Trometter v. Pa. Labor Relations Bd.
| Decision Date | 08 September 2016 |
| Docket Number | No. 1484 C.D. 2015,1484 C.D. 2015 |
| Citation | 147 A.3d 601 |
| Parties | Mary Trometter, Petitioner v. Pennsylvania Labor Relations Board, Respondent |
| Court | Pennsylvania Commonwealth Court |
Karin M. Sweigart, Aston, for petitioner.
Warren R. Mowery, Jr., Harrisburg, for respondent.
Jason Walta and Samuel W. Wheeler, Washington D.C., for intervenor National Education Association.
BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE DAN PELLEGRINI, Senior Judge
OPINION BY JUDGE BROBSON
Petitioner Mary Trometter (Trometter) petitions for review of an order of the Pennsylvania Labor Relations Board (Board), in which the Board transferred to the Office of Attorney General Trometter's report of a possible violation of Section 1701 of the Public Employe Relations Act (PERA).1 We now reverse and remand the matter for further action by the Board.
Article XVII of PERA, titled “Employe Organizations,” contains but one section—Section 1701. PERA defines an “employe organization” as follows:
“Employe Organization” means an organization of any kind, or any agent or employe representation committee or plan in which membership includes public employees, and which exists for the purpose, in whole or in apart, of dealing with employers concerning grievances, employe-employer disputes, wages, rates of pay, hours of employment, or conditions of work but shall not include any organization which practices discrimination in membership because of race, color, creed, national origin or political affiliation.
Section 301(3) of PERA, 43 P.S. § 1101.301(3)
. In layperson's terms, an “employe organization” under PERA is a public sector union. Section 1701 of PERA includes six unnumbered paragraphs. The first paragraph provides the following prohibition:
[1] No employe organization shall make any contribution out of the funds of the employe organization either directly or indirectly to any political party or organization or in support of any political candidate for public office.
What follows this prohibition are five paragraphs relating to implementation and enforcement of this prohibition:
Section 1701 of PERA.
The Board has promulgated two regulations dealing specifically with Section 1701 of PERA. The first, 34 Pa. Code § 95.111
, relates to the reporting obligation under paragraph 2 of Section 1701. The second, and relevant to this matter, provides:
(a) An individual who has knowledge of a political contribution or other activity by an employe organization thought to be in violation of section 1701 of the act (43 P.S. § 1101.1701
) may file a report with the Board. The report shall be signed and sworn to before any person authorized to administer oaths.
(b) The report shall contain the following information:
(1) The name, address, telephone number and affiliation, if any, of the charging party.
(2) A clear and concise statement of the facts constituting the alleged illegal contribution, including the names of the individuals involved, the name of the employe organization, and the time, place of occurrence and nature of each particular contribution or act alleged.
(c) Upon receipt of the report, if it appears to the Board that an investigation in respect to the charge should be instituted, the Board shall refer the report to the Attorney General of the Commonwealth for proceedings under applicable statutes.
34 Pa. Code § 95.112
.
Following Section 95.112(a) of the Board's regulations, on November 18, 2014, Trometter filed a report with the Board, alleging that Intervenors the National Education Association (NEA) and/or the Pennsylvania State Education Association (PSEA) (Unions) violated Section 1701 of PERA through paid advocacy on behalf of then-candidate Tom Wolf's 2013 campaign to become governor of the Commonwealth of Pennsylvania. Trometter is a dues-paying member of PSEA. The report appears to be prepared on a form supplied by the Board and titled “Charge of Illegal Contribution(s) Under the Public Employe Relations Act.” (Reproduced Record at 1a-3a.)
In the report, Trometter alleges that the Unions sent a letter to her husband, recommending that he, as the spouse of an educator, “join Mary [Trometter] in voting for Tom Wolf for Governor.” The letter provided that the “NEA Advocacy Fund, the NEA's SuperPAC” paid for the letter. Trometter alleges that, according to reports filed with the Federal Election Commission, during the 2013 election year the NEA gave over $12 million, made up in whole or in part of union dues money, to the NEA's SuperPAC. (R.R. at 2a.) Trometter asserts that the NEA made an illegal “contribution” under Section 1701 of PERA by funding the letter. Trometter also asserted that PSEA violated Section 1701 of PERA by including endorsements of Tom Wolf's candidacy in a PSEA magazine, Voice , which is funded by member dues.
The Board issued an “Acknowledgement and Notice of Filing” (Acknowledgment) with respect to Trometter's report on November 19, 2014, which directed the Unions to file and serve an answer. They did so on November 19, 2014. (R.R. 53a-65a.) In their answer, the Unions suggested that no violation of Section 1701 of PERA had occurred through the funding and/or content of the letter or the magazine. The Unions, noting that PERA does not define the term “contribution,” urged the Board to apply the common meaning of the term, which they contended means money or gifts or something else of value given to a political candidate's campaign, and to conclude, based on this definition, that the Unions did not make an illegal contribution under Section 1701 of PERA. Additionally, the Unions asserted that applying Trometter's suggested interpretation of Section 1701 of PERA would create a conflict with Section 1633(c) of the Pennsylvania Election Code,2 which, the Unions argued, provides that no law of the Commonwealth shall prohibit direct communications between a labor organization and its members and their families. A rebuttal on behalf of Trometter (January 21, 2015) and Unions' sur-reply (January 21, 2015) followed.
Six months later, following a conference call meeting of the Board on July 21, 2015, the Board issued the order that is the subject of this appeal, titled “Order Transferring Report to Attorney General Pursuant to 34 Pa. Code § 95.112” (Transfer Order). In the Transfer Order, the Board summarizes the respective positions of the parties, but does not resolve any of the legal issues/arguments raised by the parties in their filings with the Board. Instead, the Board concludes that Trometter “misconstrues the Board's role in the application of Section 1701 of PERA by requesting that the Board impose the statutory penalties of fines, imprisonment or both.” (Transfer Order at 2.) The Board, citing its decision in Pennsylvania Labor Relations Board v. Pittsburgh Federation of Teachers, Local 400, AFT, AFL-CIO , 7 PPER 198 (1976), opined that the Board's functions under Section 1701 of PERA do not include determining whether a violation of that provision has occurred. Id . Rather, the Board wrote, it is charged with developing rules and regulations for the “disposition” of alleged violations. Id . It did so when it promulgated 34 Pa. Code § 95.112(c)
. Accordingly, pursuant to that regulation, it transferred the matter “to the Attorney General of the Commonwealth of Pennsylvania for proceedings under applicable statutes.”
In her petition for review of the Transfer Order,3 raising the following issues: (1) whether the Board erred in concluding that it has no investigatory or enforcement powers to act upon reports of alleged violations of Section 1701 of PERA; (2) whether the Board's referral provision, 34 Pa. Code § 95.112
, is valid and/or consistent with Section 1701 of PERA; and (3) whether the Board erred in its application of the Board's referral provision, 34 Pa. Code § 95.112. Trometter, the Unions, and the Board seek three distinct types of relief in this appeal. Trometter seeks an order reversing the Board's decision and returning the matter to the Board for investigation and potential adjudication of the alleged impermissible contributions. The Board seeks an order affirming its referral of the matter to the Office of Attorney General. The Unions seek an order “denying” the petition for review, seeking a holding from this Court that Section 1701 cannot be applied, as a matter of law, to restrict the Unions' communications with its members and their families or to limit the NEA's transfer of funds to its SuperPAC.4
Initially, we decline the Unions' request to address the merits of Trometter's report to the Board, which includes any of the Unions' legal defenses with respect thereto. The only order on appeal to ...
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