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JOHN P. MCCLUSKEY ET AL. v. COMMONWEALTH PENNSYLVANIA (09/15/78)

decided: September 15, 1978.

JOHN P. MCCLUSKEY ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION ET AL., RESPONDENTS



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.

COUNSEL

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 ...


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