Pennsylvania Supreme Court on Knowledge Requirement for Unfair Labor Practice

On Tuesday, the Supreme Court of Pennsylvania (aka SCOPA) issued an interesting Public Employe Relations Act (PERA) opinion - Lancaster County v. PLRB. It's a fairly complex case with a 42-page opinion, but one holding is pretty straightforward, so let's focus on that.

Generally, PERA prohibits employers from retaliating against employees for engaging in union organizing and advocacy. The elements of this unfair labor practice are defined as:

(1) the employee was engaged in protected activity; 

Not official use.

(2) the employer knew of the activity; and 

(3) the employer was motivated by an unlawful motive or anti-union animus in taking adverse action against the employee.

Now, in prong (2), when we say the "employer" knew... who exactly are we talking about?

[A]s applied to unfair labor practices under PERA, a complainant meets the knowledge requirement by proving a supervisor, who by definition acts in the interest of the public employer, had knowledge of the employee’s protected activity . . . . We specifically reject the Commonwealth Court’s holding . . . which suggested for purposes of establishing an unfair labor practice claim under PERA the complainant must prove the management official who made the adverse employment decision had knowledge of the employee’s protected activity.

This is a labor-friendly interpretation, and removes a potentially valuable (to management) ULP defense.

Mini-Wagners: State Labor Relations Acts

Labor Week continues...

When analyzing labor law, the first place to start is often the National Labor Relations Act (NLRA), also known as the Wagner Act (for its sponsor Senator Robert Wagner). 29 USC §§ 151-169.  This 1935 law governs labor-management relations in areas such as union creation and strikes. But, it's important to remember that some states enacted their own state labor relations acts in this era, aka "mini-Wagners."

My state, Pennsylvania, is a great example. Pennsylvania enacted the Pennsylvania Labor Relations Act in 1937, creating the Pennsylvania Labor Relations Board (PLRB). 43 P.S. § 211.4. The PLRB is probably best known for its role in enforcing the Public Employe Relations Act (PERA).

Sidenote: PERA often leads to confusion on two fronts - 1. Yes, it is "employe" with one E - not employee; 2. Pennsylvania also has a state constitutional amendment providing for "equal rights" - aka the Pennsylvania Equal Rights Amendment; aka PERA.

The NLRA does not cover every worker, for example, state workers, so the PLRB steps in. But, and this may come as a shock to some, the PLRB also covers private sector employment. Per the PLRB website: "The board's private sector jurisdiction is limited to employers and their employes not covered by the National Labor Relations Act, for the most part only small local businesses."

The takeaway from this is simple: If you have a labor issue that's not covered by the NLRA, remember that states often step in to fill the gaps.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.