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

   1. (1) A party may file with the Board within 20-calendar days of the date of issuance with the Board an original 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 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:

      1. (i) State the specific issues of procedure, fact or law, or other portion of the proposed decision to which each exception is taken.
      2. (ii) Identify the page or part of the decision to which each exception is taken.
      3. (iii) Where possible, designate by page citation or exhibit number the portions of the record relied upon for each exception.
      4. (iv) State the grounds for each exception.
   2. (2) No reference may be made in the statement of exceptions to any matter not contained in the record of the case.
   3. (3) An exception not specifically raised shall be waived.
   4. (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.
2. (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.
3. (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 a response to the statement of exceptions and a supporting brief with the Board. Copies of these documents shall be served concurrently on each party, and proof of service shall be filed with the Board.
4. (d) Review on Board’s own motion. The Board may, on its own motion, decide to review the proposed decision within 20-calendar days following the date of issuance of the decision. Notice of the Board’s review will be entered on the docket; notice of the Board’s review will be served on parties of record; and an opportunity to present briefs will be provided to all parties.
5. (e) Oral argument on exceptions. A party desiring to argue orally before the Board regarding exceptions to a decision shall file with the statement of exceptions or the response to the statement of exceptions a written request stating the reasons for the request. Upon the request or its own motion the Board may direct oral argument.

6. (f) Decision of the Board. The Board may do any of the following:

   1. (1) Issue a final order adopting, modifying or reversing the prior decision.
   2. (2) Reopen the record for the taking of further testimony and evidence.
   3. (3) Take other action it deems proper.

7. (g) Reconsideration of Board decisions. Decisions of the Board will be reconsidered under the following circumstances:

   1. (1) A motion for reconsideration need not be filed to exhaust administrative remedies.
   2. (2) A party to a decision of the Board may, because of extraordinary circumstances, file a request to reconsider the decision with the Board within 7-calendar days following the date of service of the decision. The party shall state with specificity the grounds claimed and, where applicable, shall specify the page of the record relied upon. A copy of the request shall have been actually served upon each party of record prior to filing the request, and a statement of the service shall accompany the request. A party shall have 5-calendar days from actual service to file a response with the Board. ‘‘Actual service,’’ as used in this paragraph, means actual receipt by the party or his agent. The filing of a request for reconsideration will not operate to stay the effectiveness of a decision of the Board unless otherwise ordered by the Board.
8. (h) Subsection (a) supersedes 1 Pa. Code § § 35.211 and 35.212 (relating to procedure to except to proposed report; and content and form of briefs on exceptions); subsection (b) supersedes 1 Pa. Code § 35.213 (relating to effect of failure to except to proposed report); subsections (c) and (e) supersede 1 Pa. Code § 35.214 (relating to oral argument on exceptions); and subsection (g) supersedes 1 Pa. Code § 35.241 (relating to application for rehearing or reconsideration).

Authority

The provisions of this § 95.98 issued under section 4(b) of the Pennsylvania Labor Relations Act (43 P.S. § 211.4(b)); and the Public Employe Relations Act (43 P.S. § § 1101.101—1101.2301); amended under section 4(f) of the Pennsylvania Labor Relations Act (43 P.S. § 211.4(f)); and section 502 of the Public Employe Relations Act (43 P.S. § 1101.502).

Source

The provisions of this § 95.98 adopted October 23, 1970, effective October 24, 1970, 1 Pa.B. 419; amended June 21, 1974, effective June 22, 1974, 4 Pa.B. 1282; amended April 4, 1980, effective April 5, 1980, effective only for hearings conducted after April 5, 1980, 10 Pa.B. 1435; amended August 20, 1982, effective August 21, 1982, 12 Pa.B. 2788; amended February 7, 2020, effective February 8, 2020, 50 Pa.B. 792. Immediately preceding text appears at serial pages (222299) to (222300) and (337179) to (337180).

Notes of Decisions

Failure to File Exceptions

Where union failed to except to hearing examiner’s credibility determination that reduced Federal funding rather than improper motivation was basis for elimination of dispatcher position, union effectively waived any argument that elimination of position was retaliatory. Amalgamated Transit Union Local 168 v. County of Lackawanna Transit System Authority 29 PPER (LRP) P29,036 (1998).

The borough asserted that it did not commit an unfair labor practice by not proceeding to interest arbitration because it exercised its legislative power to abolish its police department and subcontract its police services. This issue, however, was not raised in the borough’s exceptions to the hearing examiner’s proposed decision and therefore, it was waived. Geistown Borough v. Labor Relations Board, 679 A.2d 1330 (Pa. Cmwlth. 1996); appeal denied 692 A.2d 568 (Pa. 1997).

The failure to take exception to a proposed decision by a Labor Relations Board examiner caused the order to become final upon the expiration of 20 days from its issuance. Donatucci v. Labor Relations Board, 547 A.2d 857 (Pa. Cmwlth. 1988).

Failure to seek reopening of the record before the Board, as permitted by 34 Pa. Code § 95.98(f)(2), acts as a waiver of the issue or reopening the record upon appeal of the adjudication to the court. County of Lawrence v. Labor Relations Board, 469 A.2d 1145 (Pa. Cmwlth. 1983).

An issue not of record may not be raised for the first time in exceptions to a Board’s nisi certification order under subsection (a)(2). Intermediate Unit No. 22 v. Labor Relations Board, 466 A.2d 262 (Pa. Cmwlth. 1983).

Filing Time

In the absence of a postal service cancellation stamp or other independent means of verifying the timeliness of the exceptions received in a mailing envelope bearing a private postal meter stamp, the exceptions were deemed filed on the date they were received in the Labor Relations Board’s office, 2 days beyond the filing deadline. Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 31 PPER (LRP) P31,036 (2000).

The Pennsylvania Labor Relations Board has accepted, in the absence of U. S. Postal Form 3817, a timely postmark of exceptions within the 20-day period for the filing of exceptions; where the proposed decision and order was dated and mailed to the parties on June 25, the last day for the timely filing of exceptions was July 15, 1998, and exceptions postmarked on July 16, 1998, were not timely filed. Teamsters Union Local 776 v. Dauphin County, 29 PPER (LRP) P29,217 (September 15, 1998).

Specificity of Exceptions

Exceptions which challenged all sixty-three findings of fact made by the hearing examiner and, at least as to certain of those challenged findings, provide alternate findings and reiterated the complainants’ legal analysis of its proffered findings in challenging the hearing examiner’s conclusion were sufficiently specific to allow for meaningful review and were not dismissed for lack of specificity. Halfhill, et al. v. Private Industry Council of Westmoreland/Fayette, Inc., et al., 29 PPER (LRP) P29,004, 1997.

Cross References

This section cited in 34 Pa. Code § 93.31 (relating to hearings).