56 Pa. Commw. 572 | Pa. Commw. Ct. | 1981
Lead Opinion
Opinion by
Directed to this Court’s original jurisdiction under Section 761(a)(1) of the Judicial Code,
In March 1977 the union, acting as bargaining representative for the non-professional court employees, including the clerks of the district justices, entered into an agreement or “Memorandum of Understanding” with the commissioners of Bucks County and the judges of the Court of Common Pleas.
Article XVIII of the agreement sets forth a three step procedure for the resolution of grievances or disputes between the parties concerning the meaning and application of the agreement. “Step One” provides for a grievance to be first submitted to the employee’s department head. If the grievance is not thereby resolved, it may be appealed to “Step Two,” the Court Administrator. If the grievance is not resolved at that stage, an appeal may be taken to “Step Three,” the President Judge.
Under Article XVII of the agreement no employee may be demoted, suspended, discharged or disciplined without just cause. It is also provided that an employee may appeal any such action by beginning at “Step Two” of the grievance procedure set forth in Article XVIII. Article XVII also provides that it shall not apply to the extent that it is in conflict with constitutional provisions, statutes, regulations or judicial decisions regarding the operation of the judiciary.
In August 1979 Margaret Minnichbach, a clerk of a district justice, was discharged from her employment. Pursuant to Article XVII, she appealed the discharge by commencing at “Step Two” of the grievance procedure set forth in Article XVIII. Apparently an accord was reached between the Court Administrator and the union, and as a result the employee was to be reinstated. However, the district justice appealed the matter to the President Judge pursuant to “Step Three” of the Article XVIII procedure. On October 1, 1979, two Common Pleas judges acting as désignees of the President Judge upheld the discharge.
In the wake of the “Step Three” decision upholding the discharge, the union filed with the Board unfair labor practice charges against the county commissioners and the Court of Common Pleas, alleging violation of Sections 1201 (a)(1) and (5) of the Public Employe Relations Act (PERA).
Specifically, the union contended that the commissioners and the judges had failed to bargain in good
On November 8, 1979, the Board acted on the union’s charges by issuing a Complaint and Notice of Hearing, pursuant to Section 1302 of PERA.
The union filed preliminary objections challenging the subject matter jurisdiction of this Court. Preliminary objections were also filed by the Board, asserting that (1) the petitioner is precluded from relief by principles of res judicata; (2) the petitioner’s complaint fails to state a cause of action; (3) this Court lacks subject matter jurisdiction; and (4) necessary parties have not been joined.
The theory of the petitioner’s action is that the discharge of a court employee is a matter within the
In December 1979 this Court, per Judge Craig, heard the request for a preliminary injunction, on a record of stipulated facts. On January 14, 1980, Judge Craig issued a preliminary injunction restraining the Board and the union from further proceedings until this Court decided the underlying issues on the merits. On March 7, 1980, the Court issued an order directing that the petitioner’s motion for summary relief, and the respondents’ preliminary objections, be heard at the same time on the merits. To that end, this Court, sitting en banc, heard argument in June 1980.
Following the 1976 amendment of The County Code,
Decided the same day as the Ellenbogen case was Commonweatlh ex rel. Bradley v. Pennsylvania Labor Relations Board, 479 Pa. 440, 388 A.2d 736 (1978). In Bradley the Supreme Court was squarely confronted with the issue of whether PERA could, consistent with the Pennsylvania Constitution, be applied to the courts and court employees. The Bradley case involved the court reporters in the Philadelphia court system. The Supreme Court held that the Philadelphia judges are “public employers” of the reporters, and that as “Public employees” the reporters were entitled to the rights of organizing and bargaining created by Section 401 of PERA.
The Bradley opinion states that the Court upheld the constitutionality of PERA in Ellenbogen “principally because judges retain the right to hire, discharge, and supervise court personnel.”
[S]o long as judges retain authority to select, discharge, and supervise court personnel, the independence of the judiciary remains unim*580 paired. These crucial areas of judicial authority are not infringed by collective bargaining, which here will resolve matters involving wages and other financial terms of employment. (Emphasis added.)
Id. at 447, 388 A.2d 739.
The doctrine of separation of powers is embodied in Article V, Section 1, of the Pennsylvania Constitution. That doctrine recognizes that the functions of the several parts of government are thoroughly separated and distinctly assigned to the separate branches of it, the legislature, the executive and the judiciary, which within their respective departments are equal and coordinate. DeChastellux v. Fairchild, 15 Pa. 18, 20 (1850).
