            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kaolin Workers Union,                        :
                            Petitioner       :
              v.                             :
                                             :
Pennsylvania Labor Relations Board,          :    No. 1433 C.D. 2015
                        Respondent           :    Argued: May 11, 2016


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ROBERT SIMPSON, Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge

OPINION BY
JUDGE COVEY                                       FILED: June 15, 2016

              Kaolin Workers Union (Union) petitions this Court for review of the
Pennsylvania Labor Relations Board’s (Board) July 21, 2015 order dismissing the
Union’s exceptions and finalizing the Nisi Order of Decertification. The sole issue
before this Court is whether the Board erred by adopting the three-year contract bar
provision1 contained in Pennsylvania’s Public Employe Relations Act (PERA)2 and
applying it to an action filed under the Pennsylvania Labor Relations Act (PLRA).3
              On September 15, 2014, Roberto Morales (Morales), an employee of
Kaolin Mushroom Farms (Employer), filed a Petition for Decertification (Petition)
with the Board under the PLRA, alleging that 30% or more of Employer’s employees
no longer desired to be represented by the Union, and requesting the Board to

       1
          The three-year contract bar provision prohibits employees from changing or seeking to
decertify their exclusive bargaining representative during the first three years of a collective
bargaining agreement.
        2
          Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101–1101.2301.
        3
          Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. §§ 211.1-211.13.
schedule a hearing and order an election pursuant to Section 7(c) of the PLRA.4 The
Petition was accompanied by a Showing of Interest to support Morales’ contention
that at least 30% of the eligible employees desired to decertify the Union as their
bargaining representative. On September 24, 2014, the Board Secretary (Secretary)
dismissed the Petition as untimely. The Secretary stated that, pursuant to Section 7(c)
of the PLRA, the Petition was barred by the existing collective bargaining agreement
(CBA), which expires on October 2, 2016.
               On October 14, 2014, Morales and Employer each filed timely
exceptions with the Board challenging the Petition’s dismissal. Morales alleged in
his exceptions that the parties’ CBA is effective from August 3, 2009 through
October 2, 2016, and that allowing the parties’ seven-year contract to bar the Petition
would be an unreasonable limit on the employees’ associational rights under the
PLRA. Both Morales and Employer urged the Board to apply a three-year contract
bar to the present matter and allow an election to be held. On October 31, 2014, the
Union filed a Charge of Unfair Labor Practices against Employer.
               On November 4, 2014, the Union filed a Response to Exceptions
alleging that Morales and Employer conceded that the Petition was barred by the
parties’ CBA. The Union further asserted that the Board is not authorized to adopt a
three-year contract bar in contravention of Section 7(c) of the PLRA. On November
18, 2014, citing to the Board’s previous adoption of the three-year contract bar under
the PLRA and the Police and Firemen Collective Bargaining Act, commonly referred
to as Act 111,5 the Board remanded the matter to the Secretary with the direction to
order a hearing. On November 24, 2014, the Secretary issued a Complaint and
Notice of Hearing setting December 23, 2014 as the hearing date for the Union’s



      4
          43 P.S. § 211.7(c).
      5
          Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1-217.10.
                                                 2
unfair labor practice charge. The hearing was continued at the parties’ request. On
January 5, 2015, the Board received a letter from the Union withdrawing the charge.
             On January 23, 2015, the Board issued an Order and Notice of Hearing
directing that a prehearing telephone conference (Conference) be held on February
11, 2015, and a hearing be held on March 10, 2015 before a Board Hearing Examiner
concerning Morales’ Petition. During the February 11, 2015 Conference, the parties
agreed to consider entering into a memorandum of agreement for the conduct of an
election (Memoranda). On March 2, 2015, Employer, Morales and the Union filed
identical Memoranda which each executed, wherein, they stipulated to the bargaining
unit composition, the election site, the ballot position, the eligibility list, and other
matters pertaining to the conduct of the election. On March 6, 2015, the Board issued
an Order and Notice of Decertification Election directing that a secret ballot election
be conducted on March 19, 2015 among Employer’s eligible employees to ascertain
whether the employees wished the Union to continue to be their exclusive bargaining
representative.
             On March 19, 2015, a Board election officer conducted the election.
The election results were 67 votes for the Union and 94 votes for No Representative.
On March 27, 2015, the Board issued a Nisi Order of Decertification certifying the
election’s results and decertifying the Union as the exclusive representative of the
Employer’s employees within the stipulated bargaining unit. On April 14, 2015, the
Union filed timely exceptions with the Board challenging the Board’s adoption of a
three-year contract bar contrary to Section 7(c) of the PLRA, and its Order remanding
the matter for a hearing and decertification election. In its exceptions, the Union
reiterated the arguments it had set forth in its November 4, 2014 exception response.
On May 6, 2015, Employer timely responded to the exceptions. On July 21, 2015,




