Borough v. Pennsylvania Labor Relations Board

692 A.2d 253, 1997 Pa. Commw. LEXIS 157, 1997 WL 120354

• Court: Commonwealth Court of Pennsylvania
• Decided: March 19, 1997
• Docket: No. 627 C.D. 1996
• Status: Published

Opinions

SILVESTRI, Senior Judge.

Whitaker Borough (Whitaker) petitions for review of an order of the Pennsylvania Labor Relations Board (Board) that dismissed Whitaker’s exceptions and made absolute and final the Nisi Order of Certification which certified Teamsters Local Union No. 205 (Teamsters) as the exclusive representative of a bargaining unit which consists of twelve officers who are members of Whitaker’s police force.¹

Collective bargaining by policemen or firemen employed by the Commonwealth or a subdivision thereof is governed by “Act 111,” Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1 — 217.10. Section 1 of Act 111 governs the right to bargain and provides as follows:

Policemen or firemen employed by a political subdivision of the Commonwealth or by the Commonwealth shall, through labor organizations or other representatives designated by fifty percent or more of such policemen or firemen, have the right to bargain collectively with their public employers concerning the terms and conditions of their employment, including compensation, hours, working conditions, retirement, pensions and other benefits, and shall have the right to an adjustment or settlement of their grievances or disputes in accordance with the terms of this act. (Emphasis ours).

43 P.S. § 217.1.

The only issue before us² is whether or not a labor organization or other representative, in order to be certified as the exclusive agent for collective bargaining purposes, under Section 1 of Act 111, is required to be designated by fifty-percent (50%) or more of the total members of the bargaining unit or by fifty-percent (50%) or more of the members who actually vote in the election.

The undisputed facts are that on August 29, 1995, the Teamsters filed a “petition for representation” requesting the Board to conduct an investigation concerning the representation of the twelve officers under Act 111. See Section 7(c) the Pennsylvania Labor Relations Act³ (PLRA) and the Board’s regulations, 34 Pa.Code §§ 91.1 — 95.112. At a telephone prehearing conference held on September 20, 1995, the parties agreed to enter into a memorandum of agreement stipulating to the unit composition, the site of the election, the position on the ballots, the eligibility list and other matters pertaining to the conduct of the election. On October 3, 1995, the Board issued an order and notice of election directing that an election by secret ballot be conducted on October 20,1995; said election was then conducted by an election officer assigned by the Board. The returns of election indicated that of the twelve officers eligible to vote, only four did so, all four voting for representation by the Teamsters. On October 31,1995, the Board issued a Nisi Order of Certification certifying the Teamsters as the exclusive representative of all the officers in the bargaining unit.

On November 13, 1995, Whitaker filed exceptions asserting that the election results were insufficient to certify the Teamsters as the exclusive representative of the officers since the Teamsters, although receiving fifty-percent (50%) or more of the ballots cast in the election, failed to be designated by fifty-percent (50%) or more of the members of the bargaining unit. The Board rejected Whitaker’s argument on the basis that it had already addressed the issue in a previous decision, City of Erie, 15 PPER ¶ 15034 (Final Order, 1984), in which it interpreted Section 1 of Act 111 as authorizing certification where designation is by a majority of those participating in the election and not a majority of all employees in the bargaining unit.⁴

In Philadelphia Fire Officers Association v. Pennsylvania Labor Relations Board, 470 Pa. 550, 369 A.2d 259 (1977), the Board was presented with a petition which sought to have the Board conduct an election to determine a coEective bargaining representative under Act 111. The Board denied the petition on the ground that it lacked statutory jurisdiction to conduct such an election since Act 111 makes no express provision for the conduct of representation elections by the Board. In finding that the Board did have jurisdiction to conduct such elections, the Supreme Court wrote,

[w]e are of opinion that the PLRA and Act No. Ill, which are both, after aU, coEective bargaining statutes, are in pari materia within the meaning of that provision (Section 1932 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1932). We beheve, also, that it is entirely possible, and indeed salutary, within the limits delineated below, to construe the two acts together as a single statute.... We beheve that when the Legislature spoke in Act No. Ill of ‘labor organizations or other representatives, designated by 50(sic) percent or more of such pohcemen or firemen,’ it necessarily meant a labor organization designated in accordance with the provisions and procedures already established by statute and administered by the Labor Board.

