Western Pennsylvania School for Deaf v. Com., Pennsylvania Labor Relations Bd., AFL-CIO
| Decision Date | 06 January 1982 |
| Docket Number | AFL-CIO |
| Citation | 64 Pa.Cmwlth. 1,438 A.2d 1025 |
| Parties | , 111 L.R.R.M. (BNA) 2433, 1 Ed. Law Rep. 1179 The WESTERN PENNSYLVANIA SCHOOL FOR the DEAF v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA LABOR RELATIONS BOARD. Appeal of WESTERN PENNSYLVANIA SCHOOL FOR the DEAF, FEDERATION OF TEACHERS ORGANIZING COMMITTEE (PaFT,). COMMONWEALTH of Pennsylvania, PENNSYLVANIA LABOR RELATIONS BOARD, Appellant, v. The WESTERN PENNSYLVANIA SCHOOL FOR the DEAF, Appellee. The WESTERN PENNSYLVANIA SCHOOL FOR the DEAF, Appellant, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA LABOR RELATIONS BOARD, Appellee. |
| Court | Pennsylvania Commonwealth Court |
Aims C. Coney, Jr., Edward J. Van Allen, Kirkpatrick, Lockhart, Johnson & Hutchison, Harry Woodruff Turner, Pittsburgh, for Western Pa. School for the Deaf.
Stephen H. Jordan, Rothman, Gordon, Foreman & Groudine, P. A., Pittsburgh, for the Western Pennsylvania School for the Before CRUMLISH, President Judge, and ROGERS and CRAIG, JJ.
Deaf, Federation of Teachers Organizing Committee, PaFT, AFL-CIO.
We have consolidated for argument and disposition the appeals of the Western Pennsylvania School for the Deaf (WPSD) and the Western Pennsylvania School for the Deaf, Federation of Teachers Organizing Committee, PaFT, AFL-CIO (Union) from an order of the Court of Common Pleas of Allegheny County affirming an order of the Pennsylvania Labor Relations Board (PLRB) by which the Board assumed jurisdiction of the matter of the certification of a bargaining unit for WPSD but voiding as tainted an election conducted by the PLRB and ordering a new election. WPSD challenges the PLRB's assumption of jurisdiction of the matter of the certification of any union as the bargaining representative of its employees. Both parties contest the court's action of voiding the first election and directing a new one.
Although a number of weighty issues have been briefed and argued, it is our judgment that the dispositive inquiry is that of whether PLRB's jurisdiction over this case has been preempted by the applicable federal statutory authorities. 1 Since for the reasons hereinafter explained we believe that the most efficacious means of resolving this dispute is by reference to the federal administrative and judicial systems which are primarily charged with the duty of establishing the boundaries of federal preemption, we believe that we should direct that the matter be so referred.
WPSD, one of four non-profit institutions in the Commonwealth created to serve the educational needs of deaf and blind children, 2 is a corporation located in Allegheny County and engaged in the provision of educational services to approximately 430 hearing impaired students who have been referred to WPSD by public school districts in Western Pennsylvania. On March 12, 1979 the Union filed with the PLRB a Petition for Representation alleging that it represented thirty per cent or more of the non-supervisory professional employees at WPSD. Thereafter hearings and a pre-election conference were scheduled and conducted by the PLRB and, on December 20, 1979, the PLRB issued an Order and Notice of Election directing that a representation election be held on January 24, 1980, to ascertain the exclusive representative, if any, for the purpose of collective bargaining among the employees of WPSD. The election was held and the Union received a majority of the votes cast. WPSD filed exceptions to the election based on the prior disclosure to the Union by the PLRB of certain "case status information." On March 6, 1980, the PLRB issued a Nisi Order of Certification certifying the Union as the exclusive bargaining representative of the enumerated employees. Exceptions to this Order were dismissed by the PLRB and the Order became final on June 30, 1980. An appeal by WPSD to the Court of Common Pleas of Allegheny County resulted in the decision described above in broad outline and here subject to review.
The PLRB concedes, as it must, that it may not act in those cases within the jurisdictional ambit of the National Labor Relations Board (NLRB) unless the NLRB has, with respect to the class of employers at issue, expressly declined to exercise its jurisdiction. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959); Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601 (1957); Association of Interns and Residents v. Einstein Medical Center, 470 Pa. 562, 369 A.2d 711 (1977); Pennsylvania Labor Relations Board v. Butz, 411 Pa. 360, 192 A.2d 707 (1963). We must, therefore, determine first whether WPSD is an employer covered by the National Labor Relations Act (NLRA) and, if it is such an employer, whether the NLRB has expressly declined to exercise its jurisdiction with respect to employers like WPSD.
Section 2(2) of the NLRA, 29 U.S.C. § 152(2) provides:
The term "employer" includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.
The PLRB first argues that WPSD is a "state or political subdivision thereof" expressly excluded from the jurisdiction of the NLRB by the above quoted provision. The exclusion has not been broadly construed and its scope is a matter of federal law. National Labor Relations Board v. Natural Gas Utility District, 402 U.S. 600, 91 S.Ct. 1746, 29 L.Ed.2d 206 (1971). Under the controlling federal precedents
an entity (is) a political subdivision of a state within the meaning of § 2(2) only if it is (1) "created directly by the State, so as to constitute a department or administrative arm of the government," or is (2) "administered by individuals who are responsible to public officials or to the general public."
Truman Medical Center, Inc. v. National Labor Relations Board, 641 F.2d 570, 572 (8th Cir. 1981) quoting National Labor Relations Board v. Natural Gas Utility District, supra, 402 U.S. at 604-605, 91 S.Ct. 1746, 1749, 29 L.Ed.2d 206. See also National Labor Relations Board v. Highview, Inc., 590 F.2d 174, 176 (5th Cir.), modified on other grounds, 595 F.2d 339 (5th Cir. 1979); Crilly v. Southeastern Pennsylvania Transportation Authority, 529 F.2d 1355, 1358 (3d Cir. 1976). Also relevant are the entity's attributes with respect to the power to levy taxes, to issue subpoenas and to take property by power of eminent domain. National Labor Relations Board v. Austin Developmental Center, Inc., 606 F.2d 789 (7th Cir. 1979).
WPSD meets none of these criteria. It is a nonprofit corporation chartered in 1871 by the Court of Common Pleas of Allegheny County and is administered by a private, self-perpetuating Board of Directors. WPSD has no power of eminent domain, subpoena or taxation. Similar corporate entities engaged in the business of providing special educational services have been held to be without the political subdivision exclusion. National Labor Relations Board v. Austin Developmental Center, Inc., supra; Krebs School Foundation, 243 NLRB No. 79, 101 LRRM 1491 (1979); Watson Home, 242 NLRB No. 187, 101 LRRM 1349 (1979).
The PLRB also argues that even if WPSD is within the NLRB's statutory jurisdiction, the NLRB has declined to exercise its jurisdiction over otherwise non-exempt employers like WPSD on the ground that they have too intimate a connection with the basic or traditional functions of and services provided by exempt...
To continue reading
Request your trial