           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Community College of               :
Philadelphia,                      :
                                   :
                        Petitioner :
                                   :
                 v.                : No. 613 C.D. 2017
                                   : Argued: November 15, 2018
Pennsylvania Labor Relations       :
Board,                             :
                                   :
                        Respondent :


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE ELLEN CEISLER, Judge


OPINION BY JUDGE WOJCIK                                        FILED: March 13, 2019

              Community College of Philadelphia (College) petitions for review from
a final order of the Pennsylvania Labor Relations Board (Board) that dismissed its
exceptions and declared the decision of the Secretary of the Board declining to issue
a complaint and dismissing the College’s charge of unfair labor practices against the
Faculty and Staff Federation of the Community College of Philadelphia, Local 2026,
AFT, AFL-CIO (Union) as final and absolute.1 The College claims that the Board
erred or abused its discretion by declining jurisdiction where its charge asserted a
claim that the Union engaged in bad faith bargaining, which falls under the Board’s


       1
        This case was argued seriately with Community College of Philadelphia v. Faculty and
Staff Federation of the Community College of Philadelphia, Local 2026, AFT, AFL-CIO
(Pa. Cmwlth., No. 1729 C.D. 2017, filed March 12, 2019) (Faculty and Staff Federation).
jurisdiction under the Pennsylvania Public Employe Relations Act (PERA).2 Upon
review, we affirm.

                                       I. Background
               On February 13, 2017, the College filed a charge of unfair labor
practices (Charge) against the Union with the Board. Certified Record (C.R.) at 1-
3. The College is a “public employer” within the meaning of Section 301(1) of the
PERA, 43 P.S. §1101.301(1).           The Union is an “employe organization” under
Section 301(3) of the PERA, 43 P.S. §1101.301(3), representing full-time faculty at
the College, among others. The College and the Union are parties to a collective
bargaining agreement (CBA), which expired on August 31, 2016. The parties
continue to operate under the terms of the expired agreement, with the Union-
represented faculty continuing to receive full pay and benefits. The parties are
currently in negotiations for a successor agreement. C.R. at 3.
               The College is an open admission institution serving the Philadelphia
area and approximately 30,000 students each year, offering associate degrees and
academic and proficiency certificates. The College alleged that, in order for it to
maintain its accreditation, the Middle States Commission on Higher Education
requires the College to engage in a continuous cycle of assessment of student
learning outcomes and to use the results to improve and update courses, curricula
and teaching methods. These assessments require full-time faculty to examine and
review each course and curriculum to ensure that students are meeting established
course learning outcomes. The performance of assessment work is a professional
responsibility of each full-time faculty member and a required duty under the expired
CBA and past practice. C.R. at 3.

      2
          Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§1101.101-1101.2301.
                                               2
             The College asserted that, beginning in November 2016, and
continuing through the present, the Union instructed the full-time faculty “to refuse
to perform mandated assessment work,” while continuing to accept full pay and
benefits. C.R. at 3. The College demanded the Union to “cease and desist from
unlawfully instructing its members to refuse to perform assessment work.” C.R. at
3. Despite this demand, the Union has continued its unlawful instruction to its
members. C.R. at 3.
             The College charged that the Union and its members are engaging in
an “unlawful partial strike” in violation of Sections 1201(b)(3) and 1006 of the
PERA, 43 P.S. §§1101.1201(b)(3), 1101.1006. C.R. at 3. The College claimed that
the Union’s conduct is creating a clear and present danger to its accreditation and
programs. Loss of accreditation would severely impact the College’s eligibility for
government funding and its students’ eligibility for financial assistance. The College
requested the Board to order the Union and its members “to immediately cease and
desist from their unlawful conduct and resume performance of the assessment
work.” C.R. at 3.
             By letter dated February 22, 2017, the Secretary of the Board declined
to issue a complaint on the basis that the Board lacked the authority to enjoin a strike
under the PERA. The Secretary advised that a public employer’s request to enjoin
a strike by public employees must be filed in the court of common pleas. C.R. at 4.
             On March 15, 2017, the College filed timely exceptions to the
Secretary’s refusal to issue a complaint. The College clarified it was “not asking the
Board to enjoin any conduct” of the Union or its members. C.R. at 6. Rather, the
College asserted that it was requesting the Board to “declare [that] the [Union’s]
instructions to its members to refuse to perform assessment work” is unlawful under


