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COUNCIL 13 v. COMMONWEALTH PENNSYLVANIA (08/26/83)

decided: August 26, 1983.

COUNCIL 13, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, BY ITS TRUSTEE AD LITEM, EDWARD J. KELLER, EXECUTIVE DIRECTOR, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, RESPONDENT



Appeal from the Order of the State Civil Service Commission in the case of In the Matter of the Arbitration between Commonwealth of Pennsylvania, Department of Banking and American Federation of State, County and Municipal Employees, AFL-CIO Council 13, Grievance No. 81-2751, Award No. 88-B-2455-178-G4, dated May 28, 1982.

COUNSEL

Alaine S. Williams, Kirschner, Walters, Willig, Weinberg & Dempsey, for petitioner.

Robert F. Beck, Assistant Counsel, with him John D. Raup, Chief Counsel, for respondent.

President Judge Crumlish, Jr. and Judges Doyle and Barbieri, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 76 Pa. Commw. Page 570]

Council 13, American Federation of State, County and Municipal Employes, AFL-CIO (Union) appeals an arbitration award denying a grievance. We affirm.

Gamal Helmy, a Pennsylvania Department of Banking (Commonwealth) probationary employee, was discharged due to the "unsuccessful completion of [his] probationary period and inability or unwillingness to perform assigned duties in a manner consistent with the minimum standards prevailing for trainees" in his classification. The Commonwealth notified Helmy in writing of his rights under the Civil Service Act*fn1 and of his right to appeal through the Union*fn2 under the existing collective bargaining agreement.

On August 21, 1981, Helmy filed a grievance, alleging that he was discharged without just cause and that the Commonwealth had discriminated against him because of his national origin. While this grievance was pending, Helmy filed appeals with both the State Civil Service Commission and the Pennsylvania Human Relations Commission. Subsequently, Helmy withdrew these two latter actions.

The Commonwealth argued that Helmy waived his grievance right under the collective bargaining agreement by instituting the other actions. The arbitrator,

[ 76 Pa. Commw. Page 571]

    after a full hearing, denied the grievance, concluding that Helmy's claim was not arbitrable.

Judicial review of an arbitrator's decision being highly circumscribed, the award will not be overturned if it draws its essence from the collective bargaining agreement. Greater Johnstown Area Vocational-Technical School v. Greater Johnstown Area Vocational-Technical Education Association, 69 Pa. Commonwealth Ct. 208, 450 A.2d 787 (1982). Our inquiry into the arbitrability of a grievance is limited to a determination of: (1) whether the parties entered into an agreement to arbitrate; and (2) whether the dispute falls within the arbitration clause. Carmichaels Area School District v. Carmichaels Area Education Association, 37 Pa. Commonwealth Ct. 141, 389 A.2d 1203 (1978), aff'd, 487 Pa. 15, 407 A.2d 382 (1979).

Section 903 of the Public Employe Relations Act (PERA)*fn3 provides for the arbitration of disputes arising out of the interpretation of a collective bargaining agreement. The grievance procedure is statutorily made a proper bargaining subject. The Commonwealth and the Union bargained for a multi-step grievance procedure, culminating in ...


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