COMMONWEALTH OF 
Labor Relations Board

UNITED STEEL, PAPER AND FORESTRY,
RUBBER, MANUFACTURING, ENERGY,
ALLIED INDUSTRIAL AND SERVICE
WORKERS INTERNATIONAL UNION, AFL-
CIO-CLC
Case No. 
v.

THE UNIVERSITY OF PITTSBURGH

 

IN THE MATTER OF THE EMPLOYES OF
Case No. 

THE UNIVERSITY OF PITTSBURGH

PROPOSED DECISION AND ORDER

On May 2, 2019, the United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial and Service Workers
International Union, (United Steelworkers or Union} filed a
charge of unfair practices with the Labor Relations Board
(Board) alleging that the University of Pittsburgh (University or
Employer) violated Section 1201(a}(1) and (7) of the Public Employe
Relations Act (PERA).

On May 6, 2019, the Secretary of the Board issued a Complaint and
'Notice of Hearing in matter and designated May 14 and
15, 2019, in Pittsburgh, as the time and place of hearing.

. On May 2, 2019, the Union filed an Objection to the conduct of
the Board during the election in the matter 

On May 6, 2019, the Secretary of the Board issued an Order and
Notice of Hearing on Objections to the Conduct of the Election in
matter and designated May 14 and 15, 2019, in
Pittsburgh, as the time and place of-hearing.

A consolidated hearing on both matters as held on May 14 and 15,
2019, in Pittsburgh, before the undersigned Hearing Examiner. All
parties in interest were afforded a full opportunity to present
testimony, cross?examine witnesses and introduce documentary evidence.
The Union filed its post?hearing brief on July 12, 2019. The
University filed its postuhearing brief on August 12, 2019. The Union
filed a reply brief on August 26, 2019. 

 

The Hearing Examiner, based upon all matters of record, makes the
following: 

FINDINGS OF FACT

1. The University is a public employer within the meaning of
Section-301(1) of PERA. (N.T. 9).

. 2. The Union is an employe organization within the meaning of
Section 301(3) of PERA. (N.T. 9).

3. On December 15, 2017, the Union filed a petition for
representation with the Board alleging a sufficient showing of interest
and seeking to represent Teaching Assistants, Teaching Fellows,
Graduate Student Assistants and Graduate Student Researchers employed
by the University. This matter was docketed as (PLRB
Exhibit -

 

 

4. After multiple days of hearing in October and November,
2018, the undersigned Hearing Examiner issued an Order Directing
Submission of Eligibility List on March 7, 2019, which found
that graduate students on academic appointment who serve as teaching
assistants, teaching fellows, graduate student assistants and graduate
student researchers share a community of interest. The ODSEL also
found that the unit appropriate for the purpose of collective
bargaining is a subdivision of the employer unit comprised of: All
full?time and regular parthime professional employes who are graduate
_students on academic appointment who serve as teaching assistants,
teaching fellows, graduate student assistants and graduate student
researchers and excluding graduate students on fellowship and
traineeship, management level employee, supervisors, first level
supervisors, confidential employes and guards as defined in the Act.
Finally, the ODSEL ordered the University to submit to the Board a
current alphabetized list of the names and addresses of the employee
eligible for inclusion in the unit set forth above with in 10 days.
23; PLRB Exhibit 

 

5. The University timely submitted an eligibility list
pursuant to the ODSEL. (N.T. 23).

6. After receiving the ODSEL, Dennis Bachy, the Board Agent in
charge of the election, contacted the parties to discuss time, date and
location for an election. Bachy has been an Administrative Officer for
the Board and in charge of the Board?s Pittsburgh office since 2002.
Bachy discussed the election with Brad Manzolillo, Esquire, who
represents the Union and Shannon Farmer, Esquire, who represents the
University. The parties agreed to holding an election on April 15, l6,
l7, and 18.? (N.T. 21e24). 

7. On MarCh 29, 2019, the Board issued an Order and Notice of
Election for an election to occur on April 15, 16, 17 and 18._ The
Order and Notice of Election designated Posvar Hall as the election
location on April 15 and 16 and O?Hara Student Center as the election

location on April 17 and 18. These locations were selected by Bachy'
after he toured potential sites on campus. 24?25; PLRB Exhibit
2).

8. The first day of the election began as scheduled on April
15 in Posvar Hall. About 15 minutes prior to the election beginning at
9 Bachy led a pre?election briefing. The parties had
representatives present at the preHelectiOh briefing. Bachy told the
parties how the elections would proceed. Voters would enter the rOOm,
they would take a ballot, they would mark their ballot in one of three
polling booths, then would deposit the ballot in a ballot box. Bachy
also met with the parties' poll watchers at that time. The Union
raised concerns to Bachy that the Union believed that the University?s
watchers were managers or supervisors. Bachy questioned the
University?s watchers and determined that they were not supervisors of
graduate students and that they were senior clerical employee for
administrators of the University. (N.T. 26~28, 75, 274).

9. On April 15, the following Board employes were present:
Bachy, Joe Gralewski, Rebecca McClincy and Kathy Owens. Board employee
greeted voters as they entered the room and directed them to the
polling area. One Board employe ran the sign?in book and issued
ballots to voters on the eligibility list. Another Board employe ran
the challenge station who would issue ballots to any voter who was
challenged. (N.T. 29?30). 

10. On the first two days of the election, April 15 and 16,
OWens and Gralewski would ask for someone?s name as they approached the
ballot area to find that name on the eligibility list. Owens and
Gralewski sometimes asked to see the University?issued ID?of a voter
when they had trouble finding the voter?s name on the eligibility list.
Board employee would also occasionally ask people to spell their name
if they were still having trouble finding the name on the eligibility
-list. Bachy and Mcclincy asked for IDs for every voter. Starting on
Tuesday afternoon, and for the last two days of the election, April 17
and 18, Bachy told all Board employes to just ask for everyone?s ID as
they approached. The reason Bachy chose this method is because it was
easier since the University IDs had large, printed names_that were easy
to see and just looking at the IDs was faster than asking for a name
and asking for a spelling of a name. The IDs were placed on the table
such that they could be viewed by the PLRB employe and the University
watcher who was also checking names in their list. A few students did
not have their University IDs and instead showed their driver's
_license. (N.T. 31w32, 85-86, 111?114, 173?174, 276u277).

11. PLRB agents often had trouble with the spelling of some
eligible voters? names. The names they had trouble with were often for
voters of visibly Hispanic, Asian or Middle Eastern background.
Therefore, PLRB agents asked for their IDs more than other voters
before the process was changed on Tuesday to requiring all voters to
show IDs. 110?111, 152, 200w201, 276?277, 293?294).

12. No eligible voter objected to showing identification. No
one was turned away for not showing identification. At most one
eligible voter left without voting. (Tr. 135, 161-162, l76, 213, 277?
78, 306, 311}.

13. The Union poll watcher sat to one side of the ballot table
and the University?s poll watcher sat on the other side. The parties
had a series of watchers that rotated every few hours. (N.T. 34, 99?

100).

 

 

 

14. The Board?s eligibility list was in a small binder that had
a list of every employs on the eligibility list double spaced with
alphabetical tabs. 63).

15. The University's watchers were Amy Tuttle, Peggy King,
Amanda Brodish and Victoria Lancaster. Neither of these four women
supervise graduate students or regularly interact with graduate
students. (N.T. 47?48, 273, 288, 304, 309).

16. The University's watchers were not recognized or known by
the Union?s watchers. (N.T. 132?133, 148, 176, 211).
17. Victoria Lancaster is the Director of Faculty Actions for

the University. She does not report to Dr. Urban, the Vice Provost for
graduate affairs. She does not interact with graduate students as part
of her duties and does not have any role in making any decisions

related to graduate students. (N.T. 272?273).
18. Amy Tuttle is a Senior Assistant to the Provost. Tuttle
works for the Vice Provost in charge of faculty affairs. She does not

report to Urban. She does not interact with graduate students as part
of her duties and does not have any role in making any decisions
related to graduate students. (N.T. 303*307). 

