American Federation of State, County & Municipal Employees v. Pennsylvania Labor Relations Board

DISSENTING OPINION BY

President Judge PELLEGRINI.

Unlike the majority, I would hold that the Pennsylvania Labor Relations Board (Board) erred in not finding that Luzerne County (County) committed an unfair labor practice in violation of Sections 1201(a)(1) and (a)(5) of the Public Employe Relations Act (Act)1 by not negotiating to a bona fide impasse2 with the American Federation of State, County, and Municipal Employees, District Council 87 (Union) before contracting out workforce development activities.

Agreeing with the Board’s finding that the County did not commit an unfair labor practice by failing to bargain,3 notwith*63standing that workforce investment board (WIB) requests for proposals to provide services which were sought to be contracted out stated that WIB’s choice of contractor was subject to the approval of the Board of Commissioners (Commissioners), the majority finds that the County does not have to bargain with the Union because the WIB is some sort of independent government entity, separate and apart from county government that is not beholden to county elected officials or its citizens for the expenditure of public funds. In arriving at its conclusion and ignoring the rest of the provisions of the Pennsylvania Workforce Development Act (PWDA),4 it finds that just because the WIB “identifies and selects” providers, it is somehow not part of county government.

I disagree with the majority because (1) under the PWDA, a WIB is part of county government; (2) under the uncontroverted facts, the County had functional control over the Luzerne/Schuylkill Workforce Investment Board (L/S WIB); and (3) even if you agree with the majority, the L/S WIB does not have a separate legal structure and must bargain over whether work should be contracted out.

I.

L/S WIB’s legal status vis-a-vis the County is set forth in Section 502 of the PWDA, which provides that members of the Board are appointed in “accordance with the criteria established by the board for the Governor ... by the chief elected official[s] of the city, county or counties that participate in the local workforce investment board ...” 24 P.S. § 6250.502(b). This provision is silent on the length and term of the members’ service or whether they serve at will.

The purpose of each local workforce investment board is “to advise and assist the chief elected official in the county or counties served by the local workforce investment board by setting policy to promote effective workforce investment programs in a designated geographic area.” Section 501(b) of the PWDA, 24 P.S. § 6250.501(b) (emphasis added). The PWDA provides that the workforce investment board is to work with “the chief elected official” in the area to submit a local plan to the governor, select providers for certain services, develop a budget for the workforce investment board, and oversee local youth programs and employment and training activities. Section 504 of the PWDA, 24 P.S. § 6250.504. See also Section 101 of the Workforce Investment Act of 1998(WIA), 29 U.S.C. § 2801. The local WIB advises and assists the chief elected official to create a local plan, which is then submitted to the Governor for approval, and the chief elected official approves the local WIB budget.5 Once the funds come *64into the county treasury, they can only be disbursed in accordance with the statutorily prescribed procedures. See Shapp v. Sloan, 480 Pa. 449, 391 A.2d 595 (1978).

Ignoring that the “purpose” of the WIB is to “advise and assist” or the other provisions placing the matter within county control, the majority finds the fact that the WIA and PWDA “recognize the importance of having the local WIB working with local officials to determine the needs of the local workforce investment area and to set the policy for that area does not mean that the local official controls the local WIB.” American Federation of State, County and Municipal Employees, District Council 87 v. Pennsylvania Labor Relations Board, 77 A.3d 53, 60 (No. 929 C.D.2012, filed August 1, 2013), 2013 WL 3943266 (emphasis in original). It arrives at that conclusion for one simple reason— the disbursement of the WIA funds is at the direction of the local WIB, not the chief elected official. 29 U.S.C. § 2832(d)(3)(B)(i)(I)-(III); 24 P.S. § 6250.501(c)(3).

While a workforce investment board has the authority “[t]o authorize use of local workforce investment funds,” 24 P.S. § 6250.504(b)(7), and identify and select eligible service providers, what that argument ignores is that the WIB has no authority to enter into a contract that would itself authorize the funds to be disbursed. The contract itself would have to be entered into by the county with local checks and balances such as including the normally required contract provisions, e.g., anti-discrimination provisions; having the provisions properly identify the scope of the work; making sure that funds for which disbursement is sought are available for encumbrance; and seeing if the funds authorized are for a proper WIB activity. Also, the PWDA envisions that the contracting authority remains in the county because the chief elected official of the local government, ie., the county’s taxpayers, is responsible for “any misuse of the grant funds allocated to the local workforce investment area ...” 24 P.S. § 6250.501(c).

Not only is the purpose of the WIB to “advise and assist” the county’s chief elected officer; the county is responsible for signing for the funds, approving the budgeting of the funds and for misuse of the funds. All of the above establishes that the WIB is intertwined with and housed within the county governmental structure.

II.

Regardless of how one interprets the WIB’s status under the PWDA, based on the uncontroverted facts of record, the County had control over the decision to bid out the work. It is undisputed that in November 2009, the chairperson of the Commissioners, unbeknownst to the Union, decided that the L/S WIB should seek competitive bids for all of its programs. In March 2010, the L/S WIB issued requests for proposals to provide services for Title I and EARN programs, and each of the requests indicated that WIB’s choice of contractor was subject to the approval of the Commissioners. The County also issued a press release stating that the Commissioners had to approve the contracts.

*65Based on these uncontroverted facts, I would hold that the County had control over the decision to contract out the work.

III.

