Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Albert Einstein Medical Center v. Pennsylvania Labor Relations Board, No. 494 November Term, 1972.
William A. Whiteside, Jr., with him Howard R. Flaxman, Nathan L. Posner and, of counsel, Fox, Rothschild, O'Brien & Frankel, for appellant.
James L. Crawford, with him James F. Wildeman, Anthony J. Molloy and Forest N. Myers, for appellee.
Anthony Molloy, Jr., with him Richard B. Sigmond and Meranze, Katz, Spear & Wilderman, for intervening appellee.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Blatt. Dissenting Opinion by President Judge Bowman. Judge Crumlish, Jr., joins in this dissent. Dissenting Opinion by Judge Crumlish, Jr.
This appeal follows an order of the Court of Common Pleas of Philadelphia County, entered October 15, 1973, dismissing the appeal by Albert Einstein Medical Center, Northern Division (Einstein) from the final order of the Pennsylvania Labor Relations Board (PLRB) dated October 11, 1972.
On September 28, 1971, the Professional Pharmacists Guild of Delaware Valley (Guild), the intervenors herein, filed a representation petition with the PLRB seeking certification as the exclusive bargaining representative
of full and part-time pharmacists at Einstein. On June 12, 1972 after a hearing, the PLRB ordered an election to be held among all pharmacists at Einstein. At the election, held on June 23, 1972, a majority of those allegedly eligible voted, six to five, for representation by the Guild. Einstein, however, filed exceptions, alleging that a group of pharmacists, including part-time and supervisory employes within that group, constituted an inappropriate bargaining unit. Another hearing was held and, on September 14, 1972, the Board followed with a Nisi Order of Certification, made final by order of October 11, 1972, dismissing Einstein's exceptions and thereby certifying the Guild as the exclusive bargaining representative of both full and part-time pharmacists.
Pursuant to the Public Employes Relations Act (Act 195),*fn1 Einstein then appealed the PLRB's final order to the Court of Common Pleas of Philadelphia County, which sustained the PLRB order. This appeal followed.
We scheduled argument for October 8, 1974 and on October 2, 1974 the Guild, as intervening appellee, moved to quash the appeal asserting that we now lack jurisdiction of this matter as a result of recent amendments to the federal Labor-Management Relations Act, 29 U.S.C. § 141, et seq., signed into law July 26, 1974, and effective August 26, 1974.*fn2 These amendments brought non-profit
hospitals, such as Einstein, within the coverage of the federal Act. Argument was held as scheduled on both the merits of the appeal and on the motion to quash.
Were it not for the amendments to the National Labor Relations Act, this Court would clearly have jurisdiction of the instant appeal pursuant to Section 402(3) of the Appellant Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, 17 P.S. § 211.402(3) (Supp. 1974-1975). The Guild, however, argues that because non-profit hospitals shall now be covered by the National Labor Relations Act, this Court has been divested of jurisdiction pursuant to the National Labor Relations Board preemption doctrine established in Guss v. Utah Labor Relations Board, 353 U.S. 1 (1957) and again in San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959).
Upon promulgation of the National Labor Relations Act amendments concerned in this case, the General Counsel of the National Labor Relations Board envisioned some of the transitional problems likely to occur, and, in ...