19. Peggy King is a Senior Assistant to the Provost. She does
not report to Urban. She works directly for Ann Cudd, Provost and
Senior Vice Chancellor. She does not interact with graduate students
as part of her duties and does not have any role in making any
decisions related to graduate students. (N.T. 309, 314; Union Exhibit
22).

20. Amanda Brodish is the Director for Data Analytics and
Pathways for Students? Success. She does not report to Urban. She
does not interact with graduate students as part of her duties and does
not have any role in making any decisions related to graduate students.

288?289). 

21. The University watchers kept a list of voters from the
beginning of the election. It was a paper list and they made marks by
pen. The Union did not keep any list tracking who voted. (N.T. 63?64,
100?101, 149?150, 197, 310).

22. During the election, approximately 15 voters expressed
concern about giving their name and expressed that they thought the
vote was an anonymous process. The Board employes would tell these
voters that they needed to offer up their name to verify that they were
eligible for a ballot. 106?107). 

23. After the first election day on April 15, Mazolillo sent an
email to Bachy in the evening of April 15 which states in relevant
part: - 

I checked in with our watchers/observers for a
few minutes after the vote. They seemed to think
things ran smoothly for the most part and that
there were only a limited number of challenged

 

 

ballots. However, one concern was raised. I?m
told that the University watcher appeared to be
keeping a list of every person who voted and was
asking voters how to spell their names so she
could put them down on the list . . . . We are
very concerned this practice is going to
intimidate voters, especially given that the
University's watchers are all managerial level
and at least two of them work for the Provost?s
office. 
Perhaps there is a different system for the PLRB,
but I know that creating that clear of an
appearance of tracking who is voting would be
objectionable under the NLRB's rules.

Bachy did not read this email until Friday April 19, but
Mazolillo approached Bachy the morning of Tuesday April 16 and said the
same thing as put forth in his email. Bachy told Mazolillo that the
PLRB did not have a rule which prevented a party from having a list
during an election. Bachy was surprised that the Union'was not keeping
a list of who voted as in his experience it was common for both parties
to keep track. (N.T. 37~38, 55, 79; PLRB Exhibit 3B).

24. The PLRB commonly allows parties to keep lists during an
election. (N.T. 79). 

25. The second day of the election was on Tuesday April 16 and
had the same set?up as April 15 also in Posvar Hall. (N.T. 37?38).

26. 'On Tuesday April 16, in the afternoon, Bachy was approached

by a Union watcher who told him that she felt Gralewski was treating
the watcher for the University better than the watcher for the Union.
The Union watcher said she asked a question similar to a question asked
by the University watcher and that Gralewski told her to be quiet.
Bachy apologized to the Union Watcher and moved Grawlewski off of the
ballot area and to greeting voters as.they walked in. (N.T. 39?40, 57?
58, 2044205). 

27. The third day of the election, on April 17, moved to O?Hara
Student Center. Due.to the set-up of the room, Bachy determined that a
greeter was not needed at this location and that only three Board
employee were needed to run the election. He then sent Grawlewski back
to the PLRB office in downtown Pittsburgh for the rest of the election.
Bachy, McClincy and Owens were the Board employes working the election.
The Board Secretary, Nathan Bortner, did arrive at around 1 p.m. to
Observe and assist. (N.T. 40-41).

28. Day four of the election occurred on April 18 also in the
O'Hara Student Center. Bachy, McClincy and Owens continued working the
election with assistance from Bortner. Bortner left for Harrisburg
around 1 During the fourth day, Bachy told Pitt News reporters
that they could not take pictures or ask questions in the polling area.
(N.T. 41?43, 59).

29. The University kept daily totals of the number of eligible
voters who had voted per day for each day of the election. (PLRB
Exhibit 6).

 

30. On April 26, the Board canvassed the ballots. Mazolillo
and Farmer were present.' The result of the election was 675 votes for
the Union, 712 votes for no representative, and 153 challenged ballots;
There were 2016 names on the eligible voter list. (N.T. 43?45; PLRB
Exhibit 4).

31. With respect to the challenged ballots, the parties agreed
that 139 ballots should not be canvassed, three ballots should be
canvassed, and could not agree on the remaining 12 ballots which would
need a hearing if necessary. (N.T. 45?46; PLRB Exhibit 5).

32. Steven Little, the Department Chair of Chemical Engineering
sent an email to graduate students in his department the morning of
April 17, 20l9, before the polls opened for the third day of the
election. The email states in part:

I just wanted to send you a note to encourage you
to vote in the graduate student unionization
election. The polling location is the O'Hara
Student Center. I was actually a little
surprised to see-that only 81 students from the
School of_Engineering (whole school) have voted
so far.

(N.T. 223?224; Union Exhibit 20).

33. There are between 46 and 48 eligible voters in the Chemical
Engineering Department that would have received Steven Little email.
Of the 46? 48 eligible student voters in Chemical Engineering to whom
the email was sent, twelve had already voted during the first two days,
28 voted that last two days, and approximately six did not vote. (N.T.
334? 6, Union Exhibit 21).

34. During the early afternoon of April 17, 2019, the third day
of the election, the President of the Engineering Graduate Student
Organization a University- sponsored group, sent an email to
graduate students in the School of Engineering, stating: of this
morning, only approximately 30% of eligible engineers had voted. 
222, 419, Union Exhibit 19).

35 Between late March 2019 and the end of the election on
April 18, 2019, the University sent out approximately 50? 60 different
emails relating to the Union and election to all eligible voters and
maintained several web pages which many of the emails linked to. Most
of the emails were sent from Nathan Urban, who is the Vice?Provost of
Graduate Studies for the University. Other emails were sent to eligible
voters in Science, Technology, Engineering, and Medical 
related departments, in addition to department and school specific
emails. 121n24, 129w130, 339, 383, 429; Union Exhibit 18;
University Exhibits_2l, 23).

36. On April 5, 2019, Urban sent out an email to all eligible
voters that read, in part:

Again: Nothing is guaranteed.

 

There is no guarantee that the union will obtain
improvements in any area. What we do know is
that while a contract is being negotiated which
typically takes months or more than a year under
PA law, stipends would be frozen under ?status
quo" and _annual stipend increases would not
occur. For reference; The University has
increased stipends by more than 13% over the last
five years

(N.T. 121; Union Exhibit 5).

37. On March 29, 2019, Urban sent out an email to all eligible
voters that read, in part:

Over the last five years, stipend levels for Pitt
graduate student TAs have increased by 13.2
percent, which is faster than the rate of
inflation (7.4 percent), and more than increases
in Pitt faculty and staff salaries during this
time-period. These stipend increases are also
larger than those seen at a number of
universities with graduate student-unions, such
as the University of l?tmigan, Michigan State
University, the University of Illinois, the
University-of Washington, and others.

 

 

 

(N.T. 121; Union Exhibit 3).

38. On March_27, 2019, Urban sent out an email to all eligible
voters in STEM?related departments that read, in part:

Union research performed while in the bargaining
unit might not count towards academic milestones,
including dissertations.

Under a union, students not in the bargaining
unit fellows and trainees) might not be
eligible to teach or guest lecture in classes for
educational experience.

The union could require separate assistantship
research from dissertation research. As a
result, you may have to perform more research to
meet current academic requirements.

(Union Exhibit 18).

39. 'Urban Specifically provided the Temple example because
Temple is the only other public university in that has a
graduateustudent union, and thus was most relevant. (N.T. 374).

40. On April 4, 2019, Urban sent out an email to all eligible

voters that read, in part:

Under law, there are only three
issues that the University can bargain over:

7

stipend, benefits,- and working conditions.

That?s it.

Despite claims you Inay Shave heard, the union
cannot bargain. over the University?s budget,
programs offered, admissions decisions,
selection of students for academic appointments,
how many academic appointments are offered, or
class assignments.

In. addition, the Labor Relations
Board and courts have never defined
what?s covered under ?working' conditions' for
graduate students who teach and conduct research
as part of their academic experience. We don?t
know how a union could affect research hours or
other Core components of the educational
experience, because this is uncharted territory.
(N.T. 121; Union Exhibit 6).