                                           3
Sections 1201(b)(3) and 1006 of the PERA. C.R. at 6. The College amended its
Charge to reflect it was seeking a declaration and not an injunction. C.R. at 12.
               On April 18, 2017, the Board issued a final order dismissing the
College’s exceptions and affirming the Secretary’s decision declining to issue a
complaint and dismissing the Charge. C.R. at 13-16. The Board concluded that the
legality of a strike must be determined by the courts rather than the Board. Id.
Where an alleged strike has not been enjoined by the courts, it does not constitute a
failure to bargain in good faith. Id. From this decision, the College petitioned for
review in this Court.3


                                              II. Issue
               On appeal, the College contends that the Board erred by dismissing its
exceptions on the basis it lacks the authority under the PERA to issue a complaint
under the facts presented. The College asserts that the Board has exclusive authority
under Section 1301 of the PERA, 43 P.S. §1101.1301, to prevent the Union from
engaging in any unfair practice, including refusing to bargain collectively in good
faith under Section 1201(b)(3). According to the College, the Union has engaged in
bad faith bargaining by instructing its faculty members to refrain from performing
mandated assessment work while continuing to receive full pay and benefits, without
acknowledging that it is engaged in a partial strike. The Union’s conduct allows its
members to gain the benefits of striking while avoiding any of the associated

       3
         On September 15, 2017, the College filed a Complaint with the Court of Common Pleas
of Philadelphia County (trial court) requesting it to enjoin the alleged partial strike. The trial court
dismissed the College’s Complaint on preliminary objections upon concluding that the gravamen
of the College’s Complaint was that of an unfair labor practice over which the Board exercises
exclusive jurisdiction. The College timely appealed the decision to this Court. See Faculty and
Staff Federation.


                                                   4
burdens, thereby disrupting the PERA’s delicate balance of collective bargaining
rights and obligations. The College maintains that the Board’s failure to act has had
real consequences for the College, which must continue to negotiate with the Union
in the face of bad faith bargaining tactics.4

                                         III. Discussion
                We begin by examining our review of Board determinations. “All final
Board orders, including those refusing to institute an unfair practice complaint, are
subject to judicial review.”           Pennsylvania State Park Officers Association v.
Pennsylvania Labor Relations Board, 854 A.2d 674, 679 (Pa. Cmwlth. 2004),
appeal denied, 871 A.2d 194 (Pa. 2005). “The issuance of an unfair practice
complaint is a discretionary determination of the Board.” Id. “When the Board
assumes that alleged facts are true and where the allegations do not demonstrate an
unfair labor practice, the Board properly declines to issue a complaint.” Id. “We do
not set aside the Board’s discretionary acts in the absence of bad faith, fraud,
capricious action or abuse of power.” Id. “Given the Board’s administrative
expertise in the area of public employee labor relations, ‘great deference ought to be
given to the [Board]’s assessment of the often competing concerns relevant to the
issue of whether the conduct of an employer or a union constitutes a refusal to meet
the mutual obligation to bargain in good faith.’” Id. (quoting City of Philadelphia v.
Pennsylvania Labor Relations Board, 588 A.2d 67, 71 (Pa. Cmwlth.), appeal
denied, 598 A.2d 285 (Pa. 1991)).




      4
          The Union intervened, but did not file a brief.



                                                  5
                The Board has exclusive jurisdiction over charges of unfair labor
practices. Section 1301 of the PERA, 43 P.S. §1101.1301;5 Hollinger v. Department
of Public Welfare, 365 A.2d 1245, 1248-49 (Pa. 1976). Section 1201 of the PERA,
43 P.S. §1101.1201, sets forth prohibited unfair practices.                   Of relevance here,
Section 1201(b)(3) of the PERA prohibits employee organizations, their agents, or
representatives or public employees from “[r]efusing to bargain collectively in good
faith with a public employer, if they have been designated in accordance with the
provisions of this act as the exclusive representative of employes in an appropriate
unit.”6 43 P.S. §1101.1201(b)(3). Courts have applied this provision when a union

       5
           Specifically, Section 1301 of the PERA provides:

                The board is empowered, as hereinafter provided, to prevent any
                person from engaging in any unfair practice listed in Article XII of
                this act. This power shall be exclusive and shall not be affected by
                any other means of adjustment or prevention that have been or may
                be established by agreement, law, or otherwise.

