PA. STATE TROOPERS ASS'N v. PLRB

761 A.2d 645

PENNSYLVANIA STATE TROOPERS ASSOCIATION, Petitioner, v. PENNSYLVANIA LABOR RELATIONS BOARD, Respondent.

Commonwealth Court of Pennsylvania.

Argued September 12, 2000.

Decided November 6, 2000.

Sean T. Welby, Harrisburg, for petitioner.

Keith Herbster, Harrisburg, for respondent.

Lisa K. Essman, Harrisburg, for intervenor, Com. of PA.

Before PELLEGRINI, Judge, FRIEDMAN, Judge, and MIRARCHI, Jr., Senior Judge.

FRIEDMAN, Judge.

The Pennsylvania State Troopers Association (PSTA) appeals from a final order of the Pennsylvania Labor Relations Board (PLRB). The PLRB order affirmed a hearing examiner's proposed dismissal of a charge of unfair labor practices filed by PSTA against the Commonwealth of Pennsylvania, Pennsylvania State Police (Commonwealth) for failing to offer Corporal Alexander Roy promotion to sergeant as a helicopter pilot. We also affirm.

During the time pertinent to the charge, the parties were under a collective bargaining agreement (CBA) which recognized the position of helicopter pilot as a specialized position in the Pennsylvania State Police. (Hearing Examiner's Findings of Fact, No. 21.) With respect to vacancies for specialized positions, Article 37 of the CBA states in pertinent part:

Section 1. All vacancies for specialized positions or for specialized training will be posted at appropriate work locations at each station within the troop and at troop headquarters prior to the filling of such vacancies for a period of at least ten (10) calendar days during which time members may express their interest in the position.

Section 2. Where it is determined that skill, ability and recent job performance are substantially equal among the bidding members, the vacancy shall be filled, except as provided below, by selecting the member with the greatest seniority.... In evaluating the skill and ability of the bidding members, it is recognized that the appointing officer must exercise particularized judgment with respect to some of the specialized positions. In those cases, that judgment will not be overturned unless it is shown to have been abused or based on unlawful criteria.

Section 3. In the event that the specialized position or training is awarded to a member with less seniority than another member or members who had expressed interest in that position or training, the appointing officer shall within ten (10) business days provide a written explanation to each of the more senior members setting forth the reason or reasons for the selection of the less senior member.

(Joint Exhibit 1; Hearing Examiner's Findings of Fact, No. 3.)

Cpl. Roy entered the state police force over ten years ago, and he has been a helicopter pilot in the aviation division of the bureau of emergency and special operations (BESO) since March of 1994. (PLRB's Findings of Fact, No. 5.) In August of 1994, while still on probationary status with BESO, Cpl. Roy was arrested for simple assault, criminal mischief, harassment and disorderly conduct as a result of a physical altercation with one of his wife's co-workers. On March 7, 1995, following an investigation of the incident, Cpl. Roy was given a twenty-day suspension; in addition, he was removed from his probationary status with BESO and returned to his prior troop assignment. Cpl. Roy filed grievances from both the suspension and the removal, and the matters went to arbitration. On January 16, 1996, the arbitrator issued an opinion and award (Zobrak Award) upholding the twenty-day suspension but directing that Cpl. Roy be returned to BESO's aviation division as a helicopter pilot. (Hearing Examiner's Findings of Fact, No. 6.) Cpl. Roy finally was reassigned to pilot status in April of 1998, after he filed two more grievances and one unfair labor practice charge alleging failure to comply with the Zobrak Award.¹ (Hearing Examiner's Findings of Fact, No. 7.) On September 23, 1996, Cpl. Roy was arrested again and charged criminally because of a domestic dispute. As a result, Cpl. Roy received a twenty-five day unpaid suspension. (Hearing Examiner's Findings of Fact, No. 10.)

In the summer of 1997, PSTA became aware of the Commonwealth's practice of offering certain corporal and sergeant vacancies to selected members who were lower on the promotional eligibility list, while those higher on the list were not offered the same vacancies. (PLRB's Findings of Fact, No. 28.) As a result of PSTA's objection to this practice, on September 10, 1997, the parties entered into a promotional procedures agreement in addition to the CBA already in place. This side letter of agreement (Agreement) was to remain in force for the duration of the then current corporal and sergeant promotional eligibility list. The Agreement states in pertinent part:

1. The Department's practice of offering certain Corporal and Sergeant vacancies to selected members on the promotional eligibility list will be discontinued. If the Department, at its discretion, includes vacancies in the promotion process that are exempt from Article 37 of the [CBA], these vacancies will be offered to all members according to their ranking on the current promotional eligibility list.