41. From March 2019 through the_election and beyond, the
University maintained several Union?related web pages. several of'
these web pages were set up in a manner where questions were laid out
and if a visitor clicked them an answer would pop up below the
question. Most of the University?s Union?related emails sent out to all

eligible voters linked directly to the Union?related web pages. (N.T.
122?24, 129w30).
42. From late March through the conclusion of the election,

Urban and Provost Ann E. Cudd also sent out numerous emails linking to

the University?s Union-related webpages. (N.T. 121; Union Exhibits 4,
7, 8, 9, and 10).
43. For the period leading up to the election and throughout

the conclusion of the election on April 18, 2019, the University
maintained a Unionwrelated-web page titled ?Collective Bargaining
Basics? that included the following chart: 

 

 

Union Can Bargain Over:

Union Cannot Bargain Over:

 

Stipends

Benefits

Working conditions?Ir

*The PLRB and 
courts have never defined this
for graduate students whose
teaching and research are part
of their academic training

 

Budget and allocation of funds

Technology use 

Programs offered

Management rights

Selection of students for
academic appointments

Direction of students with
academic appointments

Standards of service

Admissions decisions

Academic requirements and
academic decisions

The number of academic
appointments

 

 

(N.T. 129; Union Exhibit 11).

Programmatic decisions

 

44. For the period leading up to the election and throughout
the conclusion of the election on April 18, 2019, the University
maintained a Union?related web page titled ?Frequently Asked Questions"
that listed multiple questions each of which could be clicked by a
visitor so that an answer would pop up below the question. One of the
sections of the web page was titled ?Are you Covered and What Can be
Bargained?" Within this section, one_of the questions was: ?What can be
bargained?" When this question was clicked on the following answer
would pop up:

A union can bargain over stipends, hours, and
working conditions
Unions cannot bargain over management rights

 

including: the selection and direction of
Ipersonnel, standards of service, budget,
technology use, employee counts, and the programs
offered.

(Union Exhibit 12).

 

45. Another section on this same web page read: ?What Could
Change as a Result of Collective Bargaining?" One of the specific
questions under this section was: ?Could a union impact my ability to
work with my faculty advisor to tailor my graduate school experience??
When this question was clicked on the following answer would pop up:

Yes. Unions negotiate contracts on behalf of the
entire bargaining' unit? not on. behalf of its
individual members. A. union may? limit the
ability of the University and.its faculty to work
directly with graduate students and agree upon

 

individualized conditions, accommodations or
experiences that are the hallmarks of a graduate

education.

{Union Exhibit 12).

 

46. Another specific question under this same section of the
web page was: ?Will a union give students more say in how decisions
about academic appointments are made?" When this question was clicked
on the following answer would pop up:

Currently, students can work with their faculty
advisor and their program to make decisions about
their own academic appointments.

With a union, the University is not permitted to
discuss academic appointments directly with
students, and as a result, students lose the
ability to have an individual say in their
specific program when it comes to appointments.
The union has the exclusive right to speak on the
behalf of graduate students when it comes to
academic appointments and assignments could be
determined, in ways that are less adaptive to
individual student needs.

 

It's useful to note that the union cannot
negotiate how many academic appointments the
University offers.

(Union Exhibit 13).

47. Under this same section of the web page another specific
question read: ?Could a union result in students having to keep track
of their hours?" When this question was clicked on the following answer
would pop up: 

Yes. A CBA could require students to track their
hours, including lab hours. Students may also be
asked to distinguish time spent on activities for
an academic appointment versus academic research.
For many graduate students, especially those in
STEM fields, discerning between these two types
of academic hours is not alWays possible.

 

(Union Exhibit 15).

48. Another specific question under this same_section of the
web page read: Will a union give me the right to decide what tasks are
part of my academic appointment? When this question was clicked the
following answer would pop up:

 

A union might seek to bargain over assignments,
but the courts may have to decide whether they
would have the ability to do so. The graduate
union. at Temple University does not have the
right to bargain. over assignments. Even the
unionized faculty at Temple University do not
have a say in how their classes are assigned.

(Union Exhibit 15).

49. For the period leading up to the election and throughout
the conclusion of the election on April 18, 2019, the University
maintained a Union?related web page titled ?Fact Check? that included a
section titled contract is a contract" that read as follows:

Most graduate student union contracts like Temple
and of Washington specify a maximum number of
hours that students can work per week. Contract
terms can?t be circumvented by you or the
University, despite what the Steelworkers have
claimed. If.you tried to work more than the
delineated hours, the University would have to
stop you or breach the agreement and potentially
face consequences.

(Union Exhibit 14).
50. Part of the University?s goal in sending out emails and

setting up the web pages was to discourage eligible voters from voting
for union representation. (N.T. 431).

10

Sl. The Union had the ability to communicate with all eligible
voters prior to the election. (N. 

DISCUSSION

This is a consolidated matter over the Union?s objections to the
election for a unit of graduate students at the University which was
held in April, 2019. The Union narrowly lost the election and
subsequently filed objections to the conduct of the Board during the
election (which was docketed under the case number for the original
petition for representation: and also filed unfair 
practice charges against the University (which received a new docket
number Although these two matters were consolidated
for scheduling and logistical reasons, the legal analysis of the
Union claims against the Board on the one hand and the University on
the other hand are distinct.

Alleged Misconduct by the Board

 

As a general principle, the Board will not overturn the
results of an election conducted by its agents:

Otherwise, the choice already made by a majority
of affected employes would be set aside and their
right to collective bargain, if they chose to
exercise it, would have to be postponed. To set
aside an election on less than adequate grounds
would enable any losing party routinely to seek
a second chance to convince employes of their

mistake. Such a policy :might well lead to
repeated attempts to impeach the results of an
election.

Woodland Hills School District, 13 PPBR i 13298 (Final Order, 1982).

 

With respect to the Union's objections to Board conduct of the
election, the controlling case on this issue Kaolin Mushroom Farms,
Inc. v. PLRB, 702 A.2d 1110 (Pa. Commw. Ct. In
Kaolin, the Commonwealth Court adopted numerous federal court and NLRB
decisions to set the following legal standard for challenging based on
misconduct by the Board. The theoretical concept of laboratory
conditions must be realistically applied and the Board has broad
discretion to determine whether the circumstances of the election are
sufficiently close to laboratory conditions such that the voters were
able to exercise free choice in their decision Id. at 1116;
Montgomery County v. PLRB, 769 R. 2d 554 (Pa. 2001). The party
challenging an election carries a heavy burden: to show by specific
evidence not only that improprieties by the Board occurred, but also
that they interfered with employees' exercise of free choice to such an
extent that they materially affected the election results. Kaolin,
supra. An indispensable part of asserting a successful challenge to a
representation election is to establish that, but for the alleged
objectionable conduct_or procedural irregularities, the result of the
election'would have been different. lg. However, the cumulative
impact of several incidents may not be used to turn a number of
insubstantial objections to an election into a serious challenge. lg.

 

ll

 

 

 

Turning to this matter, in its Objections to the Conduct
During an Election, the Union writes:

On April 15?18, 2019 during the entirety of the
Election, the agents of the PLRB who conducted
the Election engaged in conduct which interfered
with the rights of public employes under PERA to
a free and uncoerced election by knowingly
allowing the Employer's Election Watcher (all of
whom were Employer supervisors seen by employees
as closely aligned with management) to keep an
independent list of every person who voted during
the election. 

