decided: February 16, 1982.
COMMONWEALTH OF PENNSYLVANIA, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LABOR RELATIONS BOARD, RESPONDENT. FRATERNAL ORDER OF POLICE ET AL., INTERVENORS. INTERNATIONAL UNION, UNITED PLANT GUARD WORKERS OF AMERICA, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LABOR RELATIONS BOARD, RESPONDENT. COMMONWEALTH OF PENNSYLVANIA, INTERVENOR
Appeals from the Order of the Pennsylvania Labor Relations Board in the case of In the Matter of the Employes of Commonwealth of Pennsylvania (Capitol Police), Case No. PF-R-4-C.
Debra K. Wallet, Assistant Attorney General, with her, John D. Raup, Assistant Attorney General, for petitioner, Commonwealth of Pennsylvania.
M. Glenn Jeakle, with him Michael H. Small, for petitioner, International Union, United Plant Guard Workers of America.
James L. Crawford, Assistant Attorney General, with him Anthony C. Busillo, II, Assistant Attorney General, for respondent, Pennsylvania Labor Relations Board.
Gary M. Lightman, Mancke & Lightman, for intervenor, Fraternal Order of Police et al.
President Judge Crumlish, Jr. and Judges Mencer, Blatt, Williams, Jr. and Craig. Opinion by President Judge Crumlish, Jr. Judge Palladino did not participate in the decision in this case.
[ 64 Pa. Commw. Page 527]
This is a consolidated appeal of the Commonwealth of Pennsylvania (Commonwealth) and the International Union, United Plant Guard Workers of America (Union) from a Pennsylvania Labor Relations Board (Board) final order certifying the Fraternal Order of Police, Lodge No. 85 (FOP), as the exclusive bargaining representative of the Commonwealth Capitol Police.*fn1 We affirm in part and reverse in part.
[ 64 Pa. Commw. Page 528]
The FOP filed a representation petition pursuant to Act 111.*fn2 At that time, the Union was certified under the Public Employe Relations Act*fn3 (PERA or Act 195) as the exclusive collective bargaining representative of all Police Officers I and II and as the exclusive "meet and discuss" representative of all Police Officers III, some of which are Capitol Police. The Board denied the Union's motion to stay representation proceedings until the disposition of certain unfair practice charges.*fn4 After a Board determination that the employees are "policemen" under Act 111, the Capitol Police elected the FOP as its representative.
Our scope of review is limited to a determination of whether or not the Board's findings are supported by substantial and legally credible evidence, and whether or not its conclusions based on facts are reasonable and not capricious, illegal or arbitrary. Erie City Area Vocational-Technical School v. Pennsylvania Labor Relations Board, 52 Pa. Commonwealth Ct. 388, 396, 417 A.2d 796, 798 (1980).
The Petitioners' threshold claim in both cases is that the Board has no authority to determine the employees' status as "policemen" under Act 111. Citing Hartshorn v. County of Allegheny, 9 Pa. Commonwealth Ct. 132,
[ 64 Pa. Commw. Page 529304]
A.2d 716, aff'd, 460 Pa. 560, 333 A.2d 914 (1975),*fn5 they assert that only a court is authorized to make this determination. Hartshorn, however, clearly does not mandate such procedure. Rather, the Pennsylvania Supreme Court held that employees " need not seek an initial determination from the . . . Board as to whether they are policemen within the meaning of Act 111. . . ." 460 Pa. at 563, 333 A.2d at 915. (Emphasis added.) The correlative is that one may seek an initial administrative determination. Hartshorn indicates that the Board has concurrent jurisdiction with the Court to so act.
