J-A23009-22
2023 PA Super 44
CHRIS TAYLOR : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : PENNSYLVANIA STATE : No. 1473 MDA 2021 CORRECTIONS OFFICERS : ASSOCIATION :
Appeal from the Order Entered October 15, 2021 In the Court of Common Pleas of Huntingdon County Civil Division at No(s): 2021-688
BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*
OPINION BY BOWES, J.: FILED MARCH 20, 2023
Chris Taylor appeals from the October 15, 2021 order sustaining the
preliminary objections of the Pennsylvania State Corrections Officers
Association (“PSCOA”) as to Mr. Taylor’s claim under the Declaratory
Judgments Act, 42 Pa.C.S. §§ 7531-41, which sought a legal determination
that PSCOA had violated its duty of fair representation. We affirm.
The underlying facts of this matter are undisputed. Mr. Taylor is
employed by the Pennsylvania Department of Corrections at SCI-Huntingdon
in a bargaining unit represented by PSCOA. Mr. Taylor was a member of this
labor union until June 2019, when he and several of his colleagues resigned
from PSCOA in response to the United States Supreme Court’s holding in
Janus v. AFSCME, Council 31, ___ U.S. ___, 138 S.Ct. 2448, 2486 (2018),
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* Former Justice specially assigned to the Superior Court. J-A23009-22
which established that “public-sector unions may no longer extract agency
fees from nonconsenting employees” under the First Amendment to the United
States Constitution. Despite his resignation, PSCOA remains Mr. Taylor’s
“exclusive representative” pursuant to the Public Employe Relations Act
(“PERA”), 43 P.S. §§ 1101.101-.2301.1 See 43 P.S. § 1101.606. Accordingly,
PSCOA remains obligated under Pennsylvania law “to bargain on wages,
hours, terms and conditions of employment” upon Mr. Taylor’s behalf. Id.
Furthermore, both parties agree PSCOA has an ongoing duty under the
relevant collective bargaining agreement (“CBA”) to submit employment
grievances on Mr. Taylor’s behalf and represent him at related proceedings.
In or about July 2019, PSCOA promulgated a schedule of fees in
connection with its putative representation of non-union members like Mr.
Taylor in the context of various employment grievances (“the fee schedule”).
See id. at Exhibit A. This document provides as follows:
Scheduling Fees for Grievance and Heart and Lung Arbitrations
Grievance Process Step 1: Filing fee $50.00 Step 2: Filing fee $100.00 Panel cost of 3 business agents @ [$]40.00 per hour
1 We note that “[i]ndividual claims by employees against the union that allege a breach of the duty of fair representation do not qualify as unfair labor practices in violation of PERA.” Case v. Hazelton Area Educational Support Personnel Ass’n (PSEA/NEA), 928 A.2d 1154, 1161 (Pa.Cmwlth. 2007) (en banc). Although the decisions of the Commonwealth Court do not bind this Court, such writings do constitute persuasive authority. See Eastern Steel Constructors, Inc. v. International Fid. Ins. Co., 282 A.3d 827, 861 n.40 (Pa.Super. 2022).
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Representation from local-Local VP @ $200.00 per day plus travel and lodging Step 3: Filing fee/Cost of Arbitrator $3000.00 Lawyer @ $250.00 per hour plus travel and lodging Business Agent @ $40.00 per hour Executive Officers @ $85.00 per hour
Heart and Lung Process (Denial or termination of benefit) Filing fee $225.00 Cost of Arbitrator $3000.00 Lawyer @ $250.00 per hour plus travel and lodging Medical Reports and Depositions – Cost varies ($1000.00 to $4000.00) Average cost is $5000.00 and up.
Id. (line breaks homogenized).
