Appeal from the Order of the Court of Common Pleas of Lackawanna County in the case of Pennsylvania Labor Relations Board v. Northeastern Educational Intermediate Unit No. 19, No. 83 Civil 3515.
James L. Crawford, with him, Kathryn Speaker MacNett, for appellant.
James A. Kelly, for appellee.
Michael Brodie, Freedman and Lorry, for intervenor, Lackawanna County Vocational-Technical Federation of Teachers.
Judges Rogers, Barry and Palladino, sitting as a panel of three. Opinion by Judge Barry.
[ 95 Pa. Commw. Page 362]
This is an appeal by the Pennsylvania Labor Relations Board (Board) of an order of the Court of Common Pleas of Lackawanna County. The court remanded to the Board ordering it to consider exceptions filed by the appellee, Northeastern Intermediate Unit of Lackawanna County (NEIU), which the Board had dismissed for untimeliness.
The facts are as follows: The appellee furloughed two teachers (John Mederick and Jay Featherall) allegedly because of a cut in the federal funding which subsidized the vocational program under which the teachers were employed. The teachers filed a complaint with the Board. The Board found the appellee guilty of anti-union animus and unfair labor practices. The appellee filed exceptions and a motion to reopen
[ 95 Pa. Commw. Page 363]
the hearing upon newly discovered evidence. The proposed decision and order of the hearing examiner was issued on April 1, 1983, and exceptions were postmarked April 22, 1983, beyond the twenty day statutory period.*fn1 The Board dismissed the exceptions for untimeliness and the appellee appealed to the Lackawanna County Common Pleas Court which determined that the Board had abused its discretion. The court then remanded to the Board. The trial court reasoned that the hearing examiner had improperly lulled the appellee into believing that a second proceeding dealing solely with the issue of remedies would follow and then foreclosed that possibility when he issued his proposed decision and order which, in accord with the language of the order, became the final order if not excepted to within twenty days. The following is the exchange which occurred between the hearing examiner giving rise to appellee's claim:
HEARING EXAMINER WALLACE: There is no need to get into remedies at this point. We don't get into remedies until after the Order goes out. If there is an unfair practice found, then we will worry about the remedies.
MR. KELLY: You tie all this in?
HEARING EXAMINER WALLACE: We will have a second hearing just on remedies, if that would be necessary.
MR. KELLY: Let us state on the record that if there is any suggestion as to this man's employment or gainful employment or earning power during this period of time that we would want a second hearing on it.
HEARING EXAMINER WALLACE: Oftentimes, it comes to the point where we do need a hearing on ...