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PROPOSED RULEMAKING

DEPARTMENT OF
LABOR AND INDUSTRY

[ 34 PA. CODE CHS. 91, 93 AND 95 ]

Board Rules and Regulations

[49 Pa.B. 1657]
[Saturday, April 6, 2019]

 The Labor Relations Board (Board) proposes to amend 34 Pa. Code, Part V (relating to Labor Relations Board). The amendments are intended to update the Board's office locations and addresses, allow electronic filing of certain documents with the Board and permit service of certain documents on represented parties by e-mail.

 These proposed changes to the rules and regulations were approved by the Board during a regularly scheduled meeting on September 18, 2018, and approved by the Secretary of Labor and Industry on November 6, 2018.

A. Effective Date

 This proposed rulemaking will go into effect upon final-form publication in the Pennsylvania Bulletin.

B. Contact Persons

 For further information contact Warren R. Mowery, Jr., Deputy Chief Counsel, 651 Boas Street, Room 418, Labor and Industry Building, Harrisburg, PA 17121, (717) 783-6016; or Nathan Bortner, Secretary, 651 Boas Street, Room 418, Labor and Industry Building, Harrisburg, PA 17121, (717) 783-6018.

 This proposed rulemaking is available electronically at https://www.dli.pa.gov/Individuals/Labor-Management-Relations/plrb/Pages/default.aspx.

C. Statutory Authority

 This proposed rulemaking is being made under the authority of section 4(f) of the Pennsylvania Labor Relations Act (PLRA) (43 P.S. § 211.4(f)) (''[t]he board, by and with the approval of the Secretary of Labor and Industry, shall have authority, from time to time, to make, amend, and rescind such rules and regulations as may be necessary to carry out the provisions of this act''), and section 502 of the Public Employe Relations Act (PERA) (43 P.S. § 1101.502) (''[t]he board shall have authority from time to time to make, amend and rescind such rules and regulations as may be necessary to carry out the provisions of this act'').

D. Background and Purpose

 Section 9(e) of the PLRA (43 P.S. § 211.9(e)) (''[n]o petition or charge shall be entertained which relates to acts which occurred or statements which were made more than six weeks prior to the filing of the petition or charge'') established a 6-week statute of limitations for filing a Charge of Unfair Labor Practices with the Board. Police and Firefighters who have the right to organize under the Policemen and Firemen Collective Bargaining Act (P.L. 237, No. 111), are governed by the procedures and rules and regulations promulgated under the PLRA. Philadelphia Fire Officers Association v. Pennsylvania Labor Relations Board, 470 Pa. 550, 369 A.2d 159 (1977). Section 1505 of PERA (43 P.S. § 1101.1505) (''[n]o petition or charge shall be entertained which relates to acts which occurred or statements which were made more than four months prior to the filing of the petition or charge'') similarly provides for a 4-month statute of limitations period for Charges of Unfair Practice involving public sector collective bargaining.

 Additionally, there are other statutes and provisions governing the timeliness of documents filed with the Board, such as a request for fact-finding under Act 88 of 1992 (24 P.S. § 11-1122-A), or the 20-day period for filing of exceptions under § 95.98(a) (relating to decisions of the Board) of the Board's rules and regulations. See 34 Pa. Code § 95.98(a).

 As presently promulgated, the Board's rules and regulations provide that documents submitted to the Board are filed only when received by the Board, or in the case of exceptions under 34 Pa. Code § 95.98, when mailed through the United States Postal Service with a Form 3817 Certificate of Mailing. This has on occasion resulted in untimely filing of charges and exceptions precluding an administrative remedy.

 Use of e-mail to communicate and submit documentation has become standard and reliable in both the private and public sector. Updating the Board's rules and regulations to allow for e-mail filing of certain documents would utilize this commonly accepted technology to alleviate some of the inconveniences in timely filing documents with the Board.

