We have before us the petition of Media Drug Stores, Inc., an employer, for review of an order of the Pennsylvania Labor Relations Board certifying that the Retail Cigar, Drug and Luncheonette Employees Union, Local 1034, an affiliate of the Congress of Industrial Organizations, is the exclusive representative of the majority of appellant’s employes for the purpose of collective bargaining with Media Drug Stores, Inc.
The Media Drug Stores, Inc., operates 16 drug stores in Philadelphia, Pennsylvania, and surrounding suburban communities. Some of its employes be
The gist of the petitioner’s assignments of error, as the basis for review, are (1) that the employes voting at the election were not an appropriate unit, and (2) that inasmuch as the board certified 132 employes as eligible to vote at the election, the board was not justified in certifying Local 1034 as the collective bargaining representative because although it received the votes of a majority of those who participated in the election, it did not receive 67 or more votes or a majority of those eligible to vote.
As to the first point, appellant’s complaint as expressed in its brief and argument is that the board included in the “appropriate unit” employes of the employer’s stores outside of Philadelphia. It maintains that the employes in the stores in the suburbs outside the city limits should not have been included. We have examined the whole record and are of the opinion that the findings of fact made by the board are supported by substantial and legally credible evidence, and justified its determination of the “appropriate unit” of employes, and we cannot find any facts in the record or any good or persuasive reason for only including in the “appropriate unit” employes of the stores within the city limits. We have also noticed that the petitioner made no objection to the inclusion of employes of the suburban stores during the hearings before the board held for the purpose of determining who should be included in the “appropriate unit”. The Pennsylvania Labor Relations Act entrusts to the labor relations board the function of determining primarily the “unit appropriate for the purposes of collective bargaining”. See Pennsylvania Labor Relations Act, supra, as amended by Act of June 1, 1945, P. L. 1379, 43 PS §211.
“Election laws providing for approval of a proposal by a specified majority of an electorate have been generally construed as requiring only the consent of the specified majority of those participating in the election. . . . Those who do not participate ‘are presumed to assent to the expressed will of the majority of those voting.’ ”
The same rule obtains in elections conducted by the National Labor Relations Board under the National Labor Relations Act: New York Handkerchief Mfg. Co. v. National Labor Relations Board, 114 F. (2d) 144; National Labor Relations Board v. Central Dispensary and Emergency Hospital, 145 F. (2d) 852 (1944), in which case certiorari was denied by the Supreme Court of the United States on February 26, 1945 (324 U. S. 847) ; National Labor Relations Board v. Standard Lime & Stone Co., 149 F. (2d) 435 (1945).
Mr. Justice Stearne in Shafer Petition, 347 Pa. 130, at p. 132, in commenting on the provisions of the Pennsylvania Labor Relations Act relating to holding-elections of employes for the purpose of choosing a collective bargaining representative, said:
“The Pennsylvania Labor Relations Act of 1937 was obviously imitative of the National Labor Relations Act of July 5, 1935, sometimes designated the Wagner Act, . . .”
We are of the opinion for the reasons set forth above that petitioner’s exceptions to the order of the board are without merit and present no grounds for setting aside the said order of certification.
There was no suggestion of improper conduct or irregularity in the conduct of the election in this case and no petition for review has been filed by Local 1390, the union which was unsuccessful at the election.
The Pennsylvania Labor Relations Act of June 1, 1937, P. L. 1168, sec. 9, as amended by the Act of May 18, 1945, P. L. 656, provides that “Any person aggrieved by a final order of the board . . . may obtain a review of such order in the court of common pleas. . . .” There is a serious question as to whether the petitioner in this case is a “person aggrieved”. This question was not raised in the present case and we are not called upon to pass upon it, except to call attention to the fact that logically the “person aggrieved” in this case is the unsuccessful union which has not challenged the certification in these proceedings. Furthermore, there is authority for the proposition that a certification by a labor relations board of a representative for purposes of collective bargaining is not a final order which is subject to review or appeal, but is merely a certification of a fact. It has been held that, “Until the Board makes a final order commanding the Company to do something, its jurisdiction is exclusive and complete and its order may not be reversed or set aside if there is any substantial evidence to support it. Consequently until the Board makes a final order by which some person is aggrieved the proceedings of the Board
Order
And now, March 14, 1946, the petition of Media Drug Stores, Inc., for the review of and setting aside of the decision and final order of certification of the Pennsylvania Labor Relations Board filed herein on November 16, 1945, is hereby dismissed.