Geriot v. Council of Borough of Darby

NIX, Justice,

dissenting.

The majority opinion misconstrues the true nature of appellant’s complaint. The majority finds that the complaint involves enforcement of an interest arbitration award and holds that the common pleas court has jurisdiction to enforce interest arbitration awards. (Maj. opinion at 1147-1148.) To the contrary, the instant dispute focuses upon the proper interpretation of the 1977 interest arbitration award. This basic disagreement causes my dissent. Moreover, Act III grants policemen and firemen the right to settlement of their grievances, but Act III is devoid of any provision whereby officers may pursue this right. I am of the view that this vacuity should be bridged by reading Act III in pari materia with PERA to provide for mandatory arbitration of grievances for policemen and firemen.

On September 10, 1975, the Borough of Darby entered into an agreement “concerning the terms and conditions of employment of the Police officers of the Borough of Darby for the calendar year commencing January 1, 1976.” Paragraph 1 of the agreement provided:

“1. Wages and Cost of Living: Beginning January 1, 1976, the annual wage for each officer shall be increased *71 by $350.00 plus the percentage of increase cost of living as measured by the C.P.I. for Philadelphia during the 12 months ending October, 1975. Said cost of living is incorporated in and shall become part of the basic wage as of January 1, 1977. By way of illustration, the basic wage of a patrolman on January 1, 1976, will be computed as follows:

1975 Basic Wage $13,160.15

1976 Standard of Living Increase 350.00

Cost of Living Increase

(assuming hypothetically that during the 12 months ending 10/75 the cost of living increase is 5%) 675.00

TOTAL $14,185.50”

The Borough and the police force could not agree on salary and conditions of employment for the 1977 calendar year. Thus, an arbitration panel was formed, hearings were held, and on December 20, 1976, the arbitrators entered an interest arbitration award applicable January 1, 1977. The interest arbitration award provision concerning wages provided:

“Commencing January 1, 1977, the annual wage for each police officer shall be increased by Three Hundred ($300.00) Dollars plus a cost of living adjustment for all police equal to the increased cost of living as measured by the C.P.I. for the Philadelphia Region for the twelve month period ending October, 1976, to be added to the base wage.”

During the first week of January 1977, the Borough paid the policemen’s salaries in accordance with the Borough’s interpretation of the interest arbitration award. The policemen did not petition for review, nor did they institute suit within thirty (30) days from the date of the Arbitrator’s award. On February 11, 1977, the appellant filed a mandamus action on behalf of himself and on behalf of a class of Darby police officers in the common pleas court of Delaware County. The Borough filed preliminary objections asserting inter alia that the appellant had an adequate remedy at law and consequently the mandamus complaint should be dismissed.

*72 In paragraphs 6 and 7 of appellant’s complaint, he framed the issue as follows:

“6. The defendant has not, as of January 1, 1977, been computing the plaintiffs’ base wage in a manner or fashion contemplated by the 1976 Collective Bargaining Agreement, in that they have not incorporated the cost of living, as measured by the C.P.I. for Philadelphia during a 12 month period ending October, 1975, into the basic wage as of January 1, 1977, in computing the basic wage for each of the police officers for the Borough of Darby for the year commencing January 1, 1977.

7. Despite requests made on behalf of the plaintiffs for the inclusion of the cost of living aforesaid as part of the base wage for 1977, and as agreed to by the Council for the Borough of Darby in the agreement Exhibit “A” aforesaid, the defendant has failed, refused to perform the duties imposed upon them in connection with the payment thereof.”

In my judgment, it is apparent that neither party disputed the binding effect of the award, but rather that the controversy focused upon how the basic wage was to be computed under the terms of the award. To argue that appellant was simply seeking enforcement and that the Borough raised the interpretation question as a defense for its non-compliance, assumes the very question that is at issue, i.e. what is the proper interpretation of the award. Before the common pleas court could order enforcement as requested by the complainants, the court was called upon to first determine the rights and duties created by the award. A prerequisite to this mandamus action is a resolution of whether or not the terms of paragraph one of the 1976 award had been incorporated into “the basic wages” to be paid during 1977. Although the 1976 collective bargaining agreement expressly states that the cost of living increase “shall become part of the basic wages as of January 1, 1977,” the 1977 interest arbitration award omits reference to the inclusion of this increment in the permanent wage base for computation of 1977 wages. Thus, the proper analysis of the issue which *73 confronted the common pleas court was an interpretation of the interest arbitration award, and not the enforceability of the award. 1

Under my analysis, the question that should have been addressed by the majority in this appeal is the proper forum to hear this interpretation dispute. I will therefore express my views on that subject.

