Xilas v. Com., Pennsylvania Labor Relations Bd.
| Decision Date | 25 February 1982 |
| Citation | 65 Pa.Cmwlth. 18,441 A.2d 513 |
| Parties | Gus XILAS and Angelo G. Kazalas, d/b/a Dudt's Bakery v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA LABOR RELATIONS BOARD. Appeal of DUDT'S BAKERY. |
| Court | Pennsylvania Commonwealth Court |
Argued Oct. 8, 1981.
Timothy P. O'Reilly, McArdle, Caroselli Spganolli & Beachler, Pittsburgh, for appellant.
Theodore Goldberg, Baskin & Sears, Pittsburgh, James L. Crawford Cheryl G. Young, Anthony C. Busillo, II, Pennsylvania Labor Relations Bd., Harrisburg, for appellee.
The appellant (employer) seeks review of an order of the Court of Common Pleas of Allegheny County which sustained a finding by the Pennsylvania Labor Relations Board (Board) that the employer had committed unfair labor practices when it discharged and laid off a number of its employees.
The Bakery and Confectionary Workers International Union of America Local 12-A (Union), sought to unionize employees of a bakery owned by the employer, and the Union gave notice of its organizational activities by a letter to the employer on September 9, 1977. [1] The employer discharged 2 of its approximately 15 employees in October of 1977, allegedly for disciplinary reasons, and laid off a number of other employees in January of 1978, purportedly because of economic factors. The Union filed unfair labor practice charges with the Board against the employer, alleging that both the discharges and the layoffs were motivated by the employer's anti-union animus, and hearings were held on those charges in January and February of 1978. The Union later requested and received a representation election in April of 1978. In October of 1978, the Board filed its opinion and nisi order finding that the employer's actions against its employees were prompted by its anti-union attitude and that such activities were unfair labor practices under sections 6(1)(a) and (c) of the Pennsylvania Labor Relations Act (PLRA), Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. §§ 211.6(1)(a) and (c). [2] In November of 1978, the Board also certified the Union as the exclusive bargaining agent of the employees after tallying the votes from the representation election and finding that eight employees were in favor of the Union and that three were opposed to it. The Board did not decide the validity of four other votes which had been challenged because it concluded that those votes would not change the outcome of the election. The employer appealed the Board's rulings, which were affirmed by the court below and this appeal was then taken.
The employer contends that the Board's findings are tainted because it substituted one hearing examiner for another during the course of the hearings with no legitimate reason therefor, and because the Board and not the two hearing examiners who presided over the hearings in this case and who alone were capable of determining the credibility of the witnesses based upon their demeanors, made the relevant findings of fact. [3]
Section 8(b) of the PLRA, 43 P.S. § 211.8(b), provides that a hearing regarding an unfair labor practice charge be conducted "before the Board, or any member or designated agent thereof," and section 8(c), 43 P.S. § 211.8(c) requires that testimony taken at such a hearing be reduced to writing and filed with the Board. Section 8(c) specifically provides that, based upon such testimony, the Board shall determine whether or not an unfair labor practice has been committed and "shall state its findings of fact." We believe that this language clearly designates the Board as the ultimate finder of fact with the discretion to evaluate the credibility of the witnesses based upon the testimony in the record. In this regard, the role of the Board as factfinder is similar to that of the Unemployment Compensation Board of Review which is permitted to resolve credibility issues and to make findings without being bound by a referee's disposition of those matters. See Unemployment Compensation Board of Review v. Wright, 21 Pa.Commonwealth Ct. 637, 347 A.2d 328 (1975). We must, therefore, hold that the Board, not its appointed hearing examiners, has the final authority to determine issues of credibility and that the employer therefore was not prejudiced by the Board's substitution of examiners or by the alleged failure of either examiner to make findings of fact.
The employer next argues that the Board erred in finding that the employer's conduct in discharging two employees and laying off other employees was motivated by its anti-union sentiments. It argues that the evidence established: (1) that one employee was discharged for engaging in a doughball fight on the employer's premises and for failing to clean the work area properly; (2) that the other employee was discharged because of his continual poor attendance and his unacceptable reporting record; and (3) that the layoffs of other employees were prompted by a seasonal decline in business which regularly occurred in January.
Our scope of review of findings of fact made by the Board is limited to determining whether or not such findings are supported by substantial evidence in the record, Pennsylvania Labor Relations Board v. Fabrication Specialists, Inc., 477 Pa. 23, 383 A.2d 802 (1978); Pennsylvania Labor Relations Board v. Sand's Restaurant Corp., 429 Pa. 479, 240 A.2d 801 (1968), and our review of the record here reveals that, although conflicting testimony was introduced substantial evidence does exist to support the Board's findings. Several employees testified that they had signed cards in early September of 1977 authorizing the Union to...
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