Opinion
No. 2281 C.D. 2013
12-12-2014
Rochester Township, Petitioner v. Pennsylvania Labor Relations Board, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Rochester Township (Township) petitions this Court for review of the Pennsylvania Labor Relations Board's (Board) November 19, 2013 final order finding that the Township committed unfair labor practices in violation of Section 1201(a)(1) and (3) of the Public Employe Relations Act (PERA). The sole issue for this Court's review is whether there is substantial evidence to support the Board's final order. After review, we affirm.
Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.1201(a)(1), (3).
The facts of this case are largely undisputed. The International Union of Operating Engineers, Local 66 (Union) is the exclusive bargaining representative for Township employees, including the Township Clerk and the Assistant Secretary. Deanne Eshbaugh (Eshbaugh) was employed as Township Clerk from March 3, 2003 through December 31, 2011. As Township Clerk, Eshbaugh was the municipal office receptionist and file/records clerk, and she attended the Township commissioner meetings, wrote the minutes and submitted them to the Township manager for approval. Supplemental Reproduced Record (S.R.R.) at 18b-19b, 27b, 33b. Eshbaugh's job description reflected, inter alia: "This is clerical and secretarial work of moderate complexity and high confidentiality. Employee serves as the Township's Wage Tax Clerk, as clerical support staff for the Municipal Office and all Township Boards and as clerk for the Rochester Township Sewer Authority." S.R.R. at 137b; see also S.R.R. at 28b, 33b, 43b, 138b-141b; Finding of Fact (FOF) 9. As Wage Tax Clerk, Eshbaugh calculated, collected and recorded the Township's wage tax and processed refunds, prepared quarterly and annual forms, and maintained necessary databases. S.R.R. at 53b-56b, 138b.
In 2008, the General Assembly enacted Act 32 which amended, restated and renumbered the sections of [The Local Tax Enabling Act (]LTEA[).] Under Sections 504(a) and 505(a) [of the LTEA], 53 P.S. §§ 6924.504(a), 6924.505(a), with the exception of Philadelphia and Allegheny Counties, Act 32 consolidated [earned income tax (]EIT[)] collection for political subdivisions and school districts at the county level by creating tax collection districts that are roughly contiguous with county lines and created tax collection committees to oversee and govern the districts.Berks Cnty. Tax Collection Comm. v. Pennsylvania Dep't of Cmty. & Econ. Dev., 60 A.3d 589, 590 (Pa. Cmwlth.), aff'd, 82 A.3d 405 (Pa. 2013). The addition of Chapter 5 of Act 32 applied to income taxes levied and collected after December 31, 2011. See Section 515 of the LTEA, 53 P.S. § 6924.515. Under Act 32, the Township's mandated relinquishment of its wage tax collection function meant the elimination of a portion of Eshbaugh's Township Clerk duties. Eshbaugh became aware of what Act 32's impact would be on her job duties early in 2011. FOF 12, 13.
Act of December 31, 1965, P.L. 1257, as amended, added by Section 23 of the Act of July 2, 2008, P.L. 197, 53 P.S. §§ 6924.101-6924.901.
As Township Clerk, Eshbaugh worked closely with Assistant Secretary Laura Hill (Hill), who performed, inter alia, the Township's bookkeeping and accounting. As a result of problems discovered by outside accounting firm Cottrill and Arbutina during an audit, Hill was sent for education and training. FOF 14. Thereafter, during the first week in May 2011, Hill resigned from her position. S.R.R. at 14b. The Township did not post the vacant Assistant Secretary position for bid. Rather, it retained Cottrill and Arbutina to perform the Township's payroll and accounting functions previously performed by Hill.