It is undisputed that the Board in this election allowed the
University watchers to keep a list of who voted at the ballot table.
As noted by the Union in its Brief, it is also clear that the NLRB
generally prohibits such a practice.1 Notwithstanding NLRB decisions,
it is also undisputed that neither the PLRB nor courts
have held that keeping a list is prohibited. See_Centre County, 11
PPER 11050 (Decision and Order, 1980) (?The second allegation
suggests that this Board's long standing policy of permitting poll
watchers to keep a running tally of the number and names of voters
during an election is improper . . . . We have not heretofore followed
NLRB policy in this regard, and we shall therefore not set aside the
results of the election because the poll watchers' condubt in the
instant ease was in conformity with this Board's 

The PLRB has commonly allowed parties to an election to keep
voter lists during the election. 1 will not adopt and apply NLRB
precedent to overturn regular and common Board practice that the
University relied on during the election. Even if I adopted and
applied NLRB precedent, and found that allowing the University to keep
an independent list of voters was misconduct by the Board, there is
insufficient evidence in this record to support the follow-up
conclusion that the misconduct interfered with employes? exercise of
- free choice to such an extent that they materially affected the
election results. The record shows that at most one eligible voter
left the voting area without voting and there is no other evidence in

 

IThe Union cites: Sound Refining, Inc., 267 NLRB 1301 (1983); Belk's
Dep't Store of Savannah, Ga., 98 NLRB 280, 281 (1952) (?{iln the
interest of free elections-. . . it is the policy of the to
prohibit anyone from keeping any list of persons who have voted, aside
from the official eligibility list used to check off the voters as they
receive their Masonic Homes of California, Inc., 258 NLRB
41, 48 (1981) (ordering a new election when an election observer
visibly wrote down names of voters in the polling area); Cross Pointe
Paper Corp., 330 NLRB 658 (2000) (union observer was openly keeping a
list of who he thought voted yes and no in view of voters and the NLRB
set aside the election results); P'ggly-Wiggly, 168 NLRB 792 (1967)
(setting aside election results and ordering a new election when union
representatives stood near the polling area and kept a list of eligible
voters and visibly tracked who entered the polling area.)

 

 

l2

 

 

 

 

 

this record showing that any other voter was restricted in their
ability to vote. As there is no evidence in this record that any
eligible voters were intimidated or threatened when they saw_that an
election watcher was keeping a list of voters, I conclude that the
Board?s policy of allowing the University to keep a-list of independent
voters did not materially interfere with eligible voters? franchise.

The Union also objects to the Board acceptance of certain
University employees as election watchers. As fully discussed below in
the context of an unfair practice by the University, the record in this
matter shows that the University's election watchers were not in any
way supervisors of eligible votes or known to be closely related to
management. Allowing them to be watchers was not misconduct by the
Board.

Continuing with the Union's objections to the conduct, the
Union writes in its Objections:

On April 15m18, 2019 during the entirety of the
Election the agents of the PLRB who-conducted the
Election engaged in that interfered with
the rights of public employes under PERA to a
free and uncoerced election by using inconsistent
practices in checking voters ZDs. The procedure
for asking for IDs carried throughout the
Election, but there appeared to be a
disproportionate emphasis on requesting IDs from
International Graduate Students. . . . Even if
unintentional, the appearance to multiple voters
and. to Union observers was that International
Graduate Students were being singled out in an
intimidating manner. 

The record is clear in this case that the Board did apply
inconsistent methods for checking IDs during the election. On the
first two days of the election, April 15 and 16, Board employes asked
for someone?s name as they approached the ballot area to find that name
on the eligibility list. Board employes then sometimes asked to see
the ID of a voter when they had trouble finding the voter's name on the
eligibility list. PLRB agents often had trouble with the spelling of
some eligible voters? names. The names they had trouble with were
often of visibly Hispanic, Asian or Middle Eastern background.

Starting on Tuesday afternoon, and for the last two days of the
election, April 17 and 18, Bachy told all Board employee to just ask
for everyone's ID as they approached. The reason Bachy-chose this
method is because it was easier since the University IDs had large,
printed names that_were easy to see and just looking at the IDs was?
faster than asking for a name and asking for a spelling of a name. I
do not find that the above actions by the Board were misconduct. The
procedure followed by the Board with respect to IDs, while not perfect,
was sufficiently close to laboratory conditions such that the voters
were able to exercise free choice in their decision. The fact that
Board employes initially seemed to be asking for IDs from apparently?
foreign students is understandable due to their required task of
matching spoken names to written names on a list. 1 do not infer any
discriminatory animus on the part of Board employes. Furthermore, the

13

 

Board's reasons for altering the policy miduelection was sound and did
not interfere with any voter's ability to freely vote.

As above, the record shows that at most one eligible voter left
the voting area without voting and there is no other evidence in this
record showing that any other voter was restricted in their ability to
-vote. Therefore, I conclude that no eligible voter?s right to vote was
interfered with by the Board?s ID policy.

Conclusion with Respect to the Alleged Misconduct by the Board

 

I therefore conclude that there is no evidence in this record
that the Board committed any misconduct and also conclude that there is
no evidence that any eligible voters? franchise was interfered with by
Board policies to such an extent as to materially effect election
results.

 

The University?s Alleged Unfair Practices

With respect to the Union?s unfair practice charges against the
University, the analysis is different from the analysis regarding
allegations of Board misconduct as discussed above. In the case of an
unfair practice by a party to an election, the innocent party need not
prove that the unfair labor practice affected the outcome of the
election and the burden shifts to the charged party to establish that
the election?s outcome was not materially affected. Western
Institute, 330 Ai2d. 257 (Pa. 1974); WoOdland'
Hills, supra.; Philadelphia Joint Board, 41 PPER 55 (Final Order,
2010). The Board will set aside an election if it is reasonable to
conclude that the unlawful conduct of a party to an election designed
to coerce the election result tended to prevent the free formation and
expression of the employes? choice. Kaolin Mushroom Farms, 
(Order Directing Remand to Board Representative, 
Remand Order"). Where the employer or the union engages in coercive
unlawful behavior and subsequently prevails in the election, the Board
will not further require the victim of unlawful conduct to demonstrate
prejudice in the election outcome and a new election is to be ordered
Ito remedy any such unfair practice. Ig.; Western supra.;
Central Bucks School District, 33 BPER 33082 (Proposed Decision and
Order, 2002}. 

 

 

 

 

 

 

 

Generally, an employer commits an unfair practice within the
meaning of section 1201(a}(l) of the Act if it engages in conduct that
has a-tendency to coerce.employes in the exercise of their rights
guaranteed under the Act. Clarion County, 32 PPER 32165 (Final
Order, 2001). Section 401 of the Act expressly provides that employee
have the right ?to bargain collectively through representatives of
their own free 43 P.S. 1101.401.

In this matter, the Union alleged in its Specification of Charges
twelve specific charges against the University with respect to the
election. In its Brief, the Union consolidated its charges and I will
address them as they are presented in the Union?s Brief. The Union
first argues that the University?s decision to use supervisors as
election watchers is an unfair practice warranting a new election.
Section 95.52 of the PLRB's Rules and Regulations states:

14

Each party to the election will be entitled to be
represented by one watcher at each polling place
or by additional watchers as the parties may
agree, subject to such limitations as the Board
or its duly authorized agent may prescribe.
Watchers for all parties shall be employee
eligible to vote..However, if the employer is
unable to find. an individual on the list of
eligible voters whc: is willing to serve as a
watcher, the employer may choose a nonsupervisory
or other appropriate person. If the unit includes
supervisors, the parties may use as watchers
persons who function at the same level of
supervision.

34 Pa. Code 95.52. The Union argues that ?Here, it is undisputed
that each of the four Watchers selected by the University and used
throughout the election were admittedly supervisors, which the Union
objected to, and which was inconsistent with policy." (Union's
Brief at 17.) I disagree. The record is clear that the University?s
four watchers had absolutely no role supervising any eligible voters.

The Union further argues:

.Following the Court of Common Pleas decision in
Washington Township Municipal Authority, the
employer appealed to the Commonwealth Court,
which again upheld the decision, stating: ?the
Board has routinely prohibited management level
employee from acting as watchers in
representation elections so that the Board may
conduct these elections free from the possible
coercive effect of the presence of an individual
closely associated_with management.? washington
Township Municipal Authority v. PLRB, 21 PPER 8
21051 (Pa. Commw. Ct. 1990). Likewise, in Chester
County, the PLRB held that it was not improper
for the employer to be prohibited from using its
manager of personnel as an "election. watcher.
Chester County, 20 PPER 8 20135 (Final Order,
1989). As the PLRB explained, ?[tlhe Board has
previously prohibited persons closely associated
with management from serving as watchers in a
representation election." ld., citing McKeesport
Area School Dist., 3 PPER i 48 {Order and Notice
of Election, 1973); Washington Township Municipal
Authority, 19 PPER 19073 (Final Order, 1988),
aff?d, 20 PPER i 20031 (Court of Common Pleas of
Franklin County, 1988). The PLRB further
explained:

 

 

[t]he purpose of prohibiting such persons
from acting as watchers in an election is
so that the Board may conduct
representation elections in an air free of
the possible coercive effect of the
presence of those individuals. The

15

 

requirement that the watcher? be a non-
authority figure is to avoid the
impression that the employee are casting
their ballots under the watchful of
the employer.

