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COLUMBIA v. COMMONWEALTH PENNSYLVANIA (03/13/78)

decided: March 13, 1978.

COLUMBIA, SNYDER, MONTOUR, UNION MENTAL HEALTH/MENTAL RETARDATION PROGRAM, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LABOR RELATIONS BOARD, PENNSYLVANIA SOCIAL SERVICES UNION, LOCAL 686, SEIU, AFL-CIO AND COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS



Appeal from the Order of the Pennsylvania Labor Relations Board in case of In the Matter of the Employes of Columbia, Snyder, Montour, Union Mental Health/Mental Retardation Program, Case No. PERA-R-7626-C.

COUNSEL

Edward H. Feege, with him Hayes and Feege, P.C., and, of counsel, Robert L. Marks, and Marks & Wagner, for petitioner.

Stephen A. Sheller, Robert F. Beck, Assistant Attorney General, and Larry Rapport, with them James L. Crawford, Forest N. Myers, and Bruce M. Ludwig, for respondents.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 34 Pa. Commw. Page 255]

Respondent Pennsylvania Labor Relations Board (Board) dismissed petitioner's exceptions to a nisi

[ 34 Pa. Commw. Page 256]

    order designating Pennsylvania Social Services Union (PSSU) as the exclusive representative of a bargaining unit comprised of petitioner's professional and non-professional employees. Petitioner alleges in this appeal that the Board erred in deciding that: (1) the fact that the Commonwealth, through the Department of Public Welfare (Department), makes reimbursement of petitioner's program contingent upon petitioner's adherence to Department regulations is insufficient to cause the Commonwealth to be considered a "joint employer"; (2) an employee whose duties included direction of paid student interns was not a "management level employe" or "supervisor"*fn1 and, therefore, was to be included within the bargaining unit; (3) another employee whose responsibilities may have given her access to financial data was not a "confidential employe"*fn2 and, therefore, was also to be included within the bargaining unit; and (4) the certification of PSSU as the exclusive representative of the bargaining unit was proper even though only eight of 21 employees deemed eligible to vote actually did so. After careful consideration of the close questions presented, we are required to affirm the Board on all issues.

In January 1976, PSSU alleged that it represented 30% or more of certain employees of petitioner and filed a petition for representation and a request for a representation election order with the Board. Included within the employees on whose behalf the petition was filed were the two employees petitioner alleged to be respectively a "confidential employe" and a "management level employe" or "supervisor." A

[ 34 Pa. Commw. Page 257]

    hearing on the status of the Commonwealth as a joint employer and the designations of the two employees was conducted in April 1976. The only witness was petitioner's administrator.

On the joint-employer question, the administrator testified that, pursuant to agreement, the Department reimburses petitioner for 90% of all expenses (not otherwise funded) for the performance of the duties imposed on the counties by the Mental Health and Mental Retardation Act of 1966, Act of October 20, 1966, Special Sess. No. 3, P.L. 96, as amended, 50 P.S. § 4101 et seq. The 90% funding is made contingent upon petitioner's compliance with Department regulations. Operating authority over petitioner rests with the commissioners of the four counties, who in turn delegate some aspects of their authority to an advisory board, the membership of which is appointed by the counties after the Department prescribes the categories of appointments. Petitioner's employees are supervised by superiors within the program, rather than the Department, and are paid through an account maintained in petitioner's name. The regulations provide that the Department can change the amount of reimbursement at any time (dependent upon the availability of funds) and require, inter alia, that petitioner submit annual program plans and budgets for Department approval, undergo Department audits, and apply Department interpretations of Civil Service Commission standards in making decisions as to personnel classification, layoff and discipline. Petitioner must receive Department approval prior to staffing proposed positions and hiring particular applicants recommended by petitioner's supervisors from mandatory civil service lists. The administrator testified that he has been instructed by the county commissioners not to fill any proposed position for which the Department will not participate in

[ 34 Pa. Commw. Page 258]

    funding. He testified further that employee compensation, fringe benefits, length of work week and overtime are kept within Department maximums but petitioner can exceed those maximums at its own expense. He acknowledged that similar programs in other counties have different wages, hours, working conditions and other terms and conditions of ...


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