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MATTER EMPLOYEES STUDENT SERVICES (10/07/81)

decided: October 7, 1981.

IN THE MATTER OF EMPLOYEES OF STUDENT SERVICES, INC., EDINBORO STATE COLLEGE, EDINBORO, PENNSYLVANIA. EMPLOYEES OF STUDENT SERVICES, INC., EDINBORO STATE COLLEGE, EDINBORO, PENNSYLVANIA, APPELLANTS


Appeal from the Order of the Court of Common Pleas of Erie County in the case of In the Matter of the Employees of Student Services, Inc., Edinboro State College, Edinboro, Pennsylvania, No. 2138-A-75.

COUNSEL

Angelo P. Arduini, of Shamp, Levin, Arduini & Hain, for appellants.

Christopher LePore, with him James L. Crawford, Susan Shinkman, Anthony C. Busillo, Mary T. Gavigan, Assistant Attorneys General, Daniel W. Cooper, of Cooper, LePore & Dreeland, for appellee.

Judges Crumlish Jr., Mencer, DiSalle, Craig and MacPhail. Opinion by Judge Mencer. Judge DiSalle did not participate in this decision.

Author: Mencer

[ 62 Pa. Commw. Page 128]

Student Services, Inc. (employer) is a nonprofit corporation organized for the purpose of operating a bookstore, bowling alley, vending machines, and other services at Edinboro State College. On December 6, 1974, the Retail Clerks Union, Local 1538 (union), filed a petition for representation with the Pennsylvania Labor Relations Board (Board) and requested an election. When the union prevailed at the election, the Board entered an order certifying the union as the collective bargaining representative. The Court of Common Pleas of Erie County affirmed the Board's order. We reversed the lower court in Employees of Student Services, Inc. Appeal, 49 Pa. Commonwealth Ct. 220, 411 A.2d 569 (1980), where we ruled that the employer was not a public employer within the meaning of the Public Employe Relations Act (PERA),*fn1 and the Board therefore lacked jurisdiction to entertain the union's petition for representation. The Supreme Court of Pennsylvania then reversed our decision and remanded the case for resolution of the issues not previously considered in view of our holding.*fn2 Pursuant to the remand now before us, we affirm the court below.

The first issue remaining for our resolution is whether the National Labor Relations Board (NLRB) is vested with exclusive jurisdiction to consider the petition for representation, as the employer contends. In support of its position, the employer cites Guss v. Utah Labor Relations Board, 353 U.S. 1 (1957), where the United States Supreme Court held that the states did not acquire jurisdiction in labor relations matters

[ 62 Pa. Commw. Page 129]

    affecting interstate commerce where the NLRB had declined to exercise its jurisdiction, unless the NLRB affirmatively "ceded" its jurisdiction to the states under Section 10(a) of the National Labor Relations Act (NLRA), 29 U.S.C. § 160(a).*fn3 The employer asserts that, since the NLRB has not ceded the jurisdiction that it statutorily could assert over the parties, the Pennsylvania Board is therefore powerless to act on the petition. The employer, however, overlooks that Section 10(a) is no longer applicable to these jurisdictional disputes because of Section 14(c), the 1959 Landrum-Griffin Amendment to the NLRA, 29 U.S.C. § 164, which provides that states may take jurisdiction of labor disputes over which the NLRB has declined to assert jurisdiction.*fn4 The NLRB is thus no longer

[ 62 Pa. Commw. Page 130]

    required to make a formal relinquishment of jurisdiction in order for the states to acquire the power to adjudicate a labor dispute.

The issue then becomes whether the NLRB has declined to exercise jurisdiction over the type of employer involved here. We are satisfied that it has. The NLRB repeatedly has declined jurisdiction over enterprises "intimately connected" with an exempt employer. For example, in Prophet Co., 150 N.L.R.B. 1559, 58 L.R.R.M. 1310 (1965), the NLRB declined to assert jurisdiction over a food service corporation operating at Whitewater State University in Wisconsin, on the basis that the food service operation was intimately tied to the educational purposes of the exempt university. In Horn & Hardart Co., 154 N.L.R.B. 1368, 60 L.R.R.M. 1138 (1965), the NLRB similarly refused to assume jurisdiction over an employer that operated a cafeteria and vending machines at an exempt hospital, concluding that the food service operations performed by the employer were "incidental to and intimately connected with the patient ...


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