          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Elease M. Elliott,                     :
                     Petitioner        :
                                       :
             v.                        : No. 588 C.D. 2016
                                       : SUBMITTED: December 15, 2016
Pennsylvania Labor Relations           :
Board,                                 :
                 Respondent            :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE HEARTHWAY                           FILED: March 2, 2017

             Elease M. Elliott (Elliott) petitions for review of the final order of the
Pennsylvania Labor Relations Board (Board), entered March 15, 2016, dismissing
her charge of unfair practices against the County of Lancaster (County). We
affirm.


             Elliott is a correctional officer for the County. She was hired as a full-
time probationary employee on May 20, 2013, and she began working the 8:00
a.m. to 4:00 p.m. (8-4) shift at that time. On August 5, 2013, Elliott volunteered to
move to the 12:00 a.m. to 8:00 a.m. (12-8) shift in place of another employee with
medical issues. Subsequently, Elliott requested several times to move back to the
8-4 shift. (Findings of Fact (F.F.) Nos. 3-6.)1


              On May 21, 2014, Elliott’s original 8-4 shift was posted and open for
bid.2 (Supplemental Reproduced Record (S.R.R.) at 14b, Exhibit (Ex.) E-1.) On
May 29, 2014, Elliott put in a formal bid to return to the 8-4 shift. (F.F. No. 6.)
On June 9, 2014, Elliott was awarded the 8-4 shift, and she worked that shift for
several weeks. (See F.F. No. 7; S.R.R. at 15b, Ex. E-2.)


              On June 11, 2014, the local president of the American Federation of
State, County and Municipal Employees (AFSCME or Union)3 informed the
County that a lieutenant on the 4:00 p.m. to 12:00 a.m. (4-12) shift erroneously
advised his subordinates that the May 21, 2014, posting for the position on the 8-4
shift was not open to female correctional officers. (Amended F.F. No. 8.) Due to
the erroneous announcement, the County reposted the position on the 8-4 shift on
June 24, 2014. (Amended F.F. No. 8.) On June 29, 2014, Elliott submitted
another bid for the 8-4 shift, but she did not get the position because it was
awarded to a more senior employee. (Amended F.F. No. 9.) Elliott testified that
on July 14, 2014, Major Klinovski informed Elliott that she would be moving to


       1
           The Board adopted the hearing officer’s proposed decision and order (PDO) but
amended some of the findings of facts. Citations to Findings of Fact appear in the PDO whereas
citations to Amended Findings of Fact appear in the Board’s order.
        2
          Elliott’s one-year probationary period had expired at this time. Upon expiration of an
employee’s probationary period, the employee’s shift is open for bid. (Reproduced Record
(R.R.) at 69a.)
        3
           AFSCME is the exclusive bargaining representative for the correctional officers
employed by the County. (Amended F.F. No. 8.)


                                               2
the 4-12 shift, and Elliott responded that she intended to file a grievance.4
(Reproduced Record (R.R.) at 51a-52a, see Amended F.F. No. 9.) On July 23,
2014, Elliott filed a grievance protesting the award of the shift to a more senior
officer, arguing that Elliott was the sole applicant and was entitled to the position.
(F.F. No. 10.) The grievance proceeded to step 3 but ultimately was withdrawn by
the Union on September 8, 2014.5 (F.F. No. 10, S.R.R. at 10b.)


               On November 6, 2014, Elliott filed a charge of unfair practices with
the Board, which she subsequently amended (Charge). (R.R. at 3a-6a.) In her
Charge, Elliott alleged that the County violated sections 1201(a)(1), (3) and (4) of
the Public Employe Relations Act (PERA).6 Specifically, she charged:


