“PERA’s definition is clear; the term ‘employe’ specifically excludes police officers ‘covered under [Act 111.]’”
How later courts described this case
- “PERA’s definition is clear; the term ‘employe’ specifically excludes police officers ‘covered under [Act 111.]’”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lower Swatara Township, :
Petitioner :
:
v. :
:
Pennsylvania Labor Relations Board, : No. 1276 C.D. 2018
Respondent : Argued: April 9, 2019
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge (P.)
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION BY
JUDGE COVEY FILED: May 2, 2019
Lower Swatara Township (Township) petitions this Court for review of
the Pennsylvania Labor Relations Board’s (Board) August 21, 2018 order dismissing
the Township’s exceptions and making absolute and final the Hearing Examiner’s
April 26, 2018 Order Directing Submission of Eligibility List (ODSEL) and the June
4, 2018 Nisi Order of Certification (NOC). The sole issue before this Court is
whether the Board erred by concluding that Section 604 of the Pennsylvania Public
Employe Relations Act (PERA)1 did not prohibit a union representing the Township’s
public works employees from also representing all full-time and regular part-time Act
1112 Township police officers.3 After review, we affirm.
1
Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.604.
2
Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1-217.10 is commonly referred
to as Act 111. “Act 111 gives police and fire personnel, who are not permitted to strike, the right to
bargain collectively with their public employers.” Fraternal Order of Police Fort Pitt Lodge No. 1
v. City of Pittsburgh, 203 A.3d 965, ___ n.3 (Pa. 2019), slip op. at 3 n.3. See also City of Pittsburgh
v. Fraternal Order of Police Fort Pitt Lodge No. 1, 111 A.3d 794 (Pa. Cmwlth. 2015).
3
Appellant raises three issues:
On January 30, 2018, Teamsters Local Union No. 776 (Local 776),
which is affiliated with the International Brotherhood of Teamsters (Teamsters), filed
a Petition for Representation with the Board pursuant to the Pennsylvania Labor
Relations Act4 (PLRA) and Act 111, seeking clarification of the union representation
of all full-time and regular part-time police officers the Township employed. On
February 12, 2018, the Board’s Secretary issued an Order and Notice of Hearing
(ONH).
Based on the parties’ stipulations of fact, the Township argued before
the Hearing Examiner that since the petitioned-for police officers would act as
Township security guards within the meaning of Section 604(3) of PERA,5 the
Teamsters could not represent those police officers since the Teamsters also represent
Township employees who are not security guards.
1) Whether the ‘guard exception’ to [PERA, 43 P.S. § 1101.604(3)
(Guard Exception),] applies to govern the employment
relationship between [the Township] and its public works
employees?
...
2) Whether police officers employed by [the Township] are
considered ‘guards’ under the definition of that term as defined by
[PERA]?
...
3) Whether the [Guard Exception] prohibits [the Township’s] police
officers from being represented by the same union as its public
works employees?
Township Br. at 2. These issues are subsumed in the above-stated issue which the Court will
address.
4
Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. §§ 211.1-211.13.
5
Section 604(3) of PERA prohibits the Board from permitting individuals employed as
guards (whose duties involve protecting a public employer’s property and persons thereon) to be
included in a unit with other public employees. See 43 P.S. § 1101.604(3).
2
On April 26, 2018, the Hearing Examiner issued the ODSEL, therein
holding that Act 111 police officers are not security guards under PERA and, thus,
may be represented by an employee organization that represents non-security guard
employees. Specifically, the Hearing Examiner explained:
Although the Township asserts that this case presents an
issue of first impression for the Board, (Township’s Post-
hearing Brief at 8) (stating that ‘this case poses a new, novel
and unanswered question’), the Board long ago rejected the
position advanced by the Township here. In Union
Township, 25 PPER ¶ 25198 (Final Order, 1994), the
employer filed three petitions (a unit clarification, an
amendment of certification and a decertification) requesting
that the Teamsters local be prohibited from representing the
police employes of the township as a result of its
certification to represent non-uniformed, non-professional
employes of the employer under PERA. In that case, the
employer argued that, the police officers were guards and
that[,] under Section 604(3) of PERA[,] they must be
included in a security guard[-]only bargaining unit and that
their bargaining representative must not be affiliated with
any other organization which represents or includes
members or persons outside of the security guard
classification.
