Is Refusal to Arbitration Considered Unfair Labor Practice ?

In Ziccardi v. Commonwealth of Pennsylvania, 500 Pa. 326, 456 A.2d 979 (1982), employee Ziccardi had received notice that her employment with the Commonwealth was terminated. Pursuant to the collective bargaining agreement, Ziccardi filed a grievance that alleged wrongful discharge and was represented by the union (AFSCME) throughout the grievance process up to arbitration. Without notice to Ziccardi, AFSCME withdrew her request for arbitration and closed her file. Ziccardi filed an action in the Court against her employer and alleged that she was wrongfully discharged in violation of the collective bargaining agreement; and against AFSCME that alleged a breach of the duty of fair representation in the grievance process. This Court concluded that Ziccardi's allegation of breach of the duty of fair representation was an unfair labor practice under Section 1201(b)(3) of PERA, 43 P.S. 1101.1203(b)(3), and was, therefore, within the exclusive jurisdiction of the PLRB. Ziccardi v. Commonwealth of Pennsylvania, Department of General Services, 50 Pa. Commw. 367, 413 A.2d 9 (Pa. Cmwlth. 1980). This Court sustained the preliminary objections to Ziccardi's complaint in trespass, assumpsit and equity against her former employer and AFSCME. Id. Ziccardi appealed to our Supreme Court and the Supreme Court reversed. The Supreme Court concluded that "the Commonwealth Court's conclusion that an employee file an unfair labor practice against its bargaining agent is erroneous. The union's AFSCME refusal to submit a grievance to arbitration does not fall under any of the categories of unfair labor practices enumerated in...PERA." Ziccardi, 500 Pa. at 329, 456 A.2d at 980. The Supreme Court went on to state that "a public employee's remedy for his bargaining agent's refusal to submit a grievance to arbitration is an action against the union for damages for breach of its duty of fair representation." 500 Pa. at 330, 456 A.2d 981.