Borough of Ellwood v. Labor Relations Bd., 473 C.D. 2007.

941 A.2d 728

BOROUGH OF ELLWOOD CITY, Petitioner v. PENNSYLVANIA LABOR RELATIONS BOARD, Respondent.

No. 473 C.D. 2007.

Commonwealth Court of Pennsylvania.

Argued October 10, 2007.

Decided January 4, 2008.

Edward Leymarie, Jr., Ellwood City, for petitioner.

Samuel B. Ickes, Harrisburg, for respondent.

Christopher J. Cimballa, Pittsburgh, for intervenor, Ellwood City Police Wage and Policy Unit.

BEFORE: LEADBETTER, President Judge, and COLINS, Judge, and McGINLEY, Judge, and SMITH-RIBNER, Judge, and PELLEGRINI, Judge, and SIMPSON, Judge, and LEAVITT, Judge.

OPINION BY Judge SMITRIBNER.

The Borough of Ellwood City (Borough) petitions for review of a decision of the Pennsylvania Labor Relations Board (Board) that denied exceptions filed by the Borough and made final and absolute a proposed decision and order (PDO) of a Hearing Examiner. The Ellwood City Police Wage and Policy Unit (Union) filed a charge of an unfair labor practice with the Board in regard to the Borough's adoption through resolution and then in an ordinance of a policy of prohibiting the use of tobacco products by anyone on or in Borough-owned buildings, vehicles or equipment.

The Borough questions whether a municipality employer is required to bargain with its police employees regarding ordinances that ban smoking in public buildings when, as police officers, the employees are sworn to enforce such ordinances. Respondent Board counter-states the question as whether it erred as a matter of law in deciding, consistent with precedent, that an employer must collectively bargain over employees' use of tobacco in the workplace.

I

The Union is the bargaining representative for the Borough police officers. The Hearing Examiner found that before June 19, 2006, the Borough allowed police officers to smoke and to use tobacco products in its buildings, vehicles and equipment. On that date the Borough Council adopted Resolution # 2006-10, which banned the use of such products in those places. The Mayor advised all personnel of the new resolution, and on August 21, 2006 the Council adopted Ordinance # 2397, using virtually identical language.¹ The Borough did not bargain with the Union before adopting the Resolution and Ordinance.

On July 13, 2006, the Union filed with the Board a charge of unfair labor practices asserting that the Borough violated Sections 6(1)(a) and 6(1)(e) of the Pennsylvania Labor Relations Act (PLRA), Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. §§ 211.6(1)(a) and 211.6(1)(e), which make it an unfair labor practice for an employer to interfere with, restrain or coerce employees in the exercise of rights guaranteed under the PLRA and to refuse to bargain collectively with representatives of the employees, The Union also asserted a violation of the Act of June 24, 1968, P.L 237, 43 P.S. §§§ 217.1-217.10, commonly known as "Act 111," which provides for collective bargaining by police or firefighters, by unilaterally adopting a total tobacco products ban in enclosed areas of Borough property, including buildings, facilities and vehicles.

Following a hearing on September 28, 2006, the Hearing Examiner issued the PDO on December 21, 2006. He noted that an employer commits an unfair labor practice under Sections 6(1)(a) and 6(1)(e) of the PLRA if it unilaterally changes a mandatory subject of bargaining. Plumstead Township v. Pennsylvania Labor Relations Board, 713 A.2d 730 (Pa. Cmwlth.1998). The Union had cited Lebanon County Detectives Ass'n v. Lebanon County, 27 PPER ¶ 27260 (Final Order, 1996), for the position that use of tobacco products by police officers is a mandatory subject of bargaining. The Borough cited Chambers burg Area School District v. Pennsylvania Labor Relations Board, 60 Pa.Cmwlth. 29, 430 A.2d 740 (1981), to argue that a ban on use of tobacco prod ucts by police officers to promote the health, safety and welfare of children is a managerial prerogative.

The Hearing Examiner pointed out that Lebanon County Detectives Ass'n referred to Commonwealth v. Pennsylvania Labor Relations Board (Venango County Board of Assistance), 74 Pa.Cmwlth.1, 459 A.2d 452 (1983), and Crawford County v. Pennsylvania Labor Relations Board, 659 A.2d 1078 (Pa.Cmwlth.1995), as cases in which claims had been rejected that a smoking policy was central to the mission of a municipality and so was a managerial prerogative.² He concluded that the Borough's reliance on Chambers burg Area School District was misplaced because the rationale of that case applies only to school. district employers, and the Borough is not engaged in the enterprise of education. Further, the Resolution and the Ordinance made no mention of the health and safety of children in particular in imposing the ban. The Hearing Examiner determined that the Borough committed an unfair labor practice and ordered it to cease refusing to bargain and to rescind the Resolution and the Ordinance.

