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decided: September 15, 1978.


Appeal from the Order of labor arbitrator in case of In the Matter of the Arbitration Between: The Commonwealth of Pennsylvania and The American Federation of State, County and Municipal Employees, dated February 8, 1977.


Laurance B. Seaman, for petitioners.

Lee Strickler, Assistant Attorney General, and Richard Kirshner, with them Neal Goldstein, and Markowitz & Kirschner, for respondents.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by Judge Blatt.

Author: Blatt

[ 37 Pa. Commw. Page 599]

John P. McCluskey and several other furloughed employees (Appellants) of the Pennsylvania Department of Transportation (PennDOT) appeal here from an Arbitrator's order and award.

On March 17, 1976, PennDOT furloughed certain full-time employees. On March 31, certain additional employees, including the Appellants herein, were similarly furloughed. All employees furloughed, including the Appellants were members of the certified bargaining agent, the American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME). As a result of the furloughs, grievances were filed by AFSCME on behalf of the employees who had been furloughed on March 17, 1976, while none was filed by or on behalf of the Appellants. These grievances alleged that the Commonwealth's computation of seniority for furlough purposes had been improper and violative of the Collective Bargaining Agreement (Agreement) between the Commonwealth and AFSCME. Following a hearing, the Arbitrator held that the Commonwealth had violated the Agreement and directed the Commonwealth to recompute the seniority rights appropriately and further ordered that the "[g]rievants who have been improperly furloughed shall be reinstated to their jobs and made whole for all lost wages." Subsequent to this award, both the Commonwealth and AFSCME requested the Arbitrator to clarify his order with respect to whether or not the award included employees who had not initially filed grievances, and he determined that the

[ 37 Pa. Commw. Page 600]

    original award should be applied to all employees and not merely to the grievants. Neither AFSCME nor the Commonwealth sought review of the Arbitrator's award, but the Appellants filed a Petition for Review of the award in this Court. Both AFSCME and the Commonwealth filed Motions to Quash the Petition asserting, inter alia, that the Appellants lacked standing to appeal, and the Appellants have filed an Answer to the Motion which has now been consolidated with the Petition for Review on the merits of the Arbitrator's award.

In support of their Motion to Quash, AFSCME and the Commonwealth cite the Agreement between them which provides that "the employe or union representative" may file and process a grievance at Steps I, II, III and IV of the grievance procedure.*fn1

[ 37 Pa. Commw. Page 601]

The Agreement also provides that:

Article XXXVII Section 3. An employe shall be permitted to have a representative of the Union present at each step of the grievance procedure up to and including Step IV subject however to Section 606, Article VI of the Public Employe Relations Act.

Section 606 of the Public Employe Relations Act,*fn2 (Act 195), 43 P.S. § 1101.606 provides:

§ 1101.606 Exclusive representation; exceptions

Representatives selected by public employes in a unit appropriate for collective bargaining purposes shall be the exclusive representative

[ 37 Pa. Commw. Page 602]

    of all the employes in such unit to bargain on wages, hours, terms and conditions of employment: Provided, That any individual employe or a group of employes shall have the right at any time to present grievances to their employer and to have them adjusted without the intervention of the bargaining representative as long as the adjustment is not inconsistent with the terms of a collective bargaining contract then in effect: And, provided further, That the bargaining representative has been given an opportunity to be present at such adjustment.

Section 903 of Act 195 provides that arbitration of grievances arising out of the interpretation of a collective bargaining agreement is mandatory. 43 P.S. § 1101.903. AFSCME and the Commonwealth argue that the language in Step V of the Agreement gives the union, AFSCME, the exclusive right to pursue a grievance to arbitration. Step V*fn3 provides in pertinent part as follows:

[ 37 Pa. Commw. Page 603]

An appeal from an unfavorable decision at Step IV may be initiated by the Union serving upon the Employer a Notice in writing of the intent to proceed to arbitration. . . .

The arbitrator is to be selected by the parties jointly. . . .

We agree that the collective bargaining Agreement provides that only AFSCME, as the certified bargaining agent of the employees concerned, could process the grievances through to Step V where an Arbitrator comes into the picture. AFSCME and the Commonwealth argue, therefore, that only they, as the parties to the Arbitration, would have standing to appeal an Arbitrator's award.

While the statutory provision providing review of arbitration awards does not clearly specify who may take an appeal, we believe that the position of AFSCME and the Commonwealth here is correct.*fn4 We believe this is consistent with the purpose of Act

[ 37 Pa. Commw. Page 604195]

which is to promote an orderly and constructive relationship between public employers and their employees. We would also note that our Supreme Court in Falsetti v. Local Union No. 2026, 400 Pa. 145, 161 A.2d 882 (1960) held that a union-member employee cannot individually enforce seniority rights governed by a grievance procedure in a collective bargaining agreement between the employer and the union. See Newspaper Guild of Greater Philadelphia v. Philadelphia Daily News, Inc., 401 Pa. 337, 164 A.2d 215 (1960) and Beebe v. Union Railroad Company, 205 Pa. Superior Ct. 146, 208 A.2d 16 (1965). The Court in Falsetti in reaching this conclusion stated:

A collective bargaining agreement, it is important to note, is simply a contract, and any rights and remedies the appellant possesses must be derived solely from the Agreement itself. . . .