Chester County, 20 PPER i 20135.

(Union?s Brief at 19.) I conclude from this record that the
University?s watchers were not ?closely associated with management?.
Importantly, none of the watchers were known or recognized by the
Union?s watchers. There is also no additional evidence in this record
that they were known or recognized by any eligible voter. The watchers
also do not participate in forming any policies with respect to
graduate students. I therefor conclude the University did not commit
an unfair practice pursuant to Section 1201(a)(7) with respect to its
watchers.

The Alleged Tracking of Voters by the University

 

 

The Union next alleges that the University committed an unfair
practice through its is open tracking of voters during the Election.
The Union argues: 

 

The University committed an unfair labor practice
by interfering, restraining, or coercing
employees in the exercise of their right to vote
for or against the Union in the representation
election by keeping an independent list tracking
every person who voted in the election, and then

. by creating the impression of surveillance by
telling a significant number-of graduate students
that the University knew how many of them voted
during the first two days of the election,
thereby, creating the 
the employes are casting their ballots under_the
watchful of the employer.? Chester County, 20
PPER 20135.

 

(Union's Brief at 29?30.) In particular, the Union argues the
following with respect to the University's actions:

Finally, the Department Chair of Chemical
Engineering [Steven. Little] sent an email to
graduate students in his department the morning
of_April 17, 2019, before the polls opened for
the third day of the election, making it clear he
was aware of' how: many' eligible voters in. the
School for Engineering had actually voted during
the first two days of the election. . . . The
email states, in part:

I just wanted to send you a note to
encourage you to vote in the graduate

student unionization election. The
polling location. is the O'Hara
Student Center. was actually a

16

little surprised to see that only 81
students from the School of
Engineering (whole school) have
voted so far.

Later that day, the president of EGSO, a
University?sponsored group, sent an email to
graduate students in the School of Engineering

indicating that of this morning, only
approximately 30% of eligible engineers had
voted." -

Even if potential voters had not been aware that
the list was being kept in the polling area, the
emails made it apparent that agents of the
University were keeping track of who voted.

'(Union's Brief at 27w28.) [Citations omitted.) I agree with the Union
and find that the email by Little to be an unfair practice by the
University under Section 120l(a)(l) of the Act with respect to-the
election because it created the impression of close monitoring by the
University-by telling a number of graduate students that the University
knew exactly who voted during the first two days of the election. In
other words, the email from Little had the effect of expressing to the
eligible voters in the Chemical Engineering Department that their votes
were under close scrutiny and observation by the management of the
University including the Chair of their department, the author of the
email. I infer from the record that the Little email shows that the
University agents were precisely tracking voters by department during
the election and shared that information directly with Little and
others. This inference is supported by the fact that it is clear from
University?s list (PLRB Exhibit 6) that University watchers kept daily
totals of the number of eligible voters who had voted. The inference
that University agents were sharing voting numbers during the election
is also directly supported by the email from the President of the EGSO,
which also contains a reference to the number of voters.that had voted
from the School of Engineering. I also infer that Little, as
Department Chair for Chemical Engineering, would appear to serve as a
supervisory or managerial role to eligibleuvoter graduate students in
that department. The problem is not-that the University kept a list:
the unfair practice is what the University did with that information.

While a review of Board cases does not show any cases with these
exact facts, I find that the Board?s cases on election surveillance to
be analogous. The Board will find an employer in violation of Section
1201(a)(l) of the Act if it surveils employes engaged in organizational
activity. Western Hospital, 3 PPER 221 (Nisi Decision and
Order, 1973). The Board has found that the mere presence of a
supervisor within a polling area might intimidate voting participants'
and_destroy the laboratory conditions essential for fair
representation. McKeesport Area School District, 3 PPER 48 (Board
Order, 1973). This case is analogous as, even though Little was not at
the polling place, his email gave the impression that the polling place
was under such close observation and scrutiny by University management
that intimate details of the voting were immediately known by and
shared by University management during the election and then used in
election communications with eligible voters. It is expressly the

 

l7

 

 

 

 

 

Beard's Policy ?to?avoid the impression that employes are casting their
ballots under the watchful of the employer." hester County, 20
PPER 20135 (Final Order, 1989). Little?s email showed concretely to
eligible voters that they were under the watchful of the employer.

In finding that the University committed an unfair practice I am
persuaded by National Board law on the subject which has found that
creating the impression of surveillance is unlawful. United Charter
Service, 306 NLRB 150 determining whether a respondent has
created an impression of surveillance, the Board applies the following
test: whether employee would reasonable assume from the statement in
question that their union activities have been placed under
Tres Estrellas de Oro, 329 NLRB 50 Board?s
test for determining whether an employer has created an impression of
surveillance is whether the employee would reasonably assume from_the
statement in question that his union activities had been placed under
surveillance.?)

 

The University?s Alleged Coercive Statements

 

The Union next argues that the University committed unfair
practices by sending out emails and maintaining websites which contain
?unlawful threats that under both PLRB and NLRB standards would serve
as the basis for setting aside the election results and directing a new
election.? (Union?s Brief at 30.) 

In Upper Merion School District, 3 PBER-386 (Nisi Decision and
Order, 1973), the Board expressed its rule for communications by a
party in the explicit context of an election. _The Board writes:

 

In the cases that have been previously decided,
the Board has adopted the logic contained in the
National Board?s Hollywood Ceramics Co., Inc.,
140 NLRB 221, 224_(l964) which-stated:

We believe that an election should_be
set aside only where there has been
a misrepresentation or other similar
_campaign trickery, which involves a
substantial departure from the
truth, at a time which prevents the
other party or parties from making an
effective reply, so that the
misrepresentation, whether
deliberate or not, may reasonably be
expected to have a significant impact
on the election. However, the mere
fact that a message is inartistically
or vaguely' worded and subject to
misinterpretation will not suffice
to establish such misrepresentation
as would lead us to set the election
aside. Such ambiguities, like
extravagant promises, derogatory
statements about the other party, and
minor distortions of some facts,
frequently occur in communications

18

 

 

between. persons. But even where a
misrepresentation. is shown in) have
been substantial the Board may still
refuse to set aside the election if
it find upon consideration of all the
circumstances that the statement
would not likely to have had a real
impact on the election. (Emphasis
added.)

The Board, in its decisions on this issue has
intended to make it clear that the alleged
misstatements must constitute substantial
departure from the truth before the Board will
find an unfair practice. Furthermore, in
determining whether the accused party is guilty
of an unfair practice, the Board must balance the
rights of the parties to express themselves on
the issues and the rights of the voters to be
free from coercive influence. Additionally, the
Board. does not intend to become a censor of
noncoercive campaign propaganda, but rather will
leave the task to the common sense and
intelligence of the voters.

Upper Merion School District, supra. See Social Services
Union, 11 PPER 8 11075 (Nisi Decision and Order, 1980); Monongahela
Valley Hospital, Inc., 3 PPER 374 (1973); Unionville?Chadds Ford School
District, 3 PPER 178 (Nisi Decision and Order, 1973). The Board
enunciated a similar standard in Williamsport Area Community College, 8
PPER 143 (Nisi Decision and Order, 1977):

 

 

 

 

 

 

 

The Board. is of the opinion 'that an election
should be set aside only where there has been
misrepresentation or other similar campaign
trickery which involves a substantial departure
from the truth. However, the mere fact that a
message is vaguely worded and subject to
different interpretation will not suffice to
establish_such misrepresentation as would require
an election to be set aside. To set an election
aside, there must be misrepresentation which has
substantial impact upon an election. Obviously,
in any campaign exaggeration, inaccuracies, half
truths and name callings occur and although they
are not condoned, they will not be grounds for
setting aside elections.