In June 2021, Mr. Taylor initiated this declaratory judgment action by
filing a civil complaint in the Court of Common Pleas of Huntingdon County.2
See Complaint, 6/23/21, at ¶¶ 1-47. Therein, he asserted, upon non-specific
“information and belief,” that PSCOA “will refuse to file a grievance on behalf
of a nonmember without first receiving payment” as provided in the above-
quoted fee schedule. Id. at ¶ 20. Furthermore, Mr. Taylor alleged that the
fee schedule was instituted in “bad faith” to discourage non-members of
PSCOA from filing grievances and to retaliate against Mr. Taylor and other
union resignees. Id. at ¶¶ 29-31. Thus, he requested a determination that
the institution of non-member fees in connection with employment grievances
2 Our jurisprudence suggests that claims in the courts of common pleas concerning a union’s alleged breach of the duty of fair representation must be equitable in nature. See Waklet-Riker v. Sayre Educ. Ass’n, 656 A.2d 138, 141 (Pa.Super. 1995). It is well-established that “declaratory judgment actions arise in equity[.]” Carlino East Brandywine, L.P. v. Brandywine Village Assoc., 197 A.3d 1189, 1199 (Pa.Super. 2018).
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and arbitration by PSCOA had breached the duty of fair representation under
Pennsylvania state law. Id. at ¶¶ 35-47.
PSCOA filed preliminary objections in the nature of a demurrer pursuant
to Pa.R.C.P. 1028(a)(4), arguing Mr. Taylor had failed to allege a sufficient
basis to sustain a cause of action for a breach of the duty of fair
representation. Specifically, PSCOA asserted that Mr. Taylor had failed to
plead sufficient material facts in support of his claims for relief. See
Preliminary Objections, 8/18/21, at ¶ 34 (“The instant [c]omplaint contains
no averment that that PSCOA acted in bad faith other than the conclusory
statement made by [Mr. Taylor.]”). The trial court held a brief hearing on the
preliminary objections, wherein Mr. Taylor rested upon the allegations present
in his complaint. See N.T. Hearing, 12/27/21, at 4 (“I think that the facts
here are far from conclusionary. . . . And there are plenty of paragraphs that
related to how it is bad faith and discriminatory against non-members.”).
On October 15, 2021, the trial court sustained PSCOA’s preliminary
objections and dismissed Mr. Taylor’s complaint without prejudice. Rather
than amend, on November 9, 2021, Mr. Taylor filed a praecipe to dismiss his
claims with prejudice. On November 15, 2021, he filed a timely notice of
appeal to this Court. Both Mr. Taylor and the trial court have complied with
the requirements of Pa.R.A.P. 1925.
Mr. Taylor has raised a single issue for our review:
Does a complaint allege sufficient facts to show that a union violates its duty to fairly represent all employees when it alleges that the union discriminates against those who are not union
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members, and institutes policies to retaliate against an employee it disfavors, in the administration of rights under the collective bargaining agreement?
Appellant’s brief at 2.
In reviewing this matter, we bear the following legal principles in mind:
In ruling on preliminary objections in the nature of a demurrer, the trial court was required to accept as true all well-pleaded allegations of material fact and all reasonable inferences deducible from those facts and resolve all doubt in favor of the non-moving party. The question presented was whether, on the facts averred, the law says with certainty that no recovery is possible. When any doubt exists as to whether the demurrer should be sustained, this doubt should be resolved in favor of overruling it.
On appeal from the trial court’s order overruling preliminary objections in the nature of [a] demurrer, our standard of review is de novo and our scope of review is plenary. Hence, we apply the same standard as the trial court in evaluating the legal sufficiency of the complaint, and examine whether, on the facts averred, the law says with certainty that no recovery is possible.
Lomax v. Sullivan, 282 A.3d 790, 792 (Pa.Super. 2022) (cleaned up). In
this context, “no testimony or other evidence outside of the complaint may be
considered to dispose of the legal issues presented by a demurrer.” Mellon
Bank, N.A. v. Fabinyi, 650 A.2d 895, 899 (Pa.Super. 1994). However, “a
court need not accept as true conclusions of law, unwarranted inferences, or
expressions of opinion.” Bayada Nurses, Inc. v. Comm., Dept. of Labor
and Industry, 8 A.3d 866, 884 (Pa. 2010).