We have carefully read the entire Agreement and can find no provision which authorizes appellant to enforce it. Although the seniority provisions relied upon inure directly for the benefit of the appellant-employee and do not exist simply to protect the interests of the Union, appellant's cause of action is precluded by a contractual grievance and arbitration procedure which, by its very terms, limits access thereto to the Union. The parties in drafting this Agreement provided for a simple, expeditious and inexpensive grievance procedure to be administered by persons intimately familiar therewith. The procedure outlined was designed not only to promote settlement, but also to foster more harmonious employer-employee and employer-union relations. . . .

To view this type of agreement otherwise would lead to chaos and a breakdown in the

[ 37 Pa. Commw. Page 605]

    entire scheme of collective bargaining for which the parties have provided and contracted. Instead of being able to rely on the disposition of employee grievances through the established machinery, the Company would face the constant threat of attempted individual enforcement through litigation. Union responsibility would be diminished and all parties would suffer. For these reasons, most, if not all, Union-management agreements of any magnitude in force throughout the Commonwealth are similarly drafted, with an eye toward reposing enforcement responsibility in the labor organization concerned.

As Judge Fuld of the New York Court of Appeals, concurring in a recent decision very similar to ours, concluded: '. . . absent specific language giving the employee the right to act on his own behalf, it is my conclusion that, under a collective bargaining agreement such as the one before us -- which contains provision for the submission of unsettled disputes to arbitration -- the union alone has a right to control the prosecution of discharge cases. (See Cox, Rights Under A Labor Agreement, 69 Harv. L. Rev. 601, 648-652.' Parker v. Borock, 5 N.Y. 2d 156, 159, 156 N.E. 2d 297, 300 (1959). With this approach we wholeheartedly concur. (Emphasis omitted.) (Footnote omitted.)

Falsetti v. Local Union No. 2026, supra, 400 Pa. at 167-70, 161 A.2d at 893-95.

Applying the same analysis, in holding that an individual employee had no absolute right to have his grievance arbitrated, our U.S. Supreme Court said in the landmark case of Vaca v. Sipes :

In providing for a grievance and arbitration procedure which gives the union discretion

[ 37 Pa. Commw. Page 606]

    to supervise the grievance machinery and to invoke arbitration, the employer and the union contemplate that each will endeavor in good faith to settle grievances short of arbitration. . . . And finally, the settlement process furthers the interest of the union as statutory agent and co-author of the bargaining agreement in representing the employees in the enforcement of the agreement. . . .

If the individual employee could compel arbitration of his grievance regardless of its merit, the settlement machinery provided by the contract would be substantially undermined, thus destroying the employer's confidence in the union's authority and returning the individual grievant to the vagaries of independent and unsystematic negotiation.

386 U.S. 171, 191 (1967).

We recognize that the Public Employee Relations Act should not be strictly interpreted in the light of decisions which interpret employee labor relations law in the private sector, but such decisions may be instructive and looked to for guidance. Borough of Wilkinsburg v. Sanitation Department, 463 Pa. 521, 345 A.2d 641 (1975); Pennsylvania Labor Relations Board v. State College Area School District, 461 Pa. 494, 337 A.2d 262 (1975); Robinson v. Abington Education Association, 32 Pa. Commonwealth Ct. 563, 379 A.2d 1371 (1977). We believe, however, that giving the union the responsibility for processing a grievance with the employer before an Arbitrator which is characteristic of the law in the private sector, is equally applicable to public sector labor law.*fn5 The adjustment and settlement of grievances between a public

[ 37 Pa. Commw. Page 607]

    employer and a union before an Arbitrator are intended to be binding upon both parties to the Agreement (see Step V in the Agreement), and we believe, therefore, that the Appellants who were not parties to the arbitration proceedings lack standing to appeal from the award made thereunder.

It should be noted that individual employees are not left without an effective remedy if their union fails to represent them as they desire in an arbitration procedure. A union representing employees is obliged to represent the interest of all its members in good faith, in a reasonable manner without fraud and without discrimination, and any failure to perform this duty would constitute an unfair labor practice for which a member could hold the union responsible. Vaca v. Sipes, supra; Robinson v. Abington Education Association, supra. See Falsetti v. Local Union No. 2026, supra, 400 Pa. at 170-71, 161 A.2d at 894-95; Beebe v. Union Railroad Company, supra. There is, of course, no allegation here of any breach of duty of fair representation, but, if there were, exclusive jurisdiction regarding such a charge would lie with the Pennsylvania Labor Relations Board. Robinson v. Abington Education Association, supra. Because the appeal, therefore, must be quashed, we need not reach the merits of the case.

The Motion to Quash the instant appeal is granted.

[ 37 Pa. Commw. Page 608]


And Now, this 15th day of September, 1978, the Respondents' Motion to Quash the above-captioned appeal is granted and the appeal is dismissed.


Motion granted. Appeal dismissed.

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