IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kaolin Workers Union

, : Petitioner :

v. :

: Pennsylvania Labor Relations Board

, : No. 1433 C.D. 201 5 Respondent : Argued: May 11 , 2016

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judg e

HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON , Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY , Judge HONORA B L E MICHAEL H. WOJCIK, Judge

OPINION BY JUDGE COVEY FILED: Ju ne 15, 2016

Kaolin Workers Union ( Union ) petitions this Court for review of the

Pennsylvania Labor Relations Board’s ( Board ) July 21, 2015 order dismissing the

Union’s exceptions and finalizing the Nisi Order of Dec ertification. The sole issue

before th is Court is whether the Board erred by adopting the three

- year contract bar

provision 1 contain ed in Pennsylvania ’s Public Employe Relations Act (PERA) 2 and

applying it to an action filed under the Pennsylvania Labor Relations Act (PLRA)

. 3

On September 15, 2014, Roberto Morales (Morales), an employee of

Kaolin Mushroom Farms (Employer)

, filed a Petition for Decertification (Petition)

with the Board under the PLRA

, alleging that 30% or more of Employer’s employe e s
no longer desired to be represented by the U nion

, and requesting th e Board to

1 The three

- year contract bar provision prohibits employees from changing or seeking to decertify their exclusive bargaining representative during the first three years of a collective bargaining agreement

.

2 Act of July 23, 1970, P.L. 563, as amend ed, 43 P.S. §§ 1101.101

– 1101.2301

. 3 Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. §§ 211.1

- 211.13.2

schedule a hearing and order an election pursuant to Section 7(c) of the PLRA

. 4 The

Petition was accompanied by a S howing of I nterest to support Morales’ contention

that at least 30% of the eligible employ e es desired to decertify the Union as their

bargaining representative. On September 24, 2014, the Board Secretary (Secretary)

dismissed the Petition as untimely. The Secretary stated that, pursuant to Section 7(c)

of the PLRA, the Petition was barred by the existing co llective bargaining agreement

(C B A), which expires on October 2, 2016.

On October 14, 2014, Morales and Employer each filed timely

exceptions with the Board challenging the Petition ’ s dismissal. Morales alleged in

his exceptions that the parties ’ CBA is effective from August 3, 2009 through

October 2, 2016

, and that allow ing the parties ’ seven

- year contract to bar the Petition

would be an unreasonable limit on the employe e s ’ associational rights under the

PLRA. Both Morales and Employer urged the Board t o apply a three

- year contract
bar to the present matter and allow an election to be held. On October 31, 2014, the

Union filed a Charge of Unfair Labor Practice s against Employer.

On November 4, 2014, the Union filed a Re sponse to E xceptions

alleging t hat Morales and Employer conceded that the Petition was barred by the

parties ’ CBA. The Union further asserted that the Board is not authori zed to adopt a

three

- year contract bar in contravention of Section 7(c) of the PLRA. On November

18, 2014, citing to the Board’ s previous adoption of the three

- year contract bar under

the PLRA and the Police and Firemen Collective Bargaining Act

, commonly referred

to as Act 111, 5 the Board remanded th e matter to the Secretary with the direction to

order a hearing. On November 24, 2014, the Secretary issued a Complaint and

Notice of Hearing setting December 23, 2014 as the hearing date for the Union’ s

4 43 P.S. § 211.7(c).

5 Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1

- 217.10.3

unfair labor practice charge. The hearing was continued at the parties ’ request. On

January 5, 2015, the Board receiv ed a letter from the Union withdraw ing th e charge

.

On January 23, 2015, the Board issued an Order and Notice of Hearing

directing that a prehearing telephone conference (Conference) be held on February

11, 2015

, and a hearing be held on March 10, 2015 b efore a Board Hearing Examiner

concerning Morales’ Petition

. D uring the February 11, 2015 Conference, the parties

agreed to consider entering into a memorandum of agreement for the conduct of an

election (Memoranda)

. On March 2, 2015, Employer, Morales a nd the Union filed

identical Memoranda which each executed

, wherein, they stipulat ed to the bargaining

unit composition, the election site, the ballot position, the eligibility list, and other

matters pertaining to the conduct of the election. On March 6, 2015, the Board issued

an Order and Notice of Decertification Election directing that a secret ballot election

be conducted on March 19, 2015 among Employer’s eligible employ e es to ascertain

whether the employees wished the Union to continue to be their e xclusive bargaining

representative

.

