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decided: February 12, 1988.


Appeal from the Order of the Pennsylvania Labor Relations Board, in case of In the Matter of the Employes of The State System of Higher Education, Case No. PF-R-80-106-C.


Anthony C. Busillo, II, for petitioner.

John Best Neurohr, with him, James L. Crawford and Scott A. Brooks, for respondent.

Frank A. Fisher, Jr., Deputy Chief Counsel, with him, John D. Raup, Chief Counsel, for intervenor, State System of Higher Education.

Michael H. Small, Farrell & Small, Of Counsel, W. Glen Jeakle, II, Gregory, Van Lopik, Moore & Jeakle, for intervenor, International Union, United Plant Guard Workers of America (UPGWA).

President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Doyle.

Author: Doyle

[ 113 Pa. Commw. Page 432]

Before us for our review is an order of the Pennsylvania Labor Relations Board (Board) which dismissed a petition for investigation and certification of representatives filed by the Conference of Pennsylvania College Police Officers, Fraternal Order of Police (Petitioners)*fn1 after concluding that it lacked jurisdiction over Petitioners because their employer did not fall within the category of employers covered by the Act of June 24, 1968, P.L. 237, 43 P.S. §§ 217.1-217.10 (Act 111).

[ 113 Pa. Commw. Page 433]

After Petitioners brought their petition, the hearing examiner determined that there was a unit appropriate for collective bargaining.*fn2 The Commonwealth, which was the named employer, was directed to submit a list of employees within the unit. An election of officers was conducted. On February 28, 1983 the Board issued a nisi order of certification certifying the Fraternal Order of Police as the exclusive representative of the group. The Fraternal Order of Police then filed a motion to reopen the record and the Board subsequently directed a remand to consider certain changed circumstances and whether such changes would affect the status of certain employees who had been excluded from the bargaining unit.

On August 23, 1983 the Commonwealth filed a "motion to dismiss and substitute new employer," i.e., the State System of Higher Education (SSHE). SSHE also filed a motion to dismiss on that date.

SSHE was created by Section 2002-A of the Public School Code of 1949 (Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. § 20-2002-A. In understanding why the Commonwealth's motion to substitute a new employer was filed when it was, it is important to understand that Section 2002-A was added to the Code by Section 2 of the Act of November 12, 1982, P.L. 660, which became effective July 1, 1983.

Section 2002-A provides in pertinent part:

[T]here is hereby established a body corporate and politic constituting a public corporation and government instrumentality which shall be known as the State System of Higher Education, independent of the Department of Education. . . .

[ 113 Pa. Commw. Page 434]

In their respective motions to dismiss the Commonwealth and SSHE contended that as an "instrumentality" of the Commonwealth SSHE was not a public employer under Act 111 and, hence, that Petitioner's petition should be dismissed for lack of jurisdiction. Petitioners filed answers and the motions were directed to be considered at the remand hearing. The hearing was held and Petitioners later filed another motion to reopen the record, again due to changed circumstances. This motion was opposed by the Commonwealth and SSHE. The hearing examiner on January 18, 1984 granted the Commonwealth's motion to dismiss and substitute new employer, granted Petitioners' motion to reopen, and denied SSHE's motion to dismiss. An additional hearing was held which considered the merits of the certification. Exceptions were filed by both parties. The Board, in reviewing the hearing examiner's decision, concluded that SSHE was not an employer under Act 111 and dismissed the petition. The single issue which we must resolve is whether SSHE is an employer within the purview of Act 111.

Our scope of review of a Board order is limited to determining whether there has been a constitutional violation or an error of law and whether the findings of fact are supported by substantial evidence. Harbaugh v. Pennsylvania Labor Relations Board, 107 Pa. Commonwealth Ct. 406, 528 A.2d 1024 (1987).

[ 113 Pa. Commw. Page 435]

Pursuant to Section 1 of Act 111, 43 P.S. § 217.1, policemen or firemen "employed by a political subdivision of the Commonwealth or by the Commonwealth" are given the right to bargain collectively under the dictates of Act 111. We note that there is a two part test to ascertain Act 111 jurisdiction. The employees must be police or fire persons within the meaning of the Act and the employer must be one which the legislature intended to be covered by the Act. Philadelphia Housing Page 435} Authority v. Pennsylvania Labor Relations Board, 508 Pa. 576, 499 A.2d 294 (1985). We are concerned today only with the second inquiry, i.e., whether the employer is one which is covered by Act 111. Petitioners do not contend that SSHE is a political subdivision; they do, however, assert that it is "the Commonwealth" and thus our analysis of the question will be restricted to that narrow point.

The hearing examiner, relying upon SSHE's designation as a "public corporation" and a "government instrumentality," and further relying upon the fact that SSHE's board is composed of the Governor and the Secretary of Education and fourteen members appointed by the Governor,*fn3 concluded that it was "the Commonwealth" for purposes of Act 111 jurisdiction. As was previously noted, the Board rejected this determination. In so doing, it relied primarily upon Philadelphia Housing. The precise issue in Philadelphia Housing was whether the Philadelphia Housing Authority was an employer for purposes of Act 111. The Housing Police Association maintained that the Philadelphia Housing Authority was an agency of the Commonwealth and, hence, within Act 111 jurisdiction. The Supreme Court, after engaging in an analysis involving statutory construction, rejected the notion that an agency of the Commonwealth is "the Commonwealth" for purposes of Act 111 jurisdiction. Significantly for our purposes, the Philadelphia Housing Authority's enabling legislation defined it as a "public body, corporate and politic, exercising public powers of the Commonwealth as an agency thereof." Id. at 587 n. 5, 499 A.2d at 300 n. 5. Even more telling, however, is the Philadelphia Housing Court's concluding language which held, "we are satisfied that, from the plain and unambiguous language of Section 1 of Act 111, the term "Commonwealth" as used therein refers only to the Commonwealth of Pennsylvania

[ 113 Pa. Commw. Page 436]

    and not to its agencies, authorities, or other component entities and instrumentalities." Id. at 590, 499 A.2d at 301 (emphasis added). SSHE is, by statute, an instrumentality of the Commonwealth, and, hence, it is not within Act 111 jurisdiction. Philadelphia Housing. Although Petitioners argue that because SSHE programs are subject to state audits and because SSHE employees are entitled to membership in Commonwealth retirement systems SSHE is the Commonwealth, the fact is that Philadelphia Housing dictates a contrary result.*fn4

Petitioners' other contention is that SSHE and the Commonwealth are joint employers. This issue was not raised below and, hence, is waived on appeal. See Pa. R.A.P. 1551.

Based upon the foregoing opinion, the order of the Board is affirmed.


Now, February 12, 1988, the order of the Pennsylvania Labor Relations Board in the above-captioned matter is hereby affirmed.



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