Blue Mountain Mushroom Co. v. PLRB

• Decision Date: 27 July 1999
• Citation: 735 A.2d 742
• Parties: BLUE MOUNTAIN MUSHROOM COMPANY, INC., Petitioner, v. PENNSYLVANIA LABOR RELATIONS BOARD, Respondent.
• Court: Pennsylvania Commonwealth Court

735 A.2d 742

BLUE MOUNTAIN MUSHROOM COMPANY, INC., Petitioner, v. PENNSYLVANIA LABOR RELATIONS BOARD, Respondent.

Commonwealth Court of Pennsylvania.

Argued June 14, 1999.

Decided July 27, 1999.

Reargument Denied September 28, 1999.

Kurt A. Miller, Pittsburgh, for petitioner.

John B. Neurohr, Harrisburg, for respondent.

Before DOYLE, J., FRIEDMAN, J., and JIULIANTE, Senior Judge.

JIULIANTE, Senior Judge.

Blue Mountain Mushroom Company, Inc. (Employer) petitions for review of the October 20, 1998 Final Order of the Pennsylvania Labor Relations Board (Board) that dismissed Employer's exceptions to a nisi order of certification, which certified the Comite de Trabajadores de Blue Mountain, a/k/a, Workers Committee of Blue Mountain (Union) as the exclusive representative for purposes of collective bargaining with Employer with respect to rates of pay, wages, hours and other conditions of employment. We affirm the order of the Board.

Background

On May 9, 1997, the Union filed with the Board a petition for representation seeking to represent a unit of all full-time and regular part-time mushroom production employees and maintenance employees related to the Employer's mushroom production facility for purposes of collective bargaining under the Pennsylvania Labor Relations Act (PLRA), Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. §§ 211.1-211.13.

In its petition, the Union requested that the Board conduct a 20-day election pursuant to Section 7(c) of the PLRA, 43 P.S. § 211.7(c), which provides in part that "if either party to the controversy so requests, a secret ballot of the employes shall be taken within twenty days after such request is filed." The Board then contacted representatives and counsel from Employer and the Union in an effort to mutually arrange the details of the election, including the date, times, locations, eligibility list and other matters.

The Board scheduled the election for May 30, 1997, which was a payday for the employees, a date upon which the maximum voter turnout could be expected. Because the May 30 election date fell 21 days after the Union's May 9, 1997 petition, the Union filed a May 21, 1997 letter (May 21 letter) withdrawing the initial 20-day request and simultaneously requesting another 20-day election. The Union's letter was received by the Board on May 22, 1997. The Union, however, did not send a copy of the May 21 letter to Employer.

On May 22, 1997, the Board issued an order and notice of election directing the election for May 30, 1997. In the order and notice of election, the Board explained that because of the 20-day election request, the Board was required by law to first conduct the election within 20 days, and then after the election, make a determination as to the appropriate unit. The notice of election also contained an eligibility list and stated that either the Union or Employer could challenge the ballot of any employee on the eligibility list.

On May 23, 1997, the Board received a letter from Employer, dated May 20, 1997, objecting to the Board's exercise of jurisdiction. On May 27, 1997, the Board received a second letter from Employer objecting to: 1) the Board's jurisdiction; 2) the bargaining unit in which the election would be conducted; and 3) the date for the election. Copies of these letters were not sent to the Union.

On May 30, 1997, the election was conducted as scheduled. The results were that 81 employees voted in favor of the Union, 40 employees voted for no representative, 7 employees cast ballots that were challenged by either the Board or the Union and 5 ballots were blank. Employer did not challenge any of the ballots.

On June 5, 1997, the Board issued a notice of hearing on the Union's petition for representation. The next day, Employer filed objections to: 1) the Board's jurisdiction over mushroom employees; 2) the appropriateness of the bargaining unit; 3) the failure of the Board to determine the appropriate bargaining unit prior to the election; 4) the fact that employees cast ballots in a unit that was not yet determined; 5) the Board's failure to conduct an election within 20 days of the Union's initial request for a 20-day election; and 6) the Board's failure to direct that a hearing be held after the Union had withdrawn its initial 20-day election request.

On July 3, 1997, the Board issued an order directing that a hearing be held on Employer's first four exceptions and that Employer raise its fifth and sixth objections to the prospective nisi order certifying the election. Hearings were then held on the Union's petition for representation and Employer's objections to the election.