On the Borough's exceptions, the Board stated that the law was well settled that generally the use of tobacco by members of a bargaining unit is a mandatory subject of bargaining, citing Venango County Board of Assistance, Crawford County and Lebanon County Detectives Ass'n. In the last of those decisions the Board stated that the various state and federal acts that promote clean air and warn of the risks of tobacco smoking do not amount to a bar to negotiations on this issue under Act 111. A sufficient distinction was made in Chambersburg Area School District because the smoking ban was essential to the school district's basic mission. The Borough had cited Section 1202(6) of The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. § 46202(6), which provides that boroughs are empowered "[t]o make such regulations as may be necessary for the health, safety, morals, general welfare and cleanliness and the beauty, convenience, comfort and safety of the borough."

In Indiana Borough v. Pennsylvania Labor Relations Board, 695 A.2d 470, 474 (Pa.Cmwlth.1997) (quoting Township of Upper Saucon v. Pennsylvania Labor Relations Board, 152 Pa.Cmwlth. 530, 620 A.2d 71, 73-74 (1993)), the Court held that "`an issue is deemed bargainable [under Act 111] if it bears a rational relationship to employees' duties,'" but to be deemed not subject to bargaining "`a managerial policy concern must substantially outweigh any impact an issue will have on the employes.'" The rational relationship test under Act 111 is similar to the balancing test in cases dealing with the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101-1101.2301 (PERA), as set forth in Pennsylvania Labor Relations Board v. State College Area School District, 461 Pa. 494, 507, 337 A.2d 262, 268 (1975): a matter is bargainable if "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."

The Board rejected the assertion that the Hearing Examiner erred by failing to find that the use of tobacco products by children poses a threat to the health, safety and morals of a community and that the Borough's interest in protecting children outweighed any impact on the interest of police officers. The Borough had not expressed an interest similar to that of a public school; rather, its stated reasons related to "the danger of tobacco products to users and persons affected second hand by the use of tobacco" and a generalized intent to provide a tobacco-free environment "to promote the health and welfare of its employees and citizens." Ordinance # 2397; N.T., Joint Ex. 2. In contrast, the adoption of an ordinance in December 2004 barring possession or use of tobacco products in the Borough by those under age eighteen expressly addressed the need to protect "the health and general welfare of our young citizens...." Ordinance # 2360; N.T., Respondent's Ex. 1. Because the findings and conclusions were supported, the Board dismissed the exceptions and made the PDO absolute and final.³

II

The Borough first asserts that this case is different from Crawford County and Venango County Board of Assistance. In Crawford County, 659 A.2d at 1082, the Court stated that the balancing test set forth in State College Area School District "is to weigh the employees interest in the terms and conditions of their employment against the employer's interest in directing the overall scope and direction of the enterprise" and that it must be applied on a case-by-case basis. In Chambersburg Area School District the smoking ban was justified as an exception to the collective bargaining obligation because it was essential to the school's mission, but under different facts in Venango County Board of Assistance the smoking ban did not directly interfere with the agency's essential mission. The Borough argues that Section 1202(6) of The Borough Code authorizes the Borough to make regulations for the health, safety, morals and general welfare of its citizens, and it refers specifically to the ordinance adopted in December 2004. Next, the Borough states, it adopted Ordinance # 2397 on August 21, 2006 prohibiting the public from smoking in publicly owned buildings and vehicles, expressly acknowledging "the danger of tobacco products to users and persons affected second hand by the use of tobacco." The Board's decision would allow a police officer to enforce the 2004 or 2006 ordinance while smoking a cigarette.

In applying the rational relationship test, the Board concluded that this case was more similar to those in Crawford County and Venango County Board of Assistance, and it noted that protection of children was not mentioned in the enactment of Ordinance # 2397. The Borough argues, however, that the Ordinance enforces the intent of the legislature in adopting Section 10.1 of the Act of April 27, 1927, P.L. 465, as amended, commonly known as the Fire and Panic Act, added by Section...