 Additionally, exceptions to a decision of the Board Secretary or a Board Hearing Examiner are due 20-days after issuance. The date of issuance of a Board letter or order is the date of mailing by certified mail to the filing party or their representative. The option of e-mail service of documents would allow for expedited receipt (often the same day as issuance) of Board issued letter and orders.

 Further, the electronic filing of documents would alleviate the requirement for numerous paper copies to be filed with the Board.

 The proposal was extensively discussed among Board staff with regard to meeting the statutory needs, administrative concerns and Board procedures, before drafting. Insight and suggestions were sought from other Commonwealth agencies and from public-sector labor relations authorities in other states through the Association of Labor Relations Authorities (ALRA). Comments were also sought from lawyers representing public-sector employers and unions before the Board, through inquiry to the Pennsylvania Bar Association's Labor and Employment Law Section. The proposal was reviewed and approved by the Board, prior to its submission as this proposed rulemaking.

E. Summary of Rules and Regulations

Chapter 91. Private and Public Employes

§ 91.2. Appearances.

 Changes to this section would add the option of allowing the attorney or representative for a party to elect, in an entry of appearance, to receive service of filings by other parties, and copies of Board letters and orders by e-mail.

Chapter 93. Private Employes

§ 93.11. Institution of proceeding.

 Changes to this section would update the regulations to reflect that the Board no longer has a regional office in Philadelphia.

§ 93.12. Service and filing of papers.

 Changes to clause (a) of this section would eliminate the requirement of service by ''registered mail'' while retaining the requirement of service on an unrepresented party by certified mail. The changes to clause (a) would also add that where an attorney or representative has elected to accept e-mail service, that service of documents on the attorney or representative may be made by e-mail at the designated e-mail address.

 The changes would create a new clause (b), Methods of Filing with the Board. Clause (b)(1) would retain the current method of filing with the Board by actual receipt, and clarify that Charges and Petitions sent to the Board by mail will be filed on the date of receipt by the Board. Clause (b)(2) would add the option of filing any document, except a Petition with a ''showing of interest,'' see 34 Pa. Code § 95.1 (relating to definitions), by e-mail to a resource e-mail account established exclusively for receipt of documents filed with the Board, and would also add the option of agreeing to e-mail service of letters and orders from the Board. This proposed rulemaking would place the burden on the filing party for a failed receipt of documents due to computer file errors in the attachments or because of disruptions in electronic transmission.

 Previous clause (b) would be renamed as clause (c). Clause (c) retains the requirement that any filing with the Board, whether filed when received or by e-mail, must be filed with the Board before the close of business on the last day for filing.

 Prior clause (c) would be renamed (d) and continue to require that filings be legible.

 Previous clause (d) requiring multiple copies would be eliminated.

Chapter 95. Public Employes

§ 95.11(b)(8). Changes to this section would reflect the current address of the Board's office in Harrisburg, PA.

§ 95.13(c). Changes to this section would reflect the current address of the Board's office in Harrisburg, PA.

§ 95.31. Charges.

 Changes to this section would eliminate the need to file multiple paper copies of Charges of Unfair Practices with the Board.

§ 95.41. Service of papers.

 Changes to this section would eliminate the requirement of service by ''telegram'' while retaining the requirement of service on an unrepresented party by mail or in person. The changes would also add the provision that where an attorney or representative has elected to accept e-mail service, that service of documents on the attorney or representative may be made by e-mail at the designated e-mail address.

§ 95.42. Filing of papers.

 Clause (b) of this section would be amended to reflect that the Board no longer has a regional office in Philadelphia, PA.

 The changes to this section would create a new clause (c), Methods of Filing with the Board. Clause (c)(1) would retain the current method of filing with the Board by actual receipt, and clarify that Charges and Petitions sent to the Board by mail will be filed on the date of receipt by the Board. Clause (c)(2) would add the option of filing any document, except a Joint Election Request or Petition with a ''showing of interest,'' by e-mail to a resource e-mail account established for the Board set up exclusively for receipt of filed documents, and would also add the option of agreeing to e-mail service of letters and orders from the Board. This proposed rulemaking would place the burden on the filing party for a failed receipt of documents due to computer file errors in the attachments or because of disruptions in electronic transmission.

