           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Amalgamated Transit Union Local 1279,      :
                      Petitioner           :
                                           :
                  v.                       :   No. 1134 C.D. 2018
                                           :   Argued: April 9, 2019
Pennsylvania Labor Relations Board,        :
                        Respondent         :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge (P)
            HONORABLE MICHAEL H. WOJCIK, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                       FILED: April 30, 2019


      Amalgamated Transit Union Local 1279 (Union) petitions for review of the
July 17, 2018 Final Order of the Pennsylvania Labor Relations Board (Board), in
which the Board dismissed the exceptions Union filed to a Proposed Decision and
Order (Proposed Decision) of the Hearing Examiner. The Board found Union did
not establish that Cambria County Transit Authority (CamTran) committed unfair
labor practices when it terminated Eileen Zibura (Zibura), a bus driver and Union
officer, for an incident involving another employee and a knife. Union argues the
Board erred in not finding CamTran committed the unfair labor practices,
committed an error of law in concluding the protected activity was not proximate
in time to infer anti-union animus, and misinterpreted a provision of the Public
Employe Relations Act (PERA).1 Discerning no errors, we affirm.


I.    Background
      The facts as found by the Hearing Examiner are summarized as follows.
Zibura worked at CamTran since 1989, during which time she served in various
capacities as a Union officer (president, recording secretary, and most recently
financial secretary) and a member of the negotiation team for 20 years. (Finding of
Fact (FOF) ¶ 3.) She was suspended for five days for an accident in September
2014, but an arbitrator subsequently reduced the discipline to six months of
probation. (Id. ¶ 4.) Because Union was successful in the arbitration of that
grievance, CamTran was assessed the $7685.66 arbitrator bill. (Id.) One week
later, CamTran removed a water cooler from the drivers’ room. (Id. ¶ 5.) When
confronted about the water cooler’s removal, the Chairman of the Board for
CamTran (Chairman) told Zibura it was because her arbitration cost CamTran too
much money. (Id.) “Zibura was the most outspoken” Union member concerning
the water cooler. (Id.) As financial secretary, Zibura served on the pension
committee. At an April 16, 2016 meeting, she moved to authorize a buy-back
provision, which management, including CamTran’s Executive Director, opposed.
(Id. ¶ 6.) She also testified at three or four arbitrations for other Union members,
the most recent one on September 26, 2016. (Id. ¶ 7.)
      On Friday, December 9, 2016, Zibura, Union President, and another driver
were in the breakroom at the Transit Center. Also present was an assistant from
human resources (HR Assistant), who was hanging posters. Zibura asked HR

      1
          Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101-1101.2301.



                                               2
Assistant, “Why do you come out of your cubby hole once a year.” (Id. ¶ 8.)
During this discussion, Zibura picked up an eight-inch knife that had been in the
breakroom for years and put it down. HR Assistant left the breakroom and did not
appear visibly distressed or upset. (Id.) HR Assistant subsequently completed an
incident report that same day wherein she stated:

      12/09/2016 – Transit Center/Drivers Room.
      At approximately 1:10 p.m. I was at the Transit Center . . . to hang the
      new workers[’] comp physician panels and the 2017 pay schedule
      . . . . I walked into the driver’s room. [Union President] was sitting at
      the table and [another driver] was sitting on the couch. I had my back
      turned to the room as I was hanging the papers and removing [the] old
      ones on the bulletin board besides [sic] the fridge. While I was
      hanging papers, [Zibura] walked in. She asked what I was doing there
      and I told her that I was hanging new notices for workers[’] comp so
      they knew where to go in case someone got hurt. She said to get out
      that it was their [the drivers’] room. She then asked if I wanted to
      play a game and when I turned towards her she picked up a long knife
      on top of the microwave and pointed it towards me a few inches from
      me. I told her I didn’t want to play any game and to put the knife
      down. She then said “here catch” and motioned like she was going to
      throw it at me. She continued to hold the knife upwards towards me
      and I asked her to put the knife down again. She held the knife
      toward me until I finished hanging the papers and walked out of the
      room.

(Id. ¶ 9 (quoting CamTran Ex. 3, Reproduced Record (R.R.) at 543a).)
      The following Monday (December 12, 2016), Zibura was relieved from her
regular shift and told to report to the main office, where she was informed that she
was under investigation for the incident that occurred on Friday. (FOF ¶ 10.)
Human Resource Manager (HR Manager) and Director of Facilities, Safety,
Security and Risk Management (Director of Facilities) conducted the investigation
and recommended to Executive Director that Zibura be discharged for violating
CamTran’s weapons policy.       (Id. ¶¶ 11, 13.)    Executive Director makes final


                                         3
decisions on discipline and informed Zibura by letter on December 20, 2016, that
she was being terminated. (Id. ¶¶ 13-14.) According to the letter, after reviewing
the investigation and meeting with Zibura herself, Executive Director did not
believe “the totality of the circumstances . . . support[ed] [Zibura’s] version of the
facts.” (Id. ¶ 14 (quoting CamTran Ex. 10, R.R. at 563a).) The letter stated Zibura
was:

       being terminated, effective immediately, [for] the following serious
       behavior and egregious misconduct:

       1.     You directed verbal hostility toward a management employee
       by entering the room and asking what she was doing in “their” room
       and why she came out of her “cubby hole,” creating an unwelcome
       atmosphere.

