OFFICIAL OPINION No. 15

OFFICIAL OPINION No. 15 Public employer-Definition-Public Employe Relations Act of 1970. 1. The Governor and his Executive Board constitute the employer of all per- sons employed in agencies under the Governor's jurisdiction, namely the in- dependent administrative boards and commissions that make up the execu- tive branch of State Government, except the Department of the Auditor General and the Treasury Department, and excluding such special agencies as OPINIONS OF THE ATIORNEY GENERAL 29 the General State Authority, the State Public School Building Authority, the Pennsylvania Turnpike Commission, and the Higher Education Assistance Agency. 2. The possession by the Governor and the Executive Board of such very clear authority over basic conditions of employment of persons working in the executive agencies under the Governor's jurisdiction granted by the Admin- istrative Code, 71 P. S. § 51 et seq., constitute the Governor and his Execu- tive Board as the public employer. 3. It would require very clear language in the Public Employe Relations Act of 1970, 43 P. S. § 1101.301 (1) to shift such basic authority from the central executive to the individual agency heads. 4. The Public Employe Relations Act confirms the role and status of the Gov- ernor as public employer. 5. The contention that each administrative department, board and commission should be construed as a separate public employer ignores the fact that the Governor and the Executive Board are alone invested by law with the au- thority to determine basic conditions of employment and that this authority is not delegable to the individual executive agencies. It would also violate public policy against over-fragmentization due to excessive proliferation of bargaining units and the policy in favor of recognizing broad, identifiable em- ploye communities of interest. Honorable Ronald G. Lench Deputy Secretary of Administration Governor's Office Main Capitol Building Harrisburg, Pennsylvania 17120 Dear Mr. Lench: Harrisburg, Pa., March 26, 1971 In your memorandum of March 8, 1971, you request our opinion as to the definition of public employer under Section 302(1) of the Public Employe Relations Act of 1970, as this term applies to the Common- wealth. You point out that it is and has been the consistent position of the Commonwealth that the Governor and his Executive Board constitute the employer of all persons employed in agencies under the Governor's jurisdiction, namely the independent administrative boards and com- missions that make up the executive branch of the state government, 30 OPINIONS OF THE ATTORNEY GENERAL except the Department of the Auditor General and the Treasury Depart- ment, and excluding such special agencies as the General State Authority, the State Public School Building Authority, the Pennsylvania Turnpike Commission and the Higher Education Assistance Agency. However, this concept of a single Commonwealth employer has been challenged in recent years before the Pennsylvania Human Relations Commission, and representatives of various labor organizations have contended that each administrative department, board and commission should be con- strued as a separate public employer. Under the Administrative Code of 1929, as amended, Act of April 9, 1929, P. L. 177, 71 P. S. § 51 et seq., it is clear that the authority for determining basic conditions of employment of persons employed in executive agencies under the Governor's jurisdiction rests with the Governor and the Executive Board and not with the heads of individual agencies. Section 214, 71 P. S. § 74, provides that the number and compensation of all employes appointed by the executive agencies under the Governor's jurisdiction shall be subject to the approval of the Governor and, after the Executive Board shall have fixed the stan- dard compensation for any kind, grade, or class of service or employ- ment, the compensation of all persons in that kind, grade, or class, shall be fixed in accordance with such standard. Pursuant to Sections 709, 215, 216, 221, and 222, 71 P. S. §§ 249, 75-76, 81-82, the Executive Board has the authority to regulate the payment of extra compensation, the reimbursement of employes for travel expenses, the fixing of hours when state offices shall open and close, and the granting of vacations, sick leave and paid holidays. This authority of the Exceutive Board with respect to Civil Service em- ployes is specifically confirmed by Sections 707 and 708 of the Civil Service Act, the Act of August 5, 1941, P. L. 752, as amended by the Act of August 27, 1963, P. L. 1257, 71 P. S. §§ 741.707 and 708. The possession by the Governor and the Executive Board of such very clear authority over basic conditions of employment of persons em- ployed in the executive agencies under the Governor's jurisdiction, constitutes the Governor and the Executive Board, rather than the in- dividual agency heads, the public employer. It would require very clear language in the Public Employe Relations Act of 1970 to shift such basic authority from the central executive to the individual agency heads. There is no such language in the act and, on the contrary, the Governor, as public employer, would be precluded OPINIONS OF THE ATTORNEY GENERAL 31 from voluntarily delegating such authority, for collective bargaining purposes, to the heads of the individual agencies under his jurisdiction, by Section 703 of the Public Employe Relations Act, 43 P. S. § 1181.703 which provides: "The parties to the collective bargaining process shall not effect or implement a provision in a collective bargaining agreement if the implementation of that provision would be in violation of, or inconsistent with, or in conflict with any statute or statutes enacted by the General Assembly of the Commonwealth of Pennsylvania or the provisions of municipal home rule charters." Indeed, the Public Employe Relations Act confirms the role and status of the Governor as the public employer in very positive fashion. Section 604, 43 P. S. § 1101.604 provides in part: "The Board [Pennsylvania Labor Relations Board] 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 board shall: "(1) Take into consideration but shall not be limited to the following: (i) public employes must have an identifiable com- munity of interest, and (ii) the effects of overfragmentization. * * * * * * " ( 4) Take into consideration that when the Commonwealth is the employer, it will be bargaining on a Statewide basis unless issues involve working conditions peculiar to a given governmental employment locale. This section, however, shall not deemed to prohibit multi-unit-bargaining." This statutory scheme, with the Governor and the Executive Board as the public employer with respect to persons employed in executive agencies under the Governor's jurisdiction, allows the Pennsylvania Labor Relations Board full flexibility in the determination of appro- priate units for bargaining, including statewide and other units crossing agency lines in terms of identifiable employe community of interest. The contention that each administrative department, board and com- mission should be construed as a separate public employer, on the other hand, ignores the fact that the Governor and the Executive Board are alone invested by law with the authority to determine basic conditions of employment and that this authority is not delegable to the individual 32 OPINIONS OF THE ATTORNEY GENERAL executive agencies. It would preclude statewide bargaining and bar- gaining across agency lines and would thus offend against two clearly stated public policies: 1. The policy against over-fragmentization by way of an excessive proliferation of bargaining units which would spell havoc to the collective bargaining process. See Rock, The Appropriate Unit Question in the Public Service: The Problem of Proliferation, 67 Mich. L. Rev. 1001 (1969) and Moskow, Lowenberg and Koziara, Collective Bargaining in Public Employment. 2. The policy of recognizing broad identifiable employe communities of interest, across agency lines, in terms of fam- ilies of occupations. See Opinion of the New York Public Relations Board, In the Matter of State of New York and New York State Employes Council 50, American Federation of State, County and Municipal Employes, AFL-CIO, et al., and Civil Service Employes Association, Inc., Case Nos. C-0002, et al. For the reasons above stated, it is our opinion, and you are hereby advised, that the Governor and the Executive Board constitute the "public employer," within the meaning of Section 301 ( 1) of the Public Employe Relations Act of 1970, with respect to all persons employed in agencies under the Governor's jurisdiction. Yours truly, J. SHANE CREAMER, Attorney General.