Berks/Lehigh Valley ColLege Faculty Ass'n v. Pennsylvania Labor Relations Board

763 A.2d 548, 168 L.R.R.M. (BNA) 3065, 2000 Pa. Commw. LEXIS 696
CourtCommonwealth Court of Pennsylvania
DecidedDecember 4, 2000
StatusPublished
Cited by5 cases

This text of 763 A.2d 548 (Berks/Lehigh Valley ColLege Faculty Ass'n v. Pennsylvania Labor Relations Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berks/Lehigh Valley ColLege Faculty Ass'n v. Pennsylvania Labor Relations Board, 763 A.2d 548, 168 L.R.R.M. (BNA) 3065, 2000 Pa. Commw. LEXIS 696 (Pa. Ct. App. 2000).

Opinion

JIULIANTE, Senior Judge.

The Berks/Lehigh Valley College Faculty Association (Association) petitions for review of the September 22, 1999 final order of the Pennsylvania Labor Relations Board (Board) that dismissed the Association’s exceptions and finalized the Hearing Examiner’s proposed order of dismissal, which dismissed the Association’s petition for representation seeking certification as the bargaining representative for the professional employees of Berks/Lehigh Valley College (BLVC). The Association’s primary argument is that the Board erred by determining that the petitioned-for bargaining unit does not share a distinct community of interest separate and apart from other professional employees of Pennsylvania State University (Penn State), so as to constitute an appropriate bargaining unit [549]*549under the provisions of the Public Employe Relations Act (PERA), Act of July 28, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101 — 1101.2301. We affirm.

Prior to July 1,1997, Penn State’s Berks and Allentown campuses were two of seventeen two-year undergraduate campuses comprising the Commonwealth Educational System (CES). The primary purpose of these campuses was to prepare students to complete their baccalaureate programs at Penn State’s University Park campus.

However, as of July 1, 1997, Penn State’s system was redesigned. The CES was abolished and the two-year campuses were reorganized into several four-year colleges. As part of that reorganization, the Berks and Allentown campuses were merged into the newly created BLVC. Penn State employs approximately 200 faculty at BLVC and approximately 5,400 faculty at its various other colleges.

Penn State is a public employer for purposes of collective bargaining under PERA. On December 18,1997, pursuant to Section 603 of PERA, 43 P.S. § 1101.603, the Association filed a petition for representation with the Board alleging that thirty percent or more of the BLVC faculty wished to be represented by the Association, and that the Association desired to be certified as the bargaining representative for the BLVC faculty. In its petition, the Association named BLVC and Penn State as joint employers.

On January 8,1998, the Board issued an order and notice scheduling a hearing on the Association’s petition. However, on January 15, 1998, Penn State filed a motion to dismiss alleging that BLVC and Penn State are not joint employers of the petitioned-for employees; that a bargaining unit limited to the BLVC faculty is not appropriate; and that the showing of interest submitted with the Association’s petition was inadequate.

On March 11, 1998, a hearing was held at which time the Association amended its petition by deleting BLVC as an employer. Both the Association and Penn State were provided a full opportunity to present testimony, cross-examine witnesses and introduce documentary evidence regarding the appropriateness of the proposed bargaining unit.

On June 5, 1998, the Hearing Examiner issued a decision and order, wherein he made seventeen findings of fact, reviewed the applicable law and determined that in consideration of the factors contained in Section 604(1) of PERA, 43 P.S. § 1101.604(1), a bargaining unit limited to BLVC faculty is inappropriate. Section 604(1) provides:

The board shall determine the appropriateness of a unit which shall be the public employer unit or a subdivision thereof. In determining the appropriateness of the unit, the board shall:
(1) Take into consideration but shall not be limited to the following:
(i) public employes must have an identifiable community of interest, and
(ii) the effects of over-fragmentation. (Emphasis added).

The Hearing Examiner reasoned that all Penn State faculty, including those at BLVC, share the same functions of teaching, research and community service, and enjoy the same benefits. Moreover, the Hearing Examiner recognized that although BLVC developed some of its own policies and regulations concerning the terms and conditions of BLVC faculty employment, they remain subject to the overarching policies of Penn State, which apply to all Penn State faculty. Specifically, the Hearing Examiner stated:

Although the Association established that some elements of the employment relationship for the faculty working at BLVC are unique and that BLVC controls its own destiny to a certain degree now that it offers four-year degree programs, see findings of fact 7-9, the record shows that a multitude of employment conditions for them and for the faculty working at other colleges of the [550]*550University are the same and that the University still exercises substantial control over all of its colleges, including BLVC. See findings of fact 4, 6, 9-15. Notably, the faculty at all of the University’s colleges, including BLVC, engage in teaching, research and public service, are covered by a wide variety of University policies, including ones dealing with fringe benefits, and are represented on the University’s faculty senate. The petitioned-for unit does not include all such employes, so overfragmentation will result if the petition is not amended to broaden the unit.

Hearing Examiner’s June 5, 1998 Decision and Order, pp. 5-6 (emphasis added).

In his order, the Hearing Examiner afforded the Association twenty days either to amend its petition in conformity with the decision or to request permission to withdraw the petition. However, the Association did neither. On June 29, Í998, the Hearing Examiner filed a proposed order of dismissal directing that in the absence of any exceptions, the decision and order shall become absolute and final. On July 2, 1998, the Association filed timely exceptions.

On September 22, 1999, the Board issued a final order dismissing the Association’s exceptions to the proposed order of dismissal and making that order absolute and final. In its decision, the Board determined that the Hearing Examiner’s findings of fact were supported by substantial evidence and that the Hearing Examiner correctly concluded that the petitioned-for bargaining unit, limited to the faculty at BLVC, is not an appropriate unit. The Board rejected the Association’s position that this Court’s decisions in Association of Pennsylvania State Coll, and Univ. Faculties v. Pennsylvania Labor Relations Board, 34 Pa.Cmwlth. 239, 383 A.2d 243 (1978) (hereinafter, “APSCUF”) and Fraternal Order of Police, Conference of Pennsylvania Liquor Control Board Lodges v. Pennsylvania Labor Relations Board, 695 A.2d 926 (1997), aff'd, 557 Pa. 586, 735 A.2d 96 (1999), where it was determined that the employees in the proposed bargaining units did not have an identifiable community of interest, were applicable to the present case.1 The Association appealed to this Court.

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763 A.2d 548, 168 L.R.R.M. (BNA) 3065, 2000 Pa. Commw. LEXIS 696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berkslehigh-valley-college-faculty-assn-v-pennsylvania-labor-relations-pacommwct-2000.