On March 19, 2015, a Board election officer conducted the election

.
T he election results were 67 votes for the Union and 94 votes for No Representative.

On March 27, 2015, the Board issued a Nisi Order of Decertific ation certifying the

election ’s results and decertifying the Union as the exclusive representative of the

Employer’ s employe e s within the stipulat ed bargaining unit

. On April 14, 2015, the

Union filed timely exceptions with the Board challenging the Board ’ s adoption o f a

three

- year contract bar contrary to Section 7(c) of the PLRA

, and its Order remanding

the matter for a hearing and decertification election. In its exceptions, the Union

reiterate d the arguments it had set forth in its November 4, 2014 ex ception response.
On May 6, 2015, Employer timely respon ded to the exceptions. On July 21, 2015,4

the Board dismiss ed the Union’s exceptions and finaliz ed the Nisi Order of

Decertification. The Union appealed to this Court. 6

Initially, Section 2 of the PLRA expressly provides in pertinent part :

(b) Experience has proved that protection by law of the right of employes to organize and bargain collectively removes certain recognized sources of industrial strife and unrest, encourages practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours or other working conditions, and tends to restore equality of bargaining power between employers and employes.

(c) In the interpretation and application of [the PLRA] and otherwise, it is hereby declared to be the public policy of the State to encourage the practice and procedure of collective bargaining and to protect the exercise by workers of full freedom of association, self

- organization, and designation of r epresentatives of their own choosing , for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection, free from the interference, restraint or coercion of their employers

. (d) All the provisions of [ the PLRA ] shall be liberally construed for the accomplishment of this purpose

. 43 P.S. § 211.2 (emphasis added). Further,

[C]ourts will not review the actions of governmental bodies or administrative tribunals involving acts of

6 Our scope of review ‘ on appeals from orders of the Bo ard certifying exclusive bargaining representatives is limited t o 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 illega l. ’ Kaolin Mushroom Farms, Inc. v. [ Pa. ] Labor Relations [ Bd. ]

, 702 A.2d 1110, 1115 n. 5 (Pa. Cmwlth. 1997)

, appeal dismissed as having been improvidently granted,

. . . 720 A.2d 763 ( [Pa.] 1998) . ‘ Additionally, if the Board’ s findings are supported by substantial evidence, they are conclusive fo r purposes of appellate review.’ Id. Blue Mountain Mushroom Co., Inc. v. Pa. Labor Relations Bd., 735 A.2d 742, 746 (Pa. Cmwlth. 1999).5 discretion, in the absence of bad fai th, fraud, capricious action or abuse of power; they will not inquire into the wisdom of such actions or into the details of the manner adopted to carry them into execution .

. . [T]he mere possession of discretionary power by an administrative body does not make it wholly immune from judicial review, but the scope of that review is limited to the determination of whether there has been a manifest and flagrant abuse of discretion or a purely ar bitrary execution of the agency’ s duties or functions. That

t he court might have a different opinion or judgment in regard to the action of the agency is not a sufficient ground for interference; judicial discretion may not be substituted for administrative discretion.

[ Pa

. Soc. Servs. Union, Local 668 v. Pa

. Labor Relations Bd

. , . . . 392 A.2d 256 ( Pa. 1978) ] ( quoting

. . . In re Petition of Acchione,

. . . 227 A.2d 816, 820 ( [Pa.] 1967) ). The Board’ s determination in discharging its duty under PERA is entitled to a measure of deference from reviewing

courts.

Ass’n of Pa. State Coll

. & Univ. Faculties v. Pa. Labor Relations Bd., 8 A.3d 300,

30 4

- 0 5 (Pa. 2010).

