Thomas Scott, the Chief of Police in Jenkintown Borough, Pennsylvania, since April 2022, initiated a performance evaluation system in late 2022. At that time, no formal evaluation system was in place, though sporadic evaluations had occurred up to 2012. On October 27, 2022, Chief Scott emailed Jenkintown Police Benevolent Association bargaining unit employees, announcing the new system and attaching scoring sheets for sergeants and police officers. The sergeants’ form evaluated 11 categories, while the officers’ form assessed seven categories, each with subparts and a scoring scale of 1 to 5. The forms also included an appeal process, allowing officers to challenge evaluations within five days. Chief Scott conducted evaluations in 2022 and 2023 using these forms, with some officers appealing their scores, though the Association did not challenge the system at that time.
In March 2024, Chief Scott circulated another email, attaching a document titled “Performance Evaluation System,” dated February 28, 2024, and referenced as General Order 35.1.1. This document outlined the evaluation process, including scoring definitions, the roles of evaluators, and an appeal mechanism. Chief Scott testified that the policy merely formalized the existing system, with no substantive changes to the scoring sheets. However, the policy omitted the five-day appeal window previously stated on the evaluation forms. The policy was uploaded to the Borough’s electronic portal, Power DMS, on June 18, 2024, but had not been approved by the Borough Council as of the November 25, 2024 hearing. Chief Scott acknowledged that the Council might reject the policy, and no evaluations had yet been conducted under it.
The Association filed an unfair labor practice charge against the Borough, alleging violations of Sections 6(1)(a), (b), and (e) of the Pennsylvania Labor Relations Act, as read with Act 111, arguing that the policy represented a unilateral change to terms and conditions of employment – particularly because it was introduced during successor agreement negotiations.
A Hearing Examiner of the Pennsylvania Labor Relations Board dismissed the charge in its entirety. The Section 6(1) (b) claim, alleging unlawful employer assistance to a labor organization, was dismissed because the Association presented no evidence that the Borough had dominated or interfered with the Association’s administration. “In this case, the Association has presented no evidence to demonstrate that the Borough provided assistance to or was involved with the Association to any extent, much less to the point of rendering the Association indistinguishable from the Borough. In fact, the Association did not even raise such an argument at any point during the hearing or in its closing statement on the record.”
The refusal-to-bargain claim under Section 6(1)(e) was dismissed as premature. The Hearing Examiner emphasized that the six-week limitations period for filing a charge begins when a policy becomes operational, not when it is merely proposed. Here, the policy had not been approved by the Borough Council and was not yet governing employee conduct. The Hearing Examiner cited precedent which provided that “mere statement of future intent to engage in activity, which arguably would constitute an unfair labor practice, does not constitute an unfair labor practice for engaging in that activity.” The Association’s argument that the charge was timely because it was filed within six weeks of the policy’s upload to Power DMS was rejected, as that date merely reflected the Borough’s intent, not implementation.
Alternatively, the Hearing Examiner found that even if the policy had been implemented in 2022, the charge would still fail as untimely, filed nearly two years later. Moreover, the Hearing Examiner held that the codification of an unwritten work rule, where no change to a mandatory bargaining subject occurs, is not an unfair labor practice. The Board’s precedent established that performance evaluation systems are managerial prerogatives, not mandatory bargaining subjects, as they relate to the employer’s right to evaluate and direct personnel. The Association failed to present evidence of any impact on employee terms and conditions of employment, and Association witnesses admitted there had been no change in their working conditions.
Jenkintown Borough, 56 PPER ¶ 57 (Proposed Decision and Order, 2025)