Washington County v. Pennsylvania Labor Relations Board

OPINION BY Senior Judge FRIEDMAN. Washington County (County) petitions for review of the June 19, 2012, final order of the Pennsylvania Labor Relations Board (PLRB) dismissing the exceptions filed by County to the proposed decision and order of the hearing examiner and concluding that County committed unfair labor practices in violation of section 1201(a) of the Public Employe Relations Act (PERA).1 We affirm. The Washington Court Association of Professional Employees, affiliated with the American Federation of State, County and Municipal Employees District Council 84 (Union), represents court-appointed juvenile and adult probation officers employed by County. County and Union were parties to a 2002-03 collective bargaining agreement (Agreement). Article VII of the Agreement, titled “HOURS OF WORK AND MEAL PERIODS,” provided that “[t]he work shift shall consist of * # * — 832 — seven-and-one-half (7.5) work hours within a workday of Juvenile and Adult Probation Officers.” (Findings of Fact, No. 4.) County and Union could not reach a successor agreement and proceeded to interest arbitration in accordance with section 805 of PERA.2 The arbitration panel issued an award (Miles Award) effective January 1, 2004, through December 31, 2006. The Miles Award changed the language in Article VII of the Agreement to provide that “[t]he work shift shall consist of eight (8) work hours within a work day of Juvenile and Adult probation officers.” (Findings of Fact, No. 4.) The President Judge of the Washington County Court of Common Pleas (Court of Common Pleas) notified the County Commissioners that he refused to implement the shift provision of the Miles Award. On May 3, 2004, County petitioned the Court of Common Pleas to vacate the Miles Award. (Findings of Fact, No. 5.) On April 19, 2007, Senior Judge Millin issued an order granting County’s petition to vacate the Miles Award with respect to the extension of the paid work shift. (Findings of Fact, No. 6.) Union appealed to this court. In the meantime, County and Union still could not reach a successor agreement to the Miles Award and proceeded to arbitration. On September 24, 2007, an interest arbitration panel issued an award (Petersen I Award), which was retroactively effective from January 1, 2007, through December 31, 2009. The Petersen I Award granted a one-time bonus of $1,200 and an additional one percent wage increase to Union members employed as of May 3, 2004, the date County filed its petition to vacate the Miles Award. The Petersen I Award did not address the additional one-half hour workday extension ordered in the Miles Award. (Findings of Fact, Nos. 8-9.) On May 14, 2008, this court issued an order reversing Judge Millin’s decision and reinstating the provisions of the Miles Award, increasing the paid workday from seven-and-one-half to eight hours. Washington County v. Washington Court Association of Professional Employees, 948 A.2d 271, 278 (Pa.Cmwlth.2008). On April 8, 2010, the Supreme Court denied County’s petition for allowance of appeal. Washington County v. Washington Court Association of Professional Employees, 606 Pa. 652, 992 A.2d 890 (2010). On April 12, 2010, the President Judge of the Court of Common Pleas changed the workday for adult and juvenile probation officers from seven-and-one-half hours of paid work time to eight hours of paid work time. (Findings of Fact, No. 12.) On August 5, 2010, Union filed a charge of unfair labor practices with the PLRB, alleging that County violated section 1201(a)(1) and (5) of PERA by refusing to retroactively implement the provision of the Miles Award that extended the paid work shift by one-half hour. County and Union were again unable to reach a successor agreement. On August 12, 2010, an interest arbitration panel issued an award (Petersen II Award). The Petersen II Award did not address the one-half hour workday addition. (Findings of Fact, No. 13.) On February 9, 2011, the hearing examiner held a hearing on the charge of unfair labor practices. In his proposed decision and order of February 16, 2012, the hearing examiner concluded that Union filed its charge of unfair labor practices within four months of when the Miles Award became enforceable and, thus, the filing was timely under section 1505 of PERA, 43 P.S. — 833 — § 1101.1505. The hearing examiner also concluded that County was properly named as the respondent in the charge and was liable for the unfair labor practice. Further, County was not entitled to an offset from the backpay due to the employees as a result of the intervening Petersen Awards. County filed exceptions with the PLRB arguing that Union’s charge of unfair labor practices was not timely filed. County maintained that the statute of limitations for Union’s charge of unfair labor practices, alleging noncompliance with the Miles Award, commenced with the issuance of the award in 2004 and expired four months later, while County’s appeal of the award was pending in the Court of Common Pleas. Additionally, County argued that the hearing examiner erred in ordering County to pay back wages and in finding that by pursuing appeals of the Miles Award on behalf of the Court of Common Pleas, County assumed responsibility for refusing to implement the Miles Award. The PLRB dismissed the