Reproduced Record (R.R.) at 46a.
The Hearing Examiner reasoned:
The parties in this case agree that the police officers in the
proposed bargaining unit currently represented by the
[incumbent union, Lower Swatara Township Police Civic
Association,] are sworn police officers . . . who are entitled
to organize under Act 111, not PERA. Consequently, those
officers have a sworn duty to protect, not only the
Township’s property and persons thereon, but other
property within the Township and persons therein.
Pursuant to Union Township, the employes’ Act 111 status
as sworn officers . . . , employed by a political subdivision,
as opposed to an authority, removes them from any
application of the guard exclusion under PERA. Moreover,
under [Commonwealth v. Pennsylvania Labor Relations
Board, 441 A.2d 470 (Pa. Cmwlth. 1982), aff’d in relevant
3
part, . . . 463 A.2d 409 ([Pa.] 1983) (]Capitol Police[)], . . .
by virtue of their status as Act 111 police officers, the
officers are outside of the guard classification, and a guard
union is prohibited from representing them. Id. (holding
that the guard classification under PERA and the Act 111
status of police officers are mutually exclusive).
Furthermore, uniformed police officers could not violate
their sworn duty to protect citizens and property simply
because non–uniformed Township employes, represented
by Local 776, were picketing or striking, in the event that
Local 776 becomes the certified bargaining representative
of the officers.
Similarly, officers will not disobey orders or their sworn
duty, as peace officers, to protect persons and property
simply because Article XIX, Section 7(b)(7) [of the
collective bargaining agreement] allows sanctions against a
Teamster member for crossing a picket line authorized by
any local affiliated with the International Brotherhood of
Teamsters. The threat of discipline from the Chief and the
Township has more influence on the officers’ loyalty (for
violating their duty or their orders) than the ethereal
possibility of sanction from the International. The special
status of duty-bound and sworn Act 111 police officers,
under law, renders the guard exclusion inapplicable.
Capitol Police, [sic]; Union T[wp.], [sic]. Although the
Township maintains that ‘it is also entitled to the
protections of Section 604(3) [of PERA] by virtue of its
employment of public works employees, . . . the Township
in fact enjoys and has the loyal, premium, duty-bound
protections of its sworn police officers, who will protect
persons and property without bias, judgment or influence
from the Teamsters or any other person or organization.
R.R. at 48a (citation and footnote omitted).
On May 10, 2018, the Board received the Eligibility List and, on May
15, 2018, issued an Order and Notice of Election directing a secret ballot election on
May 24, 2018 to ascertain the exclusive representative of all the Township’s full-time
and regular part-time police officers (excluding the Police Chief and other managerial
employees). On June 4, 2018, the Board issued the NOC finding that 50% or more of
the valid votes cast designated the Teamsters as the exclusive representative for
4
collective bargaining purposes. The NOC certified the Teamsters as the exclusive
representative of all the Township’s full-time and regular part-time police officers6
for collective bargaining purposes under Act 111.
On June 25, 2018, the Township filed timely exceptions to the NOC
with the Board. The Teamsters filed a response to the exceptions on July 13, 2018.
On August 21, 2018, the Board issued its Final Order, holding that the Hearing
Examiner’s legal conclusions on the challenged issues were not erroneous. Thus, the
Board dismissed the Township’s exceptions and made the April 26, 2018 ODSEL
and the June 4, 2018 NOC absolute and final. The Township appealed to this Court.7
Initially, this Court notes that in the Township’s exceptions to the Board
and Petition for Review to this Court, the Township contended that the Board erred in
including Act 111 officers in the same unit as the Township’s non-guard employees
certified under PERA. The Board correctly points out that
the Board did not certify the Act 111 police officers in the
same unit as the public works employes certified under
PERA. The police officers are certified in their own
homogenous unit under Act 111, at PF-R-18-13-E, and the
public works employes were certified in a bargaining unit
of nonprofessional employes under PERA at Case No.
PERA-R-17-280-E.
Board Br. at 20 n.11. Curiously, the Township admits in its brief to this Court: “[I]t
is important to note that the Township did not (and does not) object to the police
officers organizing into a union, just that the union representing the police
officers should not be the same unit as the non-uniformed union.” Township Br.
