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AMERICAN FEDERATION STATE v. CITY BUTLER (04/15/82)

decided: April 15, 1982.

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL UNION 757, AFL-CIO, APPELLANT
v.
CITY OF BUTLER, APPELLEE



Appeal from the Order of the Court of Common Pleas of Butler County in case of City of Butler v. American Federation of State, County and Municipal Employees, Local Union 757, No. 79-1167, Book 117, Page 11.

COUNSEL

Theodore M. Lieverman, Kirschner, Walters & Willig, for appellant.

Martin J. O'Brien, for appellee.

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

Author: Williams

[ 66 Pa. Commw. Page 206]

This case comes before the Court on an appeal by the American Federation of State, County and Municipal Employees, Local Union 757, AFL-CIO (union). The Common Pleas Court of Butler County found that the award of the arbitrator was against both the law and the weight of the evidence. The union asks this Court to reverse the lower court and reinstate the award of the arbitrator, which upheld consolidated grievances and ordered the City of Butler (employer) to pay certain CETA*fn1 workers scale wages retroactive to their date of employment.

On December 29, 1976, the employer and the union signed a collective bargaining agreement, effective January 1, 1977 through December 31, 1978. Approximately one month later, the employer commenced participation in the federally funded CETA program, pursuant to which it created and filled nine CETA positions on the city work rolls.

Some twenty-three months later, certain CETA workers filed grievances, alleging that the city had violated the collective bargaining agreement by paying them less than the contract scale. The city denied the

[ 66 Pa. Commw. Page 207]

    grievance, asserting that (1) CETA employees are not union members, and are therefore not considered to be within the scope of the collective bargaining agreement, and (2) the grievances should be barred as being untimely under the agreement, which states that such actions must be taken within five (5) working days of the unacceptable conduct.

The case proceeded to arbitration, where the arbitrator determined that the grievants should indeed have been paid the contract scale. In a well-reasoned opinion, he examined the CETA positions in terms of their "community of interest" with the other employees in the unit -- the identity of the type of work performed, the regularity of hours, and the fringe benefits. Citing numerous agency decisions,*fn2 he found that

[t]he evidence overwhelmingly demonstrates grievants were hired to work as regular, full-time laborers in the Street Department. As such, the grievants must be considered, under PLRB standards, as members of the bargaining unit.

This Court has previously examined the standards for inclusion of CETA workers in an established bargaining unit. In Erie County Area Vocational-Technical School v. Pennsylvania Labor Relations Board, 52 Pa. Commonwealth Ct. 388, 417 A.2d 796 (1980), we noted that CETA workers must be compared to regularly funded workers in several particulars to ascertain whether the requisite community of interest exists: duties, hours, ...


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