IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kaolin Workers Union, :

Petitioner :

v. :

:

Pennsylvania Labor Relations Board, : No. 1433 C.D. 2015

Respondent : Argued: May 11, 2016

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION BY 

JUDGE COVEY FILED: June 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 Decertification. The sole issue 

before this Court is whether the Board erred by adopting the three-year contract bar 

provision1contained in Pennsylvania’s Public Employe Relations Act (PERA)2and 

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 employees 

no longer desired to be represented by the Union, and requesting the 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 amended, 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 Showing of Interest to support Morales’ contention

that at least 30% of the eligible employees 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 collective bargaining agreement 

(CBA), 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 allowing the parties’ seven-year contract to bar the Petition

would be an unreasonable limit on the employees’ associational rights under the 

PLRA. Both Morales and Employer urged the Board to 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 Practices against Employer. 

On November 4, 2014, the Union filed a Response to Exceptions

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

parties’ CBA. The Union further asserted that the Board is not authorized 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 111,5the Board remanded the 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 received a letter from the Union withdrawing the 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 before a Board Hearing Examiner

concerning Morales’ Petition. During 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 and the Union filed 

identical Memoranda which each executed, wherein, they stipulated 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 employees to ascertain 

whether the employees wished the Union to continue to be their exclusive bargaining 

representative. 

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

The 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 Decertification certifying the

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

Employer’s employees within the stipulated bargaining unit. On April 14, 2015, the 

Union filed timely exceptions with the Board challenging the Board’s adoption of 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 

reiterated the arguments it had set forth in its November 4, 2014 exception response. 

On May 6, 2015, Employer timely responded to the exceptions. On July 21, 2015, 
4

the Board dismissed the Union’s exceptions and finalized 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 representatives 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 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. 

[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 for 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 faith, 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 arbitrary 

execution of the agency’s duties or functions. That 

the 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, 

304-05 (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 

October 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 representatives 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 utilize any suitable method to ascertain such 
6

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 provides,” 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 union at 

least a year to bargain with the employer without fear of a rival union coming in and 

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

CBA. The Board specifically opined that “Section 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, the “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 “the Board’s interpretation of its 

governing 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). “This [C]ourt will not 

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

administrative 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 looked to the National Labor 

Relations Board’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 in 
7

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

Cmwlth. 2014).

The term [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.] Labor 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 encouraged 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 Candy 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 petitioning 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 incumbent 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 the 

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.2d 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 Bd., 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 purposes 
9

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). Based on the holdings in Whitaker 

Borough and Chambersburg Borough, we agree with the Board’s adoption of a threeyear contract bar. Because the current contract was entered into in 2009, the contract 

bar expired in 2012. Thus, the Petition was properly filed in 2014. Finding 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. Faculties, 8 A.3d at 304-

05.

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

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kaolin Workers Union, :

Petitioner :

v. :

:

Pennsylvania Labor Relations Board, : No. 1433 C.D. 2015

Respondent :

O R D E R

AND NOW, this 15th day of June, 2016, the Pennsylvania Labor 

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

___________________________

ANNE E. COVEY, Judge