Opinion by
The American Federation of State, County and Municipal Employees, Council 13 (AFSCME) appeals from an order of the Pennsylvania Labor Relations Board (Board) which reversed a proposed decision and order of a hearing examiner which found that the Commonwealth of Pennsylvania, Department of Transportation had committed an unfair labor practice.
In December of 1980, various employees of DOT who were also members of AFSCME and the bargaining unit were notified that their positions as stock clerks were being eliminated effective January 19, 1981, because of the lack of funding. A number of their responsibilities were to be performed by storekeepers, first level supervisors who were not a part of the bargaining unit. AFSCME filed a charge of an unfair labor practice
At the completion of the grievance process, the arbitrator concluded that no violation of the collective bargaining agreement had occurred. The arbitrator found that except for the supervisory functions performed by the storekeepers, there was no difference in the functions of the two positions. The arbitrator concluded that there had been no “major negative impact” upon the members of the bargaining unit and thus no violation of various provisions of the collective bargaining agreement. No appeal was taken from the arbitrators award.
When the hearing examiner was notified of the arbitrators decision, he decided that deferral to that decision was not warranted. He concluded that the Commonwealth had committed unfair labor practices as defined by Section 1201(a)(1) and (5) of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563, 43 P.S. §1101.1201 (Supp. 1986). The Commonwealth filed exceptions to the proposed decision and order. The Board held that the hearing examiner had erred in refusing to defer to the arbitrators decision. Accordingly, the Board dismissed the complaint issued pursuant to AFSCMEs charge. This appeal followed.
In Pennsylvania Labor Relations Board v. Pine Grove Area School District, 10 Pa. Pub. Employee R. ¶ 10167 (1979), the Board announced its standards for deferring to arbitration actions which had also been filed and involved the same factual scenario. Before arbitration, the Board will defer when (1) the grievance
AFSCME argues that two errors of law were committed by the Board when it determined that post-arbitration deferral was proper in this case. First, the union argues that a fourth prong should be engrafted onto the Pine Grove standards for post-arbitration deferral, namely, that the arbitrator must have been presented with and decided the statutory unfair labor practice charge. Second, AFSCME argued that the arbitrators result was repugnant to PERA. We will deal with these allegations of error in the order which they are presented.
As authority for the proposition that a fourth prong should be added, AFSCME cites Suburban Motor Freight, 247 N.L.R.B. 146, L.R.R.M. (BNA) 1113 (1980) and Pennsylvania Labor Relations Board v. Harrisburg School District, 14 Pa. Pub. Employee R. ¶ 14032 (1983), which both require the result which AFSCME urges. For the following reasons set forth by the Board, however, we will not follow either of these decisions.
The Board points out that the National Labor Relations Boards decisions concerning the fourth prong of the test have not been consistent. In Raytheon Co., 140 N.L.R.B. 84, 52 L.R.R.M. (BNA) 1129 (1983), set aside
As the Board points out, never in its history has it adopted the fourth prong as urged presently by AFSCME. Harrisburg School District was the proposed decision of a hearing examiner which was never appealed to the Board. In Fraternal Order of Police, Star Lodge 20 v. Pennsylvania Labor Relations Board, 104 Pa. Commonwealth Ct. 561, 576, 522 A.2d 697, 703-04 (1987), we discussed the weight to be given an unappealed decision of a hearing examiner.
Although the Board clearly is not bound by hearing examiner decisions, the Board cannot discard consistent trends in the work of its own hearing examiners by any claim that the Board is powerless to review them sua sponte, in view of 34 Pa. Code §95.98(d), permitting the Board to review any hearing examiner decision on its own motion.
We point out that the decision in Harrisburg School District is not part of any consistent trend. Further, we know of no authority which would require the Board, deciding questions of state law concerning PERA, to blindly follow decisions of the NLRB which involve questions purely of federal law. Given the NLRBs flip-flopping on this question, we can perceive no error in the Boards consistent policy which has never required the fourth prong.
The arbitrator ruled that the collective bargaining agreement had not been violated by these transfers because the duties of the bargaining unit members and the supervisors so overlapped that there was “no major negative impact”. When determining if an assignment of work outside the bargaining unit is violative of a collective bargaining agreement, an arbitrator is permitted to consider whether the “quantity of work or the effect on the bargaining unit is minor or de minimis in nature.” Elkouri and Elkouri, How Arbitration Works 512 (3d ed. 1974). The arbitrators ruling in this case was therefore essentially that no transfer of work outside the bargaining unit had occurred. The NLRB has defined repugnance in this context as “not whether the Board would have reached the same result as an arbitrator, but whether the arbitrators award is palpably wrong as a matter of law.” Inland Steel Co., 263 N.L.R.B. 1091, 111 L.R.R.M. (BNA) 1193 (1982).
Order
Now, August 14, 1987, the August 23, 1985 order of the Pennsylvania Labor Relations Board at No. PERAC-81-320-E is affirmed.