The Petitioners cite Philadelphia Fire Officers Association v. Pennsylvania Labor Relations Board, 470 Pa. 550, 369 A.2d 259 (1977), to buttress their claim.*fn6 Fire Officers, however, although limited to a holding that the Board has "jurisdiction . . . to conduct a representation election " under Act 111,*fn7 is distinguishable since the employees' status in Fire Officers was not at issue.*fn8
[ 64 Pa. Commw. Page 530]
A labor organization's right to represent an employee unit depends in part on its legal standing (i.e., whether it is a "labor organization" under the statute), which is initially addressed by the Board. Since the law strongly favors regularity of process, Fraternal Order of Police v. Shapp, 22 Pa. Commonwealth Ct. 267, 271, 348 A.2d 502, 504 (1975), it is anomalous and policy-defeating to require a judicial declaration of the employees' status when the Board initially determines the labor organization's status.*fn9
We are guided by a policy of encouraging collective bargaining*fn10 and promoting orderly employment relationships,*fn11 and are required by PLRA, which is read in pari materia with Act 111, to construe the law liberally.*fn12 Therefore, to resolve these disputes with procedural and legal certainty, we hold that the Board has
[ 64 Pa. Commw. Page 531]
jurisdiction concurrent with the Court to determine the employees' Act 111 status.*fn13
Both Petitioners contend that the Capitol Police are "guards" under PERA*fn14 rather than "policemen" under Act 111. Since Act 111 does not define "policemen," the issue must be resolved after full consideration of the particular factual posture. Hartshorn, 9 Pa. Commonwealth Ct. at 136, 304 A.2d at 719. Our primary focus is on the Administrative Code,*fn15 which defines the employees' role, as indicative of the legislative intent to vest the employees with police power. See Hartshorn, 460 Pa. at 563-64, 333 A.2d at 915-16. Section 2416(e) of the Code specifically authorizes the Capitol Police to exercise:
the same powers as are now or may be hereafter exercised under authority of law or ordinance by the police of the cities of Harrisburg, Pittsburgh and Philadelphia [and] municipalities in Dauphin County wherein state buildings are located. . . .
This demonstrates clearly the legislature's intention to vest the Capitol Police in Harrisburg, Philadelphia and Pittsburgh with police powers.
We note the employees' function as a police unit and the authority they exercise. In addition to protecting Commonwealth property, the Capitol Police must enforce good order on*fn16 and exclude disorderly persons from*fn17 Commonwealth property. The officers are required to remove vagrants and trespassers, by force
[ 64 Pa. Commw. Page 532]
if necessary,*fn18 and "to arrest any person who shall damage . . . the buildings . . . or commit any other offense. . . on state grounds. . . ."*fn19 The record supports that a Capitol Police applicant must have one year's police experience or its equivalent and must pass the civil service examination. The officers receive firearms training and must requalify in order to bear a weapon. The Capitol Police issue citations for parking violations on Commonwealth property and the Capitol Police in Harrisburg may cite for moving violations which occur on the Capitol Complex streets and are responsible for traffic control in the Complex. The officers investigate automobile accidents within their jurisdiction. Although they do not patrol residential property, Capitol Police may be dispatched outside their jurisdiction in the event of dire emergency.
When vesting a group with police powers and duties, the Legislature does so with specificity. Venneri v. County of Allegheny (Venneri II), 12 Pa. Commonwealth Ct. 517, 527, 316 A.2d 120, 125 (1974).*fn20 The Legislature has clearly vested the Capitol Police in Harrisburg, Philadelphia and Pittsburgh with such powers and duties, and these employees have functioned as a police unit.*fn21 Therefore, the Board is correct
[ 64 Pa. Commw. Page 533]
in concluding that the employees are "policemen" under Act 111*fn22 as far as the Capitol Police in Harrisburg, Philadelphia and Pittsburgh are concerned. However, insofar as the enabling legislation, i.e., Section 2416 of the Administrative Code, does not refer to the employees stationed at the state office buildings in Scranton, those individuals are not "policemen."*fn23
The Petitioners assert that the Union's prior Act 195 certification bars the FOP's representation petition until the Union is decertified.*fn24 Under Section 607 of PERA,*fn25 the FOP lacks standing to file for the Union's decertification. A representation petition, however, filed by a rival organization, followed by that organization's election, displaces the incumbent organization and substitutes the new organization as the
