Commonwealth v. State Conference of State Police Lodges of the Fraternal Order of Police

HUTCHINSON, Justice,

dissenting.

I respectfully dissent. The majority infringes on the legislative function of determining public policy in respect of labor-management issues by an eclectic juxtaposition of statutory provisions from both private sector and public sector legislation. Such creativity is not our proper function. The constitutional doctrine of separation of powers *292requires instead that we in the judicial branch guard the authority of the legislative and administrative branches as zealously as we protect our own.

The recent action of the General Assembly in passing Senate Bill 180, which proposed to amend the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, No. 175, as amended, 71 P.S. §§ 51-732-506 (Supp.1986) to permit the implementation of “agency shops” for the benefit of exclusive employee representatives under the Public Employee Relations Act, Act of July 23, 1970, P.L. 563, No. 195, as amended, 43 P.S. §§ 1101.101-1101.2301 (Supp.1986) (Act 195), and its subsequent veto by the Governor demonstrate the extent of the present controversy over this issue. Its resolution calls for political compromise rather than judicial fiat. Even this recently proposed legislation was not intended to apply to the policemen and firemen who are covered by the Act of June 24, 1968, P.L. 237, No. 111, as amended, 43 P.S. §§ 217.1-217.10 (Supp.1986) (Act 111), rather than Act 195.

Appellant here is the collective bargaining agent for a union, the Fraternal Order of Police, seeking to reinstate an arbitrator’s award directing the Commonwealth to implement an agency shop1 within the State Police. The net effect of such an award will be to enable the union to direct the dismissal of any of those public employees, union or non-union, who fails to pay the dues imposed on union members.

A majority of this Court supports reinstatement of this award by applying language from a 1937 statute establishing the right of collective bargaining among private employers and employees, Pennsylvania Labor Relations Act, Act of June 1, 1937, P.L. 1168, No. 294, as amended, 43 P.S. §§ 211.1-211.13 (PLRA), to the semi-military State Police organization which serves as the principal law enforcement *293agency of this Commonwealth. Citing Philadelphia Fire Officers Association v. Pennsylvania Labor Relations Board, 470 Pa. 550, 369 A.2d 259 (1977), to the effect that the PLRA and Act 111 are in pari materia, the majority concludes that application of this Latin phrase repeals the definition of “employer”2 in the PLRA, as well as the requirement that an employee consent to the withholding of dues.3

We note, at the outset, that the Rules of Construction require that “[ejvery statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa.C,S. § 1921(a). Moreover, “[statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things.” 1 Pa.C.S. § 1932(a). Finally, except in the case of a total revision of all statutes or an exclusive, uniform or mandatory system of statutes, “a later statute shall not be construed to supply or repeal an earlier statute unless the two statutes are irreconcilable.” 1 Pa.C.S. § 1971(c).

When this Court was called upon to construe Act 111 in Philadelphia Fire Officers, supra, it invoked the PLRA to supply the absence of a procedure in Act 111 for electing a collective bargaining representative. At that time, Justice Pomeroy, speaking for a unanimous court, said, “We decide today only that the Labor Board has jurisdiction under the PLRA of 1937 to conduct a representation election in a unit comprised of firemen and policemen whose collective bargaining with their public employers is governed by Act No. 111.” Philadelphia Fire Officers, supra, 470 Pa. at 558, 369 A.2d at 263 (emphasis supplied). The PLRA was in no *294way repealed or affected by the use of its election procedures to implement Act 111 and its Section 3 definition of “employer” still stands. That definition specifically “shall not include the United States or the Commonwealth, or any political subdivision thereof.” 43 P.S. § 211.3(c) (emphasis supplied). See supra at n. 2. This definition thus limits the authority of the PLRA to collective bargaining between private employers and employees.

For this reason, the language in Section 6(l)(c),4 quoted in part by the majority, applies only to private sector bargaining. Moreover, even in this sector the language -of Section (6)(l)(f) precludes an agency shop:

(1) It shall be an unfair labor practice for an employer—
(f) To deduct, collect, or assist in collecting from the wages of employes any dues, fees, assessments, or other contributions payable to any labor organization, unless he is authorized so to do by a majority vote of all the employes in the appropriate collective bargaining unit taken by secret ballot, and unless he thereafter receives the written authorization from each employe whose wages are affected.

