Albert Einstein Medical Center v. Pennsylvania Labor Relations Board

Opinion by

Judge Blatt,

This appeal follows an order of the Court of Common Pleas of Philadelphia County, entered October 15, 1973, dismissing the appeal by Albert Einstein Medical Center, Northern Division (Einstein) from the final order of the Pennsylvania Labor Relations Board (PLRB) dated October 11, 1972.

On September 28, 1971, the Professional Pharmacists Guild of Delaware Valley (Guild), the intervenors herein, filed a representation petition with the PLRB seeking certification as the exclusive bargaining representative *94of full and part-time pharmacists at Einstein. On June 12, 1972 after a hearing, the PLRB ordered an election to be held among all pharmacists at Einstein. At the election, held on June 23, 1972, a majority of those allegedly eligible voted, six to five, for representation by the Guild. Einstein, however, filed exceptions, alleging that a group of pharmacists, including part-time and supervisory employes within that group, constituted an inappropriate bargaining unit. Another hearing was held and, on September 14, 1972, the Board followed with a Nisi Order of Certification, made final by order of October 11, 1972, dismissing Einstein’s exceptions and thereby certifying the Guild as the exclusive bargaining representative of both full and part-time pharmacists.

Pursuant to the Public Employes Relations Act (Act 195) ,1 Einstein then appealed the PLRB’s final order to the Court of Common Pleas of Philadelphia County, which sustained the PLRB order. This appeal followed.

We scheduled argument for October 8, 1974 and on October 2, 1974 the Guild, as intervening appellee, moved to quash the appeal asserting that we now lack jurisdiction of this matter as a result of recent amendments to the federal Labor-Management Relations Act, 29 U.S.C. §141, et seq., signed into law July 26, 1974, and effective August 26, 1974.2 These amendments brought non-profit *95hospitals, such as Einstein, within the coverage of the federal Act. Argument was held as scheduled on both the merits of the appeal and on the motion to quash.

Were it not for the amendments to the National Labor Relations Act, this Court would clearly have jurisdiction of the instant appeal pursuant to Section 402(3) of the Appellant Court Jurisdiction Act of 1970, Act of July 31,1970, P.L. 673, 17 P.S. §211.402(3) (Supp. 1974-1975). The Guild, however, argues that because nonprofit hospitals shall now be covered by the .National Labor Relations Act, this Court has been divested of jurisdiction pursuant to the National Labor Relations Board preemption doctrine established in Guss v. Utah Labor Relations Board, 353 U.S. 1 (1957) and again in San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959).

Upon promulgation of the National Labor Relations Act amendments concerned in this case, the General Counsel of the National Labor Relations Board envisioned some of the transitional problems likely to occur, and, in reference to possible unfair labor practices, he stated:

“Other cases may arise, posing factual situations where conduct occurring at previously uncovered institutions before the effective date of the legislation conflicts with established principles under the Act. One example would be a contract entered into with a minority union, conduct which would have been violative of Sections 8(a) (2) and (1) and 8(b) (1) (A). Since *96such contracts with previously uncovered institutions did not violate the Act at the time of their execution (prior to the effective date of the amendments), they are probably immune from attack after the effective date of the legislation. . . .
“Charges may also be filed concerning previously uncovered institutions where proceedings covering the matter are pending before a state agency. Each such case will have to be individually evaluated to ascertain the specific facts, the stage of any on going state proceedings, and the possible prospective effect of continuation of the state proceedings.” (Footnotes omitted.)' 86 LRR 371, 389, 390 (August 26, 1974).

This Court, of course, well understands the importance of the preemption doctrine in bringing about uniform national labor policy. On the other hand, however, we have found no authority to suggest the application of the doctrine to situations in which state agencies have issued final decrees prior to the effective date of amendatory provisions of any statute, absent an express command within the amending legislation itself. A principle, fundamental to United States law since 1871, establishes that the repeal or amendment of federal statutes shall not release or extinguish any liabilities having accrued under the repealed provision. Act of February 25,1871, 16 Stat. 432, as amended by the Act of July 30, 1947, 61 Stat. 633, 1 U.S.C. §109 (Supp. 1974)i. Although in the instant case it may be said that no real liabilities have accrued, certain obligations, such as a duty to bargain, have clearly arisen out of the PLRB order designating the pharmacists as a bargaining unit. Where either judicial review of a final order has begun, or where an action to enforce accrued obligations remains undetermined) on the date when nullifying amendments to the statute under which those obligations arose became effective, then those actions shall survive the amendments and the obligations may be enforced, unless such amendments expressly pro*97vide otherwise. Cf. National Labor Relations Board v. National Garment Co., 166 F.2d 233 (8th Cir. 1948), cert. denied, 334 U.S. 845 (1948).

The Guild’s representation petition was filed in this case in September of 1971 and the order by the PLRB certifying the Guild as the bargaining representative was made final in October of 1972, nearly two years prior to the federal amendments. The PLRB’s order was sustained by the lower court at least ten months prior to the effective date of these amendments. In fact, the action was so far along in the review process prior to the effective date of the amendments which will henceforth divest the state of its jurisdiction in these cases that the National Labor Relations Board preemption clearly does not apply here.