[ 64 Pa. Commw. Page 534]
unit's exclusive representative.*fn26 By filing an Act 111 petition*fn27 and winning the election, the FOP displaced the Union, thereby obviating the need to utilize decertification procedures under PERA, which in any event are statutorily unavailable to the FOP.*fn28
The Petitioners argue that F.O.P. v. Shapp,*fn29 supra, sets forth, as an exclusive procedure, Act 195 decertification prior to an Act 111 representation filing. There we held that an initial decertification under Act 195 (which would remove outstanding Act 195 obligations) followed by an Act 111 bargaining request was "an adequate remedy available. . . ." to the FOP. Id. at 271, 348 A.2d at 504. F.O.P. v. Shapp, however, is not controlling on this issue since the FOP cannot petition for decertification under PERA.*fn30
[ 64 Pa. Commw. Page 535]
The Board's conclusion that the Act 111 certification has the effect of decertifying the Union under Act 195 is consistent with Pennsylvania labor law. Since "employees covered by Act No. 111 are not in any respect covered by PERA (Act 195) . . .," Fire Officers, 470 Pa. at 558, 369 A.2d at 262, once the employees were determined to be "policemen" under Act 111, those employees' Act 195 rights were dissolved by statutory definition. Therefore, the Union's standing as their representative, which was necessarily related to the employees' Act 195 status, was also dissolved. Although technically not an Act 195 "decertification," the effect is similar. Further, once the employees are found to fall within Act 111, it would be unlawful for the Union to represent them.*fn31
We reject the assertion that the FOP's representation petition is a collateral attack on the Union's prior certification. There is neither the identity of issues nor the prior full opportunity to litigate the issues, as required by Safeguard Mutual Life Insurance Co. v. Williams, 463 Pa. 567, 574, 345 A.2d 664, 668 (1975), which would prevent the FOP from filing its petition. Also, since the Board is a forum for resolving representation disputes rather than a party to such disputes, the Board cannot be collaterally estopped from considering the petition.
The petitioners claim that the existing bargaining agreements bar the FOP's petition. Act 111 contains no "contract bar rule" as is found in Act 195*fn32 and
[ 64 Pa. Commw. Page 536]
PLRA.*fn33 Fire Officers, however, implicitly mandates that such a rule be incorporated into Act 111. In O'Hara Township, 9 PPER Para. 9073 (1978), the Board first adopted an Act 111 contract-bar rule, but held that such would not be applied retroactively. Since the O'Hara Township decision was issued on March 10, 1978, the Board properly refused to bar the FOP's petition filed on March 14, 1977.
Petitioners next contend that, since Fire Officers (which mandated that Act 111 and PLRA be read in pari materia) was decided nearly two months prior to the petition's filing, the PLRA contract-bar doctrine should control. After Fire Officers, the Board, recognizing the internal inconsistencies under Act 195 regarding the timetables for collective bargaining and the resolution of representation questions,*fn34 began to integrate PLRA and Act 111 into a rational whole. The Act 111 contract-bar rule adopted in O'Hara*fn35 allows the bargaining process to begin in a timely manner while ensuring that the employer does not bargain with a lame duck incumbent who will be replaced during negotiations by the representative-elect. The Board concluded that, due to the Act 111 mandatory
[ 64 Pa. Commw. Page 537]
bargaining timetables,*fn36 the PLRA contract-bar rule applicable to private sector bargaining cannot apply to public sector bargaining, which is influenced by annual budgetary constraints. Therefore, since the Act 111 contract-bar rule was designed to implement the mandated bargaining timetable, the Board's failure to incorporate the PLRA contract-bar rule "as is" into Act 111 procedure is proper.*fn37
Petitioners next assert that the Board erred by failing to adjudicate Act 195 unfair practice charges prior to ordering the election.*fn38 The postponement of a representation election until outstanding unfair practice charges are resolved -- the "blocking charge" doctrine -- is discretionary with the Board. We will not review the Board's discretionary acts in the absence of bad faith, fraud, capricious action or abuse of power. Pennsylvania Social Services Union, Local 668 v. Pennsylvania Labor Relations Board, 481 Pa. 81, 88-89, 392 A.2d 256, 259-60 (1978).
