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RETAIL CLERKS UNION PENNSYLVANIA STATE STORE ORGANIZING COMMITTEE v. COMMONWEALTH PENNSYLVANIA AND PENNSYLVANIA LIQUOR CONTROL BOARD AND HENRY KAPLAN (05/13/76)

decided: May 13, 1976.

RETAIL CLERKS UNION PENNSYLVANIA STATE STORE ORGANIZING COMMITTEE, AFL-CIO, AN UNINCORPORATED ASSOCIATION, BY WENDELL YOUNG AND RONALD ROSMINI, TRUSTEES AD LITEM, ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; AND PETER J. SPURIO, ON HIS OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; AND STEVEN B. EDWARDS, ON HIS OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; AND GENE O. RUSSELL, ON HIS OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; AND STEPHEN E. BYERS, ON HIS OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS
v.
THE COMMONWEALTH OF PENNSYLVANIA AND PENNSYLVANIA LIQUOR CONTROL BOARD AND HENRY KAPLAN, IN HIS CAPACITY AS CHAIRMAN OF THE PENNSYLVANIA LIQUOR CONTROL BOARD AND EDWIN WINNER, IN HIS CAPACITY AS A MEMBER OF THE PENNSYLVANIA LIQUOR CONTROL BOARD AND DANIEL PENNICK, IN HIS CAPACITY AS A MEMBER OF THE PENNSYLVANIA LIQUOR CONTROL BOARD AND MILTON J. SHAPP, IN HIS CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA, DEFENDANTS



Original jurisdiction in case of Retail Clerks Union Pennsylvania State Store Organizing Committee, AFL-CIO, an unincorporated association by Wendell Young and Ronald Rosmini, Trustees ad litem, on their own behalf and on behalf of all others similarly situated; and Peter J. Spurio, on his own behalf and on behalf of all others similarly situated; and Steven B. Edwards, on his own behalf and on behalf of all others similarly situated; and Gene O. Russell, on his own behalf and on behalf of all others similarly situated; and Stephen E. Byers, on his own behalf and on behalf of all others similarly situated, Plaintiffs v. The Commonwealth of Pennsylvania and Pennsylvania Liquor Control Board and Henry Kaplan, in his capacity as Chairman of the Pennsylvania Liquor Control Board and Edwin Winner, in his capacity as a member of the Pennsylvania Liquor Control Board and Daniel Pennick, in his capacity as a member of the Pennsylvania Liquor Control Board and Milton J. Shapp, in his capacity as Governor of the Commonwealth of Pennsylvania, Defendants.

COUNSEL

Bruce E. Endy, with him Meranze, Katz, Spear & Wilderman, for plaintiffs.

Michael H. Small, Assistant Attorney General, for defendants.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr. Judge Kramer did not participate in the decision in this case. Concurring Opinion by President Judge Bowman. Judges Rogers and Blatt join in this concurring opinion.

Author: Crumlish

[ 24 Pa. Commw. Page 452]

The defendants, the Commonwealth of Pennsylvania, the Pennsylvania Liquor Control Board, and its members, have filed preliminary objections to the Retail Clerks Union, Pennsylvania State Store Organizing Committee, AFL-CIO, et al., plaintiffs', complaint which seeks recoupment of monies withheld as cash shortages.

[ 24 Pa. Commw. Page 453]

The objections consist of a demurrer interposing Article VII of the collective bargaining agreement, motion to strike based upon improper use of Pa. R.C.P. No. 2230, and motion to dismiss for lack of jurisdiction. Since we sustain the motion to dismiss for lack of jurisdiction on the ground that the Pennsylvania Labor Relations Board (Labor Board) has exclusive jurisdiction, we limit discussion to that objection.

The complaint alleges that the plaintiffs invoked the grievance mechanism as the proper procedure by which the defendants were to determine the liability of bargaining unit members (employees) for cash shortages.

This grievance was eventually submitted to arbitration. The decision of the arbitrator delineated the appropriate procedure for the deduction of cash shortages from employees' paychecks. The defendants did not comply with the decision of the arbitrator and their conduct is characterized as a breach of the collective bargaining agreement and an unfair practice, thus making the defendants liable in assumpsit to the named plaintiffs and those similarly situated.

[ 24 Pa. Commw. Page 454]

We do not agree. The Public Employee Relations Act*fn1 (PERA) has given to the Labor Board exclusive power to prevent unfair practices.*fn2 The plaintiffs, here, are attempting to circumvent the prescribed procedure by seeking a review and enforcement of a decision of an arbitrator.*fn3 See Pennsylvania Labor Relations Board v. Page 454} Commonwealth of Pennsylvania, 23 Pa. Commonwealth Ct. 49, 350 A.2d 199 (1976). The Labor Board has the expertise and experience to understand and resolve the problems arising out of labor-management relations and it is there that the desired relief must be sought. ...


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