(1999); West Perry School District v. ... See School District of Millcreek Township v. Millcreek .... County v. PLRB, 28
REPRESENTATION PROCEEDINGS UNDER THE PUBLIC EMPLOYE RELATIONS ACT
I.
Filing of Petition for Representation and Showing of Interest 1) 30% showing of interest required by §603 of the Public Employe Relations Act (PERA). Showing of interest must be filed with the Petition and must have original signatures and be dated. 2) Petition and showing of interest are examined preliminarily for form and substance and Petition may be administratively dismissed if defective (ex., untimely, no showing of interest, unit ill2I se inappropriate). 3) Acknowledgment of the filing of the Petition is sent to the Petitioner and the Employer with the Case Number (ex., PERA-R-90-203-E). Case number should be included in all correspondence to the Board. A) Copy of Petition is included for the Employer. B) Acknowledgment directs Employer to: i) Post Petition (a) to give notice to employes and any other employe organization that may be interested in representing the employes. (b) Petition should be posted on bulletin boards where the employes in the requested unit work. (c) Employer must send the PLRB affidavit of compliance of the posting (a letter signed by the person responsible for the posting is sufficient). ii) Send the PLRB a list of employes in the unit claimed to be appropriate in the Petition. Employer may indicate on the list those employes that the Employer believes are confidential, supervisory or management level. Showing of interest will be checked against the list of employes. If showing of interest is less than 30%, Petition is dismissed. If Employer fails to provide list of employes, the PLRB will proceed with Petition as if the showing had been established. 4) Parties are contacted to schedule pre-hearing conference date and hearing date (note that hearing examiner may not request dates from parties, but may simply set hearing date). Written notice is sent out from the Board regarding particulars of prehearing conference and hearing. In order to change the hearing date, a party should secure the concurrence of opposing counsel and the hearing examiner.
' II. Pre-hearing conference 1) Cases are handled out of Board's Pittsburgh with the conduct of a pre-hearing conference. Conferences may be held in person or by telephone and are informal. 2) Purpose of the pre-hearing conference is to come to an agreement of the parties on all issues necessary for the Board to conduct an election or to at least limit those issues that must be resolved by formal hearing. 3) Success - 75% of the pre-hearing conferences result in the execution of a Memorandum of Agreement by the parties, thereby eliminating the need and expense of a hearing. 4) Issues addressed at Pre-hearing conference A) Unit description and composition (Section 604 of PERA). i) Broad based bargaining unit policy - Board will certify the broadest unit possible where employes encompassed in the unit exhibit an identifiable community of interest. (a) Board will certify nonprofessional bargaining units in school districts of all blue-collar (bus drivers, mechanics, custodial, maintenance and cafeteria) or white-collar (secretarial, clerical and aides) or will certify an all-encompassing nonprofessional unit. (b) Purpose is to avoid effects of overfragmentization of bargaining units employers having to bargain with multitude of bargaining representatives. (c) The Board considers several factors when determining whether employees share an identifiable community of interest. These factors include educational requirements, hours and benefits, the type of work performed, level of skill required, grievance procedures, pay scale, working conditions, bargaining history and interch ange of employees. See Fraternal Order of Police v. PLRB, 557 Pa. 586, 735 A.2d 96 (1999); West Perry School District v. PLRB , 752 A.2d 461 (Pa. Cmwlth. 2000). ii) Professional employes (Section 301(7) of PERA)- emp loyes whose " work is predominantly intellectual and varied in character; requires consistent exercise of discretion and judgment; requires knowledge of an advanced nature in the field of science or learning customarily acquired by specialized study in an institution of higher learning or its equivalent; and is of such character that the output or result accomplished cannot be standardized in relation to a given period of time." See Norwin School District , 31 PPER 1 31104 (Final 2