exceptions and ordered the hearing examiner’s proposed decision and order absolute and final. This appeal followed.3 Initially, County argues that the PLRB erred in concluding that County is liable for an alleged unfair labor practice committed by the Court of Common Pleas on the theory that the obligation to pay employees for an extended workday is separate from the Court of Common Pleas’ decision not to extend the workday. In accordance with section 1620 of The County Code,4 the County Commissioners are the bargaining representatives for the purposes of collective bargaining with court-related and court-appointed employees. County of Lehigh v. Pennsylvania Labor Relations Board, 507 Pa. 270, 277, 489 A.2d 1325, 1328 (1985). Section 1620 of The County Code states: The salaries and compensation of county officers shall be as now or hereafter fixed by law. The salaries and compensation of all appointed officers and employes who are paid from the county treasury shall be fixed by the salary board created by this act for such purposes: Provided, however, That with respect to representation proceedings before the Pennsylvania Labor Relations Board or collective bargaining negotiations involving any or all employes paid from the county treasury, the board of county commissioners shall have the sole power and responsibility to represent judges of the court of common pleas, the county and all elected or appointed county officers having any employment powers over the affected employes. The exercise of such responsibilities by the county commissioners shall in no way affect the hiring, discharging and supervising rights and obligations with respect to such employes as may be vested in the judges or other county officers. 16 P.S. § 1620. However, County maintains that the Court of Common Pleas is responsible for implementing the results of collective bargaining agreements and interest arbitration awards. County argues that if there was a dispute between Union and the Court of Common Pleas regarding imple — 834 — mentation of a provision of the agreement that resulted in an unfair labor practice charge, the charge had to be filed against the Court of Common Pleas as the party-responsible for implementation of the agreement. See Teamsters Local 771 v. Pennsylvania Labor Relations Board, 760 A.2d 496, 499 (Pa.Cmwlth.2000). County argues that the Court of Common Pleas refused to extend the workday, and that County is being held liable for an unfair labor practice committed by the Court of Common Pleas. According to County, the PLRB crafted an unworkable theory that there is an independent obligation on the part of County to pay Court of Common Pleas’ employees for an extended workday, even though the Court of Common Pleas refused to implement the extended workday. Although the Miles Award extended the workday by one-half hour, the Court of Common Pleas refused to schedule the employees to work the extra time. We observe that with respect to court-appointed employees certified under PERA, there is no single employer. Sweet v. Pennsylvania Labor Relations Board, 457 Pa. 456, 463, 822 A.2d 362, 366 (1974). The courts control decisions regarding hiring, firing and supervision of court-appointed personnel. Jefferson County Court Appointed Employees Association v. Pennsylvania Labor Relations Board, 603 Pa. 482, 501 n. 22, 985 A.2d 697, 709 n. 22 (2009). However, the County Commissioners are responsible for negotiation and implementation of employee wages and benefits. See Pennsylvania Labor Relations Board v. American Federation of State, County and Municipal Employees, District Council 84, AFL-CIO, 515 Pa. 23, 36-37, 526 A.2d 769, 775-76 (1987). Thus, the monetary aspect of the eight-hour workday set forth in the Miles Award is a financial term of the award that County is responsible for implementing. Because County, not the Court of Common Pleas,5 controls the expenditure of funds, County has an independent obligation to abide by the Miles Award, and it was, therefore, proper to name County in the unfair labor practices charge. The provision of the Miles Award at issue provides that “the work shift shall consist of eight (8) work hours within a work day....” (Findings of Fact, No. 4.) County’s liability in this case is grounded in its role of controlling the financial terms of employment. County, as co-employer, is obligated to implement the financial aspect of the Miles Award. Thus, County’s failure to retroactively pay the negotiated wage of eight hours of pay per workday is an unfair labor practice that County must remedy. Finally, County maintains that the PLRB erred in determining that the charge was timely. Section 1505 of PERA states that “[n]o petition or charge shall be entertained which relates to acts which occurred or statements which were made more than four months prior to the filing of the petition or charge.” 