This case implicates the duty of fair representation, which arises
because “a union acts as a trustee for the rights of its members and employees
in the bargaining unit.” Case v. Hazelton Area Educational Support
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Personnel Ass’n (PSEA/NEA), 928 A.2d 1154, 1158 (Pa.Cmwlth. 2007) (en
banc).3 Consequently, “the members and employees are beneficiaries of a
fiduciary obligation owed to them by the union,” which the union transgresses
“when it acts in bad faith toward its members, and violates the fiduciary trust
created from the principal-agent relationship.” Case, supra at 1158 (citing
Falsetti v. Local Union No. 2026, UMWA, 161 A.2d 882, 895 (Pa. 1960)).
Specifically, “[a] union has the duty to fairly represent its members
throughout any grievance and arbitration process provided for by a collective
bargaining agreement.” Miles v. FOP Lodge #5, 217 A.3d 892, 898-99
(Pa.Cmwlth. 2019). A labor union violates its duty if, in processing an
employee’s grievance, it does “not act in good faith, in a reasonable manner
and without fraud[.]” Falsetti, supra at 895-96. Finally, “a public
employee’s remedy for his bargaining agent’s refusal to submit a grievance
. . . is an action against the union for damages for breach of its duty of fair
representation.” Ziccardi v. Comm., 456 A.2d 979, 981 (Pa. 1984).
Mr. Taylor’s arguments are best summarized as follows: “Pennsylvania
law prohibits a union from discriminating against a nonmember in the
administration of rights under a CBA. And, in this case, [PSCOA’s] own
contract grants rights to all employees it represents. The Union may not now
3 We note that the name of one of the litigants, Hazleton Area Educational Support Personnel Association, is misspelled in the name of this case. See Case, supra at 1155. For the sake of consistency and accurate citation, we have utilized the “correct” title of the case throughout this writing.
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condition those rights to nonmembers on newly invented, and illegal, pay-to-
play fees.” Appellant’s brief at 11-12. Under Mr. Taylor’s theory, PSCOA’s
circulation of the fee schedule is sufficient to demonstrate it has acted in bad
faith and to retaliate against Mr. Taylor for resigning from the union.
The scope of PSCOA’s representation of Mr. Taylor in the context of
employment grievances emanates from the terms of the CBA, as evidenced
by the contents of Mr. Taylor’s complaint. See Complaint, 6/23/21, at ¶¶ 18-
19 (averring that PSCOA’s representation of Mr. Taylor in the context of
grievances is governed by “Article 35” of the CBA); Appellant’s brief at 10 (“As
a corrections officer for the Commonwealth, Mr. Taylor is entitled to the
employments the CBA guarantees to his position.”). Despite referring to this
inherently critical document throughout his complaint, Mr. Taylor has
neglected to attach a copy of the CBA to any filing submitted in the trial court.
Hence, it was not included in the certified record on appeal. This glaring
oversight creates significant ambiguity with respect to the grievance process
dictated by the CBA and, more importantly, the arguable impact of the fee
schedule upon the grievance and arbitration process that PSCOA must follow.
To the extent Mr. Taylor relies upon the CBA to support his position, such
reliance is fruitless due to the deficiency of his pleadings and the record.
As drafted, Mr. Taylor’s claim for relief is not grounded in the specific
terms of his employment. Rather, his argument is much more general and
avers that PSCOA is precluded, under all circumstances, from imposing the
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fee schedule. In staking out this position, he asserts that the union cannot
treat him any differently from any other employees of the bargaining unit. Mr.
Taylor is mistaken on this point, however, as it is well-established under
Pennsylvania law that unions enjoy significant discretion in declining to pursue
grievances raised by the individuals that they represent:
Individual bargaining unit members have no absolute right to have their grievances arbitrated. Ziccardi v. Commonwealth, 456 A.2d 979, 981 (Pa. 1982). Rather, a union has broad discretion to determine whether to pursue a grievance to arbitration and has no duty to arbitrate every grievance. Falsetti, supra at 894 n.19. . . . A wide range of reasonableness must be allowed to a bargaining representative in serving the unit it represents, subject always to good faith and honesty of purpose in the exercise of this discretion. See Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953). A union’s actions are arbitrary only if, in light of the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far outside a wide range of reasonableness as to be irrational. See Air Line Pilots Association, International v. O’Neill, 499 U.S. 65, 78 (1991). Bad faith, for its part, requires a showing that a union either acted in a fraudulent, deceitful, or dishonest manner or with an improper motive. See Motor Coach Employees v. Lockridge, 403 U.S. 274, 299 (1971).
