County of Berks, et al. v. Int'l. Brotherhood of Teamsters Local Union No. 429 (Complete Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA County of Berks and Berks County Board of Inspectors of the County Prison, Appellants v. International Brotherhood of Teamsters Local Union No. 429 BEFORE: : : : : : : : : : No. 1230 C.D. 2007 Argued: March 11, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE RENà E COHN JUBELIRER, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE McCLOSKEY FILED: May 5, 2008 The County of Berks and Berks County Board of Inspectors of the County Prison (collectively referred to as Appellants) appeal from an order of the Court of Common Pleas of Berks County (trial court), dated May 30, 2007, dismissing Appellants petition to vacate a portion of a grievance arbitration award (the Grievance Arbitration Award) which ruled in favor of the International Brotherhood of Teamsters, Local Union No. 429 (the Union). The County of Berks (the County) is a county of the third class, incorporated under the provisions of the County Code, Act of August 9, 1955, P.L. 323, as amended, 16 P.S. §§101-3000.3903. (R.R. at 63a). The Berks County Board of Inspectors of the County Prison (the Board) is the board of inspectors of a county prison, duly constituted pursuant to Section 1 of the Act of May 16, 1921, P.L. 579, as amended, 61 P.S. §408, and is exclusively vested with the management and government of the Berks County Prison. (R.R. at 64a). Appellants are joint statutory employers for all correctional officers (COs) employed at the Berks County Prison. Id. The Union is the duly recognized bargaining representative pursuant to the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§1101.101-1101.2301 (commonly referred to as Act 195), for all COs employed at the Berks County Prison. Appellants and the Union were signatories to a collective bargaining agreement effective for the period of January 1, 2001, through December 31, 2003 (the 20012003 CBA), which was modified by an Act 195 interest arbitration award effective for the period of January 1, 2005, through December 31, 2008 (the Interest Arbitration Award). (R.R. at 5a, 28a). The 2001-2003 CBA and the Interest Arbitration Award shall collectively be referred to as the Labor Contracts. The issues in this matter relate to the question of whether Appellants may suspend without pay COs employed at the Berks County Prison for their failure to qualify for weapons certification.1 This question of discipline for COs who fail to qualify for weapons certification was considered by the parties during negotiations for the 2001-2003 CBA. Appellants sought to require all COs to become certified, with those failing to become certified being disciplined. The Union opposed discipline for COs who failed to qualify, especially if they had 1 COs are required to carry firearms in the line of duty for various purposes at the Berks County Prison, including patrolling the perimeter of the facility, daily supervision of inmate outdoor recreation periods and other patrols, and regular hospital, work detail and other prisoner transports. COs are issued firearms during certain institutional emergencies or inmate disturbances. However, most COs do not carry weapons in the course of their duties. Appellants state that they face potential liability, if during such an emergency or disturbance, a non-qualified CO is forced to utilize or is mistakenly issued a weapon. Therefore, Appellants consider weapons certification by all COs as an essential job function. (See Arbitrator s opinion at 3, attached to Appellants brief as Exhibit A ). 2 been hired prior to January 1, 2000, with no expectation at that time that weapons qualification would be a condition of employment. As a result of the negotiations, the 2001-2003 CBA included Section 9.5, which provided as follows: All employees covered under this agreement will be required to qualify semi-annually. Employees will be compensated to attend two qualifications a year during which time two opportunities to qualify will be provided. Should employees hired prior to January 1, 2000 fail to qualify, during a scheduled qualification session, they will be required to schedule a time to qualify on a monthly basis, without pay. (Emphasis added.) The parties agree that prior to the Interest Arbitration Award, Section 9.5 of the 2001-2003 CBA was interpreted by the parties so that COs hired prior to January 1, 2000, could not be suspended or discharged for failure to qualify for weapons use. However, those COs would have an obligation to continue to attempt to qualify on a monthly basis. In essence, those COs hired prior to January 1, 2000, were grandfathered for purposes of protecting them from suspension or discharge as a result of their failure to qualify. As part of negotiations preceding the Interest Arbitration Award, Appellants proposed elimination of the grandfather clause contained in Section 9.5 of the 2001-2003 CBA, and the Union opposed it. Appellants proposal was presented to the interest arbitration panel (the Arbitration Panel), which issued the Interest Arbitration Award in June, 2005. Item 9 of the Interest Arbitration Award revises Article 33 of the 2001-2003 CBA, which relates to Training Programs. The new provision 33.2C 3 specifically addressed the qualifying requirements of COs for the use of weapons, providing as follows: 33.2C New Provision: All employees covered under this agreement will be required to qualify semi-annually. Employees who fail to qualify