The Board concluded that the questions raised by the charges were dependent upon the resolution of the jurisdictional issue.*fn39 The Board also determined that the nature of the alleged conduct, even if proven, would not have such an impact on the election as to require a postponement, and that, in any event, the time elapsed
[ 64 Pa. Commw. Page 538]
between the alleged misconduct and the election purged any taint that may have existed. Therefore, the Board did not abuse its discretion.
The Petitioners claim that the Board failed to establish rules governing Act 111 elections and that this failure is violative of their due process rights. They allege that the absence of a separate and distinct set of Act 111 procedures seriously impairs their ability to challenge the FOP's petition.
Fire Officers held that PLRA procedures would also govern Act 111 representation cases:
We believe that when the Legislature spoke in Act No. 111 of 'labor organizations or other representatives, designated by 50% or more of such policemen . . .,' it necessarily meant a labor organization designated in accordance with the provisions and procedures already established by statute and administered by the Labor Board. (Emphasis added.)
470 Pa. at 556, 369 A.2d at 261. Since Act 111 contains no such procedures, and since it is construed in pari materia with the PLRA, there is little doubt that the Court was referring to the regulations promulgated under PLRA.*fn40 Further, since the Hearing Examiner indicated at the outset that the PLRA regulations would control this matter, the parties were given ample notice. We find no merit to the claim that the Board engaged in ad hoc rule making.*fn41
[ 64 Pa. Commw. Page 539]
The Petitioners' final claims*fn42 involve the inclusion of Police Officers III (Sergeants) and IV (Lieutenants) into the bargaining unit and the Board's failure to certify a statewide unit comprised of all Commonwealth Police Officers.
The Commonwealth contends that the Board must exclude supervisory employees from the rank and file bargaining unit. Act 111, however, does not define "supervisor" nor does it exclude supervisors from its coverage. The Legislature, by not explicitly excluding policemen with supervisory authority from Act 111, has granted implicitly collective bargaining rights to all policemen, notwithstanding rank. Since it is discretionary with the Board to determine the appropriate bargaining unit, and since the Board's conclusion (that Police Officers III and IV employed by the Capitol Police do not exercise managerial authority) is supported by substantial evidence and is neither illegal nor capricious, we hold the unit to be appropriate.*fn43
The Commonwealth also contends that the certified unit should be statewide, including all employees classified as "Police Officers," rather than limited to those employed by the Capitol Police. The Board, however, correctly concluded that the Capitol Police, who share a separate community of interest apart from
[ 64 Pa. Commw. Page 540]
Police Officers employed by other Commonwealth agencies, constitutes an appropriate unit standing alone.*fn44
We appreciate the complexity and uniqueness of the issues presented. The Board is in the unenviable position of fashioning the language and policy considerations of Act 111 and PLRA into a cohesive and workable mechanism.
We affirm the Board's final order to the extent that it establishes the FOP as the exclusive bargaining representative of all Capitol Police Officers employed in Harrisburg and the state office buildings in Philadelphia and Pittsburgh. The order is reversed, however, insofar as it establishes the FOP as the representative of those police officers employed in the state office buildings in Scranton for the reasons set forth herein.
The Pennsylvania Labor Relations Board Final Order, Case No. PF-R-4-C, dated June 27, 1980, is affirmed as to the certification of the Fraternal Order of Police, Lodge No. 85, as the exclusive representative for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment and other conditions of employment for all full-time and regular part-time Capitol Police Officers, including Police Officers IV, Police Officers III, Police Officers II and Police Officers I, employed in Harrisburg and the
[ 64 Pa. Commw. Page 541]
state office buildings in Philadelphia and Pittsburgh. The Final Order is reversed as to the certification of the Fraternal Order of Police, Lodge No. 85, as the exclusive bargaining representative of all such Capitol Police Officers employed in the state office buildings in Scranton.
Judge Palladino did not participate in the decision in this case.
Affirmed in part and reversed in part.