43 P.S. §1101.1301.

       6
         Other prohibited unfair practices include strikes, but in limited contexts, which have not
been asserted here:

                (6) Calling, instituting, maintaining or conducting a strike or boycott
                against any public employer or picketing any place of business of a
                public employer on account of any jurisdictional controversy.

                (7) Engaging in, or inducing or encouraging any individual
                employed by any person to engage in a strike or refusal to handle
                goods or perform services; or threatening, coercing or restraining
                any person where an object thereof is to (i) force or require any
                public employer to cease dealing or doing business with any other
                person or (ii) force or require a public employer to recognize for
                representation purposes an employe organization not certified by
                the board.

43 P.S. §1101.1201(b)(6)-(7) (emphasis added).
                                                  6
refuses to bargain without a sound arguable basis. See State System of Higher
Education v. Pennsylvania Labor Relations Board, 821 A.2d 156, 158 n.2 (Pa.
Cmwlth.), appeal denied, 832 A.2d 437 (Pa. 2003) (a charge that a union has refused
to bargain in good faith will not be sustained if it is found that the union had a “sound
arguable basis” for believing that its decision or action conformed with a collective
bargaining agreement); Ford v. School District of Philadelphia, 453 A.2d 705, 707
(Pa. Cmwlth. 1982) (failure of union to represent interest of all its members in good
faith and without discrimination is unfair labor practice over which Board has
exclusive jurisdiction).
             While the Board has exclusive jurisdiction over unfair practices, the
courts exercise jurisdiction over strikes prohibited under Article X of the PERA.
Sections 1001, 1002 and 1003 of the PERA, 43 P.S. §§1101.1001, 1101.1002,
1101.1003; see Armstrong School District v. Armstrong Education Association, 595
A.2d 1139, 1143 (Pa. 1991) (Section 1003 of the PERA confers equity jurisdiction
upon the court of common pleas once a public employer seeks relief from a strike);
City of Scranton v. Pennsylvania Labor Relations Board, 505 A.2d 1360, 1363
(Pa. Cmwlth. 1986) (a contest as to the validity or legality of a strike is reserved for
the courts). Section 301(9) of the PERA defines a “strike” as:

             [C]oncerted action in failing to report for duty, the willful
             absence from one’s position, the stoppage of work,
             slowdown, or the abstinence in whole or in part from the
             full, faithful and proper performance of the duties of
             employment for the purpose of inducing, influencing or
             coercing a change in the conditions or compensation or the
             rights, privileges, or obligations of employment.
43 P.S. §1101.301(9). The courts are empowered to grant equitable relief, including
but not limited to injunctions, when a strike is challenged under the PERA.
43 P.S. §§1101.1001, 1101.1002, 1101.1003; see, e.g., Armstrong (court possessed
                                           7
authority to enjoin work stoppage and to direct parties to attend bargaining sessions
of a frequency and duration determined by the court).
             Specifically, Section 1001 of the PERA prohibits strikes by guards at
prisons or mental hospitals or employees directly involved with the functioning of
the courts. 43 P.S. §1101.1001. “If a strike occurs[,] the public employer shall
forthwith initiate in the court of common pleas of the jurisdiction where the strike
occurs, an action for appropriate equitable relief including but not limited to
injunctions.”   Id. (emphasis added).          If the strike involves Commonwealth
employees, the action may be filed in the Commonwealth Court. Id.
             Section 1002 prohibits strikes during negotiation and mediation,
providing:

             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.
43 P.S. §1101.1002 (emphasis added).
             Of relevance here, Section 1003 of the PERA permits a strike after
certain conditions are met provided it does not create a clear and present danger or
threat to the health, safety or welfare of the public.             43 P.S. §1101.1003.
Specifically, Section 1003 provides:

             If a strike by public employes occurs after the collective
             bargaining processes set forth in sections 801 and 802 of
             Article VIII of this act have been completely utilized and
             exhausted, it shall not be prohibited unless or until such a
             strike creates a clear and present danger or threat to the
             health, safety or welfare of the public. In such cases the
             public employer shall initiate, in the court of common