 Previous clause (c) would be renamed as clause (d). Clause (d) retains the requirement that the first paper filed with the Board contain an address of the parties for initial service of documents issued by the Board.

 Prior clause (d) would be renamed (e) and continue to require that filings be legible.

 Previous clause (e) requiring multiple copies would be eliminated.

§ 95.98. Decisions of the Board.

 Existing clause § 95.98(a)(1), exceptions to a hearing examiner decision, allows the filing of exceptions to the Board based on ''actual receipt'' by the Board, or on the date deposited in the United States mail as shown on a Form 3817 Certificate of Mailing. Changes to clause (a)(1) would amend ''actual receipt'' to include the changes in § 93.12 (relating to service and filing of papers) and § 95.42 (relating to filing of papers), that would allow filing by actual receipt or by e-mail. Provisions in § 95.98(a)(1) allowing the filing of exceptions by United States mail with a Form 3817 would be retained.

 Changes to § 95.98(c) would eliminate the need to file multiple copies of exceptions with the Board, and eliminate the requirement to serve a copy of a response to exceptions on the hearing examiner.

F. Benefits, Costs and Requirements

 The jurisdiction of the Board extends to public employers, including but not limited to the Commonwealth, political subdivisions, municipalities, school districts and State-related universities. Board jurisdiction includes employees of public employers and employee representatives. The Board has very limited jurisdiction over private employers under the PLRA.

Benefits. The proposed changes to the Board's rules and regulations to allow filing by e-mail, and to eliminate the need for parties to file multiple copies of documents, is a significant benefit of providing an additional means for timely filing of documents with the Board.

Costs. The changes to the Board's rules and regulations to allow filing by e-mail, and to eliminate the need for parties to file multiple copies of documents, is also a cost savings for persons with cases and petitions before the Board.

Requirements. The proposed changes to the Board's rules and regulations to allow filing by e-mail, and to eliminate the need for parties to file multiple copies of documents, does not require filing by e-mail or eliminate existing means of filing with the Board. Charge of Unfair Practice (PERA-9) and Charge of Unfair Labor Practice (PLRA-15) forms currently utilized by the Board, will remain in existence and per the proposed changes may also be filed by e-mail. Existing forms may be found on the Board's web site at https://www.dli.pa.gov/Individuals/Labor-Management-Relations/plrb/Pages/default.aspx.

G. Administrative Code and Commonwealth Attorney's Act

 Under section 232 of The Administrative Code of 1929 (71 P.S. § 232), the Board received a fiscal note, Fiscal Note 104-1, from the Office of the Budget for this proposed rulemaking.

 The Board is an independent agency under the Commonwealth Attorney's Act, and under section 204(b) (71 P.S. § 732-204(b)), the Board submitted this proposed rulemaking to the Office of Attorney General for review for form and legality.

H. Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on March 28, 2019, the Board submitted a copy of this proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House and Senate Labor and Industry Committees. In addition to submitting this proposed rulemaking, the Board has provided IRRC and the Committees with a copy of a detailed regulatory analysis form. Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to this proposed rulemaking within 30 days of the close of the public comment period.

I. Public Comments

 Interested persons are invited to submit comments, suggestions or objections regarding this proposed rulemaking by mail to Nathan Bortner, Secretary, Labor Relations Board, 651 Boas Street, Room 418, Labor and Industry Building, Harrisburg, PA 17121, fax (717) 783-2974, nbortner@pa.gov. A reference to this proposed rulemaking and a return name and address must be included for each submission. Comments, suggestions or objections must be received by the Board by May 7, 2019 (within 30 days of publication in the Pennsylvania Bulletin).

NATHAN BORTNER, 
Secretary

Fiscal Note: 104-1. No fiscal impact; (8) recommends adoption.

