Section 213.8. Grievances arising from administration of the act

(a) Under section 2.2(e) of the act (43 P. S. § 165-2.2(e)), the Board will hear and determine grievances arising out of the administration of the act. Appeals from determinations of the Secretary are excluded from review under this section. The types of disputes heard under this section shall include the following:

(1) Disputes as to the applicability of the act to a project.

(2) Disputes involving classification or coverage, or both, of persons employed on public work.

(3) Disputes concerning the proper interpretation or application of the act or regulations thereunder.

(b) Grievances submitted to the Board under this section shall include:

(1) The identity and interest of the grievant.

(2) If applicable, the name, address and predetermination serial number of the affected project, and the name and address of the public body responsible for the project.

(3) A brief statement of the issue or dispute giving rise to the grievance.

(4) A brief statement of the agency’s position, along with copies of documents setting forth that position.

(5) A statement of requested relief.

(6) A signature of the party or the party’s attorney.

(7) A certificate of service showing service upon the agency, the public body and affected contractors or subcontractors.

(c) An original and eight copies of the grievance shall be filed with the Board.

(d) The following format is suggested for grievances:

Appendices:

A. Copy of agency’s position (if any).

B. Certificate of Service.

(e) The Board will promptly provide notice of the grievance to interested persons designated in sections 7, 8 and 11(c) of the act (43 P. S. § § 165-7, 165-8 and 165-11(c)).

(f) Petitions for intervention shall be filed and served within 15 days of the notice of the grievance issued under subsection (e), except upon good cause shown. Petitions for intervention shall be governed by the General Rules. Briefs for intervenors shall be filed and served within 15 days of the Board’s order granting intervention or the day fixed under this section for the filing of a brief by the party on whose behalf intervention is made, whichever is later.

(g) Within 30 days of filing a grievance under this section, the grievant shall file and serve a brief. An original and eight copies shall be filed with the Board. The brief shall contain a statement of proposed facts and discussion of the legal issues. Copies of proposed exhibits shall be numbered and appended to the brief. Within 30 days of service of the grievant’s brief, the agency shall file and serve a brief conforming to the requirements of this subsection.

(h) After the briefs have been filed, the parties shall confer to attempt to resolve disputed factual issues and shall promptly submit to the Board a stipulation of agreed-upon facts. The parties, jointly or separately, shall submit to the Board a statement of factual issues and advise whether an evidentiary hearing is requested. The Board will have the discretion to grant or deny the request.

(i) Upon receipt of the parties’ stipulation and statement of disputed facts, the Board will schedule the matter for hearing or argument, or both. If an evidentiary hearing is requested, the Board may delegate the matter to a hearing officer to take evidence and testimony. The hearing officer will not issue a proposed decision.

(j) The General Rules govern evidentiary hearings. The burden of proof shall be on the grievant.

(k) Subsections (b) and (d) supersede 1 Pa. Code § 35.20 (relating to appeals from action of the staff). Subsection (c) supersedes 1 Pa. Code § 33.15 (relating to number of copies).

The provisions of this § 213.8 adopted February 11, 1994, effective February 12, 1994, 24 Pa.B. 871.

Notation

Notes of Decisions

Burden of Proof

In a grievance filed by a union from administration of the Prevailing Wage Act, the grievant bears the burden of proof. Butler Balancing Co., Inc. v. Prevailing Wage Appeals Board, 780 A.2d 840 (Pa. Cmwlth. 2001).

Parties

In a dispute over whether a particular building project was subject to the Prevailing Wage Act, unions representing employes in the building and construction industry throughout Pennsylvania have standing to file their grievances, where unions are meant to pay an integral role in the administration and enforcement of the act, and, in order to protect workers, it is essential that some workers and unions who are not working under the protections of the act have standing to challenge a determination that the act does not apply. Pennsylvania National Mutual Casualty Insurance Co. v. Department of Labor and Industry, 715 A.2d 1068 (Pa. 1998); appeal after remand 767 A.2d 605 (Pa. Cmwlth. 2001); appeal 773 A.2d 757 (Pa. 2001); affirmed 808 A.2d 881 (Pa. 2002).

The trade council had standing to challenge the prevailing minimum wage rates continued in a particular contract for public work. Pennsylvania National Mutual Casualty Insurance Co. v. Department of Labor and Industry, 667 A.2d 753, 2 Wage & Hour Cas.2d (BNA) 1713 (Pa. Cmwlth. 1995).

Cross References

This section cited in 34 Pa. Code § 213.2 (relating to definitions); and 34 Pa. Code § 213.3 (relating to appeals from determinations of the Secretary).