Cmty. Coll. of Phila. v. Faculty & Staff Fed'n of the Cmty. Coll. of Phila.

• Decision Date: 12 March 2019
• Docket Number: No. 1729 C.D. 2017,1729 C.D. 2017
• Citation: Cmty. Coll. of Phila. v. Faculty & Staff Fed'n of the Cmty. Coll. of Phila., 205 A.3d 425 (Pa. Commw. Ct. 2019)
• Parties: COMMUNITY COLLEGE OF PHILADELPHIA, Appellant v. FACULTY AND STAFF FEDERATION OF the COMMUNITY COLLEGE OF PHILADELPHIA, LOCAL 2026, AFT, AFL-CIO
• Court: Pennsylvania Commonwealth Court

205 A.3d 425

COMMUNITY COLLEGE OF PHILADELPHIA, Appellant

v.FACULTY AND STAFF FEDERATION OF the COMMUNITY COLLEGE OF PHILADELPHIA, LOCAL 2026, AFT, AFL-CIO

No. 1729 C.D. 2017

Commonwealth Court of Pennsylvania.

Argued: November 15, 2018

Decided March 12, 2019

David J. Woolf and Matthew A. Fontana, Philadelphia for appellant.

Bruce M. Ludwig and Lauren M. Hoye, Philadelphia, for appellee.

BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE WOJCIK

Community College of Philadelphia (College) appeals from a final order of the Court of Common Pleas of Philadelphia County(trial court) sustaining the Faculty and Staff Federation of the Community College of Philadelphia, Local 2026, AFT, AFL-CIO's (Union) preliminary objections (POs) and dismissing the College's Complaint in Equity (Complaint) for lack of subject matter jurisdiction.The College asserts that the trial court erred because redress for the alleged partial strike falls under the trial court's equitable jurisdiction under the Pennsylvania Public Employe Relations Act (PERA).¹For the reasons that follow, we reverse and remand.²

I.Background

On September 15, 2017, the College filed a Complaint and a Petition for Preliminary Injunction requesting the trial court to enjoin the Union's partial strike pursuant to Section 1003 of the PERA, 43 P.S. § 1101.1003.The College asserted that the full-time faculty's refusal to perform required assessment work constituted a strike that met Section 1003's "clear and present danger" standard.

The College is a "public employer" within the meaning of Section 301(1) of the PERA, 43 P.S. § 1101.301(1).The Union is an "employe organization" under Section 301(3) of the PERA, 43 P.S. § 1101.301(3), representing full-time faculty at the College, among others.The College and the Union are parties to a collective bargaining agreement (CBA), which expired on August 31, 2016.The parties continue to operate under the terms of the expired agreement, with Union-represented faculty continuing to receive full pay and benefits.The parties are currently in negotiations for a successor agreement under the supervision of the Bureau of Mediation.Reproduced Record (R.R.)at 10a-11a.

The College is an open admission institution serving the Philadelphia area and approximately 30,000 students each year, offering associate degrees and academic and proficiency certificates.The College alleged that, in order for it to maintain its accreditation, the Middle States Commission on Higher Education requires the College to engage in a continuous cycle of assessment of student learning outcomes and to use the results of the assessment to improve and update courses, curricula, teaching methods and student learning.These assessments require full-time faculty to examine and review courses and curricula to ensure students are meeting established course, program and institutional level learning outcomes.The performance of assessment work is a professional responsibility of each full-time faculty member and a required duty under the expired CBA and past practice.R.R.at 12a-14a.

The College asserted that the failure of full-time faculty members to complete and submit the required assessments places the College's accreditation in jeopardy.Without accreditation, the College would lose federal and certain state funding.Additionally, the College's students would no longer be eligible for federal and state financial aid, including Pell grants, because that aid is conditioned on a student attending an accredited institution.Further, without the assessments, the College would be unable to adequately assess whether students are achieving the learning objectives of courses and programs.R.R.at 14a.

The College alleged that, in the 2012-2013 academic year, during ongoing negotiations for the parties' previous CBA, the Union instructed faculty to refuse to perform assessments.As a result, the College received a formal written notice from the Middle States Commission that its accreditation may be in jeopardy.The College remained on warning until early 2016, when full-time faculty resumed performing assessments on a continuing basis.R.R.at 15a.

The College further alleged that, beginning in November 2016, and continuing through the present, the Union once again instructed full-time faculty to refuse to perform mandated assessment work, while continuing to accept full pay and benefits.The College demanded the Union to cease and desist from instructing full-time faculty to refuse to perform assessment work while receiving full pay and benefits.The Union did not stop.Full-time faculty are refusing to perform assessments.The College claims that this concerted refusal to perform assessment work constitutes a partial strike.R.R.at 15a-16a.