43 P.S. § 1101.1505. County maintains that Union filed the charge six years after the Court of Common Pleas refused to extend the workday for its employees. County asserts that there was no stay in effect during the three years that the petition to vacate the Miles Award was pending in the Court of Common Pleas. County claims that the — 835 — Miles Award was enforceable during that time, but that Union did not file a grievance or an unfair labor practice charge. County argues the statute of limitations commenced with the issuance of the Miles Award in 2004 and expired four months later while the Miles award was pending in the Court of Common Pleas. We disagree. In addressing the timeliness of the charge, the PLRB stated: Thus, in accordance with [Pennsylvania Labor Relations Board v.] Commonwealth [478 Pa. 582, 387 A.2d 475 (1978)], and Pa. R.A.P. 1736, the [PLRB] has consistently held that a charge filed within the statute of limitations following a court of common pleas’ affirmance of an arbitration award is timely. However, the [PLRB] will dismiss, as premature, a charge alleging a refusal to comply with provisions of an arbitration award that are pending initial first level judicial review, because those provisions are not yet enforceable before the [PLRB]. (PLRB Final Order at 5.) County, relying on this court’s decision in Lycoming County v. Pennsylvania Labor Relations Board, 943 A.2d 333 (Pa.Cmwlth.2007),6 maintains, however, that an interest arbitration award is immediately enforceable by the filing of an unfair labor practice charge with the PLRB. In Lycoming County, the county filed a petition for review of an interest arbitration award with the trial court. The award increased the wages and benefits of union detectives employed by a county in an amount over that which the county had allowed for in its budget. Id. at 335 n. 7. While the appeal was pending, the union filed a charge of unfair labor practices with the PLRB concerning the county’s refusal to implement the award.7 The hearing examiner concluded that the county violated section 6(l)(a), (c), and (e) of the Pennsylvania Labor Relations Act (PLRA)8 and Act 111,9 by refusing to implement the income aspect of the award. Lycoming County, 943 A.2d at 337. The county filed exceptions with the PLRB arguing that legislative action was required to fund the award and, therefore, it need not comply with the award. Id. at 338. The PLRB concluded that such a claim is not viable under Act 111 and the county’s refusal to fund the award was an unfair labor practice. Id. Additionally, the PLRB determined that at the time the interest award was issued, the county had discretionary funds in its budget to pay the detectives increased salary and benefits. Id. at 338. The PLRB also concluded that the hearing examiner did not err in failing to grant the county’s petition for dismissal or continuance while the petition for review of the award was pending before the trial court because the county, in essence, merely ar — 836 — gued that the arbitration panel awarded more than the county desired. Id. at 339. Thus, there was no arguable claim of error in the award within the trial court’s jurisdiction. Id. On appeal, this court affirmed, agreeing that the county commissioners could have transferred funds to pay the raises and that such a transfer would not have constituted legislative action under section 7(b) of Act 111.10 Lycoming County, 943 A.2d at 347-48. Furthermore, this court concluded that the hearing examiner and the PLRB had jurisdiction to dispose of the unfair labor practice charges while the appeal of the award was pending before the trial court. Id. at 351. Unlike Lycoming County, this case does not involve the argument that legislative action was necessary to implement the award or that the arbitration panel committed legal error by including provisions in an award that were beyond the legal authority of the panel to award. Here, County filed an appeal of the Miles Award challenging, on constitutional grounds, the arbitrator’s jurisdiction to award an eight-hour workday. As such, Lycoming County, wherein the county refused to comply with an award claiming legislative action was required, is distinguishable. The PLRB responds that for purposes of the commencement of the statute of limitations for a refusal to comply with an arbitration award, the Supreme Court in Commonwealth stated: [W]hen the complainant in an unfair labor practice action charges a refusal “... to comply with the provisions of an arbitration award deemed binding under Section 903 ...,” the Board must determine first if an award exists, second, if the appeal procedure available to the aggrieved party under Pa. R.J.A. 2101 has been exhausted, and third, if the party has failed to comply with the provisions of the arbitrator’s decision. Once the appeal procedure provided by Pa. R.J.A. 2101 has been completed (whether by appeal to the Commonwealth Court and petition for allowance of appeal to us or by allowing the time period for appeal to expire without taking any action), the award is final and “deemed binding” for purposes of Section 1301. 