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AMERICAN FEDERATION STATE v. COMMONWEALTH PENNSYLVANIA (08/14/87)

decided: August 14, 1987.

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



Appeal from the Order of the Pennsylvania Labor Relations Board in the case of Pennsylvania Labor Relations Board v. Commonwealth of Pennsylvania, Department of Transportation, Case No. PERA-C-81-320-E.

COUNSEL

Alaine S. Williams, with her, Nancy J. McCauley, Kirschner, Walters & Willig, for petitioner.

James L. Crawford, with him, Patricia J. Goldband, and John B. Neurohr, for respondent.

Steven O. Newhouse, with him, Frank Fisher, for intervenor, Office of Administration and Office of the Budget.

Judges MacPhail and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 108 Pa. Commw. Page 483]

The American Federation of State, County and Municipal Employees, Council 13 (AFSCME) appeals from an order of the Pennsylvania Labor Relations Board (Board) which reversed a proposed decision and order of a hearing examiner which found that the Commonwealth of Pennsylvania, Department of Transportation had committed an unfair labor practice.

In December of 1980, various employees of DOT who were also members of AFSCME and the bargaining unit were notified that their positions as stock clerks were being eliminated effective January 19, 1981, because of the lack of funding. A number of their responsibilities were to be performed by storekeepers, first level supervisors who were not a part of the bargaining unit. AFSCME filed a charge of an unfair labor practice

[ 108 Pa. Commw. Page 484]

    against the Commonwealth, alleging a transfer of work from the bargaining unit to the supervisory unit. At the initial hearing on the charge, the hearing examiner discovered that a grievance had been filed by a member of the bargaining unit alleging a violation of the collective bargaining agreement based on the same facts. The unfair labor practice charges were deferred until the completion of the arbitration process on the grievance.

At the completion of the grievance process, the arbitrator concluded that no violation of the collective bargaining agreement had occurred. The arbitrator found that except for the supervisory functions performed by the storekeepers, there was no difference in the functions of the two positions. The arbitrator concluded that there had been no "major negative impact" upon the members of the bargaining unit and thus no violation of various provisions of the collective bargaining agreement. No appeal was taken from the arbitrator's award.

When the hearing examiner was notified of the arbitrator's decision, he decided that deferral to that decision was not warranted. He concluded that the Commonwealth had committed unfair labor practices as defined by Section 1201(a)(1) and (5) of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563, 43 P.S. ยง 1101.1201 (Supp. 1986). The Commonwealth filed exceptions to the proposed decision and order. The Board held that the hearing examiner had erred in refusing to defer to the arbitrator's decision. Accordingly, the Board dismissed the complaint issued pursuant to AFSCME's charge. This appeal followed.

In Pennsylvania Labor Relations Board v. Pine Grove Area School District, 10 Pa. Pub. Employee R. para. 10167 (1979), the Board announced its standards for deferring to arbitration actions which had also been filed and involved the same factual ...


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