The Union argues that the last sentence of Section 7(c) of the PLRA

requires a contract bar until the end of the current CBA which , in this case, would be

Oct ober 2, 2016

. Section 7(c) of the PLRA provides in its entirety:

Whenever a question arises concerning the representation of employes [,] the [B] oard may, and, upon request of a labor organization, or an employer who has not committed an act herein defined as unfair labor practice, or any group of employes in an appropriate unit representing by petition [30%] or more of the employes of that unit, shall investigate such controversy and certify to the parties, in writing, the name or names of the representati ves who have been designated or selected. In any such investigation, the [B] oard shall provide for an appropriate hearing upon due notice, either in conjunction with a proceeding under [S] ection [8 of the PLRA, 43 P.S. § 211.8 ] , or otherwise, and may util ize any suitable method to ascertain such6 representatives, except that if either party to the controversy so requests, a secret ballot of employes shall be taken within twenty days after such request is filed. Any certification of representatives by the [ B ] oard shall be binding for a period of one year, or for a longer period if the contract so provides, even though the unit may have changed its labor organization membership

.
43 P.S. § 211.7(c) (emphasis added).

The Board maintains that the term of “one year or . . . longer . . . if the

contract so p rovides,” refers to the Union’s original certification and does not reset

with every new contract. Id. The Board explained that the purpose of the one

- year

contract bar or longer if the contract so provides is to give the newly elected u nion a t

least a year to bargain with the employer without fear of a rival union c omin g in and

pushing it out before the newly elected union has had an opportunity to bargain for a

CBA

. The B oard specifically opined that “Sec tion 7(c) of the PLRA does not set
forth a maximum limit on the number of years that a contract may bar a

representation petition.” Board Final Order at 2 (emphasis added)

. Based upon the

Board’s interpretation , because the Union was certified in 1996, t he “one year or

longer if the contract so provides” ended either in 1997, or the time period contained

in the first CBA , if set forth therein, following the Union’s certification

.

The law is well established that “ t he Board’ s interpretation of its

gover ning statute is to be given controlling weight unless clearly erroneous .” City of

Erie v. Pa. Labor Relations Bd., 32 A.3d 625, 631 (Pa. 2011). “ T his [C] ourt will not

lightly substitute its judgment for that of the [Board] ; the [Board] possesses

administ rative expertise in the area of public employee labor relations and should be

shown deference. ” Phila. Corr. Officers Ass’n v. Pa. Labor Relations Bd., 667 A.2d

459, 461 n.2 (Pa. Cmwlth. 1995). Moreover, the Board look ed to the National Labor

Relations B oard’s (NLRB) precedent for guidance in the instant case as it has been

directed to do by our Supreme Court in the absence of explicit language contained in7

the PLRA. Chambersburg Borough v. Pa. Labor Relations Bd., 106 A.3d 212 (Pa.

Cmwlth. 2014).

The t erm [of a contract bar for future contracts] is not defined in the PLRA and the [application] of the [three

- year contract bar ] is an issue of first impression. However, because the PLRA is patterned after the National Labor Relations Act ( NLRA ), [29 U.S.C . §§ 151

- 169,] Kerr v. Butler [ Bldg. ] Trades Council, AFL

– CIO,

. . . 288 A.2d 525, 528 ( [Pa.] 1972)

, in interpreting the PLRA our Courts have ‘not hesitated to consider, and to follow, federal interpretation of the NLRA [.] ’ Office of Admin [

. ]

v. [ Pa. ] Lab or Relations [ Bd. ]

, . . . 916 A.2d 541, 550 ( [Pa.] 2007)

.

Id. at 221 (footnote omitted ; emphasis added ) ; see also Commonwealth v. Pa. Labor

Relations Bd., 826 A.2d 932, 934 (Pa. Cmwlth. 2003) (“ When there are no

Pennsylvania cases on point, we have been e ncouraged by the Supreme Court of

Pennsylvania to follow the NLRB cases interpreting provisions of the NLRA similar

to the PERA

. ”).

