Pennsylvania State Corrections Officers Ass'n v. State Civil Service Commission

900 A.2d 997, 179 L.R.R.M. (BNA) 3117, 2006 Pa. Commw. LEXIS 285

• Court: Commonwealth Court of Pennsylvania
• Decided: June 2, 2006
• Status: Published

Opinions

OPINION BY

Judge LEAVITT.

The Pennsylvania State Corrections Officers Association petitions for review of an adjudication of the State Civil Service Commission directing the Department of Corrections to calculate the seniority rights of Dennis N. Jenkins, Sr. in accordance with the seniority provisions of the State Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §§ 741.1 — 741.1005 (Civil Service Act). These provisions in the Civil Service Act, however, conflict with the seniority provisions in the collective bargaining agreement (CBA) negotiated on behalf of Jenkins and all other members of his bargaining unit. The question in this appeal is whether Jenkins’ seniority rights are governed by the CBA or by the Civil Service Act.

The relevant facts are not in dispute. Jenkins began employment on June 25, 1987, as a Corrections Officer Trainee at SCI-Camp Hill; after successfully completing training, he was made a Corrections Officer 1. On March 1, 1992, he was promoted to Sergeant, a Corrections Officer 2 position. In all three positions, Jenkins was a member of the H-l Bargaining Unit of the Pennsylvania State Corrections Officers Association (Union), which represents 10,000 members, including all corrections officers employed by the Department.

On March 31, 2002, Jenkins was promoted to Lieutenant, a management level position that took him out of the H-l Bargaining Unit. Soon after taking the new job, Jenkins requested a return to his former position for reasons “personal and financial [in] nature.” Joint Stipulations, Ex. 3; Reproduced Record at 131a (R.R_). His request was granted, and on May 26, 2002, Jenkins returned to his position at SCI-Camp Hill as a Sergeant, thereby re-entering the H-l Bargaining Unit.

When Jenkins returned to his former position, the Department assigned him a seniority date of May 26, 2002, thereby eliminating seniority credit for his employment in the bargaining unit from June 25, 1987, through March 30, 2002. In doing so, the Department followed Article 27, § 2 of the CBA, which provides that an employee who is promoted out of an H-l bargaining unit and thereafter returns must begin accruing seniority anew.¹

On May 13, 2002, Jenkins filed an appeal with the Civil Service Commission, challenging his loss of 15 years of seniority. The parties stipulated the facts, and on March 28, 2003, the Commission found in favor of Jenkins. It concluded that Article 27, § 2 of the CBA was invalid and unenforceable because it conflicted with the Civil Service Act, which requires that seniority for persons in the classified service begins with the first day of employment regardless of promotion or transfer. Accordingly, the Commission directed the Department to calculate Jenkins’ seniority in accordance with the Civil Service Act.

On April 17, 2003, Union petitioned to intervene and requested the Commission to reconsider its adjudication. After the Commission denied both requests, Union petitioned this Court for review of the Commission’s adjudication. This Court vacated the Commission’s order and remanded the matter to the Commission to allow Union to participate in the question of how seniority should be calculated for members of the H-l Bargaining Unit. Pennsylvania State Corrections Officers Association v. State Civil Service Commission (Jenkins and Department of Corrections) (Nos. 932 and 942 C.D.2003, filed April 28, 2004) (,Jenkins I).

At the remand hearing, Union supplemented the record from the first hearing with the testimony of Ed McConnell, Executive Vice-President of the Union, who served on the team that negotiated the CBA. McConnell explained that the seniority provisions in the CBA are used to determine overtime, promotion, vacation bidding, job bidding, shift selection, furlough and vacation accrual for members of the H-l Bargaining Unit. He further explained Union’s position that bargaining unit seniority bears no relation to Civil Service seniority. Stated otherwise, McConnell believed that Jenkins’ seniority rights under the Civil Service Act were in no way affected by the new starting day for his seniority rights as a member of the H-l Bargaining Unit. In no case can Jenkins, or any member of Union, be deprived of seniority rights guaranteed by the Civil Service Act.

