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DELAWARE COUNTY SOLID WASTE AUTHORITY v. COMMONWEALTH PENNSYLVANIA (04/14/89)

decided: April 14, 1989.

DELAWARE COUNTY SOLID WASTE AUTHORITY, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LABOR RELATIONS BOARD AND INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 542, APPELLEES



Appeal from the Order of the Court of Common Pleas of Delaware County, in the case of Delaware County Solid Waste Authority v. Pennsylvania Labor Relations Board and International Union of Operating Engineers, Local 542, No. 87-11709.

COUNSEL

Joseph J. Costello, with him, Timothy P. O'Reilly, Morgan, Lewis & Bockius, and Michael F. X. Gillin, for appellant.

John B. Neurohr, with him, James L. Crawford, for appellee, Pennsylvania Labor Relations Board.

Jonathan Walters, with him, Laura J. Lifsey, Kirschner, Walters & Willig, for appellee, International Union of Operating Engineers, Local 542, AFL-CIO.

President Judge Crumlish, Jr., Judge McGinley, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 125 Pa. Commw. Page 156]

Delaware County Solid Waste Authority (Authority) appeals from a decision of the Court of Common Pleas of Delaware County which affirmed a Pennsylvania Labor Relations Board (PLRB) order dismissing its exceptions to an order certifying Local 542 of the International Union of Operating Engineers (Union) as the official bargaining unit for the Authority's service and maintenance non-professional employees.

The Union filed a petition for representation with the PLRB on November 6, 1985. Following resolution of a

[ 125 Pa. Commw. Page 157]

    collateral matter not pertinent here, a hearing was held on the representation petition on February 19, 1987, at which time the Union and the Authority entered into a Memorandum of Agreement, stipulating to the bargaining unit composition, site for the election and an eligibility list of fifteen employees. The cutoff date for eligibility to vote was set for February 28, 1987, the last day of the payroll period immediately preceding the issuance of the election order on March 6, 1987. The election was set for April 3, 1987.

The election was conducted on that date by an election officer assigned by the PLRB. Three of the ballots cast were challenged by the election officer and the PLRB directed that testimony be taken regarding the eligibility of the three voters. The Authority and the Union agreed instead to submit a stipulation of facts.

The three votes challenged were cast by David Gorton, Mark Sleinkofer and Daryl Swavely. A hearing examiner dismissed the challenge to the ballot cast by Sleinkofer, but sustained those to Gorton's and Swavely's ballots, as they had not begun working for the Authority until March 8, and March 3, 1987 respectively. The examiner did not canvass Sleinkofer's ballot because his vote would not have affected the outcome of the election (8 to 6 in favor of the Union).

On July 15, 1987, an order certifying the Union as the employees' official bargaining agent was entered. The Authority excepted to the order, arguing that Swavely's ballot should have been canvassed because Swavely would have worked before the cutoff date had he not been ill. (Gorton's ineligibility was not challenged.) The Authority argued that Swavely was hired on February 12, 1987 and was scheduled to begin work ...


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