Appeal from the Order of the Court of Common Pleas of Berks County in case of American Federation of State, County and Municipal Employees, District Council 88, AFL-CIO, by its Trustee Ad Litem, Edward Keller v. City of Reading, No. 42 December, 1979.
Theodore H. Lieverman, Kirschner, Walters & Willig, for appellant.
David A. Binder, Assistant City Solicitor, for appellee.
Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Rogers. Judge Mencer did not participate in the decision in this case. Dissenting Opinion by Judge Craig.
[ 66 Pa. Commw. Page 540]
Local 2763 of the American Federation of State, County and Municipal Employees, District Council 88, AFL-CIO (Union) here appeals from an order of the Court of Common Pleas of Berks County affirming the award of an arbitrator in which the Union's grievance was denied. We affirm.
The Union is the exclusive representative for the purpose of collective bargaining of a unit of employees of the City of Reading including:
Unit I: all nonprofessional employees in the following departments: water, treasury, parks, sanitation, highway, public building, code services, maintenance services, engineering, library, duplication, revenue control, machine shop, accounts, earned income tax, and recreation; and excluding all supervisors, first-level supervisors, confidential employees and guards as defined in Act 195.
Unit II: all nonprofessional, first-level supervisory personnel in the same departments named above, and excluding all supervisors above the first level of supervision, confidential employees and guards as defined in Act 195.
[ 66 Pa. Commw. Page 541]
The terms and conditions of the employment of members of the bargaining unit are controlled by a collective bargaining agreement executed by the Union and the city's mayor and effective by its terms during the period from January 1, 1977 to December 31, 1979. Article XIX, Section 7 of this collective bargaining agreement is, in pertinent part, as follows:
Job openings shall be filled from the most senior employee within the Bureau and who is qualified for the position. If the position is not filled from within the Bureau it shall be filled by the most senior employee within the Department and who is qualified for the position. If the position is not filled from within the Department then it shall be filled by the most senior employee within the City and who is qualified for the position. . . .
In April, 1978, Melvin Adams, the elected treasurer for the City of Reading, with approval of the City Council, appointed one Vernie Rismiller to a vacancy in the treasurer's office. It is conceded that the procedure contained in the collective bargaining agreement and set forth above for filling job vacancies was not followed in accomplishing this appointment.
Thereafter, the Union filed a grievance in which it asserted that the treasurer's action of appointment constituted a breach of Article XIX, Section 7 of the collective bargaining agreement. An arbitrator, duly selected, rejected the Union's position and, as we have indicated, this determination was affirmed by the court below.
Senior Judge Hess, writing for the Common Pleas Court, reasoned that the collective bargaining agreement provision governing the filling of job vacancies is in ...