6
The NOC excluded the police chief and other managerial employees.
7
“Generally, ‘when reviewing a decision of the Board, our review is limited to determining
whether there has been a violation of constitutional rights, an error of law, procedural irregularity,
or whether the findings of the agency are supported by substantial evidence.’” Dailey v. Pa. Labor
Relations Bd., 148 A.3d 920, 926 (Pa. Cmwlth. 2016) (quoting Borough of Ellwood City v. Pa.
Labor Relations Bd., 998 A.2d 589, 594 (Pa. 2010)).
5
at 4 n.6 (bold and italic emphasis added). Even more perplexing, the Township
acknowledges in its Reply Brief to this Court that the “the public works employees
are not currently in the same unit as the police officers.”8 Township Reply Br. at
14 n.13 (bold and underline emphasis added). Notwithstanding those
acknowledgements, the Township still argues that this Court should reverse the
Board’s decision. Accordingly, we review the Board’s decision.
Section 604 of PERA9 provides in relevant part:
The [B]oard shall determine the appropriateness of a unit
which shall be the public employer unit or a subdivision
thereof. In determining the appropriateness of the unit, the
[B]oard shall:
(1) Take into consideration but shall not be limited to the
following:
8
The Board further notes in its brief to this Court that the issue the Township presented in
its exceptions to the Board and in its Petition for Review with this Court differs from the issue the
Township argues in its brief to this Court - that the Teamsters may not represent both non-guard
public works employees under PERA and Act 111 police officers. Accordingly, the Board contends
that the Township waived the issue now before the Court. See Board Br. at 20 n.11. In response,
the Township states:
Pursuant to Pennsylvania Rule of Appellate Procedure 1513(a), ‘[t]he
statement of objections [is] deemed to include every subsidiary
question fairly comprised therein.’ The purpose of the ‘guard
exception’ is to prohibit the affiliation of units of guards with units of
non-guards, and its prohibition on inclusion of guards in the same unit
as non-guards is another way of stating this prohibition. Clearly, the
Township’s argument on appeal encompassed the question of whether
Local 776 could represent both police officers and public works
employes in general; if it did not, there would be no reason to appeal
because the public works employees are not currently in the same unit
as the police officers.
Township Reply Br. at 14 n.13. This Court agrees with the Township that the question of whether
the Teamsters may represent both non-guard public works employees and Act 111 police officers is
fairly comprised within the question raised in the Township’s Petition for Review.
9
The parties do not dispute that PERA governs the relationship between the Township and
its pubic works employees. Nor do the parties dispute that “employees covered by [Act 111] are
not in any respect covered by [PERA.]” Phila. Fire Officers Ass’n v. Pa. Labor Relations Bd., 369
A.2d 259, 262 (Pa. 1977).
6
(i) public employes must have an identifiable community
of interest, and
(ii) the effects of over-fragmentization.
(2) Not decide that any unit is appropriate if such unit
includes both professional and nonprofessional employes,
unless a majority of such professional employes vote for
inclusion in such unit.
(3) Not permit guards at prisons and mental hospitals,
employes directly involved with and necessary to the
functioning of the courts of this Commonwealth, or any
individual employed as a guard to enforce against
employes and other persons, rules to protect property of
the employer or to protect the safety of persons on the
employer’s premises to be included in any unit with other
public employes, each may form separate homogenous
employe organizations with the proviso that organizations
of the latter designated employe group may not be
affiliated with any other organization representing or
including as members, persons outside of the
organization’s classification.
43 P.S. § 1101.604 (bold and italic emphasis added). This Court has explained:
The purpose of the requirement [in Section 604 of PERA]
that guards be separated from other employees in collective
bargaining is to ensure that during strikes or labor unrest,
‘the employer would have ‘guards’ who could enforce rules
for the protection of property and safety of persons without
being confronted with a division of loyalty between the
employer and dissatisfied fellow union members.’
Washington Cty. v. Pa. Labor Relations Bd., 613 A.2d 670, 673 (Pa. Cmwlth. 1992)
(quoting Twp. of Falls v. Pa. Labor Relations Bd., 322 A.2d 412, 414 (Pa. Cmwlth.
