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Commonwealth Court Defines "Secondary Boycott" Under PLRA

As Published in the February 2015 PELRAS Newsletter Update

Published on: Mon 8th Aug, 2016 By: David E Mitchell

Section 6(2)(d) of the Pennsylvania Labor Relations Act ("PLRA") makes it an unfair labor practice for a police or fire labor organization to "engage in a secondary boycott" of an employer.  The term "secondary boycott" was not defined by the Pennsylvania Labor Relations Board ("PLRB") or any Pennsylvania appellate court until late last year when the Commonwealth Court ruled in Chambersburg Borough v. PLRB, No. 2008 C.D. 2013, 2014 WL 6807216 (Pa. Cmwlth. 2014). As a matter of first impression, the court explained that an actual strike or work stoppage need not occur for a labor organization to engage in a secondary boycott under Section 6(2)(d)—rather, a secondary boycott exists whenever a labor organization applies "pressures calculated to induce or encourage the employees of a secondary employer to withhold their services in order to force their employer to cease dealing with the primary employer."

Firefighters, Local 1813 (the "IAFF") was in the process of negotiating a successor collective bargaining agreement with Chambersburg Borough when the Borough announced its intentions to lay off some of its paid firefighters and have their services performed by volunteer firefighters instead.  In response to this announcement, the IAFF chapter president, who was also a paid Borough firefighter, sent a letter to over 200 IAFF members in the surrounding area reminding them of their obligation to abide by the IAFF’s Constitution and Bylaws.  The Constitution and Bylaws prohibited members from providing volunteer firefighting services to municipalities that have laid off paid firefighters. The president’s letter explicitly requested that all local IAFF members "refrain[] from providing volunteer firefighting services to the Borough of Chambersburg."

The Borough subsequently considered terminating the IAFF president’s employment for sending the letter, but decided to instead suspend him for two-hundred and forty (240) hours. The Borough also filed an unfair labor practice charge against the IAFF for engaging in a secondary boycott under Section 6(2)(d) of the PLRA by urging members from surrounding communities to refuse to render voluntary fire services in the Borough. The Borough argued that the Union’s letter "exhorted fellow firefighters to stop fighting fires in the Borough" which is "the very definition of a boycott" and that the "attempt to coerce any firefighters to refrain from providing public safety services to a jurisdiction is abhorrent to the Legislature’s prohibition of striking for firefighters and police officers." The IAFF responded by filing charges of its own against the Borough for taking disciplinary action against the president. The charges alleged the Borough interfered with union activities and discriminated against the president for union participation under Sections 6(1)(a) and (c) of the PLRA.

The PLRB initially sided with the IAFF and determined that the Borough committed unfair labor practices by suspending the IAFF president for sending the letter.  The PLRB also dismissed the Borough’s secondary boycott allegations based on the Pa. Supreme Court’s decision in Dudek v. Pittsburgh City Fire Fighters, Local No. 1, 228 A.2d 752 (Pa. 1967).  In Dudek, the Pa. Supreme Court stated that "a union may require its members to cooperate in the achievement of its legitimate objectives" and that "a union must have the authority to discipline its members, otherwise it will have no power to bargain effectively."  The PLRB found that "a union’s notice of, or imposition of disciplinary sanctions on, recalcitrant members would not be a secondary boycott" under Section 6(2)(d) in light of Dudek because the IAFF president’s letter "only advise[d] IAFF members of their obligations under the IAFF bylaws and constitution." The Borough petitioned the Commonwealth Court for review of the PLRB’s Final Order, however.

On appeal, the Commonwealth Court reversed the PLRB’s Final Order and sought to define, for the first time, what it means to engage in a secondary boycott under Section 6(2)(d) of the PLRA.  Upon looking to similar provisions of the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 151 et seq., and federal precedent for guidance, the Commonwealth Court held that the phrase "to engage in a secondary boycott" proscribes "union pressures calculated to induce or encourage the employees of a secondary employer to withhold their services in order to force their employer to cease dealing with the primary employer."  Furthermore, the court determined an actual strike or work stoppage need not actually occur to find a violation of Section 6(2)(d) of the PLRA. In applying this definition to the facts, the court found that the IAFF engaged in a secondary boycott by sending the letter encouraging IAFF members to refrain from providing fire prevention and emergency services to the Borough.  The court reasoned that "the use of discipline by the union under the circumstances of this case tends to frustrate the commonwealth’s policy against secondary boycotts." 

It should be noted that one judge on the Commonwealth Court’s three judge panel dissented and would have found that the IAFF did not commit an unfair labor practice, noting that "a work stoppage did not occur" and "[s]ection 6(2)(d) of the PLRA does not contain the words ‘induce or encourage.’" Additionally, both the PLRB and the Union recently filed petitions for appeal to the Pa. Supreme Court, and so the case may not yet be over. Stayed tuned to learn whether the Pa. Supreme Court elects to hear an appeal in this case.