We Will Not Fight Them in the Courts, We Will Not Fight Them at the PLRB, we ….

December 2010Alerts Education Alert

While in other contexts December 7 is "a day that will live in infamy," and was a day that marked the beginning of America's concerted war efforts, the PA Commonwealth Court published a case yesterday saying instead "we are not involved."

The case involved the police union complaining that the Commonwealth of PA had hired people outside the union to do union work. The Commonwealth claimed that what it did was permitted under a provision of their collective bargaining agreement (CBA). The union interpreted the same contract provision differently. In the end, the court invoked the well-established "contractual privilege" theory, saying if the union wanted to fight about it, the union would have to challenge this with an arbitrator.

The court pointed out that the [PLRB] exists to remedy violations of statute ... and not violations of contract. 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.
(internal quotation marks and citations omitted).

This is not a new theory and I do not believe that the case really breaks any new ground. At the same time, what is pointed out by the dissent (so clearly the three judges did not all agree on the outcome) was that interpretation of this same contract provision had already been the subject of a prior arbitration decision between the parties in a separate but markedly similar situation. Yet even with that history the majority still told the union that its only recourse was with a new arbitration.
Shall we analogize this to Sgt. Schultz ("I see noth-ing ....")?

If you have any questions about this Alert, please contact Kyle Berman, or any member of Fox Education Practice.