The College requested an injunction of the partial strike because it is creating a clear and present danger or threat to the health, safety or welfare of the public in violation of Section 1003 of the PERA.The College claimed that the partial strike threatens the College's accreditation, which if lost, would likely cause the College to cease operations.Such a loss threatens the health, safety and welfare of the public by jeopardizing the community's access to affordable higher education, decreasing the number of skilled workers entering the labor force and reducing tax revenue for the City of Philadelphia.R.R.at 17a-22a.

The College requested the trial court to enjoin the Union and its members from refusing to perform the required assessment work; to order the full-time faculty to complete all forms of required assessment work immediately; and to order the Union to terminate the partial strike and direct all full-time faculty to return to the full performance of their duties, including assessment work.R.R.at 22a.

In response, the Union filed POs, which included a challenge to the trial court's subject matter jurisdiction.³Specifically, the Union asserted that the Board has exclusive jurisdiction over the College's Complaint because the College seeks redress of Union conduct, which arguably constitutes an unfair labor practice under Section 1301 of the PERA, 43 P.S. § 1101.1301.R.R.at 139a, 142a-43a.The Union alleged that the performance of assessment work has always been a voluntary activity by full-time faculty.R.R.at 5a.Further, the Union asserted that the College already filed a charge with the Board asserting that the very same conduct constituted an unfair labor practice, and as a result, should be precluded from proceeding in the trial court.⁴R.R.at 4a-5a.

The trial court sustained the Union's POs on subject matter jurisdiction, dismissed the College's Complaint, and ruled that the College's Petition for Preliminary Injunction was moot.From this decision, the College timely appealed to this Court.The College filed a statement of errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1925(b), as directed by the trial court.The trial court filed an opinion in support of its order.

In the Pa. R.A.P. 1925(a) opinion, the trial court concluded that it lacked subject matter jurisdiction because the College had already filed an unfair labor practice charge with the Board raising the same issues based on the same conduct.The gravamen of the College's Complaint is that of an unfair labor practice because it involves questions of whether completion of assessment work by full-time faculty is voluntary or mandatory and whether the College can unilaterally impose this requirement during ongoing negotiations, thereby altering the status quo.The Board has exclusive jurisdiction to prevent any person from engaging in an unfair labor practice under Section 1301 of the PERA.Therefore, the trial court concluded that the College's Complaint properly belongs in the Board's exclusive jurisdiction.

II.Issue

On appeal,⁵ the College contends that the trial court erred in determining it did not have subject matter jurisdiction over the College's Complaint.Section 1003 of the PERA expressly grants the courts jurisdiction to enjoin strike activity that poses a clear and present danger or a threat to the health, safety and welfare of the public.In its Complaint, the College alleged that its full-time faculty is engaged in a partial strike that poses a clear and present danger or a threat to the health, safety and welfare of the public.The College claims that the trial court disregarded its statutory duty to determine whether the faculty is on strike, and whether that strike should be enjoined.

III.Discussion

The courts and the Board play separate roles in the adjudication of matters arising under the PERA.To wit, the courts have equity jurisdiction over strikes prohibited under Article X of the PERA.Sections 1001,1002and1003 of the PERA, 43 P.S. §§ 1101.1001,1101.1002,1101.1003;seeArmstrong School District v. Armstrong Education Association , 528 Pa. 170, 595 A.2d 1139, 1143(1991)(Section 1003 of the PERA confers equity jurisdiction upon the common pleas court once a public employer seeks relief from a strike);City of Scranton v. Pennsylvania Labor Relations Board , 95 Pa.Cmwlth. 510, 505 A.2d 1360, 1363(1986)(a contest as to the validity or legality of a strike is reserved for the courts).On the other hand, the Board has exclusive jurisdiction where the alleged acts forming the basis of a complaint constitute unfair labor practices under Section 1201 of the PERA.⁶Section 1301 of the PERA, 43 P.S. § 1101.1301⁷;Hollinger v. Department of Public Welfare , 469 Pa. 358, 365 A.2d 1245, 1248-49(1976).

The starting point in a consideration of whether the trial court has jurisdiction is whether the remedy sought is redress of a strike under Sections 1001,1002 or 1003 of the PERA.Section 301(9) of the PERA defines a "strike" as:

[C]oncerted action in failing to report for duty, the wilful

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