       2.     You were in possession of a knife on [CamTran] Property,
       endangering the safety of all employees. You intimidated and
       threated [sic] an employee of CamTran, [HR Assistant], by asking if
       she wanted to “play a game,” picking up the knife and holding the
       point towards her, motioning to throw the knife at her at one point,
       and not putting the knife down after asked.

       3.     You disregarded [HR Assistant]’s attempts to deescalate the
       situation by continuing to hold the knife and moved your arm toward
       her as to throw/toss the knife at her. Even though you did not
       throw/toss the knife, it created a significantly unsafe and intimidating
       work environment.

       The knife is considered a weapon, as it is not used for its intended
       purpose, which could have resulted in serious bodily injury. In
       today’s climate of threats and violence in the workplace, there is no
       justifiable reason for this behavior.

       Under Employee Responsibilities Section – EMPL – 20 of the
       Employee Handbook, it states:

           7. Possession of Any Weapon While on [CamTran] Property:
            A weapon is defined as any instrument that is not used for its
            intended purpose or an implement of crime that could result in

                                          4
             serious bodily injury or endangers the safety of employees or
             the public. First Offense – Discharge.

(Id. (quoting CamTran Ex. 10, R.R. at 563a-64a).)
      The Hearing Examiner found HR Manager and Director of Facilities “did
not consider Zibura’s Union affiliation or activities” when they recommended
termination and Executive Director did not consider Zibura’s Union activities in
making her decision to discharge Zibura. (Id. ¶¶ 12, 15.)
      Zibura grieved her termination, and an arbitrator ultimately set aside her
termination, concluding CamTran did not meet its burden of proof to support
termination. The arbitrator did find that Zibura’s conduct rose to the level where
discipline was proper and ordered reinstatement without back pay. (Id. ¶ 16;
Union Ex. 11, R.R. at 507a-08a.)2
      Union filed charges of unfair labor practices against CamTran, alleging
violations of Section 1201(a)(1)-(4) of PERA, 43 P.S. § 1101.1201(a)(1)-(4).3 The



      2
        CamTran appealed the arbitrator’s decision to the Court of Common Pleas of Cambria
County. (R.R. at 511a-28a.)
      3
        Section 1201(a)(1)-(4) provides, in relevant part:

      Public employers, their agents or representatives are prohibited from:

      (1) Interfering, restraining or coercing employes in the exercise of the rights
      guaranteed in Article IV of this act.

      (2) Dominating or interfering with the formation, existence or administration of
      any employe organization.

      (3) Discriminating in regard to hire or tenure of employment or any term or
      condition of employment to encourage or discourage membership in any employe
      organization.

(Footnote continued on next page…)


                                              5
Board issued a complaint, and the matter was assigned to the Hearing Examiner
who conducted a hearing on November 1, 2017. At the hearing, Zibura, Union
President, an employee who worked at the bus stop shop just outside the
breakroom the day of the incident, the other driver present in the breakroom during
the incident, and a retired driver who was involved in a verbal altercation with
another employee testified for Union. Employer presented the testimony of HR
Assistant, HR Manager, Director of Facilities, and Executive Director.
       Following post-hearing submissions by the parties, the Hearing Examiner
issued a Proposed Decision and Order on April 20, 2018. Therein, the Hearing
Examiner concluded CamTran did not commit unfair trade practices under Section
1201(a)(1)-(4). With regard to the claim under Section 1201(a)(2), the Hearing
Examiner concluded this provision prohibits company unions, and because Union
did not allege CamTran formed a company union, the Hearing Examiner dismissed
the claim. The Hearing Examiner also concluded that Union did not establish
CamTran discriminated against Zibura for filing affidavits, petitions, or complaints
with the Board and, accordingly, dismissed Union’s claim under Section
1201(a)(4). As for Union’s claim under Section 1201(a)(3), the Hearing Examiner
found Union met its burden of proving Zibura engaged in protected activities and
that CamTran was aware that Zibura engaged in at least some of those activities,
but Union did not establish anti-union animus. The Hearing Examiner noted there


_____________________________
(continued…)
       (4) Discharging or otherwise discriminating against an employe because he has
       signed or filed an affidavit, petition or complaint or given any information or
       testimony under this act.

