Lower Swatara Twp. v. Pa. Labor Relations Bd.

• Decision Date: 02 May 2019
• Docket Number: No. 1276 C.D. 2018,1276 C.D. 2018
• Citation: Lower Swatara Twp. v. Pa. Labor Relations Bd., 208 A.3d 521 (Pa. Commw. Ct. 2019)
• Parties: LOWER SWATARA TOWNSHIP, Petitioner v. PENNSYLVANIA LABOR RELATIONS BOARD, Respondent
• Court: Pennsylvania Commonwealth Court

208 A.3d 521

LOWER SWATARA TOWNSHIP, Petitioner

v.PENNSYLVANIA LABOR RELATIONS BOARD, Respondent

No. 1276 C.D. 2018

Commonwealth Court of Pennsylvania.

Argued: April 9, 2019

FILED: May 2, 2019

Michael McAuliffe Miller, Harrisburg, for petitioner.

Irwin W. Aronson, Harrisburg, for intervenorTeamsters Local UnionNo. 776.

Warren R. Mowery, Jr., Harrisburg, for respondent.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ANNE E. COVEY, Judge(P.), HONORABLE MICHAEL H. WOJCIK, Judge

ANNE E. COVEY, Judge

Lower Swatara Township (Township)petitions this Court for review of the Pennsylvania Labor Relations Board's (Board)August 21, 2018 order dismissing the Township's exceptions and making absolute and final the Hearing Examiner's April 26, 2018 Order Directing Submission of Eligibility List (ODSEL) and the June 4, 2018 Nisi Order of Certification (NOC).The sole issue before this Court is whether the Board erred by concluding that Section 604 of the Pennsylvania Public Employe Relations Act (PERA)¹ did not prohibit a union representing the Township's public works employees from also representing all full-time and regular part-time Act 111² Township police officers.³After review, we affirm.

On January 30, 2018, Teamsters Local UnionNo. 776(Local 776), which is affiliated with the International Brotherhood of Teamsters (Teamsters), filed a Petition for Representation with the Board pursuant to the Pennsylvania Labor Relations Act⁴(PLRA) and Act 111, seeking clarification of the union representation of all full-time and regular part-time police officers the Township employed.On February 12, 2018, the Board's Secretary issued an Order and Notice of Hearing (ONH).

Based on the parties' stipulations of fact, the Township argued before the Hearing Examiner that since the petitioned-for police officers would act as Township security guards within the meaning of Section 604(3) of PERA,⁵ the Teamsters could not represent those police officers since the Teamsters also represent Township employees who are not security guards.

On April 26, 2018, the Hearing Examiner issued the ODSEL, therein holding that Act 111 police officers are not security guards under PERA and, thus, may be represented by an employee organization that represents non-security guard employees.Specifically, the Hearing Examiner explained:

Although the Township asserts that this case presents an issue of first impression for the Board, (Township's Post-hearing Briefat 8)(stating that ‘this case poses a new, novel and unanswered question’), the Board long ago rejected the position advanced by the Township here.In Union Township , 25 PPER ¶ 25198(Final Order, 1994), the employer filed three petitions (a unit clarification, an amendment of certification and a decertification) requesting that the Teamsters local be prohibited from representing the police employes of the township as a result of its certification to represent non-uniformed, non-professional employes of the employer under PERA.In that case, the employer argued that, the police officers were guards and that[,] under Section 604(3) of PERA[,]they must be included in a security guard[-]only bargaining unit and that their bargaining representative must not be affiliated with any other organization which represents or includes members or persons outside of the security guard classification.

Reproduced Record (R.R.)at 46a.

The Hearing Examiner reasoned:

The parties in this case agree that the police officers in the proposed bargaining unit currently represented by the [incumbent union, Lower Swatara Township Police Civic Association,] are sworn police officers ... who are entitled to organize under Act 111, not PERA.Consequently, those officers have a sworn duty to protect, not only the Township's property and persons thereon, but other property within the Township and persons therein.Pursuant to UnionTownship , the employes' Act 111 status as sworn officers ..., employed by a political subdivision, as opposed to an authority, removes them from any application of the guard exclusion under PERA.Moreover, under [ Commonwealth v. Pennsylvania Labor Relations Board , 64 Pa.Cmwlth. 525, 441 A.2d 470(1982), aff'd in relevant part , ... , 463 A.2d 409( [Pa.]1983) (]Capitol Police[) ], ... by virtue of their status as Act 111 police officers, the officers are outside of the guard classification, and a guard union is prohibited from representing them.Id.(holding that the guard classification under PERA and the Act 111 status of police officers are mutually exclusive).Furthermore, uniformed police officers could not violate their sworn duty to protect citizens and property simply because non–uniformed Township employes, represented by Local 776, were picketing or striking, in the event that Local 776 becomes the certified bargaining representative of the officers.