                                           8
              pleas of the jurisdiction where such strike occurs, an
              action for equitable relief including but not limited to
              appropriate injunctions and shall be entitled to such relief
              if the court finds that the strike creates a clear and present
              danger or threat to the health, safety or welfare of the
              public. . . . Hearings shall be required before relief is
              granted under this section and notices of the same shall be
              served in the manner required for the original process with
              a duty imposed upon the court to hold such hearings
              forthwith.
Id. (emphasis added). Partial or selective strikes fall within the purview of Section
1003 and may be enjoined if they create a clear and present danger or threat to the
health, safety and welfare of the public. Wilkes-Barre Area Education Association
v. Wilkes-Barre Area School District of Luzerne County, 523 A.2d 1183, 1185
(Pa. Cmwlth. 1987).
              Further, Section 1006 of the PERA provides: “No public employe shall
be entitled to pay or compensation from the public employer for the period engaged
in any strike.” 43 P.S. §1101.1006. Where a cause of action alleges that a public
employer unlawfully withheld accrued wages or other compensation from striking
professional employees, it is an unfair labor practice within the meaning of Section
1201(a)(1) of the PERA,7 and falls within the jurisdiction of the Board. Bailey v.
Ferndale Area School District, 454 A.2d 207, 210 (Pa. Cmwlth. 1982). However,
where a cause of action alleges that the striking public employees received
compensation during the strike in violation of Section 1006 of the PERA,
jurisdiction lies in the trial court. See Woodland Hills Education Association,
PSEA/NEA v. Woodland Hills School District, 508 A.2d 365, 366 (Pa. Cmwlth.



       7
          This section prohibits public employers from “[i]nterfering, restraining or coercing
employes in the exercise of rights guaranteed in Article IV of this act [including the right to
strike].” 43 P.S. §1101.1201(a)(1).
                                              9
1986) (court of common pleas considered the issue of whether compensation
received during strike must be repaid to the public employer).
               In City of Scranton v. Pennsylvania Labor Relations Board, 505 A.2d
1360, 1363 (Pa. Cmwlth. 1986), we held that the public employer (the city) was
expressly required to contest the validity of the strike in the court of common pleas
before taking any retaliatory action. Id. There, the city had refused to engage in the
mediation process and, as a result, the union and employees engaged in a strike. Id.
at 1361. The city responded by discharging five employees for instigating and taking
part in the alleged unlawful strike. Id. at 1361-62. Following the terminations, the
union filed a charge of unfair practices with the Board. The Board rejected the city’s
argument that the Board must determine the legality of the strike under Section 1001
in connection with the alleged unfair practice of retaliation for engaging in a
protected activity. On appeal, we affirmed, explaining:

               [T]he Board specifically declined to determine the
               timeliness of the strike under these sections because that
               function is strictly reserved to the courts by Sections 1001
               and 1005 of [the] PERA[, 43 P.S. §§1101.1001 and
               1101.1005.8] The Board reasoned that it was the [c]ity
               which first aborted the collective bargaining process by
               refusing to negotiate further and that its subsequent
               discharge of the employees outside the PERA guidelines
               constituted an unfair labor practice.
Id. at 1363 (emphasis added).
               In support of its position that a union violates its good faith bargaining
obligation when it instructs its bargaining unit members to cease performing selected
job duties as part of a bargaining strategy, the College relies on Pennsylvania Labor

       8
          Section 1005 of the PERA is premised on violating a lawful order of the court, such as an
injunction order, and Section 1001 requires the public employer to first seek an injunction of a
strike in the court of common pleas. 43 P.S. §§1101.1001 and 1101.1005.
                                                10
Relations Board v. West Chester Area School District, 9 PPER ¶9095 (Nisi Decision
and Order, 1978), aff’d, 10 PPER ¶10067 (Final Order, 1979). In West Chester, the
public employer charged, inter alia, that the union violated Section 1201(b)(3) of
the PERA by withholding services and engaging in a deliberate slowdown of work
activity. The Board exercised jurisdiction because the allegations involved an
interpretation of the definition of a strike. The Board found that the “slowdown”
was undertaken for the purpose of inducing, influencing or coercing the employer to
change the employees’ obligations of employment. The Board concluded that the
action constituted a strike. The Board also determined that the union’s unilateral
action of refusing to attend faculty meetings prior to the exhaustion of the PERA’s
impasse procedures disrupted the status quo and constituted a violation of the
union’s duty to bargain in good faith with the employer.
             As the Board points out, West Chester is distinguishable and not
controlling here. West Chester involved charges filed by the union and the employer
in a consolidated action. The gravamen of the charges alleged acts of refusing to
bargain, refusing to sign an agreement, harassment, and other unfair practices
expressly prohibited by Section 1201 of the PERA, properly within the Board’s
exclusive jurisdiction. Although the Board found that the union’s actions constituted
a partial strike, it did not enjoin the strike. Further, the Board’s jurisdiction over the
strike was not questioned in West Chester, and West Chester was not appealed to
this Court. Decisions of the Board, while instructive, are not binding on this Court.
Capital City Lodge No. 12, Fraternal Order of Police v. Pennsylvania Labor
Relations Board, 30 A.3d 1241, 1244 n.2 (Pa. Cmwlth. 2011), appeal denied, 44
A.3d 1162 (Pa. 2012). Moreover, West Chester is at odds with the Supreme Court’s
decision in Armstrong, 595 A.2d at 1143, and this Court’s decision in City of