43 P.S. § 1101.1201(a)(1)-(4).



                                             6
was no direct evidence of such animus and declined to infer such animus existed.
Specifically, the Hearing Examiner found:

      the following facts . . . weigh heavily against an inference of anti-
      union animus. First, the decision to terminate Zibura was not made in
      close temporal nexus to any known engagement in protected activity
      by Zibura. She testified in an arbitration hearing on September 26,
      2016, and was not terminated until December 12, 2016. I find that,
      based on the record as a whole, this is a significant lapse in time and
      shows that the decision to terminate Zibura was not motivated by
      animus. Other known protected activity occurred even more remote
      in time: the committee meeting where Zibura advocated for a buy-
      back plan and complained about the removal of a water cooler
      happened in April 2016 and her victorious arbitration against
      CamTran occurred in 2015. Second, in this matter CamTra[n] has
      adequately explained the termination of Zibura.              Importantly,
      [Executive Director, HR Manager, and Director of Facilities] credibly
      testified that their decision to terminate Zibura was based on their
      crediting the account of events by [HR Assistant] and their
      interpretation of CamTran’s weapon policy which calls for discharge
      on the first offense. [Executive Director, HR Manager, and Director
      of Facilities] all credibly testified that they did not consider Zibura’s
      Union affiliation or engagement in protected activities at any relevant
      point in their investigation and discipline determination. Further, I do
      not find the fact that, based on the decision of the Arbitrator . . . to
      rescind the termination, that CamTran may have made the wrong
      decision to be evidence of animus in this matter. An incorrect
      disciplinary decision, is not, by itself, a statutory violation. Third,
      there is no evidence in this record that the CamTran management
      involved in the discipline process . . . made any anti-union statements
      or statements which would tend to show their mind as harboring
      animus against Zibura’s engagement in protected activities.

(Proposed Decision and Order at 7, R.R. at 103a-04a.)
      The Hearing Examiner also rejected Union’s attempt to infer animus based
upon CamTran’s failure to follow progressive discipline, finding “the discipline in
this matter was reasonably related to a credible interpretation of the alleged events,
even if an arbitrator later found CamTra[n] to have made an error with regard to


                                          7
discipline.” (Id.) The Hearing Examiner likewise rejected Union’s argument of
disparate treatment, noting that the other incident did not involve weapons. (Id.)
As a result, the Hearing Examiner dismissed Union’s claim under Section
1201(a)(3).
      The Hearing Examiner similarly dismissed Union’s claim under Section
1201(a)(1). The Hearing Examiner found that “Zibura had not recently engaged in
protected activity” and the conduct for which she was disciplined was not
considered a protected activity. (Id. at 8.) Thus, the Hearing Examiner concluded
“a reasonable employe would not be coerced in their [sic] exercise of protected
rights due to Zibura’s termination.” (Id.) Moreover, the Hearing Examiner found
that “even if a reasonable employe would be coerced by CamTran’s actions,
CamTran had legitimate reason for its decision to discipline Zibura,” and “[t]his
legitimate reason would outweigh any coercive effect that could be found on this
record.” (Id.)
      Union filed exceptions to the Proposed Decision and Order, which the Board
dismissed by Final Order dated July 17, 2018. The Board concluded the Hearing
Examiner did not err in finding no evidence of discriminatory animus and
Lancaster County v. Pennsylvania Labor Relations Board, 124 A.3d 1269 (Pa.
2015), upon which Union relied, was distinguishable for a number of reasons. As
a preliminary matter, the Board noted that “[w]here there is conflicting testimony
as to motive, it is the function of the Hearing Examiner to assess the weight of the
testimony provided and to determine the facts based on those credibility
determinations.” (Final Order at 5 (citations omitted).) First, the Board noted that
unlike Lancaster County, where the protected activity was contemporaneous to the
discipline, here, it was not. (Id. at 6.) The Board further noted that while timing



                                         8
may be evidence of an unlawful motive, it is not determinative, and when the
record is considered as a whole, the Hearing Examiner did not err in not inferring
animus. (Id. at 6-7.) Second, unlike in Lancaster County, here there was not
substantial evidence of disparate treatment because the other altercation between
employees did not involve a violation of CamTran’s weapons policy. (Id. at 7.)
Third, the weapons policy here expressly called for termination for a first offense,
whereas the policy in Lancaster County was progressive. (Id.) “Fourth, and most
importantly,” the Board noted, “in Lancaster County, the [h]earing [e]xaminer
rejected, as not credible the employer’s assertion that it would have fired the
employes even in the absence of the union organizing drive,” but “[h]ere, . . . the
Hearing Examiner found CamTran’s witnesses credibly testified that they decided
to terminate . . . Zibura’s employment because of CamTran’s weapons policy,” not
Zibura’s protected activities. (Id.) As a result, the Board concluded Union did not
meet its burden of proving an unfair labor practice under Section 1201(a)(3), and,
therefore, the burden never shifted to CamTran to show it would have taken the
same action anyway. (Id.) Regardless, the Board stated that had the burden shifted
to CamTran, “the record contains substantial evidence, credited by the Hearing
Examiner, that . . . Zibura was discharged based on CamTran’s belief that she had
violated its weapons policy.” (Id.)
      The Board further concluded the Hearing Examiner did not err in dismissing
Union’s claim under Section 1201(a)(4) because there was no evidence that Zibura
signed or filed the charge of unfair labor practices related to removal of the water
cooler in October 2015. (Id. at 8.) Nor did Union prove CamTran harbored anti-
union animus. (Id.)




