Broadwater v. Otto

88 A.2d 878, 370 Pa. 611, 1952 Pa. LEXIS 386

• Court: Supreme Court of Pennsylvania
• Decided: May 29, 1952
• Docket: Appeal, 106
• Status: Published

Opinions

Opinion by

Mr. Justice Allen M. Stearne,

The decisive question is whether a discharged prison guard possesses the- status to require and participate in grievance procedure under the Act of June 30, 1947, P. L. 1183, 43 PS 215.1.

The title to the Act of 1947, supra, reads: “Relating to strikes by public employes; prohibiting such strikes; providing that such employes by striking terminate their employment; providing for reinstatement under certain conditions; providing for a grievance procedure; and providing for hearings before civil service and tenure authorities, and in certain cases before the Pennsylvania Labor Relations Board.” (italics supplied)

Section 1 (b) reads: “In order to avoid or minimize any possible controversies by making available full and adequate governmental facilities for the adjustment of grievances, the governmental agency involved, at the request of public employes, shall set up a panel of three members, one to be selected by the employes, one by the governmental agency, and the two so selected to select a third member.”

It is also provided in this section: “. . . the panel shall make their findings, copy of which shall be sent to the Governor, to the General Assembly, and to tbe bead of tbe agency, or political subdivision involved. Upon receipt of tbe findings of tbe panel tbe Governor or tbe bead of tbe State agency or political subdivision involved may take administrative measures to remedy tbe complaints. If tbe Governor or tbe head of tbe State agency or political subdivision finds that tbe situation complained of can only be remedied by legislative action, tbe Governor may refer tbe matter to tbe Legislature for correction, or the head of tbe State agency or political subdivision may refer tbe matter to tbe proper law-making body.”

Robert O. Broadwater and Chester L. Alburger, guards at tbe Philadelphia County Prison, instituted an action in mandamus against tbe members of tbe Board of Inspectors, Philadelphia County Prison, seeking to compel them to appoint a panel member under tbe act. Tbe Board of Prison Inspectors decline so to appoint on tbe ground that tbe provisions of tbe act apply only to existing employes and not to those who have been discharged. Upon a trial by a judge without a jury, a verdict for tbe defendants was rendered. Exceptions were dismissed in an opinion by tbe court in banc. This appeal followed.

Tbe question of law, as above indicated, is whether discharged employes may require grievance procedure as provided by tbe act. We are presently not concerned with tbe merits of tbe case. Should tbe act not apply, that ends tbe case. Should, however, tbe act apply, then appellants would possess tbe right to insist upon tbe erection of a panel to bear tbe grievances relative to tbe discharges.

There is absent any question concerning tbe right of a public employe to strike. No such right is claimed by appellants. Tbe famous words, now part of cherished American tradition, are: “There is no right to strike against the public safety by anybody, anywhere, anytime.” Section 2 of the act makes striking by a public employe malum prohibitum. This section reads: “Section 2. No public employe shall strike and no person exercising any authority, supervision or direction over any public employe shall have the power to authorize, approve or consent to a strike by one or more public employes.”

And furthermore, appellants do not contend that they are governed by the Pennsylvania Labor Relations Act of June 1, 1937, P. L. 1168, as amended, 43 PS 211.1 et seq. Prison guards are not engaged in an industrial dispute, to which the act exclusively applies: Salvation Army Case, 349 Pa. 105, 36 A. 2d 479.

In Ruch v. Wilhelm, Commissioner, et al., 352 Pa. 586, 43 A. 2d 894, this Court said (p. 588) : “Under the common law, therefore, [public employes] are subject, like all other Commonwealth employes, to removal at the pleasure of the appointing power, either for cause or without cause, unless there is legislative provision to the contrary: Glessner’s Case, 289 Pa. 86, 90, 91, 137 A. 166, 167, 168. They have such rights, and only such, regarding the tenure of their positions, as some statute may accord to them. . . .”

See the act of April 14, 1835, P. L. 232, 61 PS 624, et seq. Section 4 (61 PS 626) reads: “. . . The superintendent, under direction and advice of the board of inspectors, shall appoint the keepers, and necessary servants, and dismiss them whenever he thinks proper, or the inspectors direct him to do so. . . .”

In an opinion dated April 13, 1950, by the Attorney General-of Pennsylvania-• (now. Mr. Justice Thomas McKeen Chidsey of this Court), to Mr. Patrick A. McCabe, Pennsylvania State Employees Council, (not reported), (attached to appellees? paper book) the present problem was accurately and comprehensively encompassed. The following are excerpts from the opinion: “Where the Civil Service Act applies, as in the case of the Bureau of Unemployment Compensation of the Department of Labor and Industry, the Department of Public Assistance and the Pennsylvania Liquor Control Board, for instance, hearings for dismissed employes are provided for. In the absence of a statutory provision, all Commonwealth employes are subject to removal at the pleasure of the appointing power, either for cause or without cause. This was true at common law and has always been true under the law of Pennsylvania. . . .

“. . . Section 5 provides for a hearing after termination of employment on the ground of violation of the act (1) where the public employe is entitled ‘by law’ thereto, the words ‘by law’ patently meaning a hearing provided by the Civil Service Act or other law, and (2) where the public employe is not provided a hearing ‘by law’ — in such case a hearing being given before the Pennsylvania Labor Relations Board. However, in either case the scope of the hearing is merely to determine ‘whether the provisions of this act have been violated by sueh employe . . . ,’ that is, he is afforded opportunity to establish that his failure to report for duty or otherwise absent himself or abstain from the full, faithful and proper performance of his position was because of sickness, leave of absence or other good reason. No hearing is provided in this section of the act. or elsewhere to review a dismissal on any other ground than striking, as defined.

“The grievance procedure contained in Section 1 (b) of the act. providing for the appointment of a-panel to hear grievances and report findings to the Governor, the General Assembly and the head of the State agency involved, clearly contemplates a grievance by an employe ‘holding a position’ as a ‘public employe,’ as defined in Section 1 (a) of tbe act. Tbe grievance procedure relates to . . . the conditions or compensation of public employment, or the betterment thereof . . . .’ It is quite clear that the grievance machinery was to provide for presentation of complaints respecting working conditions and compensation by those in employment and affected thereby, and the consideration of such complaints during employment in order to deter strikes in accordance with the over-all purpose of the legislation.” (italics supplied in final paragraph)

Public employes while prohibited from striking are not prevented from the formation of employe unions or restricted from lawful activities therein. Under the Act of 1947, supra, such public employes do not possess the status entitling them to require and to participate in grievance procedure under the act after they have been discharged. Such a privilege is only accorded under express statutory fiat.

Judgment affirmed.