Anderson v. Pleasant Valley Educational Support Professionals’
Assoc., 272 A.3d 999 (Pa.Cmwlth. 2022) (unpublished memorandum at 6).4
Thus, it is incumbent upon a plaintiff to “plead any material facts upon which
a claim of bad faith could be based” in the context of an action for an alleged
breach of the duty of fair representation. Waklet-Riker v. Sayre Area Educ.
4 The Commonwealth Court permits the citation of its unreported decisions filed after January 15, 2008, for their persuasive value. See Commonwealth Court I.O.P. § 414(a).
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Ass’n, 656 A.2d 138, 141 (Pa.Super. 1995). A plaintiff’s failure to allege
sufficient facts on this required element is “fatal” to their claims. Id.
Here, the factual record establishes that Mr. Taylor resigned from PSCOA
and no longer pays an agency fee to PSCOA. Approximately one month later,
PSCOA issued the fee schedule and advised Mr. Taylor that any future
employment grievances filed through PSCOA would be governed by these
provisions. These are the only relevant factual averments that Mr. Taylor has
pleaded in support of his allegations of breach of duty and bad faith. See
Complaint, 6/23/21, at ¶¶ 31. Thus, Mr. Taylor’s claim is that PSCOA’s
promulgation of the fee schedule is self-evidently an act of bad faith under
Pennsylvania law since it constitutes differential treatment.
As noted above, there is no merit to Appellant’s general contention that
a union must treat all grievances from the individuals it represents identically.
See Anderson, supra at 6. To the contrary, PSCOA is empowered to make
reasonable assessments with respect to deciding whether to pursue employee
grievances based upon “the factual and legal landscape” at the time of its
actions. Id. Furthermore, there is no support under Pennsylvania law for Mr.
Taylor’s broad contention that PSCOA is not permitted to charge ancillary fees
to non-union members in connection with representing such individuals in the
context of employment grievances. Indeed, we note that there is a dearth of
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on-point Pennsylvania precedent concerning this specific question.5 Under
such circumstances, we are permitted to “look to federal decisions for
guidance” where there is “no meaningful difference” between state and federal
labor policies. See, e.g., Burse v. Comm., Pennsylvania Labor Relations
Board, 425 A.2d 1182, 1184 (Pa.Cmwlth. 1981). Under this rubric, Janus
provides substantial guidance here. In that case, the United States Supreme
Court concluded that a state’s “extraction of agency fees from nonconsenting
public-sector employees violates the First Amendment,” overruling Abood v.
Detroit Bd. of Ed., 431 U.S. 209 (1977) (permitting mandatory collection of
5 The holdings selectively cited by Mr. Taylor in support of his position are unavailing and inapposite. See Appellant’s brief at 12-27. The only such passage that arguably directly addresses the issue of representing non-union members in grievances processes comes from dicta from Falsetti v. Local Union No. 2026, UMWA, 161 A.2d 882 (Pa. 1960), wherein our Supreme Court quoted the following passage from a secondary source: “‘The bargaining representative would be guilty of a breach of duty if it refused to press a justifiable grievance either because of laziness, prejudice or unwillingness to spend money on behalf of employees who were not members of the union.’” Id. at 895 n.21 (quoting Cox, Individual Enforcement of Collective Bargaining Agreements, 8 Lab.L.J. 850, 858-9 (1957)). This quotation was offered as an example of the manner in which certain legal scholars had defined the general scope of the duty of fair representation. Id.
