Union May Waive Right To Bargain If It Does Not Monitor Employer’s Rule Changes

The Fraternal Order of Transit Police (FOTP) negotiates for police officers employed by the Southeastern Pennsylvania Transportation Authority (SEPTA). Effective May 19, 2002, SEPTA issued a rule providing that an officer could be excused from a mandatory physical fitness examination for illness or injury. However, the order also provided that officers who failed to report for their examination claiming illness or injury “shall not report for duty without a doctor’s note which indicates they can work at full capacity.”

On March 21, 2004, almost two years later, SEPTA issued a directive reiterating the 2002 rule. A month later, the FOTP filed an unfair labor practice charge alleging that SEPTA had an obligation to bargain over the 2004 directive. SEPTA sought to dismiss the charge on the grounds that the charge was not filed in a timely basis.

Under Pennsylvania law, unfair labor practice charges must be filed within four months of the complained-of act. Pennsylvania’s Labor Relations Board ruled that the FOTP’s charge should be dismissed for failing to meet the four-month test.

Crucial to the Board’s decision was its conclusion that the 2004 directive was nothing more than a reiteration of the 2002 rule. In the LRB’s judgment, the FOTP’s rights to bargain over the issue began to run in 2002, not when the rule was restated in 2004.

The FOTP argued that it was not until the rule was actually implemented through the imposition of discipline under the rule that its bargaining rights ripened. The Board rejected that argument, concluding that the right to bargain arises “when the directive becomes operational and serves to guide the conduct of employees, even though no employees may have been disciplined or corrected for failure to abide by the directive.”

The Board stressed the multiple occasions on which the FOTP received notice of the 2002 rule change. Moreover, the Board imposed on the FOTP the obligation to monitor the employer’s rule changes: “The record establishes that around the time of implementation the Union received actual notice of the policy change, and that the rule was issued to each of the employees in the bargaining unit. In addition to the Union’s receipt of actual notice, SEPTA maintains a book of policy directives in each of the SEPTA zones for the employees and the Union to conveniently reference. The Union, as the exclusive bargaining representative policing the CBA and the terms and conditions of employment on behalf of the employees, has a duty to periodically inspect this reference book of policies at reasonable intervals, i.e., at least within every four months.”

Fraternal Order of Transit Police v. Southeastern Pennsylvania Transportation Authority, 36 PPER ¶14 (Pa. LRB 2005).

This article appears in the May 2005 issue