*2 NIX, C.J., LARSEN, Before FLAHERTY, and McDERMOTT, and ZAPPALAand HUTCHINSON PAPADAKOS, JJ. THE
OPINION OF COURT FLAHERTY, Justice.
This is an appeal from a memorandum opinion and order of the Commonwealth Court which enjoined Common- wealth and its agents and representatives from furloughing District Lottery Representatives of the Pennsylvania State Lottery, Department of (hereinafter Revenue department), until final administrative and court decisions take effect as to the District Lottery Representatives’ grievance proceed- ings and Pennsylvania Labor Relations proceedings, Board or until earlier issuance of a further order Common- wealth Court. The factual background underlying the Com- monwealth Court’s action was as follows.
The department has employed, since the year a number of District Lottery Representatives (hereinafter DLRs). According to official job descriptions, each DLR
performs variety a of functions related the marketing of lottery state tickets. These functions include coordination advertising activities, materials, distribution of lottery performance agents, evaluation supervi sales compliance sion of regulations policies governing sale tickets. lottery The DLRs have paid under (hereinafter “portal-to-portal pay system” p-t-p). Under this system, DLRs have treated their official head expense quarters purposes homes, for travel as their they received pay have an scale hourly from the time they their leave homes each until workday the time they homes, return to their on the basis hour work day, 7½ i.e., from 8:30 p.m., a.m. 5:00 a one less hour unpaid period. lunch
In collective bargaining negotiations conducted between and the representing union the DLRs in *3 1981, department the sought to eliminate No p-t-p. agree- to so achieved, however, ment do was and in subsequent negotiations collective bargaining which in June, ended 1985, department the refrained from resubmitting pro- the to posal eliminate In p-t-p. negotiations, parties those the reached a new agreement to remain in June, effect until however,
In August 1985, of and on a of number other occasions extending 1986, into of the July department re- newed proposals to eliminate p-t-p, but each occasion union representatives Then, the rejected proposals. in July 1986, of department reorganize the to proposed the work of by the DLRs eliminating DLRs from field operations, re- placing them with perform contractors to delivery mar- keting functions and a creating smaller of number new positions in the Harrisburg area for employees would who telephones keep use in contact with lottery ticket retail- ers. The department has regularly described elimination of p-t-p desirable in the of promoting interest efficiency within productivity department, the the of position the that, has eliminated, if p-t-p is not most of
193 their furloughed jobs DLRs will be present the plan. reorganization through is there appeal instant whether raised
The issue
for the issuance
Commonwealth
by
proper
basis
was
furlough
employ-
of
against
injunction
of an
Court
pre-
of
governing issuance
The standards
question.
ees
In Mazzie v.
relief are well established.
liminary injunctive
1,
985, 987 n.
128, 133 n.
432 A.2d
Commonwealth, 495 Pa.
“A
forth those standards as follows:
(1981),
this Court set
granted only
of
kind should be
injunction
any
preliminary
clear, the need for
of the
are
rights
plaintiff
where
necessary
relief is
injunctive
is immediate and
relief
compensat-
and cannot be
irreparable
injury
avoid
omitted).
(Citations
general
damages.”
ed for
appellate
an
court
to cases where
scope
applicable
of review
of a
grant
preliminary
or denial
upon
is called
to review
or
reviewing
grant
In
is also well settled.
court is not to
appellate
an
injunction,
denial of such an
underlying controversy,
but
inquire into the merits
to determine whether there
rather must examine the record
grounds
support
any apparently
were
reasonable
and,
below,
plain
grounds
if it is
action of the court
relied
decree or that the rule
law
support
exist to
the decision of
misapplied,
erroneous or
palpably
was
v. Board
the court
must be reversed. Roberts
below
Scranton,
464, 469,
Directors
District
School
(1975).
also Mazzie v. Common-
341 A.2d
See
examined
wealth,
ment prerogatives to streamline the functions of their de- partments for of promoting the sake In efficiency. context of case involving the furlough of governmental employees, this Court stated as in follows Commonwealth, Department Stecher, State v. 210-212, Pa. A.2d (1984): 758-759
Decisions as to what tasks performed, should be and by whom, are particularly within the realm of an agency’s management If officials. an agency seeks to accomplish its mission in a more manner, efficient by redistributing work among its it employees, pursuing a commendable administrative It objective. that, can said be almost as a general rule, governmental institutions claim to be under- staffed, and rare indeed is the agency that admits to having an excess of employees. Governmental agencies so easily become myopic to their purposes, losing sight of the goal of adequately serving the public at the lowest possible cost to the taxpayers.
