Opinion
J-23A-2016 J-23B-2016 J-23C-2016 J-23D-2016 No. 37 MAP 2015 No. 38 MAP 2015 No. 39 MAP 2015 No. 40 MAP 2015
06-20-2016
CHAMBERSBURG BOROUGH, Appellee v. PENNSYLVANIA LABOR RELATIONS BOARD, Appellant INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 1813, Intervenor CHAMBERSBURG BOROUGH v. PENNSYLVANIA LABOR RELATIONS BOARD INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 1813, Intervenor APPEAL OF: INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 1813, Intervenor
[MO: Todd, J.] Appeal from the Order of the Commonwealth Court of dated December 4, 2014 at No. 2008 CD 2013 Reversing the Final Order of the Pennsylvania Labor Relations Board entered October 15, 2013 at No. PF-C-12-40-E. Appeal from the Order of the Commonwealth Court entered December 4, 2014 at No. 2009 CD 2013 Reversing the Final Order of the Pennsylvania Labor Relations Board entered October 15, 2013 at No. PF-C-11-174-E. Appeal from the Order of the Commonwealth Court entered December 4, 2014 at No. 2008 C.D. 2013 Reversing the Final Order of the Pennsylvania Labor Relations Board entered October 15, 2013 at No. PF-C-12-40-E. Appeal from the Order of the Commonwealth Court entered December 4, 2014 at No. 2009 C,D. 2013 Reversing the Final Order of the Pennsylvania Labor Relations Board entered October 15, 2013 at No. PF-C-11-174-E. DISSENTING STATEMENT JUSTICE WECHT
I respectfully dissent. While the learned majority dismisses this appeal as improvidently granted, I believe that this long-pending case instead warrants a precedential opinion.
We granted allocatur in order to interpret the meaning of the phrase "engage in a secondary boycott" as codified in Section 6(2)(d) of the Pennsylvania Labor Relations Act ("PLRA"), 43 P.S. § 211.6(2)(d). This is an issue of first impression. Our Court has received substantial briefing and oral argument from the parties and amici curiae. We are now well-positioned to issue an opinion interpreting the statutory language.
The factual scenario underlying this appeal is atypical of labor disputes involving secondary boycotts. The case involves a union representing paid firefighters employed by a political subdivision of the Commonwealth, as well as volunteer firefighters who provide services to that political subdivision. In particular, Chambersburg Borough employs paid firefighters who are represented by the International Association of Fire Fighters ("the Union"). Chambersburg Borough v. Pa. Labor Relations Bd., 106 A.3d 212, 215 (Pa. Cmwlth. 2014). The Borough relies as well upon the volunteer services of Franklin Fire Company No. 4. Id. Some of the Franklin volunteer firefighters also are members of the Union by virtue of their employment as paid firefighters in other departments. Id. The Borough alleges that one of its paid firefighters engaged in a secondary boycott by requesting that the volunteer firefighters who also were members of the Union refrain from providing services to the Borough while the Union and Borough were negotiating their collective bargaining agreement. Id.
It is no impediment to our review that this case arises from the particular circumstances of the relationship between the parties to this case. No jurisdictional bar precludes the Pennsylvania Labor Relations Board ("PLRB")'s review of the Union's purported unfair labor practice. Pursuant to Act 111, 43 P.S. §§ 217.1-217.10, public firefighters have the right to bargain collectively. Because Act 111 does not delineate the specific procedures for collective bargaining typically found in similar statutes, this Court has held that the Act must be read in pari materia with the PLRA, which contains such procedures. See Philadelphia Fire Fighters Ass'n v. PLRB, 369 A.2d 259, 261 (Pa. 1977). We also have held that the PLRB has jurisdiction to adjudicate unfair labor practice claims involving firefighters' and police unions covered by Act 111.
See City of Erie v. PLRB, 32 A.3d 625, 635 n. 12 (Pa. 2011) ("Consistent with the PLRA and Act 111 being read in pari materia, unfair labor practice charges regarding violations of Act 111 are brought under the provisions of Section 6 of the PLRA."); Alcaraz v. PLRB, 716 A.2d 1238, 1244 (Pa. 1998) (PLRB has jurisdiction over unfair labor practice claims brought by police and fire departments against borough); Borough of Nazareth v. PLRB, 626 A.2d 493, 496 (Pa. 1993) (PLRB had jurisdiction over unfair labor practice brought by police department against borough; stating that "the PLRB is in the best position to resolve all unfair labor practice issues").