                                           3
the Board dismissed the Union’s exceptions and finalized the Nisi Order of
Decertification. The Union appealed to this Court.6
             Initially, Section 2 of the PLRA expressly provides in pertinent part:
             (b) Experience has proved that protection by law of the
             right of employes to organize and bargain collectively
             removes certain recognized sources of industrial strife and
             unrest, encourages practices fundamental to the friendly
             adjustment of industrial disputes arising out of differences
             as to wages, hours or other working conditions, and tends to
             restore equality of bargaining power between employers
             and employes.
             (c) In the interpretation and application of [the PLRA] and
             otherwise, it is hereby declared to be the public policy of
             the State to encourage the practice and procedure of
             collective bargaining and to protect the exercise by
             workers of full freedom of association, self-organization,
             and designation of representatives of their own
             choosing, for the purpose of negotiating the terms and
             conditions of their employment or other mutual aid or
             protection, free from the interference, restraint or coercion
             of their employers.
             (d) All the provisions of [the PLRA] shall be liberally
             construed for the accomplishment of this purpose.
43 P.S. § 211.2 (emphasis added). Further,
                 [C]ourts will not review the actions of governmental
                 bodies or administrative tribunals involving acts of

      6
             Our scope of review ‘on appeals from orders of the Board certifying
             exclusive bargaining representatives is limited to determining whether
             the Board’s findings are supported by substantial and legally credible
             evidence and whether the Board’s conclusions are reasonable and not
             arbitrary, capricious or illegal.’ Kaolin Mushroom Farms, Inc. v.
             [Pa.] Labor Relations [Bd.], 702 A.2d 1110, 1115 n. 5 (Pa. Cmwlth.
             1997), appeal dismissed as having been improvidently granted, . . .
             720 A.2d 763 ([Pa.] 1998). ‘Additionally, if the Board’s findings are
             supported by substantial evidence, they are conclusive for purposes of
             appellate review.’ Id.
Blue Mountain Mushroom Co., Inc. v. Pa. Labor Relations Bd., 735 A.2d 742, 746 (Pa. Cmwlth.
1999).
                                            4
                discretion, in the absence of bad faith, fraud,
                capricious action or abuse of power; they will not
                inquire into the wisdom of such actions or into the
                details of the manner adopted to carry them into
                execution . . .         [T]he mere possession of
                discretionary power by an administrative body does
                not make it wholly immune from judicial review,
                but the scope of that review is limited to the
                determination of whether there has been a manifest
                and flagrant abuse of discretion or a purely arbitrary
                execution of the agency’s duties or functions. That
                the court might have a different opinion or judgment
                in regard to the action of the agency is not a
                sufficient ground for interference; judicial discretion
                may not be substituted for administrative discretion.
            [Pa. Soc. Servs. Union, Local 668 v. Pa. Labor Relations
            Bd., . . . 392 A.2d 256 (Pa. 1978)] (quoting . . . In re
            Petition of Acchione, . . . 227 A.2d 816, 820 ([Pa.] 1967)).
            The Board’s determination in discharging its duty under
            PERA is entitled to a measure of deference from reviewing
            courts.