       4
           The parties agree Major Klinovski makes determinations regarding posting and filling
positions. (Reproduced Record (R.R.) at 64a-65a.)
        Elliott did not number the pages in the reproduced record using a lower case “a” after the
numerals, as required by Pa. R.A.P. 2173. We will cite to the page numbers of the reproduced
record in the proper format.
        5
          At step 3, the union representative and grievant present the grievance to the County’s
Director of Personnel (Director), and the Director renders a written decision. (R.R. at 17a, see
R.R. at 125a-26a.)
        6
          Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563, as amended, 43
P.S. § 1101.1201(a)(1), (3) and (4). Section 1201 of PERA provides in relevant part:
        (a)     Public employers, their agents or representatives are prohibited
        from:
                (1)     Interfering, restraining or coercing employes in the exercise
        of the rights guaranteed in Article IV of this act.
                        …
               (3)    Discriminating in regard to hire or tenure of employment or
               any term or condition of employment to encourage or discourage
               membership in any employe organization.
               (4)    Discharging or otherwise discriminating against an employe
               because he has signed or filed an affidavit, petition or complaint or
               given any information or testimony under this act.
43 P.S. § 1101.1201(a)(1), (3) and (4).


                                                3
                Violation of CBA [collective bargaining agreement]
                Article XVI Section 5: Complainant [Elliott] was the
                only applicant for 8-4 shift position but Respondent
                [County] refused to move Complainant [Elliott] to that
                shift in [sic] permanently on 14 July 2014 (despite the
                position opening having been read at roll-call and posted)
                but instead re-posted the position. Complainant [Elliott]
                had temporarily been moved to the 8-4 shift (from 11
                June -28 July 2014) but then was put back on 12-8[7] as a
                result of this incident. Complainant [Elliott] believes the
                violation may also be retaliation by Respondent [County]
                against her asking for assistance in restraining a
                patient/inmate while on hospital detail on 25 June 2014.

(R.R. at 6a.)

                A hearing was held before the Board’s hearing officer, who issued a
proposed decision and order (PDO), concluding that the County had not committed
unfair practices. (R.R. at 137a-41a.) Elliott filed exceptions with Board. (S.R.R.
at 37b-42b.) The Board dismissed the exceptions, adopted the PDO, as amended,
and made it final (Final Order). (R.R. at 146a.)


                Elliott now petitions this Court for review of the Board’s Final Order,8
arguing that the Board erred in concluding that the County did not violate PERA.9

       7
          We note Elliott testified she was moved to the 4-12 shift. (R.R. at 51a-52a, see
Amended F.F. No. 9.) This discrepancy is immaterial.
        8
          This Court’s scope of review is limited to determining whether all necessary findings of
fact are supported by substantial evidence, whether an error of law has been committed or
whether constitutional rights have been violated.          Lehighton Area School District v.
Pennsylvania Labor Relations Board, 682 A.2d 439 (Pa. Cmwlth. 1996). The Board “possesses
administrative expertise in the area of public employee labor relations and should be shown
deference; the Commonwealth Court will not lightly substitute its judgment” for that of the
Board. Id. at 442.
        9
          Elliott asks this Court to enter an order: (1) finding that the County violated one or
more sections of PERA; (2) requiring the County to reimburse Elliott for (a) her time attending
(Footnote continued on next page…)
                                                4
In sum, she contends that the County should not have reposted the position because
the initial posting on May 21, 2014, complied with the CBA and a side agreement
(which concerns posting, bidding and filling positions), and Elliott was the only
applicant. Elliott also argues that the reposting was in retaliation for her filing a
grievance. In response, both the Board and the County argue that Elliott does not
have standing to enforce the terms of the CBA and side agreement, as only
AFSCME, as the exclusive bargaining representative can seek to enforce the CBA
and side agreement. The County maintains that Elliott’s Charge is nothing more
than an impermissible attempt to elevate a disagreement between Elliott and her
union over its decision on whether her grievance had merit. We address Elliott’s
claims of PERA violations below.



Section 1201(a)(3) of PERA

              Section 1201(a)(3) of PERA provides that “[p]ublic employers, their
agents or representatives are prohibited from … [d]iscriminating in regard to hire
or tenure of employment or any term or condition of employment to encourage or
discourage membership in any employe organization.” 43 P.S. § 1101.1201(a)(3).
“[P]roof of an unfair labor practice charge under Section 1201(a)(3) requires a
prima facie showing that the employer’s actions were motivated by an unlawful


(continued…)

the step 3 hearing and the Board hearing and (b) her attorneys’ fees and costs related to this
proceeding; (3) finding the County liable for punitive damages; and (4) such other relief as may
be just and proper. (Petition for Review, Petitioner’s Brief at 13.) Elliott was awarded an 8-4
shift in December 2014. (R.R. at 58a.)