Order, 2000). (a) Professional employes must meet all four prongs of the test set forth in Section 301(7) in order to qualify as professional employes. (b) Professional employes may not be included in a unit with nonprofessional employes unless a majority of the professional employes vote in favor of a combined professional and nonprofessional unit (Section 604(2) of PERA). iii) Inclusion ofregular part-time employes - regularity of employment and expectation of continued employment - not a set number of hours per week. See School District of Millcreek Township v. Millcreek Education Association, 440 A.2d 673 (Pa. Cmwlth. 1982). (a) Regular part-time employes must be included in bargaining unit with full-time employes. See Bethlehem Township, 10 PPER ,r 10050 (Order and Notice of Election, 1979). (b) If employe works two hours a day, every day, that employe is regular part-time; if employe is merely called in on a per diem basis to fill-in for absent employes, employe may be casual. See Upper Providence Township, 17 PPER ,r 17180 (Final Order, 1986). iv) Employes who must be included in separate units (Section 604(3) of PERA). (a) Guards at prisons and mental institutions- employes must be part of the security infrastructure of the institution in order to be included in unit. See Fayette County, 14 PPER ,r 14159 (Final Order, 1983) (prison cooks excluded from prison guard unit because they had no security function, but maintenance employes included because they took prisoners outside of prison walls and were responsible for the prisoners' security. (b) Employes directly involved with and necessary to the functioning of the courts. Application of PERA to court employes is constitutional. Commonwealth of Pa., ex rel. Bradley v. PLRB, 479 Pa. 440, 388 A.2d 736 (1978). (c) Individuals employed as guards to enforce against employes and other persons rules to protect the property of the employer or to protect the safety of persons on the employer's premises (security guards). The employes must have protected the employer's premises during a strike or other labor unrest. See Washington County v. PLRB, 613 A.2d 670 (Pa. Cmwlth. 1992).
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B) Exclusions from the unit i) Confidential employe (§ 301(13) of PERA)-privy to the employer's collective bargaining strategy - limited exclusion. See PLRB v. Altoona Area School District, 480 Pa. 148, 389 A.2d 553 (1978). Information to which employe is privy must be of such a definite nature that it reveals the employer's collective bargaining strategy, Bangor Area School District, 9 PPER 9295 (Nisi Decision and Order, 1978). (a) Ex., confidential employe - typing bargaining proposal before it is submitted to other side at the bargaining table, Derry Township School District, 11 PPER 1 11047 (Nisi Decision and Order, 1980) (b) Ex., non-confidential employe - one who is involved in grievances, East Lycoming School District, 14 PPER114168 (Proposed Order of Unit Clarification, 1983); one who handles payroll and accounts receivables providing data and support to negotiators, Slippery Rock Area School District, 12 PPER 1 12063 (Final Order, 1981); one who costs out proposals, Bangor Area School District, 9 PPER 1 9295 (Nisi Decision and Order, 1978). ii)Supervisor (Section 301(6) of PERA) - exercises the authority in the interests of the employer to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline other employes or effectively recommends such actions. (a) Employe must have authority to reward or sanction other employes and actually exercise that authority, Danville Area School District, 8 PPER 195 (1977). (b) PLRB takes into consideration the extent of the supervisory duties performed by the employes - State System of Higher Education v. PLRB, 737 A.2d 313 (Pa. Cmwlth. 1999). Must perform supervisory duties the majority of the time. West Perry SD v. PLRB, 752 A.2d 461 (Pa. Cmwlth. 2000) (c) First level supervisory employes may form their own separate units (§ 604(5) of PERA) and have the right to meet and discuss over issues that would otherwise be bargainable in a rank and file unit. See § 301(17) of PERA for a definition of "meet and discuss." iii) Management level employe (§ 301(16) of PERA)- employe who is directly involved in the determination of policy, responsibly directs the implementation of policy or is above the first level of supervision. (a) Directly involved in policy determination- an employe who has the authority or responsibility to select among policy options and to put a
