Sweet v. Pennsylvania Labor Relations Board

Dissenting Opinion by

Judge Mencer:

I respectfully dissent. Prior to the Public Employe Relations Act,1 2court-related employees were, with one major exception, under the control of the judges of our courts. The judges hired, fired, supervised, directed, and were in fact and law the employers of all court-related employees. Only as an example, I would invite attention to the statutory enactments recognizing the court to be the employer of certain court-related employees.3

*368The major exception resulted when the Legislature passed the Act of July 5, 1947, P. L. 1308, which created salary boards to fix the salaries and compensation of all county employees.3 This was a traumatic departure from the previous practice under which the judges alone determined and fixed compensation for their employees, and so, understandably, the judiciary initially resisted the implementation of these sections of The County Code, with the result that Leahy v. Farrell, 362 Pa. 52, 66 A. 2d 577 (1949), was decided.

*369In Leahey it was held that the Legislature had the power to regulate by statute, within reasonable limits, the compensation of court employees, even though prior thereto the power to fix the compensation of such employees had rested inherently in the courts. It was specifically recognized that, where no statutory provision existed, judges of courts had the power to appoint personnel, at a salary fixed by the court, to be paid by the county, subject to the single limitation that such appointment be reasonably necessary.

The Leahey court rested its decision, where a statute exists fixing salaries of court employees, on the desirability and need for each branch of government to cooperate with the other two branches and therefore placed a duty on the courts to comply initially with the statutory provisions. However, a meaningful caveat was pronounced when it was stated: “Should the legislature, or the county salary board, act arbitrarily or capriciously and fail or neglect to provide a sufficient number of court employes or for the payment of adequate salaries to them, whereby the efficient administration of justice is impaired or destroyed, the court possesses the inherent power to supply the deficiency.” Id. at 58, 66 A. 2d at 580.

Therefore, even as to the matter of fixing compensation for court-related employees, the authorized action of the salary board must be reasonable and salaries adequate or the employing court has the inherent power to act.

Thus there was a settled situation as to court-related employees, with the county commissioners’ only involvement being as members of salary boards, when the Public Employe Relations Act (Act) was passed in 1970. I cannot read that Act to mean that the county commissioners are now the public employer of court-related employees, with the judges’ only connection being representation on the salary boards.

*370The very first section of the Act4 is entitled “Public Policy” and my reading of it indicates a legislative intent, not to rearrange the relationship between existing employers and employees or to substitute and create in the public sector new employers for existing ones, but rather to (1) grant public employees the right to organize and choose freely their representatives, (2) require public employers to negotiate, bargain and thereafter to enter into written agreements, and (3)establish procedures to provide for the protection of the rights of the public employee, the public employer and the public at large.

With this declaration of policy in mind, I read Section 301(1) of the Act under consideration, 43 P.S. §1101.301(1), which defines “public employer” to mean “the Commonwealth ... , its political subdivisions including school districts and any officer, board, commission, agency, authority, or other instrumentality thereof. . . .”

I agree with the majority that “political subdivision” is elsewhere statutorily defined to include county government. Section 1991, Statutory Construction Act of 1972, 1 Pa. S. §1991. Therefore, I have no problem concluding that the County of Washington is by definition a “public employer” under Section 301(1) of the Act.

However, I hasten to add that the County of Washington, acting through its salary board, meets the test of public employer for one, and only one, of the matters subject to bargaining under Section 701 of the Act.5 Section 701 requires good faith collective bargaining with respect to wages, hours and other terms and conditions of employment. Only wages fall within the province of the salary board by virtue of the rele*371vant provisions of The County Code6 and Leahey v. Farrell, supra. Therefore, 1 am drawn to the conclusion that the County of Washington, acting through its salary board, is the public employer of the court-related employees and responsible for bargaining collectively, as required by Section 701 of the Act, on the matter of wages only.

Who then meets the definitional test of public employer for collective bargaining on hours and the other terms and conditions of employment? Let us again examine Section 301(1) which defines “public employer” to mean “the Commonwealth ... , its political subdivisions including school districts and any officer, board, commission, agency, authority, or other instrumentality thereof. . . .” (Emphasis supplied.)

