Opinion

K. Grube v. PA Labor Relations Board

  • 212 A.3d 105
Court
Commonwealth Court of Pennsylvania
Filed
Apr 2, 2019
Status
Published
Author
Simpson
On the bench
Simpson, Wojcik, Cannon
Cited by
0 cases
Authority
More cited than 7.3%

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith Grube, :

Petitioner :

:

v. : No. 76 C.D. 2018

: Argued: March 12, 2019

Pennsylvania Labor Relations Board, :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE SIMPSON FILED: April 2, 2019

Before this Court is a petition for review filed by Keith Grube (Grube)

from an order of the Pennsylvania Labor Relations Board (Board). The Board

dismissed Grube’s exceptions and made absolute and final a hearing examiner’s

proposed order dismissing Grube’s decertification petition for failure to establish the

requisite showing of interest. Upon review, we affirm the Board’s order.

I. Background

In January 1972, the Board certified the American Federation of State,

County and Municipal Employees, Council 13 (AFSCME) as the exclusive

representative of a bargaining unit comprised of all Commonwealth professional

inspection, investigation, and safety services employees. The certification does not

exclude nonmembers of the union from the bargaining unit. AFSCME has served

as the bargaining unit’s exclusive representative since that time.

In April 2016, Grube filed a petition for decertification of AFSCME as

the bargaining unit’s exclusive representative. Grube was a member of the

bargaining unit at the time he filed his decertification petition.

In support of the petition, Grube attached 457 authorization cards

ostensibly signed by bargaining unit members. Grube obtained a list of bargaining

unit members through a request under the Right-to-Know Law.1 That list contained

1305 names. Grube therefore concluded that the 457 cards he submitted exceeded

the 30% showing of interest required to trigger a hearing and an election pursuant to

Section 607 of the Public Employe Relations Act (PERA),2 43 P.S. §1101.607.

Upon receiving Grube’s decertification petition, the Board requested a

list of bargaining unit members from the Commonwealth. That list included names

not subject to disclosure on the list provided to Grube under his Right-to-Know Law

request. The Commonwealth’s list contained 1524 names. Thus, the Board

calculated that Grube needed to submit at least 458 valid authorization cards to reach

the 30% minimum showing of interest.

After reviewing the authorization cards, the Secretary of the Board

determined Grube did not submit a sufficient number of cards completed by

bargaining unit employees with original signatures and dates to demonstrate the

minimum 30% interest. Accordingly, the Secretary dismissed the decertification

petition as unsupported by the requisite showing of interest.

1

Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101 – 67.3104.

2

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

2

Grube filed exceptions with the Board, asserting that the

Commonwealth’s list of bargaining unit members was inaccurate. The Board

remanded the matter to the Secretary for a hearing limited to the issue of the accuracy

of the Commonwealth’s list of bargaining unit members. In its remand order, the

Board expressly noted that while the accuracy of an employee list may be subject to

challenge in a hearing, the adequacy of a showing of interest through authorization

cards is an administrative matter not subject to collateral attack in a hearing.3

The Secretary scheduled a hearing on Grube’s decertification petition.4

The Commonwealth presented evidence that it obtained its list of bargaining unit

employees from its computerized records, and that the list included all employees,

both union members and nonmembers, who were employed in the bargaining unit

on the day the list was generated.

Grube offered no evidence refuting the accuracy of the

Commonwealth’s list. Accordingly, the hearing examiner found the

Commonwealth’s list provided an accurate count of the bargaining unit members.

Despite the limited purpose of the Board’s remand, the hearing

examiner also reviewed the authorization cards submitted in support of Grube’s

petition. The hearing examiner concluded a substantial number of the cards were

3

See 34 Pa. Code §95.17.

4

The hearing also related to a similar petition for decertification filed by Daniel Angelucci

(Angelucci), another member of the bargaining unit. Angelucci filed a similar petition for review

in this Court, which we adjudicate at Angelucci v. Pennsylvania Labor Relations Board (Pa.