This case concerns allegations by a borough that the union representing the borough's employees engaged in an unfair labor practice under Section 6 of the PLRA. It is of no moment to the jurisdictional question that the means of carrying out the alleged unfair labor practice involved a volunteer organization. The PLRB had jurisdiction to decide whether the Union committed an unfair labor practice by engaging in a secondary boycott.
It may well be difficult to imagine how the Union involved in this case could accomplish a traditional secondary boycott in view of the fact that firefighters are prohibited from striking under Act 111 and the fact that the volunteer firefighters are not employees of Franklin Fire Company. Nevertheless, this is a question that implicates the merits, and not an impediment to jurisdiction.
Moreover, this case has widespread applicability across our Commonwealth. There are approximately eighteen hundred fire departments in Pennsylvania, the vast majority of which are volunteer organizations. It is therefore likely that many political subdivisions throughout this Commonwealth experience overlapping responsibilities among volunteer and professional fire departments. It is important that we provide guidance on this issue when presented with an appropriate case. I believe that this is such a case.
See Governor's Ctr. for Local Gov't Servs., Local Government Fact Sheet (July 16, 2014), available at http://www.newpa.com/download/?wpdmdl=61323 (as of 2013, of the 1,856 fire departments in Pennsylvania, 1,740 are volunteer); see also U.S. Fire Admin., National Fire Department Census, Quick Facts (May 18, 2016), https://apps.usfa.fema.gov/census/summary (as of January 2016, of the 1,796 Pennsylvania fire departments that registered with the U.S. Fire Administration, 90.2 percent were volunteer). --------
The Court's dismissal of this appeal leaves the Commonwealth Court's opinion untroubled. I am concerned that the latter decision may sow confusion among the bench and bar. I discern merit in the PLRB's argument that the Commonwealth Court reached the wrong result by adopting the inapposite standard prescribed by the National Labor Relations Act ("NLRA"). Although the two statutes address similar conduct, I do not believe they should be interpreted identically. In pertinent part, the NLRA makes it an unfair labor practice for a union or (agent thereof)
to engage in, or to induce or encourage any individual employed by any person . . . to engage in, a strike or a refusal in the course of his employment to . . . perform any services . . . where in either case an object thereof is . . . forcing or requiring any person . . . to cease doing business with any other person. . . . Provided, [t]hat nothing contained in
this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.29 U.S.C. § 158(b)(4). We have recognized that "[t]he conduct described in [Section 158(b)(4) . . . is customarily referred to as a 'secondary boycott.'" Kerr v. Butler Bldg. Trades Council, AFL-CIO, 288 A.2d 525, 527 (Pa. 1972). Clearly, an actual strike or work stoppage need not occur in order to establish the unfair labor practice of inducing or encouraging a secondary boycott under the NLRA. See Lescher Building Service, Inc. v. Local Union No. 133 of the Sheet Metal Workers International Association, 310 F.2d 331, 336 (7th Cir. 1962); Alpert v. Local 660, International Brotherhood of Electrical Workers, AFL-CIO, 169 F.Supp. 384, 387 (D. Conn. 1959). However, the related provision in the PLRA prohibits unions or their members only from "engag[ing] in a secondary boycott." 43 P.S. § 211.6(2)(d). The language disparities between these two statutes suggest that they should be read differently. By broadening the definition contained within the PLRA to extend to inducement and encouragement, the Commonwealth Court's opinion may lead employers to file unfair labor practice claims that our General Assembly never intended to allow.
I believe that this case calls upon this Court to fashion a generally applicable definition of the term "engage in a secondary boycott." While that definition may apply with greater frequency within the context of disputes involving parties engaged in a more conventional management-labor relationship, I perceive no reason that this Court cannot expound the law in this case.
For all of the foregoing reasons, I respectfully dissent from the majority's order dismissing this appeal as improvidently granted.