Annex A

TITLE 34. LABOR AND INDUSTRY

PART V. LABOR RELATIONS BOARD

CHAPTER 91. PRIVATE AND PUBLIC EMPLOYEES

GENERAL PROVISIONS

§ 91.2. Appearances.

 (a) An attorney or other representative desiring to participate in a proceeding before the Labor Relations Board (Board) or a designated agent of the Board, and who wishes to be served with papers, shall file an appearance either by letter, or by a form provided by the Board or by oral request at the hearing. The entry of appearance shall indicate whether the attorney or representative will accept service by e-mail and, if so, provide a valid e-mail address for service.

 (b) A person who has been employed by the Board is not permitted to appear as attorney or representative for a party in a case which was pending before the Board during the period of his employment.

CHAPTER 93. PRIVATE EMPLOYES

PREHEARING PROVISIONS

§ 93.11. Institution of proceedings.

 (a) Charges and petitions instituting proceedings before the Board may be filed with the principal office of the Board in Harrisburg, or with the regional office of the Board in [Philadelphia or] Pittsburgh. Charge and petition forms are available at Board offices.

 (b) Charges and petitions may be filed by a person entitled to do so under the act, shall be in writing, shall contain pertinent information required by the act and shall be verified by the person filing the charges and petitions.

 (c) In actions before the Board, the first paper filed on behalf of each party shall contain an address at which service of complaints, orders and other processes and papers of the Board may be made. Thereafter, a party may file with the Board [a suggestion] an entry of appearance under § 91.2(a) (relating to appearances), which shall form part of the record in the case, setting forth a new address at which the service may be made. If he does not do so, notice sent to him by registered mail at his last address of record shall be equivalent to service.

§ 93.12. Service and filing of papers.

 (a) Service of papers by a party on other parties shall be made personally, or by [registered or] certified mail, or by leaving a copy thereof with the person then in charge at the principal office or place of business of the person to be served. Where an attorney or representative has entered his appearance under § 91.2(a) (relating to appearances), complaints, orders and other processes and papers shall be served on the attorney or representative and need not be served on the party. Service on an attorney or representative may be made personally, by United States Postal Service first-class mail, or where the attorney or representative has approved service by e-mail in an entry of appearance under § 91.2, by e-mail to the e-mail address provided in the entry of appearance.

(b) Methods of Filing with the Board.

(1) In person at the principal office of the Board in Harrisburg, or with the regional office of the Board in Pittsburgh. If mailed to the Board through the United States Postal Service or third-party courier, the date of filing shall be the date of receipt by the Board in its Harrisburg or Pittsburgh office.

(2) Filings, other than a petition or other document with a showing of interest as defined by § 95.1 (relating to definitions), may be filed with the Board by electronic mail by e-mailing a portable document format (PDF) file of the scanned complete signed document, including attachments and exhibits thereto, to the Board at the Board's designated e-mail address. A party filing by e-mail is responsible for attaching the document using the proper format, and for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the e-mailed document may not be properly received or timely filed.

[(b)] (c) When the acts, or this chapter or an order of the Board requires the filing of a motion, brief, exception or other paper in a proceeding, the document shall be received by the Board or the officer or agent designated by the Board to receive the document before the close of business of the last day of the time limit, if any, for the filing. Exceptions to this requirement will be at the discretion of the Board.

[(c)] (d) Papers, pleadings, briefs or other documents filed with the Board shall be legibly typed, printed or otherwise legibly duplicated.

[(d) An original and three copies of the papers, pleadings, briefs or other documents to be filed with the Board shall be submitted to the Board unless otherwise specified.]

CHAPTER 95. PUBLIC EMPLOYES

INSTITUTION OF REPRESENTATION PROCEEDINGS

§ 95.11. Request for certification.

 (a) A public employe, employe organization or group of employes and the public employer may, when the public employe organization represents a majority of the employes in an appropriate unit, jointly submit to the Board a request for certification upon a form to be supplied by the Board.