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proposed policy into effect. It does not include an employe who simply drafts language for the statement of policy without meaningful participation in the decisional process or an employe who simply engages in research or the collection of data for the development of the policy. Horsham Township, 9 PPER, 9157 (Final Order, 1978). (b) Responsibly directs the implementation of policy- an employe who interprets policy both within and without the procedures outlined in the policy which may necessitate a change in procedures or methods of operation. Horsham Township, 9 PPER, 9157 (Final Order, 1978). This does not include an employe who merely observes existing policy. Berks County v. PLRB, 28 PPER, 28234 (CCP of Berks County, 1997); Philadelphia School District v. PLRB, 719 A.2d 835 (Pa. Cmwlth. 1998). (c) Above the first level of supervision- the employe must supervise a first level supervisor. Pennsylvania State University, 20 PPER, 20126 (Final Order, 1989). iv) Determination on all of these statutory exclusions is based upon actual job duties. Centre County Child Development Council, IO PPER ,i 10276 (Order and Notice of Election, 1979) (group leaders who fill-in for supervisors are not supervisory) or anticipatory duties Washington Township Municipal Authority v. PLRB, 469 A.2d 402 (Pa. Cmwlth. 1990) (speculative confidential duties are not a basis for excluding employe from the bargaining unit). Burden is on the party seeking the statutory exclusion to prove its case on the record. Philadelphia School District v. PLRB, 719 A.2d 835 (Pa. Cmwlth. 1998). C) Particulars of election i) Time, date and location of on-site election. (a) Central location(s) with adequate parking. (b) Must consider any shift operations when determining time of election. ii) Whether election should be conducted by United States mail. iii) Number of copies of the Order and Notice of Election that must be posted by the employer to give employes sufficient notice of the election. III. Hearing - if pre-hearing conference fails to resolve all of the issues, a Hearing Examiner of the Board will take testimony regarding outstanding issues and resolve those issues by way of a written order. If the Hearing Examiner finds an appropriate unit and directs the employer to submit a list of employes in that unit, any challenge to any determination
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made by the Hearing Examiner is taken by filing exceptions to the prospective nisi order certifying the results of the election.
IV. Order and Notice of Election - must be posted by Employer at least 10 days prior to election (Section 605(1) of PERA). 1) Order and Notice of Election includes a sample ballot, a list of eligible voters and notice of the particulars of the election (mail ballot or time, date and place of on-site election). 2) Eligibility cutoff date -hired and working on or before the end of the payroll period immediately preceding election order. Catchment Area 094 Corp., 9 PPER 1 9143 (1978); see DelawareCounty Solid Waste Authority v. PLRB, 557 A.2d 795 (Pa. Cmwlth. 1989) (individual unable to begin work because of illness until after eligibility cutoff date is not eligible to vote). V.
Election 1) On-site election A) Pre-election conference is conducted one-half hour prior to opening of polls. i) Board agent will go over ground rules for election, designate the official polling area, and inform watchers of do's and don' ts during the election. ii) No restriction on who may attend pre-election conference on behalf of the parties (i.e., Superintendent, attorneys and union business agents, etc., may attend pre-election conference). B) Each party is entitled to one watcher who sits with Board agent during the election and observes the conduct of the election, including challenging any voters for cause. 34 Pa. Code § 95.52(a). i) Who may serve as watcher for Employer - Board rules and regulations require that watcher be from the list of eligible voters, but if Employer is unable to get an eligible voter to act as watcher, a nonsupervisory or other appropriate person may be selected. See Washington Township Municipal Authority v. PLRB , 469 A.2d 402 (Pa. Cmwlth. 1990); 34 Pa. Code§ 95.52(a). ii) PLRB maintains substantial discretion in disqualifying potential watchers. See Washington Township Municipal Authority v. PLRB , 469 A.2d 402 (Pa. Cmwlth. 1990). C) Challenged ballot procedure