On May 12, 2011, Union Business Agent Ron Cord (Cord) filed Grievance No. 1-5-11, on Eshbaugh's behalf, which reflected: "VACANT ASSISTANT SECRETARY POSITION NOT POSTED FOR BID AS PER ARTICLE EIGHT SECTIONS 3A[] & 4[] OF THE [COLLECTIVE BARGAINING AGREEMENT (CBA)] AND TO INCLUDE ARTICLE TWENTY[-]TWO." S.R.R. at 15b, 131b; FOF 15. Also on May 12, 2011, Cord filed Grievance No. 2-5-11 on the Union's behalf stating: "NON[-]BARGAINING UNIT WORKERS PERFORMING BARGAINING UNION WORK, [i.e.,] ASST. SECRETARY DUTIES, IN VIOLATION OF ARTICLES ONE[] & TWENTY-TWO." S.R.R. at 133b; FOF 17.
Cord clarified that the subject grievances had nothing to do with Act 32's elimination of a portion of Eshbaugh's responsibilities. S.R.R. at 84b.
In May and June 2011, Cord, Township Solicitor Shannon Steele (Steele) and the Township Manager negotiated an agreement, whereby, for a $1.00 per hour increase, Eshbaugh would perform her remaining Township Clerk duties as well as the Assistant Secretary duties other than the financial services performed by Cottrill and Arbutina. FOF 18, 19, 20. However, by July 8, 2011 letter, the Township's Board of Commissioners (Commissioners) stated: "The consideration for a clerk wage increase to assume clerical duties of the Assistant Secretary was rejected by a 5-0 vote." S.R.R. at 99b, 144b; FOF 21, 23.
From $14.71/hour to $15.71/hour.
At a July 7, 2011 meeting, the Commissioners voted to deny the grievances, but agreed to post the Assistant Secretary position. S.R.R. at 19b-22b, 134b; FOF 19. The Assistant Secretary position was posted for bid between July 12, 2011 and July 18, 2011, thereby resolving Grievance No. 1-5-11. According to the posting, candidates for the position were required to "have a [Bachelor of Science (B.S.) degree] in accounting with [a] minimum of 5[]years work[-]related experience and a solid understanding of governmental bookkeeping and chart of accounts." S.R.R. at 135b; FOF 24. The job offered an $18.12 per hour starting wage. S.R.R. at 135b; FOF 25. Because Eshbaugh had only an associate's degree in accounting, she was ineligible to bid on the position. FOF 16, 26. On November 7, 2011, the Township hired Melissa, who did not have a B.S. degree. FOF 28.
Both the Township and the Union agree that the Union withdrew Grievance No. 1-5-11 after the Assistant Secretary position was posted. See Township Br. at 12; Union Br. at 13 n.2.
Melissa's last name does not appear in the record.
Arbitration of the remaining grievance was held on November 17, 2011. Eshbaugh was present and available to testify. Reproduced Record (R.R.) at 47a; S.R.R. at 41b; FOF 27. The parties negotiated Cottrill and Arbutina's duties before the arbitrator and, as a result, the Union withdrew Grievance No. 2-5-11. S.R.R. at 36b-38b; FOF 27. That evening, the Commissioners notified Eshbaugh that her position was being terminated due to Act 32. S.R.R. at 13b-14b, 42b; FOF 27. On or about November 18, 2011, Township Commissioner Tom Summers (Summers) stopped in Eshbaugh's office and, based upon comments he made to her, she understood that the Union grievances led to her discharge. S.R.R. at 48b-49b; FOF 29.
By December 2, 2011 letter, the Commissioners informed Eshbaugh that as a result of Act 32's enactment, her "clerk/wage tax collector position" would be eliminated effective January 1, 2012. S.R.R. at 35b-36b, 142b. Between November 18, 2011 and December 31, 2011, Eshbaugh trained Melissa to perform the clerical, non-wage tax clerk portion of her Township Clerk job. S.R.R. at 48b; FOF 28. December 31, 2011 was Eshbaugh's last day of work for the Township.
Independent of the grievances, on April 9, 2012, the Union filed Unfair Labor Practice Charges (Charges) with the Board, alleging that the Township violated Section 1201(a)(1), (3) and (5) of PERA as follows:
Docket No. PERA-C-12-98-W. Eshbaugh was unemployed from January 1, 2012 through March 19, 2012. Because she did not seek reinstatement, her damages were limited. See R.R. at 65a; S.R.R. at 50b. The Union did not grieve Eshbaugh's discharge. S.R.R. at 89b.