 (b) The request for certification shall set forth the following:

 (1) The name, address and telephone number of the public employer and the person to contact, including his title, if known.

 (2) The name, address and affiliation, if any, of the employe organization and the name, address and telephone number of its representative.

 (3) A description and factual statement in support of the unit claimed to be appropriate for the purpose of exclusive representation.

 (4) The budget submission date of the public employer.

 (5) The signatures of the parties, including their titles and telephone numbers.

 (6) A statement that the employe organization represents a majority of the employes in the unit and the method of determining the representative majority. Proof of the representative majority shall be submitted to the hearing examiner, if requested.

 (7) The names and addresses of known employe representatives, individuals, labor organizations or groups claiming to represent any of the employes in the bargaining unit.

 (8) Five days prior to the submission to the Board of the joint request for certification, the employer shall post on the bulletin boards at all locations where employes in the requested unit work a copy of the joint request for certification and a statement that the request will be filed with the Pennsylvania Labor Relations Board, [1601] 418 Labor and Industry Building, 651 Boas Street, Harrisburg, Pa. [17120] 17121, for the purpose of securing from that Board a certification
of ________________________
   (Name of employe representative)
as the exclusive bargaining representative for the employes within the unit.

 (9) Other relevant facts.

*  *  *  *  *

§ 95.13. Consent to election request.

 (a) If a public employer consents to an election request by a public employe, a group of public employes or an employe organization, the consent shall be given in writing to the party giving notice within 10 days of the receipt of an election request.

 (b) Upon consent to an election request, a joint election request shall be submitted to the Board, in triplicate, upon forms prepared by the Board, which shall include the following:

 (1) A description and factual statement in support of the unit deemed appropriate.

 (2) The basis for alleging a 30% interest or more.

 (3) A list of all unit employes prepared by the employer in the order requested by the Board with occupations or classifications of those agreed upon as eligible to vote.

 (4) Suggested times and places of holding the election.

 (5) The budget submission date of the public employer.

 (6) A 1% showing of interest among employes within the requested unit is required before another employe representative may be placed on the ballot. A 10% showing of interest among employes within the requested unit is required before another employe representative may be permitted to intervene as a party.

 (7) If a public employer refuses to consent within the 10-day period to an election, the party making the request may file a petition for representation election. A public employer may file a petition for representation election if, after receiving a notice for an election request, the moving party thereafter fails to submit a joint election request within 10 days after consent is given by the employer.

 (c) Five days prior to the submission to the Board of the joint election request, the employer shall post on the bulletin boards at all locations where employes in the requested unit work, a copy of the joint election request and a statement that the request will be filed with the Pennsylvania Labor Relations Board, [1601] 418 Labor and Industry Building, 651 Boas Street, Harrisburg, Pa. [17120] 17121, for the purpose of securing from that Board a certification
of ________________________
   (Name of employe representative)

as the exclusive bargaining representative for the employes within the unit.

UNFAIR PRACTICES PROCEEDINGS

§ 95.31. Charges.

 (a) Charges shall be in writing on forms supplied by the Board and shall be signed and sworn to before a person authorized to administer oaths. An original [and three copies] of the charge shall be filed with the Board by one or more public employes, or an employe organization, acting in their behalf, or by a public employer.

*  *  *  *  *

PREHEARING PROVISIONS

§ 95.41. Service of papers.

 Service of papers by a party on other parties shall be made personally, by United States mail, [by telegram] or by leaving a copy of the papers with the person then in charge at the principal office or place of business of the person to be served. Where an attorney or representative has entered his appearance under § 91.2(a) (relating to appearances), complaints, orders and other processes and papers shall be served on the attorney or representative and need not be served on the party. Service on an attorney or representative may be made personally, by United States Postal Service first-class mail, or where the attorney or representative has approved service by e-mail in an entry of appearance under § 91.2, by e-mail to the e-mail address provided in the entry of appearance.

