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PENNSYLVANIA LABOR RELATIONS BOARD v. ROONEY. (06/28/57)

June 28, 1957

PENNSYLVANIA LABOR RELATIONS BOARD, APPELLANT,
v.
ROONEY.



Appeal, No. 217, Jan. T., 1957, from order of Court of Common Pleas of Bucks County, May T., 1956, No. 211, in case of Grace D. Rooney, trading as Lavender Hall Restaurant et al. v. Pennsylvania Labor Relations Board. Order affirmed.

COUNSEL

Herbert N. Shenkin, Assistant Attorney General, with him Oscar Bortner, Assistant Attorney General, James F. Wildeman, Assistant Attorney General, and Thomas D. McBride, Attorney General, for appellant.

George T. Kelton, with him Eastburn, Begley & Fullam, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold and Jones, JJ.

Author: Arnold

[ 389 Pa. Page 588]

OPINION BY MR. JUSTICE ARNOLD

On July 16, 1955, the Hotel and Restaurant Employes Union, American Federation of Labor, hereinafter called the Union, demanded that the Lavender

[ 389 Pa. Page 589]

Hall Restaurant, hereinafter called the Employer, recognize it as the collective bargaining agent for its forty-five employes. The employes included dishwashers, waitresses, relish girls, busboys, bartenders, and others. The request for recognition was immediately denied by the employer, and twenty-two employes thereupon left their work and went on strike.

It was not until August 26, 1955, that the union petitioned the Pennsylvania Labor Relations Board to conduct an election to determine whether or not it was entitled to certification as the collective bargaining agent. At the same time it lodged complaints against the employer for unfair labor practices (subsequently dismissed by the board). The board set September 8, 1955, for hearing as to the conduct of an election. It further ordered that all employes on the employer's payroll as of July 16, 1955,*fn1 August 26, 1955,*fn2 and September 8, 1955,*fn3 were entitled to vote; the parties to protect their rights by proper challenge. In addition, the board expressly ruled that it was not passing upon the qualifications of the employes. The election was held September 14, 1955, with ballots being presented by forty-nine persons out of the seventy persons preliminarily held by the board to be entitled to vote. Twenty-two votes were unsuccessfully challenged by the employer (being the employes who went on strike after it was called, and hence were alleged as not being employes). Fifteen votes were successfully challenged by the union; being workers who entered the employ subsequent to the date of the strike, but before the petition for an election was filed. The remaining twelve votes were not challenged as they were employes on July 16,

[ 389 Pa. Page 5901955]

, and worked during the existence of the strike. These twelve votes were cast against the union.

The board concluded that only the employes on the July 16, 1955, payroll were eligible to vote, and sustained the union's challenge. This resulted in the certification of the election by a vote of twenty-two to twelve. In addition, the board ruled that fifteen replacement workers were ineligible to vote. These replacement workers had gone to work for the employer prior to the filing of the petition for certification of election. Thereupon, on April 5, 1956, the board dismissed the unfair labor practices ...


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