The Board has exclusive jurisdiction over unfair labor practice charges. Section 1301 of PERA, 43 P.S. § 1101.1301. An unfair labor practice charge is an "entirely separate proceeding" from a CBA's grievance procedure. Phila. Hous. Auth. v. Pennsylvania Labor Relations Bd., 461 A.2d 649, 650 (Pa. Cmwlth. 1983). "The mere existence of a factual determination relevant to both the arbitration and the unfair practice proceedings[] does not render the unfair practice proceedings a [grievance] review . . . ." Indiana Area Sch. Dist. v. Indiana Area Educ. Ass'n, 917 A.2d 366, 371 (Pa. Cmwlth. 2007) (quotation marks omitted).
On January 1, 2012, [the Township] terminated [Union] member, [Eshbaugh's] employment, in retaliation for [her] choice to have Union [r]epresentation and in retaliation for [the Union] engaging in [u]nion [a]ctivity when it filed a grievance, which led to an Arbitration Hearing on November 17, 2011.R.R. at 2a. On April 24, 2012, the Board issued a complaint against the Township stemming from the Charges. R.R. at 4a-5a. On May 9, 2012, the Township denied that Eshbaugh's employment termination was in retaliation for her union representation or the Union's activity, and contended that Summers did not make any such disclosures. R.R. at 7a-9a. A hearing was held on December 12, 2012 before a Board Hearing Examiner. On September 16, 2013, the Hearing Examiner issued his Proposed Decision and Order, in which he concluded that the Township committed independent unfair labor practices in violation of Section 1201(a)(1) and (3) of PERA. R.R. at 10a-21a. The Township filed exceptions to the Hearing Examiner's Proposed Decision and Order. R.R. at 22a-34a. The Union filed a response to the Township's exceptions. R.R. at 35a-36a. On November 19, 2013, the Board dismissed the Township's exceptions and made the Hearing Examiner's Proposed Decision and Order absolute and final. The Township appealed to this Court. The Union intervened.
[The Township]'s Commissioner, Tom Summers [(Summers)], stated that [the Township] terminated [Eshbaugh's] employment due to Union activity. More specifically, [Summers] stated that [the Township] terminated [Eshbaugh's] employment because [the Union] filed a grievance, which led to an Arbitration Hearing on November 17, 2011. In addition, [the Township]'s Solicitor also stated that [the Township] was terminating [Eshbaugh] because the Union filed a grievance, which led to an Arbitration Hearing on November 17, 2011.
At the December 12, 2012 hearing, the Union withdrew its Section 1201(5) charge under PERA. See S.R.R. at 7b.
"[W]hen reviewing a decision of the Board, our review is limited to determining whether there has been a violation of constitutional rights, an error of law, procedural irregularity, or whether the findings of the agency are supported by substantial evidence." Borough of Ellwood City v. Pennsylvania Labor Relations Bd., 998 A.2d 589, 594 (Pa. 2010). --------
Initially, we recognize that Section 1201(a) of PERA provides in relevant part:
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 [PERA] [43 P.S. § 1101.401 (right to engage in lawful activities for
purposes of collective bargaining or other mutual aid and protection)].43 P.S. § 1101.1201(a). This Court has held:
. . . .
(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.
To establish an unfair labor practice under [S]ection 1201(a)(3) of PERA, it must be proved, by a preponderance of the evidence, that: (1) the employee was engaged in protected activity; (2) the employer knew of the activity; and (3) the employer was motivated by anti-union animus in taking adverse action. If an employee makes this showing, the burden then shifts to the employer to establish by a preponderance of the evidence that the employee would have been discharged even in the absence of his union activities.Lancaster Cnty. v. Pennsylvania Labor Relations Bd., 82 A.3d 1098, 1109 (Pa. Cmwlth. 2013) (citations omitted). Because it is undisputed that Eshbaugh was engaged in protected activity, and the Township was aware of it, we need only address whether the Township was motivated by anti-union animus.
