Borough v. Pennsylvania Labor Relations Bd.

• Decision Date: 02 May 1997
• Citation: 692 A.2d 253
• Parties: Whitaker BOROUGH, Petitioner, v. PENNSYLVANIA LABOR RELATIONS BOARD, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 253

692 A.2d 253

Whitaker BOROUGH, Petitioner, v. PENNSYLVANIA LABOR RELATIONS BOARD, Respondent.

Commonwealth Court of Pennsylvania.

Argued Nov. 18, 1996.

Decided March 19, 1997.

Reargument Denied May 2, 1997.

Donald C. Fetzko, West Mifflin, for petitioner.

John B. Neurohr, Harrisburg, for respondent.

Before DOYLE and FLAHERTY, JJ., and SILVESTRI, Senior Judge.

SILVESTRI, Senior Judge.

Whitaker Borough (Whitaker) petitions for review of an order of the Pennsylvania Labor Relations Board (Board) that dismissed Whitaker's exceptions and made absolute and final the Nisi Order of Certification which certified Teamsters Local Union No. 205 (Teamsters) as the exclusive representative of a bargaining unit which consists of twelve officers who are members of Whitaker's police force. ¹

Collective bargaining by policemen or firemen employed by the Commonwealth or a subdivision thereof is governed by "Act 111," Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1--217.10. Section 1 of Act 111 governs the right to bargain and provides as follows:

Policemen or firemen employed by a political subdivision of the Commonwealth or by the Commonwealth shall, through labor organizations or other representatives designated by fifty percent or more of such policemen or firemen, have the right to bargain collectively with their public employers concerning the terms and conditions of their employment, including compensation, hours, working conditions, retirement, pensions and other benefits, and shall have the right to an adjustment or settlement of their grievances or disputes in accordance with the terms of this act. (Emphasis ours).

43 P.S. § 217.1.

The only issue before us ² is whether or not a labor organization or other representative, in order to be certified as the exclusive agent for collective bargaining purposes, under Section 1 of Act 111, is required to be designated by fifty-percent (50%) or more of the total members of the bargaining unit or by fifty-percent (50%) or more of the members who actually vote in the election.

The undisputed facts are that on August 29, 1995, the Teamsters filed a "petition for representation" requesting the Board to conduct an investigation concerning the representation of the twelve officers under Act 111. See Section 7(c) the Pennsylvania Labor Relations Act ³ (PLRA) and the Board's regulations, 34 Pa.Code §§ 91.1--95.112. At a telephone prehearing conference held on September 20, 1995, the parties agreed to enter into a memorandum of agreement stipulating to the unit composition, the site of the election, the position on the ballots, the eligibility list and other matters pertaining to the conduct of the election. On October 3, 1995, the Board issued an order and notice of election directing that an election by secret ballot be conducted on October 20, 1995; said election was then conducted by an election officer assigned by the Board. The returns of election indicated that of the twelve officers eligible to vote, only four did so, all four voting for representation by the Teamsters. On October 31, 1995, the Board issued a Nisi Order of Certification certifying the Teamsters as the exclusive representative of all the officers in the bargaining unit.

On November 13, 1995, Whitaker filed exceptions asserting that the election results were insufficient to certify the Teamsters as the exclusive representative of the officers since the Teamsters, although receiving fifty-percent (50%) or more of the ballots cast in the election, failed to be designated by fifty-percent (50%) or more of the members of the bargaining unit. The Board rejected Whitaker's argument on the basis that it had already addressed the issue in a previous decision, City of Erie, 15 PPER p 15034 (Final Order, 1984), in which it interpreted Section 1 of Act 111 as authorizing certification where designation is by a majority of those participating in the election and not a majority of all employees in the bargaining unit. ⁴

In Philadelphia Fire Officers Association v. Pennsylvania Labor Relations Board, 470 Pa. 550, 369 A.2d 259 (1977), the Board was presented with a petition which sought to have the Board conduct an election to determine a collective bargaining representative under Act 111. The Board denied the petition on the ground that it lacked statutory jurisdiction to conduct such an election since Act 111 makes no express provision for the conduct of representation elections by the Board. In finding that the Board did have jurisdiction to conduct such elections, the Supreme Court wrote,

[w]e are of opinion that the PLRA and Act No. 111, which are both, after all, collective bargaining statutes, are in pari materia within the meaning of that provision (Section 1932 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1932). We believe, also, that it is entirely possible, and indeed salutary, within the limits delineated below, to construe the two acts together as a single statute.... We believe that when the Legislature spoke in Act No. 111 of 'labor organizations or other representatives, designated by 50(sic) percent or more of such policemen or firemen,' it necessarily meant a labor organization designated in accordance with the provisions and procedures already established by statute and administered by the Labor Board.

