American Federation of State, County & Municipal Employees v. Borough of Schuylkill Haven

94 Pa. Commw. 555
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 31, 1986
DocketAppeals, Nos. 3085 C.D. 1984 and 3088 C.D. 1984
StatusPublished
Cited by2 cases

This text of 94 Pa. Commw. 555 (American Federation of State, County & Municipal Employees v. Borough of Schuylkill Haven) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Federation of State, County & Municipal Employees v. Borough of Schuylkill Haven, 94 Pa. Commw. 555 (Pa. Ct. App. 1986).

Opinion

Opinion by

Judge Bogers,

We have consolidated for argument and disposition the appeals of the American Federation of State, County and Municipal Employees, AFL-CIO, Council 89, Local 2572 (AFSCME), from two orders of the Court of Common Pleas of Schuylkill County vacating arbitrators ’ awards in grievance arbitration. Each of the awards directed the Borough of Schuylkill Haven (borough) to restore the previously existing workweek schedules of respectively, its sewage treatment plant and its water treatment plant employees, with reimbursement for loss of earnings, and to meet and discuss its proposed changes to the employees’ workweek with the latters’ bargaining representatives.

[557]*557The appeal docketed to No. 3088 C.D. 1984 concerns the sewage treatment plant employees; No. 3085 C.D. 1984 concerns the water treatment plant employees.

The facts common to these appeals are as follows. AFSCME is the collective bargaining representative of the grieving employees. The collective bargaining agreement provides that disputes concerning the interpretation of the agreement shall be submitted to grievance arbitration and that such arbitration shall be final and binding.

Before the events of this case, and indeed sixteen years before the current collective bargaining agreement was entered into, the borough had established as the workweek of these employees, the days Monday through Friday, with overtime pay for employees required to work on Saturday and Sunday. For the express purpose of reducing its payroll expense, the borough established a seven-day workweek, pursuant to which, although all employees regularly worked only five days, some would be required, from time to time, to work on Saturday and Sunday at regular rates. Hence, overtime pay for Saturday and Sunday was eliminated.

The borough notified a steward of Local 2572 of the proposed change. We are not told what action, if any, the steward took; but no request was made to the borough that it meet and discuss the proposed change with the employees. See Section 702 of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 363, as amended, 43 P.S. §1101.702.1

[558]*558Each of the two classes of employees, sewage plant and water plant, grieved the new workweek arrangement. Unfortunately, different arbitrators heard the cases. We are not provided with the questions which were submitted to the arbitrators. One of the arbitrators, however, stated the question as follows: “Citing Article 1, Article 3, and Article 6, the union requested the following adjustment be made: ‘allow sewage treatment plant employes to return to their previous weekly work schedule.’ ” This seems a fair description of the cause.

The parties have submitted to us as the pertinent provisions of the collective bargaining agreement in effect when the grievances arose, the following:

ARTICLE VI — WORK WEEK
A. Regular Time
(1) The normal work week for all regular employees covered by this agreement shall consist of forty (40) hours. The standard work day shall be from 7:00 A.M. to 3:30 P.M. The Borough reserves the right to change the standard work day for unusual and/or extensive projects. Prior to any permanent change the Borough shall meet and discuss the changes with the Union.
(2) The work day shall consist of the eight (8) consecutive hours an employee is required to work per day as scheduled by the Borough Manager or Departmental Foreman, except that it may be interrupted by a lunch period.
(3) The pay week .shall consist of the seven (7) day period beginning Monday at 12:01 A.M. and ending the following Sunday at midnight.
B. Overtime
Authorized time worked before or after his regularly scheduled duty shift, provided said extra time exceeds fifteen (15) minutes over the normal eight (8) hour shift, shall be considered [559]*559overtime. No employee shall be required to work in excess of eight (8) hours in overtime work, during any twenty-four (24) hour period. For purposes of calculating overtime, authorized sick leave as defined in Article 12, personal days, bereavement leave, and vacation time will be considered as time worked.
C. Overtime Pay
All overtime pay shall be paid at the rate of one and one-half (1%) times the regular hourly rate computed to the nearest half hour. (Emphasis in original.)
ARTICLE XXX— MISCELLANEOUS PROVISIONS
D. Employee benefits and working conditions now existing and not in conflict with the agreement shall remain in effect subject, however, to the right of the employer to change these benefits or working conditions in the exercise of its management rights.

There are two issues in each of these appeals. The first is that of whether the workweek practice in effect before the borough changed it was a proper subject for consideration by the arbitrators in interpreting the agreement; the second is that of whether notice of the borough’s decision to change the existing workweek schedule given only to the steward of Local 2572 was sufficient to impose upon AFSCME, the employees’ collective bargaining representatives, the obligation to request the borough .to meet and discuss the proposed change before effecting it.

The arbitrator of the grievance of the sewage plant employees interpreted the collective bargaining agreement as incorporating the employer’s past practice of a Monday through Friday workweek. He determined that the borough’s notice given only to the steward of Local 2572 was insufficient to impose upon AFSCME, [560]*560which of course included District Council 89, the duty to request the borough to meet and discuss; and that as a consequence the employer had no right to place the new schedule into effect. He ordered the past practice be restored, with payment of losses of the employees’ earnings, until compliance by the employer with its duty to meet and discuss.

The common pleas court concluded that the arbitrator of the sewage plant workers had been wrong on both issues and vacated the arbitrator’s award.

The arbitrator who heard the water treatment plant employees ’ grievance found that it would be inappropriate “to bind the parties to the past practice” and concluded that because the agreement was silent on the matter of workweek, it was an existing working condition which the employer might change under Article XXX of the collective bargaining agreement. This arbitrator decided the meet and discuss issue exactly as had the arbitrator for the sewage plant employees and he made essentially the same order as that of the sewage plant employees’ arbitrator, that is that the former workweek be restored with payment of losses to the employees until meet and discuss was requested.

The court of common pleas agreed -with this arbitrator’s interpretation of the agreement concerning the workweek. It disagreed with the arbitrator’s decision that notice to the steward of the local was not sufficient; the court found that the notice to the steward was sufficient; and it vacated the award.

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Cite This Page — Counsel Stack

Bluebook (online)
94 Pa. Commw. 555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-federation-of-state-county-municipal-employees-v-borough-of-pacommwct-1986.