The courts of this Commonwealth under our Constitution have certain inherent rights and powers to do all such things as are reasonably necessary for the administration of justice. Sweet v. Pennsylvania Labor Relations Board, 457 Pa. 456, 322 A.2d 362 (1974); Leahey v. Farrell, 362 Pa. 52, 66 A.2d 577 (1949). The power to appoint necessary attendants upon the court is inherent in the court to enable it to perform properly the duties delegated to it by the Constitution; and it cannot be doubted that judicial power includes authority to select persons whose services may be required in judicial proceedings or who may be required to act as the assistants of the judges in the performance of their judicial functions. Sweet, supra, at 462-63, 322 A.2d at 365.
Based on the principles we have set forth, we must conclude that the discharge of a judicial employee is a judicial power vested by our Constitution in the courts. That power may not, consistent with the constitutional doctrine of separation of powers, be policed, encroached upon, or diminished by another branch of government. PERA grants to judicial employees the right to organize and to bargain collectively with county commissioners, or other management representatives of the courts, concerning the financial terms of employment. That much our Supreme Court has decided. However, PERA cannot constitutionally be interpreted as immunizing such employees from the inherent judicial power of discharge.
Although county commissioners may act for judges in collective bargaining proceedings over financial mat
As a general proposition, any public employee in Pennsylvania is subject to summary dismissal unless by valid legislative action or by contract greater employment rights are created. Scott v. Philadelphia Parking Authority, 402 Pa. 151, 166 A.2d 278 (1960); Pagano v. Pennsylvania State Horse Racing Commission, 50 Pa. Commonwealth Ct. 499, 413 A.2d 44 (1980); Tomasetti v. Bowers, 47 Pa. Commonwealth Ct. 355, 408 A.2d 192 (1979); Amesbury v. Luzerne County Institution District, 27 Pa. Commonwealth Ct. 418, 366 A.2d 631 (1976). That proposition applies to public employees of the courts, except that the extent of permissible legislative action is restricted by the constitutional doctrine of separation of powers. Thé legislature may not consistent with that doctrine make the discharge of a judicial employee the subject of a proceeding and decision by an administrative agency of another branch of government.
It would seem that a court of common pleas could in the exercise of its constitutional power provide for a grievance or hearing procedure prior to the discharge of a judicial employee. Such a procedure could be created by the court’s own initiative or be the result of an agreement with a representative of the employees.
In the case at bar, Article XVII of an agreement between the union and the commissioners and judges sets forth provisions concerning the discharge of employees covered by the agreement. That Article provides that an employee may not be discharged without “just cause” and is entitled to pursue a certain appeal procedure in the event of discharge. However that same Article XVII contains an express caveat that the provisions of the Article shall not apply “insofar as they are in conflict with applicable constitutional provisions, statutes, regulations or judicial decisions regarding the operation of the Judiciary.” (Emphasis added.)
It would seem that no such express caveat was necessary, at least so far as constitutional considerations are concerned. But, in any event, the agreement makes it clear to the parties that Article XVII cannot confer rights on an employee that offend constitutional principles. Although the agreement was executed in March 1977 and pre-dated the decisions of the Pennsylvania Supreme Court in Ellenbogen and Bradley, the principles of those cases became incorporated into Article XVII of the agreement as a restriction on its effect. Those limiting principles became incorporated not only by the express terms of the Article itself, but also
The matter in controversy between the petitioner and the union, and referred to the Board, is the judicial discharge of a judicial employee. That is the reality of the matter despite efforts by the union to color it an “unfair labor practice.” Therefore, for an agency of a non-judicial branch of government to exercise power over the matter would amount to an urn constitutional encroachment on a province of the judiciary.
We must reject the respondent’s contention that the constitutional issue of this case must be first submitted to the Board as the exclusive tribunal of primary resort. For, it has been held that Pennsylvania courts may enjoin an administrative agency from exercising powers forbidden to it by the Constitution. Bell Telephone Co. of Pennsylvania v. Driscoll, 343 Pa. 109, 21 A.2d 912 (1941); Western Pennsylvania Hospital v. Lichliter, 340 Pa. 382, 17 A.2d 206 (1941); Beth Jacob Schools of Philadelphia v. Pennsylvania Labor Relations Board, 8 Pa. Commonwealth Ct. 343, 301 A.2d 715 (1973).