"The union bears the burden of proving a prima facie case of anti[-]union animus." Pennsylvania State Troopers Ass'n v. Pennsylvania Labor Relations Bd., 39 A.3d 616, 623 (Pa. Cmwlth. 2012). "The [Board] is permitted to draw inferences of unlawful motive from the facts." Perry Cnty. v. Pennsylvania Labor Relations Bd., 634 A.2d 808, 811 (Pa. Cmwlth. 1993). In particular, the timing of a discharge can be a strong indicator that it was motivated by anti-union animus. Lehighton Area Sch. Dist. v. Pennsylvania Labor Relations Bd., 682 A.2d 439 (Pa. Cmwlth. 1996). "[O]nce a prima facie case of anti-union animus is established by the employee, the burden then shifts to the employer to establish by a preponderance of the evidence that the employee would have been discharged even in the absence of his union activities." Id. at 443.
At the December 12, 2012 hearing, Eshbaugh explained that although Act 32 removed some of her Wage Tax Clerk duties, it did not eliminate all of them. In particular, she testified that she continued to be responsible for maintenance of the Township's mercantile license and landlord/tenant fee databases. S.R.R. at 47b-48b. She also confirmed that Act 32 did not affect her other Township Clerk duties. R.R. at 47a-48a; S.R.R. at 41b-47b. Eshbaugh reported that she became aware in June 2011 that her discharge was going to occur because "[e]verybody knew." S.R.R. at 53b. Further, she was aware that there were discussions about her working part-time doing secretarial work at a reduced wage and, thereafter, the Township and the Union were working on an arrangement to keep her employed. R.R. at 46a; S.R.R. at 63b. However, at the November 17, 2011 Commissioners' meeting, she was discharged without an alternative work offer. R.R. at 59a; S.R.R. at 64b.
Eshbaugh testified that with the exception of the B.S. degree requirement, she was available for the Assistant Secretary job. S.R.R. at 18b, 26b. She explained that because she did not possess a B.S. degree, of which the Township was aware, she did not apply for the position. R.R. at 59a-60a; S.R.R. at 25b-27b, 64b-65b. Eshbaugh stated that Hill did not have a B.S. degree in accounting. S.R.R. at 26b.
Eshbaugh declared that after November 17, 2011 Summers "stopped into the office and made a comment to me in my office concerning the grievances that I had filed that led to my being released." S.R.R. at 48b. She described her reaction to Summers' comment:
Well, it sort of flabbergasted me. I knew that there was still work that I was going to be able to perform for the Township. Being a Township Commissioner or a former fellow employee, who was also a member of the Union, it
sort of threw me back a little bit as to why he would make such a comment.R.R. at 64a; S.R.R. at 49b. She also testified that when the Township's counsel Myron Sainovich called to speak to the Township Manager, before she transferred him, "he also made a statement as to the grievances that I had filed previously." R.R. at 64a; S.R.R. at 49b. Although she did not recall the exact words used by either gentleman, she contends that "the comments were made." R.R. at 65a; S.R.R. at 50b.
Cord confirmed at the December 12, 2012 hearing that the Township informed the Union that Eshbaugh's job would be in jeopardy unless an agreement could be reached on a hybrid position. R.R. at 50a; S.R.R. at 71b. Thus, after Hill's resignation in May 2011 until the time Eshbaugh's job was eliminated, he attempted to renegotiate Eshbaugh's position to include the modified Assistant Secretary's responsibilities at a wage somewhere between Eshbaugh's rate and the $18.00 per hour Hill was earning, but it was rejected. R.R. at 50a; S.R.R. at 69b-71b, 78b-79b. Cord described that he understood from his discussions with Melissa that she did not have a B.S. degree. S.R.R. at 73b.