§ 95.42. Filing of papers.

 (a) When the act, this chapter or an order of the Board requires the filing of a motion, brief, exception or other paper in a proceeding, the document shall be received by the Board or the officer or agent designated by the Board to receive the document before the close of business of the last day of the time limit, if any, for the filing. Exceptions to this requirement will be at the discretion of the Board.

 (b) Charges and petitions may be filed with the principal office of the Board in Harrisburg, or with the regional office of the Board in [Philadelphia or] Pittsburgh. Charge and petition forms are available at Board offices.

(c) Methods of Filing with the Board.

(1) In person at the principal office of the Board in Harrisburg, or with the regional office of the Board in Pittsburgh. If mailed to the Board through the United States Postal Service or third-party courier, the date of filing shall be the date of receipt by the Board in its Harrisburg or Pittsburgh office.

(2) Except for a Joint Election Request (Form PERA-3), Petition (Form PLRB-13 or Form PERA-4), or other document with a showing of interest, filing by electronic mail by e-mailing a portable document format (PDF) file of the scanned complete signed document, including attachments and exhibits thereto, to the Board at the Board's designated e-mail address. A party filing by e-mail is responsible for attaching the document using the proper format, and for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the e-mailed document may not be properly received or timely filed.

[(c)] (d) Actions before the Board, the first paper filed on behalf of each party shall contain an address including zip code at which service of complaints, orders and other processes and papers of the Board may be made. Thereafter, a party may file with the Board [a correction] an entry of appearance under § 91.2(a) (relating to appearances), which shall form part of the record in the case, setting forth a new address [with zip code] at which the service may be made. If he does not do so, notice sent to him by United States mail at his last address of record shall be equivalent to service.

[(d)] (e) Papers, pleadings, briefs or other documents filed with the Board shall be legibly typed, printed or otherwise legibly duplicated.

[(e) 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.]

PROVISIONS FOR FORMAL PROCEEDINGS

§ 95.98. Decisions of the Board.

 (a) Exceptions to a hearing examiner decision. Filing of statements of exceptions to a hearing examiner decision will be as follows:

 (1) A party may file with the Board within 20-calendar days of the date of issuance with the Board an original and four copies of a statement of exceptions and a supporting brief to a proposed decision issued under § 95.91(k)(1) (relating to hearings) or a nisi order issued under § 95.96(b) (relating to exceptions) certifying a representative or the results of an election. Exceptions will be deemed [received upon actual receipt] filed in accordance with § 93.12 (relating to service and filing of papers) or § 95.42 (relating to filing of papers), or on the date deposited in the United States mail, as shown on a United States Postal Form 3817 Certificate of Mailing enclosed with the statement of exceptions. The statement of exceptions shall:

 (i) State the specific issues of procedure, fact or law, or other portion of the proposed decision to which each exception is taken.

 (ii) Identify the page or part of the decision to which each exception is taken.

 (iii) Where possible, designate by page citation or exhibit number the portions of the record relied upon for each exception.

 (iv) State the grounds for each exception.

 (2) No reference may be made in the statement of exceptions to any matter not contained in the record of the case.

 (3) An exception not specifically raised shall be waived.

 (4) The party shall, concurrent with its filing of the statement of exceptions and supporting brief, serve a copy of the same upon each party to the proceeding. Proof of service shall be filed with the Board.

 (b) Failure to file exceptions. When no exceptions are filed to a proposed decision, it will become final upon the expiration of 20-calendar days from the date of issuance.

 (c) Response to exceptions. Within 20-calendar days following the date of receipt of the statement of exceptions and supporting brief, a party may file [an original and four copies of] a response to the statement of exceptions and a supporting brief with the Board [and one copy with the hearing examiner]. Copies of these documents shall be served concurrently on each party, and proof of service shall be filed with the Board.

*  *  *  *  *

[Pa.B. Doc. No. 19-486. Filed for public inspection April 5, 2019, 9:00 a.m.]



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