will be suspended without pay and given four (4) opportunities to qualify within one (1) week. If employee fails to qualify after four (4) attempts in one (1) week they will be terminated. The Interest Arbitration Award also contains a Conclusion paragraph which states, in pertinent part, that the terms of the 2001-2003 CBA which are not expressly changed by the terms of [the Interest Arbitration Award] shall remain in effect through December 31, 2008. Following the implementation of Section 33.2C, several COs were unable to qualify on weapons and Appellants subsequently suspended them without pay.2 The Union filed a grievance challenging whether Appellants had just cause for suspending the COs. The grievance was submitted to binding arbitration pursuant to the 2001-2003 CBA and Act 195. A grievance arbitration hearing was conducted on October 18, 2006. The Union argued to the arbitrator (the Arbitrator) that the grandfather provision of the 2001-2003 CBA survived the Interest Arbitration Award, since the interest arbitration panel did not expressly delete it as it did provisions in other areas. The Arbitrator opined that while it would have been better had the Arbitration Panel indicated the deletion of Section 9.5, the Arbitration Panel explicitly indicated that all employees covered under this agreement are now subject to disciplinary action if they fail to qualify. (Arbitrator s opinion at 10, attached to Appellants 2 One long-term CO, hired before the weapons qualification was a job requirement, was discharged. 4 brief as Exhibit A). The Arbitrator determined that the Arbitration Panel provided an express term of the Interest Arbitration Award which is clearly incompatible with Section 9.5 of the 2001-2003 CBA. Therefore, the Arbitrator concluded that Section 33.2C must override Section 9.5 of the 2001-2003 CBA in relation to the grandfather provision. The Arbitrator then considered whether the suspensions which have been issued under Item 9 of the Interest Arbitration Award are disciplinary in nature. The Union argued that suspensions with loss of pay are disciplinary and that just cause is required. Appellants argued that the matter is strictly one of contract interpretation, not just cause. The Arbitrator held that while the case involves an important threshold issue of contract interpretation, it is a disciplinary case at its core. The Arbitrator, in addressing this matter, determined that the fact that Item 9 of the Interest Arbitration Award sets forth the disciplinary penalties for failure to qualify does not alter Appellants burden to prove just cause. The just cause provision is found in Article 36 of the 2001-2003 CBA, and provides that, Appellants shall not demote, suspend, discharge, or take any disciplinary action against an employee without just cause. (Arbitrator s opinion at 11, attached to Appellants brief as Exhibit A ). The Arbitrator reasoned that matters such as testing procedures, proper training, mitigating circumstances or disparate treatment may be considered when determining whether just cause exists. With regard to training, the Arbitrator found that prior to 2005, Appellants used at least one day a year (half a day in the class room and half a day at the range) for training on weapons. In the past, COs were able to practice on work time prior to the qualifications test; now the COs must shoot cold without such practice. Now, prior to qualifications testing, the instructors review range rules and general training issues and allow questions prior to each round of fire. In 5 the fall of 2005, Appellants changed the qualifications test to one which was geared more towards corrections. The new test eliminated some of the distance shooting which had caused problems for a number of COs. Lieutenant Konemann, team leader of the CERT team (correctional emergency response team), testified that during the last qualifications testing, several COs did not qualify the first time, but only one CO was unable to qualify in the end. The Arbitrator noted that the Arbitration Panel awarded Appellants the right to initiate discipline, up to and including termination, of COs who do not become qualified in firearms, regardless of how long the CO has been employed or whether the CO understood at the time he or she was hired that firearms qualifications would ever be a condition of employment. The Arbitrator wrote: It is not my job to reconsider the [Arbitration] Panel s decision, and I have no desire to do so. As to the issue of training, however, I find myself in agreement with the Union that, at the very least, just cause demands that as the stakes become higher for the results of such testing, [Appellants are] obliged to maintain, at a minimum, training which management itself recognized was fair and appropriate in the relatively recent past. This includes the use of one training day (part of the day in the classroom and part at the range), including also the practice at the range prior to qualification testing. (Arbitrator s opinion at 12-13, attached to Appellants brief as Exhibit A ). For that reason, the Arbitrator concluded that the suspensions at issue were not supported by just cause. The Arbitrator entered the Grievance Arbitration Award, sustaining, in part, and denying, in part, the grievance. The Arbitrator required Appellants to make the affected employees whole and rescind any reference to the suspensions from their personnel records. 