It is a managerial prerogative to reallocate work to enhance operational efficiency and to savings. effect cost To limit management’s power this area would be to draft a blueprint for an ever-expanding bureaucracy, which naturally will tend to fuel growth institutional taint the very purpose of our government. Government exists to serve the people, and should be manned fewest number employees who can accomplish the task of serving the in the citizenry most efficient and least costly manner possible.
Thus, consideration of whether there exists a reasonable basis for the preliminary injunction issued this case must be undertaken regard with due for the fact that there is no per se right governmental employment, as as for the well fact that there is a strong public interest in preserving managements prerogative to govern- achieve efficiency mental Based operations. considerations, these department argues that issuance of the instant
195 management interference with an unwarranted constituted Lottery. agree. State We Pennsylvania of the sought Court harms Commonwealth The injunction, namely the conse- by issuance prevent as conceivably by employees that could be incurred quences nature, furloughed, speculative are being result of a management of interference with injunction’s whereas In holding of a most certain form. that department is if an by employees harm would be suffered irreparable issued, not to against furloughs were be that, during the re- period Court reasoned Commonwealth practice proceed- final resolution of unfair labor quired for that had been instituted ings grievance proceedings actions, furloughed DLRs furlough to the respect deriving possible face and losses from might hardships possible mort- employment, need to relocate obtain new foreclosures, spousal dis- gage disruption employment, schooling patterns, children’s and social ruption of established, provisions. of medical care It is interruption form however, that considerations ... cannot “speculative Berkowitz issuing for preliminary injunction].” the basis [a Wilbar, 369, 374, 280, (1965) 282 v. 206 A.2d from against employment dismissal (preliminary injunction denied). Further, of em- arising losses from termination for a regarded not a basis ployment providing have been Berkowitz, As stated in finding irreparable harm. sought an employee Pa. at 206 A.2d at where might preliminary injunction alleged to avert harms “These are not employment, ensue from a termination of us, hearing if had matters of record before and even been at prove specific hardship, they held to these items best form the speculative are considerations which cannot basis issuing extraordinary sought.” relief Indeed, speculative harms cited Common are other than versions of the nothing wealth Court new respect any same that could have occurred with events dismissed, furloughed, other have ever employees who separated employment. position or otherwise not, therefore, unique, the DLRs there appears *6 departure basis for from settled remedies have tradi- tionally been made available who employees believe the terms of their contracts employment infringed. have been relief in Injunctive normally involving is not cases available employment disputes contract such as one in the instant case, are damage adequate since awards deemed to compen- from of sate for losses that result breaches such contracts. Police, Clark v. Pennsylvania State Pa. 496 436 A.2d (1981) (injunctive 1383 relief denied damages and an deemed for adequate remedy employment breach contract terms Wilbar, v. promotions). also Berkowitz governing See su- pra relief not (injunctive available to avert an improper Larson, dismissal from employment); Ezy Parks v. 615, 628, (1982) 454 (damages A.2d an normally adequate remedy contract). for breach
In issuing injunction, the instant Commonwealth Court noted that threat of furloughs might immediate have upon coercive effects rights the exercise of the of the DLRs during proceedings instituted before Pennsylvania Labor Relations Board to determine the furloughs whether an practice, constituted unfair in grievance labor and pro- ceedings that had set to challenge motion proposed furloughs. We believe that consideration of such speculative was, however, factors improper. Conflicts be- tween unions and employers inherently involve coercive influences, table, both sides the bargaining there is no basis for the irreparable conclusion that harm is incurred merely as a result of the fact management has at its certain bargaining behest tools with which to possibly counter the position instant union’s re- garding proposals to the p-t-p system. alter pay The ef- fects, if any, which the proposed furloughs might upon have the outcome of grievance proceedings Pennsylvania Labor Relations proceedings Board are a most specula- nature, and, thus, tive do not supply proper basis upon Wilbar, which to relief. See Berkowitz v. injunctive award supra.
