Appeal from the Order of the Commonwealth Court dated September 1, 1983, entered at No. 56 T.D. 1981, affirming the Order of the Pennsylvania Labor Relations Board dated March 12, 1981, entered at PERA-R-11, 852-C. Pa. Commw. ,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a concurring opinion. Zappala, J., files a dissenting opinion.
This is an appeal from an order of the Commonwealth Court affirming a final order of the Pennsylvania Labor Relations Board ("Board") which certified the Pennsylvania Social Services Union ("Union") as the exclusive representative of a collective bargaining unit of Lehigh County ("County") court-appointed employees for purposes of the Public Employe Relations Act ("PERA"), Act of July 23, 1970, P.L. 563, No. 195, as amended, 43 P.S. §§ 1101.101 et seq. (Supp.1984-85). 76 Pa. Commw. 641, 464 A.2d 699. Pursuant to the Board's order the personal secretaries to the judges of the Lehigh County Court of Common Pleas were included in the bargaining unit. The sole issue to be resolved in this appeal is whether such judicial secretaries are "confidential employes" under section 301 of PERA, 43 P.S. § 1101.301 and thereby ineligible for membership in a public employee collective bargaining unit.*fn1
The proceedings in this case commenced when the Union filed a petition for representation with the Board on October 10, 1978. The Board conducted hearings on the petition during which the Honorable Martin J. Coyne, President Judge of the Court of Common Pleas of Lehigh County, testified extensively regarding the various job classifications under consideration for inclusion in the employee unit.
The Union and the County were prepared to stipulate that the judges' personal secretaries were confidential employees but presented Judge Coyne's testimony on that issue at the request of the Board. After the hearings the Board directed that an election be held among the court-appointed employees including the judicial secretaries. The employees cast sixty (60) votes in favor of the Union and forty-one (41) for no representation. Seven (7) ballots were challenged and never opened. With a majority of the unit voting in favor of the Union, the Board certified it as the exclusive collective bargaining representative of the County's court-appointed professional and non-professional employees. Judicial secretaries were included in that employee unit.
The County filed exceptions to the Board's certification order, complaining in part that the Board had improperly concluded that the judicial secretaries were not "confidential employes." The Board rejected that contention and issued a final order of certification. The County then filed a petition for review in the Court of Common Pleas. Upon application by the Union this Court transferred the matter to the Commonwealth Court, which affirmed the Board. We granted the County's petition for allowance of appeal and, by order dated January 25, 1984, limited the appeal to the issue of whether judicial secretaries are "confidential employes" under PERA.
By enacting PERA the legislature, in an effort to promote orderly and constructive relationships between public employers and their employees, authorized public employees to organize and required public employers to recognize and bargain with the employees' representatives. This Court has upheld the constitutionality of PERA as applied to court-appointed employees. Commonwealth ex rel. Bradley v. Pennsylvania Labor Relations Board, 479 Pa. 440, 388 A.2d 736 (1978).
The right to organize and bargain collectively conferred upon employees in the public sector by PERA is limited, however, by PERA's definition of "public employe." "Confidential employes" are specifically excluded from that definition. 43 P.S. § 1101.301(2). "Confidential employe" is defined as "any employe who works: (i) in the personnel offices of a public employer and has access to information subject to use by the public employer in collective bargaining; or (ii) in a close continuing relationship with public officers or representatives associated with collective bargaining on behalf of the employer." 43 P.S. § 1101.301(13). Since "confidential employes" are not "public employes" for purposes of PERA, they may not be included in a collective bargaining unit.