                                               5
motive or that the employer displayed anti-union animus.” Lehighton Area School
District v. Pennsylvania Labor Relations Board, 682 A.2d 439, 442 (Pa. Cmwlth.
1996).


             Elliott argues that the Board erroneously found that her grievance
filed July 23, 2014, was untimely because she could not have filed a grievance
prior to that time. Elliott also argues that the Board erroneously found that she did
not allege retaliation as a result of any grievance and that such argument was
untimely.


             However, Elliott misconstrues the Board’s findings, as the Board
made no such findings. Rather, the Board correctly ruled that because Elliott’s
grievance was filed after the alleged retaliatory action (reposting the position), it
could not be the basis for the County’s actions. Indeed, a simple look at the
timeline establishes that it is impossible for the County’s reposting of the position
to have been in retaliation for Elliott’s grievance. Elliott testified that on July 14,
2014, she learned that she would be moving from the 8-4 shift, and she informed
Major Klinovski at that time that she intended to file a grievance. Elliott filed her
grievance on July 23, 2014. Both of these dates are after the position was reposted
on June 24, 2014. Therefore, it is impossible that the reposting of the position was
in retaliation for her filing the grievance, or even for her informing Major
Klinovski of her intention to file a grievance. The party claiming that an unfair




                                          6
practice has been committed has the burden of proving that charge. Id. Elliott
cannot sustain her burden to prove the County violated section 1201(a)(3).10


Section 1201(a)(4) of PERA


               Section 1201(a)(4) of PERA provides that “[p]ublic employers, their
agents or representatives are prohibited from … [d]ischarging or otherwise
discriminating against an employe because he has signed or filed an affidavit,
petition or complaint or given any information or testimony under this act.” 43
P.S. § 1101.1201(a)(4).


               The hearing examiner found that Elliott did not establish a violation of
section 1201(a)(4) because that section only addresses discrimination for activity
before the Board and not for union activity that does not involve the Board’s
processes. The Board found that Elliott failed to take exception to the hearing
examiner’s findings under section 1201(a)(4) and therefore waived her right to
challenge that.


               The Board is correct that Elliott did not file exceptions to challenge
the hearing examiner’s findings under section 1201(a)(4) as required by 34 Pa.



       10
           In her Charge, Elliott also alleged that the County retaliated against her because she
asked for assistance in restraining a patient/inmate while on hospital detail on June 25, 2014.
Elliott has abandoned this argument, because she does not discuss it in her brief. Additionally,
she admitted at the hearing that this incident occurred after the position was reposted on June 24,
2014, and therefore, it could not serve as the basis for retaliation. (R.R. at 73a.)


                                                7
Code § 95.98.11 Because Elliott failed to take exception and thus preserve the issue
for appeal, this Court is precluded from considering it.12 See Pa. R.A.P. 1551
(stating court cannot consider an issue that was not raised before the government
unit); Township of Upper Saucon v. Pennsylvania Labor Relations Board, 620
A.2d 71 (Pa. Cmwlth. 1993).


Section 1201(a)(1) of PERA


               Section 1201(a)(1) of PERA prohibits public employers, their agents
or representatives from “[i]nterfering, restraining or coercing employes in the
exercise of the rights guaranteed in Article IV of this act.”13                       43 P.S. §