On March 4, 2005, following the hearing and the submission of briefs, the Commission issued the adjudication we consider here.² As in Jenkins I, the Commission concluded that Article 27, § 2 of the CBA was unenforceable. It rejected Union’s argument that there was no conflict between the Civil Service Act and the CBA. Further, it held that the conflict between the Civil Service Act and the CBA had to be resolved in favor of the Civil Service Act, reciting the principle that parties to a collective bargaining agreement may not negotiate a term that conflicts with statutory law. This appeal followed.³

On appeal, Union presents two issues for our consideration. First, Union contends the Commission erred in concluding there is a conflict between the CBA and the Civil Service Act, arguing that each operates in a separate universe; as such, each is complementary of the other. Second, Union contends that the Commission’s adjudication is inconsistent with the Civil Service Act because that enactment states, more than once, that the selection, appointment, promotion and furlough of civil service employees is governed by the applicable collective bargaining agreement and not by the Civil Service Act.

We begin our analysis of Union’s first issue with a review of the CBA and the Civil Service Act, each of which establishes rules for calculating seniority. What is critical to this case is their treatment of a break in service, which can cause an employee to lose accumulated seniority.

Section 807.2(a) of the Civil Service Act, 71 P.S. § 741.809(a),⁴ establishes three separate classifications: classified service employment, classification series employment and class employment.⁵ Section 807.2(b) explains how seniority is calculated for each classification; it states:

(b) Seniority for the classified service begins with the date of first civil service employment in a civil service class and includes periods of subsequent employment in any civil service class providing such employment has been on a continuous basis. Seniority for a classification series begins with the date of first civil service employment in the class series and includes periods of employment in classes within the series during any period while employed on a continuous basis in the classified service. Seniority in each class begins with the date of first civil service employment in that class and includes periods of subsequent employment in that class during any period while employed on a continuous basis in the classified service.

71 P.S. § 741.809(b) (emphasis added). Section 807.2(b) means that one accrues seniority for continuous employment in the classified service regardless of promotion or transfer out of a classification series.

The Commission’s regulation implementing the Civil Service Act also provides that seniority is established on the basis of continuous service. It states:

(a) Seniority as used in this part shall be continuous service unless broken by one or more of the following: resignation; retirement; failure to report after notification of appointment through mandatory, preferred or optional reemployment rights; expiration of mandatory, preferred or optional reemployment rights; or failure to report after leave and acceptance of other permanent employment while on leave of absence without pay. If service is broken for one of these reasons, the employe shall lose accrued seniority. If an employe is returned within 1 year after this type of break in service, the employe is entitled to credit for seniority purposes the time accrued up to the time the break in service occurred, but is not entitled to credit for the time represented by the break in service.

4 Pa.Code § 101.71(a) (emphasis added). Thus, under the regulation, seniority is lost where there is a break in service caused by resignation, retirement or “failure to report.” However, seniority may be restored if the employee returns within one year of the break in service. The regulation does not identify a transfer or promotion as an event that will cause a break in service, and this is consistent with the Civil Service Act.

The CBA addresses seniority somewhat differently. Article 27, § 1 states that seniority creates a “preferred position” for an employee whose seniority is greater than that of another. R.R. 52a. “Classification seniority standing for the purpose of promotion shall be determined by the length of unbroken ... service with the Employer in the employee’s current classification.” Article 27, § 1(a) (emphasis added); R.R. 52a. “Bargaining Unit seniority standing for the purpose of furlough shall be determined by the length of unbroken ... service with the Employer in classifications covered by this Agreement.” Article 27, § 1(b) (emphasis added); R.R. 53a. The subject of “unbroken service” is addressed in Article 27, § 2, which states as follows:

The following shall constitute a break in service: resignation, separation for just cause, retirement, absence without leave for five consecutive working days, failure to report within 10 consecutive working days of recall, expiration of recall period, failure to report after leave and acceptance of other permanent employment while on leave. This shall not restrict the Employer’s right to take whatever personnel action it deems warranted for any of the above. If service is broken by any of the above, the employee shall lose Bargaining Unit seniority, Classification seniority and longevity credit. If an employee is returned within one year after such break in service, the employee shall be entitled to credit for longevity purposes and seniority purposes the time accrued up to the time break in service occurred, but shall not be entitled to any credit for the time represented by such break in service.