1974)). At issue in the instant matter is the General Assembly’s intent when it
referenced “any individual employed as a guard” in Section 604 of PERA, and
whether Act 111 police officers are included therein.
The Township argues that “[b]ecause PERA governs the relationship
between the Township and its public works employees, the Township is entitled to
7
the protections of the ‘guard exception’[10] to PERA.” Township Br. at 13.
Specifically, with respect to the meaning and interpretation of Section 604 of PERA,
the Township asserts:
The ‘guards’ themselves need not be ‘public employes’ as
defined by PERA. Indeed, the statute’s reference to a mere
‘individual employed as a guard’ read in conjunction and
juxtaposed with its reference to ‘other public employes’
indicates the intent of the General Assembly to apply this
Section in the presence to a public-employer, public-
employee relationship, regardless of whether the ‘guards’
are considered ‘public employes’ under PERA. 43 P.S. §
1101.604(3) (emphas[i]s added). The General Assembly
refers to the ‘individual[s] employed as guard[s]’ as ‘public
employes’ but specifically characterizes the individuals to
whom the statute is meant to protect as ‘public employes.’
Id. In short, it is not the ‘guard’ that must be the public
employe and covered by the statute; it is the ‘other public
employes’ that are the subject of this Section. See id.; see
also 1 Pa.C.S.[] § 1903(b) (‘General words shall be
construed to take their meanings and be restricted by
preceding particular words.’).
Thus, under the ‘guard exception,’ the Board is prohibited
from allowing the possibility that ‘guards,’ however
defined, may be included in the same bargaining unit with
the Township’s public works employees. The fact that the
Township’s police officers are not ‘public employes’ to
whom this Section applies within the meaning of PERA is
immaterial.
Township Br. at 14 (bold, italic and underline emphasis in original).
The Township acknowledges that Pennsylvania courts and the Board
have previously “refuse[d] to classify police officer employees as ‘guards’ under the
‘guard exception’ to PERA[,]” but attributes such to “the fact that police officers,
10
The Township refers to Section 604(3) of PERA’s prohibition against “any individual
employed as a guard . . . enforc[ing] against employes and other persons, rules to protect property of
the employer or to protect the safety of persons on the employer’s premises . . . [from] be[ing]
included in any unit with other public employes,” 43 P.S. § 1101.604(3), as the “guard exception.”
8
who are covered by Act 111, are also not covered by PERA because Act 111 and
PERA are not to be read in pari materia.” Township Br. at 15; see, e.g., Chirico v.
Bd. of Supervisors, 470 A.2d 470 (Pa. 1983) (the only method for settling grievance
disputes allowable within the framework of Act 111 is arbitration, and PERA may not
fill the vacuum); Capitol Police (holding that Capitol Police Officers are police
officers within the meaning of Act 111, rather than guards subject to PERA); Phila.
Fire Officers v. Pa. Labor Relations Bd., 369 A.2d 259, 262-63 (Pa. 1977) (holding
that “employees covered by Act No. 111 are not in any respect covered by . . .
PERA[,]” but the Board “has jurisdiction under the [PLRA] to conduct a
representation election in a unit comprised of firemen and policemen whose
collective bargaining with their public employers is governed by Act No. 111.”);
Union Township. The Township admits that “[c]ourts have continuously rejected
the argument that Act 111 should be read in pari materia with PERA to allow
police officers to be covered by both of the statutes - i.e., to be both a ‘police
officer’ and a ‘guard’ at the same time.” Township Br. at 16 (emphasis added).
Further, “the Township does not dispute that . . . its police officer employees are
covered by Act 111; . . . Act 111 and PERA are not to be read in pari materia; [and]
that . . . its police officers are not covered by both Act 111 and PERA.” Township
Br. at 16 (footnote omitted). Notwithstanding, the Township asserts that in the
instant matter, this Court should find that the police officers are “guards” under
PERA because such a finding “does not mean that the police officers are covered by
PERA, and therefore does not require the Court to read PERA and Act 111 in pari
materia.”11 Township Br. at 16 (emphasis in original).