                                         9
      Concerning the claim under Section 1201(a)(1), the Board concluded that,
“under the totality of the circumstances,” Zibura’s termination would not tend to
interfere with or coerce employes from engaging in protected activities. (Id.)
Finally, with regard to the claim under Section 1201(a)(2), the Board, like the
Hearing Examiner, concluded this provision was “limited to preventing an
employe organization from becoming so controlled or assisted by the employer
that the employe organization is indistinguishable from the employer.” (Id. at 9
(citation omitted).)      The Board explained that claims such as an employer
terminating an employe because of the employe’s involvement in collective
bargaining or an employer refusing to bargain with the employe representative’s
chosen negotiator, fall under other provisions, namely Section 1201(a)(3) and (5),
respectively. (Id.) These claims are not “subsumed” by Section 1201(a)(2). (Id.)
      Because Union did not meet its burden of establishing violations of Section
1201(a)(1)-(4), the Board concluded the Hearing Examiner did not err in
dismissing the charges, and the Board made the Hearing Examiner’s Proposed
Decision and Order absolute and final. (Id.) This appeal followed.


II.            Parties’ arguments
      Union argues the Board erred:4 (1) in failing to find CamTran violated
Section 1201(a)(3), and by not inferring anti-union animus when Zibura’s
protected activity was proximate in time to her discipline; (2) in disregarding the
plain language of Section 1201(a)(2) and finding it pertains only to the prohibition




      4
          We have consolidated and reordered Union’s arguments for ease of discussion.



                                              10
of company unions and not interfering with a union’s existence or administration;
and (3) in failing to find CamTran violated Section 1201(a)(1).5
       Regarding the first issue, Union argues the Board’s finding is against
precedent and not supported by substantial evidence. It notes Zibura was engaged
in numerous acts of protected activity, about which her supervisors knew. It also
asserts that there was evidence from which anti-union animus could have and
should have been inferred. Specifically, Union argues that unlawful motive could
be inferred by CamTran’s failure to follow progressive discipline, noting that
“picking up the knife and putting it back down . . . cannot possibly be sufficiently
serious to warrant proceeding directly to termination.” (Union’s Brief (Br.) at 22.)
It points out there was no verbal threat, police were not contacted, and Zibura was
not immediately removed from work but instead was removed three days later, all
of which is evidence that the reason for her termination was not credible. In short,
Zibura’s “penalty was disproportionate to the offense,” and “at most,” Union
argues, the incident was “a joke in bad taste.” (Id. at 24, 28.) In addition, Union
argues Zibura was treated differently from similarly situated males, pointing to the
altercation of two male drivers, neither of whom were disciplined.
       Union further argues anti-union animus should have been inferred based
upon the timing of Zibura’s protected activities and her discipline, noting that
leading up to her discharge, Zibura testified for another employee and the
discharge occurred shortly before negotiations on a new collective bargaining


       5
         Although Union raised the issue of Section 1201(a)(4) in its Petition for Review, it did
not address that issue in its brief. It therefore appears either to have abandoned or waived that
claim. Pennsylvania Rules of Appellate Procedure 2116(a), 2119, Pa.R.A.P. 2116(a), 2119;
AFSCME, Dist. Council 47, Local 2187 v. Pa. Labor Relations Bd., 41 A.3d 213, 222 (Pa.
Cmwlth. 2012).



                                               11
agreement (CBA) were scheduled to begin. It claims her testimony at the other
driver’s arbitration occurred within three months of her termination, and three
months has been held sufficient to infer animus in other cases.
      Next, Union argues the Board misinterpreted Section 1201(a)(2) by limiting
it to apply only to prohibitions against company unions. Union argues the plain
language of Section 1201(a)(2) demonstrates it also protects against interference
with the existence and administration of employe organizations and is not
restricted to only domination of or assistance to employe organizations. According
to Union, CamTran violated Section 1201(a)(2) by interfering with administration
of Union by attempting to prevent Zibura from participating in upcoming
negotiations of the new CBA.
      Finally, Union asserts that CamTran committed both an independent and
derivative violation of Section 1201(a)(1). It argues a reasonable employee would
be coerced by witnessing a 30-year employee and union officer being terminated,
which is sufficient to support an independent violation of Section 1201(a)(1).
Also, because CamTran violated other sections of the PERA, this supports a
derivative claim, Union claims. Union asks this Court to reverse the Board’s Final
Order and reinstate Zibura to her former position and make her whole for all lost
wages, benefits, and seniority since her termination.
      The Board responds that Union did not meet its burden under Section
1201(a)(3). It acknowledges that Union established the first two elements of such
a claim – protected activity and employer’s knowledge of the protected activity but
argues Union did not prove the third element – anti-union animus. The Board
argues that timing is only one factor to consider in inferring animus, but claims it is
not determinative. Here, the Board claims an intervening event, the knife incident,