If an employee accepts a transfer out of or is promoted out of this Unit, the employee shall lose whatever Bargaining Unit and Classification seniority the employee has accumulated up to the time of transfer or promotion. If an employee returns to this bargaining unit at any time after such transfer or promotion, the employee’s seniority in this bargaining unit shall begin anew.

R.R. 53a-54a (emphasis added).

For the most part, Article 27, § 2 tracks the civil service regulation at 4 Pa.Code § 101.71(a). However, it takes a different course where it mandates that a promotion or transfer out of the H-l Bargaining Unit causes a break in service and loss of “seniority and longevity credit.” Article 27, § 2 of the CBA; R.R. 54a. Further, a return to the bargaining unit within one year of the break in service occasioned by a promotion or transfer does not restore the lost seniority credit, as it does under the regulation.

The CBA’s deviation from the Civil Service Act’s directive on “break in service” led the Commission to conclude there was a conflict between the two. It held as follows:

The break-in-service language in the CBA changes the status of appellant’s statutory employment entitlement to have his seniority calculated in a particular way. In reviewing this issue, the Commission notes that the CBA requires forfeiture of seniority legally accumulated in a particular civil service class, when forfeiture of the same class seniority would not otherwise be permissible under the [Civil Service Act]; this results in a direct conflict with an Act of the General Assembly, leaving us to determine whether the CBA provision is, therefore, rendered unenforceable by operation of law. 43 P.S. § 1101.703.

Commission Adjudication at 21. We agree with the Commission that the conflict on break in service cannot be denied. Union argues that the CBA and the Civil Service Act operate in different spheres. It may well be that for members of the bargaining unit, seniority has more uses; it determines overtime rights and vacation bidding, for example, which are topics not addressed by the Civil Service Act. However, the conflict with respect to promotion and furlough is unmistakable. Therefore, we cannot find that the Commission erred in concluding that the CBA and the Civil Service Act were in conflict.

We turn, then, to Union’s second issue. Union argues that the Commission erred because Sections 601, 602 and 802 of the Civil Service Act specifically state that the terms of a collective bargaining agreement control where inconsistent with those in the Civil Service Act. The Commission found these statutory provisions not dis-positive because they speak only to the “procedures” for implementing promotions and furlough; as such, they did not authorize Union to negotiate the “substantive” terms by which to establish seniority. Instead, the Commission found Section 703 of the Public Employe Relations Act (Act 195), Act of July 23, 1970, P.L. 563, No. 195, 43 P.S. § 1101.703, to be dispositive. Because Section 703 states that a collective bargaining agreement may not contain a term that conflicts with a statute,⁶ the Commission concluded that the CBA was invalid where it conflicted vdth the Civil Service Act.

On this second issue, we begin with a consideration of whether Section 703 of Act 195 barred the parties from negotiating on seniority, a question recently considered by this Court in Abel v. City of Pittsburgh, 890 A.2d 1 (Pa.Cmwlth.2005). Abel held that Section 703 of Act 195 did not bar public employers and employees from negotiating on core terms of employment, such as seniority and furlough, even where those terms conflicted with another statute. The logic of Abel applies with equal force here.

In Abel, a collective bargaining agreement required City employees to be laid off by job title and individual department in reverse order of seniority. By contrast, the Pittsburgh Civil Service Act⁷ required that furlough be determined strictly by years of service. After their furlough, several affected City employees appealed to the Pittsburgh Civil Service Commission, which denied them appeal. The trial court reversed, holding that because the operative collective bargaining agreement conflicted with the Pittsburgh Civil Service Act, the CBA was invalid and unenforceable under Section 703 of Act 195.

