Mazzie v. Commonwealth

KAUFFMAN, Justice,

dissenting.

The majority correctly recognizes: (1) that “the threshold issue [is] whether the Code of Conduct is a matter of inherent managerial policy or is a new term and condition of employment”; (2) that this issue “should be determined in the first instance by the PLRB. . .” (Maj.Op. ante at 990); and, (3) that “a preliminary injunction of any kind should be granted only where the rights of the plaintiff are clear.” (Emphasis added) (Maj.Op. ante at 987, n.1). It erroneously and inconsistently concludes, however, that the courts of this Commonwealth have “traditional equity power” to intercede in the administrative resolution of this controversy despite a clear refusal by the PLRB to seek judicial intervention and despite appellees’ failure to establish the likelihood of their success on the merits.

I

By virtue of Section 1301 of the Public Employe Relations Act1 (“PERA”), the Legislature unequivocably has vested *142the PLRB with exclusive authority to prevent unfair labor practices:2

The [PLRB] is empowered, as hereinafter provided, to prevent any person from engaging in any unfair practice listed in Article XII of this Act. This power shall be exclusive and shall not be affected by any other means of adjustment or prevention that have been or may be established by agreement, law, or otherwise. (Emphasis added).

14 P.S. § 1101.1301. In Hollinger v. Department of Public Welfare, 469 Pa. 358, 366, 365 A.2d 1245, 1249 (1976) we concluded that

... if a party directly seeks redress of conduct which arguably constitutes one of the unfair labor practices listed in Article XII (Section 1201) of the PERA, 43 P.S. § 1101.1201 . . . jurisdiction to determine whether an unfair labor practice has indeed occurred and if so, to prevent a party from continuing the practice is in the PLRB, and nowhere else. (Emphasis added.)

In a matter such as that now before us, the PLRB has the express power, if it preliminarily determines that it is necessary to do so, to petition the courts “for appropriate temporary relief or restraining order.” 43 P.S. § 1101.1501. When Section 1501 of PERA is read in conjunction with Section 1301, it is apparent that the Legislature intended to vest the PLRB, and the PLRB alone, with standing to seek injunctive relief in those unfair labor practice disputes where the circumstances require such action.3 The PLRB here declined to exercise this power, however, despite two requests by *143appellees that it do so.4 To allow either employers or employees to circumvent the PLRB by directly petitioning the court for a preliminary injunction under the rubric of invoking its “traditional equity power” would be antagonistic to the detailed administrative scheme promulgated by the Legislature for the orderly resolution of labor disputes.

II

The majority accurately sets forth the basic prerequisites necessary to sustain a prayer for preliminary injunctive relief:

A preliminary injunction of any kind should be granted [1] only where the rights of the plaintiff are clear, [2] the need for relief is immediate and [3] injunctive relief is necessary to avoid injury which is irreparable and cannot be compensated for by damages. Township of South Fayette v. Commonwealth, 477 Pa. 574, 385 A.2d 344 (1978); Roberts v. School District of Scranton, 462 Pa. 464, 341 A.2d 475 (1975). (Emphasis added).

(Maj.Op. ante at 987, n.1). Nevertheless, in affirming the order of the Commonwealth Court, which totally ignored the requirement that a plaintiff establish the likelihood of success on the merits, the majority appears to have eliminated this previously critical prerequisite for a preliminary injunction of any kind. In the majority’s view, since appellees sought a “prohibitory injunction” only to prevent an act that would change the status quo rather than a “mandatory injunction” to command performance of some positive act, they were required to demonstrate nothing more than immediate and irreparable harm. This is a dramatic and unwise departure from long established principles of equity, and, if followed, undoubtedly will lead to the unfair imposition of preliminary injunctive relief in many cases where the plain*144tiff easily can demonstrate immediate and irreparable harm, but cannot establish a clear right on the merits.5

Obviously recognizing that one of the necessary prerequisites for a preliminary injunction of any kind is a showing of likelihood of success on the merits, the PLRB correctly rejected appellees’ requests that it seek an immediate restraining order.6 For the Commonwealth Court to have issued a preliminary injunction under these circumstances was patently erroneous.

Accordingly, I would reverse the order of the Commonwealth Court and dissolve the preliminary injunction.

FLAHERTY, J., joins in Part II of this dissenting opinion.

. Act of July 23, 1970, P.L. 563, No. 195, as amended, 43 P.S. § 1101.101 et seq.

. On November 5, 1980, appellee AFSCME filed an unfair labor practice charge under Article XII of PERA alleging, inter alia, that imposition of the Code of Conduct was a failure to bargain collectively in good faith.

. This procedure ensures that the body with recognized expertise in handling labor disputes will make a preliminary determination whether a claim is sufficiently meritorious and the relative harm sufficiently immediate and irreparable to justify court intervention.

. At the time it filed its unfair labor practice charges, appellee AFSCME “invoked the statute and requested the [PLRB] to seek injunctive relief.” Approximately three weeks later, AFSCME made a similar request, this time to the Chairman of the PLRB. Both requests were denied. (Petitioners-Appellees’ Brief at 5, 25-26).

. While a mandatory injunction “requires a much stronger case” and should be issued “more sparingly” than a prohibitory injunction, all of the basic prerequisites recognized by the majority to be necessary for a preliminary injunction of any kind must be established before a prohibitory injunction properly may issue. See Roberts v. School District of Scranton, 462 Pa. 464, 469-70, 341 A.2d 475, 478 (1975). Thus, “unless the plaintiffs right is clear and the wrong is manifest, a preliminary injunction will not generally be awarded... . ” Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 181, 207 A.2d 768, 771 (1965).

. In my view, the Governor as chief executive officer of this Commonwealth has the constitutional power, indeed the constitutional duty, to take all reasonable action to eliminate both corruption and the appearance of corruption from the executive branch. To require financial disclosure of those who voluntarily chose to become public employees is merely one reasonable and rational step in the effort to achieve this salutary goal. That integrity in government is not an appropriate subject for collective bargaining should be self-evident.