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Westmoreland County v. Pennsylvania Labor Relations Board

February 25, 2010

WESTMORELAND COUNTY, 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 case, we review whether the Pennsylvania Labor Relations Board (Board) erred by upholding a Nisi Order of Certification that expanded the collective bargaining unit of the Westmoreland Court Association of Professional Employees (Union) to include the positions of Adult Probation Supervisor, Juvenile Probation Supervisor, and Domestic Relations Case Establishment/Initiation Supervisor. Westmoreland County (County) asserts the jobs at issue are supervisory or managerial-level positions as defined by the Pennsylvania Public Employe Relations Act (PERA)*fn1 and are therefore excluded from the bargaining unit. The County further argues the Board's order encroaches on the exclusive authority of the President Judge of the Westmoreland County Court of Common Pleas to make personnel decisions. Discerning no error below, we affirm.

In 1992, the Union became the recognized bargaining representative for all full- and part-time professional employees directly involved with and necessary to the functioning of the Westmoreland County Common Pleas Court and who are hired, fired and directed by it. Reproduced Record (R.R) at 11a. The unit excluded law librarians, nonprofessional employees, management level employees, supervisors, first level supervisors, confidential employees and guards, as those terms are defined by PERA. Id.

In March, 2006, the Union filed a petition for representation (Petition) with the Board requesting that the following Domestic Relations' (DR) positions be accreted to the bargaining unit: Enforcement Officers, Conference Officers, and Attorneys. Id. The Petition also sought inclusion of Adult and Juvenile Probation Supervisors (collectively, Probation Supervisors) in the bargaining unit. Id. The County and the Union reached an agreement regarding many of the positions; however, they could not agree on the positions of Probation Supervisors and DR Case Establishment/Initiation Supervisor (Establishment Supervisor). The Petition affected seven Adult Probation Supervisors, three Juvenile Probation Supervisors and one Establishment Supervisor.

In April and July, 2008, a Board hearing examiner conducted hearings on the Petition. The hearing examiner subsequently entered an order directing submission of an eligibility list, concluding the positions at issue were neither supervisory nor managerial within the meaning of PERA. The County complied with the hearing examiner's order, and the Board thereafter issued an order directing an election to determine whether the positions at issue should be included in the bargaining unit. The election resulted in favor of representation, and a Board agent certified the Union as the exclusive representative of the expanded bargaining unit and issued a Nisi Order of Certification. The bargaining unit now includes:

All full-time and regular part-time professional employes who are directly involved with and necessary to the functioning of the courts and who are hired, fired and directed by the courts including but not limited to Title IV-D Attorneys, [DR] Enforcement and Conference Officers, Family Court and Orphan's Court Administrators, [DR] Lead Officers, Adult Probation employes and Adult Probation Supervisors; Juvenile Probation employes and Juvenile Probation Supervisors; [DR] employes and the [DR Establishment Supervisor]; and excluding the Adult Probation Technical Hearing Officer, Family Court Masters and Hearing Officers, [DR] PACSES Coordinator and all other employes, management level employes, supervisors above the first level of supervision, confidential employes and guards as defined by [PERA].

R.R. at 56a.

The County filed exceptions to the Nisi Order, contending the hearing examiner erred in concluding that the duties of Probation Supervisors and Establishment Supervisor (collectively, Supervisors) are neither supervisory nor managerial under PERA. The County further asserted the hearing examiner erred by disregarding the current Establishment Supervisor's testimony on the basis she described post-petition duties.

The Board adopted the hearing examiner's findings regarding the duties of Probation Supervisors. The Board, however, agreed with the County that the hearing examiner erred by failing to consider the duties of the current Establishment Supervisor. The Board found the rationale of disregarding post-petition duties was inapplicable here where the record lacked evidence showing the County changed the duties of the position after filing of the Petition in order to justify its inclusion or exclusion from the bargaining unit. See In the Matter of the Employes of Elizabeth Twp., 33 Pa. Pub. Employee Rep. ¶33053 (2002), aff'd sub nom, Elizabeth Twp. v. Pa. Labor Relations Bd., (Pa. Cmwlth., No. 1521 C.D. 2002, filed March 17, 2003). As a result, the Board made additional findings regarding the position of Establishment Supervisor and included it in the expanded bargaining unit.

The County now petitions this Court for review of the Board's order rendering the Nisi Order of Certification absolute and final.*fn2 The County presents the same arguments it presented below, and further contends the Board's order encroaches on the authority of the President Judge of Westmoreland County to make personnel decisions.

