidence, they are conclusive on appeal. It is the PLRB’s function to appraise the conflicting evidence, determine credibility matters, resolve factual questions and draw inferences from the facts and circumstances.” Id.

In Harbaugh v. Pennsylvania Labor Relations Board, 107 Pa.Commonwealth Ct. 406, 528 A.2d 1024 (1987), we noted that a party asserting that an unfair labor practice has been committed has the burden of establishing that charge. Id. at 411, 528 A.2d at 1027. In Harbaugh we further noted that an unfair labor practice charge under 43 P.S. § 1101.1201(a)(3) of discrimination based on union activity requires proof that the employer was motivated by an unlawful motive or displayed anti-union animus. The PLRB is permitted to draw inferences of unlawful motive from the facts. City of Reading, 130 Pa.Commonwealth Ct. at 404, 568 A.2d at 719.

In the present case our examination of the record reveals substantial evidence from which it can reasonably be inferred that the County engaged in discriminatory conduct in the events surrounding Seiders’ discharge. It is undisputed that Seiders and the other correctional officers were engaged in union organizing activities and that the County knew of this activity. Reproduced Record (R.R.) at 285-87. The PLRB inferred unlawful motive based on the content and timing of Shull’s October 11, 1991, meeting, coming just eighteen days after the Union filed a representation petition. As the PLRB noted, Shull made it clear at the meeting that he spoke at the Prison Board’s direction, that the Prison Board would make “changes” based on “how the Prison Board interpreted some of their concerns” and that the union was a concern of the Prison Board. R.R. at 287a (emphasis added). Shull also informed all correctional officers that over the upcoming two weeks to a month each individual would be reevaluated, and he warned that there would be drastic changes including promotions and dismissals. R.R. at 230-31. As the PLRB noted, both the timing and content of this meeting, being held during an organizational campaign, support an inference of anti-union animus. Further evidence of the County’s discriminatory and retaliatory conduct is found in the testimony of Correctional Officer Robert Kauffman, who related the previously mentioned private conversation with Shull approximately one to two weeks after Seiders’ discharge.

The County also argues that even if Shull was motivated by anti-union animus the Prison Board’s review of the facts removes any taint. The County’s position is untenable. An employer is responsible for the acts of its supervisor when he commits an unfair labor practice during the course of his employment. Allegheny Pepsi-Cola Bottling Company v. National Labor Relations Board, 312 F.2d 529 (3d Cir.1962). In Allegheny Pepsi the Third Circuit Court of Appeals noted:

The Board adopted the findings of the trial examiner that Sears [employee’s supervisor] was discriminatorily motivated in making his report and that because of this the Board concluded that Lapidus [company president] himself was not so motivated in ordering the discharge and because Sears’ bias was not attributable to the company president, the § 8(a)(3) charge should have been dismissed. This argument does not withstand analysis. Petitioner concedes that Sears is a supervisor within the meaning of the [National Labor Relations] Act. As such, the report he made to Lapidus was obviously within the scope of his employment. There is no question but that it was the cause of Dommel’s [employee] discharge. That being so, the only question was whether Sears was discriminatorily motivated in making the report.... To rule otherwise would provide a simple means for evading the Act by a division of corporate personnel functions.

312 F.2d at 531.

We find the rationale in Allegheny Pepsi to be persuasive in the present case. Shull, as Seiders’ supervisor and a member of the Disciplinary Committee, was acting in the course of his employment when he suspended Seiders and recommended his discharge. Also, in City of Reading, we noted that “anti-union statements made to Union members by individuals who are ultimately responsible for terminating an employee or recommending termination of that employee can demonstrate unlawful motive.” 130 Pa.Commonwealth Ct. at 404-05, 568 A.2d at 719.

Nevertheless, the County contends that Seiders would have been discharged regardless of his union activities because he seriously breached prison security at the time of the incident. The County argues that it is critical to the legitimate security concerns of its citizens that it deal most harshly with officers who allow breaches of security to occur. Thus, the County asserts that Seiders’ discharge is an appropriate remedy under its standard operating procedures.

The PLRB was not convinced that Seiders’ breach of security was the actual cause of his discharge. Rather, as already noted, the PLRB concluded that Seiders’ discharge was motivated by anti-union animus as clearly indicated by Shull’s remark to Kauffman that but for Seiders’ union activities he would not have taken the action he did. The County’s argument also ignores Shull’s admission that he was delivering the Prison Board’s “message” regarding possible dismissals during the October 11,1991, meeting. Consequently, the PLRB’s findings that Shull’s actions were motivated by anti-union animus are supported by substantial evidence.

As further noted by the PLRB, once Seiders established a prima facie case of anti-union animus, the burden then shifted to the County to establish by a preponderance of the evidence that Seiders would have been discharged even in the absence of his union activity. We hold that the PLRB did not err in concluding that the County failed to meet this burden. Although there is conflicting testimony of record, questions of credibility and the weight to be given conflicting evidence are for the PLRB to determine. City of Reading.

We affirm the order of the PLRB.

ORDER

AND NOW, this 1st day of December, 1993, the order of the Pennsylvania Labor Relations Board in the above-captioned matter is affirmed.

1 . In the interim, on November 12, 1991, the PLRB issued an order directing a union election by secret ballot at the prison.

2 . Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.1201(a)(1) and (3). Section 1201 provides in pertinent part:

(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 [right to form, join or assist in employe organizations].

(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.

3 . On October 20, 1992, the PLRB denied the County’s application for supersedeas. On November 30, 1992, this Court also denied a application for supersedeas on behalf of the County.