Pennsylvania Labor Relations Board v. Mars Area School District

389 A.2d 1073, 480 Pa. 295, 1978 Pa. LEXIS 791, 99 L.R.R.M. (BNA) 2441

• Court: Supreme Court of Pennsylvania
• Decided: July 19, 1978
• Docket: 49
• Status: Published

Opinions

OPINION OF THE COURT

ROBERTS, Justice.

Appellee Mars Area School District and the Mars Area Association of School Services Personnel, the duly certified bargaining agent of employees of appellee, were parties to a collective bargaining agreement covering the terms and conditions of employment of “teacher-aides,” members of the bargaining unit the Association represents. The Association filed with appellant Pennsylvania Labor Relations Board an unfair labor practice charge, alleging appellee violated Sections 1201(a)(1) and 1201(a)(5) of the Public Employe Relations Act (Act 195)¹ by unilaterally terminating the employment of teacher-aides and replacing them with unpaid volunteers. Appellee answered and admitted terminating employment, but contended that its conduct was lawful because it was prompted by economic considerations. After a hearing, the Board found that volunteers were substantially performing the duties of teacher-aides. In its final order, the Board agreed with the Association that appellee’s unilateral conduct constituted a refusal to bargain with the Association, in violation of Sections 1201(a)(1) and 1201(a)(5). The Court of Common Pleas of Butler County reversed the final order of the Board. The Board then appealed to the Commonwealth Court, which affirmed. We granted the Board’s petition for allowance of appeal and now reverse the Commonwealth Court and reinstate the final order of the Board.²

Section 701 of Act 195 provides:

“Matters subject to bargaining

Collective bargaining is the performance of the mutual obligation of the public employer and the representative of the public employes to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment, or the negotiation of an agreement or any question arising thereunder and the execution of a written contract incorporating any agreement reached but such obligation does not compel either party to agree to a proposal or require the making of a concession.”

Section 702 provides:

“Matters not subject to bargaining

Public employers shall not be required to bargain over matters of inherent managerial policy, which shall include but shall not be limited to such areas of discretion or policy as the functions and programs of the public employer, standards of services, its overall budget, utilization of technology, the organizational structure and selection and direction of personnel. Public employers, however, shall be required to meet and discuss on policy matters affecting wages, hours and terms and conditions of employment as well as the impact thereon upon request by public employe representatives.”

Here, the question is whether the Board correctly determined that the dismissal of the Association’s teacher-aides and substitution of volunteer workers was a subject of “collective bargaining” within the meaning of Section 701, or one of “inherent managerial policy” within the meaning of Section 702, subject to appellee’s unilateral action.

In Pa.L.R.B. v. State College Area School District, 461 Pa. 494, 337 A.2d 262 (1975), we were confronted for the first time with Section 701’s requirement that public employers bargain collectively with employee representatives “with respect to wages, hours and other terms and conditions of employment” as circumscribed by Section 702’s directive that “[pjublic employers shall not be required to bargain over matters of inherent managerial policy.” Mr. Justice Nix, speaking for the Court, summarized the essence of collective bargaining in the public sector:

“[T]he legislature at the time of the passage of Act 195 fully recognized that the right of collective bargaining was crucial to any attempt to restore harmony in the public sector. It would be absurd to suggest that the legislature deliberately intended to meet this pressing need by providing an illusory right of collective bargaining.

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[Act 195] was a repudiation of the traditional concept of the sanctity of managerial prerogatives in the public sector.”

461 Pa. at 504, 506, 337 A.2d at 266, 267. Against this background, this Court fashioned the appropriate test:

“Thus we hold that where an item of dispute is a matter of fundamental concern to the employes’ interest in wages, hours and other terms and conditions of employment, it is not removed as a matter subject to good faith bargaining under section 701 simply because it may touch upon basic policy. It is the duty of the Board in the first instance and the courts thereafter to determine whether the impact of the issue on the interest of the employe in wages, hours and terms and conditions of employment outweighs its probable effect on the basic policy of the system as a whole.”

461 Pa. at 507, 337 A.2d at 268.

We agree with the Board that appellee’s unilateral termination of the employment of the Association’s teacher-aides and substitution of volunteer workers was impermissible. Appellee’s decision deprived the Association’s members of work, and thus had an immediate and direct impact upon “a matter of fundamental concern to the employes’ interest in wages, hours and other terms and conditions of employment.” Id. Appellee's replacement of these members of the Association with volunteers whom the Board found performed the same tasks demonstrates that it did not change its basic policy goals, only the cost of attaining them. The Board properly concluded that the decision’s immediate impact on wages, hours, terms, and conditions of employment far outweighs any considerations of managerial policy. Appellee was therefore required to bargain under Section 701. A contrary conclusion would allow the public employer’s economic concerns always to outweigh those of its employees, encouraging the very discord in the public sector Act 195 was designed to alleviate.

Our decision upholding the Board is in accord with current authority. Where a school district unilaterally replaced public employees with private employees performing the same functions, the Supreme Court of Wisconsin, interpreting a collective bargaining statute nearly identical to Act 195’s, concluded the matter fell within the ambit of collective bargaining:

“The policies and functions of the district are unaffected by the decision. The decision merely substituted private employees for public employees. The same work will be performed in the same places and in the same manner. The services provided by the district will not be affected.

The primary impact of this decision is on the ‘conditions of employment’; the decision is essentially concerned with wages and benefits, and this aspect dominates any element of policy formulation.”

