Appeal from the Order of the Court of Common Pleas of Bucks County in case of Bucks County Schools, Intermediate Unit No. 22 v. Commonwealth of Pennsylvania, The Pennsylvania Labor Relations Board and Intermediate Unit No. 22 Education Association, PSEA/NEA, No. 81-05329-12-6.
James L. Crawford, with him Ellis H. Katz, for appellant.
Paul L. Stevens, with him Charles N. Sweet and Jeffrey T. Tucker, Curtin and Heefner, for appellee.
A. Martin Herring, for Intermediate Unit No. 22 Education Association, PSEA/NEA.
Judges Rogers, Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.
[ 77 Pa. Commw. Page 461]
This is an appeal from an order of the Court of Common Pleas of Bucks County reversing a final decree of the Pennsylvania Labor Relations Board (P.L.R.B.) and directing the conduct of a new certification election. We reverse.
On March 19, 1980 the Intermediate Unit No. 22 Education Association, PSEA/NEA (PSEA) filed a petition with the P.L.R.B. requesting a representation election for all full-time and regular part-time professional employees of the Bucks County Schools Intermediate Unit No. 22 (Employer). Although this petition was filed pursuant to Section 603(c) of the Public
[ 77 Pa. Commw. Page 462]
Employe Relations Act (P.E.R.A.),*fn1 43 P.S. § 1101.603(c), indicating that Employer failed to consent to the election, after the conduct of two prehearing conferences the parties executed a Memorandum of Agreement, on a standard P.L.R.B. form, in which they stipulated to certain facts pertaining to the election, including the fact that "the employes on the payroll as of today, and who fall within the aforesaid appropriate collective bargaining unit, and who are eligible to vote at the election, totaling 278 in all, are those employes whose names appear as listed on Exhibit 'A'. . . ." (Emphasis added.) This argument, with its attached list, was subsequently submitted to the P.L.R.B. on July 7, 1980, and certain revisions to this list were submitted on August 27, 1980. Thereafter, on September 11, 1980, the P.L.R.B. issued an Order and Notice of Election directing the conduct of a certification election on September 24, 1980. In its decision accompanying this order, the P.L.R.B., in the exercise of its statutory duty to define the appropriate bargaining unit,*fn2 listed the job title of those employees who would be included in the bargaining unit, and found as a fact, using language more definitive than that found in the parties' Memorandum of Agreement, "[t]hat the employes who fall within the aforesaid appropriate collective bargaining unit and who are eligible to vote at the election are those employes whose names appear as listed on Exhibit 'A'. . . ." Exhibit "A" attached to the P.L.R.B.'s order, in turn, was the revised eligibility list submitted by the parties. No other findings were made concerning eligibility criteria for participation in the election.
Thereafter, on the day of the election, five employees who were in job classifications falling within
[ 77 Pa. Commw. Page 463]
the defined bargaining unit, but whose names were not on the P.L.R.B.'s eligibility list, cast ballots, and these ballots, being automatically challenged by the P.L.R.B. pursuant to the provisions of 34 Pa. Code § 95.55, were segregated from the unchallenged ballots and not initially canvassed. When the tally of uncontested ballots showed that the employees had voted 110 to 109 in favor of no representation, however, thereby making the five challenged ballots potentially significant to the outcome of the election, the P.L.R.B. scheduled, and conducted, a hearing to determine whether the five challenged ballots should be canvassed. At this hearing, the parties agreed that one of the challenged ballots should be canvassed since it had been cast by an employee who simply had had her name misspelled on the eligibility list. With respect to the remaining four challenged ballots, uncontradicted evidence was presented indicating that they had been cast by four individuals from a group of twenty-six employees who had commenced working for Employer, in jobs classified within the defined bargaining unit, after the parties had submitted their August, 1980 revised eligibility list, but prior to the issuance of the P.L.R.B.'s election order. Although it is difficult to determine the legal theories Employer advanced based on this evidence since the briefs submitted to the P.L.R.B. have not been included in the record certified to this Court, it is apparent that Employer asserted that the four ballots in question should not be canvassed since they had ...