Further, issuing an injunction against furlough DLRs, has, effect, Commonwealth Court intruded the collective bargaining process to modify what Common- deemed, reason, wealth Court for whatever to be inade- quate protections afforded under the bargaining collective agreement furloughed employees. The injunction effec- tively imposes upon department significant new impedi- ments to the achievement of efficiency the department, hampering substantially delaying efforts to remove unnecessary employees from the payroll, thereby working to the public detriment of the in governmental interest efficiency.
If, in its attempt to streamline operations of the Pennsyl- vania State Lottery, department initiates furloughs that *7 are later determined to have improper, under the bargaining agreement collective and under applicable labor laws, appropriate remedies can then be afforded. Damage adequate awards are losses rectify suffered by improper- ly furloughed employees, and there are available to such employees the usual administrative remedies such as rein- statement, restoration of seniority, restoration of back pay benefits, and fringe In conclusion, therefore, etc. we find no reasonable basis the Commonwealth Court’s determi- nation that the DLRs adequate have no remedy at law and irreparable harm would be suffered if a preliminary injunction were not issued to prevent the furloughs. instant Accordingly, in question must be vacated.
Order vacated. NIX, C.J., and ZAPPALA, JJ., LARSEN and filed dissenting opinions.
NIX, Justice, Chief dissenting. Judge Craig, a Memorandum Opinion, sets forth ably the reasons grant (See for the of the preliminary injunction "A”). Exhibit I find the arguments to the contrary, offered by the majority opinion, unpersuasive. I, therefore, dissent.
EXHIBIT A August BY MEMORANDUM OPINION JUDGE CRAIG to evidentiary petitioners’ Pursuant held on hearing mo- tion for preliminary injunction, chancellor finds as fol- lows:
1. Petitioners consist of American Federation of State, County and Municipal Employees, Council AFL- CIO, (union), individuals, its trustee ad litem nine and each of is employed Lottery whom as a District Representa- (DLR) of tive State Pennsylvania Lottery, Pennsylvania Department of Revenue. respondents
2. The consist the Commonwealth itself, Governor, his Secretary Administration, the Secre- tary of Revenue and pertinent Department officials of the of Revenue. According job description, official each per- DLR variety
forms a in implementing duties the marketing program for the promotion and sale lottery tickets. DLRs advertising, coordinate distribution control of materials, lottery applications, evaluate license per- evaluate agents, formance of sales make recommendations on the same and insure compliance departmental regulations and policies. DLRs also make delivery of tickets and pick up returns banks. DLRs participate marketing studies prepare reports. They questions answer *8 supply information agents. to sales They conduct delin- quency investigations of retailers and informally audit or review the records of or agents. retailers
4. The Secretary advising of Revenue’s letter DLRs of their appointment states, among matters, other that:
Your official for headquarters expense purposes travel will be home. your
5. As an past practice established fourteen years 1972, since the of Department paid Revenue has contin ues pay to DLRs under a “portal-to-portal pay system” (p-t-p), under which they are hourly pay the time the they each until time workday their homes they leave homes, i.e., of a 7½-hour day, on the basis return to their one-hour lunch p.m., unpaid to 5:00 less a from 8:30 a.m. period. negotiations bargaining In the 1981 collective with
6. union, proposed p-t-p; the to eliminate department the to do so. agreement was achieved in proposal The did not resubmit the the department
7. 1985, ending June, in bargaining negotiations collective developed agreement a new parties to which pursuant 30, until 1988. remaining effective June union, analogous p-t-p 8. In connection with the same issues have affirmed arbitration pay system by awards, and measures em- respect weights with certain 1981, in in 1977 and issued ployees parole employees board filed efforts to elimi- grievances following state pursuant PetExh.R, system. nate the S. August management
9. at a Beginning labor representatives repre- union meeting lottery between sentatives, department and other secretary management representatives proposed have to eliminate management rep- p-t-p pay system Department for DLRs. on a proposal resentatives have renewed the elimination August July of occasions from 1985 into number elimi- representatives rejected and union have each time proposal. nation then, 1986, by discussions and Initially, by July department’s personnel,