                                          12
broke the nexus. The Board asserts the discipline here was not contemporaneous
with the protected activity, like it was in Lancaster County. Further, the Board
argues there was no evidence of disparate treatment because the two situations
were not sufficiently similar, as one involved a verbal altercation between
employees and this incident involved a knife. The Board also argues animus
should not be inferred from failure to follow progressive discipline because
CamTran had a zero-tolerance policy when it came to weapons; therefore, it did
not need to follow progressive discipline with Zibura. Moreover, the Board notes
CamTran did not deviate from its policy, but followed it, just as it did with its
investigation into the incident.        The Board emphasizes that credibility
determinations are within its purview, and it accepted the Hearing Examiner’s
factual determinations, which credited CamTran’s witnesses.         The Board also
noted that even under a mixed motive analysis, there was no error because
CamTran established it would have discharged Zibura anyway.
      With regard to Section 1201(a)(2), the Board asserts that the purpose of this
provision is to prevent an employer from controlling or assisting an employee
organization such that the employee organization becomes indistinguishable from
the employer. As the agency charged with enforcing the PERA, the Board argues
its interpretation is entitled to deference. It further notes, as it did in its Final
Order, that the complained of conduct falls within the purview of other subsections
of Section 1201.
      As to Union’s claimed violation of Section 1201(a)(1), the Board argues
there was no violation because terminating an employee for violating a company’s
weapons policy would not interfere or coerce reasonable employees from engaging
in protected activity.



                                         13
       CamTran intervened in this matter and argues that Union is simply
disagreeing with the facts as found by the Hearing Examiner, and given this
Court’s limited review, those determinations cannot be overturned. It argues HR
Assistant was not involved in Union or personnel matters, so she had no motive to
lie about the incident.        Furthermore, CamTran argues the totality of the
circumstances show HR Assistant did not think it was a joke. CamTran points out
that management thoroughly investigated the matter, as it would any other
incident, before taking action.
       CamTran also argues there was no evidence it was motivated by anti-union
animus or was trying to discourage Union membership. According to CamTran,
the protected activities were removed in time and it was unaware of some of the
protected activities. As for Union’s claim of disparate treatment, CamTran argues
the incident with the other drivers did not involve a weapon; therefore, they are not
similarly situated. In short, CamTran argues there is no evidence of discrimination
in its investigation or retaliation in its discipline.

III.          Discussion
       Preliminarily, we note our review of the Board’s Final Order is limited to
“whether there has been a violation of constitutional rights, an error of law, [or]
procedural irregularity, or whether the findings of the agency are supported by
substantial evidence.” Borough of Ellwood City v. Pa. Labor Relations Bd., 998
A.2d 589, 594 (Pa. 2010). Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Lancaster
County, 124 A.3d at 1286 (citation omitted). It “is more than a mere scintilla and
must do more than create a suspicion of the existence of the fact to be established.”
Id. (citation omitted). The existence of evidence to support contrary findings does


                                             14
not mean the actual findings are not supported by substantial evidence. Am. Fed’n
of State, Cty. & Mun. Emps., Dist. Council 87 v. Pa. Labor Relations Bd., 77 A.3d
53, 59 (Pa. Cmwlth. 2013). So long as the Board’s findings are supported by
substantial evidence and its legal conclusions “drawn from those facts are
reasonable, not capricious, arbitrary, or illegal,” the Board’s decision should be
upheld. Lancaster County, 124 A.3d at 1286. Moreover, it is within the Board’s
province to resolve conflicts in evidence, make credibility determinations,6 resolve
factual questions and draw inferences from those facts. City of Reading v. Pa.
Labor Relations Bd., 568 A.2d 715, 718 (Pa. Cmwlth. 1989).
      With the above principles in mind, we turn to the issues raised by Union.


      A.       Unfair Labor Practice under Section 1201(a)(3)
      Section       1201(a)(3)     of    PERA       prohibits    public    employers   from
“[d]iscriminating in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership in any employe
organization.” 43 P.S. § 1101.1201(a)(3). Union, as the party asserting an unfair
labor practice, bears the burden of proving CamTran violated this subsection.
Perry County v. Pa. Labor Relations Bd., 634 A.2d 808, 810-11 (Pa. Cmwlth.
1993). To prove an unfair labor practice, Union must show, “by a preponderance
of the evidence, that: (1) the employee was engaged in protected activity; (2) the
employer knew of the activity; and (3) the employer was motivated by an unlawful
motive or anti-union animus in taking adverse action against the employee.”
Lancaster County, 124 A.3d at 1286. If Union establishes a prima facie case, “the
burden then shifts to the employer to establish, by a preponderance of the evidence,