This Court reversed the trial court, concluding that the trial court misapprehended the meaning of Section 703 of Act 195, which states:

The parties to the collective bargaining process shall not effect or implement a provision in a collective bargaining agreement if the implementation of that provision would be in violation of, or inconsistent with, or in conflict with any statute or statutes enacted by the General Assembly of the Commonwealth of Pennsylvania or the provisions of municipal home rule charters.

43 P.S. § 1101.703. At first glance, Section 703 appears to support the broad conclusion that a statute will always trump a collective bargaining agreement. However, our Supreme Court has clarified that Section 703 does not trump collective bargaining on wages, hours and other essential terms of employment. Pennsylvania Labor Relations Board v. State College Area School District, 461 Pa. 494, 337 A.2d 262 (1975).

In State College, the Supreme Court resolved the conflict between the Public School Code of 1949,⁸ which gave school boards the duty to set teacher salaries, and Section 701 of Act 195,⁹ which mandates public employers to negotiate “with respect to wages, hours and other terms and conditions of employment.” 43 P.S. § 1101.701. The Supreme Court resolved the conflict in favor of Section 701 of Act 195 and held that school boards were required to negotiate wages.

In reaching this conclusion, the Supreme Court explained why Section 703 did not compel another result. It reasoned that

[t]he mere fact that a particular subject matter may be covered by legislation does not remove it from collective bargaining under section 701 if it bears on the question of wages, hours and conditions of employment. We believe that section 703 only prevents the agreement to and implementation of any term which would be in violation of or inconsistent with any statutory directive.

State College, 461 Pa. at 508, 337 A.2d at 269. It further explained that in determining whether there is a “violation of ... any statutory directive,” courts must examine that “statutory directive” as follows:

[I]tems bargainable under section 701 are only excluded under section 703 where other applicable statutory provisions explicitly and definitively prohibit the public employer from making an agreement as to that specific term or condition of employment.

Id. at 510, 337 A.2d at 270 (emphasis added). Thus, State College teaches that Section 703 prohibits parties from collectively bargaining a term only where the other statute “explicitly and definitively prohibits] the public employer from making an agreement as to that specific term.” Id. In the absence of a direct prohibition, an issue must be negotiated under Section 701 if it impacts wages, hours and other terms or conditions of employment. Id. To construe Section 703 otherwise would strip Act 195, which was enacted to authorize collective bargaining for public employees, of any meaning.

In Abel, we followed the State College directive. We first examined the Pittsburgh Civil Service Act to see if it contained an “explicit” and “definitive prohibition” against negotiation of seniority and furlough. Finding none, we held that the terms of the collective bargaining agreement, not the Pittsburgh Civil Service Act, governed seniority and furloughs. Abel, 890 A.2d at 8.¹⁰ The same result is required here. The Civil Service Act does not “explicitly and definitively” prohibit Union and the Department from collectively bargaining the issue of seniority or break-in-service. Therefore, Section 703 of Act 195 did not bar the parties from negotiating a seniority provision in the CBA that differed from the Civil Service Act.

The Commission relied upon Section 703 of Act 195 in holding that the Civil Service Act trumped the CBA. This was error. Section 807.2(b) of the Civil Service Act, 71 P.S., § 741.809(b), sets forth a simple rule for seniority under the act, ie., it begins with the first day of employment. However, it does not contain an “explicit” and “definitive” prohibition against the negotiation of a different seniority provision in collective bargaining and, thus, under State College the parties were free to negotiate on seniority, an essential term of employment.

The Commission’s adjudication is also contrary to the Civil Service Act. Seniority only has meaning when applied to employment rights, such as furlough or promotion. Far from prohibiting the parties from negotiating promotion and furlough provisions different from those required by statute, the Civil Service Act expressly authorized such negotiation.¹¹

Seniority is central to furlough under the Civil Service Act. It states, in relevant part, that

the employe shall be furloughed in the order of seniority unless there is in existence a labor agreement covering the employes to be furloughed, in which case the terms of such labor agreement relative to a furlough procedure shall be controlling.