Ass’n of Pa. State Coll. & Univ. Faculties v. Pa. Labor Relations Bd., 8 A.3d 300,
304-05 (Pa. 2010).
            The Union argues that the last sentence of Section 7(c) of the PLRA
requires a contract bar until the end of the current CBA which, in this case, would be
October 2, 2016. Section 7(c) of the PLRA provides in its entirety:
            Whenever a question arises concerning the representation of
            employes[,] the [B]oard may, and, upon request of a labor
            organization, or an employer who has not committed an act
            herein defined as unfair labor practice, or any group of
            employes in an appropriate unit representing by petition
            [30%] or more of the employes of that unit, shall investigate
            such controversy and certify to the parties, in writing, the
            name or names of the representatives who have been
            designated or selected. In any such investigation, the
            [B]oard shall provide for an appropriate hearing upon due
            notice, either in conjunction with a proceeding under
            [S]ection [8 of the PLRA, 43 P.S. § 211.8], or otherwise,
            and may utilize any suitable method to ascertain such

                                          5
             representatives, except that if either party to the controversy
             so requests, a secret ballot of employes shall be taken
             within twenty days after such request is filed. Any
             certification of representatives by the [B]oard shall be
             binding for a period of one year, or for a longer period if
             the contract so provides, even though the unit may have
             changed its labor organization membership.

43 P.S. § 211.7(c) (emphasis added).
             The Board maintains that the term of “one year or . . . longer . . . if the
contract so provides,” refers to the Union’s original certification and does not reset
with every new contract. Id. The Board explained that the purpose of the one-year
contract bar or longer if the contract so provides is to give the newly elected union at
least a year to bargain with the employer without fear of a rival union coming in and
pushing it out before the newly elected union has had an opportunity to bargain for a
CBA. The Board specifically opined that “Section 7(c) of the PLRA does not set
forth a maximum limit on the number of years that a contract may bar a
representation petition.” Board Final Order at 2 (emphasis added). Based upon the
Board’s interpretation, because the Union was certified in 1996, the “one year or
longer if the contract so provides” ended either in 1997, or the time period contained
in the first CBA, if set forth therein, following the Union’s certification.
             The law is well established that “the Board’s interpretation of its
governing statute is to be given controlling weight unless clearly erroneous.” City of
Erie v. Pa. Labor Relations Bd., 32 A.3d 625, 631 (Pa. 2011). “This [C]ourt will not
lightly substitute its judgment for that of the [Board]; the [Board] possesses
administrative expertise in the area of public employee labor relations and should be
shown deference.” Phila. Corr. Officers Ass’n v. Pa. Labor Relations Bd., 667 A.2d
459, 461 n.2 (Pa. Cmwlth. 1995). Moreover, the Board looked to the National Labor
Relations Board’s (NLRB) precedent for guidance in the instant case as it has been
directed to do by our Supreme Court in the absence of explicit language contained in

                                            6
the PLRA. Chambersburg Borough v. Pa. Labor Relations Bd., 106 A.3d 212 (Pa.
Cmwlth. 2014).

             The term [of a contract bar for future contracts] is not
             defined in the PLRA and the [application] of the [three-year
             contract bar] is an issue of first impression. However,
             because the PLRA is patterned after the National Labor
             Relations Act (NLRA), [29 U.S.C. §§ 151-169,] Kerr v.
             Butler [Bldg.] Trades Council, AFL–CIO, . . . 288 A.2d
             525, 528 ([Pa.] 1972), in interpreting the PLRA our
             Courts have ‘not hesitated to consider, and to follow,
             federal interpretation of the NLRA[.]’ Office of Admin[.]
             v. [Pa.] Labor Relations [Bd.], . . . 916 A.2d 541, 550 ([Pa.]
             2007).