The policy underlying this exclusion of "confidential employes" is the "recognition of the need to balance the right of employes to be represented with the right of the employer to formulate its labor policies with the assistance of employes not represented by the union with which it deals." Pennsylvania Labor Relations Board v. Altoona Area School District, 480 Pa. 148, 153, 389 A.2d 553, 556 (1978). It is therefore appropriate to give the statutory definition a narrow interpretation. The test of "confidential employe" status under the second prong of the definition, which was developed by the Board and has been adopted by this Court is "whether or not the employee acts in a confidential capacity to a person who formulates, determines or affectuates management policies in the field of labor relations." Id., 480 Pa. at 154, 389 A.2d at 556, quoting B.F. Goodrich Co., 115 NLRB No. 103, 37 LRRM 1383, 1384 (1956).
The County maintains that judicial secretaries fall within this second category of "confidential employes." Since the Board concedes, as it must, that personal judicial secretaries have a "close continuing relationship" with their respective judges, our decision turns on whether those judges formulate, determine or effectuate managerial labor policies.
The power to appoint necessary personnel is inherent in the judicial power. Sweet v. Pennsylvania Labor Relations Board (Sweet I), 457 Pa. 456, 322 A.2d 362 (1974); see also 42 Pa.C.S. § 2301. The authority to supervise and to discharge court-appointed employees is not only a necessary corollary to this appointment power but also is essential to the maintenance of an independent judiciary. See Commonwealth ex rel. Bradley v. Pennsylvania Labor Relations Board, supra; Ellenbogen v. County of Allegheny, 479 Pa. 429, 388 A.2d 730 (1978). Since the court has the inherent right to hire, discharge and supervise, an employer-employee relationship exists by definition between the judges and their appointees. Commonwealth ex rel. Bradley v. Pennsylvania Labor Relations Board, supra; Sweet I, supra; see Costigan v. Philadelphia Finance Department Employees Local 696, AFSCME, 462 Pa. 425, 341 A.2d 456 (1975). The fact that those employees are paid by the county does not alter the court's employer status. Sweet I, supra. We have held, in addition, that the judges of a court of common pleas are in fact " public employers" for purposes of PERA. Commonwealth ex rel. Bradley v. Pennsylvania Labor Relations Board, supra.
As public employers, judges must formulate and effectuate policies governing the employment relationship. Indeed, such policies are crucial to the efficient administration of justice. Unlike many public employers, however, judges no longer participate directly in collective bargaining negotiations with their employees. The legislature, recognizing that judges are too scarce and too essential to the administration of justice to be required to perform the non-adjudicatory function of managerial representation of the bargaining table, Ellenbogen v. County of Allegheny, supra, amended the County Code in 1976 to provide that judges are to be represented in negotiations as well as representation proceedings by the board of county commissioners. Act of August 9, 1955, P.L. 323, § 1620, as Page 276} amended, 16 P.S. § 1620 (Supp.1984-85). Section 1620 now provides:
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 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.
16 P.S. § 1620 (Supp.1984-85) (Emphasis added).
The Board argues that, because the judges do not represent themselves at the bargaining table, they are not "associated with collective bargaining" and consequently their personal secretaries are not "confidential employes" under section 301(13) of PERA, 43 P.S. § 1101.301(13). In support of this contention the Board maintains that the county commissioners do not represent judges, contrary to the clear language of section 1620 of the County Code, but solely themselves. The county commissioners, in the Board's view, are empowered to negotiate only matters within their control, namely financial terms, over which the judges have no authority. The Board interprets section 1620 and our cases interpreting it as establishing that bargaining over any other terms of employment is impermissible. Thus there is no occasion for communication between the commissioners and the judges regarding negotiations and no detriment to management in permitting the
inclusion of the judges' personal secretaries in the bargaining unit.
The Board misconstrues the statutory scheme. The legislative amendment neither affects the judges' managerial function nor limits the scope of collective bargaining by court-appointed employees. Section 1620 explicitly states that the county commissioners are to "represent the judges of the court of common pleas" in negotiations. We have interpreted that phrase to mean "sit on behalf of judges." Ellenbogen v. County of Allegheny, supra, 479 Pa. at 437, 388 A.2d at 734. The judges are principals in the negotiations participating through the county commissioners. Thus the county commissioners are clearly ...