478 Pa. at 591, 387 A.2d at 479 (quoting section 1201 of PERA, 43 P.S. § 1101.1201). A PERA grievance arbitration award is not binding until it is “final in the sense that it is no longer appealable.” Id. The 1987 amendments to Pa. R.A.P. 1736 altered the protection provided to employers. Pa. R.A.P. 1736 now provides: (a) General rule. — No security shall be required of: (2) Any political subdivision ... except in any case in which a common pleas court has affirmed an arbitration award in a grievance or similar personnel matter. (b) Supersedeas automatic. — Unless otherwise ordered pursuant to this chapter the taking of an appeal by any party specified in Subdivision (a) of this rule shall operate as a supersedeas in favor — 837 — of such party, which supersedeas shall continue through any proceedings in the United States Supreme Court. The note to Pa. R.A.P. 1786 explains that “[t]he 1987 amendment eliminates the automatic supersedeas for political subdivisions on appeals from the common pleas court where that court has affirmed an arbitration award in a grievance or similar personnel matter.” We agree with the PLRB that the statute of limitations under section 1505 of PERA begins to run when the Court of Common Pleas affirms the award or whenever the appellate process is exhausted, whichever occurs first. Here, County appealed the Miles Award challenging, on constitutional grounds, the arbitrator’s jurisdiction to award wages for an eight-hour workday, a matter that is -within the Court of Common Pleas’ narrow review of the award. Upon review, the Court of Common Pleas did not affirm the Miles Award, but instead vacated the provision awarding pay for an eight-hour workday. Thus, upon issuance of the Court of Common Pleas’ order, the PLRB had nothing to enforce. Union appealed to this court.11 This court reinstated the eight-hour workday, and County filed a petition for allowance of appeal with the Supreme Court. County is a political subdivision and, pending disposition of the petition for allowance of appeal, there was an automatic supersedeas of this court’s reinstatement of the Miles Award. The Supreme Court denied the petition for allowance of appeal on April 8, 2010. At this time the Miles Award became enforceable before the PLRB and, thus, the charge of unfair labor practices filed on August 5, 2010, was timely- In accordance with Commonwealth, all appeals must be exhausted before an arbitration award may be enforced through an unfair labor practice proceeding. The amendments to Pa.R.A.P. 1736 included changes to appeals from the court of common pleas, affording an earlier opportunity to seek enforcement in those cases where the grievance arbitration award is affirmed at the common pleas court level; this did not occur here. The amendments to Pa.R.A.P. 1736 did not lift the automatic supersedeas that the public employer enjoys on contested provisions of a grievance arbitration award prior to the common pleas court’s ruling. An award is enforceable once it is affirmed by a common pleas court. See City of Scranton v. Pennsylvania Labor Relations Board, 50 A.3d 774, 781 n. 8 (Pa.Cmwlth.2012) (noting that an arbitration award becomes enforceable only after it is affirmed by a common pleas court). Accordingly, we affirm the decision of the PLRB. ORDER AND NOW, this 18th day of July, 2013, we hereby affirm the June 19, 2012, order of the Pennsylvania Labor Relations Board. Footnotes [1] Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.1201(a). Section 1201(a) of PERA provides, in pertinent part: (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. 43 P.S. § 1101.1201(a). [2] 43 P.S. § 1101.805. [3] This court’s scope of review "is limited to determining whether there was a violation of constitutional rights, whether an error of law was committed or whether the [PLRB’s] necessary findings are supported by substantial evidence.” Wilkes-Barre Township v. Pennsylvania Labor Relations Board, 878 A.2d 977, 982 n. 13 (Pa.Cmwlth.2005). [4] Act of August 9, 1955, P.L. 323, as amended, 16 P.S. § 1620. [5] In Ellenbogen v. County of Allegheny, 479 Pa. 429, 434, 388 A.2d 730, 733 (1978), the Supreme Court stated "that courts have inherent authority to compel payment of funds reasonably necessary to administer the courts.” Nonetheless, the county commissioners are the exclusive representative of management under PERA concerning wages and other financial terms of employment. Id. at 438, 388 A.2d at 735. [6] County also relies on this court's unpublished decision in County of Lycoming v. Pennsylvania Labor Relations Board, 943 A.2d 333 (Pa.Cmwlth.2007). However, in accordance with this court’s Internal Operating Procedures § 414, only unreported decisions of this court issued after January 15, 2008, may be cited for their persuasive value. [7] The county also filed a motion for dismissal and/or continuance with the PLRB arguing "that the filing of the petitions for review of the arbitration awards in the trial court acted as an automatic supersedeas for the appeal provisions of the awards pursuant to Pa. R.A.P. 1736.” Lycoming County, 943 A.2d at 336 n. 11. Despite the motion, the hearing examiner disposed of the unfair labor practice charges. Id. [8] Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. § 211.6(l)(a), (c), and (e). [9] Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1-217.10. [10] Section 7(b) of Act 111 provides: (b) With respect to matters which require legislative action for implementation, such legislation shall be enacted ... in the case of a political subdivision of the Commonwealth, within one month following publication of the findings. The effective date of any such legislation shall be the first day of the fiscal year following the fiscal year during which the legislation is thus enacted. 43 P.S. § 217.7(b) [11] Union is not a political subdivision. Therefore, its appeal to this court could not have effectuated a stay of the trial court’s order vacating the Miles Award. Pa. R.A.P. 1736(a).