Appeals from the Orders of the Pennsylvania Labor Relations Board in the cases of In the Matter of the Employees of Washington County, PERA-R-2209-W; In the Matter of the Employees of Allegheny County, PERA-R-2104-W and PERA-R-2311-W; In the Matter of the Employees of the Court of Common Pleas of Philadelphia County, PERA-R-5403-E; In the Matter of the Employees of Bucks County, PERA-R-6852-E, PERA-R-6853-E, PERA-R-6854-E and PERA-R-6855-E; In the Matter of the Employees of the Court of Common Pleas of Bucks County, PERA-R-7138-E and PERA-7194-E; and appeals Nos. 23 Tr. Dkt. 1973 and 24 Tr. Dkt. 1973, in cases of Roger M. Fischer, Register of Wills and Clerk of the Orphans' Court Division of the Court of Common Pleas of Erie County, Pennsylvania, Plaintiff v. Louis Rzymek, William O. Hill, Jr. and Leo P. Weir, Commissioners for the County of Erie, Pennsylvania, and American Federation of State, County and Municipal Employees, AFL-CIO, Defendants, Pennsylvania State Association of County Commissioners, Intervening Party Defendant; and Robert H. Chase, District Attorney, Erie County, Pennsylvania, Plaintiff v. Louis Rzymek, William O. Hill, Jr. and Leo P. Weir, Commissioners for the County of Erie, Pennsylvania, and American Federation of State, County and Municipal Employees, AFL-CIO, Defendants, Pennsylvania State Association of County Commissioners, Intervening Party Defendant.
James L. Crawford, Assistant Attorney General, with him James F. Wildeman, Assistant Attorney General, and Raymond W. Cromer, Assistant Attorney General, for Pennsylvania Labor Relations Board.
David S. Posner, for the Court of Common Pleas of the 27th Judicial District.
Warren H. Pyle, with him Angoff, Goldman, Manning, Pyle & Wanger; Louis B. Kushner ; and Rothman, Gordon, Foreman and Groudine, for Service Employees International Union, Local 585, AFL-CIO.
Marvin Comisky, with him Alan C. Gershenson, Kenneth F. Kahn, and, of counsel, Blank, Rome, Klaus & Comisky, and Jonathan Vipond, III, for Administrative Office of the Pennsylvania Courts.
Robert M. Crooks, for Board of Judges of the Seventh Judicial District, Bucks County, Pennsylvania.
Thomas H. M. Hough, Special Labor Counsel, with him Stephen Z. Zappala, County Solicitor, for County of Allegheny.
Richard Kirschner, with him Stephen C. Richman, Miriam L. Gafni, and Markowitz & Kirschner, for AFSCME, AFL-CIO.
Scott F. Zimmerman, with him James J. Restivo, Jr., and Reed, Smith, Shaw & McClay, for Court of Common Pleas of Allegheny County.
Warren M. Laddon, with him John G. Kruchko, for the Court of Common Pleas of Philadelphia County.
Morton Meyers, for Judges of the Court of Common Pleas of the 47th Judicial District.
Charles N. Sweet, with him John W. Donaghy, and, of counsel, Curtin and Heefner, for Bucks County Commissioners.
John M. McLaughlin, with him Paul F. Curry, and Knox, Graham, McLaughlin, Gornall and Sennett, Inc., for District Attorney for Erie County, Register of Wills and Clerk of the Orphans' Court of Erie County.
Warren W. Bentz, for Commissioners for the County of Erie.
Stephen J. Cabot and Edward H. Feege, with them Charles N. Sweet, Hayes and Feege, P.C., Curtin and Heefner, and Pechner, Dorfman, Wolffe & Rounick, for Pennsylvania Association of County Commissioners.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer and Blatt. Judges Kramer and Rogers did not participate. Opinion by President Judge Bowman. Concurring and Dissenting Opinion by Judge Mencer. Judge Crumlish, Jr. joins in this opinion.