      6
          Here, the Board accepted the Hearing Examiner’s findings as its own.



                                               15
that the employee would have been discharged even in the absence of . . . union
activities.” Lehighton Area Sch. Dist. v. Pa. Labor Relations Bd., 682 A.2d 439,
443 (Pa. Cmwlth. 1996).
      Here, the first two elements are not at issue. The Board found and the
parties do not dispute that Zibura engaged in protected activity and that CamTran
had knowledge of at least some of those activities. Therefore, our inquiry is
limited to whether CamTran acted with an unlawful motive or with anti-union
animus when it disciplined Zibura. An employer’s motive may be inferred based
on its actions. Lancaster County, 124 A.3d at 1289. Motive should be determined
based on an examination of the record as a whole. Id. Factors to be considered
include the credibility of the employer’s stated reasons for discipline, the timing of
the discipline in relation to the protected activity, the nature of the employer’s
investigation, the employer’s treatment of similarly situated employees, and the
employer’s application of progressive discipline. Id. at 1289-90.
      Here, the Hearing Examiner examined those factors and concluded that they
“weigh heavily against an inference of anti-union animus.” (Proposed Decision
and Order at 6-7.) The Hearing Examiner credited the testimony of HR Manager,
Director of Facilities, and Executive Director, that the reason for their
recommendation or decision, in the case of Executive Director, was the knife
incident involving Zibura and HR Assistant. (Id. at 7.) Moreover, they each
testified that their investigation was in accordance with how they conducted all
other investigations involving employees, and they did not consider Zibura’s
Union activities. (R.R. at 317a, 333a, 365a, 380a-81a.) It also does not appear as
though CamTran rushed to judgment. Upon receiving HR Assistant’s incident
report, HR Manager and Director of Facilities interviewed Union President and the



                                         16
other driver, both of whom were present in the breakroom. (R.R. at 320a, 361a;
CamTran Exs. 5 & 6, R.R. at 546a-51a.) They also interviewed Zibura herself to
obtain her version of events. (R.R. at 321a-22a; CamTran Ex. 7, R.R. at 553a-
56a.)    After HR Manager and Director of Facilities recommended Zibura’s
termination, Executive Director did not simply act on their recommendation but
met with Zibura a second time to hear firsthand Zibura’s version of events. (R.R.
at 325a, 378a, 382a.) Only then did she decide to terminate Zibura for violation of
the weapons policy. Union points to the three-day delay in removing Zibura from
her route as evidence that the incident was not serious. However, this argument
ignores that the incident occurred on a Friday afternoon and by the time HR
Assistant returned to the main office and completed her incident report, Zibura’s
shift was over or nearing completion. (Id. at 335a, 361a.) While Zibura began her
shift the following Monday at 6 a.m., when office personnel reported to work later
that morning, they promptly pulled her from her route and directed her to meet
with them at the main office. In addition, CamTran’s weapons policy called for
discharge for the first offense, which is what CamTran followed. (CamTran Ex. 2,
R.R. at 533a.) Based on the credited testimony, we cannot find that the Board
erred in not inferring anti-union animus from CamTran’s failure to resort to
progressive discipline.
        Although Union offered conflicting evidence, the Hearing Examiner was the
factfinder responsible for resolving conflicts in evidence and making credibility
determinations. City of Reading, 568 A.2d at 718. We cannot overturn those
findings on appeal unless they are not supported by substantial evidence. As
discussed above, the record evidence here supports these findings.       Although
Union presented contrary evidence, this does not mean there was not substantial



                                        17
evidence to support the findings of the Hearing Examiner. Am. Fed’n of State, Cty.
& Mun. Emps., Dist. Council 87, 77 A.3d at 59. Therefore, we cannot conclude
the Hearing Examiner erred in refusing to infer anti-union animus.
      Nor can we conclude that the Hearing Examiner was required to find
discriminatory animus as a matter of law based upon the temporal proximity
between the discipline and the protected activity. Union is correct that timing is
important, but it is not determinative. It is but one factor to be considered. The
Hearing Examiner considered the timing of the protected activity and Zibura’s
discharge and decided it was too remote to be given much weight, especially when
the record as a whole was considered. (Proposed Decision and Order at 7.)
Although the Board in Lancaster County found anti-union animus could be
inferred from the timing of the employees’ protected activity and their discharge, it
did so in conjunction with other factors, such as the nature of the employer’s
investigation and the disparate treatment of other employees, which is not present
here. 124 A.3d at 1289-90.
      Union also argued anti-union animus could be inferred from the disparate
treatment of Zibura and the other drivers who were involved in an altercation.
“Disparate treatment has previously been recognized in discrimination cases as a
valid way of demonstrating an improper bias provided the circumstances of the
employees who are compared with the complainant are sufficiently similar.” City
of Reading, 568 A.2d at 719. Here, as the Hearing Examiner noted, the incident
involving Zibura and the altercation involving the other drivers are not sufficiently
similar. The retired driver who was involved in the other altercation testified it
was a verbal altercation involving yelling and screaming. (R.R. at 295a-96a.)
Here, the incident involved a knife. Under CamTran’s weapons policy, the knife



                                         18
was a weapon because it was not being used for its intended purpose, i.e. cutting
food. (CamTran Ex. 2, R.R. at 533a.) Therefore, the two incidents are not
sufficiently similar in nature to infer disparate treatment.
      Based upon the credited evidence as found by the Hearing Examiner, Union
did not meet its burden of showing CamTran acted with anti-union animus when it
discharged Zibura following the knife incident. Moreover, upon review of the
record, those findings are supported by substantial evidence. Accordingly, we
affirm the Board’s Final Order dismissing this claim.


