*346Dissenting Opinion by
Judge MencerI respectfully dissent.
Section 604 of the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §1101.604, states, in pertinent part:
The board shall determine the appropriateness of a unit which shall be the public employer unit or a subdivision thereof. In determining the appropriateness of the unit, the board shall:
(5) Not permit employes at the first level of supervision to be included with any other units of public employes but shall permit them to form their own separate homogenous units.
Here, the employer’s petition for unit clarification alleges that the employes with the position of Casework Supervisor I and Coordinator Partial Hospitalization are first level supervisory positions. If this allegation can be proved, our law forbids these employes to be in the unit certified in the instant case. Thus, the Court of Common Pleas of Venango County was correct in remanding the case to the Pennsylvania Labor Relations Board for the purpose of holding a hearing on the petition and the making of findings of fact.
The parties here cannot vary the law of this Commonwealth by entering into a stipulation to accept first level supervisors into a bargaining unit when Section 604(5) of the Public Employe Relations Act specifically forbids such to be done. See Gianfelice Unemployment Compensation Case, 396 Pa. 545, 153 A.2d 906 ((1959). Likewise, the Pennsylvania Labor Relations Board fails in its duty to make a proper determination of the appropriateness of a unit when it refuses to make inquiry as to the matter on the premise that what is done is final.