[ 26 Pa. Commw. Page 321]
In Sweet v. Pennsylvania Labor Relations Board, 12 Pa. Commonwealth Ct. 358, 316 A.2d 665 (1974), we held that for the purpose of collective bargaining pursuant to the Public Employe Relations Act (Act 195), Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.101 et seq., the county commissioners are the sole public employer of the judges' personal staffs and the administrative and probation personnel of the Court of Common Pleas of Washington County; and that Act 195 is not violative of Article V, Section 1, of our Constitution. We added, however, that any collective bargaining agreement entered into between the public employer and court-related employees may not abrogate or alter existing statutory law authorizing judges or courts to employ particular personnel or otherwise prescribe their powers and duties. Three of our Judges (Judges Crumlish, Jr., Kramer and Mencer) dissented, being of the opinion that if Act 195 must be construed to mean that the county commissioners of a county are the sole public employer of court-related employees, then it is unconstitutional as an impermissible encroachment upon an independent judiciary.
On appeal, Sweet v. Pennsylvania Labor Relations Board, 457 Pa. 456, 322 A.2d 362 (1974), the Supreme Court reversed this Court. In doing so, as we understand its opinion, it concluded (1) that the determination of who is the particular employer or employers of a group of employees is not governed by Act 195 even though it may have raised certain considerations in this regard which were not envisioned prior to its passage, and (2) that the application of common law principles relating to the employer-employee relationship requires the Judges of the Court of Common Pleas of Washington County to be "at least an employer
[ 26 Pa. Commw. Page 322]
of some of the employes included in the bargaining unit. . . ."*fn1 457 Pa. at 462, 322 A.2d at 365. (Emphasis in original.) In so concluding, the Supreme Court declines to pass upon the constitutionality of Act 195. In a concurring opinion, Mr. Justice Roberts (Mr. Justice Nix joining therein) observed that Act 195 does not include within its scope persons appointed, directed or under the supervision of the judges of the various judicial districts or, if it does, Act 195 would then be unconstitutional.
In reversing this Court but declining to determine whether the Judges of Washington County are the sole or joint employers of at least some of the employees in the PLRB certified bargaining unit, the scenario was written for the litigation which followed and the present confusion, uncertainty and inconsistencies that exist throughout the judicial districts of the Commonwealth with respect to appropriate bargaining units, the identity of the public employer and the vitality and legality of innumerable collective bargaining agreements negotiated before and after Sweet.
Before us now are seven appeals or causes of action which were transferred to this Court by the Supreme Court after it assumed plenary jurisdiction of the cases because of disqualification for reasons of personal interest by the judges of the particular judicial
[ 26 Pa. Commw. Page 323]
districts involved. At the suggestion of the Supreme Court, the cases were listed for argument at an argument session of this Court after a representative number of cases raising all possible issues had been so transferred.
Several appeals also raise, as do the two transferred causes of action, the issue of the public employer or public employers of row office employees.
Two events occurring after Sweet bear directly upon the appeals and causes of action now before us. On July 7, 1975, the Supreme Court rendered its opinion in Costigan v. Local 696, AFSCME, 462 Pa. 425, 341 A.2d 456 (1975). By complaint in equity, the Philadelphia register of wills sought to enjoin arbitration under a collective bargaining agreement entered into by his predecessor with the representative of a bargaining unit consisting of the employees of that office. In voiding the collective bargaining agreement as not authorized by Act 195, the Supreme Court concluded that the City of Philadelphia is a joint employer with the register of wills with respect to the employees of that office. It declined to pass upon a contention, advanced for the first time on appeal, that the Board of Judges of Philadelphia County is also a joint employer of the employees of that office. Finding persuasive Federal decisions on the subject of one or more employers of particular employees in the private sector for collective bargaining purposes, the Court said:
"In the instant case, no single entity controls all of the terms of the employment relationship. The Register of Wills is conceded by all parties to have the exclusive power to hire, fire, promote, and direct the work of the employees. The City of Philadelphia pays most of the employee salaries and other compensation costs of the office and exercises considerable control over the fringe benefits accorded the employees,
[ 26 Pa. Commw. Page 324]
which include enrollment under the City's group life and health insurance plans and coverage by the City's pension plan. Thus the Register and the City each exercise independent control over important 'conditions of the relation [which] are such that the process of collective bargaining may appropriately be utilized as contemplated by the Act,' and both must be deemed employers for purposes of the Act." Costigan, supra, 462 Pa. at 434-35, 341 A.2d at 461. (Footnote omitted.)