6 Appellants filed with the trial court a petition to vacate the Grievance Arbitration Award. Following oral argument, the trial court dismissed Appellants petition to vacate by order dated May 30, 2007. Appellants then appealed the matter to this Court. The trial court issued a memorandum opinion on October 12, 2007. On appeal,3 Appellants argue that the trial court erred by failing to vacate the Grievance Arbitration Award on the grounds that: (1) the Arbitrator improperly applied his definition of just cause rather than the definition specified by the Labor Contracts; (2) the Arbitrator improperly inserted a contractual requirement into the Labor Contracts that required Appellants to provide weapons training to its employees; (3) the Arbitrator improperly found that Appellants waived their right to exercise managerial prerogative in determining how to train employees; and (4) the Arbitrator s requirement that Appellants actively employ unqualified correctional officers violated the well-defined public policy of this Commonwealth that Appellants must safeguard inmates and employees of the prison, as well as the general public. 3 It is well settled that an appellate court s scope of review of a grievance arbitration award is the essence test. Township of Penn v. American Federation of State, County and Municipal Employees, AFL-CIO, District Council No. 89, 713 A.2d 1218 (Pa. Cmwlth. 1998), overruled in part on other grounds, Office of the Attorney General v. Council 13, American Federation of State, County and Municipal Employees, AFL-CIO, 577 Pa. 257, 844 A.2d 1217 (2004). We are limited under this test to determining whether the arbitrator s award can in any way be rationally derived from the CBA in light of the language of the agreement, its context and any other indicia of the parties intention. Id. This Court may not review the merits of the arbitrator s decision, nor may we substitute our judgment for that of the arbitrator, even if our interpretation of the CBA would differ from that of the arbitrator. Id. Moreover, our Supreme Court has indicated that the role for a court reviewing a challenge to a labor arbitration award is one of deference. See State System of Higher Education (Cheyney University) v. State College and University Professional Association (PSEA-NEA), 560 Pa. 135, 743 A.2d 405 (1999). 7 The essence test for the review of a grievance arbitration award requires the following two-part conjunctive inquiry. The reviewing court must determine: (1) whether the issue falls within the terms of the collective bargaining agreement; and (2) whether the arbitration award is rationally derived from the contract. Office of the Attorney General. Under the essence test, a reviewing court will only vacate an arbitrator s award when the award is indisputably and genuinely without foundation in, or fails to logically flow from, the collective bargaining agreement. State System of Higher Education (Cheyney University). The parties appear to be in agreement that the grievance issue falls within the terms of the Labor Contracts. The parties dispute whether the Grievance Arbitration Award is rationally derived from the Labor Contracts. First, we will address Appellants argument that the trial court erred by failing to vacate the Grievance Arbitration Award on the ground that the Arbitrator improperly applied his definition of just cause rather than the definition specified by the Labor Contracts. The law is well-settled that where a collective bargaining agreement provides no definition of just cause, the arbitrator is empowered with broad discretion to adopt an appropriate definition of the term. See School District of Springfield Township v. Springfield Township Educational Support Personnel Association, 711 A.2d 602 (Pa. Cmwlth.), petition for allowance of appeal denied, 556 Pa. 699, 727 A.2d 1125 (1998). Conversely, where the labor agreement or other published work rules or regulations define just cause, then the arbitrator must confine his or her award to the parameters of that existing definition. See Pennsylvania Liquor Control Board v. Independent State Stores Union, 520 Pa. 266, 553 A.2d 948 (1989). 8 Appellants argue that the Arbitration Panel provided a contractual definition of just cause with respect to weapons qualifications testing when it identified weapons qualifications as a contractually mandated condition of employment for all COs and provided a schedule of discipline for failure to meet the specified job criteria. In so doing, the Arbitration Panel created a balance between the parties respective bargaining positions by both ensuring that no unqualified COs are active employees, as well as providing multiple opportunities for COs to obtain necessary qualifications. Since the Interest Arbitration Award expressly authorizes Appellants to suspend COs for failing to pass their requisite tests, the Arbitrator is precluded from replacing his view of just cause for that set forth in the Interest Arbitration Award. The Union responds that there is nothing in Section 33.2C stating that failure to qualify establishes just cause, nor is the term just cause defined in the 2001-2003 CBA or Interest Arbitration Award. Therefore, the Arbitrator had the authority to interpret the term and to determine whether there was just cause for the suspensions. The Union contends that the Arbitrator reasonably concluded that Appellants could not, on one hand, increase the stakes for COs and, on the other hand, decrease the amount of training necessary to enable them to qualify for weapons use. By construing the Labor Contracts as a whole in light of the past