Unified School District v. Wisconsin Empl. Rel’n Comm’n, 81 Wis.2d 89, 102, 259 N.W.2d 724, 732 (1977). In Dublin Professional Firefighters v. Valley Community Services Dist., 45 Cal.App.3d 116, 119 Cal.Rptr. 182 (1st Dist. 1975), the court, interpreting a similar statute, held that a public agency was obliged to bargain in good faith over assignment of overtime work to temporary employees rather than regular employees previously performing the same work. “The assignment of overtime work to temporary service personnel will have an obvious effect on the workload and compensation of the regular employees, since the regular employees will be deprived of their customary priority in seeking such work.” 45 Cal.App.3d at 119, 119 Cal.Rptr. at 183. Cf. School Committee of Stoughton v. Labor Rel’n Comm’n, - Mass.App. -, 346 N.E.2d 129 (1976) (reducing teacher’s aides’ hours diluted majority status of union and therefore constituted unfair labor practice).

The Board’s order, holding appellee’s refusal to bargain an unfair labor charge under Sections 1201(a)(1) and 1201(a)(5), should be reinstated. Section 1201(a)(1) prohibits public employers from “[ijnterfering, restraining or coercing employes in the exercise of the rights guaranteed [under Act 195].” This section closely follows its federal counterpart, 29 U.S.C.A. § 158(a)(1),³ and was enacted well after the federal courts had established that a refusal to bargain is an unfair labor practice under that section. N.L.R.B. v. George Groh & Sons, 329 F.2d 265, 269 (10th Cir. 1964); Art Metals Construction Co. v. N.L.R.B., 110 F.2d 148, 150-51 (2d Cir. 1940) (L. Hand, J.) (based upon legislative history in both Senate and House reports indicating that all other unfair labor practices were “species of the generic unfair labor practice defined in [§ 158(a)(1)]”); CCH Labor Law Rptr. § 3525 at 7633; see May Department Stores v. N.L.R.B., 326 U.S. 376, 383-84, 66 S.Ct. 203, 208, 90 L.Ed. 145 (1946) (semble). We see no reason why this interpretation should not equally apply to the comparable language of Section 1201(a)(1) of Act 195.

Substantial evidence supports the findings of the Board. Appellee’s Superintendent testified to the similarity of the work teacher-aides and volunteers performed:

[By counsel for the dismissed employes:]

Q Will you enumerate what they did, to the best of your knowledge?

A You are talking about paid aides?

Q Yes, sir.

A Substantially they were in charge of lunchrooms, cafeteria, they assisted and supervised study halls, hall monitoring for supervisory purposes, they acted in a general clerical capacity from typing to correcting tests, running dittos, they assisted in the classroom as directed by the teacher, whether it be a housekeeping chore or in a tutorial role.

!}: 5ji ‡ * *

Q What do [the volunteers] do?

A Basically they are doing clerical functions, running dittos, typing dittos, quasi-tutorial functions, I’d say, in the classroom, the tutoring, under the direction of the teacher.

Q They do many of the same things that the paid aides did. Is that correct?

A Yes.

Q The difference being that these people are not paid. Is that correct?

A One of the differences.

Q Of course, they do not belong to a bargaining unit and the contract does not apply to them. Is that correct?

A That’s right.

Q So that in effect what the School District did, Doctor, and correct me if I am wrong, please, is to do away with a complete bargaining unit of eleven people and have volunteers perform the duties that they performed. Is that correct?

A Partially.

[By counsel for appellee:]

Q Could you explain that, Doctor, your last answer, “partially.”

A In 1970-71 and ’71-72 when we had volunteer aides and teacher aides simultaneously working in the same building, sometimes in the same classroom, or certainly in the same office, I couldn’t, when I walked in the building, determine the difference of who was a paid aide and who was a volunteer. Many of the functions, as was pointed out previously, were similar. Some of the people were typing tests for the same teachers and correcting tests for that same teacher, one being a paid aide and one not being a paid aide, so when Mr. Watzman says that we replaced eleven [paid aides] with volunteers, we did in the fact that they would assume some of the duties, some of the work load that these paid aides did before, the work that they were doing of a similar nature in the preceding year, so I couldn’t say that his statement was completely wrong.

(Emphasis added). One of the dismissed paraprofessionals also testified to the similarity of work.

Although volunteers did not take over each and every duty of the teacher-aides, they performed many of their duties. This evidence supports the finding of the Board that the volunteers substantially replaced the teacher-aides. Therefore, the findings of the Board must be sustained.

Because the refusal of appellee to bargain over the dismissal of teacher-aides was an unfair labor practice under Sections 1201(a)(1) and 1201(a)(5) of Act 195, and because the findings of the Board are supported by substantial evidence in the record, the order of the PLRB must be reinstated.

Orders of the Commonwealth Court and the court of common pleas reversed and final order of the Pennsylvania Labor Relations Board reinstated.

POMEROY, J., filed a concurring and dissenting opinion. JONES, former C. J., did not participate in the decision of this case. NIX, J., did not participate in the consideration or decision of this case.

1 . Act of July 23, 1970, P.L. 563, 43 P.S. §§ 1101.1201(a)(1) & 1101.-1201(a)(5) (Supp.1978). Sections 1201(a)(1) and 1201(a)(5) provide:

“Unfair practices by public employers; acts prohibited (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.

* * * * * *

(5) Refusing to bargain collectively in good faith with an employe representative which is the exclusive representative of employes in an appropriate unit, including but not limited to the discussing of grievances with the exclusive representative.”

The Association further alleged appellee violated Sections 1201(a)(2) and 1201(a)(3) of Act 195, but the Board found the Association did not sustain its burden of proof on these allegations.

2 . We hear this appeal pursuant to the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 204(a), 17 P.S. § 211.204(a) (Supp.1978). On May 31, 1978, this case was reassigned to this writer.

3 . 29 U.S.C.A. § 158(a)(1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employes in the exercise of rights guaranteed [under the National Labor Relations Act].”