Labor board’s decision reversal on Pa. Convention Center a "head-scratcher," says experts

A hearing examiner’s move to deny his prior decision on unfair labor charges against the Pennsylvania Convention Center has left experts scratching their heads since no new evidence has surfaced since the February decision.

“It is highly irregular … for them to reverse a decision, particularly when it appears there’s been no new evidence,” said Rick Grimaldi, an attorney at Fisher & Phillips.

Pennsylvania Labor Relations Board hearing examiner Jack E. Marino on Friday reversed his decision made in February — that the PLRB had no jurisdiction over the case since the Pennsylvania Convention Center Authority, although a public employer, was not a joint employer with labor supplier Elliott-Lewis.

Grimaldi said he’s surprised by the decision because “nothing’s changed” since the National Labor Relations Board’s decision last year or Marino’s February decision.

The Authority is no more or less a joint employer than it was when the two boards looked at the cases, he said.

The argument is whether the Authority is a joint employer with Elliott-Lewis — if both companies have control over the work of the union workers. The Authority says Elliott-Lewis, the company that distributes payroll and benefits to all the workers performing show labor at the center, is the only employer.

The decision for a judge or hearing examiner to reverse his decision is extremely rare, and only happens when there's a new law passed since the opinion or if new facts are discovered.

"I've never seen a finder of fact reconsider and reverse his own prior opinion without being requested by one of the parties to do so," said Wally Zimolong of Zimolong LLC.

If the Carpenters, Teamsters or the Convention Center Authority filed a written a request to the PLRB, it would have been put on record. The procedural history in the opinion, however, does not list any requests from either parties since his decision to dismiss on Feb. 2.

"What was it that caused it? [There are] no new laws or facts. It's a head-scratcher," he said.

One scenario that could have changed since last year is the NLRB’s focus on the joint employer status, which magnified last year when it decided that fast food chain McDonald’s is a joint employer of the workers at its franchisees’ restaurants, Grimaldi said.

“It goes beyond fast food. It potentially impacts any business that uses temporary help,” he said. “It’s pure speculation, but it makes me wonder if that hasn’t trickled down to the PLRB.”

(Check out another reason attorneys have for the reversal in this week's print edition.)

Decision is bad for Convention Center, Philadelphia

Even if the PLRB has decided that it does have jurisdiction over the case, the fact hasn’t changed that four of the six unions have signed the new customer satisfaction agreement, Grimaldi said.

The Carpenters have been arguing since last year that they signed the agreement in time.

“The best the Carpenters and Teamsters can hope for is that the board says they’re part of the agreement, signed it late and have to abide by the rules,” Grimaldi said.

The decision, however, won’t be good for Philadelphia and the Convention Center, which is trying to become more competitive with other convention cities, Zimolong said.

“The state of affairs, without the Carpenters, was a positive one. The bookings were up and, by all accounts, exhibitors were very satisfied with the change in the business environment and culture of the Convention Center," he said.

It would be a return to the ways of the past, "which were driving exhibitors away and driving conventioneers away," Zimolong said, ultimately resulting in the loss of tax revenue for Philadelphia and Pennsylvania.

Giving hope to the ousted unions

Marino’s decision to deny his prior decision gives the Carpenters and Teamsters more hope in its uphill battle, Grimaldi said.

“They were dead in the water, and now they have life,” he said. “However tenuous, they have a heartbeat, so I think it certainly benefits them.”

The two unions were at a legal standstill after Marino’s decision last year, Grimaldi said. Their only option up until this point was to use public relations campaigns against the Convention Center, which they did by launching their own website and taking to social media.

Now they will be able to get a hearing date in order to present evidence on the merits of the case, from which the hearing examiner would make his decision, said Amy L. Rosenberger, a partner in Willig, Williams & Davidson’s labor department.

Now the unions will be able to provide testimony and evidence.

“His original decision was jurisdictional, so he wasn’t getting into the question of whether there actually was a violation,” she said.

It will be months until this case unwinds, but the hearing will happen relatively soon “given the high visibility of the issue,” Grimaldi said.

Source: Philadelphia Business Journal