While I would hold that the L/S WIB under PWDA is part of county government and/or that it has functional control over it, like the majority, I would reject the County’s position that the L/S WIB is not its agent because it was transformed from a governmental board to a non-profit corporation with a nonmembership model. Unlike the majority, I would hold that because a non-profit took over those functions, there has been no decision by the L/S WIB to contract out the work.

Under Article III, Section 1(A) of the non-profit’s by-laws, it purportedly assumes the L/S WIB’s powers. It provides:

The business and affairs of the L/S WIB shall be managed by or under the direction of the Board of Directors. The Board of Directors will undertake and carry out the functions and responsibilities in accordance with the applicable state and federal policies, rules and regulations related to the Workforce Investment Act of 1998 and the By-Laws of the corporation.

(Joint Exhibit 2 at 4.) The County contends that L/S WIB cannot be a County agency because it is an autonomous, nonprofit corporation, and the County has no power to interfere in its operation.

The majority rejects the argument that the County can create a non-profit to carry out the L/S WIB function, stating that “[bjecause neither statute expressly addresses the creation of such an entity, a local board’s incorporation as a non-profit entity can neither expand nor diminish the local board’s authority under the WIA and WDA.” American Federation of State, County and Municipal Employees, District Council 87 v. Pennsylvania Labor Relations Board, 77 A.3d 53, 58 n. 12 (No. 929 C.D.2012, filed August 1, 2013), 2013 WL 3943266. It then went on to state “[w]e, therefore, will, as the Board did, focus our analysis solely on the authority granted to the L/S WIB under the WIA and WDA.” Id. After making that analysis, the majority found that because the L/S WIB was not apart and free from control from the County government, it had no obligation to negotiate with the Union over contracting out work, a conclusion with which, as I explained earlier, I disagree. However, the resolution of that issue is not necessarily determinative in this case.

As the majority points out, nothing in either the WIA or the PWDA mentions the creation of a non-profit corporation to carry out the functions of the WIB; under both Acts, only the WIB was entrusted to carry out the functions set forth in both Acts. This is understandable because the General Assembly could not do so even if it wanted, as the Pennsylvania Constitution provides that “[t]he General Assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes or perform any municipal function whatever.” Pa. Const, art. Ill, § 31.

This provision embodies the principle that the purpose of a democracy is to live democratically. In a democracy, citizens elect individuals to make those decisions and every so often they can throw them out of office if they do not serve the public will. When we compromise those principles by “outsourcing,” such as creating a non-profit corporation to carry out functions entrusted to a public body in order to *66achieve some other “good,”6 we weaken the democracy by not letting citizens through their elected representatives decide what is in the public interest.

For those reasons, I agree with the majority that using the non-profit corporation to carry out WIB functions is impermissible. However, that if you agree with the majority conclusion that a WIB Board under PWDA is some sort of free-floating governmental agency outside the structure of county government that can decide to contract out work, L/S WIB still has to make the determination. The L/S WIB did not do so here because it does not exist. It has been supplanted by the nonprofit corporation which does not have the authority to undertake governmental action.

Because I would hold that L/S WIB is part of the County and the County determines how services are delivered, the County committed an unfair labor practice by failing to bargain with the Union before subcontracting work.

Judge McGINLEY joins in this dissenting opinion.

.Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.1201(a). Section 1201(a) of the Act 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.
* * *
(5) Refusing to bargain collectively in good faith with an employe representative which is the exclusive representative of employes in an appropriate unit, including but not limited to the discussing of grievances with the exclusive representative.

. See Pennsylvania Labor Relations Board v. Mars Area School District, 480 Pa. 295, 389 A.2d 1073 (1978); Snyder County Prison Board v. Pennsylvania Labor Relations Board, 912 A.2d 356 (Pa.Cmwlth.2006), appeal denied, 593 Pa. 730, 928 A.2d 1292 (2007).

. The Board did not adopt the hearing examiner’s proposed decision and order that would have found that the County committed an unfair labor practice because the requests for *63proposals, press releases and the Workforce Investment Act (WIA) Chief Elected Official Agreement all discussed cooperation between the WIB and the Commissioners, and the requests also contained language requiring Commissioner approval before contracts could be awarded. The hearing examiner found that the County could not claim that the Luzerne/Schuylkill WIB’s decision was beyond its control. The hearing examiner, therefore, proposed that the County be ordered to rescind the contracts for Title I and EARN programs and return that work to the agency. Because while the Board is free to find facts differently, the facts the hearing examiner used in arriving at his conclusion are undisputed. I believe those facts establish that the County was in complete control of the decision to contract out the work.

. Act of December 18, 2001, P.L. 949, as amended, 24 P.S. §§ 6250.101-6250.1502.

. In conjunction with developing the local plan, the local WIB, chief elected official and the Governor negotiate the local levels of performance for the local workforce investment area as described in Section 136(c) of the *64WIA, 29 U.S.C. § 2871(c), which are to be used "by the local board for measuring the performance of the local fiscal agent (where appropriate), eligible providers, and the one-stop delivery system, in the local area.” 29 U.S.C. § 2833(b)(3) (emphasis added). See also 20 C.F.R. §§ 663.510(d), (e), .515, .535 (setting forth the local board’s responsibilities in managing the eligible provider process). Thus, it is the local WIB and not the chief elected official or participating county that is responsible for monitoring the performance of those entities providing WIA services.

. Usually, when this provision and provisions like it are "compromised,” it is because it is more expeditious to do so, i.e., it is easier to get something done without the hassle of applying pesky governmental laws such as bonding or insurance or, for that matter, public accountability. Another reason given is "let’s get the politics out of it” which usually means "let's get the public out of it.”