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INDEPENDENT ASSOCIATION PENNSYLVANIA LIQUOR CONTROL BOARD EMPLOYEES v. COMMONWEALTH PENNSYLVANIA AND DAVID KERR (04/28/78)

decided: April 28, 1978.

INDEPENDENT ASSOCIATION OF PENNSYLVANIA LIQUOR CONTROL BOARD EMPLOYEES, PLAINTIFF
v.
COMMONWEALTH OF PENNSYLVANIA AND DAVID KERR, EXECUTIVE DIRECTOR FOR THE PENNSYLVANIA LIQUOR CONTROL BOARD, DEFENDANTS



Original jurisdiction in case of Independent Association of Pennsylvania Liquor Control Board Employees v. Commonwealth of Pennsylvania, and David Kerr, Executive Director, and the Pennsylvania Liquor Control Board.

COUNSEL

Paul D. Sulman, with him Leonard J. Talarico, for plaintiff.

Miles J. Gibbons, Jr., Special Counsel, for defendants.

President Judge Bowman and Judges Crumlish, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 35 Pa. Commw. Page 134]

This case, invoking our original jurisdiction, necessitates our consideration of the preliminary objections raised by the Commonwealth to the amended complaint in equity of the Independent Association of Pennsylvania Liquor Control Board Employees (Association).

In February of 1974, the Retail Clerks Union, the certified employee representative of State Liquor Store Clerks, filed a grievance charging the Commonwealth with a violation of the provision of their collective

[ 35 Pa. Commw. Page 135]

    bargaining agreement, calling for the phasing out of the "'past practice' which permitted Liquor Store Managers to perform as Clerks during substantial periods of their work day." In accordance with the provisions of the collective bargaining agreement, the dispute went to arbitration. The arbitrator found that the Commonwealth had not complied with the provision in question and ordered "specific performance of the Commonwealth's duty" under the disputed provision. Neither the Commonwealth nor the Retail Clerks Union appealed the arbitration award.

In March of 1976, Association, the certified representative of the Managers for meet and discuss purposes, filed a complaint in equity which, in essence, asks this Court to set aside the award of the arbitrator and remand the matter for further proceedings in which Association would be permitted to participate.

In its complaint, Association alleged that the managers have an absolute right to perform certain clerical functions at various times by virtue of job specifications, written agreement, past practice and efficient store operation. It contends that, despite this absolute right, it was not permitted to participate in the arbitration proceeding which resolved the dispute between the Commonwealth and the Retail Clerks Union. Association alleges that the Commonwealth's actions were part of a collusive agreement between the Commonwealth and the Retail Clerks Union. Subsequently, Association amended one count of its complaint to include an averment that it had requested, but was denied, permission to participate in the arbitration proceeding.

The Commonwealth filed preliminary objections to Association's initial complaint, followed by a substantially similar set of preliminary objections to Association's amended complaint. Raised within the ...


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