I read and understand this definition to mean that there are three distinct categories of public employers: First, there is the Commonwealth; second, there are political subdivisions of the Commonwealth, including school districts; and third, there is any officer, board, commission, agency, authority, or other instrumentality thereof.

Let us focus our attention on the last three words of the definition. The word “thereof,” I contend, refers to “Commonwealth.” If this be so, I have no hesitation in concluding that each judicial district is an instrumentality of the Commonwealth.7 The 27th Judicial District is a juristic entity, an integral part of the judicial branch of government of the Commonwealth of Pennsylvania, and as such is an instrumentality of *372the Commonwealth. The word “instrumentality,” with respect to a state, contemplates an authority to which the state delegates governmental power for performance of a state function. Therefore, it is the 27th Judicial District (Washington County), acting through its Board of Judges, that is the public employer of the court-related employees and responsible for bargaining collectively, as required by Section 701 of the Act, on all matters other than wages.

Not only does this meet the definition of Section 301(1), but it retains the relationship between the courts, salary boards, and court-related employees that has existed ever since Leahey v. Farrell, supra.

I refrain from commenting upon the unfortunate and foreseeable consequences that will surely flow from a determination that the county commissioners, not the judges, are the public employer of court-related employees. Suffice it to say that the obiter dieta concern expressed in the last half of the majority opinion is not imaginary but real.

I respectfully conclude that our decision today places the judiciary and the executive branch of government at the county level on a foreseeable collision course.

If I shared the opinion of the majority that the public employer here is the County of Washington, acting through its County Commissioners, then I would find the Act unconstitutional as it pertains to court-related employees because of its encroachment upon the inherent power of the judiciary to preside over its courtrooms and control court-related employees. See Article V of the Pennsylvania Constitution and Carroll v. Tate, 442 Pa. 45, 274 A. 2d 193 (1971). It must remain a basic precept of our constitutional form of government that the judiciary is an independent and coequal branch of government.

*373I would reverse the order of the Pennsylvania Labor Relations Board and remand this case for further proceedings not inconsistent herewith.

Judges Crumlish, Jr. and Kramer join in this dissent.

Act of July 23, 1970, P. L. 563, 43 P.S. §§1101.101 et seq.

The following statutory enactments of Pennsylvania are indicative of that relationship:

*368(a) The Aet of May 1, 1907, P. L. 135, §1, 17 P.S. §1801, empowers the judge to select and appoint a stenographer.

(b) The Aet of April 14, 1834, P. L. 333, §78, 17 P.S. §1861, empowers the court to appoint one or more criers, tipstaves or constables.

(c) The Act of May 10, 1909, P. D. 495, §3, 19 P.S. §1083, authorizes the court to appoint a probation officer and assistants to perform such duties as the court shall direct.

(d) The Act of July 7, 1919, P. L. 725, §1, 17 P.S. §1875, authorizes the court to employ and remove at its discretion interpreters for use in the court.

(e) The Act of July 13, 1953, P. L. 431, §4, 62 P.S. §2043.34, authorizes the appointment of domestic relations officers and assistants by the court.

(f) The Act of August 9, 1955, P. L. 323, §1965, as amended, 16 P.S. §1965, authorizes the court to appoint a law librarian.

The aforementioned statutes were not superseded, amended or repealed by the enactment of the Public Employe Relations Aet which provides, in Section 703, 43 P.S. §1101.703: “The parties to the collective bargaining process shall not effect or implement a provision in a collective bargaining agreement if the implementation of that provision would be in violation of, or inconsistent with, or in conflict with any statute or statutes enacted by the General Assembly of the Commonwealth of Pennsylvania or the provisions of municipal home rule charters.”

Like provisions were included in The County Code, Act of August 9, 1955, P. L. 323, 16 P.S. §§101 et seq., now applicable. Eor specific provisions see Sections 1620 through 1625, 16 P.S. §§1620-1625.

Section 101 of the Act, 43 P.S. §1101.101.

43 P.S. §1101.701.

Note 3 supra.

The Act of April 9, 1874, P. L. 54, and subsequent acts, culminating in the Aet of January 8, 1952, P. L. (1951) 1844, and amendments thereto (Section 1, 17 P.S. §784), designate the several judicial districts of the Commonwealth, as required by the Constitution. See Art V, §11, Sched., §27, of the Pennsylvania Constitution.