We must, therefore, consider the appeal and review the findings of the PLRB to determine whether or not they are supported by substantial and legally credible evidence and whether or not the conclusions deduced therefrom are reasonable and not capricious, arbitrary, or illegal. Canon-McMillan School Board v. Pennsylvania Labor Relations Board, 12 Pa. Commonwealth Ct. 323, 316 A.2d 114 (1974).

Einstein first asserted that the unit, as certified by the PLRB and consisting solely of pharmacists, will lead to the prohibited condition of an over-fragmentization of units. Section 604 of Act 195, 43 P.S. §1101.604 (Supp. 1974-1975), establishes that:

“In determining the appropriateness of the unit, the board shall:
“(1) Take into consideration but shall not be limited to the following: (i) public employees must have an identifiable community of interest, and (ii) the effects of over-fragmentization.”

These seemingly disparate considerations are reconciled by reference to what we believe is the intended objective of Act 195, that is, maintaining “peace in the relationship between public employers and their employees *98and the reduction in the number and duration of work stoppages in vital public services”. Western Psychiatric Institute and Clinic of the University of Pittsburgh of the Commonwealth System of Higher Education v. Pennsylvania Labor Relations Board, 16 Pa. Commonwealth Ct. 204, 330 A.2d 257 (1974).

Obviously the PLRB is placed in the unenviable position of delineating a group sufficiently narrow to ensure that the members have a community of interest but not so narrow as to constitute over-fragmentization. Its experience, of course, should enable it to weight the factors involved so as to determine the appropriateness of a proposed bargaining unit, and, as we review the record, we find substantial evidence to support the PLRB finding that the creation of a small bargaining unit with duties limited essentially to dispensing drugs will not lead to over-fragmentization.

Einstein next argues that part-time employes lack the necessary community of interest to be included within a bargaining unit of full-time employes. It is well settled, however, that part-time employes may well have a community of interest strong enough in relation to the full-time employes to warrant their inclusion in the same unit. Indianapolis Glove Co. v. N.L.R.B., 400 F.2d 363 (6th Cir. 1968); N.L.R.B. v. Economy Food Center, Inc., 333 F.2d 468 (7th Cir. 1964). Once again, this is a determination which the PLRB as an experienced administrative agency is best suited to make. And thus, by statute, our scope of review is limited. The PLRB concluded, from legally credible evidence, that part-time pharmacists perform the same function as full-time pharmacists and that they receive the same rate of pay with many similar fringe benefits. Of course, part-time employes work for fewer hours and in this case are ineligible for certain benefits, but to include part and full-time employes within the same unit is reasonably justi*99fied by the facts and constitutes neither an error of law nor an abuse of discretion by the PLRB.

Lastly, Einstein argues that including Mr. Selig Gross, the “dispensing supervisor,” within the unit contravenes the statutory mandate to exclude supervisory employes from general employe units. Section 604(5) of Act 195, 43 P.S. §1101.604(5) (Supp. 1974-1975). “Supervision” is defined in that Act as:

“. . . any individual having authority in the interests of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees 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.” Section 301(6) of Act 195, 43 P.S. §1101.301 (6) (Supp. 1974-1975).

“In determining supervisory status the Board may take into consideration the extent to which supervisory and non-supervisory functions are performed.” Section 604(5) of Act 195, 43 P.S. §1101.604(5) (Supp. 1974-1975). At the hearing before the PLRB, Einstein produced the Director of the Pharmacy who testified that Mr. Gross was a first-level supervisor in fact as well as in title. Considering his testimony, however, along with the job description introduced, the Board determined that Mr. Gross had no authority to hire or fire personnel and had no authority to transfer, suspend, lay off, recall, or promote other pharmacists. Nor did Einstein produce evidence that Mr. Gross had authority to assign, reward or discipline other employes, or to adjust their grievances. The Director did testify that, prior to employe promotions and discharges, the opinions of Mr. Gross were elicited, but he did not testify as to the weight given those opinions. It appears that, although Mr. Gross held the title of supervisor, the PLRB found that his job characteris*100tics did not meet the statutory definition, and this finding was clearly based upon substantial evidence. The legal conclusion that Selig Gross was not a first-level supervisor was, therefore, not unreasonable, arbitrary, or illegal, and, therefore, he was properly included in the bargaining unit.

Accordingly, we must affirm the lower court, and the action of the Pennsylvania Labor Relations Board is hereby sustained.

Section 1502 of the Public Employe Relations Act, Act of July 23, 1970, P.L. 563 (Act No. 195), as amended, 43 P.S. §1101.-1502 (Supp. 1974-1975).

Section 2(2) of the National Labor Relations Act, 29 U.S.C. §152(2) formerly read

“The term ‘employer’ includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any corporation or association operating a hospital, if no part of the net earnings inures to the benefit of any private shareholder or individual, or any person subject to the Railway Labor Act, as amended from *95time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.” (Emphasis added.)

and was amended, inter alia, by

“striking out ‘or any corporation or association operating a hospital, if no part of the net earnings inures to the benefit of any private shareholder or individual,’.” Public Law 93-360(a) 8, U.S. Code Cong. & Admin. News, p. 2458 (1974).