8 PPER at 145.

The test, which is cited in case law, for
determining when employer statements are threats is set forth in the
historic Gissel Supreme Court case:

An employer is free to communicate to his

employees any of his general views about unionism
or any of his specific views about a particular

19

union, so long as the communications do not
contain a threat of reprisal or force or promise
of benefit. He may even make a prediction as to
the precise effects he believes unionization will
have on his company. In such a case, however,
the prediction must-be carefully phrased on the
basis of objective fact to convey an employer?s
belief as to demonstrably probable consequences
beyond. his control or to convey 2a management
decision already arrived at to close a plant in
case of unionization. If there is any implication
that an employer may or may not take action solely
on his own initiative for reasons unrelated to
economic necessities and known only to him, the
statement is no longer a reasonable prediction
based on available facts but a threat of
retaliation based on ndsrepresentation and
coercion, and as such without the protection of
the First Amendment.

NLRB v. Gissel Packing Co., 395 U.S. 575, 618?19 (1969). See Berks v.
PLRB, 79 A.3d 8, 18 (Pa.'Commw. Ct. 2013) (citing Gissel); PLRB v.
Stairways, Inc., 425 A.2d 1172, 1175 (Pa. Commw. Ct. 1981) (citing
Gissel).

 

 

 

I turn now to statements by the University that the Union
believes to be unfair practices. The Union argues:

One of the biggest threats the University made
was if graduate student employees voted to form
a union, the University would freeze their wages.
This was done most clearly on April 5, 2019, less
than two weeks before the election, when Urban
sent an email to all eligible voters that read,
in part:

Again: Nothing is guaranteed.

There is no guarantee that the union
will obtain improvements in any area.
What we do know is that while a
contract is being negotiated which

'typicaliy takes months or more than
a year under PA law, stipends would
be frozen under ?status quo? and
annual stipend increases would not
occur._ For reference; The University
has increased stipends by more than
13% over the last five years.

 

[Union Ex. 

(Union's Brief at 30.) (Emphasis in original.) I do not find this
statement by the University to be an unfair practice as the statement
is not a substantial departure from the truth and was made at a time
which allowed the Union to make an effeCtive_reply. The truth of the
statement is supported by the fact that the PLRB has held that

20

 

maintenance of the status guo during contract negotiations does not
include the continuation of periodic wage adjustments. Upper Leacock
Township, 43 PPER 72 (Final Order, 2011) (?In any event, federal
labor law differs from our law in that the National Labor Relations
Board follows the dynamic status quo that mandates implementation of

- announced wage increases even after the certification of an exclusive
bargaining representative. This Board and our courts have consistently
adhered to the static status quo, which freezes wages pending
negotiation of a collective bargaining This statement
was also made on April 5, 2019, which is approximately ten days before
the election. This is enough time for the Union to have made a
response. 

The Union next argues the following:

Urban also an email inplying id? graduate
student employees voted to :?nml a union they
would end up negotiating lower wages than they
would have otherwise received. On March 29, 2019,
Urban sent an email to all eligible voters that
read, in part:

Over the last five years, stipend
levels for Pitt graduate student TAs
have increased by 13.2 percent, which
is faster than the rate of inflation
percent), and more than
increases in Pitt faculty and staff
salaries during this time period.
These stipend increases are also
'larger than those seen.at a number of
universities with graduate student
unions, such as the University of
Michigan, Michigan State University,
the University of Illinois, the
University of Washington, and
others.

 

 

 

[Union Ex. 

?Union's Brief at 35.? I do not find this statement by University to
be an unfair practice as the statement is not a substantial departure
from the truth and was made_at a time which allowed the Union to make
an effective reply. The Union has not asserted that any part of this
March 29, 2019, email is false and the record does not support a
conclusion that anything in it is false. Certainly nothing in this
record would support a conclusion that anything in this message is a
?substantial departure from the truth?. This statement was also made
on March 29, 2019, which is approximately sixteen days before the
election. This was enough time for the Union to have made a response.

The Union continues its argument against the communications by
the University:

On March 27, 2019, Urban sent out an email to all

eligible voters in STEM?related departments that
read, in part:

21

Union research performed while in the
bargaining unit might not count
towards academic milestones,
including dissertations.

Under a union, students not in the
bargaining unit fellows and
trainees) might not be eligible to
teach or guest lecture in classes for
educational experience.

 

The union could require separate
assistantship research from
dissertation research. As a result,
you_may have to perform more research
to meet current academic
requirements.

 

[Union Er. 18}.

 

 

The Employer also maintained several anti?Union
webpages focusing on these same types of threats
of more onerous working conditions, including one
titled Frequently Asked Questions that listed
multiple questions, each of which could be clicked
by a visitor so that an anti?Union answer would
pop up below the question. One Section on this
same web page read: What Could Change as a Result
of Collective Bargaining? One .of the specific

-questions under this section was: Could a union
result in students having to keep track of their
hours? When this question was clicked the
following answer would pop up:

Yes. A CBA could-require students to
track their hours, including lab
hours. Students may also be asked to
distinguish time spent on activities
for an academic appointment versus
academic research. For many graduate
students, especially those ill STEM
fields, discerning between these two
types of academic hours is not always
possibler

{Union Ex. 15].

(Union's Brief at 36?37.) I do not find these statements by University
to be an unfair practice as the statements are not a substantial
departure from the truth and were made at a time which allowed the
Union to make an effective reply. Furthermore, the predictions in
these statements about the probable consequences of unionization are
carefully phrased and drawn on the basis of objective fact. There is
no evidence in this record that the statements above are false_or even
a substantial departure from the truth. Moreover, the record shows
that Urban reasonably relied on his interpretation of the Temple

22

University graduate~student unit in interpreting a probable effect of
unionization. (N.T. 373?374).

The Union continues its argument that University statements-were.
unfair practices:

Another specific question under the What Could
Change as a Result of Collective Bargaining?
section of the web page was: Will a union give
students more say in how decisions about academic
appointments are made? When this question was
clicked the following answer would pop up:

Currently, students can work with
their faculty advisor and their
program to make decisions about their
own academic appointments.

With a union, the University is not
permitted to discuss academic
appointments directly with students,
and as a result, students lose the-
ability to have an individual say in
their specific program when it comes
to appointments. The union has the
exclusive right to speak on the
behalf of graduate students when it
comes to academic appointments and
assignments coulci be determined. in
ways that are less adaptive to
individual student needs.

It's useful to note that the union
cannot negotiate how many academic
appointments the University offers.

[Union Ex. 13].

A similar question under this Section of
the webpage was: Could a union impact my ability
to work with my faculty advisor to tailor my
graduate school experience? When this_question
was clicked-the following answer would pop up:

Yes. Unions negotiate contracts on
behalf of the entire bargaining unit?
not on behalf of its individual
.members. A union. may limit the
ability' of the University' and. its
faculty to work directly with
graduate students and agree upon
individualized conditions,
accommodations or experiences that
are the hallmarks of a graduate
education.

[Union Ex. 12}.

23

 

 

 

(Union's Brief at 37?38.) I find the sentence ?With a union, the
University is not permitted to discuss academic appointments directly
with students, and as a result, students lose the ability to have an
individual say in their specific program when it comes to appointments?
to be a substantial departure from the truth, not carefully drawn, and
not based on objective fact. Nothing in the record supports the
University's-definitive conclusion that graduate students within the
bargaining unit would be prohibited from speaking directly to
University agents about academic appointments job placements).
Nothing in the record supports the University?s definitive conclusion
that graduate students would lose the ability to have an individual say
in their specific program if the union prevailed in the election. The
impact of this definitive prediction of union interference in a
graduate student?s ability ?to have an individual say in their specific
program when it comes to appointments" is magnified by its inclusion
with other conditional statements predicting a negative impact of
unionization on graduate students. Based on the record as a whole, I
find that this misstatement would grosSly impact and coerce potential
voters about the impact of a unionization of graduate students at the
University.

