# Westmoreland County v. Pennsylvania Labor Relations Board > Commonwealth Court of Pennsylvania · February 25, 2010 · 991 A.2d 976 URL: https://www.frixlaw.com/law-library/cases/9748230 ## Case - **Full name:** WESTMORELAND COUNTY, Petitioner v. PENNSYLVANIA LABOR RELATIONS BOARD, Respondent - **Court:** Commonwealth Court of Pennsylvania - **Decided:** February 25, 2010 - **Citations:** 991 A.2d 976; 188 L.R.R.M. (BNA) 2045; 2010 Pa. Commw. LEXIS 81; 2010 WL 653745 - **Precedential status:** Published - **Opinion:** Dissent by Leavitt - **Judges:** Simpson, Leavitt, Kelley - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9748230 ## Opinion text DISSENTING OPINION BY Judge LEAVITT. Respectfully, I dissent. The Pennsylvania Labor Relations Board (Board) construes “supervisor” so narrowly that virtually no person, save the President Judge of Westmoreland County, qualifies for the position. This error was then compounded *988 by the Board’s failure to consider the evidence produced by the County. Section 301(6) of the Public Employe Relations Act 1 defines “supervisor” as any individtial having authority in the interests of the employer to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline other employes 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. 43 P.S. § 1101.301(6) (emphasis added). Here, the employees with the title “supervisor” do not directly hire or fire other employees; that is done by the president judge. However, they make these types of personnel recommendations, and it is then-job responsibility to do so. The Board held, however, that their recommendations must be accepted in order to be “effective.” This is an unworkable understanding of “effective.” First, it means that no job can be a supervisory job unless, and until, the County finds it necessary to take personnel action. Only then could it be established whether the supervisor’s recommendation was followed. Second, the Board’s construction of “effective” has that adjective eclipsing the operative word “recommendation.” The Board reads “effective recommendation” to mean “making the decision,” which is not consistent with the actual words chosen by the legislature. The Board must look behind the title “supervisor” to determine whether the position is worthy of the title, and this is the significance of “effective recommendation.” Whether a supervisor makes “effective recommendations” can be determined by examination of the job duties. For example, employees may snitch on, and complain about, their co-workers; they may even be encouraged to do so by the employer. However, such “recommendations” are not “effective” but, rather, gratuitous. It is only where an employee has the duty to participate in personnel matters in a way that requires the exercise of discretion that the employee can be said to be a supervisor. A clerk whose job it is to record the work days and hours of other employees is not a supervisor because the job does not require the exercise of discretion. Here, the Board found that because the Juvenile and Adult Probation Supervisors and the Domestic Relations Establishment/Case Initiation Supervisors made recommendations that were not necessarily accepted by their superiors, they did not make “effective recommendations.” Under the Board’s narrow view of Section 301(6), an “effective recommendation” must have “controlling weight.” See, e.g., City of Bethlehem, 19 PPER P19205 (Final Order, 1988). This interpretation of “supervisor” deprives the president judge of the ability to reject the supervisor’s recommendation, an absurd result. Further, this interpretation is not consistent with this Court’s precedent. In In the Matter of the Employees of Carlynton School District, 31 Pa.Cmwlth. 631 , 377 A.2d 1033, 1035 (1977), this Court established that the fact that a supervisor reports to a higher level of management does not mean that the supervisor is not a member of management. In that case, public school principals and assistant principals wanted to be included in a collective bargaining unit that represented teachers. *989 In support, they argued that their policy decisions were “subject to rejection, change, approval, or acceptance” by their superiors. Id. This Court rejected the principals’ argument, noting that the defining characteristic of a supervisor is the duty to recommend, regardless of whether that recommendation is followed. A recommendation is not a mandate; it is simply advice. Here, the Board did not follow the principle established in Carlynton with respect to the meaning of “supervisor.” For example, Gary Miscovich, an Adult Probation Supervisor, acknowledged that it is his job responsibility to recommend disciplinary action for problem probation officers. Reproduced Record at 110a. In one instance, he recommended that a problem employee be disciplined, and in response, his superi- or, Director Andrew Urban, investigated. Ultimately, Urban decided to dismiss the problem employee. The Board found that because Misco-vich’s precise recommendation to Urban was discipline, not termination, he did not give an effective recommendation. Under the Board’s logic, Miscovich and any supervisor must provide the final word in any given personnel matter. However, as Carlynton established, management can consist of several layers of persons with supervisory responsibility. Under Carlynton, the important factor is whether the employee has the responsibility to make recommendations in personnel matters. Probation supervisors, as acknowledged by Miscovich, have this responsibility. The existence of their responsibility was confirmed by Director Urban, who testified that probation supervisors are required to report disciplinary problems, to assist in the personnel investigations and to recommend appropriate action. Moreover, the Board ignored other un-contradicted evidence that the employees in question were supervisors. For example, Director Urban testified that the probation supervisors and the domestic relations supervisors are responsible for seeing that county employees comply with the law and with the County’s policies. They oversee the accuracy of the work of probation officers and caseworkers. He further testified that supervisors assist the directors in dealing with disciplinary issues on a case-by-case basis. It was also unrebutted that supervisors handle a variety of personnel matters, such as ensuring appropriate staffing in the office to account for both anticipated and unanticipated absences; the training of new probation officers and caseworkers; and doing job performance evaluations. The Board simply ignored these additional personnel responsibilities. The Board did, as it had to, acknowledge that supervisors made recommendations in disciplinary matters, such as in the case of Miscovich. Nevertheless, the Board, without making any reference to the record, then concluded that “the employes at issue do not even recommend, let alone effectively recommend” discipline. Board’s Final Order at 9. First, this conclusion is directly contrary to the Board’s acknowledgment that supervisors do make recommendations. Second, the Board mistakenly believes that to be effective, recommendations in matters of employee discipline must be given “controlling weight.” In In the matter of: Appeal of Churchill Area School District, 30 Pa.Cmwlth. 413 , 374 A.2d 1000, 1003 (1977), this Court held that the Board conducted “an unsatisfactory factual review of this record” where it ignored testimony about employees’ job duties, and based its decision on two facts: that the employees did not make final per *990 sonnel decisions and that their recommendations were not always heeded by their superiors. The Board’s final order in this case evidences the same myopic flaw: the Board ignored ample evidence of supervisory responsibilities to focus only on the ability to have the last word in matters of discipline. For these reasons, I would vacate the Board’s order and remand the matter, directing the Board to consider all the evidence, using an appropriate understanding of “effective recommendation.” It is the responsibility to make a recommendation that is paramount, not whether the recommendation is accepted. . Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.301(6). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9748230. Public record. Not legal advice.