Similarly, officers will not disobey orders or their sworn duty, as peace officers, to protect persons and property simply because Article XIX, Section 7(b)(7)[of the collective bargaining agreement] allows sanctions against a Teamster member for crossing a picket line authorized by any local affiliated with the International Brotherhood of Teamsters.The threat of discipline from the Chief and the Township has more influence on the officers' loyalty (for violating their duty or their orders) than the ethereal possibility of sanction from the International.The special status of duty-bound and sworn Act 111 police officers, under law, renders the guard exclusion inapplicable.Capitol Police , [sic]; Union T[wp. ], [sic].Although the Township maintains that ‘it is also entitled to the protections of Section 604(3)[of PERA] by virtue of its employment of public works employees, ... the Township in fact enjoys and has the loyal, premium, duty-bound protections of its sworn police officers, who will protect persons and property without bias, judgment or influence from the Teamsters or any other person or organization.

R.R.at 48a(citation and footnote omitted).

On May 10, 2018, the Board received the Eligibility List and, on May 15, 2018, issued an Order and Notice of Election directing a secret ballot election on May 24, 2018 to ascertain the exclusive representative of all the Township's full-time and regular part-time police officers (excluding the Police Chief and other managerial employees).On June 4, 2018, the Board issued the NOC finding that 50% or more of the valid votes cast designated the Teamsters as the exclusive representative for collective bargaining purposes.The NOC certified the Teamsters as the exclusive representative of all the Township's full-time and regular part-time police officers⁶ for collective bargaining purposes under Act 111.

On June 25, 2018, the Township filed timely exceptions to the NOC with the Board.The Teamsters filed a response to the exceptions on July 13, 2018.On August 21, 2018, the Board issued its Final Order, holding that the Hearing Examiner's legal conclusions on the challenged issues were not erroneous.Thus, the Board dismissed the Township's exceptions and made the April26, 2018 ODSEL and the June4, 2018 NOC absolute and final.The Township appealed to this Court.⁷

Initially, this Court notes that in the Township's exceptions to the Board and Petition for Review to this Court, the Township contended that the Board erred in including Act 111 officers in the same unit as the Township's non-guard employees certified under PERA.The Board correctly points out that

the Board did not certify the Act 111 police officers in the same unit as the public works employes certified under PERA.The police officers are certified in their own homogenous unit under Act 111, at PF-R-18-13-E, and the public works employes were certified in a bargaining unit of nonprofessional employes under PERA at Case No. PERA-R-17-280-E.

Board Br.at 20 n.11.Curiously, the Township admits in its brief to this Court: "[I]t is important to note that the Township did not (and does not ) object to the police officers organizing into a union, just that the union representing the police officers should not be the same unit as the non-uniformed union. "Township Br.at 4 n.6(bold and italic emphasis added).Even more perplexing, the Township acknowledges in its Reply Brief to this Court that the "the public works employees are notcurrently in the same unit as the police officers ."⁸Township Reply Br.at 14 n.13(bold and underline emphasis added).Notwithstanding those acknowledgements, the Township still argues that this Court should reverse the Board's decision.Accordingly, we review the Board's decision.

Section 604 of PERA⁹ provides in relevant part:

The [B]oard shall determine the appropriateness of a unit which shall be the public employer unit or a subdivision thereof.In determining the appropriateness of the unit, the [B]oard shall:

(1) Take into consideration but shall not be limited to the following:

(i) public employes must have an identifiable community of interest, and

(ii) the effects of over-fragmentization.

(2) Not decide that any unit is appropriate if such unit includes both professional and nonprofessional employes, unless a majority of such professional employes vote for inclusion in such unit.

(3) Not permit guards at prisons and mental hospitals, employes directly involved with and necessary to the functioning of the courts of this Commonwealth, or any individual employed as a guard to enforce against employes and other persons , rules to protect property of the employer or to protect the safety of persons on the employer's premises to be included in any unit with other public employes , each may form separate homogenous employe organizations with the proviso that organizations of the latter designated employe group may not be affiliated with any other organization representing or including as members, persons outside of the organization's classification.

43 P.S. § 1101.604(bold and italic emphasis...