NO. 81-3-352, APPEAL FROM THE ORDER OF THE COMMONWEALTH COURT, DATED APRIL 8, 1980 AT NO. 2701 C.C. 1978
Louis S. Rulli, Philadelphia (Court-appointed), for appellant.
Robert J. Schwartz, Asst. Atty. Gen., for appellees.
Alaine S. Williams, Philadelphia, for Amer. Fed. of State, Co. & Municipal Empl.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Larsen, J., files a concurring and dissenting opinion in which O'Brien, C.j., and Roberts, J., join.
Appellant, Linda Ziccardi, was employed as a clerk-typist I by the Commonwealth's Department of General Services. She received notice on November 16, 1972 that her employment would be terminated on November 23, 1972. Pursuant to the provisions pertaining to discharge in the collective bargaining agreement, appellant's exclusive bargaining representative, AFSCME, presented her grievance and represented her through the various steps of the procedure up to the point of arbitration.
In the summer of 1975, appellant was asked by a union representative if she would be willing to settle her case for reinstatement and four months back pay. Ms. Ziccardi declined to settle on those terms. On October 7, 1975, without notice to or discussion with her, AFSCME withdrew the request for arbitration and closed appellant's file.
The appellant then filed this action in the Commonwealth Court by a complaint against the Commonwealth and Ronald E. Lench, Secretary, Department of General Services
alleging in counts of assumpsit, trespass and equity, that she was wrongfully discharged, without just cause, in violation of the collective bargaining agreement, the United States Constitution, the Pennsylvania Constitution, and the Civil Rights Act of 1871; and against AFSCME in counts of trespass alleging a breach of duty of fair representation in the grievance process.
In this case the bargaining agent refused to represent an employee in an arbitration proceeding arising from an alleged wrongful discharge. The Commonwealth Court held an employee's allegation of unfair representation is an unfair labor practice under Section 1201(b)(3) of the Public Employe Relations Act (PERA) 43 P.S. 1101.1201(b)(3), (Supp. 1982-83), and is, therefore, within the exclusive jurisdiction of the Pennsylvania Labor Relations Board (Board). On that view, the Commonwealth Court sustained preliminary objections to the employee's complaint in trespass, assumpsit and equity against her former employer and the Union, her exclusive representative and bargaining agent. See also Maggs v. Pennsylvania Labor Relations Board, 50 Pa. Commonwealth Ct. 549, 554 n. 2, 413 A.2d 453, 455 n. 2 (1980); McCluskey v. PennDot, 37 Pa. Commonwealth Ct. 598, 607, 391 A.2d 45, 50 (1978).
The Commonwealth Court's conclusion that an employee may file an unfair labor practice against its bargaining agent is erroneous. The union's refusal to submit a grievance to arbitration does not fall under any of the categories of unfair labor practices enumerated in Section 1201(b) of PERA.*fn1 See also Falsetti ...