                                           11
Scranton, 505 A.2d at 1363, which clearly hold that the courts of common pleas
maintain jurisdiction over strikes prohibited under Sections 1001, 1002 and 1003 of
the PERA, not the Board.
               Here, although the College charged that the Union engaged in an unfair
practice under Section 1201(b)(3) of the PERA, C.R. at 1, it did not allege any facts
that the Union refused or failed to bargain collectively in good faith. See State
System; Ford. Rather, the College alleged that the Union “instructed its members to
refuse to perform mandated assessment work.” C.R. at 6, 12. The College refers to
the faculty’s refusal to perform assessment work as a “partial strike.” Id. The
College also alleged that the faculty members are continuing to receive full
compensation despite their refusal to perform mandated work in violation of Section
1006 of the PERA. C.R. at 6, 12. The College and Union are currently engaged in
contract negotiations. C.R. at 6, 12. And, the College alleged that the Union’s
behavior is “creating a clear and present danger” to the College’s accreditation,
which mirrors the language contained in Section 1003 of the PERA. C.R. at 6, 12.
               Although the College initially requested the Board to order the Union
and its members to “cease and desist,” C.R. at 6, it later amended the Charge by
asking the Board to “declare” the Union’s instructions unlawful and grant such other
relief as appropriate.9 C.R. at 12. However, merely changing the nature of the
equitable relief sought did not change the nature of the offending conduct – an
alleged partial strike. C.R. at 3, 12. Once a public employer seeks relief from a
strike as prohibited under Sections 1001, 1002 or 1003 of the PERA, jurisdiction is
vested with the courts of common pleas, not the Board. 43 P.S. §§1101.1001,


       9
          The original statement of the Charge and the amended statement are identical but for the
relief requested. Compare C.R. at 3 with C.R. at 12.
                                               12
1101.1002, 1101.1003; Armstrong, 595 A.2d at 1143; City of Scranton, 505 A.2d at
1363.
             Insofar as the College asks this Court to treat the Union’s instructions
to its members to refuse to perform assessment work as separate from the members’
subsequent refusal to perform assessment work in order to maintain an unfair
practice claim with the Board, we decline to do so. The Union’s instruction to its
members to cease performing assessment work is akin to calling or instituting a
strike. As such, it is part and parcel of a “concerted action” to strike. See
43 P.S. §1101.301(9). Thus, we conclude that the Union’s instruction and its
members’ actions in accord thereto are inextricably intertwined for purposes of
establishing jurisdiction under the PERA.

                                   IV. Conclusion
             Upon review, the Board assumed the truth of the alleged facts and
determined that the College did not allege an unfair labor practice but rather a partial
strike that was creating a clear and present danger to the College’s accreditation,
over which jurisdiction is vested within the courts of common pleas. See 43 P.S. §
1101.1003. Thus, the Board did not err or abuse its discretion by upholding the
Secretary’s decision declining to issue a complaint and dismissing the College’s
charge of unfair practices. Accordingly, we affirm.




                                        MICHAEL H. WOJCIK, Judge




                                          13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Community College of               :
Philadelphia,                      :
                                   :
                        Petitioner :
                                   :
                 v.                : No. 613 C.D. 2017
                                   :
Pennsylvania Labor Relations       :
Board,                             :
                                   :
                        Respondent :


                                 ORDER


           AND NOW, this 13th day of March, 2019, the order of the Pennsylvania
Labor Relations Board, dated April 18, 2017, is AFFIRMED.



                                   __________________________________
                                   MICHAEL H. WOJCIK, Judge