11
The Township’s argument that a holding that Section 604(3) of PERA’s reference to
“individual[s] employed as [] guard[s]” includes police officers “does not mean that [they] are
covered by PERA,” Township Br. at 16, ignores the reality that such a ruling would permit PERA’s
provisions to intrude upon and impair the police officers’ Act 111 “right to bargain collectively with
their public employers.” FOP Fort Pitt Lodge No. 1, 203 A.3d at ___ n.3, slip op. at 3 n.3.
9
The Board responds that it previously addressed this issue in its Union
Township decision. Therein, the Board explained:
[T]he [t]ownship cites Section 604(3) of PERA which
provides that security guard organizations under PERA ‘ . .
. may not be affiliated with any other organization
representing or including as members, persons outside of
the organization’s classification.’ 43 P.S. § 1101.604(3).
The [t]ownship argues that since the police employes may
or have been called upon to enforce rules to protect the
[t]ownship’s premises against striking [t]ownship employes,
that Section 604(3) [of PERA’s] prohibition against the
same labor organization representing both groups of
employes applies.
The [t]ownship’s exceptions are without merit. . . . [T]he
[t]ownship’s argument ignores the fact that the police
employes certified under Act 111 are in no way governed
by the provisions of PERA. Section 301(2) of PERA
specifically excludes employes covered by Act 111 from its
definition of ‘public employe.’ The [t]ownship’s contention
that Act 111 and PERA are to be read in pari materia is
erroneous and has been specifically rejected by the
Pennsylvania Supreme Court in Philadelphia Fire Officers .
. . . See also [Capitol Police]. In Philadelphia Fire
Officers, the Pennsylvania Supreme Court stated that
‘employes covered by Act No. 111 are not in any respect
covered by PERA . . .’ . . . 369 A.2d at 262. Accordingly,
the [t]ownship’s attempt to deny the [u]nion’s right to
represent both the police employes and the nonprofessional
employes of the [t]ownship at the same time based upon the
police employes status as security guards under PERA must
fail.
This result is further buttressed by the Commonwealth
Court’s decision in Capitol Police. Capitol Police involved
an attempt by the Fraternal Order of Police [(FOP)] to
represent under Act 111 a unit of capitol policemen who
had previously been certified in a separate security guard
unit under PERA and were represented by the United Plant
Guard Workers of America (UPGWA), an exclusive
security guard employe organization. In its analysis of
whether the employes were police under Act 111 or security
guards under PERA, the Commonwealth Court noted that in
10
the event the employes were covered by Act 111, the
UPGWA would be legally prohibited from representing
them because police employes under Act 111 would be
persons outside of the security guard classification under
Section 604(3) of PERA. Capitol Police, . . . 441 A.2d at
476. The Commonwealth Court recognized that the
security guard classification under PERA and police status
under Act 111 were mutually exclusive. So too here,
because the employes are admittedly covered by Act 111,
they are outside the security guard classification under
PERA and Section 604(3) of PERA can in no way prohibit
the [u]nion from representing both the police employes
under Act 111 and the nonprofessional employes under
PERA. The legislature could have easily provided for the
prohibition argued by the [t]ownship in enacting PERA in
1970, but instead made it clear that police employes were in
no way covered by the provisions of PERA.
Union Twp., 25 PPER ¶ 25198 at 511.
Again in 1995, the Board held that police officers are outside the
security guard classification. In Temple University, 26 PPER ¶ 26161 (1995), the
Board affirmed a hearing examiner’s dismissal of a union’s petition to represent a
unit of Temple University security guards because the union was affiliated with the
FOP and, accordingly, was prohibited from representing a unit of security guards
pursuant to Section 604(3) of PERA. The Board explained:
The hearing examiner was also correct in concluding that
employes covered by Act 111 are ‘persons’ outside of the
security guard classification so that organizations that
represent police officers under Act 111 cannot
simultaneously represent security guards under PERA.
[The union] confuses the fact that the FOP is a police
organization and the employes petitioned for in this case are
arguably police with compliance with the statutory proviso
that requires that security guard organizations not represent
or include as members persons outside of that classification.
Under Section 604(3) of PERA, the organization, in order
to represent security guards must be [a] homogeneous
organization consisting of security guards that is not
affiliated with any other organization that represents or
includes as members anyone other than security guards.