Section 802 of the Civil Service Act, 71 P.S. 741.802(a) (emphasis added). The Civil Service Act, unlike the CBA, does not make express mention of how seniority affects promotion. However, it does not matter because the legislature has also given a free hand to the Commonwealth and public employees represented by a union to negotiate on promotion. With regard to promotions, the Act states, in relevant part, that

unless there is in existence a labor agreement covering promotions in the classified service, in which case the terms and procedures of such labor agreement relative to the procedures for promotions shall be controlling, the director shall certify to the appointing authority the names of the three eligibles who are highest on the appropriate promotion list or employment list

Section 601 of the Civil Service Act, 71 P.S. 741.601 (emphasis added). Finally, Section 602 of the Civil Service Act provides:

If a vacant position is to be filled, an appointing authority may request the director to issue an appropriate certification of eligibles unless a labor agreement contains promotion procedures which are inconsistent with this act, in which case the terms of such labor agreement shall be controlling.

71 P.S. 741.602 (emphasis added).¹² Thus, with respect to promotion, furlough and reinstatement, the Civil Service Act expressly authorized the parties to negotiate without regard to any contrary limits in the Civil Service Act. This authority includes the right of the parties to use seniority in ways not contemplated in the Civil Service Act; otherwise, the grant of authority is illusory.

The Commission does not dispute, nor can it, that Sections 601, 602 and 802 of the Civil Service Act expressly authorized the parties to establish the procedures for furlough and promotion in collective bargaining without limitation. The Commission tries to sidestep the plain language of the statute by suggesting that these statutory provisions provide a “narrow” exception, allowing negotiation only on the “procedural mechanisms” for implementing furlough and promotion. Commission Adjudication at 80. It contends that the definition of seniority is a substantive provision on which there can be no negotiation. Id. at 32. The Commission fixated on a distinction that has no difference.

First, the parties were not “explicitly and definitively” prohibited from negotiating on the “substance” of seniority. Under State College, therefore, they may negotiate on the definition of seniority. Second, seniority is an abstract concept without “substance” until employed in a furlough or promotion. The “procedural mechanism” of furlough is determining the order of seniority; there is nothing more to the process. Promotions are made from the appropriate “promotion” list, unless the collective bargaining agreement provides another “procedure,” i.e., employs seniority in ways not contemplated in the Civil Service Act. Section 602 of the Civil Service Act, 71 P.S. § 741.602. In sum, the Civil Service Act regulates promotion and furlough, but those engaged in collective bargaining are authorized to deviate from those statutory-regulations without limit.¹³

Union is correct that Jenkins cannot be generally stripped of his rights as a civil service employee. If he takes another position in state government that does not involve membership in a union, his seniority will be governed, again, by the date he began his employment in the classified service. So long as he is in the H-l Bargaining Unit, however, his seniority will be governed by the CBA for purposes of promotions and furloughs. Any other result would eviscerate Section 701 of Act 195 as well as Sections 601, 602 and 802 of the Civil Service Act, rendering collective bargaining rights under Act 195 “illusory.” State College, 461 Pa. at 503, 337 A.2d at 266.¹⁴

For these reasons, the adjudication of the Commission is reversed.

ORDER

AND NOW, this 2nd day of June, 2006, the adjudication of the State Civil Service Commission dated March 4, 2005, in the above captioned matter is hereby reversed.

1 . Article 27, § 2 of the CBA, provides in pertinent part:

If an employee accepts a transfer out of or is promoted out of this Unit, the employee shall lose whatever Bargaining Unit and Classification seniority the employee has accumulated up to the time of transfer or promotion. If an employee returns to this bargaining unit at any time after such transfer or promotion, the employee’s seniority in this bargaining unit shall begin anew.

R.R. 54a.

2 . The Department did not appeal and did not participate in this matter.