470 Pa. at 555-556, 369 A.2d at 261. The Supreme Court then specifically held as follows:

[w]e decide today only that the Labor Board has jurisdiction under the PLRA of 1937 to conduct a representation election in a unit comprised of firemen and policemen whose collective bargaining with their public employers is governed by Act No. 111. (Emphasis ours).

470 Pa. at 558, 369 A.2d at 263.

Act 111 makes no express provision for how representation elections are to be conducted and our cases have held that the procedures of the PLRA should govern. See Borough of Nazareth v. Pennsylvania Labor Relations Board, 534 Pa. 11, 626 A.2d 493 (1993); Philadelphia Fire, 470 Pa. 550, 369 A.2d 259 (1977); Alcaraz v. Pennsylvania Labor Relations Board, 678 A.2d 1234 (Pa.Cmwlth.1996); Commonwealth v. Pennsylvania Labor Relations Board, 64 Pa.Cmwlth. 525, 441 A.2d 470 (1982). Whitaker neither contends nor argues that the procedures of the Board for the voting for a representative in the within election were improper. Whitaker argues that Section 1 of Act 111 mandates that representation of its policemen herein can only be by 50% of more of the total number of policemen employed.

Act 111 in Section 1, in plain language, ⁵ gave policemen employed by a political subdivision the right to bargain collectively through a labor organization designated by 50% or more of such policemen. The phrase "of such policemen" clearly refers back to the total number of policemen employed. Since the Legislature has specifically set forth the number of votes required for designation of a collective bargaining representative for policemen, the Board is required to apply that provision of Section 1 of Act 111 to the vote tally.

In Philadelphia Fire, the Supreme Court made it clear that the Board had jurisdiction to conduct a representation election of policemen whose collective bargaining with their public employers is governed by Act 111. There were twelve (12) police officers employed by Whitaker; collective bargaining representation under Section 1 of Act 111 required a designation by at least six (6). The Board in certifying the Teamsters who received only four (4) votes violated the provisions of Section 1 of Act 111.

Accordingly, the order of the Board dismissing Whitaker's exceptions and making absolute and final the Nisi Order of Certification is reversed.

ORDER

AND NOW, this 19th day of March, 1997, the order of the Pennsylvania Labor Relations Board, dated February 13, 1996, dismissing the exceptions of Whitaker Borough and making absolute and final the Nisi Order of Certification, is reversed.

DOYLE, Judge, dissenting.

I respectfully dissent. In reversing the decision of the Pennsylvania Labor Relations Board (Board), I believe that the majority inappropriately failed to recognize well-settled principles of federal labor law in interpreting Act 111, ¹ and I would affirm the decision of the Board.

As the majority points out, in Philadelphia Fire Officers Association v. Pennsylvania Labor Relations Board, 470 Pa. 550, 369 A.2d 259 (1977), our Supreme Court determined that Act 111 and the Pennsylvania Labor Relations Act ² (PLRA) are to be interpreted in pari materia. Specifically, the Court stated:

We are of opinion that the PLRA and Act No. 111, which are both, after all, collective bargaining statutes, are in pari materia within the meaning of [Section 1932 of the Statutory Construction Act, 1 Pa.C.S. § 1932, which provides that statutes which are in pari materia are to be construed together and as one statute]. We believe, also, that it is entirely possible, and indeed salutary, ... to construe the two acts together as a single statute.

470 Pa. at 555, 369 A.2d at 261.

That being so, it is significant that the applicable language of the PLRA, relating to the selection of a collective bargaining representative, is virtually identical to the corresponding provision of the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151-169. ³ Section 7 of the PLRA provides in relevant part:

Representatives and elections

(a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment....

43 P.S. § 211.7. The virtually identical language of Section 9 of the NLRA is as follows:

Representatives and elections

(a) Representatives designated or selected for the purposes of collective bargaining by the...