In view of our determination that it would be unconstitutional for the Board to exercise jurisdiction over the employee discharge underlying this litigation, it would be incongruous to conclude that the constitutional question itself should be passed on by the Board in the first instance. The power of courts to decide all constitutional questions is traditional and inherent. Stander v. Kelley, 433 Pa. 406, 414, 250 A.2d 474, 478 (1969). Companion to our exercise of that power in this case, and for the reasons set forth in this opin
Ordkr
And Now, the 11th day of February, 1981, the preliminary objections of the respondents in the above matter are overruled. Further, petitioner’s motion for summary relief is granted and the respondents are permanently enjoined from conducting further proceedings before the Pennsylvania Labor Relations Board in the matter designated as case no PERA-C-13299-E.
42 Pa. C. S. §761(a)(l).
The petitioner also seeks to enjoin the union from proceeding with the matter.
Act of July 23, 1970, P.L. 563, .as amended, 43 P.S. §1101.1201(a)(1), (5).
43 P.S. §1101.1302.
Section 1 of the Act of June 29, 1976, P.L. 460, amending Section 1620 of the Act of August 9, 1955, P.L. 323, 16 P.S. §1620.
43 P.S. §1101.401.
Note 3.
In DeChastellux the Pennsylvania Supreme Court stated: ”[i]t has become the duty of the court to temporize no longer, but to resist, temperately, though firmly, any invasion of its province, whether great or small.” 15 Pa. at 21. This quotation was repeated in Commonwealth v. Sutley, 474 Pa. 256, 263, 378 A.2d 780, 783 n. 5 (1977). It was also repeated in significant part in In Re 42 Pa. C. S. § 1703, 482 Pa. 522, 533, 394 A.2d 444, 450 (1978).
That is not to say that an employee can be discharged for exercising a right conferred by statute or constitutionally protected without raising due process considerations. See Bishop v. Wood, 426 U.S. 341 (1976); Board of Regents v. Roth, 408 U.S. 564 (1972).
Dissenting Opinion
Dissknting Opinión by
Where the judges of a court have chosen to exercise their judicial responsibility for hiring, supervising and firing court personnel by executing a collective bargaining agreement within the framework of the Public Employe Relations Act (PERA),
The judiciary is not independent of the law, including the PERA. The central holding of the Pennsylvania Supreme Court in Commonwealth ex rel. Bradley v. Pennsylvania Labor Relations Board, 479 Pa. 440, 388 A.2d 736 (1978) was that the PERA constitutionally confers upon direct court employees the right to bargain collectively, through union representa
Certainly the courts can exercise that authority by contract, as in this case, agreeing to discharge employees only for cause, subject to grievance procedures. Judicial independence does not mean that judges are restricted only to firing employees at their pleasure, nor that judges are restricted to granting tenure and grievance rights reviewable only by themselves. If we hold that the voluntary commitment of the Bucks County Court of Common Pleas is ineffectual in any respect, we are limiting judicial discretion. Why should not the court, like other public institutions, be empowered to engage in collective bargaining within the entire framework of PERA?
If the courts can choose to bargain collectively, their collective bargaining is complete only if it has the remedies provided by the law of labor relations, including Pennsylvania Labor Relations Board review of grievance decisions. When the Supreme Court expressly confirmed that court employees enjoy the rights set forth in Section 401 of PERA, 43 P.S. §1101.401, because the judiciary is a ’’public employer,” those employees were vested with protection against unfair labor practices by a “[pjublic employer^]” under Section 1201, 43 P.S. §1101.1201, including the claims of violation of Section 1201(a)(1) and (5) raised here. PERA Sections 1301-1306, 43 P.S. §§1101.1301-1306, confer and define the PLRB’s exclusive power to review unfair labor practices.
Although it would be unconstitutional for the legislature to dictate that the counts must include tenure provisions in a collective bargaining agreement, it is not unconstitutionál for a court to choose to do so, as the court did here. The severability clause of the
Even if the judges in this case have the right to appeal the grievance decision made by their own court administrator, and also have the power to overturn their own administrator, that mingling of the role of employer and adjudicator is tolerable as a matter of due process only if there is a disinterested remedy short of appellate review, such as the administrative one provided by the PERA. Indeed, the situation of the judicial system as employer can be on a sound basis only if the judiciary is not required to be the sole arbiter of its own employees’ grievances.
In Bradley, supra, 26 Pa. Commonwealth Ct. 290, 364 A.2d 534, we noted that the judges of the Court of Common Pleas of Philadelphia County had disqualified themselves as parties in interest.
Here, where the agreement designates the president judge of the employer court as the arbiter of the third step in the grievance procedure, to permit operation thereafter of the PERA appeal machinery, subject as always to ultimate judicial review, will provide a constitutional, equitable and workable implementation of the collective bargaining relationship, as in the two Bradley cases above.
Act of July 23, 1970, P.L. 563. as amended, 43 P.S. §1101.101 el seq.'