Pennsylvania Labor Relations Board v. Zelem

*407NIX, Justice

(dissenting).

I am constrained to express my emphatic disagreement with the majority’s interpretation of the language appearing in section 904 of the Public Employe Relations Act1 and the relationship of this section to the other provisions of the act, particularly sections 401 and 705.

In determining the permissible extent of a union security provision there are three pertinent provisions to be read.

Section 401 which declares parameters of employe rights under the Act reads:

“It shall be lawful for public employes to organize, form, join or assist in employe organizations or to engage in lawful concerted activities for the purpose of collective bargaining or other mutual aid and protection or to bargain collectively through representatives of their own free choice and such employes shall also have the right to refrain from any or all such activities, except as may be required pursuant to a maintenance of membership provision in a collective bargaining agreement.” (EmphasisAdded).2

Section 705 of PERA provides:

“Membership dues deductions and maintenance of membership are proper subjects of bargaining with the proviso that as to the latter, the payment of dues and assessments while members, may be the only requisite employment condition.” (Emphasis added).

*408The PERA clearly, by these sections, sets forth a maintenance of membership shop as the maximum union security provision that can be made part of a public employe bargaining agreement. The core of the dispute which has given rise to this lawsuit centers around the nature of the exception to this rule that is provided by section 904 of the Act. Section 904 entitled “Existing agreements; provisions inconsistent with [the] act” reads:

“Any provision of any collective bargaining agreement in existence on January 1, 1970 which is inconsistent with any provision of this act but not otherwise illegal shall continue valid until the expiration of such contract. The parties to such agreements may continue voluntarily to bargain on any such items after the expiration date of any such agreement and for so long as these items remain in any future agreement.”

The majority concedes the legality of an agency shop security agreement in Pennsylvania prior to the enactment of the PERA. My disagreement arises from their determination that the word “bargaining” should be construed to mean that while the parties in the future may diminish the protection afforded by future agency shop agreements to the Union, those protections cannot be enhanced although the security arrangement remains a type of agency shop. Such a determination distorts the common and approved usage of the word “bargaining” and ignores the fundamental purpose of the legislation.

The Statutory Construction Act3 states that “ [w] ords and phrases shall be construed according to [the] rules of grammar and according to their common and approved usage . . . ” or if they have “acquired a peculiar and appropriate meaning”, that meaning shall be *409applied. The legal and etymological history4 of the word “bargain” provides a concept of give and take at arm’s length to reach a mutually agreed position. Thus, the use of the word bargain in the second sentence fails to connote as the majority suggests that the type of agency shop may not be modified either to enhance or decrease the protection afforded. To the contrary, the clear meaning of the words require an interpretation that the existence of a union security agreement providing for an agency shop on the specified date permits the parties to negotiate subsequent contracts also containing an agency shop provision, the only limitation being that it not be in violation of earlier laws. The clause “[t]he parties to such agreements may continue voluntarily to bargain on any such items” clearly expresses the right to agree upon an agency shop not permitted by PERA but otherwise permissible under the laws of this Commonwealth. The word “bargaining” unquestionably relates to the item, an agency shop, and there is a complete absence of any language which would limit the terms of the bargaining to the terms of the existing security provision.

The majority while seeming to accept the traditional definition of the verb “bargain”, attempts nevertheless to justify a distortion of its meaning in this instance by suggesting that the rights of those not a party to the bargaining process are being affected. This reasoning disregards the patent fact that the term “bargain” was used by the legislature in this section to define the rights of those who were in fact participating in the bargaining process. It further ignores the practical reality that these alleged forgotten souls are attempting to receive *410the benefits of union membership, while avoiding acceptance of its responsibilities.

We are also persuaded that such a construction is consistent with the public policy expressed in Section 101 of the Act. Section 101 provides:

“The General Assembly of the Commonwealth of Pennsylvania declares that it is the public policy of this Commonwealth and the purpose of this act to promote orderly and constructive relationships between all public employers and their employes subject, however, to the paramount right of the citizens of this Commonwealth to keep inviolate the guarantees for their health, safety and welfare. Unresolved disputes between the public employer and its employes are injurious to the public and the General Assembly is therefore aware that adequate means must be established for minimizing them and providing for their resolution. Within the limitations imposed upon the governmental processes by these rights of the public at large and recognizing that harmonious relationships are required between the public employer and its employes, the General Assembly has determined that the overall policy may best be accomplished by (1) granting to public employes the right to organize and choose freely their representatives; (2) requiring public employers to negotiate and bargain with employe organizations representing public employes and to enter into written agreements evidencing the result of such bargaining; and (3) establishing procedures to provide for the protection of the rights of the public employe, the public employer and the public at large.”

Section 904, as I interpret it, recognizes the assistance to the orderly and constructive relationship between public employer and employe by allowing a continuation, as a subject for bargaining, of that which in past agreements has assisted in providing a basis for a meeting of the minds. While the act also seeks to protect the right of *411the employe to “organize and choose freely their representatives”, this aim cannot be achieved by introducing discord where harmony formerly prevailed.

It is therefore my judgment that the union security provision contained within the agreement executed July 1, 1970, was permitted under the PERA and that the payments made by the appellee thereunder were properly paid.

EAGEN and MANDERINO, JJ., join in this dissent.

. Act of July 23, 1970, P.L. 563, 43 P.S. 1101.101 et seq.

. Section 301(18) defines the term “maintenance of membership” as follows:

“Maintenance of membership” means that all employes who have joined an employe organization or who join the employe organization in the future must remain members for the duration of a collective bargaining agreement so providing with the proviso that any such employe or employes may resign from such employe organization during a period of fifteen days prior to the expiration of any such agreement.” (Emphasis added).

. Act of November 25, 1970, P.L. 707, No. 230, added, Act of December 6, 1972, P.L. 1339, No. 290, § 3, 1 Pa. S. 1903.

. Bargain: “To negotiate over the terms of an agreement or contracts, to agree to certain terms or conditions, to come to terms, to engage in collective bargaining, to reach an agreement, to haggle.” Webster’s Third New International Dictionary (Unabridged) (1971).