memoranda from the director of proposed reorganize has the work of the eliminating DLRs DLRs in field as at by operations present, their replacing delivery marketing display functions creating positions contractors and a smaller number of new in the area to Harrisburg primarily by deal with retailers furloughing telephone. department proposal involves DLRs working respective home-based six areas state, time, proceeding beginning one area at a remaining Pittsburgh thirteen DLRs now in the area. *9 Departmental 11. oral and written communications have the of regularly system described elimination the p-t-p pay as desirable for the of goals. achievement productivity However, management department has in fact not present- reorganization the proposed ed as a definite administrative sake, action desirable its own has but consistently it presented as an only department alternative which the if the undertake union declines to accept would elimination the p-t-p pay plan. of the Accordingly, department’s posi- tion, as communicated to the union representatives and state, DLRs in the six areas of the has essentially been that, if p-t-p pay plan eliminated, the of DLRs not the furloughed DLRs be present jobs. will from their fact, 12. In written July 25, notification of the department’s director of personnel informed the union and respective Pittsburgh the DLRs that all DLR positions in Pittsburgh area will be eliminated and all DLRs will be furloughed August effective 1986. Department officials,
13. management after the an- Pittsburgh furloughs, nouncement have continued to communicate prospect such furloughs being invoked in other areas if the not p-t-p pay system is eliminated. appears No evidence explain the record to if why, “telemarketing” mode of operation proposed reorganization is desirable as an itself, administrative end in it must immediately be initiated from Harrisburg rather being than department’s conducted out Pittsburgh office an alternative operation home-based of the is, DLRs. That appears valid reason to explain the initial all transfer of DLR given functions those (except contractors) outside Pittsburgh Harrisburg, rather having than them by a smaller conducted—albeit number of employees the Pittsburgh office. Although de- —from partment could furloughing Pittsburgh avoid 100% DLRs and still revise the mode of operation, has not done so. The reorgani- evidence indicates that the zation proposal is primarily means coercion rather than genuine plan improvement. for administrative *10 quali- DLRs are furloughed Pittsburgh The thirteen 15. Harrisburg. in positions fill the new DLR proposed to fied positions presently proposed, are only seven new Because Harrisburg to to would be willing of DLRs move selection provisions seniority in accordance with achieved bargaining agreement. collective instituted, Furloughed DLRs and the union have
16. actions, (1) furlough prac- unfair labor respect to the with Labor Relations Pennsylvania tice before proceedings using (PLRB) that the ground Board on the employees to coerce the furloughs unlawfully (2) grievances and on the bargaining rights to their respect to coerce the furloughs being employed that the are ground estab- giving up pay system into based employees past practice. lished for the final resolution of During period required
17. grievance proceedings, and practice the unfair labor long as two years as short as several months or may be more, and losses which furloughed hardship DLRs face or proceedings of those by dispositions not remedied would be DLRs elect and obtain Pittsburgh in their favor. who face the Harrisburg positions in the would placement new twice, proceedings if the relocating their homes necessity to invalid as a alleged reorganization determine the be device, selling or their homes leaving reason of coercive to central Pennsylva- and roots to move disrupting family to return to nia, doing and then the same order western include, in addition to the dislocations Pennsylvania. Such residences, disruption or lease of two purchase sale and schooling and disruption of children’s spouse employment, arrange- care disruption of medical patterns, social if or the PLRB awarded back- ments. arbitrators Even of decisions in the event pay is not assured even —which ex- for relocation of the employees compensation favor — to respect not With penses family losses is available. Harrisburg in the new eligible placed DLRs not be compen- later be could positions, employment their loss made, consequent losses— if are but backpay sated awards ensuing mortgage such as those foreclosures —would economic, noncompensable personal involve and social hard- ships. Although the evidence indicates that DLRs who ob- placement
