Pennsylvania State Police v. Pennsylvania Labor Relations Board

DISSENTING OPINION BY

Judge LEADBETTER.

I join in the opinion of the majority to the extent it concludes that the State Police [or PSP] committed an unfair labor practice and in that portion of its order which affirms the Board’s mandate that PSP bargain over transfer of the work of supervising the dispatchers. I must respectfully dissent, however, from that part of its decision which affirms the additional remedy ordered by the Board restoring the supervisory work to State Troopers.

While it is certainly true that “it is for the Board and not the courts to fashion a remedy for an unfair labor practice,”¹ it is equally true that it is not the court’s role to rubber stamp any remedy the Board chooses to impose. Unlike the majority, I believe the additional remedy was unwarranted and I would vacate that portion of the order for several reasons.

First, as the PSP points out, in some cases where, as here, no employees have lost jobs, wages or benefits, the Board has ordered bargaining but has refrained from ordering that the work at issue be reinstated to the original bargaining unit. See AFSCME, Council 13 v. Dep’t of Pub. Welfare (Warren State Hosp.), 18 Pa. Pub. Empl. R. ¶ 18,158 (Final Order 1987); AFSCME, Council 13 v. Dep’t of Pub. Welfare (Ebensburg Center), 20 Pa. Pub. Empl. R. ¶ 20,005 (Final Order 1988). In the latter case, the Board reversed the order of the hearing examiner to reinstate the work, noting that “in cases where no employe has been furloughed or terminated the Board has found sufficient circumstances to warrant tailoring the remedy.” Id. While a reinstatement order is also common, see Fraternal Order of Police Queen City Lodge No. 10 v. City of Allentown, 34 Pa. Pub. Empl. R. ¶ 90 (Final Order 2003), aff'd, 851 A.2d 988 (Pa.Cmwlth.2004),² and certainly within the Board’s authority, the Board has not articulated any reason why reinstatement is the more appropriate remedy in this case, other than to say it is “customary.” I do not believe the Board is entitled to the usual degree of deference when it chooses, without significant explanation, to impose inconsistent sanctions in similar situations.

I further disagree with the Board’s attempt to support its order by characterizing it as requiring a return to the “status quo ante.” Return to the status quo is impossible without dismantling the new consolidated dispatch centers and the restructuring of the communications function. When viewed in their entireties, the new jobs filled by members of AFSCME were distinctly different from the jobs of the Association members who previously supervised the dispatchers.³ As noted by the majority, although the dispatchers, or PCOs, are civilian employees [represented by AFSCME], when they worked out of the 81 police barracks they were supervised by State Troopers, who performed other duties which required the skill and training of a uniformed police officer. The new supervisory positions created in the five consolidated dispatch centers were entirely civilian in nature, consisting of scheduling, evaluating, answering questions from and substituting for the civilian PCOs. Placing troopers in these civilian jobs is not returning them to the status quo, and makes very little practical sense.

Finally, the Board opined that, in lieu of bargaining, the State Police could have avoided an unfair practice charge by filing a petition for unit clarification, including the Association as the unit from which it desired to remove the work. However, since the Association was not included, it chose to give no consideration at all to the unit clarification proceeding, which did occur. While PSP clearly should have listed the Association as an interested party, I do not agree with the Board that the Association’s lack of participation in that proceeding was entirely the fault of the State Police, nor that its prior certification of AFSCME is irrelevant even as to remedy. Although the State Police represented in its petition that no union other than AFSCME was affected and did not give formal notice of the proceeding to the Association, a copy of the petition was posted in each barracks and the Association did not seek to intervene.⁴ Moreover, it must have been quite obvious that the AFSCME dispatchers in the barracks had not gone unsupervised, yet in certifying the unit for a new supervisory position, the Board made no inquiry as to who had performed that function in the past. Nonetheless, the Board’s position appears to be that under these circumstances, its unit clarification order is simply inconsequential. I reject this notion. When a unit clarification petition is brought, the Board has an affirmative responsibility to make more than a token effort to ensure that all affected parties participate, so that its ultimate order will protect the interests of all and will be dispositive and meaningful. Even if proceedings are flawed, orders are mandates unless and until they are vacated. How can an administrative agency so denigrate the significance of its own orders and then expect litigants to respect them?

Because there is no evidence that any troopers lost jobs, hours or wages, because, given the revamping of the dispatch function, a return to the status quo ante was impossible, and because the Board certified AFSCME as the bargaining unit for the new entirely civilian supervisory position, I would reverse that aspect of the Board’s order that the certified civilian employees be replaced with troopers as PCO supervisors.

Judges COHN JUBELIRER and LEAVITT join this dissenting opinion.

1 . Maj. op., at 915.

2 . The Board’s opinion denying supersedeas in Queen City Lodge more clearly indicates that the remedy included returning the work to the bargaining unit. See 34 Pa. Pub. Empl. R. ¶ 117 (Order denying application for superse-deas 2003).

3 . This is not to say that the unfair labor practice determination is unsupported. Established caselaw holds that unilateral removal from a bargaining unit of "any work,” that is, any duties, amounts to an unfair practice. Thus, in order to transfer the task of supervising the PCOs from troopers to civilian members of AFSCME, the PSP was required to bargain with the Association.

4 . I also note that while relying on the Association's request to the State Police that it bargain over the issue, the Board ignored uncon-tradicted testimony that the Association’s president later stated that the Association was not concerned with retaining the PCO supervisor jobs at the dispatch centers. The hearing examiner accepted the testimony, but found it irrelevant in light of the fact that the Association requested bargaining.