11
The FOP, which represents police officers under Act 111, is
an organization which represents persons outside of the
security guard classification and is accordingly prohibited
under Section 604(3) of PERA from representing a unit of
security guards.
Temple Univ., 26 PPER ¶ 26161 at 371-72; see also Phila. Hous. Auth., 10 PPER ¶
10289 (1979). The relevant statutory provisions and the cited case law supports the
Board’s position.
Importantly, Section 1 of Act 111 permits police officers to collectively
bargain “through labor organizations or other representatives designated by fifty
percent or more of such policemen[.]” 43 P.S. § 217.1 (emphasis added). The
Township, in effect, seeks to have this Court rewrite Act 111 to prohibit police
officers from designating bargaining representatives that conflict with the Township’s
interpretation of Section 604(3) of PERA. This, the Court may not do.12 Rather, this
Court concludes that the Board’s interpretation properly respects police officers’ Act
111 rights to collectively bargain without PERA’s intrusion therein and honors stare
decisis that PERA and Act 111 are not to be read in pari materia. Accordingly, this
Court finds the Township’s argument without merit.
The Board acknowledges the Township’s concerns about police officers’
possible conflicted loyalties while performing guard duties during a labor dispute, but
asserts that such concerns have been “subsumed within the statutory requirements,
and Board certification, of separate homogenous bargaining units of police officers
under Act 111.” Board Br. at 18.13
12
“The Court may not rewrite a statute[.]” Bender v. Pa. Ins. Dep’t, 893 A.2d 161, 164 (Pa.
Cmwlth. 2006). “It is not within the jurisdiction of this Court to rule on the wisdom of legislative
enactments. The judiciary may not sit as a super legislature to judge the wisdom or desirability of
legislative policy determinations made in areas that neither affect fundamental rights nor proceeds
along suspect lines.” Mercurio v. Allegheny Cty. Redev. Auth., 839 A.2d 1196, 1203 (Pa. Cmwlth.
2003) (citations and quotation marks omitted).
13
The Board references Philadelphia Housing, wherein the Board reasoned:
12
This Court has explained:
The law is well established that ‘the Board’s interpretation
of its governing statute is to be given controlling weight
unless clearly erroneous.’ City of Erie v. Pa. Labor
Relations Bd., . . . 32 A.3d 625, 631 ([Pa.] 2011). ‘This
[C]ourt will not lightly substitute its judgment for that of the
[Board]; the [Board] possesses administrative expertise in
the area of public employee labor relations and should be
shown deference.’ Phila. Corr. Officers Ass’n v. Pa. Labor
Relations Bd., 667 A.2d 459, 461 n.2 (Pa. Cmwlth. 1995).
Section 604(3) of . . . PERA requires that employes who are
employed as guards for the purpose of enforcing rules to protect the
property of their employer or to protect the safety of persons on the
employer’s premises must be included in a separate homogeneous
bargaining unit with the proviso that the employe organization which
represents such ‘guards’ may not be affiliated with any other
organization representing or including as members persons who are
not ‘guards.’ The FOP has been certified by this Board on many
occasions as a bargaining representative for ‘persons outside’ the
guard classification. We believe that the mandate of Section 604(3)
of PERA serves to prohibit labor organizations such as the FOP from
representing both guards and nonguards. Insofar as the FOP does
represent policemen throughout this state, it is prohibited from
representing ‘guards’ and accordingly this [p]etition must be
dismissed.
In reaching this result, we are mindful that the [FOP] has traditionally
represented only police and that policemen are, inter alia, involved in
protecting their employer’s property and the safety of persons on their
employer’s premises. To that extent, it might be argued that there
does not exist sufficient distinction between a guard and a policeman
to require dismissal of this [p]etition. However, the separate
legislative coverage of police and guard employes and separate
dispute resolution procedures available to them requires guards and
policemen to be placed in separate units for bargaining. The fact that
guards and policemen would bargain in separate units, would, of
itself, engender the potential conflict of interest addressed by the
proviso in PERA.
Phila. Hous. Auth., 10 PPER ¶ 10289 at 434.
13
Kaolin Workers Union v. Pa. Labor Relations Bd., 140 A.3d 748, 753 (Pa. Cmwlth.
