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decided: March 13, 1987.


Appeal from the Order of the Pennsylvania Labor Relations Board, in case of: In The Matter of the Employees of City of Bethlehem, Case No. PF-R-83-74-E, dated June 10, 1985.


Anthony C. Busillo, II, Esq., MANCKE, LIGHTMAN & WAGNER, for Petitioner.

James L. Crawford, CHIEF COUNSEL, John B. Neurohr, Esq., PENNSYLVANIA LABOR RELATIONS BOARD, Edward H. Feege, Esq., HAYES AND FEEGE, for Respondent.

Opinion by Judge Craig.

Author: Craig

[ 104 Pa. Commw. Page 565]

Pursuant to reargument before the court en banc after the issuance of a decision of this court by a panel, Fraternal Order of Police, Star Lodge No. 20 v. Pennsylvania Labor Relations Board (Star Lodge I), 104 Pa. Commonwealth Ct. 561, 511 A.2d 923 (1986), the whole court's reconsideration leads to the conclusion that our initial decision -- affirming the Pennsylvania Labor Relations Board (Board) -- is sound.

The court en banc adopts the succinct statement of the case which Judge Colins authored in the initial opinion, Star Lodge I, as follows:

The Fraternal Order of Police (Union) appeals from an order of the Pennsylvania Labor Relations Board (Board) which concluded that the City of Bethlehem's Police Commissioner and six (6) Captains are managerial employees within the meaning of the Pennsylvania Labor Relations Act, Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. §§ 211.1-211.13 and that Act commonly referred to as Act 111, Act of June 24, 1968, P.L. 237, 43 P.S. §§ 217.1-217.10 and, therefore, are excluded from the bargaining unit.

The Union had filed an investigation and certification of representative petitions with the Board, seeking to represent a bargaining unit of the City's Police Department. After a hearing, the hearing examiner determined that the Commissioner and Captains were managerial employees. Thereafter, a representative election was held and the Union was certified as the exclusive bargaining representative for the Police Department, excluding the aforementioned managerial employees. The Union filed exceptions to the certification, alleging that the Captains

[ 104 Pa. Commw. Page 566]

    should have been included in the bargaining unit. The Board dismissed the exceptions, and affirmed the certification. This appeal followed.

In reviewing an order of the Board, our scope of review is limited to a determination of whether the factual findings of the Board are supported by substantial evidence. If so, they are conclusive upon review. Commonwealth v. Pennsylvania Labor Relations Board, 502 Pa. 7, 463 A.2d 409 (1983).

One of the reasons for our grant of reargument was that the Board, despite this court's affirmance of its decision, essentially joined the Union in requesting reargument. Of course, the Board has no quarrel with the favorable result received in this class. Instead, the Board displays concern about three out of the seven indicia of managerial status accepted by this court in Township of Chartiers v. Pennsylvania Labor Relations Board (Chartiers), 98 Pa. Commonwealth Ct. 44, 510 A.2d 884 (1986), appeal denied, 513 Pa. 643, 521 A.2d 934 (1986), and further applied in Star Lodge I.

In Chartiers, this court declined to endorse the Board's rebuttable presumption, voiced in Lower Allen Township, 8 Pa. Pub. Employee R. 376 (1977), aff'd in part, 11 Pa. Pub. Employee R. 17 (No. 882 Civil 1979, Court of Common Pleas of Cumberland County, filed November 28, 1979), that, in police departments of less than ten police personnel, the police chief would be presumed to have only supervisory status, not managerial authority. Our Chartiers opinion, noting the arbitrary nature of that presumption, pointed out that it has never achieved adoption by the common pleas court which affirmed the result in Lower Allen, nor by the Pennsylvania Supreme Court or this court.

[ 104 Pa. Commw. Page 567]

In this case, the Board has not attacked that disposition of the presumption.

Although Board counsel contends that this court has approved the other indicia of managerial status adopted by the Board in its Lower Allen decision -- namely, by our decision in Commonwealth v. Pennsylvania Labor Relations Board (Capitol Police), 64 Pa. Commonwealth Ct. 525, 441 A.2d 470 (1982), aff'd in part, 502 Pa. 7, 463 A.2d 409 (1983) -- such has not been the case. The determinative issue in Capitol Police was whether the capitol police were security guards rather than police officers; the managerial status of their superintendent and captain was only peripherally involved, and there was no reference to Lower Allen by either this court or the Supreme Court.

The Board's concern is with the extent to which the Chartiers opinion relied upon factual indicia which the Board itself developed over a long pattern of decisions, by which we might be guided in evaluating the validity of a Board decision according managerial status to a particular officer or officers. Because of this court's respect for the expertise of the Board in these matters, we did not attempt to devise criteria of our own choosing in Chartiers ; instead, we exhaustively reviewed all the available final adjudications published in the Board's reports, in an attempt to perceive a systematic and consistent pattern for mutual guidance in the long run.

To identify a systematic pattern of indicia was not an easy task because the Board has been confronted with a great variety of situations in this class of cases under Act 111. Understandably, despite the Board's earnest and expert efforts, there are a number of inconsistencies which appear when all the final adjudications by the Board and its examiners are scrutinized. In this present case, the Union provided, as Appendix F to its brief, a thoughtful charting of previous Board decisions on the managerial-supervisory question which, as the Union

[ 104 Pa. Commw. Page 568]

    stated in its Application for Reargument, "clearly demonstrates that the board has reached conflicting results on the management issue based on identical facts." (Emphasis in the original.) Board counsel, in its answer to the reargument petition, has also acknowledged some inconsistent approaches, at least in hearing examiner decisions which became final without further review by the Board. We note that such hearing examiner decisions have some weight when the Board has left them in effect, in that the Board has reserved to itself the sua sponte authority to review hearing examiner decisions to which no exceptions have been taken. 34 Pa. Code § 95.98(d).

Board counsel places the greatest stress upon the passage in the Board's Lower Allen decision which found certain criteria to be managerial in nature, reading as follows:

The chief directly formulates and assists in the formulation of policy, has overall responsibility for implementation of that policy, has acted on behalf of the employer in the past informal discussions, has overall responsibility for police personnel administration, and prepares the police budget. These duties are indisputably managerial in nature and ...

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