practice of providing a day of training and the circumstances of testing and training, the Union asserts that the Arbitrator correctly concluded that the COs were suspended without just cause. Upon review of the Labor Contracts, we must conclude that the Arbitrator properly determined that the new Section 33.2C is incompatible with and replaced Section 9.5 of the 2001-2003 CBA. Hence, the protections afforded COs hired prior to January 2000 in the grandfather provision no longer exist 9 under the Interest Arbitration Award. The new Section 33.2C clearly provides that all employees are now subject to disciplinary action if they fail to qualify for weapons use, and it identifies specific, progressive disciplinary actions to be taken. However, we must also conclude that the Arbitrator erred when he thereafter engaged in further analysis of whether just cause existed to support disciplinary action. The Arbitration Panel presumably took into consideration the position of the parties and concluded that suspension and termination were appropriate disciplinary actions under the circumstances when it included the new Section 33.2C in the Interest Arbitration Award. In other words, by setting forth the specific disciplinary actions for failure to qualify for weapons use, the Arbitration Panel made its own determination that just cause existed to impose those disciplinary actions without further analysis being required. Even the Arbitrator recognized that the Arbitration Panel weighed the competing interests of the parties as to this issue, when he wrote: In this case, the [Arbitration] Panel has awarded [Appellants] the important right to initiate discipline, up to termination, if CO s do not become qualified in firearms. This includes CO s who have been with the County for many years, at least some of whom were not hired with the understanding that firearms qualifications would ever be a condition of employment. It is evident that [Appellants ] rationale for needing the ability to discipline all employees won the day in the interest arbitration, and thus the [Arbitration] Panel must have considered and rejected the Union s attempts to maintain the grandfather clause. This clause, set forth in the 2001-03 CBA, served to protect the established employees from discipline. (Arbitrator s decision at p. 12, attached to Appellants brief.) Despite that stated recognition that the Arbitration Panel considered the circumstances and competing 10 interests of the parties when crafting the new Section 33.2C, the Arbitrator nevertheless ignored the determination of the Arbitration Panel and inserted his own judgment to, in effect, change the rights of the parties. For these reasons, we agree with Appellants that by substituting his judgment and definition of just cause for that established by the express language of the Labor Contracts, the Arbitrator failed to draw the Grievance Arbitration Award from the essence of the contract.4 Accordingly, we must reverse the trial court and vacate the Grievance Arbitration Award.5 JOSEPH F. McCLOSKEY, Senior Judge 4 Moreover, the 2001-2003 CBA provides as follows: The Arbitrator shall have neither the jurisdiction nor the authority to add to, detract from or modify in any way, any provision of this agreement. See R.R. at 130a. The Arbitrator s attempt to add an additional requirement that a separate just cause analysis be conducted to determine whether the provisions of Section 33.2C are applicable constitutes an impermissible addition to or modification of the agreement. 5 As we have concluded that we must reverse the order of the trial court and vacate the Grievance Arbitration Award based upon Appellants argument that the Arbitrator improperly concluded that just cause did not exist, we need not address the remaining arguments presented by Appellants. 11 IN THE COMMONWEALTH COURT OF PENNSYLVANIA County of Berks and Berks County Board of Inspectors of the County Prison, Appellants v. International Brotherhood of Teamsters Local Union No. 429 : : : : : : : : : No. 1230 C.D. 2007 ORDER AND NOW, this 5th day of May, 2008, the order of the Court of Common Pleas of Berks County hereby is reversed, and the grievance arbitration award in favor of the International Brotherhood of Teamsters, Local Union No. 429 is hereby vacated. JOSEPH F. McCLOSKEY, Senior Judge IN THE COMMONWEALTH COURT OF PENNSYLVANIA County of Berks and Berks County Board of Inspectors of the County Prison, Appellants : : : : : v. : : International Brotherhood of Teamsters : Local Union No. 429 : BEFORE: No. 1230 C.D. 2007 Argued: March 11, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE RENà E COHN JUBELIRER, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED DISSENTING OPINION BY JUDGE SMITH-RIBNER FILED: May 5, 2008 Respectfully, I disagree with the decision to reverse the order of the Court of Common Pleas of Berks County and to vacate the grievance arbitration award entered in favor of Appellee International Brotherhood of Teamsters, Local Union No. 429. The issue is whether Appellants may suspend Corrections Officers at the county prison without pay who failed to qualify for weapons use under a new provision of the collective bargaining agreement (Article 33.2C). The Arbitrator ruled that the suspensions were without just cause where the employees were not provided with adequate training prior to taking the weapons qualification test. I agree with Appellants' position that the award draws its essence from the collective bargaining agreement and that this Court