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WESTERN PENNSYLVANIA SCHOOL FOR DEAF v. COMMONWEALTH PENNSYLVANIA (01/06/82)

decided: January 6, 1982.

THE WESTERN PENNSYLVANIA SCHOOL FOR THE DEAF
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LABOR RELATIONS BOARD. WESTERN PENNSYLVANIA SCHOOL FOR THE DEAF FEDERATION OF TEACHERS ORGANIZING COMMITTEE (PAFT, AFL-CIO), APPELLANT. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LABOR RELATIONS BOARD, APPELLANT V. THE WESTERN PENNSYLVANIA SCHOOL FOR THE DEAF, APPELLEE. THE WESTERN PENNSYLVANIA SCHOOL FOR THE DEAF, APPELLANT V. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LABOR RELATIONS BOARD, APPELLEE



Appeals from the Order of the Court of Common Pleas of Allegheny County in the case of The Western Pennsylvania School for the Deaf v. Commonwealth of Pennsylvania, Pennsylvania Labor Relations Board, No. S.A. 820 of 1980.

COUNSEL

Stephen H. Jordan, for appellant, Western Pennsylvania School for the Deaf Federation of Teachers Organizing Committee.

Aims C. Coney, with him Edward J. Van Allen, and Alan C. R. Lewis, Kirkpatrick, Lockhart, Johnson & Hutchison, for appellant, The Western Pennsylvania School for the Deaf.

Anthony C. Busillo, II, with him James L. Crawford, for appellee.

President Judge Crumlish and Judges Rogers and Craig, sitting as a panel of three. Opinion by Judge Rogers. This decision was reached prior to the expiration of the term of office of Judge Palladino.

Author: Rogers

[ 64 Pa. Commw. Page 3]

We have consolidated for argument and disposition the appeals of the Western Pennsylvania School for the Deaf (WPSD) and the Western Pennsylvania School for the Deaf, Federation of Teachers Organizing Committee, PaFT, AFL-CIO (Union) from an order of the Court of Common Pleas of Allegheny County affirming an order of the Pennsylvania Labor Relations Board (PLRB) by which the Board assumed jurisdiction of the matter of the certification of a bargaining unit for WPSD but voiding as tainted an election conducted by the PLRB and ordering a new election. WPSD challenges the PLRB's assumption of jurisdiction of the matter of the certification of any union as the bargaining representative of its employees. Both parties contest the court's action of voiding the first election and directing a new one.

Although a number of weighty issues have been briefed and argued, it is our judgment that the dispositive inquiry is that of whether the PLRB's jurisdiction over this case has been preempted by the applicable federal statutory authorities.*fn1 Since for the reasons hereinafter explained we believe that the most efficatious means of resolving this dispute is by reference to the federal administrative and judicial systems which are primarily charged with the

[ 64 Pa. Commw. Page 4]

    duty of establishing the boundaries of federal preemption, we believe that we should direct that the matter be so referred.

WPSD, one of four non-profit institutions in the Commonwealth created to serve the educational needs of deaf and blind children,*fn2 is a corporation located in Allegheny County and engaged in the provision of educational services to approximately 430 hearing impaired students who have been referred to WPSD by public school districts in western Pennsylvania. On March 12, 1979 the Union filed with the PLRB a Petition for Representation alleging that it represented thirty per cent or more of the non-supervisory professional employees at WPSD. Thereafter hearings and a pre-election conference were scheduled and conducted by the PLRB and, on December 20, 1979, the PLRB issued an Order and Notice of Election directing that a representation election be held on January 24, 1980, to ascertain the exclusive representative, if any, for the purpose of collective bargaining among the employees of WPSD. The election was held and the Union received a majority of the votes cast. WPSD filed exceptions to the election based on the prior disclosure to the Union by the PLRB of certain "case status information." On March 6, 1980, the PLRB issued a Nisi Order of Certification certifying the Union as the exclusive bargaining representative of the enumerated employees. Exceptions to this Order were dismissed by the PLRB and the Order became final on June 30, 1980. An appeal by WPSD to the Court of Common Pleas of Allegheny County resulted in the decision described above in broad outline and here subject to review.

[ 64 Pa. Commw. Page 5]

The PLRB concedes, as it must, that it may not act in those cases within the jurisdictional ambit of the National Labor Relations Board (NLRB) unless the NLRB has, with respect to the class of employers at issue, expressly declined to exercise its jurisdiction. San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959); Guss v. Utah Labor Relations Board, 353 U.S. 1 (1957); Association of Interns and Residents v. Einstein Medical Center, 470 Pa. 562, 369 A.2d 711 (1977); Pennsylvania Labor Relations Board v. Butz, 411 Pa. 360, 192 A.2d 707 (1963). We must, therefore, determine first whether WPSD is an employer covered by the National ...


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