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i) Challenged voter permitted to vote, but the ballot will be segregated in a challenged ballot envelope. ii) Eligibility of challenged voter will be resolved only if number of challenged ballots can affect outcome of election. D) Ballots are generally counted immediately upon the closing of the polls. Where multiple polling locations are used because of the geographic disbursement of the unit employes, one central location will be designated in the election order as the place for the canvassing of the ballots. In order to be certified an employe organization must receive a majority of valid ballots cast (Section 605(3) of PERA). i) Example: 100 employes eligible to vote; 90 employes cast valid ballots employe organization needs 46 votes to be certified. 45 votes for employe organization and 45 votes for no representative results in dismissal of the Petition. ii) A void ballot is not a "valid ballot cast". City of Erie, 15 PPER 1 15034 (Final Order, 1984). A blank ballot, a ballot which the voter signs, or a ballot that does not unambiguously reveal the choice of the voter are void ballots. Temple University Health Systems v. PLRB, 734 A.2d 448 (Pa. Cmwlth. 1999). 2) Mail Ballot election. A) Ballot kits are mailed to employes' home addresses. Return ballots are due back in the PLRB office two weeks from date mailed by the PLRB. PLRBaddressed, stamped return envelope, ballot envelope, ballot, and instructions are included in ballot kit. B) Double envelope system insures secrecy of the ballot. Outside envelopes are key-numbered to monitor returns and for the parties to be able to challenge the ballot of a particular employe for cause. C) Collect call telephone number is included in election order, which is posted, for employes who are not on the list of eligible voters but believe they are in the appropriate unit or employes who fail to receive their ballot kit to call the Board to request a ballot kit or duplicate ballot kit. Key-number system prevents one employe from voting twice (original ballot and duplicate ballot) and also provides a mechanism for automatic Board challenge of individuals not on the eligibility list. D) Ballots are opened and tabulated in the Board offices on the date and time specified in the election order. The employer and the employe organization are
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entitled to watchers at the ballot count. Any interested person may attend the tabulation of the ballots. VI.
Post-Election charges of unfair practices against another party or objections to the Board's conduct of the election must be filed (actually received in the Board' s offices) within 5 working days of the final tally of ballots. If number of challenged ballots can affect the outcome of the election, final tally of ballots does not occur until challenged ballots are resolved. 1) Challenged ballots will be resolved, if necessary, prior to the resolution of the charge of unfair practices to determine the outcome of the election. 34 Pa. Code§ 95.59(a). 2) If charge is proven, burden shifts to guilty party to prove that illegal activity did not affect outcome of election. If guilty party cannot meet this burden, a new election will be directed and held after the charge is remedied. Western Psychiatric Institute and Clinic v. PLRB, 330 A.2d 257 (Pa. Cmwlth. 1974). 3) Standard to overturn election based upon election irregularities is whether the alleged irregularities interfered with the employes' free choice to such an extent that they materially affected the election. Kaolin Mushroom Farms, Inc. v. PLRB, 702 A.2d 1110 (Pa. Cmwlth. 1997), appeal dismissed as improvidently granted, 554 Pa. 171, 720 A.2d 763 (1998).
VII.
Board will certify results of election if no charges or objections are filed within five working days of the conduct of the election or after charges are resolved, if new election is not directed as a result of the charge. Petition will either be dismissed (if employe organization loses) or the employe organization will be certified as the exclusive bargaining representative. Note: where more than one employe organization is seeking to represent a unit, a run-off election may be required if no choice receives majority of the valid ballots cast (Section 605(5) of PERA).
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COUNTY UNITS
Court-appointed Employee in the courts clerical employee (excluding judges' secretaries) tipetaves (excluding "judicial tipstaves") criers Court Administrator's Office Adult and Juvenile Probation Domestic Relations Office Law Library Court-related Prothonotary Clerk of Courts Jury Commissioner Sheriff Register of Wills District Attorney Public Defender Coroner Human Seryices MH/MR Area Agency on Aging Children and Youth Services Crisis Intervention Drug and Alcohol Residual Commissioners Office Voter Registration Tax Assessment Data Processing Treasurer Tax Claims Controller Microfilm Recorder of Deeds · Emergency Management Purchasing Prison Guards County Nursing Home Blue-collar nonprofessionals White-collar nonprofessionals
Parks and Recreation Veterans Affairs Maintenance Printer Mailroom Transportation Weights and Measures conservation District Weatherizatino Agricultural Extensio n Personnel