2. At the sole discretion of the Commissioner, the Department may promote, in place, any member assigned to a specialized position, as outlined in Article 37 of the [CBA], when that member becomes eligible for promotion.

6. By making this agreement, the Department or the PSTA does not waive any of its rights under the [CBA] with the PSTA or any applicable employment or labor law. All of the provisions of the current [CBA] between the Commonwealth and the PSTA will remain in full force and effect.

(Joint Exhibit 2; Hearing Examiner's Findings of Fact, No. 4.)

Two aviation units, Harrisburg and Hazelton, were supervised by corporals, neither of whom was eligible for promotion. Cpl. Roy, however, was eligible for promotion and, in fact, was at the top of the promotion list; Corporal Foss was second on that list. (Hearing Examiner's Findings of Fact, Nos. 14-15.) On February 17, 1998, Captain James Garofalo, director of the aviation and special services division, called Cpl. Roy and offered him promotion to various sergeant positions. However, Cpl. Roy wanted to stay in the aviation division and, because none of the positions was in aviation, Cpl. Roy declined all offers. Capt. Garofalo then called Cpl. Foss and, in addition to offering him the positions declined by Cpl. Roy, Capt. Garofalo also offered Cpl. Foss a position as sergeant in the aviation division. Cpl. Foss accepted the promotion to sergeant in the aviation unit in Harrisburg. (Hearing Examiner's Findings of Fact, Nos. 16-17, PLRB's Findings of Fact, No. 29.)

On March 17, 1998, PSTA filed charges of unfair labor practices with the PLRB, alleging that the Commonwealth had violated sections 6(1)(a), (c) and (e) of the Pennsylvania Labor Relations Act² (PLRA) and Act 111³ by declining to promote Cpl. Roy to sergeant as a helicopter pilot. At a hearing on August 26, 1998, PSTA charged that failure to promote Roy was: (1) a failure to implement the terms of the Zobrak Award; (2) a refusal to bargain with PSTA; and (3) in retaliation for Roy's protected activity. In regard to the second of these charges, i.e., the Commonwealth's alleged refusal to bargain in good faith, PSTA contended that the Commonwealth failed to meet its obligation under the parties' Agreement. According to PSTA, there was a vacancy for sergeant within aviation, and, pursuant to the parties' Agreement, the Commonwealth was required to offer that position to the first person on the promotion list, Cpl. Roy. The Commonwealth countered that Cpl. Foss was promoted in place in accordance with the Agreement because promotion in place is at the discretion of the Commissioner,⁴ and Cpl. Foss possessed the necessary experience and maturity to be a good supervisor.⁵ The parties disagreed as to whether the promotion at issue was a promotional vacancy, offered to all eligible persons on the promotion list, or whether it was a promotion in place, only offered to the person of lower rank who has the necessary expertise. (See Hearing Examiner's Findings of Fact, No. 20.) Both parties presented evidence at the hearing and filed post-hearing briefs. Based on the record, the hearing examiner made findings and, concluding that PSTA failed in its burden of proof, issued a proposed decision and order (PDO) dismissing all three charges of unfair labor practices against the Commonwealth.

PSTA filed timely exceptions to the PDO and, following a review of the matter, the PLRB dismissed the exceptions and made the PDO absolute and final. In doing so, the PLRB considered the hearing examiner's determination that the Commonwealth did not violate the Agreement or the CBA by refusing to offer Cpl. Roy promotion within the aviation division. Addressing PSTA's exception to this determination, the PLRB initially emphasized that, ordinarily, it lacked jurisdiction to decide claims of agreement violation because interpretation of agreements is a matter typically reserved for the grievance arbitration procedure. However, the PLRB noted that a public employer's clear repudiation of a bargained-for agreement constitutes an unfair labor practice as well as a grievance. See Millcreek Education Association v. Millcreek Township School District, 22 PPER 22185 (Final Order 1991), aff'd, 158 Pa.Cmwlth. 156, 631 A.2d 734 (1993), appeal denied, 537 Pa. 626, 641 A.2d 590 (1994). Then, finding that the Commonwealth did not clearly repudiate the Agreement, the PLRB declined to analyze the Agreement's provisions further to determine which party's interpretation was correct.

PSTA now appeals to this court,⁶ confining its argument to the issue of whether the Commonwealth violated sections 6(1)(a) and (e) of the PLRA and Act 111.⁷ Specifically, PSTA argues that the PLRB erred in dismissing the unfair labor practices charge, in which PSTA alleged...