Commonwealth, Department of General Services v. Fraternal Order of Police, Lodge 85

CONCURRING OPINION BY

Judge LEADBETTER.

I concur in the result reached by the majority, and agree that it is in accordance with current law. It seems to me, however, that the unfair labor practice tail is wagging the unit clarification dog, and a toothless dog it is, which makes it impossible to insure a fair and orderly process to resolve disputes of this type. Where two (or more) different bargaining units each lay a claim to have its members fill new positions, fundamental fairness dictates that any order directing which Union will prevail should come from a proceeding in which all interested parties are represented.1 This can only occur before the PLRB, since a grievance arbitration is necessarily limited to the employer and the single Union whose CBA is claimed to have been violated. Multiple arbitrations could lead to inconsistent results, ie., orders that each Union is entitled to the job, and appellate review is so circumscribed as to be powerless to rectify the incongruous result. Moreover, where, as here, each of two Unions has a viable claim that its members have historically performed work similar to the newly created jobs, it seems likely that employer will be found to have committed an unfair practice vis-a-vis whichever Union does not get the work.

A public employer does not have the right to decide unilaterally (at least without bargaining) which unit’s members will be given the new assignment, but it ought to be entitled to have a forum which will consider all competing interests and decide the issue once and for all. There is no question that the PLRB has jurisdiction and the power to fill this role. It can determine whether one Union can legitimately claim entitlement to the new job and, if not, clarify the appropriate bargaining unit or, if so, issue a range of appropriate orders. Nonetheless, the PLRB takes the position that its unit clarification orders are not dispositive of the issue of who will get the jobs,2 and routinely defers unfair labor practice claims to arbitration.

Although I can find no existing authority to support the view that it is mandated by law, were it up to me I would say that the PLRB has exclusive jurisdiction over such disputes, whether brought as unfair practice claims or as unit clarification petitions, *91and that it must bring in all potentially interested parties and enter an order which disposes of the entire controversy.

Judge COHN JUBELIRER and Judge LEAVITT join in this concurring opinion.

. Cf. State Sys. of Higher Educ. v. Pa. Labor Rel. Bd., 757 A.2d 442 (Pa.Cmwlth.2000) (PLRB consolidated two separate petitions for unit clarification that sought to include the same employees into their bargaining unit).

. See City of Wilkes-Barre v. Pa. Labor Rel. Bd., 32 Pa. Pub. Emp. R. ¶ 32,137 (final order 2001), aff'd, Pa.Cmwlth. No. 1776 C.D.2001 (filed April 10, 2002).