may vacate an award only where it "indisputably and genuinely" is without foundation or it fails to logically flow from the agreement. Westmoreland Intermediate Unit #7 v. Westmoreland Intermediate Unit #7 Classroom Assistants Educ. Support Pers. Ass'n, PSEA/NEA, ___Pa. ___, 939 A.2d 855 (2007) (reaffirming two-prong essence test enunciated by the Supreme Court in State System of Higher Education (Cheyney University) v. State College University Professional Ass'n (PSEA-NEA), 560 Pa. 135, 743 A.2d 405 (1999). The award in this case should not be vacated because it meets the essence test. In Cheyney University the Supreme Court wrote: We hold that in light of the many benefits of arbitration, there is a strong presumption that the Legislature and the parties intended for an arbitrator to be the judge of disputes under a collective bargaining agreement. That being the case, courts must accord great deference to the award of the arbitrator chosen by the parties. A fortiori, in the vast majority of cases, the decision of the arbitrator shall be final and binding upon the parties. However, there exists an exception to this finality doctrine. The arbitrator's award must draw its essence from the collective bargaining agreement. Pursuant to the essence test as stated today, a reviewing court will conduct a twoprong analysis. First, the court shall determine if the issue as properly defined is within the terms of the collective bargaining agreement. Second, if the issue is embraced by the agreement, and thus, appropriately before the arbitrator, the arbitrator's award will be upheld if the arbitrator's interpretation can rationally be derived from the collective bargaining agreement. That is to say, a court will only vacate an arbitrator's award where the award indisputably and genuinely is without foundation in, or fails to logically flow from, the collective bargaining agreement. Id., 560 Pa. at 149 - 150, 743 A.2d at 413 (footnotes omitted). In conducting the two-prong analysis under the essence test, all that the majority need do is to decide whether the issues raised by the grievance were covered by the collective bargaining agreement and, if so, to then decide if the Arbitrator's interpretation can rationally be derived from the agreement. Article 36 prohibits employee demotion, suspension, discharge or other disciplinary action DAS-R - 14 without just cause, and so the first prong was met because the issue of whether the employees were suspended for just cause was covered by the agreement. As to the second prong, I agree that the Arbitrator's interpretation was rationally derived from the collective bargaining agreement inasmuch as the term "just cause" was not specifically defined in Article 33.2C in connection with the testing, and, as a consequence, the Arbitrator had power to interpret the term "just cause" and then to decide whether it in fact existed to suspend the employees. See Office of the Attorney General v. Council 13, AFSCME, AFL-CIO, 577 Pa. 257, 844 A.2d 1217 (2004). The majority presumes that the interest arbitration panel determined the meaning of just cause when it included the disciplinary actions in Article 33.2C without need for further analysis. I disagree and expressly point out that nowhere in Article 33.2C is there an implied definition of just cause or even any suggestion of fault-based conduct. Article 33.2C states that employees who fail to qualify will be suspended and given four chances to qualify in one week. The Arbitrator concluded that this is a disciplinary case because the suspensions were imposed under a contract provision that provided discipline for failure to qualify in firearms use. He noted the letters submitted to the Corrections Officers referring to their suspensions and giving notice of potential discharge. The Arbitrator then concluded that the burden was upon Appellants to prove just cause and that issues such as "testing procedures, proper training, mitigating circumstances, or disparate treatment certainly may be raised." Arbitrator Opinion and Award at 11 - 12. In finding that the suspensions were not supported by just cause, he agreed that "just cause demands that as the stakes become higher for the results of such [qualification] testing, the County is obliged to maintain, at a minimum, training which management itself recognized was fair and appropriate in DAS-R - 15 the relatively recent past. This includes the use of one training day ¦ including also practice at the range prior to qualification testing." Id. at 12 - 13. An example cited by Appellee is appropriate in reviewing this case. Suppose Appellants permitted one-half of the Corrections Officers to train with water pistols and the other with the weapons used for the qualifications testing. Suppose further that Appellants suspended the employees who trained with water pistols claiming that just cause existed for the suspensions. Could not an arbitrator determine whether the suspended employees were in fact suspended for just cause? The answer is obvious. This scenario illustrates the error in the majority's decision and why the Court must follow the mandates of the essence test. Westmoreland Intermediate Unit #7; Cheyney University. Because the Arbitrator's interpretation in this matter can rationally be derived from the collective bargaining agreement, I therefore dissent from the decision to reverse the trial court and to vacate the arbitration award. DORIS A. SMITH-RIBNER, Judge DAS-R - 16
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