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COMMUNITY COLLEGE PHILADELPHIA v. COMMONWEALTH PENNSYLVANIA (07/20/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 20, 1981.

COMMUNITY COLLEGE OF PHILADELPHIA, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LABOR RELATIONS BOARD ET AL., APPELLEE

Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Community College of Philadelphia v. Pennsylvania Labor Relations Board and Faculty Federation of the Community College of Philadelphia, No. 2008 May Term, 1979.

COUNSEL

Howard R. Flaxman, with him William A. Whiteside, Jr., Nochem S. Winnet, and Barnett Satinsky, Fox, Rothschild, O'Brien & Frankel, for appellant.

Anthony C. Busillo, II, Assistant Attorney General, with him James L. Crawford, Donald A. Wallace, Susan Shinkman, and Stephen A. Sheller, Assistant Attorneys General, for appellee, Pennsylvania Labor Relations Board.

Michael Brodie, Freedman and Lorry, P.C., for appellee, Faculty Federation of the Community College of Philadelphia.

Jason S. Shapiro, with him J. Thomas Menaker, McNees, Wallace & Nurick, of counsel, Sheldon Elliot Steinbach, for Amicus Curiae, Pennsylvania Association of Colleges and Universities, American Council on Education and American Association of Community and Junior Colleges.

Thomas H. M. Hough, for Amicus Curiae, Community College of Allegheny County.

Jerome H. Gerber, with him Elliot A. Strokoff, for Amicus Curiae, The Pennsylvania AFL-CIO, The Association of Pennsylvania State College and University Faculties, The American Federation of Teachers, The Pennsylvania Federation of Teachers, and Philadelphia AFL-CIO Council.

President Judge Crumlish and Judges Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 60 Pa. Commw. Page 631]

The Community College of Philadelphia (College) appeals from an order of the Court of Common Pleas of Philadelphia County affirming the order of the Pennsylvania Labor Relations Board (PLRB) certifying the Faculty Federation of the Community College of Philadelphia, Local 2026, American Federation of Teachers, AFL-CIO (Union) as the exclusive bargaining representative of a unit of professional employees to which we will hereafter sometimes refer as "adjunct faculty" consisting in the main of visiting lecturers and part-time instructors at the College. After a thorough review of the relevant legal authorities and the record consisting of more than a thousand pages of testimony and exhibits made during six days of evidentiary hearings before a hearing examiner, we affirm the order of certification on the thorough and well-reasoned opinion of Judge Gelfand for the Court below, docketed at No. 2008, May Term 1979.

However, the College and amici curiae*fn1 have ascribed particular significance on the occasion of this appeal to the issue of whether the visiting lecturers and part-time instructors are persons whose work relationship

[ 60 Pa. Commw. Page 632]

    with their employer is so casual that they have no right under the Public Employe Relations Act (PERA)*fn2 to bargain collectively. We will treat this issue here in a more comprehensive manner than the chancellor may have felt was warranted in view of the many issues before him which he was required to address.

Section 401 of PERA grants public employees the right "to organized, form, join, or assist in employe organizations or to engage in lawful concerted activities for the purpose of collective bargaining or other mutual aid and protection or to bargain collectively through representatives of their own free choice . . ." PERA pertinently to this case defines public employees simply as "individual[s] employed by a public employer."

Although, as seen, the statutory definition of public employees is broad, the PLRB has consistently excluded from the protection of PERA employees whose relationship with the public employer is found to be "casual". See Lancaster County, 11 Pa. P.E.R. para. 11077 (1980) (judicial law clerks); St. Mary's Borough, 8 Pa. P.E.R. 252 (1977) (on-call parking meter repairman); Richland School Board, 8 Pa. P.E.R. 76 (1977) (one-year replacement teacher); York County Vocational-Technical School, 6 Pa. P.E.R. 198 (1975) (teachers of one-time, ad hoc, evening school courses).*fn3 The PLRB

[ 60 Pa. Commw. Page 633]

    has described casual employees as "those who have little likelihood of re-employment and little frequency of

[ 60 Pa. Commw. Page 634]

    re-employment." Student Services, Inc. (Edinboro State College), 7 Pa. P.E.R. 73 (1976) rev'd on other grounds sub nom Employees of Student Services, Inc. Appeal, 4 Pa. Commonwealth Ct. 220, 411 A.2d 569 (1980). In Westmont Hilltop School District, 8 Pa. P.E.R. 236 (1977) quoting Dauphin County Commissioners, 7 Pa. P.E.R. 7 (1976) the PLRB wrote:

     the only requirement is that of a 'regularity of employment' which must exist with a fair degree of frequency as distinguished from casual employes who perform an occasional job for a temporary purpose or are hired as a matter of special engagement.

Thus, the inquiry is factual; and demands examination of all the circumstances of the questioned employment relationship. The PLRB has refused to give controlling significance to the terms of the employment contract, Northeastern School District, 9 Pa. P.E.R. para. 9102 (1978), or to create any bright arbitrary line to be passed, such as number of hours worked, as showing that the employment is not casual. Dauphin County Commissioners, supra; Radnor Township School District, 6 Pa. P.E.R. 30 (1975).