3 . Appellate review of the Commission's adjudication is limited to a determination of whether constitutional rights have been violated, whether errors of law have been committed or whether the findings of the Commission are supported by substantial evidence. Pennsylvania Game Commission v. State Civil Service Commission (Toth), 561 Pa. 19, 26, 747 A.2d 887, 891 (2000).

4 . Section 807.2 was added by the Act of June 1, 1945, P.L. 1366, 71 P.S. § 741.809(a).

5 . The first, seniority for the classified service, begins with the date of first civil service employment in a civil service class without regard to how many positions held, providing the employment has been continuous. The second, seniority for a classification series, includes all periods of employment in classes within a series, e.g., Jenkins' accumulated seniority in the progression from Correction Officer Trainee to Corrections Officer 3. The third, class seniority, includes seniority for periods of employment within a particular class, e.g., Jenkins’ period of employment as a Corrections Officer 3.

6 . In fact, Article 33, § 1 of the CBA reiterates the principle in Section 703; it states:

In the event that any provisions of this Agreement are found to be inconsistent with existing statutes or ordinances, the provisions of such statutes or ordinances shall prevail, and if any provision herein is found to be invalid and unenforceable by a court or other authority having jurisdiction, then such provision shall be considered void, but all other valid provisions shall remain in full force and effect.

R.R. 62a.

7 . Act of May 23, 1907, P.L. 206, 53 P.S. § 23454, added by the Act of June 20, 1947, P.L. 663.

8 . Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 — 27-2702.

9 . Section 701 of Act 195 provides:

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.

43 P.S. 1101.701.

10 . See also Scuoteguazza v. Department of Transportation, 41 Pa.Cmwlth. 534, 399 A.2d 1155, 1158 (1979) (furlough provisions of a collective bargaining agreement held not to violate Section 703 of Act 195 because there was "no explicit and definitive proscription of bargaining concerning furlough procedures” in the Civil Service Act).

11 . The seniority provision in the CBA limits the ability of a furloughed management employee from returning to his prior position in the H-l Bargaining Unit, which is his right under Section 802(b) of the Civil Service Act, 71 P.S. § 741.802(b). He can return, but upon doing so he will have the least seniority in the bargaining unit.

12 . Section 802(c) of the Civil Service Act further provides as follows regarding reinstatement of a furloughed employee:

Under the rules a regular employe furloughed shall for a period of one year be given preference for reemployment in the same class of position from which furloughed and shall be eligible for appointment to a position of a similar class in other agencies under this act unless the terms of an existing labor agreement preclude the employe from receiving the preferential treatment contained in this section in which event the terms of the labor agreement shall be controlling.

71 P.S. § 741.802(c).

13 . It is true, as noted by Judge Friedman in her dissent, that Section 807.2(a) of the Civil Service Act, added by the Act of June 1, 1945, P.L. 1366, as amended, provides that "[s]e-niority is established for the classified service, classification series and for each class.” 71 P.S. § 741.809(a). We disagree that this language amounts to a statutory directive for purposes of the rule in Section 703 of Act 195 that a collective bargaining term may not violate a statutory directive. As our Supreme Court explained in State College, Section 703 has no application unless there is an explicit prohibition against negotiating on promotions, furloughs and seniority in the "existing statutes or ordinances” that conflict with the CBA. R.R. 62a. There is no such explicit prohibition in Section 807.2(a) of the Civil Service Act.

14 . The dissent of Judge Smith-Ribner agrees with the Commission that the Civil Service Act protected Jenkins’ seniority, citing several cases in support thereof. First, none of the cases cited by the dissent addressed the question of whether the contract term at issue was a core term of employment such as wages, hours and other like terms. State College, 461 Pa. at 508, 337 A.2d at 269. State College teaches that unless the public employer is explicitly prevented from negotiating such a term, it may negotiate a term that conflicts with a statutory directive. Second, the dissent fails to account for the fact that Sections 601, 602 and 802 of the Civil Service Act expressly authorize the Commonwealth and Union to negotiate on furlough and promotions, even if those terms conflict with what is stated in the Civil Service Act on furlough and promotion.