PLRB v. STATE LIQUOR CONTROL BD. ET AL

Collective bargaining — Public Employe Relations Act, Act 1970, July 23, P.L. 563 — Unfair labor practice — Concessions — Federal decisions — Evidence not of record.

1. An employer is not guilty of an unfair labor practice because it fails to make any concession or modification of its initial wage offer when bargaining pursuant to the Public Employe Relations Act, Act 1970, July 23, P.L. 563, if the employer has continued to bargain and made concessions in other matters covered by the negotiations and an examination of the entire conduct of the parties reveals no bad faith. [147-8-9]

2. Federal decisions in the area of labor-management relations in the private sector are of little precedent in cases involving collective bargaining with public employers under state statutes. [149]

3. Evidence which is not part of the record cannot be considered by a reviewing court. [149-50]

OPINION BY JUDGE WILKINSON, January 11, 1977:

The issue presented here is whether the Pennsylvania Labor Relations Board (PLRB) erred in dismissing appellant's charges of unfair labor practices resulting from an alleged refusal to bargain in good faith. We affirm.

A collective bargaining agreement between appellant and the State Liquor Control Board (LCB) was to expire on June 30, 1975. Prior to the beginning of negotiations toward a new contract in May 1975, the LCB's negotiators were instructed to offer no greater than a 3.5% wage increase effective July 1, 1975. This maximum offer was conveyed to appellant's representatives at the first bargaining session but no rationale for this position was given either to the LCB negotiators or the appellant. Although appellant scaled down its wage demands and even indicated flexibility thereafter, the LCB remained firm on its 3.5% maximum wage increase throughout the negotiations. Finally, on July 30, 1975, the LCB offered a two-year contract, remaining firm on the 3.5% wage increase effective July 1, 1975, but granting a 2.5% wage increase effective January 1, 1976, and a further 6% wage increase effective July 1, 1976.

Appellant filed its complaint the next day, alleging not only that the LCB had refused to bargain in good faith regarding the 3.5% maximum wage increase, but also that it had "unilaterally established a single economic benefit limitation applicable to all state employees" and sought to superimpose it upon appellant. The latter allegation presumably referred to a "most favored nations" clause allegedly promised to another, larger public employees' union by which the Commonwealth would grant that union benefits equal to any granted to other unions, including appellant. Following a hearing before a hearing examiner, the PLRB dismissed both charges. It held that the LCB made "various economic and non-economic concessions" throughout the negotiations and therefore no refusal to bargain had occurred. It also held that no credible testimony had been introduced to show the existence of the alleged "most favored nations" clause. This appeal followed.

Appellant's claim that the LCB violated its duty to bargain in good faith by remaining firm as to its maximum initial wage offer finds no support in the Public Employe Relations Act. Section 701 states:

Collective bargaining is the performance of the mutual obligation of the public employer and the representative of the public employes to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment, or the negotiation of an agreement or any question arising thereunder and the execution of a written contract incorporating any agreement reached but such obligation does not compel either party to agree to a proposal or require the making of a concession. (Emphasis added.)

Here, the LCB did make various concessions and even altered its wage proposal. We adopt the language of the PLRB:

While intransigence as to a 'package' collective bargaining offer may constitute an unfair practice refusal to compromise as to one part of a collective bargaining proposal where concessions have been made on other aspects of the agreement is not a per se violation of Section 1201(a)(5) of the Act.

Appellant claims that the LCB's concessions as to subsequent wage increases should be disregarded because its position as to the initial wage increase (effective July 1, 1975) remained unchanged. This argument ignores the principle that in cases of this type the entire conduct of the parties should be examined.

Appellant's reliance on National Labor Relations Board v. General Electric Company, 418 F.2d 736 (2d Cir. 1969), cert. denied, 397 U.S. 965 (1970) is misplaced. "As we have previously pointed out, Federal decisions involving the National Labor Management Relations Act are not binding and, in fact, are frequently of little precedent when dealing with the public sector." Pennsylvania Labor Relations Board v. American Federation of State, County and Municipal Employees, 22 Pa. Commw. 376, 381, 348 A.2d 921, 924 (1975). Moreover, the majority opinion in General Electric, supra, went to great lengths to point out that it was not establishing the principle for which appellant cites the case as authority to us:

In order to avoid any misunderstanding of our holding, some additional discussion is in order. We do not today hold that an employer may not communicate with his employees during negotiations. Nor are we deciding that the 'best offer first' bargaining technique is forbidden. Moreover, we do not require an employer to engage in 'auction bargaining,' or, as the dissent seems to suggest, compel him to make concessions, 'minor' or otherwise.

418 F.2d at 762.

Appellant's final claim concerns the "most favored nations" clause allegedly promised to the larger union of public employees. Appellant's evidence of this promise is a document which was not part of the record. Hence, it cannot be considered here. E.g., Local 1400, Chester City Fire Fighters Association v. Nacrelli, 15 Pa. Commw. 590, 329 A.2d 532 (1974).

Accordingly, we will enter the following

NOW, January 11, 1977, the Order of the Pennsylvania Labor Relations Board in No. PERA M-7058-C, dated December 11, 1975, is hereby affirmed.