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INTERNATIONAL UNION v. COMMONWEALTH PENNSYLVANIA (08/03/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 3, 1983.

INTERNATIONAL UNION, UNITED PLANT GUARD WORKERS OF AMERICA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LABOR RELATIONS BOARD, RESPONDENT. UNIVERSITY OF PITTSBURGH ET AL., INTERVENORS. UNIVERSITY OF PITTSBURGH, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LABOR RELATIONS BOARD, RESPONDENT. INTERNATIONAL UNION, UNITED PLANT GUARD WORKERS OF AMERICA ET AL., INTERVENORS

Appeals from the Order of the Pennsylvania Labor Relations Board in the case of In the Matter of the Employes of the University of Pittsburgh (Campus Police Department), Case No. PF-R-169-W.

COUNSEL

W. Glen Teakle, II, with him Michael H. Small, for petitioner/intervenor International Union, United Plant Guard Workers of America.

Scott F. Zimmerman, with him Patrick W. Ritchey and Kevin P. Gilboy, Reed, Smith, Shaw & McClay, for petitioner/intervenor, University of Pittsburgh.

Frayda Kamber, with her James L. Crawford and Anthony C. Busillo, II, for respondent, Pennsylvania Labor Relations Board.

Henry Miller, III, for intervenor, Fraternal Order of Police, Lodge 99.

President Judge Crumlish, Jr. and Judges Rogers, Blatt, Williams, Jr. and MacPhail. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 76 Pa. Commw. Page 151]

The Union Plant Guard Workers of America (U.P.G.W.A.) and the University of Pittsburgh appeal a Pennsylvania Labor Relations Board order certifying the Fraternal Order of Police (F.O.P.) as the exclusive bargaining representative of the University of Pittsburgh Campus Police Department. We reverse and remand.

In November 1979, the F.O.P. filed a representation petition with the Board under Act 111*fn1 to become the bargaining agent of the Campus Police. U.P.G.W.A.

[ 76 Pa. Commw. Page 152]

    intervened, contending that it was the certified exclusive representative under Act 195.*fn2 The Board,

[ 76 Pa. Commw. Page 153]

    concluding that the University was an employer under Act 111*fn3 and that the employees were policemen as defined by that Act,*fn4 certified the F.O.P.

[ 76 Pa. Commw. Page 154]

Bargaining rights under Act 195 and Act 111 are mutually exclusive. Fraternal Order of Police v. Shapp, 22 Pa. Commonwealth Ct. 267, 348 A.2d 502 (1975). Initially, it is clear that the Campus Police fall within the parameters of Act 195. The University of Pittsburgh is defined in the University of Pittsburgh -- Commonwealth Act*fn5 as an "instrumentality of the Commonwealth."*fn6 Under the definition of "Public Employer" in Act 195, there is included any "other instrumentality"*fn7 of the Commonwealth.

Act 111 employers are excepted out of the Act 195 definition by 43 P.S. § 1101.301(2), which states in part:

(2) "Public employe" or "employe" means any individual employed by a public employer but shall not include . . . those employes covered under the act of June 24, 1968 (Act No. 111). . . . (Emphasis added.)

This exception limits the question to whether the University is an employer under Act 111.

An employer under Act 111 must be a political subdivision of the Commonwealth or the Commonwealth. The University of Pittsburgh is clearly not a political

[ 76 Pa. Commw. Page 155]

    subdivision.*fn8 As stated, the University of Pittsburgh is defined as an instrumentality of the state. We now determine whether "Commonwealth" includes an instrumentality thereof for purposes of Act 111.

In Mooney v. Temple University Board of Trustees, 4 Pa. Commonwealth Ct. 392, 285 A.2d 909 (1972), aff'd, 448 Pa. 424, 292 A.2d 395 (1972), this Court ruled that Temple University was not a state agency. The Temple University -- Commonwealth Act, Act of November 30, 1965, P.L. 843, 24 P.S. § 2510(1-12), set up the same guidelines for Temple University as the University of Pittsburgh -- Commonwealth Act set up for the University of Pittsburgh.

The entire management, control and conduct of the instructional, administrative, and financial affairs of the university is hereby vested in the board of trustees. The board may exercise all the powers and franchises of the university and make by-laws for their own government, as well as for the university.

24 P.S. § 2519-205.

Also,

The Charter of University of Pittsburgh shall be amended by changing the name of University of Pittsburgh . . . hereinafter referred to as "the University" and, as such, shall continue as a corporation for the same purposes as, and with all rights and privileges heretofore granted to, University of Pittsburgh. . . .

24 P.S. § 2510-203.

Citing these same provisions in the Temple University -- Commonwealth Act, we stated, in Mooney, that "[t]he Temple University -- Commonwealth Act

[ 76 Pa. Commw. Page 156]

    has not changed Temple's basic status as a privately governed university." Id. at 395, 285 A.2d at 911. We find this rationale applicable here. Thus, we conclude that the Pennsylvania Labor Relations Board erred as a matter of law when it determined that the University of Pittsburgh, as an instrumentality of the Commonwealth, is considered the "Commonwealth" for the purposes of Act 111. Therefore, the F.O.P. is not the proper bargaining agent for the University of Pittsburgh Campus Police.

Reversed and remanded.

Order

The Pennsylvania Labor Relations Board final order in Case No. PF-R-169-W dated July 7, 1981, is reversed and remanded to the Board for proper union certification proceedings for the University of Pittsburgh Campus Police under the applicable sections of the Public Employes Relations Act, Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101 -- 1101.2301.

Disposition

Reversed and remanded.


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