In response to the threat of strikes by fire and police personnel, in great haste, the legislature in 1968 passed the Act of June 24, 1968, P.L. 237, No. 111, 43 P.S. §§ 217.1-217.-10 (1979-80 Supp.) (Act III). Act III conferred upon policemen and firemen the right to organize, but in the interest of the public’s health, safety and welfare, these public employees were not given the right to strike. Section 217.1 specifically grants policemen and firemen the right to collectively bargain for the terms and conditions of their employment, as well as “. . . the right to an adjustment or settlement of their grievances or disputes in accordance with the terms of this act.” Consistent with the legislature’s intent to prevent strikes of police and fire personnel, Act III contains detailed provisions involving the time to begin collective bargaining, 43 P.S. § 217.3, the number of days to engage in collective bargaining, a description of when an impasse occurs during collective bargaining, 43 P.S. § 217.4, the procedure to request an interest arbitrator if an agreement is not reached, and restricts the right to appeal to courts from an interest arbitration award, § 43 § 217.7. Although the legislature also granted the police and fire personnel the right to remedy their grievances under 217.1, unlike the right to collectively bargain, Act III is devoid of any procedure under which the parties may pursue this right.

*74 In order to avoid an unreasonable or absurd result, Act III should be read in pari materia with PERA Act of July 23, 1970, P.L. 563, No. 195, 43 P.S. § 1101.101 et seq. The legislature has declared that statutes are in pari materia when they relate to the same class of persons or things. 1 Pa. C.S.A. § 1932(a). See also, In re William L, 477 Pa. 322 , 383 A.2d 1228 (1978). When statutes are in pari materia, they shall be construed together whenever possible as if one statute. 1 Pa. C.S.A. § 1932(b). See Commonwealth v. PEC, 472 Pa. 530 , 372 A.2d 815 (1977). In Philadelphia Fire Officers v. PLRB, 470 Pa. 550 , 369 A.2d 259 (1977), we recognized that Act III, PERA, and PLRA, Act of June 1, 1937, P.L. 1168, No. 294, 43 P.S. §§ 211.1 et seq., all concern the subject of labor relations. 470 Pa. at 555 , 369 A.2d at 261 . We noted that Act III granted the police and firemen the right to collectively bargain, but lacked the procedures to designate the collective bargaining agent. In order to avoid an absurd result prohibited by 1 Pa. C.S.A. § 1922(1), we read Act III in pari materia with PLRA and empowered the Pennsylvania Labor Relations Board to conduct representation elections.

The facts of the instant case are analogous to the facts of Philadelphia Fire Officers . Here the legislature granted the policemen and firemen the right to resolve their grievances in accordance with the act, but Act III neglected to establish procedures whereby the grievances could be remedied. Recognizing that the legislature did not intend the absurd result of granting a right without providing for its enforcement, we should read Act III in pari materia with PERA.

Act III should be read in pari materia with PERA in order to provide policemen and firemen with a method to resolve their grievances. 2 PERA contains extensive provisions for grievance resolution, reflecting the legislature’s recognition of the importance of harmonious labor relations in the public sector. Section 903, 43 P.S. § 1101.903 states:

*75 Ҥ 1101.903 Disputes under collective bargaining agreement; mandatory arbitration

Arbitration of disputes or grievances arising out of the interpretation of the provisions of a collective bargaining agreement 3 is mandatory. The procedure to be adopted is a proper subject of bargaining with the proviso that the final step shall provide for a binding decision by an arbitrator or a tri-partite board of arbitrators as the parties may agree.”

To protect the employee’s right to mandatory arbitration of grievances, the legislature has declared that it is an unfair labor practice to refuse to discuss grievances with an employee representative. 4 43 P.S. § 1101.1201(a)(5). Moreover, if either the employee or the employer fails to comply with an arbitration award deemed binding under Section 903, 43 P.S. § 1101.903, the party commits an unfair labor practice. 43 P.S. §§ 1101.1201(a)(8) and 1201(b)(8). The Pennsylvania Labor Relations Board is given the exclusive power to prevent unfair labor practices which accrue under PERA. 43 P.S. § 1101.1301.

It is appropriate to read Act III in pari materia with PERA. First, Act III is a skeletal statute and PERA adds meaningful substance to Act Ill’s provisions. PERA is a *76 comprehensive statute, the product of intense study,, debate and compromise in the Pennsylvania legislature. Governor’s Commission to Revise the Public Employee Laws of Pennsylvania, Report and Recommendations (June 1968). PERA, one of the first public employee labor relation statutes, served as a model for other public employee statutes throughout the nation, and should also serve as an adjunct to Act III.

Second, it is logical to construe Act III with PERA, a public employee statute, rather than with PLRA, a private employee statute. Pennsylvania courts have consistently recognized that “[t]he distinction between the public and private sectors cannot be minimized. Employers in the private sector are motivated by profit to be returned from the enterprise where as public employers are custodians of public funds and are mandated to perform government functions as economically and effectively as possible.” PLRB v. State College A.S.D., 461 Pa. 494, 499-500 , 337 A.2d 262, 264 (1975). See also, PLRB v. Mars Area School District, 21 Pa.Cmwlth. 230 , 344 A.2d 284 (1975); B. Aaron, J. Grodin, J. Stern, Public Sector Bargaining, 191 (1979).