43 P.S. § 211.6(l)(f) (emphasis supplied).

It could well be argued that the laws dealing with labor-management relations have changed substantially since *2951937 and even since 1968. Those changes, however, do not authorize this Court instead of the General Assembly to rewrite public labor policy for the Commonwealth. Section 7 of Act 111 specifically directs the referral of arbitration awards under that Act to the lawmaking bodies of political subdivisions or the Commonwealth with respect to matters which require legislative action:

(b) With respect to matters which require legislative action for implementation, such legislation shall be enacted, in the case of the Commonwealth, within six months following publication of the findings, and, in the case of a political subdivision of the Commonwealth, within one month following publication of the findings. The effective date of any such legislation shall be the first day of the fiscal year following the fiscal year during which the legislation is thus enacted.

43 P.S. § 217.7(b) (Supp.1986). Thus the General Assembly, not this Court, must determine this type of policy issue. This view was subsequently affirmed by the legislature in Act 195 as well.

Act 195 not only states the public employer’s right to hire or fire its employees, 43 P.S. § 1101.706, but explicitly recognizes the legislature’s policy-making authority in Sections 804 and 805:

Nothing in this article shall prevent the parties from submitting impasses to voluntary binding arbitration with the proviso the decisions of the arbitrator which would require legislative enactment to be effective shall be considered advisory only.

43 P.S. § 1101.804.

Notwithstanding any other provisions of this act where representatives of units of guards at prisons or mental hospitals or units of employes directly involved with and necessary to the functioning of the courts of this Commonwealth have reached an impasse in collective bargaining and mediation as required in section 801 of this article has not resolved the dispute, the impasse shall be submitted to a panel of arbitrators whose decision shall be *296final and binding upon both parties with the proviso that the decisions of the arbitrators which would require legislative enactment to be effective shall be considered advisory only.

43 P.S. § 1101.805. This Court should do no less.

Whether to permit or require an agency shop for police officers is an important policy question as to which basic differences of opinion exist. On the one hand it is argued that all those who benefit from the efforts of the bargaining agent should contribute to it. On the other, it is said that forced contributions to a private body with whose policies an individual is not always in agreement violates a basic individual right to choose freely those organizations one wishes to join and support. Those differences, to my mind, are peculiarly appropriate for resolution by that branch of government closest to the people and inappropriate for the judiciary or an arbitrator. I, therefore, dissent and would affirm.

. "An ‘agency shop’ agreement generally provides that while employees do not have to join the union, they are required — usually after thirty days — to pay the union a sum equal to the union initiation fee and are obligated as well to make periodic payments to the union equal to the union dues.” Oil Workers v. Mobil Oil Corp., 426 U.S. 407, 409 n. 1, 96 S.Ct. 2140, 2141 n. 1, 48 L.Ed.2d 736 (1976).

. 43 P.S. § 211.3(c).

When used in this act—

(c) The term ‘employer’ includes any person acting, directly or indirectly, in the interest of an employer, but shall not include the United States or the Commonwealth, or any political subdivision thereof, or any municipal authority, or any person subject to the Federal Railway Labor Act or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.

. 43 P.S. § 211.6(l)(f). See infra, at 294.

. The full text reads:

(1) It shall be an unfair labor practice for an employer—
(c) By discrimination in regard to hire or tenure of employment, or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this act, or in any agreement approved or prescribed thereunder or in any other statute of this Commonwealth, shall preclude an employer from making an agreement with a labor organization (not established, maintained or assisted by any action defined in this act as an unfair labor practice) to require, as a condition of employment, membership therein, if such labor organization is the representative of the employes, as provided in section seven (a) of this act, in the appropriate collective bargaining unit covered by such agreement when made and if such labor organization does not deny membership in its organization to a person or persons who are employes of the employer at the time of the making of such agreement, provided such employe was not employed in violation of any previously existing agreement with said labor organization.

43 P.S. § 211.6(l)(c).