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Allegheny County Deputy Sheriffs' Association v. Pennsylvania Labor Relations Board

January 28, 2010

ALLEGHENY COUNTY DEPUTY SHERIFFS' ASSOCIATION, PETITIONER
v.
PENNSYLVANIA LABOR RELATIONS BOARD, RESPONDENT



The opinion of the court was delivered by: Judge Simpson

Argued: December 8, 2009

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

In this labor relations appeal, the Allegheny County Deputy Sheriffs' Association (Association) seeks review of the Pennsylvania Labor Relations Board's (Board) 2009 determination that the deputy sheriffs of Allegheny County (Deputies), are not "police officers" for purposes of collective bargaining under "Act 111."*fn1 The Association contends Deputies are entitled to Act 111 coverage because they are now vested with full police powers by virtue of their inclusion in the definitions of "police officer" in the Crimes Code*fn2 and the Municipal Police Education and Training Law (MPETL),*fn3 and because they primarily act as police. Allegheny County (County) intervenes in this appeal. Upon review, we affirm.

I. Background

Deputies' joint employers are the County and the County Sheriff (Sheriff). Presently, the Association is certified by the Board under the Public Employe Relations Act (PERA)*fn4 as the exclusive representative of Deputies' collective bargaining unit. Currently, the County employs over 150 deputy sheriffs, including a chief deputy, two commanders, three lieutenants and ten sergeants. Pursuant to Section 805 of PERA (guards and court personnel), Deputies are classified as employees "directly involved with and necessary to the functioning of the courts of this Commonwealth .." 43 P.S. §1101.805 (emphasis added).

A. Prior Court Decisions

On two prior occasions, Deputies sought to reclassify themselves as Act 111 police officers. On both occasions, this Court ultimately rejected their claim to Act 111 status.*fn5 In Venneri v. County of Allegheny, 316 A.2d 120 (Pa. Cmwlth. 1974) (Venneri II), we reviewed the history of Act 111 and noted that "[n]owhere in the Act is the term 'policemen' specifically defined, nor is there any reference whatsoever to 'deputy sheriffs.'" Id. at 123. We further noted that "[PERA], by its terms, obviously was intended to cover all other public employes within the Commonwealth." Id. In particular, Section 805 of PERA applies to court-related personnel. 43 P.S. §1101.805. Although Deputies' duties included activities normally performed by police officers, their primary duties were directly related to the operation of the County courts. Moreover, we recognized in Venneri II that neither the Second Class County Code*fn6 nor any other act of the Legislature vests Deputies with general police powers and authority. "When the Legislature has chosen to vest a given group with [police] powers and duties, it has done so with a fair degree of specificity." Id. at 125. We therefore held Deputies were not police officers within the intent of Act 111.

A decade later, in Allegheny County Deputy Sheriffs' Association v. Pennsylvania Labor Relations Board, 504 A.2d 437 (Pa. Cmwlth. 1986) (ACDSA I), we again held Deputies were essentially court-related personnel covered by PERA and not "police officers" within the meaning of Act 111. We noted that although Deputies continue to perform police-type functions, including undercover work with a drug enforcement task force and a related homicide investigative unit, no substantial change in their duties occurred since Venneri II. Deputies' primary duties remained directly related to operation of the County courts.

In ACDSA I, we also rejected the Association's alternative argument that subsequent to Venneri II the Legislature, by enacting certain provisions of the Deputies Sheriffs Act*fn7 (located within the Second Class County Code), granted Deputies' general police powers. In particular, the Association cited Section 10(a) of the Deputy Sheriffs Act, 16 P.S. §4221.10(a), which provides in part that "[n]o deputy sheriff covered by this act shall be reduced in rank, suspended, furloughed or discharged, except for the following reasons: . conduct unbecoming a police officer .." We noted neither Section 10(a) nor any other provision of the Deputy Sheriffs Act specifically vests Deputies with general police powers. ACDSA I.

Ultimately, the Board and the courts began applying a conjunctive, two-part test for determining whether employees are police officers or firefighters for purposes of collective bargaining under Act 111. See County of Lebanon v. Pa. Labor Relations Bd., 873 A.2d 859 (Pa. Cmwlth. 2005); Narcotics Agents Reg'l Comm. v. Pa. Labor Relations Bd., 833 A.2d 314 (Pa. Cmwlth. 2003); Cambria County Deputy Sheriffs Ass'n v. Pa. Labor Relations Bd., 799 A.2d 957 (Pa. Cmwlth. 2002); Delaware County Lodge No. 27, Fraternal Order of Police v. Pa. Labor Relations Bd., 690 A.2d 754 (Pa. Cmwlth. 1997); Commonwealth v. Pa. Labor Relations Bd., 558 A.2d 581 (Pa. Cmwlth. 1989) (Park Rangers). The test for determining whether employees are police officers under Act 111 requires that the particular employees: "(1) be legislatively authorized to act as police; and (2) effectively act as police." Narcotics Agents, 833 A.2d at 317 (citing Cambria County Deputy Sheriffs Ass'n; Delaware County Lodge No. 27).

B. Current Petition for Representation

In May, 2008, the Association again petitioned the Board for certification to represent Deputies as police officers under Act 111. Noting Act 111 does not define who are covered as "police officers," the Association asserted the Legislature's 1995 amendment to the Crimes Code, and the new version of the MPETL, enacted in 1996, expressly and unambiguously define deputy sheriffs in a second class county as "police officers," thereby vesting Deputies with full police powers. Section 103 of the Crimes Code, 18 Pa. C.S. §103, defines "police officer" as follows:

The term shall include the sheriff of a county of the second class and deputy sheriffs of a county of the second class who have successfully completed the requirements under [the MPETL].

Moreover, the MPETL defines "police officer" as "[a]ny one of the following . (2) [a] deputy sheriff of a county of the second class." 53 Pa. C.S. §2162. In addition, the MPETL defines "police department" in part as (1) A public agency of a political subdivision having general police powers and charged with making arrests in connection with the enforcement of the criminal or traffic laws. This paragraph includes the sheriff's office in a county of the second class.

Id. Because deputy sheriffs in a second class county are now vested with full police powers by virtue of 18 Pa.C.S. §103 and 53 Pa. C.S. §2162, the Association's petition alleged the Board is bound by the principles of statutory construction to find that the Legislature intends Deputies to be covered by Act 111. The Association further alleged that although Deputies retain their duties with the courts, they perform the full duties of police officers. All Deputies are required to obtain and maintain police officer certification under the MPETL. Deputies are the primary police who protect the courts and court buildings; they are no different from other police officers who perform necessary administrative duties along with criminal investigations and arrests. Therefore, Deputies primarily act as police.

C. Hearing and Proposed Order of Dismissal

In July, 2008, Board Hearing Examiner Donald A. Wallace (Hearing Examiner) held an evidentiary hearing on the Association's petition for representation. The Association presented testimony from three witnesses and submitted five exhibits regarding Deputies' training, certification and job duties. The County submitted no evidence.

In September, 2008, Hearing Examiner issued a proposed order of dismissal (proposed order) making the following findings:

1. The Board has certified the Association under [PERA] as the exclusive representative of a bargaining unit that includes deputy sheriffs employed by the County and the Sheriff.

2. The primary duties of the deputy sheriffs are directly related to the operation of the courts in the County. They include providing security for the courts, serving process for the courts, executing warrants for the courts and transporting prisoners for the courts.

3. The deputy sheriffs are required by the Sheriff to attend training provided [under the MPETL], are identified by [the MPETL] as police officers, carry firearms outside the court house, are expected by the Sheriff to exercise their arrest powers, have made arrests for crimes committed in their presence, have shared intelligence and participated on task forces with the County's District Attorney, the Drug Enforcement Administration and the Federal Bureau of Investigation and have backed up and substituted for municipal police officers.

Hr'g Examiner's Proposed Order, 09/17/08, at 1 (citations omitted).

Hearing Examiner rejected the Association's argument that the Legislature's inclusion of deputy sheriffs of a second class county in the definitions of "police officer" in 18 Pa. C.S. §103 and 53 Pa. C.S. §2162 now vests Deputies with general police powers. Hearing Examiner noted these provisions "are noticeably silent as to any powers the Legislature may have thereby conferred on [Deputies]." Proposed Order at 4. In contrast, Hearing Examiner cited Hartshorn v. County of Allegheny, 460 Pa. 560, 333 A.2d 914 (1975), where the Supreme Court recognized that Section 1440(b) of the Second Class County Code*fn8 clearly vested County detectives with general police powers.

Further, despite the fact Deputies are trained as police officers and perform some police work, Hearing Examiner found Deputies' primary duties are directly related to the operation of the County's courts. Proposed Order at 2.

Deputies are assigned daily to all divisions of the common pleas court. Many of their duties are dangerous; they escort prisoners, keep order, protect judges, provide courthouse security, carry out orders and warrants, enforce injunctions, and perform other duties assigned by the court.

Thus, Hearing Examiner determined Deputies failed to meet either prong of the Act 111 "police officer" test. First, the Legislature did not specifically vest Deputies with police powers. Moreover, because Deputies' primary duties are directly related to the operations of the courts, they do not primarily or effectively act as police. ACDSA I; Venneri II. Therefore, Hearing ...


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