Third, the goals of the public employee labor relations statutes are similar and reading Act III in pari materia with PERA is consistent with the legislature’s objective of promoting harmonious labor relations among public employees and their employers. The central theme of PERA is accommodating public employee demands, while recognizing that the public’s interest is paramount. 43 P.S. § 1101.101. Act III imposes a duty of “good faith” on public employees and their employers to exert every reasonable effort to settle disputes. 43 P.S. § 217.2. In contrast, PLRA only attempts to balance the rights of the private employer and their employees, and the statute is devoid of any mandate to bargain in “good faith.” 43 P.S. § 211.5.

Fourth, the fact that PERA excludes policemen and firemen from its definition of “employees” is not an obstacle to prevent reading PERA in pari materia with Act III to provide for mandatory arbitration of grievances. In Phila *77 delphia Fire Officers Association, we read PLRA in pari materia with Act III in order to authorize the Pennsylvania Labor Relations Board to conduct representation elections, despite the fact that 43 P.S. § 211.3(c) of PLRA expressly excluded “public employers” from its definition of employers. Act III employees are excluded from PERA because policemen and firemen do not have the right to strike. However, Act Ill’s strike prohibition will not be effected by reading Act III in pari materia with PERA to provide for mandatory arbitration of grievances.

Finally, although the common pleas courts 5 currently resolves grievances which arise under Act III interest arbitration awards, the better procedure is arbitration of these grievances. Unlike the common pleas courts, labor arbitrators have an expertise in labor law, as well as experience in resolving labor disputes. Also, the arbitrator may have participated in drafting the Act III interest arbitration award, and he is in the best position to resolve interpretation disputes which may arise under the award.

Thus, the pleadings reveal that the issue in dispute concerns the proper interpretation of the interest arbitration award. Although Act III grants policemen the right to settlement of their grievances, the statute fails to provide for a grievance arbitration procedure. To avoid an absurd result, it is sensible to read Act III in pari materia with PERA and have the grievance proceed to arbitration pursuant to 43 P.S. § 1101.903. If the Borough refused to arbitrate the grievance, an unfair labor practice would result. 43 P.S. § 1101.1201(a)(5). If the policemen and the Borough submitted to mandatory arbitration of their grievances, but the Borough still refused to pay wages in accordance with the arbitrator’s interpretation of the interest arbitration award, an unfair labor practice would occur. 43 P.S. § 1101.1201(b)(8). It is not until the PLRB determines that an unfair labor practice has occurred, does the common *78 pleas court have jurisdiction to enforce the PLRB’s order preventing an unfair labor practice.

Therefore, I would dismiss the action and allow the employees to proceed with seeking grievance arbitration pursuant to 43 P.S. § 1101.903.

. The Court of Common Pleas of Delaware County acknowledged that the action involved an interpretation of the award when it said:

“A reading of the Complaint makes it clear that plaintiff is seeking a judicial determination of whether or not the terms of paragraph I of the 1975 contract have been incorporated into the ‘basic wages’ to be paid Plaintiff in 1977. The award of the arbitrators provides for an increase to be made to the basic wages to be paid in 1977, but, said award does not fix ‘basic wages.’ Whether or not ‘basic wages’ was part of the subject matter before the arbitrators is not known to the Court at this time.”

. The PLRA does not have any provisions requiring mandatory arbitration grievances. If Act III was read in pari materia with PLRA, any grievance procedure would be provided for solely by the terms of the collective bargaining contract.

. Unlike other PERA employees, guards and court personnel are prohibited from striking and if an impasse occurs during collective bargaining they must submit to binding arbitration. 43 P.S. § 1101.-1001. Also, public employees may agree to enter into binding contract arbitration. 43 P.S. § 804. Even though the literal terms of 43 P.S. § 1101.S03 refer to mandatory arbitration of grievances which arise under a “collective bargaining agreement,” this section applies to binding interest arbitration awards which arise under 43 P.S. § 1101.804 and 43 P.S. § 1101.805.

. The courts have also recognized the desirability of arbitrating grievances and have held that “any dispute which even arguably involves the interpretation of the agreement must be submitted to arbitration.” Stroudsburg Bd. of Educ. v. PLRB, 39 Pa. Cmwlth. 200, 208, 395 A.2d 622, 623 (1978). Moreover, on the national level, binding arbitration of grievances which arise during the term of a labor agreement was once the exception in the public sector, but is rapidly becoming the norm. U. S. Department of Labor, Bureau of Labor Statistics, Grievance and Arbitration Procedures in State and Local Agreements, Bull. No. 1833 (Washington: 1975).

. See e.g.; Flood v. Boro. of Canonsburg, 28 Pa.Cmwlth. 248 , 368 A.2d 348 (1977); Darney v. Boro. of W. Mifflin, 23 Pa.Cmwlth. 267 , 351 A.2d 317 (1976).