Chambersburg Borough v. Pennsylvania Labor Relations Board

Justice DOUGHERTY,

concurring.

I concur in the determination further review of this matter was improvidently granted, writing only to explain my reservations regarding the lower court’s resolution of this matter. While I agree with *191concerns raised by Justice Wecht in his Dissenting Statement, I respectfully do not believe this matter is the appropriate vehicle to define the scope of the secondary boycott provision of the Pennsylvania Labor Relations Act (PLRA), 43 P.S. §§ 211.1-211.13.

Like all courts with discretionary review dockets, this Court attempts to identify cases of broad import or interest for review. See Pa.R.A.P. 1114(b). Many considerations apply in determining whether to accept a case beyond the nature of the issue: the sharpness of the dispute, the quality of the advocacy, the opinions below. Once we have accepted an appeal, other considerations may govern whether the case, in fact, appears to be the appropriate vehicle for the exposition we had hoped: the state of the record, issue preservation, quality of the briefing, points made by amicus curiae, etc.

In this case, Chambersburg Borough (Chambersburg) informed International Association of Fire Fighters (IAFF), Local 1813, which represents the professional firefighters employed by Chambersburg, it intended to lay off a number of the professional firefighters and transfer much of its firefighting responsibility to volunteer firefighting companies such as Franklin Fire Company No. 4 (Franklin). A Local 1813 official sent a letter to all IAFF union members in the area informing them of a collective bargaining dispute between Local 1813 and Chambersburg and requesting union members, who also serve as volunteer firefighters, refrain from providing their volunteer services to Chambers-burg until the dispute was resolved. We granted discretionary review to determine whether this letter constituted engaging in a secondary boycott prohibited under Section 211.6(2)(d) of the PLRA, 43 P.S. § 211.6(2)(d). Section 211.6(2)(d) provides, in relevant part, it shall be an unfair labor practice for any labor organization “[t]o engage in a secondary boycott, or to hinder or prevent by threats, intimidation, force, coercion or sabotage the obtaining, use or disposition of materials, equipment or services....” Id.1

A divided panel of the Commonwealth Court decided the case via published opinion, see Chambersburg Borough v. PLRB, 106 A.3d 212 (Pa.Cmwlth.2014), concluding the letter constituted engaging in a prohibited secondary boycott because Local 1813 intended to induce Franklin volunteers, who were also IAFF members, to refrain from providing Chambersburg with their firefighting services in their volunteer capacity. Judge Friedman vigorously dissented, arguing the majority’s reliance upon case law interpreting Section 8(b)(4) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(b)(4), was misplaced due to the significant differences in the statutory language between Section 211.(6)(d)(2) of the PLRA and Section 8(b)(4) of the NLRA. The case appeared to offer a question of first impression regarding the scope of behavior encompassed by the prohibition against secondary boycotts, a term which is not defined by the PLRA.

As it happens, however, in my judgment, the case proved not to be an appropriate vehicle for providing guidance on the issue accepted. This case may be of limited utility because of its unusual factual posture, as it involves a public employer, a union representing paid professional firefighters, and volunteer firefighters, who happened to be IAFF members as a result of their employment as professional firefighters outside the borough. Secondary boycotts are prohibited to prevent the *192bringing of undue economic pressure upon a secondary employer who is not involved in the primary labor dispute between an employer and a labor organization. Kerr v. Butler Bldg. Trades Council, 447 Pa. 247, 288 A.2d 525, 527 (1972), citing Local 501, IBEW v. NLRB, 181 F.2d 34, 37 (2d Cir.1950). Both the NLRA and Pennsylvania’s labor relations statutes, which include the PLRA and the Public Employe Relations Act (PERA), 43 P.S. §§ 1101.101-1101.2301, speak in terms of “employment,” “employer,” and “employee.”2 In this case, Franklin is not an “employer” under either the PLRA or PERA and its volunteer members, who are free to decline to provide their services for any reason or no reason, are not “employees” under either statute. Thus, the factual posture of this case does not squarely fit the concept of secondary boycott because employment is not implicated and neither a secondary employer nor secondary employees are present.

Of course, our decision to dismiss this appeal as improvidently granted is not to be read as approval of the Commonwealth Court’s conclusion Section 158(b)(4) of the NLRA and Section 211.6(2)(d) of the PLRA should be interpreted identically. Indeed, I find merit in the Pennsylvania Labor Relations Board’s argument there are substantial differences in the statutory language of the NLRA and the PLRA. The NLRA makes it an unfair labor practice for a labor organization “to engage in, or to induce or encourage any individual employed by any person engaged in commerce ... to engage in, a strike or a refusal in the course of his employment ... to perform any services” with the objective of “forcing or requiring any persons ... to cease doing business with any other person....” 29 U.S.C. § 158(b)(4)(i)(B) (emphasis added). In contrast, Section 211.6(2)(d) of the PLRA prohibits a labor organization from “engaging] in a secondary boycott.” Section 211.6(2)(d) lacks language prohibiting inducement or encouragement, indicating an actual strike or refusal to provide services must occur for an unfair labor practice to be found. In this regard it is also notable Section 1201(b)(7) of PERA prohibits a labor organization from “[ejngaging in, or inducing or encouraging any individual employed by any person to engage in a strike or refusal to ... perform services ...” with the objective of forcing a public employer to cease dealing or doing business with any other person. 43 P.S. § 1101.1201(b)(7) (emphasis added). Thus, as demonstrated by Section 1201(b)(7) of PERA, if the General Assembly intended the PLRA to prohibit the mere inducement or encouragement of a refusal to provide a service, it easily could have included the requisite language in the statute.

Justice DONOHUE joins this concurring statement.

. Section 211.6(2) contains two subsections (d); the above language is the text of subdivision (d) as added by the Act of July 7, 1947, P.L. 1445, No. 558, § 1.

. Police officers’ and firefighters’ labor rights are secured by the Police and Firemen Collective Bargaining Act (Act 111), 43 P.S. §§ 217.1-217.10, which for purposes of unfair labor practice claims is read in pari materia with the PLRA. See City of Erie v. PLRB, 612 Pa. 661, 32 A.3d 625, 635 n. 12 (2011).