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HARRY FOUTS v. ALLEGHENY COUNTY AND SERVICE EMPLOYEES INTERNATIONAL UNION (02/05/82)

decided: February 5, 1982.

HARRY FOUTS, APPELLANT
v.
ALLEGHENY COUNTY AND SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 585, APPELLEES



Appeals from the Order of the Court of Common Pleas of Allegheny County in cases of Harry Fouts v. Allegheny County and Service Employees International Union, Local 585, Nos. GD 80-17053 and GD 80-17054.

COUNSEL

Charles E. McKissock, for appellant.

Robert L. McTiernan, Assistant County Solicitor, with him James H. McLean, County Solicitor, for appellee, Allegheny County.

Robert A. Cohen, with him Louis B. Kushner, for appellee, Service Employees International Union, Local 585.

President Judge Crumlish and Judges Mencer, Rogers, Blatt and Williams, Jr. Opinion by Judge Blatt. Judge Rogers dissents. Judge Palladino did not participate in the decision in this case.

Author: Blatt

[ 64 Pa. Commw. Page 443]

The appellant, Harry Fouts, filed complaints in equity and assumpsit against the appellees, Allegheny County (County) and the Service Employees International Union (Union), alleging that the Union had failed to provide him with fair representation. The Court of Common Pleas of Allegheny County sustained preliminary objections of the appellees questioning the court's jurisdiction and raising a general demurrer, and the complaints were dismissed. This appeal was then filed.

In considering a preliminary objection in the nature of a demurrer, we must accept the well-pleaded facts in the appellant's complaints as true, Association of Pennsylvania State College and University Faculties v. Commonwealth, 44 Pa. Commonwealth Ct. 193, 403 A.2d 1031 (1979), and the following are alleged therein. The appellant was employed by the County as a crime photographer and was injured in a fall on September 16, 1978, while in the course of his employment. On September 27, 1978, his employment was terminated and he filed a grievance with the Union which held an informal hearing*fn1 on the matter on January 27, 1979. Neither the Union nor the County informed the appellant of the outcome of the hearing and the Union instituted no arbitration proceedings on the appellant's behalf. Meanwhile, on January 9, 1979, the appellant had filed a workmen's compensation claim and he was awarded benefits on February 22, 1980. Thereafter on March 24, 1980, the appellant demanded reinstatement to his job, including reimbursement for back pay, and he also requested a rehearing or formal disposition of his previously

[ 64 Pa. Commw. Page 444]

    filed grievance. The appellees refused all of these demands and the instant actions were then filed. The court below held that a charge of unfair representation is a charge of an unfair labor practice which comes within the exclusive jurisdiction of the Pennsylvania Labor Relations Board (PLRB) and that, in any event, the appellant's complaints did not state a cause of action because they failed to set forth facts which demonstrated that the Union's refusal to carry his grievance to arbitration was arbitrary, discriminatory or done in bad faith.

The appellant argues here that the court below erred in holding that it had no jurisdiction, inasmuch as this Court, in Rutledge v. Southeastern Pennsylvania Transportation Authority, 52 Pa. Commonwealth Ct. 308, 415 A.2d 982 (1980), found that an unfair representation charge was not within the exclusive jurisdiction of the PLRB. He also contends that his allegations that the appellees acted "wilfully, wantonly falsly [ sic ] and fraudulently" were sufficient to establish arbitrary, discriminatory or bad faith conduct on the part of the Union.

Prior decisions by panels of this Court conflict on the issue of whether or not unfair representation by a union is an unfair labor practice which comes within the exclusive jurisdiction of the PLRB. Compare Rutledge with Ziccardi v. Department of General Services, 50 Pa. Commonwealth Ct. 367, 413 A.2d 9 (1980). If the PLRB does have exclusive jurisdiction in this matter, then this Court can entertain neither the appellant's claim at law nor his action in equity. Ziccardi. While Rutledge supports the ...


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