Cord explained that by January 19, 2012 letter to the Township, he inquired of the precise reason for Eshbaugh's discharge because although the Township said it was due to Act 32, the Township eliminated her entire position, and "Summers engaged in open discussion at a District meeting of the [Union] to the extent of informing members that the reason for [Eshbaugh] losing her employment was due to the filing of grievances and request for arbitration." S.R.R. at 73b-76b, 85b, 143b. The Township did not respond to his inquiry. S.R.R. at 75b, 86b-88b. Cord admitted that the Township never informed him that Eshbaugh was fired because she filed a grievance, and he acknowledged that regardless of Summers' statement, the other four Commissioners could have acted without him. S.R.R. at 77b.
Steele testified, on the Township's behalf, that the Commissioners were concerned about Act 32's impact on Eshbaugh's job because they observed "that a hefty portion of her daily duties dealt with wage tax collection" which was being removed to the county level. R.R. at 51a; S.R.R. at 94b-95b, 110b. After Hill resigned, Steele engaged in discussions with Cord about whether a hybrid position could be created for Eshbaugh that would include the remaining portions of the Assistant Secretary's job. Steele explained that the Township did not initially post the Assistant Secretary job because it thought Eshbaugh was going to take on a hybrid form of that job. S.R.R. at 98b. Steele stated that the Township was willing to keep Eshbaugh, but the Commissioners rejected the hybrid proposal on the basis of the proposed salary increase, since they thought Act 32 eliminated a large portion of her job duties. S.R.R. at 98b-99b, 102b-105b. Steele maintained that there was never any anti-union animus expressed during her discussions relating to the termination of Eshbaugh's position. R.R. at 52a; S.R.R. at 103b. Steele was not aware that the Township informed the Union that if Eshbaugh did not accept the hybrid position she would no longer have a job with the Township. S.R.R. at 106b. However, Steele acknowledged that Eshbaugh's position was either going to be eliminated or subject to a significant wage reduction. S.R.R. at 116b.
Steele agreed that the Commissioners rejected the proposed wage increase and did not offer the hybrid job to Eshbaugh at her current salary, but explained:
They were under the belief that [Eshbaugh] would accept the position, so that she and her husband could maintain all of their health benefits and her employment status in the new position at the wage that she currently had, but believed that she was not going to accept that through her Union representation.S.R.R. at 112b; see also S.R.R. at 113b-114b. Steele reported that thereafter the Township posted the Assistant Secretary position for bid.
Summers testified for the Township that he has been a Union steward for over 30 years. S.R.R. at 118b. Regarding his comments to Eshbaugh, Summers stated: "I made an allegation. . . . I did. . . ." R.R. at 70a; S.R.R. at 119b. Summers declared that he does not have any anti-union animus. R.R. at 70a; S.R.R. at 119b, 121b. He "felt that [Eshbaugh] was misrepresented." R.R. at 70a; S.R.R. at 119b. Specifically, Summers said:
[W]hen she went into negotiation with us, with the Union, come into us [sic], Mr. Cord and her was the only one that was there. For the time that I spent in the [Union], any person that worked for me or with me as a steward, I sat in the representative's seat. That's what I said. I said she was not represented by the Union. That's how I felt. Because that's what I did for all the years that I was an operator.S.R.R. at 120b. Summers explained that his comment was not that the grievances were filed, but rather that the Union did not provide a steward to represent Eshbaugh. R.R. at 69a; S.R.R. at 120b-122b, 124b. Summers acknowledged that he also remarked on the matter to a Union business manager at a Christmas party. R.R. at 69a; S.R.R. at 122b. Summers clarified: "At no time did I say that you guys did anything wrong there other than that." R.R. at 69a; S.R.R. at 122b. The following exchange occurred between Summers and the Township's counsel at the hearing:
Q. Did you indicate to . . . Eshbaugh at any point that she lost her job because of the filing of grievances?S.R.R. at 124b-125b.
A. That was my feeling that[] that['s] what was going to happen. . . . That was my feeling. I did not state for any [of the Commissioners], just me.