Also of significance as to all appeals and causes of action argued before us on June 8, 1976, except those relating to Philadelphia and Allegheny Counties, is the recent enactment into law by the General Assembly of Senate Bill No. 891, Pr. No. 1695. On June 18, 1976, the Governor vetoed this legislation. Notwithstanding this disapproval, the General Assembly decisively overrode the Governor's veto on June 29, 1976. This legislation is now Act No. 115 of 1976. It is an amendment to Section 1620 of The County Code, Act of August 9, 1955, P.L. 323, as amended, 16 P.S. § 1620, relating to counties of the third to eighth class. The section as so amended now provides in its entirety:
"Section 1620. Salaries and Compensation. -- The salaries and compensation of county officers shall be as now or hereafter fixed by law. The salaries and compensation of all appointed officers and employes who are paid from the county treasury shall be fixed by the salary board created by this act for such purposes: Provided, however, That with respect to representation proceedings before the Pennsylvania Labor Relations Board or collective bargaining negotiations involving any or all employes paid from the county treasury, the board of county commissioners shall have the sole power and responsibility to represent judges of the court of common pleas, the county and all elected
[ 26 Pa. Commw. Page 325]
or appointed county officers having any employment powers over the affected employes. The exercise of such responsibilities by the county commissioners shall in no way affect The Hiring, Discharging and Supervising rights and obligations with respect to such employes as may be vested in the judges or other county officers."*fn2
The two causes of action before us on transfer*fn3 were originally filed before Sweet and Costigan. Most of the appeals before us are from final orders of the PLRB issued after Sweet but before Costigan. The impact of Sweet and Costigan on the issues raised in these cases was briefed and argued by all parties. However, since argument, Act No. 115 of 1976 was enacted. What impact, if any, this legislation has as to the issues raised in these cases is not before us at the present time. It is expressive, however, of the continuing uncertainty for all concerned in resolving the posture of court-related employees and their definitional scope with respect to Act 195.
We now consider each of the causes of action and appeals.
This appeal is Sweet revisited involving the same ill-defined bargaining unit certification struck down by the Supreme Court in reversing this Court. After Sweet, the PLRB undertook reconsideration of its original certification (PERA-R-2209-W) of a petition for representation of a bargaining unit. In doing so,
[ 26 Pa. Commw. Page 326]
it recognized the impact of Sweet upon numerous other prior PLRB certifications, and those pending before it. After hearing argument by parties directly involved in this certification and other interested parties, the PLRB on December 19, 1974, filed a "Final Order Pursuant to Opinion of the Supreme Court of Pennsylvania," in which it vacated its prior order of certification and dismissed the petition for certification. In the Final Order it elaborated at some length upon the various "court-related" and non-"court-related" employees in the prior certified unit, discussed its view of the opinion of the Supreme Court in Sweet and then made the following:
"1. That the Board of Judges of the 27th Judicial District is the Public Employer of all directly related employes of that District.
"2. That the County Commissioners and Row Officers are joint public employers of their respective row office employes.
"3. That the County Commissioners are the sole public employers of all non-court-related, non-row-office employes of the County, and of all employes of County Institution Districts where they exist.
"4. That the County Prison Board is the public employer of all county prison employes.
"5. That the aforementioned guidelines will be utilized in the disposition of the Washington County and related cases."
As appellants or appellees, as intervening appellants or appellees, as amicus curiae with leave to orally argue or by brief alone, virtually every arguable "public employer," including the Administrative Office of the Pennsylvania Courts, is represented in ...