REPRESENTATION PROCEEDINGS UNDER THE PUBLIC EMPLOYE RELATIONS ACT I. Filing of Petition for Representation and Showing of Interest 1) 30% showing of interest required by §603 of the Public Employe Relations Act (PERA). Showing of interest must be filed with the Petition and must have original signatures and be dated. 2) Petition and showing of interest are examined preliminarily for form and substance and Petition may be administratively dismissed if defective (ex., untimely, no showing of interest, unit ill2I se inappropriate). 3) Acknowledgment of the filing of the Petition is sent to the Petitioner and the Employer with the Case Number (ex., PERA-R-90-203-E). Case number should be included in all correspondence to the Board. A) Copy of Petition is included for the Employer. B) Acknowledgment directs Employer to: i) Post Petition (a) to give notice to employes and any other employe organization that may be interested in representing the employes. (b) Petition should be posted on bulletin boards where the employes in the requested unit work. (c) Employer must send the PLRB affidavit of compliance of the posting (a letter signed by the person responsible for the posting is sufficient). ii) Send the PLRB a list of employes in the unit claimed to be appropriate in the Petition. Employer may indicate on the list those employes that the Employer believes are confidential, supervisory or management level. Showing of interest will be checked against the list of employes. If showing of interest is less than 30%, Petition is dismissed. If Employer fails to provide list of employes, the PLRB will proceed with Petition as if the showing had been established. 4) Parties are contacted to schedule pre-hearing conference date and hearing date (note that hearing examiner may not request dates from parties, but may simply set hearing date). Written notice is sent out from the Board regarding particulars of pre- hearing conference and hearing. In order to change the hearing date, a party should secure the concurrence of opposing counsel and the hearing examiner.
' II. Pre-hearing conference 1) Cases are handled out of Board's Pittsburgh with the conduct of a pre-hearing conference. Conferences may be held in person or by telephone and are informal. 2) Purpose of the pre-hearing conference is to come to an agreement of the parties on all issues necessary for the Board to conduct an election or to at least limit those issues that must be resolved by formal hearing. 3) Success - 75% of the pre-hearing conferences result in the execution of a Memorandum of Agreement by the parties, thereby eliminating the need and expense of a hearing. 4) Issues addressed at Pre-hearing conference A) Unit description and composition (Section 604 of PERA). i) Broad based bargaining unit policy - Board will certify the broadest unit possible where employes encompassed in the unit exhibit an identifiable community of interest. (a) Board will certify nonprofessional bargaining units in school districts of all blue-collar (bus drivers, mechanics, custodial, maintenance and cafeteria) or white-collar (secretarial, clerical and aides) or will certify an all-encompassing nonprofessional unit. (b) Purpose is to avoid effects of overfragmentization of bargaining units - employers having to bargain with multitude of bargaining representatives. (c) The Board considers several factors when determining whether employees share an identifiable community of interest. These factors include educational requirements, hours and benefits, the type of work performed, level of skill required, grievance procedures, pay scale, working conditions, bargaining history and interch ange of employees. See Fraternal Order of Police v. PLRB, 557 Pa. 586, 735 A.2d 96 (1999); West Perry School District v. PLRB , 752 A.2d 461 (Pa. Cmwlth. 2000). ii) Professional employes (Section 301(7) of PERA)- emp loyes whose " work is predominantly intellectual and varied in character; requires consistent exercise of discretion and judgment; requires knowledge of an advanced nature in the field of science or learning customarily acquired by specialized study in an institution of higher learning or its equivalent; and is of such character that the output or result accomplished cannot be standardized in relation to a given period of time." See Norwin School District , 31 PPER 1 31104 (Final 2
Order, 2000). (a) Professional employes must meet all four prongs of the test set forth in Section 301(7) in order to qualify as professional employes. (b) Professional employes may not be included in a unit with nonprofessional employes unless a majority of the professional employes vote in favor of a combined professional and nonprofessional unit (Section 604(2) of PERA). iii) Inclusion ofregular part-time employes - regularity of employment and expectation of continued employment - not a set number of hours per week. See School District of Millcreek Township v. Millcreek Education Association, 440 A.2d 673 (Pa. Cmwlth. 1982). (a) Regular part-time employes must be included in bargaining unit with full-time employes. See Bethlehem Township, 10 PPER ,r 10050 (Order and Notice of Election, 1979). (b) If employe works two hours a day, every day, that employe is regular part-time; if employe is merely called in on a per diem basis to fill-in for absent employes, employe may be casual. See Upper Providence Township, 17 PPER ,r 17180 (Final Order, 1986). iv) Employes who must be included in separate units (Section 604(3) of PERA). (a) Guards at prisons and mental institutions- employes must be part of the security infrastructure of the institution in order to be included in unit. See Fayette County, 14 PPER ,r 14159 (Final Order, 1983) (prison cooks excluded from prison guard unit because they had no security function, but maintenance employes included because they took prisoners outside of prison walls and were responsible for the prisoners' security. (b) Employes directly involved with and necessary to the functioning of the courts. Application of PERA to court employes is constitutional. Commonwealth of Pa., ex rel. Bradley v. PLRB, 479 Pa. 440, 388 A.2d 736 (1978). (c) Individuals employed as guards to enforce against employes and other persons rules to protect the property of the employer or to protect the safety of persons on the employer's premises (security guards). The employes must have protected the employer's premises during a strike or other labor unrest. See Washington County v. PLRB, 613 A.2d 670 (Pa. Cmwlth. 1992). 3
B) Exclusions from the unit i) Confidential employe (§ 301(13) of PERA)-privy to the employer's collective bargaining strategy - limited exclusion. See PLRB v. Altoona Area School District, 480 Pa. 148, 389 A.2d 553 (1978). Information to which employe is privy must be of such a definite nature that it reveals the employer's collective bargaining strategy, Bangor Area School District, 9 PPER 9295 (Nisi Decision and Order, 1978). (a) Ex., confidential employe - typing bargaining proposal before it is submitted to other side at the bargaining table, Derry Township School District, 11 PPER 1 11047 (Nisi Decision and Order, 1980) (b) Ex., non-confidential employe - one who is involved in grievances, East Lycoming School District, 14 PPER114168 (Proposed Order of Unit Clarification, 1983); one who handles payroll and accounts receivables providing data and support to negotiators, Slippery Rock Area School District, 12 PPER 1 12063 (Final Order, 1981); one who costs out proposals, Bangor Area School District, 9 PPER 1 9295 (Nisi Decision and Order, 1978). ii) Supervisor (Section 301(6) of PERA) - exercises the authority in the interests of the employer to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline other employes or effectively recommends such actions. (a) Employe must have authority to reward or sanction other employes and actually exercise that authority, Danville Area School District, 8 PPER 195 (1977). (b) PLRB takes into consideration the extent of the supervisory duties performed by the employes - State System of Higher Education v. PLRB, 737 A.2d 313 (Pa. Cmwlth. 1999). Must perform supervisory duties the majority of the time. West Perry SD v. PLRB, 752 A.2d 461 (Pa. Cmwlth. 2000) (c) First level supervisory employes may form their own separate units (§ 604(5) of PERA) and have the right to meet and discuss over issues that would otherwise be bargainable in a rank and file unit. See § 301(17) of PERA for a definition of "meet and discuss." iii) Management level employe (§ 301(16) of PERA)- employe who is directly involved in the determination of policy, responsibly directs the implementation of policy or is above the first level of supervision. (a) Directly involved in policy determination- an employe who has the authority or responsibility to select among policy options and to put a 4
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