tain in the central Pennsylvania new positions face greater irreparable conceivably during harm the deter- proceedings mination than those who decline placement, remain in Pennsylvania enough western are fortunate employment temporarily, furloughed find other DLRs cannot reasonably expected forego placement be their opportunities gainful the face of need for employ- department’s ment. The insistence establishing the new *11 positions a remotely has an effect similar to forced transfer as to up those to seven in number —who could DLRs— positions. obtain the new
19. If relief is not in of afforded the form enjoining the furloughs determination of pending the labor proceedings, no remedy future is of available offset the coercive effect the department’s reorganization, threat of as an alternative the foregoing p-t-p system, past-practice the labor rights remaining of the in groups five of DLRs elsewhere the state. of Refusal a preliminary injunction will the subject
furloughed DLRs to greater than injury would result to the the interests of by Commonwealth reason the postponing change in method and location of the DLR operation First, functions. the mode revised does not operation appear department to be desired the its on own merits rather solely, but as an p-t-p alternative to the pay system department which the opposes. Second, that, the fact ac- the cording to the secretary, department has already de- ferred the matter for fifteen months indicates the that department sees great in urgency effectuating change. a Third, department the views initial Pittsburgh —which a change pilot as approach test of its test —could approach by instituting some of the new methods from the Pittsburgh office insisting upon without a wholesale trans- fer of functions to central Pennsylvania.
203
Discussion as a basis for the issuance required elements The factual in like a case this are well preliminary of a Commonwealth, Mazzie v. established. in the fore- (1981). opinion This deals with them
A.2d 17-20, in conclusions following Nos. Findings going of law. a conclusive indicating court should avoid
Although this recognizing initially that such disposition merits — of the PLRB and the arbitrator —the jurisdiction within evidence, legal appear from the to have a clear petitioners, grievance decision on the merits to a favorable right indi- strongly the record proceedings PLRB because one. genuine is not a reorganization plan that cates of the irreparability here is the question The pivotal as here is not as clearcut Although the situation harm. indicates that the Mazzie, strongly here that evidence it as involves departmental “reorganization” particularly — time, to central at this unnecessarily, of functions transfer coerce designed to a device Pennsylvania —constitutes p-t-p pay plan. agreement as to the elimination of the individual Therefore, to those elements addition appears it compensable, losses are not employees’ job furloughs, to invoke allowing imposi- device, constitute the allowance *12 coercive would party by union as a harm irreparable tion unjusti- to an bargaining process the collective subjecting fied constraint.
Conclusions Lawof jurisdiction. A. This court has to ultimate legal right The a clear petitioners
B. have relief, prevail will great they and the likelihood is the merits. in- of a preliminary in the absence petitioners,
C. face harm quo, irreparable the status junction preserve and as a union. as individuals
D. Greater injury would be suffered petitioners if preliminary relief is withheld than would be suffered by the Commonwealth if it is granted.
E. The petitioners are entitled to relief, preliminary es- sentially as requested.
LARSEN, Justice, dissenting.
I dissent.
The majority correctly cites Mazzie
Commonwealth,
v.
(1981),
This balancing of interests and harms is not what contemplated by the standard of review we have adopted appeals from the imposition of a prohibitory preliminary injunction, indeed, this balancing reaches the ultimate merits of the underlying controversy.
To issue a preliminary injunction, Commonwealth Court
was required
(1)
to find that
rights
of the plaintiff are
clear; (2) the need for relief is immediate;
(3)
injunctive
*13
irreparable
injury
to avoid
necessary
relief is
damages.
by
Mazzie v. Com
compensated
cannot be
1,
The need for relief was
August
scheduled to take effect
furloughs were
harm the
irreparable, non-compensable
On the issue
clear that
held that the
was
Court
evidence
Commonwealth
would
furlough,
DLRs scheduled for
seven
of the thirteen
Harrisburg and six
to relocate to
“opportunity”
have
unemployment compensa-
in line
standing
seeking
would be
proceed-
Following
grievance
final resolution of the
tion.
