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Exeter Township v. Pennsylvania Labor Relations Board

Supreme Court of Pennsylvania

July 17, 2019

EXETER TOWNSHIP, Appellee
v.
PENNSYLVANIA LABOR RELATIONS BOARD, Appellant EXETER TOWNSHIP
v.
PENNSYLVANIA LABOR RELATIONS BOARD APPEAL OF: TEAMSTERS LOCAL UNION NO. 429

          ARGUED: March 5, 2019

          Appeal 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, JJ.

          OPINION

          MUNDY JUSTICE

         We 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.).[1] 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 Court.

         As an 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).

         In 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 (Union):

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.

Certification, 1/24/94.

         On 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.

         On 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.[2] 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.

         By Order dated February 21, 2017, the Board dismissed the exceptions and made the Proposed Order final, stating, in part:

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.[3] .

         The 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. Cmwlth. 2011).

         "Generally, 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. ยง 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 ...


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