470 Pa. at 555-556, 369 A.2d at 261. The Supreme Court then specificaEy held as follows:

[w]e decide today only that the Labor Board has jurisdiction under the PLRA of 1937 to conduct a representation election in a unit comprised of firemen and policemen whose collective bargaining with their public employers is governed by Act No. 111. (Emphasis ours).

470 Pa. at 558, 369 A.2d at 263.

Act 111 makes no express provision for how representation elections are to be conducted and our cases have held that the procedures of the PLRA should govern. See Borough of Nazareth v. Pennsylvania Labor Relations Board, 534 Pa. 11, 626 A.2d 493 (1993); Philadelphia Fire, 470 Pa. 550, 369 A.2d 259 (1977); Alcaraz v. Pennsylvania Labor Relations Board, 678 A.2d 1234 (Pa. Cmwlth.1996); Commonwealth v. Pennsylvania Labor Relations Board, 64 Pa.Cmwlth. 525, 441 A.2d 470 (1982). Whitaker neither contends nor argues that the procedures of the Board for the voting for a representative in the within election were improper. Whitaker argues that Section 1 of Act 111 mandates that representation of its pohcemen herein can only be by 50% of more of the total number of pohcemen employed.

Act 111 in Section 1, in plain language,⁵ gave pohcemen employed by a political subdivision the right to bargain collectively through a labor organization designated by 50% or more of such policemen. The phrase “of such policemen” clearly refers back to the total number of policemen employed. Since the Legislature has specifically set forth the number of votes required for designation of a collective bargaining representative for policemen, the Board is required to apply that provision of Section 1 of Act 111 to the vote tally.

In Philadelphia Fire, the Supreme Court made it clear that the Board had jurisdiction to conduct a representation election of policemen whose collective bargaining with their public employers is governed by Act 111. There were twelve (12) police officers employed by Whitaker; collective bargaining representation under Section 1 of Act 111 required a designation by at least six (6). The Board in certifying the Teamsters who received only four (4) votes violated the provisions of Section 1 of Act 111.

Accordingly, the order of the Board dismissing Whitaker’s exceptions and making absolute and final the Nisi Order of Certification is reversed.

ORDER

AND NOW, this 19th day of March, 1997, the order of the Pennsylvania Labor Relations Board, dated February 13, 1996, dismissing the exceptions of Whitaker Borough and making absolute and final the Nisi Order of Certification, is reversed.

1 . The bargaining unit excluded the Chief of Police and consisted of full-time and regular part-time officers.

2 . Our scope of review is limited to determining whether there has been a constitutional violation or an error of law, and whether the Board's findings were supported by substantial evidence. See Harbaugh v. Pennsylvania Labor Relations Board, 107 Pa.Cmwlth. 406, 528 A.2d 1024 (1987).

3 .Act of June 1, 1937, P.L. 1168, as amended, 43 • P.S.§ 211.7(c).

4 . We note that decisions of the Board are not binding on this Court.

5 . The Statutory Construction Act of 1972, 1 Pa. C.S. §§ 1501 — 1991, provides, in pertinent part, that “[w]ords and phrases shall be construed according to the rules of grammar and according to their common and approved usage. ...” (Emphasis added). 1 Pa.C.S. § 1903(a). Our appellate courts have consistently held that when the language of a statute is clear, the provisions must be read in accordance with their plain and ordinary meaning. Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982); Department of Transportation, Bureau of Driver Licensing v. Lear, 151 Pa.Cmwlth. 138, 616 A.2d 185 (1992); Commonwealth v. Johnson, 417 Pa.Superior Ct. 636, 612 A.2d 1382 (1992). Plain words of a statute cannot be disregarded where the language is free and clear from all ambiguity. Erie-Western Pennsylvania Port Authority v. Rugare, 29 Pa.Cmwlth. 83, 370 A.2d 768 (1977). When the words of a statute are unambiguous, they are not to be disregarded under the pretext of pursuing the spirit of the statute. Hill v. Divecchio, 425 Pa.Superior Ct. 355, 625 A.2d 642 (1993), petition for allowance of appeal denied, 538 Pa. 613, 645 A.2d 1316 (1994).