      B.     Unfair Labor Practice under Section 1201(a)(2)
      Section 1201(a)(2) prohibits a public employer from “[d]ominating or
interfering with the formation, existence or administration of any employe
organization.” 43 P.S. § 1101.1201(a)(2). The Board found CamTran did not
violate this subsection of the PERA because there was no allegation or evidence
that CamTran tried to prevent Union “from becoming so controlled or assisted by
[CamTran] that [Union] is indistinguishable from [CamTran].” (Final Order at 9.)
Union’s allegations, the Board found, properly fell under other subsections of
Section 1201(a), such as subsection (3) or (5). (Id.) Union claims this was error
because the plain language of Section 1201(a)(2) provides that it is unlawful to
“interfere[e] with the . . . administration of any employe organization.” (Union Br.
at 35 (citing 43 P.S. § 1101.1201(a)(2)).)
      For issues involving statutory interpretation, which are legal questions, the
Pennsylvania Supreme Court has stated:

      [A]n administrative agency’s interpretation [of a statute] is to be given
      controlling weight unless clearly erroneous. However, when an
      administrative agency’s interpretation is inconsistent with the statute

                                          19
       itself, or when the statute is unambiguous, such administrative
       interpretation carries little weight. Appreciating the competence and
       knowledge an agency possesses in its relevant field, our Court [has]
       opined that an appellate court will not lightly substitute its judgment
       for that of a body selected for its expertise whose experience and
       expertise make it better qualified than a court of law to weigh facts
       within its field. Moreover, we have emphasized that this high level of
       deference is especially significant in the complex area of labor
       relations.

Lancaster County, 124 A.3d at 1286 (citations and quotations omitted).
           We acknowledge that there is a dearth of case law interpreting Section
1201(a)(2).7 However, we need not determine whether the Board’s interpretation
of Section 1201(a)(2) is correct because, based upon the factual findings of the
Hearing Examiner, Union has not demonstrated that CamTran “interfer[ed] with
the . . . administration of [Union].” 43 P.S. § 1101.1201(a)(2). As the Board
noted, “[c]laims that an employer terminated an employe because of the employe’s


       7
          “When there are no Pennsylvania cases on point, we have been encouraged by the
Supreme Court of Pennsylvania to follow the [National Labor Relations Board] cases
interpreting provisions of the [National Labor Relations Act, 29 U.S.C. §§ 151-169] similar to
the PERA.” Commonwealth v. Pa. Labor Relations Bd., 826 A.2d 932, 934 (Pa. Cmwlth. 2003).
Both Section 6(1)(b) of the Pennsylvania Labor Relations Act, Act of June 1, 1937, P.L. 1168, as
amended, 43 P.S. § 211.6(1)(b), and Section 8(a)(2) of the National Labor Relations Act, 29
U.S.C. § 158(a)(2), provide that it is “an unfair labor practice for an employer . . . to dominate or
interfere with the formation or administration of any labor organization or contribute financial or
other” forms of support to it. There is also a dearth of case law involving those provisions.
However, we note that Board decisions involving Section 1201(a)(2) have been limited to those
involving company unions. See, e.g., Conrad Weiser Educ. Ass’n v. Conrad Weiser Area Sch.
Dist., 46 PPER ¶ 59 (2014) (explaining that to show a violation of this subsection, the union
must demonstrate “that the employer is interfering or dominating the union by placing
managerial employes in the hierarchy of the union or by providing financial or other aid to the
union to the point that the union is controlled by the employer and no[] longer represents the
wishes of the employees.”); Nat’l Conference of Firemen & Oilers Local 473 v. Phila. Hous.
Auth., 33 PPER ¶ 33061 (2002) (explaining that like its federal counterpart, Section 1201(a)(2)
“prohibit[s] the formation of company unions”).



                                                20
involvement in collective bargaining” would fall under Section 1201(a)(3),
(Board’s Br. at 28), and, as discussed above, we have affirmed that there was no
violation of that subsection. Therefore, these allegations cannot support a claim
under Section 1201(a)(2) either.
      Moreover, there is no evidence of interference, generally. As the Hearing
Examiner found, Zibura’s discharge was independent of her or Union’s activities.
The Hearing Examiner credited HR Manager who testified she terminated Zibura
for violating CamTran’s weapons policy. The Hearing Examiner found this was
sufficient to justify CamTran’s actions. Similar to Section 1201(a)(1), which deals
with interfering with an employee’s rights, an employer cannot be charged with
interfering with a union under Section 1201(a)(2) if there is a legitimate basis for
its actions. Otherwise, employers would be subject to an unfair labor practice
claim every time it took any adverse action against a union officer, even if that
action would otherwise be justified.
      Because the record is devoid of credited evidence that CamTran interfered
with Union’s existence or administration, Union’s claim under Section 1201(a)(2)
does not succeed.