2016). Based on the aforementioned analysis, this Court discerns no error in the
Board’s interpretation of Section 604(3) of PERA and, because it is not clearly
erroneous, it is entitled to controlling weight.
Further, even without the Board’s Union Township decision, this Court
would reach the same result. The law is well-established that “in the absence of a
demonstrated constitutional infirmity, courts generally must apply plain terms of
statutes as written; they are to confine efforts to effectuate legislative intent – above
and beyond the prescriptions of written laws – to ambiguous provisions[.]” Herd
Chiropractic Clinic, P.C. v. State Farm Mut. Auto. Ins. Co., 64 A.3d 1058, 1067 (Pa.
2013) (emphasis added). “The legislature may create its own dictionary, and its
definitions may be different from ordinary usage. When it does define the words
used in a statute, the courts need not refer to the technical meaning and deviation of
those words as given in dictionaries, but must accept the statutory definitions.”
Commonwealth v. Massini, 188 A.2d 816, 817 (Pa. Super. 1963) (emphasis added).
In interpreting Section 604(3) of PERA, this Court must consider the
meaning of the terms used therein. Section 301(2) of PERA defines “public
employe” or “employe” as
any individual employed by a public employer but shall not
include elected officials, appointees of the Governor with
the advice and consent of the Senate as required by law,
management level employes, confidential employes,
clergymen or other persons in a religious profession,
employes or personnel at church offices or facilities when
utilized primarily for religious purposes and those
employes covered under [Act 111].
43 P.S. § 1101.301(2) (emphasis added).
Although PERA defines the term “employe,” it does not define the word
“other” as used in Section 604(3). Section 1903(a) of the Statutory Construction Act
14
of 1972 provides that when words in a statute are undefined, they must be accorded
“their common and approved usage[.]” 1 Pa.C.S. § 1903(a). “Where a court needs to
define an undefined term, it may consult definitions in statutes, regulations or the
dictionary for guidance, although such definitions are not controlling.” Adams
Outdoor Advert., LP v. Zoning Hearing Bd. of Smithfield Twp., 909 A.2d 469,
483 (Pa. Cmwlth. 2006). Merriam Webster’s Collegiate Dictionary 878 (11th ed.
2004) defines “other,” in pertinent part, as “being the one or ones distinct from that or
those first mentioned or implied.” Thus, Section 604 of PERA’s language prohibiting
“any individual employed as a guard to . . . be included in any unit with other public
employes,” distinguishes those “other public employes” from the public employees
first mentioned – the individuals employed as guards. 43 P.S. § 1101.604(3) (bold
and underline emphasis added). The General Assembly’s use of the language “other
employes” to differentiate guards from other public employees, contemplates that
the guards referenced therein and to which the section applies are also public
“employes” as defined in PERA. Id. (bold and italic emphasis added). PERA’s
definition is clear; the term “employe” specifically excludes police officers “covered
under [Act 111.]” 43 P.S. § 1101.301(2). Thus, the General Assembly’s reference
in Section 604 of PERA to “individuals employed as guards” was intended to
apply only to individuals who are “employes” as defined in Section 301(2) of
PERA, and not to Act 111’s police officers.
The Township emphasizes that the Hearing Examiner recognized that, in
the event of a strike or labor unrest, the Township would use its police to protect
Township property, and urges that permitting the same Township’s police officers to
be represented by the Teamsters would thwart the legislative purpose behind the
guard exception. Regardless, our Supreme Court has held that PERA and Act 111 are
not to be read in pari materia, and Section 604(3) of PERA is unambiguous. This
Court must “apply plain terms of statutes as written . . . [and] confine [its] efforts to
15
effectuate legislative intent – above and beyond the prescriptions of written laws – to
ambiguous provisions.” Herd Chiropractic Clinic, 64 A.3d at 1067.
For all of the above reasons, the Board’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
Judge Fizzano Cannon did not participate in the decision in this case.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lower Swatara Township, :
Petitioner :
:
v. :
:
Pennsylvania Labor Relations Board, : No. 1276 C.D. 2018
Respondent :
ORDER
AND NOW, this 2nd day of May, 2019, the Pennsylvania Labor
Relations Board’s August 21, 2018 order is affirmed.
___________________________
ANNE E. COVEY, Judge