Q. Did you tell [Eshbaugh] that you believe she was going to lose her job[] because the Union filed grievances?
A. I might have, ma'am.
Based upon the foregoing evidence, the Hearing Examiner made findings of fact that the Board adopted and made final. The Hearing Examiner stated "that the entire background of this case yields an inference of unlawful motive and that the Township failed to prove a legitimate business reason establishing that it would have taken such action against [Eshbaugh] even in the absence of her protected activity." R.R. at 15a. In reaching his conclusion as to Section 1201(a)(3) of PERA, the Hearing Examiner described that in light of Act 32, Eshbaugh's position would be reduced to either part-time or no employment and, upon learning that Hill's position may be available to her, Eshbaugh filed Grievance No. 1-5-11 in order to have the Assistant Secretary position posted for her to apply. See R.R. at 15a.
The Hearing Examiner also noted that Cord pressed the Township's representatives for a wage increase during the May and June 2011 negotiations. The Hearing Examiner explained that although the Commissioners initially believed that Eshbaugh would accept the hybrid job, two months of Cord's wage increase requests led them to believe that she would not accept the hybrid position without a pay increase, leading them to deny her grievances and simultaneously post the Assistant Secretary job. The Hearing Examiner opined that since the Township was aware of Eshbaugh's associate degree and since neither Hill nor Melissa held such degrees, it is clear: "Upset with [Eshbaugh] and [Cord], the Township posted the Assistant Secretary position in a manner that ensured that she would not apply for it and, if she did, that she could not qualify for it." R.R. at 15a. The Hearing Examiner further recognized that the Township did not expressly inform Eshbaugh that she could have the hybrid job at her current wage, and Melissa was hired to perform both the Assistant Secretary and Township Clerk job at a rate of $18.12 per hour when the Commissioners denied Eshbaugh only a $1.00 per hour pay increase to $15.71. The Hearing Examiner deemed Summers' statements as evidence of the Township's anti- union animus because of his admission that the Union's handling of the grievances resulted in Eshbaugh's job loss.
The Hearing Examiner concluded that the Township's conduct supported an inference of improper motive and was inherently destructive of Eshbaugh's rights based on the Commissioners' decision to hire someone else at a higher pay rate for the same hybrid position that Eshbaugh sought at a lower pay rate with the Union's aid, together with Summers' statements, establish that the Commissioners disapproved of the Union's negotiation and arbitration tactics. The Hearing Examiner further observed that the CBA between the Union and the Township which prohibited Eshbaugh from negotiating her job's terms and conditions without Union assistance, together with the Commissioners' actions and Summers' statements, "strongly supports the conclusion that the Township discriminated against [Eshbaugh, and its] actions were so inherently destructive of [her] protected rights that they bear their own indicia of intent, regardless and independent of an actual showing of improper motive." R.R. at 17a.
The Hearing Examiner also deemed the Township's actions as coercive to a reasonable employee, thereby restraining Eshbaugh from seeking Union advocacy in protection of her job. In support of his conclusion, the Hearing Examiner explained that because the Township did not like the Union's insistence that Eshbaugh receive a $1.00 per hour wage increase when the Commissioners "felt she should be grateful to keep a job and her benefits[. . . ]instead of offering her the job at the same rate of pay, they laid her off and hired an outsider at an even higher rate of pay." R.R. at 18a. The Hearing Examiner articulated that after such treatment, "a reasonable employe in [Eshbaugh's] position would not want to exercise the very basic rights (to file and discuss grievances) for fear of repercussions if the Township were to subjectively dislike the Union's tactics or demands to settle the grievances." R.R. at 18a-19a.
In its exceptions, the Township claimed that the Union failed to establish a prima facie discrimination case under Section 1201(a)(3) of PERA. Based upon the evidence the Hearing Examiner deemed credible, the Board agreed that the Union proved not only that Eshbaugh engaged in protected activity about which the Township was aware, but that the Township was motivated by anti-union animus. The Board specifically found that Summers' statements as a Commissioner made the day after the Commissioners' decision to eliminate Eshbaugh's job "reflect the Township's motive in rejecting the proposal to retain [Eshbaugh] as an employe." R.R. at 40a.
The Board also examined the Township's exception that the Hearing Examiner failed to consider the subjects of the respective grievances. It held that "the activity protected by PERA is the act of filing a grievance[,] Montrose Area Education Association v. Montrose Area School District, 38 PPER 127 (Final Order, 2007)," rather than its merits or subsequent resolution. R.R. at 41a. The Board further ruled that the subjects of the grievances and the totality of the circumstances of their resolution support the Hearing Examiner's conclusions of unlawful motive and unfair practice. Specifically, the Board recognized the Township's argument that the Assistant Secretary job posting was held pending negotiations on Eshbaugh's behalf. The Board also acknowledged that the negotiations resulted in a proposed settlement that the Commissioners rejected. Moreover, since Act 32 did not require the Township to reject the negotiated hybrid job at only a $1.00 per hour increase, the only viable explanations for the Township's actions based upon the evidence presented at the hearing were provided by Steele, in that the Township thought Eshbaugh should have been grateful to keep her job and benefits, and by Summers who said the grievance filings resulted in Eshbaugh's discharge.
Because the Township admitted in its exceptions that it withheld the job posting while the parties negotiated a hybrid job that included the Assistant Secretary's duties, the Board deemed the Township's defense that Eshbaugh's failure to bid on the posted Assistant Secretary position left it unable to give her the Assistant Secretary position equally unavailing. The Board further held that by negotiating for the hybrid position, Eshbaugh was applying for the Assistant Secretary job while continuing her Township Clerk duties.
In dismissing the Township's exceptions and making the Hearing Examiner's Proposed Decision and Order absolute and final, the Board stated:
After a thorough review of the exceptions and all matters of record, we conclude that the Hearing Examiner reasonably inferred from the facts of record, [Summers'] testimony, and the totality of the circumstances, that the motive for the Township's rejection of [the Union's] offer of a hybrid Assistant Secretary/Township Clerk position for [Eshbaugh] was union animus.R.R. at 42a-43a. The Board held that because the Township harbored union animus in violation of Section 1201(a)(3) of PERA, it derivatively violated Section 1201(a)(1) and, therefore, the Board did not address the Township's remaining exceptions. R.R. at 37a-43a.
This Court in Lancaster County explained:
In reviewing a [Board] determination under PERA, this Court has recognized that the [Board] possesses administrative expertise in the area of public employee labor relations and should be shown deference, and we will not lightly substitute our judgment for that of the [Board]. It is within the province of the [Board] to weigh conflicting evidence, make appropriate credibility determinations, resolve primary issues of fact, and draw reasonable inferences from the established facts and circumstances. This Court must uphold the [Board]'s decision if its factual findings are supported by substantial evidence, and if the conclusions of law drawn from those facts are reasonable.
'Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.' [Del. Cnty.] Lodge No. 27 . . . v. Pennsylvania Labor Relations [Bd.], 694 A.2d 1142, 1145 n. 5 (Pa.[]Cmwlth.[]1992). However, evidence proving suspicion and conjecture does not constitute substantial evidence as a matter of law. Stated differently, [s]ubstantial evidence is more than a mere scintilla and must do more than create a suspicion of the existence of the fact to be established. The record as a whole, including the evidence adduced by an employer, may be considered when determining whether there is substantial evidenceFN3 to support a finding that the employer had knowledge of union activity and/or that the employer was motivated by anti-union animus.
Id. at 1109-10 (citations and quotation marks omitted; emphasis added). "As long as the [Board's] findings are supported by substantial evidence, they are conclusive on appeal." Uniontown Area Sch. Dist. v. Pennsylvania Labor Relations Bd., 747 A.2d 1271, 1274 (Pa. Cmwlth. 2000).FN3. We note that 'substantial evidence' is the appellate standard of review for determining whether there is sufficient evidence to support a finding of fact, while, on the other hand, ' preponderance of the evidence' is the standard to be applied by the fact-finder to determine whether the burden of proof has been met. More precisely, substantial evidence is the relevant evidence that a reasonable mind, without weighing the evidence or substituting its judgment for that of the fact finder, might accept as adequate to support the conclusion reached. Conversely, a preponderance of the evidence standard concerns the weighing of the evidence and has been described as evidence that is weighty enough to tip the scale in favor of a burdened party: 'Since proof by 'a preponderance of the evidence' is the lowest degree of proof recognized in the administration of justice, the evidence the burdened party offers does not become proof until it preponderates in evidentiary weight against the opposing evidence.' Se-Ling Hosiery v. Margulies, . . . 70 A.2d 854, 856 ([Pa.] 1950) (emphasis in original).