The United States Court of Appeals in various circuits have interpreted

the “contract bar rule” as follows:

Under the NLRB contract bar rule, ‘ if an employer and a union have entered into a [CBA], the agreement constitutes a bar to the holding of a representation election for the life of the agreement, up to a maximum of three years

. ’ [ Nat’l Labor Relations Bd. ] v. Arthur Sarnow Cand y Co., 40 F.3d 552, 557 (2d Cir. 1994) ; see Osteopathic Hosp. Founders Ass’ n v. [

Nat’l Labor Relations Bd. ]

, 618 F.2d 633, 638 (10th Cir. 1980) (acknowledging the existence of the contract bar rule). Thus, the contract bar rule ‘ prohibits employers from p etitioning the [NLRB] for decertification of a union and from repudiating the contract or withdrawing recognition from and refusing to bargain with a union during the term of the [CBA]. ’ [ Nat’l Labor Relations Bd. ] v. Rock Bottom Stores, Inc., 51 F.3d 366 , 370 (2d Cir. 1995)

.8 The purpose of the contract bar rule is ‘ to promote industrial peace by stabilizing, for a reasonable term, a contractual relationship between employer and union

. ’ Rock Bottom Stores, Inc., 51 F.3d at 370

. Consequently,

‘ [t]he rule applies in the absence of unusual circumstances ’ and ‘ even when a union has lost majority support. ’ Rock Bottom Stores, Inc., 51 F.3d at 370; see Osteopathic Hosp. Founders Ass’ n, 618 F.2d at 638 (‘ When a [CBA] is in effect between the parties, an incumbe nt union enjoys a virtually irrebuttable presumption of majority status as long as the agreement is entitled to ‘ contract bar ’ protection. ’ ); id. (‘ [The contract bar ] rule applies even though a majority of the employees in the unit have freely abandoned th e union

. ’ ) [.]

Nat’l Labor Relations Bd. v. F&A Food Sales, Inc., 202 F.3d 1258 , 1260

- 61 (10th

Cir. 2000) ( footnote omitted; emphasis added) ; see also Donald Schriver, Inc. v. Nat’l

Labor Relations Bd., 635 F. 2 d 859, 868 n.10 (D.C. Cir. 1980) (“Under normal

‘ contract

- bar ’ rules, an election petition for representative status may not be filed

during the term of a [CBA] that has a duration of up to three years , or during the first

three years of an agreement of longer duration [.]”).

Further

, where the PLRA is silent

, our Supreme Court “ look [s] for

guidance, therefore, to other statutes enacted by the Pennsylvania Legislature

regarding the selection of collective bargaining representatives. ” Whitaker Borough

v. Pa. Labor Relations B d., 729 A.2d 1109, 1111 (Pa. 1999). The PERA establishes a

three

- year contract bar to be applied in circumstances such as those in this case

. Specifically, Section 605(7)(i) of PERA provides:

No election shall be conducted pursuant to this section in any appropriate bargaining unit within which in the preceding twelve

- month period an election shall have been held nor during the term of any lawful collective bargaining agreement between a public employer and an employe representative. This restriction shall not apply to that period of time covered by any collective bargaining agreement which exceeds three years

. For the purposes9 of this section, extensions of agreements shall not affect the expiration date of the original agreement.

43 P.S. § 1101.605(7)(i) (emphasis added). B ased on the holding s in Whitaker

Borough and Chambersburg Borough , we agree with the Board’s adoption of a three

year contract bar. B ecause the current contract was entered into in 2009, the contract

bar expired in 2012 . T hus

, the Petition was properly filed in 2014

. F inding no “bad

faith, fraud, capricious action or abuse of power” on the Board’s behalf

, and giving

the Board the “measure of deference” to which it is entitled , we affirm the Board’s

Order of Decertification

. Ass’n of Pa. State Coll

. & Univ. F aculties, 8 A.3d at 304

-

0 5.

For all of the above reasons, the Board’s order is affirmed.

___________________________ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kaolin Workers Union, : Petitioner :

v. :

: Pen nsylvania Labor Relations Board, : No. 1433 C.D. 2015 Respondent :

O R D E R

AND NOW, this 15 th day of June , 201 6

, the Pennsylvania Labor

Relations Board’s July 21, 2015 order is affirmed.

___________________________ ANNE E. COVEY, Jud ge