      C.     Unfair Labor Practice under Section 1201(a)(1)
      Section 1201(a)(1) prohibits a public employer from “[i]nterfering,
restraining or coercing employes in the exercise of the rights guaranteed in
[Section 401 of the PERA, 43 P.S. § 1101.401].” 43 P.S. § 1101.1201(a)(1).
Section 401, in turn, provides:

      It shall be lawful for public employes to organize, form, join or assist
      in employe organizations or to engage in lawful concerted activities
      for the purpose of collective bargaining or other mutual aid and


                                        21
       protection or to bargain collectively through representatives of their
       own free choice and such employes shall also have the right to refrain
       from any or all such activities, except as may be required pursuant to a
       maintenance of membership provision in a collective bargaining
       agreement.

43 P.S. § 1101.401.
       A violation of this subsection can be either independent or derivative. A
violation of another subsection would be sufficient to establish a derivative
violation of Section 1201(a)(1). Lancaster County, 124 A.3d at 1277 n.3. In other
words, if Section 1201(a)(2)-(9) were violated, Section 1201(a)(1) is also violated.
       Alternatively, “[a]n independent violation occurs when an employer engages
in conduct that tends to interfere, restrain, or coerce reasonable employees in the
exercise of their rights under” Section 401 of PERA. Elliott v. Pa. Labor Relations
Bd. (Pa. Cmwlth., No. 588 C.D. 2016, filed March 2, 2017), slip op. at 9.8 The
Board has found an independent violation when “the actions of the employer, in
light of the circumstances in which the particular act occurred, tend to be coercive,
regardless of whether employes have been shown, in fact, to have been coerced.”
Faculty Fed’n of the Cmty. Coll. of Phila., Local 2026 v. Cmty. Coll. of Phila., 20
PPER ¶ 20194 (1989). Once a prima facie case is established, the burden shifts to
the employer to show “it had a legitimate reason for the action it took and that the
need for this action justified any interference with the employees’ exercise of their
statutory rights.” Id. A balancing test is then applied, where the employer’s need
to act for legitimate reasons is weighed against the employees’ statutory rights. Id.

       8
         Elliott is an unreported panel decision of this Court, which is cited in accordance with
Section 414(a) of this Court’s Internal Operating Procedures, which provides that an unreported
panel decision issued by this Court after January 15, 2008, may be cited “for its persuasive value,
but not as binding precedent.” 210 Pa. Code § 69.414(a).




                                                22
      As stated above, Union has not established that CamTran violated Section
1201(a)(2) or (3) of the PERA. Therefore, it cannot establish a derivative violation
of Section 1201(a)(1). Lancaster County, 124 A.3d at 1277 n.3. Based upon the
findings of fact and credibility determinations made by the Hearing Examiner and
adopted by the Board, Union also cannot establish an independent violation of
Section 1201(a)(1). Here, the Board determined Zibura was terminated because of
her violation of the weapons policy. We cannot find that this would tend to
interfere with or coerce employees from engaging in protected activity. Employers
have a duty to provide a safe work environment for their employees. CamTran had
a legitimate reason for taking action against Zibura for violating the weapons
policy. See Pittston Area Sch. Dist., 27 PPER ¶ 27066 (1996) (finding disciplinary
action for defying “employer’s instructions[] does not have a tendency to coerce”
employees because “no policy of PERA would be served if the acts of
insubordination were sheltered under the protection of the right of employes to
engage in lawful union activity”).
      Union repeatedly argues the incident “amounts to a very minor offense” or if
it was misconduct, it was “a minor, trivial offense.” (Union’s Br. at 31-32.) This
characterization, however, ignores the Hearing Examiner’s findings. We reiterate,
the Hearing Examiner is the ultimate factfinder, responsible for resolving conflicts
in evidence and making credibility determinations. City of Reading, 568 A.2d at
718. The Hearing Examiner’s findings here were in favor of CamTran. As such,
we cannot find the Board erred in dismissing Union’s claim under Section
1201(a)(1).




                                        23
IV.         Conclusion
      Union argues the Board erred in dismissing its claims of unfair labor
practices against CamTran, but, in reality, Union is challenging the Board’s
credibility determinations and how it resolved conflicts in evidence. It is well
established, however, that those issues are solely within the province of the
factfinder. City of Reading, 568 A.2d at 718. Because we cannot disturb the
Hearing Examiner’s findings, which were adopted by the Board, and those findings
are supported by substantial evidence, we affirm the Board’s Final Order.



                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge




                                        24
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Amalgamated Transit Union Local 1279,       :
                      Petitioner            :
                                            :
                 v.                         :   No. 1134 C.D. 2018
                                            :
Pennsylvania Labor Relations Board,         :
                        Respondent          :

                                 ORDER


     NOW, April 30, 2019, the Final Order of the Pennsylvania Labor Relations
Board dated July 17, 2018, is AFFIRMED.



                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge
