City of Allentown v. Pennsylvania Labor Relations Board

851 A.2d 988, 175 L.R.R.M. (BNA) 2147, 2004 Pa. Commw. LEXIS 379

• Court: Commonwealth Court of Pennsylvania
• Decided: May 11, 2004
• Status: Published

Opinions

OPINION BY

Judge FRIEDMAN.

The City of Allentown (City) appeals from the July 15, 2003, order of the Pennsylvania Labor Relations Board (PLRB), which dismissed the City’s exceptions to the Hearing Examiner’s Proposed Decision and Order and made the Proposed Decision and Order absolute and final. We affirm.

In the late 1970’s the City’s police department created the position of Court Liaison Officer (CLO). The CLO is responsible for working with the Lehigh County District Attorney’s office and other agencies to coordinate the appearance and testimony of City police officers in various court proceedings. The first person to hold the position was a civilian who was not in the Act 111¹ police bargaining unit. The second person to hold the position was a park officer who also was not in the Act 111 bargaining unit. The third CLO held the position between 1983 or 1984 and 1989, and he also was a park officer who was not in the Act 111 bargaining unit. (PLRB’s Final Order at 1.)

In 1989, a police officer who was in the Act 111 bargaining unit was assigned to the position of CLO. From 1989 to 2002, the CLO position was held by a police officer who was a union member. On May 22, 2002, the police chief announced a reorganization of the department, which included a reassignment of the CLO duties to a civilian. On June 10, 2002, without bargaining with the union, the City removed the last police officer to hold the CLO position and transferred the work to a civilian. (PLRB’s Final Order at 1.)

The union filed a charge of unfair labor practice with the PLRB, and a hearing was held before a PLRB Hearing Examiner. The PLRB Hearing Examiner determined that the City committed an unfair labor practice by unilaterally removing the work of the CLO from the bargaining unit. The City filed exceptions, which the PLRB dismissed. The City now appeals to this court.²

The City argues that, because the work of the CLO consisted solely of clerical duties not attendant to any law enforcement functions and required no specialized law enforcement training or certification, the union failed to prove that the City unilaterally removed “police work” from the bargaining unit. However, in making this argument, the City misconstrues the law.

Generally, a public employer commits an unfair labor practice if it unilaterally shifts any “bargaining unit work” to non-members without first bargaining. AFSCME, Council 13, AFL-CIO v. Pennsylvania Labor Relations Board, 150 Pa. Cmwlth. 642, 616 A.2d 135, 138 (1992) (emphasis in original). As the PLRB stated, “determining whether job duties constitute bargaining unit work is mutually exclusive of whether those same job duties constitute police work.” (PLRB Final Order at 2; City’s brief, App. B) (emphasis added). Here, the work of the CLO became “bargaining unit work” in 1989 when the City assigned a member of the bargaining unit to, the CLO position.³ Thus, the City’s argument must fail.

The City also argues that the union failed to prove that the CLO work had been performed historically and exclusively by bargaining unit members. The City’s position is that the union needed to prove that the work was never done by anyone outside the bargaining unit. We disagree.

A union seeking to prove that a unilateral transfer of work outside the bargaining unit constitutes an unfair labor practice must demonstrate that the bargaining unit exclusively performs the work in question. AFSCME. Here, in 2002, when the City unilaterally transferred the CLO work to non-members of the bargaining unit, the bargaining unit was performing the CLO work exclusively. It is true that, prior to 1989, civilians performed the CLO work. However, in determining whether the City committed an unfair labor practice in this case, we look to the circumstances at the time of the unilateral transfer of work in 2002.

Accordingly, we affirm.

ORDER

AND NOW, this 11th day of May, 2004, the order of the Pennsylvania Labor Relations Board, dated July 15, 2003, is hereby affirmed.

1 . Act 111 is the Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1-217.10, and it governs collective bargaining between police officers and their public employers.

2 . Our scope of review of a final order of the PLRB is limited to determining whether constitutional rights were violated, whether there was an error of law, or whether the record contains substantial evidence to support the findings of fact. Pennsylvania State Troopers Association v. Pennsylvania Labor Relations Board, 804 A.2d 1291 (Pa.Cmwlth.2002). The PLRB possesses administrative expertise in the area of public employee labor relations and should be shown deference; therefore, this court will not lightly substitute its judgment for that of the PLRB. AFSCME, Council 13, AFL-CIO v. Pennsylvania Labor Relations Board, 150 Pa.Cmwlth. 642, 616 A.2d 135 (1992).

3 . In its brief, the PLRB states that, to the extent the City contends that CLO work no longer belongs in the bargaining unit, the City may file a petition for unit clarification. (PLRB’s brief at 8-9.)