Furthermore, this statement was maintained on a University
webpage for an extended period of time, including through the
conclusion of the election on April 18, 2019, and referenced in
numerous University emails to eligible voters. The maintenance of this
statement on the University webpage through the entire election defeats
any ability of the Union to respond or rebut effectively. Unlike
statements made through traditional means such as letters to eligible
voters, or management speeches during informational sessions, made well
before an election with enough time to be thoughtfully considered by an
eligible voter and potentially rebutted by union communications, the
contents of the University?s webpages, including the statements in
question, were continuously published anew each day and were available
to the entire universe of eligible voters immediately before the
election and through?out the entire election, presumably when interest
by eligible voters would be intense. s29 Unionville~Chadds Ford School
District, supra. . . the Board will not allow misrepresentations to
be made to the employes at that eleventh hour which will prevent a fair
election by informed These statements were not only made
at the eleventh hour, but also the proverbial twelfth hour: during the
actual election.

 

I further conclude, based on the record as a wholez, that this
misstatement would reasonably have an impact_on the election because it:
was made in the middle of an extremely close election and the issue, a
graduate student?s individual say in his or her academic appointment,
is of core importance to a graduate student whose academic career is,
in part, dependent on the academic appointments he or she participates
in as a graduate student. The University's statement at Union Exhibit
13 is therefore an unfair practice under Section 1201(a)(l) of the Act.

 

2 My conclusion is also informed by the. record before me in the earlier
proceeding in including, specifically, ODSEL Findings
of Fact ll, l2, l3, l5. -

24

 

The Union continues its argument that University statements were
unfair practices: - .

On April 4, 2019, Urban sent an email to all
eligible voters that read, in part:

Under law, there are
only three issues that the University
and Union can bargain over: stipend,
benefits, and working conditions.
That?s it.

Despite claims you may have heard,
the union. cannot bargain over the

University's budget, . programs
offered, admissions decisions,
selection of students for academic
appointments, how many academic
appointments are caffered, class
assignments.

In addition, the Labor
Relations Board and 
courts have never defined what?s
covered. under ?Working conditions?
for graduate students who teach and
conduct research as part of their
academic experience. We don?t know
how a union. could affect research
hours or other core components of the
educational experience, because this
is uncharted territory.

[Union Ex. 

In an. almost identical. threat, the University
maintained. an antiHUnion web page titled
Collective Bargaining Basics that included a
chart listing items the Union could or could not
bargain over.

 

 

 

(Union's Brief at 38?39.) The chart referenced by the Union is the

following: 

Union Can Bargain Over: Union Cannot Bargain Over:-
Stipends Budget and allocation of funds
Benefits Technology use
Working conditions* Programs offered
*The PLRB and Management rights
courts have never defined this Selection of students for
for graduate students whose academic appointments
teaching and research are part Direction of students with
of their academic training academic appointments

Standards of service
Admissions decisions

 

 

 

 

25

 

Academic requirements and
academic decisions

The number of academic
appointments

Programmatic decisions

 

 

 

 

(Union'Exhibit ll.) I find these statements by the University to also
to be a substantial departure from the truth, not carefully drawn, and
not based on objective fact. First, in the case of the chart at Union
Exhibit ll, these statements glaringly contain the following essential
contradiction: The statements claim that the PLRB and 
courts have never defined what constitutes bargainable working
conditions in the case of graduate students while at the same time
declaring definitively that certain-broad and general topics such as
?selection of students for academic appointments", ?direction of
students with academic appointments", ?admissions decisions?, and
?academic requirements and academic decisions? cannot be bargained.
The University's definitive declarations that these topics cannot be
bargained are wholly at odds with the proximate statement in the
immediately preceding column that the PLRB and courts have
not yet determined or defined bargainable working conditions in the
case of graduate students. A statement so paradoxical cannot be true
and is a substantial departure from the truth.

Urban's April_4 email at Union Exhibit 6Jis a similarly
incongruous enigma and substantial departure from the truth. On the
one hand Urban definitively claims that a prospective union cannot
bargain over ?admissions decisions", ?selection of students for
academic appointments?, or ?class assignments? while on the other hand
claiming that ?the Labor Relations Board and 
courts have never defined what's covered under ?working conditions? for
graduate students who teach and conduct research as part of their
academic experience. We don?t know how a union could affect research
hours or other core components of the educational experience, because
this is uncharted territory.? These statements are completely at odds.
It is duplicitous to claim definitively that a union may not bargain
over certain topics while at the same time recognizing that the Board
has never had an opportunity to define bargainable topics in the
context of graduate?student employes.

Based on the record as a whole, I find that these misstatements
would grossly impact and coerce potential voters about the potential
impact of a unionization of graduate students at the University. The
chart was maintained on a University webpage for an extended period of
time through the conclusion of the election on April 18, 2019, and
referenced in numerous University emails to eligible voters. Urban's'
email was sent on April 9, 2019. While the Union did have an
opportunity to reply to Urban?s email of April 4, 2019, the maintenance
of the chart (Union Exhibit 11) on the University webpage through the
entire election defeats any ability of the Union to respond
effectively. (I here follow the same reasoning as I followed in the
discussion of Union Exhibit 13 above.) I further conclude, based on
the record as a whole, that this misStatement in Union Exhibit 11 would
reasonably have an impact on the election because the misstatements
concern certain topics which would have the tendency to impact whether
an eligible voter would or would not support unionization during an

26

 

 

extremely close election. I am persuaded by the following argument by
- the Union with respect to these statements:

The University?s message is clear?if you vote to
form a union, you will not be able to bargain
over much of anything except maybe stipend rates,
and we plan to freeze those and will likely take
a position that your raise rates should be lower
than they are without a union or collective
bargaining. These threats include no explanation
of the give and take of bargaining. They simply
state as fact the alleged.limitations over what
the Union can bargain over. The threatened
limitations are legally inaccurate, which implies
that the University is threatening that it will
not bargain over mandatory subjects, such as the
allocation of funds to pay for stipends or the
use of enui access 'to technology necessary for
performing the work of most graduate assistants.
It even more overtly implies that the University
will not even consider discussing permissive
subjects of bargaining.

 

 

 

(Union's Brief at 40.) The University?s statement at Union Exhibit 11
is therefore an unfair practice under Section 1201(a)(1) of the Act.

Finally, the Union highlights the following three statements by
the University which appeared on the University's webpage:?

A union can bargain over stipends, hours, and
working conditions 
Unions cannot bargain over _management rights

including: the selection and direction of
personnel, standards of service, budget,
technology use, employee counts, and the programs
offered.

[Union Exhibit 12}.

A union might seek to bargain over assignments,
but the courts may have to decide whether they
would have the ability to do so. The graduate
union. at Temple University' does not have the
right to bargain. over assignments.' Even the
unionized faculty at TEmple University do not
have a say in how their classes are assigned.

[Union Exhibit 16].

Most graduate student union contracts like Temple
and of Washington specify a maximum number of
hours that students can work per week. Contract
terms can?t be circumvented by you or the
University, despite what the Steelworkers have
claimed. If you tried to work more than the
delineated hours, the University would have to

27

stop you or breach the agreement and potentially
face consequences.

[Union Exhibit 14].

I do not find these statements to be substantial departures from
the truth and find them to be carefully phrased and based on objective
fact.

Conclusion with Respect to the University's Alleged Unfair Practices

Based on the above and the record as a whole, I find that the
University committed unfair practices in violation of Section
1201(a)(1) of the Act. Specifically, I find the following coercive
acts and statements to be unfair practices:

1. The Steven Little email at Union Exhibit 20.
2. The University statement at Union Exhibit 13.
3. The University statement at Union Exhibit 11.

The University?s Burden to show the Election was not Materially
Affected

As discussed above, an innocent party need not preve that the
unfair labor practice affected the outcome of the election and the
burden shifts to the charged party to establish that the election?s
outcome was not materially affected. Western Institute v.
PLRB, 330 A.2d. 257 (Pa. 1974); Woodland Hills, supra.;
Philadelphia Joint Board, 41 PPER 55 (Final Order, 2010).

