Beckert v. American Federation of State, County & Municipal Employees, District Council 88 , 56 Pa. Commw. 572 ( 1981 )

Dissknting Opinión by

Jgdgk Craig:

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),¹ we cannot nullify that lawful voluntary agreement on the ground of the independence of the judiciary.

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 representation of their own choice, as to their terms and conditions of employment, with the judges, who retain their authority to select, discharge and supervise court personnel.

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 contract should not be a basis for avoiding the full statutory consequences of the agreement made and signed. In Commonwealth ex rel. Bradley v. Pennsylvania Labor Relations Board, 26 Pa. Commonwealth Ct. 290, 364 A.2d 534 (1976), where the constitutional issue was not raised, we affirmed a PLRB decision that common pleas judges had erred in discharging a court employee. That case demonstrated that judicial collective bargaining under PERA, including PLRB review, is workable and reasonable.

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.

1 Act of July 23, 1970, P.L. 563. as amended, 43 P.S. §1101.101 el seq.'