*14
as
ing, perhaps
long
years
as two
or
after
more
the fur-
effect,
lough took
an appellee success would mean rein-
statement and
pay,
back
no
for the
compensation
very
but
i.e.,
real consequences of dislocation and layoff,
the losses
upon
purchase
attendant
the sale and
or lease of two
residences,
disruption
spouse employment, disruption of
schooling
patterns, disruption
children’s
and social
of medi-
cal
arrangements
care
mortgage
foreclosures.
concluded
there
majority
that
was
harm to appel-
support
lees and in
thereof states that
these losses are
“speculative”,
“might” occur,
that they
they
“pos-
that
are
sible”,
and cites a 1965
which
case
there had not
any
hearings to establish
losses
hardship
such
on the
Wilbar,
record. Berkowitz v.
The majority further in dismissing errs Commonwealth Court’s conclusion remedy that no would be available “to offset the coercive of the department’s effect threat of as reorganization, an alternative to foregoing the p-t-p system, past-practice labor of the rights remaining groups five DLRs elsewhere the state.” Mem. op. at majority 202. The this views coercive effect as merely “speculative” and states that: “there is no basis for the conclusion that harm irreparable is merely incurred as a result of the fact that management has at its behest certain tools with which to bargaining possibly counter instant position union’s regarding proposals to alter the p-t-p pay system.” added). Id. (emphasis
The majority insists the reorganization plan is a legitimate action taken aby department concerned with governmental efficient operation and that the courts must not this impede pursuit Yet, efficiency. the majority plan tool, concedes that the bargaining a coercive deemed likely determined will be has Court Commonwealth PLRB. practice unfair labor an affirm Commonwealth dissent, and would Therefore, I injunction. preliminary of a issuance Court’s dissenting. ZAPPALA, Justice, proper scope of the articulation majority’s
Despite it injunction, preliminary denial of a or grant review to whether required its inquiry limit has failed to *15 grounds. reasonable supported by action was court’s lower of issuance Court’s that the Commonwealth determining In dis- has majority the unsupportable, was injunction the made the lower by of fact findings specific the regarded court. repre- management department that the
The court found attempts in their to-date unsuccessful have been sentatives during collective pay system portal-to-portal the to eliminate department The the union. negotiations with bargaining collec- during the proposal the elimination did not resubmit June, 1985, resulting in ending negotiations bargaining tive effective until June remains agreement in an which hav- prior negotiations in Having rebuffed 1988. been in the issue the portal-to-portal failed to resolve ing to achieve its tactics resorted to coercive has department had position, The department’s desired result. lot- and district representatives to the union communicated existing of the elimination was that tery representatives, furloughs would forthcoming or that must be pay system result. system the suspend pay to its efforts
Having abandoned
cannot
department
the
during
negotiations,
the most recent
Al-
furloughs.
of
threat
by
extort such a concession
now
may
employment
governmental
though
per
right
se
bar-
the collective
itself,
rights
in
under
exist
contractual
in this case
parties
the
entered into
gaining agreement
the existence
disregards
majority’s analysis
The
do exist.
the
It
agreement.
of
would emasculate the collective bar-
gaining
permit
department
the
process
to accomplish of
pay system’s
guise
demise under
efficient operation
achieving
of services. While
in
efficiency
governmental
is
operations
managerial
a laudatory
prerogative, subvert-
ing
bargaining process
the collective
I
not. would note
the department
also that
would not
precluded
be
furloughs
employing
possibility of
as a
during
tactic
future
for a
negotiations
agreement
new
after the existing
expires
one
What
failed to do
1985, however,
directly
cannot be done surreptitiously
today in
of
agreement.
contravention
also
majority
specific
overlooks the
findings
fact
which were made in concluding that the harms which the
sought
prevent
Commonwealth Court
by issuance
speculative
are
nature. The court found that
the thirteen furloughed
lottery
district
representatives from
Pittsburgh
qualified
would be
to fill the seven proposed
positions in Harrisburg
seniority
and that
provisions
the collective agreement would
placement
control
displaced representatives in the
positions. The
new
reloca-
tion of Pittsburgh representatives
part
to the eastern
*16
state and the
reduction
of positions
number
are not
illusory economic consequences, as
majority
would have
one believe.
consequences
These economic
are matters of
distinguished
record as
of Berkowitz v.
case
Wilbar,
(1965)