 

 

 

 

The University argues that the burden shift under Western
is no longer good law and should not be applied:

The Union does not dispute this standard as it
relates to its objections to the conduct of the
election by the PLRB, but alleges that a
different standard, one that shifts the burden to
the University, should govern its unfair labor
practices against the University, relying on the
1974 decision in W. Inst. Clinic of
Univ. of Pittsburgh of Com. Sys. Of Higher Ed. v.
Comd Labor Relations Bd., 330 .A.2d 257 (Pa.
Commw. Ct. 1974) and the 1982 hearing examiner
decision in Woodland Hills School Dist., 13 PPER
13214 (Hearing Examiner Decision, the
proposition that the objecting party need only
prove that an unfair practice occurred, and then
the burden shifts to the responding party to show
that even if such conduct occurred, it did not
materially affect the election. However, the
cases on which the Union relies are more than
thirty five years old and are not consistent with
the language of PERA itself, which. makes no
reference to shifting the burden to the
respondent to, in effect, prove a negative.

The Kaolin and [Montgomery County, 769 A.2d 554
(Pa. Commw. Ct. 2001)] cases also make clear that

 

 

 

 

28

 

the courts no longer apply the
burden shifting approach of W. 

(University?s Brief at 26?27.) However, the Board as recently as 2010
applied Western to an election case-and upheld a Hearing
Examiner?s decision which applied the burden shifting analysis.
Philadelphia Joint Board, 41 PPER 55 (Final Order, 2010);
Philadelphia Joint Board 41 PPER 37 (Proposed Decision and
legal standard for the Board's ordering a new election is
that once the complaining party has proved an unfair practice, the
burden shifts to the charged-party to establish that the election's
outcome was not materially The law under Western
has not changed and will be applied here.3

 

 

 

Although the University argues that it has no burden under
Western it does assert, assuming arguendo, that its
conduct had no effect on the outcome of the election. (University?s
Brief at 66?67.) The University?s argument there overlooks, however,
one dispositive fact: the election was extremely close. 1,387 voters
were counted. Out of those 1,387 votes cast, the margin was only in
favor of the University by a margin of 37 votes (712 to 675). The
University did not show that the audience to its unfair practices
discussed above was limited to a small subset of eligible voters such
that the election could not have been affected. gee Philadelphia Joint

 

 

3 This same argument was raised in Central Bucks School District, 33
PPER 33082 (Proposed Decision and Order, 2002). The Hearing Examiner
in that case wrote: 

 

Citing Kaolin Mushroom Farms, Inc. v. PLRB, 702
A.2d 1110 (Pa. melth 1997), appeal dismissed as
having been improvidently granted, 554 Pa. 171,
720 A.2d 763 (1998), the District contends that
no new election should be ordered by way of remedy
because the Teamsters did. not show that the
outcome of the election was materially affected
by the District's unfair practice. Kaolin
Mushroom Farms holds that a party seeking a new
election based on misconduct by the Board during
an election has the burden of showing that such
misconduct materially affected. the election
results. Misconduct by the Board is not at issue
here, however; rather, an unfair practice by the
"District is. western Institute and
Clinic, supra, holds that a party committing an
unfair practice has the burden of proving that
the results of an election were not thereby
affected in order to avoid the remedy of a new
election. Because neither the District nor the
Association established that the District's
unfair practice did not affect the outcome of the
election, a new election must be ordered by way
of remedy.

 

Id. (Emphasis added.) Notably-this case is after Montgomery

County, 769 A.2d 554 (Pa. Commw. Ct. 2001), cited by the University.

29

 

 

 

Board, 41 PPER 55; Philadelphia Joint Board 41 PPER indeed,
the University statements made at Union Exhibit 13 and at Union Exhibit
11 were available to be viewed by anyone in the world with internet
access and the amount of eligible voters who viewed that content could
have included a substantial number of the voting pool. It is
reasonable to assume that more than 37 eligible voters may have viewed
and been affected by such content. It is clear, under Western
that is the University?s burden to show a limited number
of eligible voters were affected and the University did not do so.

 

With respect to the Steven Little email at Union Exhibit 20, the
University does argue that

Of fine 46 eligible student voters j11 Chemical
Engineering to whom the email was sent, twelve
had already voted during the first two days and
six did not vote. (Tr. 334?36).
Nevertheless, the potential impact on 28 voters
out of more than 1,500 who voted does not justify
setting aside the election, even if the Union had
proven an unfair labor practice by the
University, as it would. not have altered the
outcome of the election which was decided by more
than 28 votes. 

(University?s Brief at 44.) The 28 voters remaining are less that the
current margin of 37 voters, however the current margin of 37 voters
does not include currently outstanding challenged voters which have not
been canvassed. As such, the 28 potential votes affected by Steven
Little?s email may have been enough to cause a-material difference in
the election if the challenged votes are included.

On a whole, the University?s coercive acts potentially affected a
large enough pool of eligible voters for the affect on the election to

be manifest due to the extreme narrowness of the result.

Conclusion and Remedy

 

Where the employer engages in coercive unlawful behavior and
subsequently prevails in the election, the Board will not further
require the victim of unlawful conduct to demonstrate prejudice in the
election outcome and a new election is to be ordered to remedy any such
unfair practice. Kaolin Remand Order, supra; Western 
supra; Central Bucks School District, supra. The University committed
unfair practices. The University prevailed in the election.

Therefore, I order a new election. 

 

CONCLUSIONS

The Hearing Examiner, therefore, after due consideration of the
foregoing and the record as a whole, concludes and finds:

l. The University is a public employer within the meaning of
Section 301(1) of PERA.

2., The Union is an employs organization within the meaning of
Section 301(3) of PERA.

30

 

 

3. The Board has jurisdiction over the parties hereto.

4. The Board has not committed misconduct with respect to the
election.
5. The University has not committed unfair practices in

violation of Section 2201(a)(7) of PERA.

6. The University has committed unfair practices in violation
of Section 1201(a)(1) of PERA.

ORDER

'In View of the foregoing and in order to effectuate the policies
of PERA, the Hearing Examiner

HEREBY ORDERS AND DIRECTS

that the University shall:

I. Cease and desist from interfering, restraining or_coercing
employes in the exercise of the rights guaranteed in Article IV of the
Act. .

2. Take the following affirmative action which the Hearing
Examiner finds necessary to effectuate the policies of PERA:

Post a copy of this Decision and Order within five (5) days
from the effective date hereof in a conspicuous place readily 
accessible to the bargaining unit employee and have the same remain so
posted for a period of ten (10} consecutive days;

FurniSh to the Board within twenty (20) days of the-date
hereof satisfactory evidence of compliance with this Decision and Order
by completion and filing of the attached Affidavit of Compliance; and

Serve a copy of the attached Affidavit of Compliance upon
the Union.

IT IS HEREBY FURTHER ORDERED AND DIRECTED

that a new election is to be held in Case No. and the
University shall within twenty (20) days from the date hereof submit to
the Board a current alphabetized list of the names and addresses of the
employes eligible for inclusion in the unit set forth in the Order
Directing Submission of Eligibility List dated March 7, 2019.

IT IS HEREBY.FURTHER ORDERED AND DIRECTED

that-in the absence of any exceptions filed pursuant to 34 Pa. Code 
95.98(a) within twenty {20) days of the date hereof, this decision and
order shall become and be absolute and final.

31

 

 

 

 

 

SIGNED, DATED AND MAILED at Harrisburg, this
eighteenth day of September, 2019.

LABOR RELATIONS BOARD

   
   

 

HELMERICH, Hearing Examiner

STEPW

 

 

 

32

COMMONWEALTH OF 
Labor Relations Board

UNITED STEEL, PAPER AND FORESTRY,
RUBBER, MANUFACTURING, ENERGY,
ALLIED INDUSTRIAL AND SERVICE
WORKERS INTERNATIONAL UNION, AFL-
-

Case No. 
v.

THE UNIVERSITY OF PITTSBURGH

 

IN THE MATTER OF THE EMPLOYES OF
Case No. 

THE UNIVERSITY OF PITTSBURGH

AFFIDAVIT OF COMPLIANCE

The University of Pittsburgh hereby certifies that it has ceased
and desisted from its violation of Section l201(a)(1} of the Public
Employe Relations Act; that it has complied with the Proposed Decision
and Order as directed therein; that it has posted a copy of the
Proposed Decision and Order as directed therein; and that it has served
an executed copy of this affidavit on the Union at its principal place

of business.

 

Signature/Date

 

Title
SWORN AND SUBSCRIBED TO before me
the day and year first aforesaid.

 

Signature of Notary Public

33