       11
           34 Pa. Code § 95.98 requires that the exceptions state, among other things, (i) the
specific issues, law or other portion of the decision to which exception is taken; (ii) identify the
page or part of the decision to which exception is taken; and (iii) state the grounds for each
exception.
        12
           Nevertheless, even if Elliott had preserved this issue, she could not prevail. Elliott
claims that after she notified Major Klinovski of her intent to file a grievance, the position was
re-posted. This timeline is simply belied by the facts as outlined in the above discussion
concerning section 1201(a)(3). The facts establish that the position was reposted prior to Elliott
notifying Major Klinovski of her intent to file a grievance. Additionally, Elliott simply cannot
make a prima facie case under section 1201(a)(4) because she failed to allege and prove that she
filed an affidavit, petition or complaint under PERA or gave any information or testimony under
PERA prior to the reposting of the position.
        13
           Article IV consists of section 401, which concerns employee rights and provides:
                It shall be lawful for public employes to organize, form, join or
                assist in employe organizations or to engage in lawful concerted
                activities for the purpose of collective bargaining or other mutual
                aid and protection or to bargain collectively through
                representatives of their own free choice and such employes shall
                also have the right to refrain from any or all such activities, except
                as may be required pursuant to a maintenance of membership
                provision in a collective bargaining agreement.
43 P.S. § 1101.401.


                                                 8
1101.1201(a)(1).       A violation of section 1201(a)(1) can be derivative or
independent. Neshannock Education Support Professionals PSEA/NEA, 46 PPER
48 (2013).      A derivative violation occurs “when an employer commits any
violation of sections 1201(a)(2)-(9) ….” Id., slip op. at 5. Because Elliott did not
prove a violation of either section 1201(a)(3) or (a)(4), she cannot establish a
derivative violation of section 1201(a)(1).


              An independent violation occurs when an employer engages in
conduct that tends to interfere, restrain, or coerce reasonable employees in the
exercise of their rights under Article IV of PERA. See Neshannock Education, slip
op. at 5. Elliot argues that enforcement of the CBA (and side agreement) falls
within the “mutual aid and protection” provision of Article IV, and thus, section
1201(a)(1) of PERA. Elliott argues that the Board ignored facts and failed to make
necessary findings relevant to the initial posting—in particular, that the initial
posting complied with the CBA and side agreement, and therefore, the initial
posting was valid.14


              Elliot fails to cite any legal authority in support of her argument.
Reading Article IV in its entirety, the “mutual aid and protection” language in
Article IV relates to activities that are in the genre of bargaining collectively.
Here, Elliott has not alleged such a violation.             Instead, her Charge alleges a
violation of CBA Article XVI Section 5, which, in essence, is an allegation of

       14
           Both the Board and the County argue that Elliott does not have standing to enforce the
CBA, because only the Union, as the exclusive bargaining representative for correctional
officers, can do so. Elliott states that the Board and the County have waived the issue of her
standing. Because of our disposition, it is not necessary for us to address this.


                                               9
breach of contract. The Board “exists to remedy violations of statute, i.e., unfair
labor practices, and not violations of contract.” AFSCME, District Council 47,
Local 2187 v. Pennsylvania Labor Relations Board, 41 A.3d 213, 217 (Pa.
Cmwlth. 2012). “Where a breach of contract is alleged, it should be resolved by an
arbitrator using the grievance procedure set forth in the parties' collective
bargaining agreement.”15      Id.   Accordingly, Elliott has failed to establish an
independent violation of section 1201(a)(1).


              Based on the foregoing, we conclude that Elliott has failed to establish
that the County committed any unfair practices. Therefore, we affirm the Board’s
order.


                                         __________________________________
                                         JULIA K. HEARTHWAY, Judge




         15
          We acknowledge that the Board is empowered to review an agreement to determine
whether the employer has clearly repudiated its provisions, because such repudiation may
constitute both an unfair practice and a breach of contract. AFSCME, District Council 47.
However, Elliott has neither alleged, nor do the facts constitute, a clear repudiation.


                                           10
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Elease M. Elliott,                   :
                     Petitioner      :
                                     :
             v.                      : No. 588 C.D. 2016
                                     :
Pennsylvania Labor Relations         :
Board,                               :
                 Respondent          :



                                  ORDER


             AND NOW, this 2nd day of March, 2017, the order of the
Pennsylvania Labor Relations Board is hereby affirmed.




                                     __________________________________
                                     JULIA K. HEARTHWAY, Judge
