Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Appeal of Columbia Hospital from the Order of the Pennsylvania Labor Relations Board at Case No. PERA-R-1392-W, No. 1697 January Term, 1974.
Forest N. Myers, with him James F. Wildeman, Raymond W. Cromer, James L. Crawford, Anthony J. Molloy, and Roger M. Simon, for appellant.
Robert H. Shoop, Jr., with him Carl H. Hellersteadt, Jr., and Thorp, Reed & Armstrong, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt.
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This appeal follows an order of the Court of Common Pleas of Allegheny County, entered May 30, 1974, sustaining an appeal filed by the Columbia Hospital (Columbia) from a final order of the Pennsylvania Labor Relations Board (PLRB) dated October 12, 1973.
On December 24, 1971, the International Union of Operating Engineers, Local 95, had filed a representation petition with the PLRB seeking certification as the exclusive bargaining representative of twelve persons employed in Columbia's Engineering/Maintenance Department. On September 18, 1972, after a hearing, the PLRB ordered an election to be held among the employees of the proposed bargaining unit. At the election held on October 6, 1972, a majority of those eligible to vote voted eight to three for representation by the petitioning union. On July 5, 1973, the PLRB issued a Nisi Order of Certification, made final after a hearing on October 12, 1973, certifying the International Union of Operating Engineers, Local 95, as the exclusive bargaining representative of the engineering and maintenance employes.
Pursuant to the Public Employe Relation Act (Act 195),*fn1 Columbia appealed the PLRB's final order to the
[ 21 Pa. Commw. Page 238]
Court of Common Pleas of Allegheny County asserting that the bargaining unit as certified by the PLRB lacked the required identifiable community of interest separate from other non-professional employees and that its certification will lead to the prohibited condition of an overfragmentization of units. See Section 604 of Act 195, P.S. § 1101.604. With a very thorough opinion by Judge Popovich, the court below sustained Columbia's appeal and reversed the PLRB Order of Certification. The PLRB has now appealed to this Court.
The concepts of "community of interest" and "overfragmentization" were recently discussed in Western Psychiatric Institute and Clinic of the University of Pittsburgh of the Commonwealth System of Higher Education v. Pennsylvania Labor Relations Board, 16 Pa. Commonwealth Ct. 204, 330 A.2d 257 (1974); and Allegheny General Hospital v. The Pennsylvania Labor Relations Board, 14 Pa. Commonwealth Ct. 381, 322 A.2d 793 (1974). While the latter case in which the prohibited conditions were found to exist, is in many respects very similar to the one at hand, in most respects it is so substantially dissimilar as to be legally distinguishable. All of these cases, therefore, can be said to confirm the positions of the court below as to these concepts. We must, however, dispose of this action on other grounds.
Subsequent to the filing of this appeal with this Court, Congress amended the federal Labor-Management Relations Act, 29 U.S.C. § 141 et seq., to include nonprofit hospitals, such as Columbia, within the coverage of the Federal Act effective August 26, 1974. Columbia now argues, therefore, that the appeal is moot because the Federal Act now divests both the PLRB and this Court of continued jurisdiction. It cites the National Labor Relations Board preemption doctrine established in Guss v. ...