Both visiting lecturers and part-time instructors at the College perform, for the most part, the same functions as members of the full-time faculty, that is preparation of lessons; classroom instruction; preparation, administration, and grading of examinations; and the informal and formal tutoring and guidance of individual students. The evidence is conflicting as to the role played by the part-time instructors in the tasks of departmental planning and collegial self-governance. Visiting lecturers are fully involved in these processes.

Adjunct faculty are essential to a large proportion of the public service provided by the College. Three hundred forty-four part-time instructors were employed

[ 60 Pa. Commw. Page 635]

    by the College in 1977 to teach in excess of twenty-five per cent of all course sections. These instructors teach nearly ninety per cent of the classes in the College's Community Services Division which, at twenty-five locations throughout Philadelphia, provides flexible credit and non-credit courses of immediate interest to various groups in the city as well as preparation for the High School Equivalency Examination. In addition, seventy-two visiting lecturers were employed in 1977 and although separate figures for visiting lecturers are unavailable it is clear that the total contribution of both categories of adjunct faculty is significant. In 1970 approximately eighty-eight adjunct faculty were employed by the College. Approximately four hundred forty-six adjunct faculty (including special tutors) were employed in 1977.

The primary difference between visiting lecturers and part-time instructors is in their respective teaching loads and remuneration. Visiting lecturers carry a full teaching load of twenty-four academic credits per year and receive a salary the same (about $19,000 a year) as regular full-time members of the faculty although certain fringe benefits received by the latter group are not included. Part-time instructors teach a maximum of nine classroom "contact" hours in each of two academic semesters and are paid $275.00 per contact hour (compensation totaling at best about $5,000 a year) with no fringe benefits.

At the heart of the present controversy is the method chosen by the College to hire these employees. Individual adjunct faculty members are offered contracts of employment for a fixed term; in the case of visiting lecturers the term of employment is one academic year; part-time instructors are hired for one or two semesters. The employment contracts under which the adjunct faculty members are hired and correspondence from the College emphasize that the College

[ 60 Pa. Commw. Page 636]

    is not bound to rehire anyone for an additional term. The College asserts that this practice is necessitated by their "open enrollment" policy which leave unresolved until the opening day of classes each semester exactly which courses and course sections will be offered. As a consequence, the College says, the adjunct faculty should be found to be casual employees.

However, substantial evidence was adduced which tended to show that many of the adjunct faculty members have been repeatedly rehired,*fn4 that individual department chairmen are required by the college to compile and to rely upon a list of former adjunct faculty to be used as a hiring "pool", and that

[ 60 Pa. Commw. Page 637]

    despite the practice of open enrollment the pupil population at the College and, therefore, the number of adjunct faculty, has stabilized and can be accurately predicted from year to year.*fn5 Several adjunct faculty

[ 60 Pa. Commw. Page 638]

    members testified that indefinite re-employment of capable individuals is virtually assured.*fn6

We agree with the PLRB that the focus of the inquiry must be on whether the adjunct faculty members have a reasonable expectation of continued employment based on the showing that the nature of the College's personnel needs and its hiring practices have in fact provided regular employment to those who want it; or whether no such expectation could be entertained in the face of the limited terms of their

[ 60 Pa. Commw. Page 639]

    contracts and the express disclaimer of any obligation to rehire. Dauphin County Commissioners, supra.

In this regard, the National Labor Relations Board has stated that "a regular pattern of continuing employment in past academic years can be indicative of the type of expectation of future employment necessary to establish a continuing interest in the unit." C.W. Post Center, 198 NLRB 453, 454, 80 LRRM 1738, 1739 (1972). See also Fordham University, 193 NLRB 134, 78 LRRM 1177 (1971). We find this reasoning to be persuasive. It is clear that the terms of the employment contracts alone cannot determine whether the adjunct faculty are casual employees. To hold otherwise would permit the College to determine the membership of the bargaining unit.

The PLRB's finding that the adjunct faculty were not purely casual employees but that they were persons with a reasonable expectation of continued employment is supported by the record and is, moreover, consistent with other of its determinations where:

     the record show[ed] that many of [the] employees work[ed] for periods of time which indicate[d] repetitive employment and which permit[ed] them reasonably to anticipate re-employment in the near or foreseeable future.

Juilliard School, 208 N.L.R.B. 153, 154, 85 LRRM 1129, 1130 (1974); see, e.g., Dauphin County Commissioners, supra; Radnor Township School District, supra. Each of these cases necessarily turns on its particular facts in all their complexity and we continue to give deference to the expertise of the PLRB in the assessment of those facts. Cf. Keene State College Association v. State of New Hampshire, 119 N.H. 1, 396 A.2d 1099 (1979).

Order affirmed.

[ 60 Pa. Commw. Page 640]

Order

And Now, this 20th day of July, 1981, the order of the Pennsylvania Labor Relations Board is affirmed.

Disposition

Affirmed.


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