ARGUED: March 5, 2019
from the Order of Commonwealth Court at No. 316 CD 2017 dated
January 12, 2018 Reversing the Order of the PA Labor
Relations Board dated February 21, 2017 at Nos.
PERA-U-16-56-E and PERA-R-93-717-E.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
granted allowance of appeal to consider whether Section 614
of Municipalities Planning Code, 53 P.S. § 10614, which
sets forth the powers of a zoning officer, provides
sufficient basis to determine, absent evidence of actual job
duties, if a zoning officer is a management-level employee
under the Public Employe Relations Act (PERA or the
Act.). Because we hold that Section 614 does
not render a zoning officer a management-level
employee, we hold that such evidence is
required, and therefore reverse the order of the Commonwealth
initial matter, we note that PERA defines "public
employe," in relevant part, as "any individual
employed by a public employer but shall not include . . .
management level employes." 43 P.S. § 1101.301(2).
It further defines "management level employe" as
"any individual who is involved directly in the
determination of policy or who responsibly directs the
implementation thereof and shall include all employes above
the first level of supervision." 43 P.S. §
1101.301(16). "First level of supervision" refers
to "the lowest level at which an employe functions as a
supervisor." 43 P.S. § 1101.301(19).
1994, the Pennsylvania Labor Relations Board (Board) issued a
certification of representation in Case No. PERA-R-93-717-E,
identifying the following bargaining unit of Exeter Township
(Township) employees represented by Teamsters Local No. 429
All full-time and regular part-time nonprofessional employes
including but not limited to highway employes, sewer plant
employes, secretarial employes, truck drivers, heavy
equipment operators, bid plant operators, mechanics,
assistant operators, collection crew, light equipment
operators, secretaries, clerk-typist, laborers, and code
enforcement personnel; and excluding management level
employes, supervisors, first level supervisors, confidential
employes and guards as defined in the Act.
March 9, 2016, the Township filed a petition for unit
clarification with the Board seeking to exclude the following
three positions from the unit of non-professional employees:
(1) building code official; (2) zoning officer/assistant code
enforcement officer (zoning officer); and (3) code
enforcement/assistant zoning officer (code enforcement
officer). Proceedings involving the Township and the Union
were held before a Board Hearing Examiner on July 7, 2016.
The only witness was Township Manager John Granger (Granger),
who began working part-time in May 2016, before assuming his
fulltime position on June 1, 2016. N.T. Hearing, 7/7/16, at
8. He testified that the position of zoning officer was not
currently filled and that the zoning officer had been
terminated in April 2016. Id. at 15. Although he
testified that the Township's job description for the
zoning officer accurately reflected the duties and
responsibilities of the position, Granger testified he had
never observed the zoning officer perform her duties.
Id. However, he noted that "the fundamental
duties of the zoning officer, which is to enforce the zoning
ordinance, are standard across the state." Id.
at 16. He also testified regarding the duties of the building
code official and code enforcement officer, both positions
which were filled. Id. at 10-14; 19-21.
October 19, 2016, the Hearing Examiner issued a Proposed
Order of Unit Clarification and Dismissal relying on
Westmoreland County v. Pa. Labor Relations Bd. 991
A.2d 976 (Pa. Cmwlth. 2010), petition for allowance of
appeal denied, 17 A.3d 1256 (Pa. 2011), which held,
"[a] party seeking to exclude a position from a
bargaining unit has the burden of proving by substantial
evidence the statutory exclusion applies. The Board reviews
actual job duties and will only consider written job
descriptions to corroborate testimony of actual duties."
(citations omitted). The Hearing Examiner concluded that due
to the lack of testimony regarding the actual duties of the
zoning officer, the Township did not meet its evidentiary
burden to remove the zoning officer from the bargaining unit.
Proposed Order, 10/19/16, at 4. However, based on the record,
the Hearing Examiner concluded that the building code
official and code enforcement officer are management level
employees. The Township filed timely exceptions
with the Board, limited to the zoning officer position. The
Township asserted that pursuant to Section 614 of the
Municipalities Planning Code, 53 P.S. § 10614
(Appointment and powers of zoning officer), the Township
Zoning Ordinance, Section 390-82(B) (Zoning Officer), and the
testimony of Granger, the zoning officer performs
management-level duties. Township's Exceptions, 11/28/16,
at ¶¶ 19, 24, 28.
Order dated February 21, 2017, the Board dismissed the
exceptions and made the Proposed Order final, stating, in
The Township, as the party seeking to exclude the Zoning
Officer position from the bargaining unit, had the burden of
proving by substantial evidence that the statutory exclusion
under Section 301(16) of PERA applies to the duties of the
Zoning Officer. Westmoreland County, supra.
However, because the Zoning Officer position was vacant at
the time of the hearing in this case, and the Township
presented no witnesses with direct knowledge of the actual
duties performed by the previous Zoning Officer, the Hearing
Examiner correctly held that the Township failed to sustain
its burden of proving that the Zoning Officer should be
excluded from the unit.
PLRB Final Order, 2/21/17, at 2. .
Township filed a petition for review in the Commonwealth
Court, which reversed in a divided, published opinion by
Judge Michael H. Wojcik. Exeter Twp. v. Pennsylvania
Labor Relations Bd., 177 A.3d 428 (Pa. Cmwlth. 2018).
The majority noted that "[t]he purpose of a procedure
under PERA is to determine whether certain job
classifications are properly included in a bargaining unit,
based upon the actual functions of the job."
Id. at 431 (quoting School District of City of
Erie v. Pennsylvania Labor Relations Bd., 832 A.2d 562,
566-67 (Pa. Cmwlth. 2003). In recognition that a management
level employee is one "who is involved directly in the
determination of policy or who responsibly directs the
implementation thereof," 43 P.S. § 1101.301(16),
the majority noted that "[a]n employee is directly
involved in the implementation of policy if he or she ensures
that the policy is fulfilled by concrete measures."
Exeter Twp., supra at 432 (quoting
Municipal Employees of Borough of Slippery Rock v.
Pennsylvania Labor Relations Bd. 14 A.3d 189 (Pa.
the Board must analyze the duties of an employee's
position to determine whether the employee is a
management-level employee." Exeter Twp.,
id. "However, where the General Assembly
designates a particular profession as a management-level
position, an examination of the actual job duties is not
necessary." Id. (citing PSSU, Local 688,
AFL-CIO v. Pennsylvania Labor Relations Bd., 740 A.2d
270, 276-77 (Pa. Cmwlth. 1999), petition for allowance of
appeal denied, 795 A.2d 983 (Pa. 2000)) (designation of
workers' compensation judges as "management level
employees" in Section 1403 of the Workers'
Compensation Act, 77 P.S. § 2503, "obviated the
need to examine the particular duties of the position as both
the Board and this Court are powerless to alter this
designation."). While noting that the General Assembly
did not ...