Cmwlth., No. 75 C.D. 2018, filed April 2, 2019).

3

duplicative, were completed by persons not listed in the bargaining unit, or lacked

original signatures or dates.

The hearing examiner issued a decision determining that the

Commonwealth’s lists were accurate and that Grube failed to support his petition

with the requisite 30% minimum showing of interest. Grube filed exceptions with

the Board.

The Board upheld the hearing examiner’s finding that the list of

bargaining unit members provided by the Commonwealth to the Board was accurate.

The Board rejected Grube’s argument that he reasonably relied on the list he received

through his Right-to-Know Law request. The Board found nothing in the law

authorizing reliance on an inaccurate bargaining unit list.

Grube also argued he was entitled to information concerning the precise

number of authorization cards excluded in relation to each petition, as well as the

reason for each exclusion. The Board rejected this argument as well. The Board

reiterated that its determination of the adequacy of a showing of interest is an

administrative function not subject to collateral attack. The Board noted, moreover,

that a substantial number of defective cards were submitted in support of the petition.

Further, the Board observed that Grube specifically stated in his

exceptions that he submitted 457 authorization cards. The Board found that was a

4

facially inadequate number because a minimum of 458 acceptable cards were

required.5

II. Discussion

A. Grube’s Legal Arguments

On appeal,6 Grube argues the Board erred by including nonmembers of

the union in calculating the number of authorization cards needed to constitute 30%

of the bargaining unit. Grube insists nonunion members cannot vote and therefore

should not be counted.

Grube also challenges the Board’s refusal to provide detailed

information concerning the number of rejected authorization cards and the specific

reason for rejecting each. Grube contends the Board could provide sufficient

information to allow him to assess the propriety of the Board’s rejection of each

card, without providing personally identifiable information on the employee whose

signature is at issue. Grube posits that the Board should provide transparency in this

regard.

5

As discussed in the analysis below, the 30% minimum showing of interest is a statutory

mandate. Grube’s submission of 457 authorization cards from a bargaining unit of 1524 members

constituted 29.987%, less than the mandatory 30% minimum.

6

This Court’s review of the Board’s decisions is limited to determining whether the

Board’s findings are supported by substantial and legally credible evidence and whether its

conclusions are reasonable and not arbitrary, capricious, or illegal. Kaolin Workers Union v. Pa.

Labor Relations Bd., 140 A.3d 748 (Pa. Cmwlth. 2016).

5

In addition, Grube assumes the Board rejected cards with electronic

signatures. He contends that the law requires the Board to accept cards with

electronic signatures.

Grube also disputes the Board’s calculation of the 30% minimum

showing of interest. He points out that 30% of 1524 unit members is 457.2. He

argues the Board should have rounded that number down to the nearest whole

number, 457. Such rounding would make Grube’s 457 authorization cards sufficient

to establish the 30% minimum showing of interest (assuming no card was rejected

for any reason by the Board).

B. Legal Analysis

1. Inclusion of Nonunion Members in 30% Calculation

Grube contends employees who are part of the bargaining unit but who

are not union members have no voting rights. He reasons that those employees

should not count in the Board’s calculation of the 30% minimum showing of interest

required to trigger a decertification hearing and election. This Court discerns no

merit in this argument.

As the Board correctly observes, Section 603(a) of PERA expresses the

requisite 30% showing of interest as a percentage of the employees within a

bargaining unit, not as a percentage of union members. See 43 P.S. §1101.603(a),

(c); accord Section 7(c) of the Act of June 1, 1937, P.L. 1168, as amended, 43 P.S.

§211.7(c) (parallel 30% showing of interest requirement under Pennsylvania Labor

Relations Act7). Grube offers no support for his assertion that the 30% showing of

7

Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. §§211.1 – 211.13.

6

interest required by Section 607 of PERA applies to a different group of employees

from the 30% showing required under Section 603. The Board’s regulations

likewise express the requisite showing of interest as 30% of the employees in the

bargaining unit. See 34 Pa. Code §§95.14(8), 95.21(2). The bargaining unit, as

certified by the Board in 1972, includes all Commonwealth professional inspection,

investigation, and safety services employees, not just those who choose to join

AFSCME.