The Township contends that the Board and Hearing Examiner erred by failing to make numerous findings of fact in support of the Township's defense. It specifically argues that the Hearing Examiner disregarded evidence that it had a legitimate business reason establishing that the Township would have taken the same action in absence of Eshbaugh's protected activity. We disagree. The Hearing Examiner made specific findings that Act 32 eliminated portions of Eshbaugh's Township Clerk job, that the Union and Eshbaugh knew that her job would be affected by it and that the Union and Steele proposed a hybrid position for Eshbaugh in order to preserve her employment, which the Commissioners rejected on the basis of a $1.00 per hour wage increase. The Hearing Examiner also made specific findings summarizing the grievances, their content and their resolution. Further, the Hearing Examiner found that the Township did not post the Assistant Secretary position pending negotiations with the Union about the hybrid position and that once negotiations were completed, the Township immediately posted it. Thus, the Hearing Examiner did not ignore facts the Township posited in its defense. Upon review, the Board accepted these findings.
The Township's argument that the Union failed to produce sufficient evidence to establish anti-union animus is not supported by the record. If the findings made in the Township's defense were the only operative facts, the Board may have concluded that the Township had a legitimate business reason for discharging Eshbaugh. However, the Township's business reasons are undermined by the totality of the undisputed evidence. The fact that there continued to be Township Clerk work (including limited pieces of her Wage Tax duties) for Eshbaugh to perform despite Act 32, that she was not offered the hybrid job at her current wage, and that the Township ultimately posted and awarded the hybrid position to another individual at nearly $3.00 per hour more than Eshbaugh's proposed increase when that person did not meet all of the prerequisites, together with her discharge and Summers' statements just a few hours after the arbitration hearing, constitute substantial evidence to support the Board's conclusion that the Township would not have taken the same action in the absence of Eshbaugh's protected activity.
The Township's contentions that the Assistant Secretary job posting and Summers' statements did not by themselves constitute unfair labor practices is equally unavailing. The Township posting of the Assistant Secretary position with restrictions that the Township knew made Eshbaugh ineligible to apply, and which on its face contradicted its representations to Eshbaugh about the wage it deemed appropriate for the job made it evident that the Township's goal was to remove Eshbaugh from the Township's employment. Similarly, Summers' statements the day after Eshbaugh's removal that her discharge was due to the Union's involvement is also sufficient to establish an unfair labor practice. Certainly, taken together, there is substantial evidence to support an inference of anti-union animus. Because the Union met its burden of proving anti-union animus, it established all of the factors necessary to establish an unfair labor practice.
Finally, the Township's averments that its conduct was not inherently destructive goes against the weight of the evidence. The United States Supreme Court explained:
From . . . review of our recent decisions, several principles of controlling importance here can be distilled. First, if it can reasonably be concluded that the employer's discriminatory conduct was 'inherently destructive' of important employee rights, no proof of an anti[-]union motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations. Second, if the adverse effect of the discriminatory conduct on employee rights is 'comparatively slight,' an anti[-]union motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct. Thus, in either situation, once it has been proved that the employer
engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him.Nat'l Labor Relations Bd. v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967).
After a thorough review of the record, we conclude that the Board did not err in finding that the Township committed unfair labor practices in violation of Section 1201(a)(1) and Section 1201(a)(3) of PERA. Accordingly, the Board's final order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 12th day of December, 2014, the Pennsylvania Labor Relations Board's November 19, 2013 final order is affirmed.
/s/_________
ANNE E. COVEY, Judge