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MARJOLAINE TIN NYO v. COMMONWEALTH PENNSYLVANIA (09/16/80)

decided: September 16, 1980.

MARJOLAINE TIN NYO, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LABOR RELATIONS BOARD, RESPONDENT



Appeal from the Order of the Pennsylvania Labor Relations Board in case of Pennsylvania Labor Relations Board v. Pennsylvania Nurses Association, No. PERA-C-12, 933-C.

COUNSEL

Marjolaine Tin Nyo, petitioner, for herself.

Anthony C. Busillo, II, Assistant Attorney General, with him James L. Crawford and Mary Teresa Gavigan, Assistant Attorneys General, for respondent.

Judges Mencer, Rogers and Craig, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 53 Pa. Commw. Page 647]

The petitioner, Marjolaine Tin Nyo, seeks review of the refusal of the Pennsylvania Labor Relations Board (PLRB) to issue a complaint against the Pennsylvania Nures Association (PNA) based upon the petitioner's charge of unfair labor practices. We affirm that refusal.

The petitioner was furloughed by her employer, the Pennsylvania Department of Health, effective June 30, 1978. The petitioner unsuccessfully sought reinstatement through prescribed grievance procedures. She also filed an unfair labor practices charge (No. 11,527) against the PNA, her collective bargaining representative, alleging that it had wrongfully refused to support her during the grievance process.

The PLRB issued a complaint and heard evidence concerning the charge on July 31, 1978. On November 8, 1978, the petitioner filed a motion to amend the complaint, based on a claim of newly discovered evidence. On June 22, 1979, the PLRB issued a nisi decision and

[ 53 Pa. Commw. Page 648]

    order denying the motion to amend and dismissing the original complaint on the merits.

The petitioner did not file exceptions to the nisi decision and order. Rather, on June 28, 1979, the petitioner filed a new charge (No. 12,933) based on the facts alleged in the original complaint and the motion to amend. The PLRB refused to issue a new complaint on this charge, and the petitioner appealed from that refusal.

The PLRB contends that charge No. 12,933 is an attempt to attack collaterally the nisi decision and order of June 22, 1979 because it is based on the same allegations of fact. The petitioner agrees that the two charges arose from the same events but argues that the PLRB is estopped from asserting this as a reason for refusing to issue a complaint in No. 12,933 because of the PLRB's earlier refusal to permit the petitioner to amend the complaint in No. 11,527. While we sympathize with the petitioner's plight, we must disagree with her legal position.

Section 1302 of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563, as amended, 43 P.S. ยง 1101.1302, ...


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