The opinion
DISSENTING OPINION BY
JUDGE COHN.
Respectfully, I dissent. I cannot agree that, in determining whether an employer committed an unfair labor practice by unilaterally transferring work to non-bargaining unit employees, we should only “look to the circumstances at the time of the unilateral transfer of work” as the majority suggests. In my view, that test, while certainly easy to apply, can lead to unreasonable results, and discounts this Court’s decisions in AFSCME, Council 13 v. Pennsylvania Labor Relations Board, 150 Pa. Cmwlth. 642, 616 A.2d 135 (1992) and City of Clairton v. Pennsylvania Labor Relations Board, 107 Pa.Cmwlth. 561 , 528 A.2d 1048 (1987).
First, when applied to certain factual situations, the “time of unilateral transfer” test can lead to unreasonable results. For example, it is entirely possible that a collective bargaining unit employee may have been in a position only a single day or that someone may have been placed in a position temporarily in order to accommodate a request for light duty work. I do not think that such factors should subject an employer, ipso facto, to a finding of an unfair labor practice.
Second, I do not think that allowing an isolated moment in time to be controlling for purposes of deciding if bargaining unit work was transferred is consistent with AFSCME and City of Clairton . Rather, I think a more expansive view of the history and development of the position is mandated.
In AFSCME, public employees filed an unfair labor practice charge after certain inspectors within the Department of Agriculture, Bureau of Standard Weights and Measures, had work transferred from them. The reason for the transfer was that the Commonwealth had entered into memoranda of understanding with various counties, dividing certain of the inspector duties between Commonwealth and county inspectors. The Board found that no unfair labor practice had occurred and the union appealed. We acknowledged that “[gjenerally, a public employer commits an unfair labor practice if it unilaterally shifts any bargaining unit work to non-members without first bargaining.” Id. at 138 (emphasis in original). We observed that the Board had consistently held that “a union seeking to prove that an employer has committed an unfair labor practice by unilaterally transferring bargaining unit work to employees outside of the unit, must demonstrate that the work in question has been performed exclusively by the bargaining unit....” Id. (Emphasis in original.) In AFSCME, however, the Board had revised that position and held that “even in a situation where a bargaining unit has not performed the work in question exclusively, an employer may, nevertheless, commit an unfair labor practice if the transfer of work outside of the bargaining unit is not consistent with past practice.” Id. at 139. (Emphasis added.) We adopted that position and then went on to hold that there was no evidence in the record indicating that the work being done by the county inspectors was, in fact, inconsistent with past practices. 1 Concluding that the work in question had not been performed exclusively by bargaining unit members, we upheld the Board’s decision *992 that no unfair labor practice had been committed by the employer.
In contrast, in City of Clairton it was the employer who lost before the Board and appealed, asserting that a dispatcher position, which had been filled by police officers and was shifted to fire personnel, was not within the bargaining unit. In affirming the Board’s finding that the position was included, we noted that the dispatcher function had been performed by the police for fourteen years and that all police officers were included in the bargaining unit, which had been certified prior to the date the duties had been unilaterally transferred. 2
In the case before us, while the work was performed for thirteen years by bargaining unit members (and exclusively so), it was also performed for nearly as long (and exclusively so) by woTC-bargaining unit members. In my view, this merits consideration. Given that the record reflects that nearly half of the time since the job was created it had been performed by non-bargaining unit employees (from the “late 1970’s” until 1989) and, further, noting that Employer is attempting to respond to its evolving business needs by shifting officers onto the street and increasing the warrant squad (testimony of Assistant Chief of Police Ronald Manescu, N.T. 44), there is relevant evidence of past practices here that has not been, in my view, even considered by the Board or the majority. Therefore, I would vacate the order and remand for a new adjudication in which all past practices are considered.
. According to the Board’s adjudication, such evidence might have consisted of a showing that county employees were performing a significantly greater number of total inspections or were inspecting devices that had traditionally been inspected solely by Commonwealth employees. Id. at 139 (quoting from the Board’s adjudication).
. The Board explains that in the case before us there has never been a certified bargaining unit because the unit itself predates the time when the Board had jurisdiction to certify Act 111 units. (Board's Brief, p. 4.)