Id. at 221 (footnote omitted; emphasis added); see also Commonwealth v. Pa. Labor
Relations Bd., 826 A.2d 932, 934 (Pa. Cmwlth. 2003) (“When there are no
Pennsylvania cases on point, we have been encouraged by the Supreme Court of
Pennsylvania to follow the NLRB cases interpreting provisions of the NLRA similar
to the PERA.”).
             The United States Court of Appeals in various circuits have interpreted
the “contract bar rule” as follows:

             Under the NLRB contract bar rule, ‘if an employer and a
             union have entered into a [CBA], the agreement constitutes
             a bar to the holding of a representation election for the life
             of the agreement, up to a maximum of three years.’
             [Nat’l Labor Relations Bd.] v. Arthur Sarnow Candy Co.,
             40 F.3d 552, 557 (2d Cir. 1994); see Osteopathic Hosp.
             Founders Ass’n v. [Nat’l Labor Relations Bd.], 618 F.2d
             633, 638 (10th Cir. 1980) (acknowledging the existence of
             the contract bar rule). Thus, the contract bar rule ‘prohibits
             employers from petitioning the [NLRB] for decertification
             of a union and from repudiating the contract or withdrawing
             recognition from and refusing to bargain with a union
             during the term of the [CBA].’ [Nat’l Labor Relations Bd.]
             v. Rock Bottom Stores, Inc., 51 F.3d 366, 370 (2d Cir.
             1995).

                                           7
             The purpose of the contract bar rule is ‘to promote
             industrial peace by stabilizing, for a reasonable term, a
             contractual relationship between employer and union.’
             Rock Bottom Stores, Inc., 51 F.3d at 370. Consequently,
             ‘[t]he rule applies in the absence of unusual circumstances’
             and ‘even when a union has lost majority support.’ Rock
             Bottom Stores, Inc., 51 F.3d at 370; see Osteopathic Hosp.
             Founders Ass’n, 618 F.2d at 638 (‘When a [CBA] is in
             effect between the parties, an incumbent union enjoys a
             virtually irrebuttable presumption of majority status as long
             as the agreement is entitled to ‘contract bar’ protection.’);
             id. (‘[The contract bar] rule applies even though a majority
             of the employees in the unit have freely abandoned the
             union.’)[.]

Nat’l Labor Relations Bd. v. F&A Food Sales, Inc., 202 F.3d 1258, 1260-61 (10th
Cir. 2000) (footnote omitted; emphasis added); see also Donald Schriver, Inc. v. Nat’l
Labor Relations Bd., 635 F.2d 859, 868 n.10 (D.C. Cir. 1980) (“Under normal
‘contract-bar’ rules, an election petition for representative status may not be filed
during the term of a [CBA] that has a duration of up to three years, or during the first
three years of an agreement of longer duration[.]”).
             Further, where the PLRA is silent, our Supreme Court “look[s] for
guidance, therefore, to other statutes enacted by the Pennsylvania Legislature
regarding the selection of collective bargaining representatives.” Whitaker Borough
v. Pa. Labor Relations Bd., 729 A.2d 1109, 1111 (Pa. 1999). The PERA establishes a
three-year contract bar to be applied in circumstances such as those in this case.
Specifically, Section 605(7)(i) of PERA provides:
             No election shall be conducted pursuant to this section in
             any appropriate bargaining unit within which in the
             preceding twelve-month period an election shall have been
             held nor during the term of any lawful collective bargaining
             agreement between a public employer and an employe
             representative. This restriction shall not apply to that
             period of time covered by any collective bargaining
             agreement which exceeds three years. For the purposes


                                           8
            of this section, extensions of agreements shall not affect the
            expiration date of the original agreement.

43 P.S. § 1101.605(7)(i) (emphasis added). Based on the holdings in Whitaker
Borough and Chambersburg Borough, we agree with the Board’s adoption of a three-
year contract bar. Because the current contract was entered into in 2009, the contract
bar expired in 2012. Thus, the Petition was properly filed in 2014. Finding no “bad
faith, fraud, capricious action or abuse of power” on the Board’s behalf, and giving
the Board the “measure of deference” to which it is entitled, we affirm the Board’s
Order of Decertification. Ass’n of Pa. State Coll. & Univ. Faculties, 8 A.3d at 304-
05.
            For all of the above reasons, the Board’s order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge




                                          9
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kaolin Workers Union,                   :
                         Petitioner     :
            v.                          :
                                        :
Pennsylvania Labor Relations Board,     :   No. 1433 C.D. 2015
                        Respondent      :



                                      ORDER

            AND NOW, this 15th day of June, 2016, the Pennsylvania Labor
Relations Board’s July 21, 2015 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