On March 13, 1998, the Board's Hearing Examiner issued a Proposed Decision and Order resolving both Employer's objections and the issues raised by the Union's petition for representation. The Hearing Examiner determined that mushroom workers were not "agricultural laborers" within the meaning of Section 3(d) of the PLRA, 43 P.S. § 211.3(d), which excludes agricultural laborers from the Board's jurisdiction. The Hearing Examiner further determined that the appropriate bargaining unit included all full-time and regular part-time employees in the fill-in and take-out department, the spawning department, the casing department, the watering department, and the harvesting department. The Hearing Examiner excluded office and clerical employees, supervisors, managerial employees, and children and spouses of owners. The Hearing Examiner dismissed Employer's third and fourth election objections.

On March 23, 1998, the Board issued a nisi order of certification that certified the Union as the exclusive bargaining representative for the employees of what the Hearing Examiner determined to be the appropriate bargaining unit. On April 10, 1998, Employer filed exceptions alleging that the Board erred by: 1) concluding that it had jurisdiction over mushroom workers; 2) failing to determine the appropriate unit prior to conducting the election; 3) failing to conduct the election within 20 days of the Union's initial 20-day election request; and 4) failing, after the Union withdrew its initial 20-day election request, to provide for a pre-election hearing before conducting the election.

On May 1, 1998, the Union filed a motion to supplement the record seeking to include the May 21, 1997 letter wherein it withdrew its initial 20-day election request and simultaneously asserted a second 20-day election request. Employer opposed the Union's motion to supplement the record.

On October 20, 1998, the Board issued its Final Order dismissing Employer's exceptions and affirming the nisi order of certification. The Board denied the Union's motion to supplement the record on the ground that the May 21, 1997 letter had been filed and docketed with the Board and was, therefore, already part of the record.

On October 28, 1998, Employer filed a motion to reopen the record seeking to file further exceptions to the nisi order of certification based on the Union's May 21, 1997 letter. Employer further requested that the Board take testimony and other evidence regarding said letter.

In response, the Board issued a December 15, 1998 order treating Employer's motion as a motion for reconsideration under Pa. R.A.P. 1701(b)(3). The Board denied Employer's motion as untimely on the ground that the May 21, 1997 letter was not new evidence, that Employer had knowledge of said letter, that any issues regarding the May 21, 1997 letter could have been addressed at the hearing, and that any challenge to the letter was not likely to compel a different result because under the Supreme Court's decision in Petition of Shafer, 347 Pa. 130, 31 A.2d 537 (1943), a party is entitled to withdraw its 20-day election request.

On November 17, 1998, Employer appealed to this Court from the Board's Final Order. Employer presents the following issues for our review: 1) whether the employees who are engaged in the growing of mushrooms at Employer's facility are "agricultural workers" within the meaning of Section 3(d) of the PLRA, 43 P.S. § 211.3(d), and whether those employees therefore fall outside of the jurisdiction of the Board; 2) whether the Board violated Section 7(c) of the PLRA; 43 P.S. § 211.7(c), by failing to conduct a secret ballot election within 20 days of a request for secret ballot election; 3) whether the Board violated Employer's due process rights as well as Employer's statutory rights under the PLRA, by its manner of handling the Union's purported withdrawal and simultaneous reassertion of a 20-day election request; and 4) whether Employer's employees exercised a free and reasoned choice in the May 30, 1997 representation election.

Our scope of review "on appeals from orders of the Board certifying exclusive bargaining representatives is limited to determining whether the Board's findings are supported by substantial and legally credible evidence and whether the Board's conclusions are reasonable and not arbitrary, capricious or illegal." Kaolin Mushroom Farms, Inc. v. Pennsylvania Labor Relations Board, 702 A.2d 1110, 1115 n. 5 (Pa.Cmwlth.1997), appeal dismissed as having been improvidently granted, 554 Pa. 171, 720 A.2d 763 (1998). "Additionally, if the Board's findings are supported by substantial evidence, they are conclusive for purposes of appellate review." Id.

Merits of Employer's Appeal

I.

Employer's first argument is that the Board does not have jurisdiction over Employer or its employees because mushroom workers are "agricultural laborers" within the meaning of Section 3(d) of the PLRA, 43 P.S. § 211.3(d). Pursuant to Section 5 of the PLRA, 43 P.S. § 211.5, employees have the right, inter alia, to join labor organizations and bargain collectively through representatives of their own choosing. Section 3(d) of the PLRA defines "employee" as follows:

The term "employe" shall include any employe, and shall not be limited to the employes of a particular

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