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INDEPENDENT ASSOCIATION PENNSYLVANIA LIQUOR CONTROL BOARD EMPLOYEES v. COMMONWEALTH PENNSYLVANIA (01/07/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 7, 1980.

INDEPENDENT ASSOCIATION OF PENNSYLVANIA LIQUOR CONTROL BOARD EMPLOYEES, BY FRED STAIR, PRESIDENT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LABOR RELATIONS BOARD, RESPONDENT. RETAIL CLERKS STATE ORGANIZING COMMITTEE, INTERVENOR

Appeal from the Order of the Pennsylvania Labor Relations Board in case of In the Matter of the Employes of the Commonwealth of Pennsylvania (Pennsylvania Liquor Control Board), Nos. PERA-U-7386-C, PERA-U-8749-C and PERA-R-10,013-C.

COUNSEL

John D. Killian, with him Killian & Gephart, for petitioner.

James F. Allmendinger, with him James L. Crawford, and Larry J. Rappoport, for respondent.

Lee Strickler, with him John D. Raup, for intervenor, Bureau of Labor Relations.

President Judge Bowman and Judges Crumlish, Jr., Mencer, Rogers, Blatt, DiSalle and Craig. Judges Wilkinson, Jr. and MacPhail did not participate. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 48 Pa. Commw. Page 343]

The Independent Association of Pennsylvania Liquor Control Board Employees (Association) appeals a decision of the Pennsylvania Labor Relations Board (Board) which resolved two Unit Clarification Petitions filed on behalf of the Pennsylvania Liquor Control Board (PLCB) and a Petition for Representation filed by the Association. The Board consolidated and heard extensive testimony on the three issues and filed separate orders in each. We affirm.

The Board determined that Liquor Store General Managers who are shift independent*fn1 and solely responsible

[ 48 Pa. Commw. Page 344]

    for the day-to-day operation of the individual state stores are "management level" employees within the meaning of Section 301(16) of the Pennsylvania Employe Relations Act (Act), Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.301(16).*fn2 This resulted in the removal of these employees from the "meet and discuss"*fn3 supervisory unit*fn4 previously certified by the Board and represented by the Association.

The Board next determined that all employees designated "Liquor Store Clerk II" are rank and file employees. This likewise removed these employees from the "meet and discuss" supervisory unit represented by the Association and placed them in the unit represented by the Retail Clerks State Organizing Committee.*fn5

[ 48 Pa. Commw. Page 345]

Finally, the Board concluded that the Association's Petition for Representation failed to demonstrate the requisite 30% showing of interest in an appropriate unit as required by Section 603(c) of the Act, 43 P.S. § 1101.603(c).*fn6

The Association first argues that it was reversible error for the Board to fail to dismiss the unit clarification petitions where a "question of representation" exists.*fn7 In effect, the Association argues that unit clarification was an improper method of removing large numbers of employees from a previously certified unit where it would result in a loss of union representation. We disagree. Where a petition for representation was filed by the union representative which required a redetermination of unit appropriateness and where the unit clarification petitions required an identical determination, the Board did not err in acting on the consolidated petitions.*fn8

[ 48 Pa. Commw. Page 346]

The Association's next contention is that the Board erred by classifying shift independent General Managers as Management. The shift independent General Managers were created as a result of the PLCB's reorganization of the management structure in the State Stores. The purported purpose of the reorganization at this level was to clearly delineate a line of authority whereby a single individual would be responsible for day-to-day store operations whereas, under the "old system", a co-manager concept was in effect. The Board determined that only shift independent General Managers were management level employees.

In the large volume stores, the General Manager is not tied to a shift and the shift supervisor is a Liquor Store Manager or in some cases a Liquor Store Clerk II. Section 301(16) requires that all employees above first-level supervisor shall be management. All Liquor Store Managers are first-level supervisors. Liquor Store Clerk IIs as a unit are rank and file, but in stores where they act as shift supervisors, they sufficiently resemble first-level supervisors so as to put the shift independent Liquor Store General Manager in all instances above the first level of supervisor and thus a management-level employee. We will not interfere with this area of Board expertise, i.e., determination of appropriate bargaining unit, where the conclusions are not arbitrary or capricious but a reasonable conclusion from the facts. St. Joseph's Hospital v. Pennsylvania Labor Relations Board, 473 Pa. 101, 373 A.2d 1069 (1977).

The Association further argues that the Board erred when it determined that Liquor Store Clerk IIs are rank and file employees. The Board clearly considered the extent to which supervisory and non supervisory functions are performed by Liquor Store Clerk IIs and concluded that on balance their responsibilities are in conformity with rank and file employees. This

[ 48 Pa. Commw. Page 347]

    appropriate "balancing test" is provided for by Section 604(5) of the Act, 43 P.S. § 1101.604(5). The result is not impinged on the fact that in some stores Clerk IIs serve as shift supervisors. To avoid the effect of overfragmentation of the employee unit and in recognition of a clear community of interest, all Clerk IIs are properly considered rank and file for purposes of the Act. Section 604 of the Act, 43 P.S. § 1101.604.

Finally, the Association argues that the Board's determination that it had failed to demonstrate a sufficient showing of interest was arbitrary and capricious, citing three reasons, only one of which we need address.*fn9 The Association contends that the Board was required to give it additional time to obtain additional authorization cards after it had deemed a unit to be appropriate which was distinct from the one described in the Association's Petition for Representation.

The requirement of a 30% showing of interest in an appropriate unit is mandated by Section 603 of the Act, 43 P.S. § 1101.603. The Act provides that if the Board determines the allegations of the petition to be valid and the unit appropriate, it shall order an election. Here, the unit petitioned for exceeded the unit which was found to be appropriate. Representation petitions seek appropriate units and must be supported by a sufficient showing of interest at the time of filing. The Board, in its discretion, may dismiss the petition if it considers the allegations of the petition invalid. Nothing in the record reveals that its determination was arbitrary.*fn10

[ 48 Pa. Commw. Page 348]

Accordingly, we

Order

And Now, this 7th day of January, 1980, it is ordered that:

1. The Motions to Quash filed by the Pennsylvania Labor Relations Board and the Pennsylvania Liquor Control Board are denied.

2. The order of the Pennsylvania Labor Relations Board dated September 5, 1978, making absolute its nisi orders of June 1, 1978 and June 30, 1978, is affirmed except insofar as it dismisses exceptions to the June 30, 1978 nisi order as untimely filed.

Disposition

Motions to quash denied. Orders affirmed as modified.


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