Thus, nothing in PERA suggests the 30% showing of interest bears any

relation to voting rights.

Moreover, the Board is also correct in its conclusion that voting in any

election is not limited to union members. “Employes who are hired and working in

the payroll period immediately preceding issuance of the order directing the election

shall be eligible to vote in the election, if they remain employed when the election

takes place.” 34 Pa. Code §95.54(a). Thus, all employees in the bargaining unit are

entitled to vote on decertification. Grube’s argument to the contrary is incorrect.

Accordingly, there is no legal basis to limit the requisite 30% showing of interest to

union members only.

2. Board’s Basis for Rejecting Individual Cards

Section 605(2) of PERA grants the Board broad discretion in

administering elections, including authority to enact regulations guaranteeing

secrecy of ballots. 43 P.S. §1101.605(2). Pursuant to that authority, the Board

enacted a regulation to safeguard the secrecy of authorization cards submitted in

support of a decertification petition: “The showing of interest submitted will not be

7

furnished to any of the parties. The Board or its agents will determine the adequacy

of the showing of interest and such decision will not be subject to collateral attack

in a hearing.” 34 Pa. Code §95.17.

Despite this regulation, Grube argues he is entitled to transparency

allowing him to know the Board’s reason for each rejection of an authorization card.

Grube suggests no duty of secrecy will be breached thereby, because having

gathered the cards, he already has possession of them and thus knows the identities

of the signing employees. Again, this Court discerns no merit in this argument.

First, the Board’s reasons for rejecting specific cards has no relevance

other than in challenging the Board’s decisions concerning those cards. The Board’s

regulation expressly precludes collateral attacks on those decisions. Therefore,

Grube fails to articulate a legitimate basis for obtaining such information from the

Board.

Further, Grube’s argument ignores the secrecy issue that would arise

regarding the other parties if the Board disclosed information concerning the rejected

cards. Grube may know the identities of the signatory employees, but AFSCME, a

party by intervention, does not, and it is not entitled to that information. Providing

information to Grube but not to AFSCME would be problematic. Thus, the Board

is entitled to enforce its regulation and decline to provide information on its card

rejections to any party.

8

Grube suggests the Board could provide general information, such as

numbers of cards rejected for each category of reason (e.g., duplication, non-

employee status, absence of signature or date), without providing individual

identities of the persons who provided the cards. However, this procedure would

not cure the lack of relevance discussed above, as the obvious purpose of the

information still would be an impermissible collateral attack on the Board’s card

rejections. Therefore, the Board acted within its discretion in declining to provide

its reasoning for individual card rejections.

3. Board’s Rejection of Electronic Signatures

Grube argues the Board improperly rejected authorization cards with

electronic signatures. However, as the Board correctly observes, Grube did not raise

this issue before the Board. Therefore, he failed to preserve the issue for review by

this Court. See 34 Pa. Code §95.98(a)(3) (exception to hearing examiner’s decision

is waived if not specifically raised before the Board); Pa. R.A.P. 1551(a) (appellate

court reviewing decision of government unit shall not hear or consider any question

not raised before the government unit).

In addition, the argument lacks merit. The Electronic Transactions

Act,8 on which Grube relies, provides, in Section 502(a): “Each governmental

agency in this Commonwealth shall determine whether and the extent to which it

will send and accept electronic records and electronic signatures to and from other

persons and otherwise create, generate, communicate, store, process, use and rely

upon electronic records and electronic signatures.” 73 P.S. §2260.502(a). Section

8

Act of December 16, 1999, P.L. 971, as amended, 73 P.S. §§2260.101 – 2260.5101.

9

502(c) provides further: “This chapter does not require a governmental agency to

use or permit the use of electronic records or electronic signatures.” 73 P.S.

§2260.502(c). Thus, contrary to Grube’s contention, the Board is not statutorily

required to accept electronic signatures.

