22 Pa. Commw. 25 | Pa. Commw. Ct. | 1975
Opinion by
This is an appeal from an order of the Court of Common Pleas of Delaware County under which members of the United Transportation Union, Local 1594 (Union) were enjoined from engaging in a strike against the
In this action the parties have called upon the Court to resolve such imprecise rights, and the provisions giving rise to the controversy and relied upon by the court below are Sections 801, 802, and 1002 of Act 195, 43 P.S. §§1101.801, 1101.802, 1101.1002. These provide as follows :
Section 1002
“Strikes by public employes during the pendency of collective bargaining procedures set forth in sections 801 and 802 of Article VIII are prohibited. In the event of a strike during this period the public employer shall forthwith initiate an action for the same relief and utilizing the same procedures required for prohibited strikes under section 1001.”
“If after a reasonable period of negotiation, a dispute or impasse exists between the representatives of the public employer and the public employes, the parties may voluntarily submit to mediation but if no agreement is reached between the parties within twenty-one days after negotiations have commenced, but in no event later than one hundred fifty days prior to the ‘budget submission date’, and mediation has not been utilized by the parties, both parties shall immediately, in writing, call in the service of the Pennsylvania Bureau of Mediation.”
Section 802
“Once mediation has commenced, it shall continue for so long as the parties have not reached an agreement. If, however, an agreement has not been reached within twenty days after mediation has commenced or in no event later than one hundred fifty days prior to the ‘budget submission date,’ the Bureau of Mediation shall notify the board of this fact. Upon receiving such notice the board may in its discretion appoint a fact-finding panel which panel may consist of either one or three members. If a panel is so designated or selected it shall hold hearings and take oral or written testimony and shall have subpoena power. If during this time the parties have not reached an agreement, the panel shall make findings of fact and recommendations: [Specifying additional procedures not here relevant.] ”
In this case, at 12:01 A.M. on April 2,1975 the Union, which represents the operators of SEPTA’s Red Arrow Division, commenced a strike against SEPTA after failing to reach agreement upon a new contract, the existing contract having expired at the end of the day of April 1, 1975. SEPTA’s budget submission date
Contributing to these delays were Union elections late in 1974 which resulted in substantial changes in the Union’s bargaining committee. The new bargaining committee notified the Bureau on January 31, 1975 that no progress had been made since July 10, 1974 and asked whether or not the Bureau had notified the PLRB of the status of the negotiations as required under Section 802 of Act 195. There is no response apparent on the record. Finally, with the existing contract expiration date rapidly approaching, the parties scheduled a negotiating session for February 18, 1975. Sessions were not actually conducted, however, until March 7, and again on March 19, 24, 26 and March 31, straight through to 7:55 P.M. on
Later on April 2, 1975, SEPTA petitioned the Court of Common Pleas of Delaware County for a rule upon the Union to show cause why a preliminary injunction against continuation of the strike should not issue. The rule was granted and, thereafter, the court took testimony and issued an order enjoining the strike on the basis that the collective bargaining procedures designated in Sections 801 and 802 had not yet been exhausted thereby precluding a lawful strike under Section 1002. This appeal by the Union followed.
SEPTA has now moved to quash the appeal as being moot. We held in Bellefonte Area School Board v. The Belief onte Area Education Association, 9 Pa. Commonwealth Ct. 210, 304 A.2d 922 (1973) that where the PLRB does not appoint fact finders, as is within its discretion under Section 802, the collective bargaining procedures contemplated by the Act have been exhausted thereby relieving the Union of the prohibitory language under Section 1002 and allowing a strike to proceed. In the instant case the PLRB had apparently decided against appointing fact finders at the time when the strike commenced. Since the filing of this appeal, however, the fact finding process has been initiated. SEPTA argues, therefore, that the collective bargaining procedures are not exhausted and that the appeal is consequently moot. The Union argues in opposition, however, that, when the schedule for procedures expires under Sections 801 and 802 and when the existing contract expires, a strike may then be lawfully instituted. The strike, the Union argues, cannot be converted thereafter into an unlawful strike by the initiation of fact finding procedures and thus this appeal would not be moot.
Two principles clearly emerge upon reading the aforementioned Sections 801 and 802 of Act 195. First, it is clear that the collective bargaining processes must be scheduled so that the public employer's proposed budget of expenditures can be adequately prepared in time for submission to the appropriate governing body for final action on the date for which such submission is required by law or practice (budget submission date). Second, it is clear that the designated substantive procedures of collective bargaining are to be utilized to exhaustion prior to the lawful initiation of any strike by public employes. The appellant Union in support of its position relies upon the fact that schedule provisions under Sections 801 and 802 had expired, whereas SEPTA in asserting that the strike was unlawful, relies upon the fact (as found by the court below) that the substantive procedures under these sections had not been exhausted.
. Act of July 23, 1970, P. L. 563, as amended, 43 P. S. §1101.101 et seq.
. See Section 301 of Act 195, 43 P. S. §1101.301.
. The Union argues that SEPTA as the plaintiff below did not sustain its burden of proving that bargaining procedures had not been exhausted prior to April 1, 1975. Apparently, the mediator had engaged in unilateral discussions with the parties prior to April 1, 1975 and the Union argues that these communications constitute mediation under the Act and to rule otherwise would divest the mediator of his wide ranging discretion to bring about settlement. We do not believe that it is necessary here to determine whether or not unilateral communications are sufficient to constitute mediation under the Act, rather we do believe that the chancellor in the court below had adequate support in the record to determine that mediation had not taken place in this case until April 1, 1975 and that bargaining procedures, therefore, had not been exhausted at the time of the strike.