Critically, however, Falsetti never explicitly adopted this precise formulation with respect to the expenditure of funds on behalf of non-union members and no subsequent Pennsylvania court has ever elected to do so. Thus, the passage cited by Mr. Taylor is mere dicta that boasts no precedential value. See Castellani v. Scranton Times, L.P., 124 A.3d 1229, 1243 n.11 (Pa. 2015). In light of the authoritative guidance offered by Janus on the matters raised by Mr. Taylor, we decline his invitation to elevate this footnote to the level of binding precedent under Pennsylvania law.
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agency fees from non-members if utilized solely for “collective bargaining,
contract-administration, and grievance-adjustment purposes”).
In Janus, the Court also addressed one of the nascent issues posed by
the holding, namely that public-sector unions like PSCOA would be forced to
represent non-members like Mr. Taylor in grievance proceedings, as follows:
What about the representation of nonmembers in grievance proceedings? Unions do not undertake this activity solely for the benefit of nonmembers . . . . Representation of nonmembers furthers the union’s interest in keeping control of the administration of the collective-bargaining agreement, since the resolution of one employee’s grievance can affect others. And when a union controls the grievance process, it may, as a practical matter, effectively subordinate the interests of an individual employee . . . to the collective interests of all employees in the bargaining unit.
In any event, whatever unwanted burden is imposed by the representation of nonmembers in disciplinary matters can be eliminated through means significantly less restrictive of associational freedoms than the imposition of agency fees. Individual nonmembers could be required to pay for that service or could be denied union representation altogether.
Janus, supra at 2468 (cleaned up; emphasis added).
Thus, while acknowledging that “free riders” like Mr. Taylor posed a
potential problem, the Court in Janus concluded that coercive agency fees
were not a viable solution. Rather, the Court suggested that the assessment
of individual fees associated with a union’s representation of a non-member
in pursuing a grievance is an appropriate, alternative response to this financial
conundrum. The above-quoted passage from Janus leads us to conclude that
there is a distinction between shop agency fees assessed as an automatic
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condition of a non-member’s employment in a bargaining unit, and the
permissive payment of certain fees in exchange for actual services rendered
by a public-sector union, i.e., representation in employment grievances and
arbitrations.6 According to the United States Supreme Court, “[t]his more
tailored approach, if applied to other objectors, would prevent free ridership
while imposing a lesser burden on First Amendment rights.” Id. at 2468 n.6.
Viewing the totality of the factual and legal landscape of this case, we
cannot conclude that Mr. Taylor has proffered material facts demonstrating
that PSCOA has violated the duty of fair representation. As noted above, it is
undisputed that Mr. Taylor chose to alienate himself from his union
membership and elected to cease paying an agency fee to PSCOA. In
response to these actions, PSCOA adopted the fee schedule to ease the
financial burden posed by its representation of non-members such as Mr.
Taylor in future employment grievances. This is precisely the arrangement
described by the United States Supreme Court as a permissible alternative to
compulsory agency fees. See Janus, supra at 2468 n.6. In the absence of
the CBA, it is not apparent from the record if, or how, the fee schedule will
otherwise negatively impact Mr. Taylor’s rights with respect to his
6 As an example of such an alternative arrangement, the Supreme Court cited an Illinois statute providing that individuals who declined to pay agency fees on religious grounds could be charged a “reasonable cost” by the union if they later sought to avail themselves of union representation in a “grievance or arbitration procedure[.]” Janus, supra at 2468 n.6 (citing 5 ILCS 315/6(g)).
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representation by PSCOA. Furthermore, Mr. Taylor has offered no allegations
that the fees imposed by PSCOA are excessive or unrelated to prospective
grievance and arbitration proceedings. The mere fact that PSCOA has
implemented the fee schedule is not, in and of itself, sufficient to establish a
violation of the duty of fair representation. Without additional material facts
to support his conclusory averments, we cannot find that Mr. Taylor has
asserted a sufficient basis to establish that PSCOA has acted arbitrarily,
irrationally, or fraudulently. See Anderson, supra at 6.
Based upon the foregoing discussion, we agree with the trial court’s
assessment that Mr. Taylor is not entitled to recovery as a matter of law.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 03/20/2023
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