The Board’s applicable regulation requires written cards, signed and

dated by employees. See 34 Pa. Code §95.1.9 The Board’s construction of its

governing statute through its regulation requiring original signatures on

authorization cards is reasonable, within its discretion, and not subject to substitution

of a reviewing court’s interpretation. See Kaolin Workers Union v. Pa. Labor

Relations Bd., 140 A.3d 748 (Pa. Cmwlth. 2016).

Moreover, even if Grube’s argument were otherwise meritorious, that

could not affect the outcome of this Court’s review. Acceptance of the authorization

cards with electronic signatures would not bring the number of accepted cards to the

requisite total, because there were cards with other defects, including duplicates and

cards signed by persons who were not members of the bargaining unit.

Indeed, as explained below, the authorization cards attached to the

decertification petition were facially below the requisite number. Therefore,

accepting some, or even all, of the signatures rejected by the Board would not

remedy the decertification petition’s fatal defect.

9

At oral argument, the Board also noted that its general regulation relating to filing of

papers requires: “An original and three copies of papers, pleadings, briefs or other documents to

be filed with the Board shall be submitted to the Board, unless otherwise specified.” 34 Pa. Code

§95.42(e).

10

4. Calculation of 30% Showing of Interest

Section 603(a) and (c) of PERA require a showing of interest by 30%

or more of the employees in a bargaining unit. 43 P.S. §1101.603(a), (c). Similarly,

the Board’s regulations require a showing of interest by not less than 30% of the

employees in a bargaining unit. 34 Pa. Code §§95.14(8), 95.21(2). Grube offers no

basis for rounding down the required number of authorization cards, where doing so

will bring that number below the mandatory 30% threshold.

As noted above, Grube submitted 457 authorization cards from a

bargaining unit of 1524 members. That constituted a 29.987% showing of interest,

indisputably less than 30%. A 30% showing of interest required 457.2 authorization

cards. Of course, a petitioner must submit a whole number of authorization cards

for a showing of interest. Because 30% is the mandatory minimum showing of

interest, the card requirement must be rounded up to the next whole number.

Further, even if rounding down were arguably permissible under

PERA, the Board is entitled to deference in its interpretation of its governing statute.

Kaolin Workers. The Board’s construction of the 30% minimum requirement is

consistent with the plain language of PERA. Accordingly, that construction is

reasonable and not subject to substitution of this Court’s judgment. See id. (refusing

to substitute judicial discretion for administrative discretion).

Accordingly, Grube had to submit at least 458 valid authorization cards

in order to support his petition with the mandatory minimum 30% showing of

interest. In his exceptions, he specifically acknowledged that he filed 457 cards.

11

Thus, his petition facially failed to comply with the 30% minimum showing of

interest.

Additionally, rounding down to 457 the number of required cards

would not support reversal of the Board’s order. Every one of those 457 cards would

have to be valid in order to meet the minimum 30% threshold. However, the Board’s

decision made clear that a substantial number of cards were defective on various

bases, including duplicate cards and signatures by persons not members of the

bargaining unit. Although Grube challenged the Board’s rejection of electronic

signatures, he did not challenge any rejections arising either from duplication or

from signatures of persons not within the bargaining unit. Thus, Grube failed to

establish the minimum 30% showing of interest, regardless of whether the minimum

number of cards needed was 457 or 458.

The Board correctly dismissed the petition for failure to provide a 30%

showing of interest.

III. Conclusion

Based on the foregoing discussion, this Court affirms the Board’s order

dismissing Grube’s exceptions and making absolute and final the hearing examiner’s

proposed order of dismissal.

ROBERT SIMPSON, Judge

12

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith Grube, :

Petitioner :

:

v. : No. 76 C.D. 2018

:

Pennsylvania Labor Relations Board, :

Respondent :

ORDER

AND NOW, this 2nd day of April, 2019, the order of the Pennsylvania

Labor Relations Board is AFFIRMED.

ROBERT SIMPSON, Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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