At the outset, we note the Board's expertise in the area of public labor law. Berks/Lehigh Valley Coll. Faculty Ass'n v. Pa. Labor Relations Bd., 763 A.2d 548 (Pa. Cmwlth. 2000). The Board has exclusive province over credibility determinations and evidentiary weight. Pa. Ass'n of State Mental Hosp. Physicians v. Pa. Labor Relations Bd., 554 A.2d 1021 (Pa. Cmwlth. 1989). So long as substantial evidence supports the Board's findings, we defer to the Board's conclusions if they are reasonable, and not arbitrary or capricious. Sch. Dist. of Phila. v. Pa. Labor Relations Bd., 719 A.2d 835 (Pa. Cmwlth. 1998). In addition, we consider Board opinions interpreting PERA as persuasive authority. Cf. Montgomery County v. Pa. Labor Relations Bd., 769 A.2d 554 (Pa. Cmwlth. 2001) (hearing examiner's decision was consistent with prior Board decisions, which provided ample support for Board's decision assigning some employees to court-related bargaining unit while excluding others).

I. Section 301(6) of PERA

In its first assignment of error, the County maintains Supervisors' positions are excluded under Section 301(6) of PERA, 43 P.S. §1101.301(6). With emphasis added, that Section defines "supervisor" as:

any individual having authority in the interests of the employer to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline other employes or responsibly to direct them or adjust their grievances; or to a substantial degree effectively recommend such action, if in connection with the foregoing, the exercise of such authority is not merely routine or clerical in nature but calls for the use of independent judgment.

The parties agree Supervisors lack direct authority to make the personnel decisions identified in Section 301(6). The issue thus becomes whether Supervisors responsibly direct other employees or effectively recommend personnel actions using independent judgment.

A party seeking to exclude a position from a bargaining unit has the burden of proving by substantial evidence the statutory exclusion applies. Sch. Dist. of Phila. v. Pa. Labor Relations Bd. The Board reviews actual job duties and will only consider written job descriptions to corroborate testimony of actual duties. See Sch. Dist. of Twp. of Millcreek v. Millcreek Educ. Ass'n, 440 A.2d 673 (Pa. Cmwlth. 1982) (noting that the purpose of unit clarification procedure is to determine whether job classifications belong in bargaining unit based upon actual job functions). In determining supervisory status, Section 604(5) of PERA authorizes the Board to "take into consideration the extent to which supervisory and nonsupervisory functions are performed." 43 P.S. §1101.604(5); W. Perry Sch. Dist. v. Pa. Labor Relations Bd., 752 A.2d 461 (Pa. Cmwlth. 2000). It is therefore appropriate for the Board to consider such factors as frequency, duration and importance of the various supervisory duties performed. W. Perry Sch. Dist.

Moreover, job titles, such as supervisor or manager, are not sufficient to overcome the actual duties performed as evidence of being a supervisor under PERA. Id. In addition, the Board recognizes an employee is a supervisor under PERA if he or she has the authority to perform the functions of Section 301(6) and actually exercises that authority on a regular basis and uses independent judgment when doing so. In the Matter of the Employes of Hempfield Sch. Dist., 30 Pa. Pub. Employee Rep. ¶54 (2007).

A. Adult and Juvenile Probation Officers

The County argues the Board disregarded the daily functions of Probation Officers, which when properly considered exclude the positions from the bargaining unit. Citing In the Matter of Employes of Lawrence County, 31 Pa. Pub. Employee Rep. ¶31079 (2000), the County asserts it is not required to prove the Probation Supervisors perform all the duties identified in Section 301(6); rather, the County must show that they predominantly perform the duties of supervisors.

According to the County, the evidence shows that Probation Supervisors play a substantial role in the aforementioned personnel decisions, and their daily duties include monitoring subordinates' caseloads, ensuring staff coverage, training personnel, completing employee evaluations, assisting subordinates, and resolving personnel issues.

However, the County relies on general, non-detailed testimony of Probation Supervisors' respective directors that they perform the duties identified in Section 301(6). It failed to offer examples of how Probation Supervisors actually perform any of these functions. In other words, the County failed to offer details of how Probation Supervisors effectively make personnel recommendations, or assign, approve, or evaluate work, or train subordinates. The lack of detail is a basis upon which the Board may exercise its fact-finding discretion.

Moreover, the credible evidence supports the Board's conclusion Probation Supervisors act as lead workers who follow mandates of their respective department directors and the President Judge. First, Probation Supervisors testified they play no direct role in effectively recommending personnel decisions and have no authority to discipline employees. R.R. at passim. For example, Adult Probation Supervisor testified he assumed his position in 1999 and has never been involved in the discipline of probation officers within his department. Id. at 90a. Adult Probation Supervisor identified one instance where he discussed a probation officer's work performance with his director. Id. Nothing came of the discussion. Id. Probation Supervisor was not involved in ...


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