County of Erie v. AFSCME District Council 85, Local 2666

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Erie, :
: No. 1996 C.D. 2015
Appellant : Argued: April 11, 2016
:
v. :
:
American Federation of State, :
County and Municipal Employees :
District Council 85, Local 2666 :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN FILED: May 12, 2016

The County of Erie (County) appeals from the September 11, 2015,
order of the Court of Common Pleas of Erie County (trial court) denying the
County’s petition to vacate an arbitration award (Petition). We affirm.

Thomas Flores, Jr. has been a deputy sheriff with the County Sheriff’s
Department (Department) since March 2009. In June 2014, the County Sheriff
(Sheriff) moved Deputy Sheriff Wolf, who was previously a school resource officer
(SRO), back to the courthouse because the school had eliminated Wolf’s SRO
position. Because Wolf had more seniority than Flores, Wolf bumped Flores from
his position pursuant to section 14.4 of the collective bargaining agreement (CBA).1

1
Section 14.4 of the CBA states:

An employee who is scheduled for a layoff has the right to apply for and shall be
eligible in accordance with the seniority provision for any job vacancy within his/her
(Footnote continued on next page…)
Flores then sought to use his seniority to bump a less-senior deputy, but the Sheriff
denied him that option. The Sheriff reassigned Flores to front-door security at the
courthouse, which resulted in a decrease in pay and the loss of on-call and overtime
pay.

On June 26, 2014, the American Federation of State, County and
Municipal Employees District Council 85, Local 2666 (Union) filed a grievance2 on
Flores’ behalf, asserting that Flores was demoted arbitrarily and without just cause.
The matter proceeded to arbitration on December 19, 2014. Although the County did
not dispute that the Sheriff’s conduct violated the CBA, it argued that section 1620 of
The County Code (Code), Act of August 9, 1955, P.L. 323, as amended, 16 P.S.
§1620, applied.3 The County argued that under section 1620 of the Code, the Sheriff,

(continued…)

own classification, or an equal or lower paid, less responsible classification within
the [American Federation of State, County and Municipal Employees (AFSCME)]
bargaining unit of County government, or [a] position which is occupied by an
employee of the same classification or an equal or lower paid, less responsible
classification with said AFSCME bargaining unit who has less seniority, provided
the most senior employee possesses the necessary skills, qualifications, and ability to
satisfactorily perform the functions, duties, and responsibilities of the remaining job.
This procedure shall be known and referred to as “bumping”. Employees shall have
forty-eight (48) hours to exercise their bumping rights; this excludes weekends and
holidays.

(R.R. at 12a.)

2
The Union filed four grievances, which were consolidated.

3
Section 1620 of the Code provides in relevant part:

[W]ith respect to representation proceedings before the Pennsylvania Labor
Relations Board or collective bargaining negotiations involving any or all employes
(Footnote continued on next page…)
2
as a row officer, has the discretion to move any employee into any position,
regardless of the CBA. The County also argued that the Sheriff has the discretion to
allow partial bumping rights. The Union argued that Flores was demoted without just
cause and was arbitrarily moved to a lower-grade position when he was not the least-
senior deputy. The Union also challenged the Sheriff’s refusal to allow Flores to
bump another less-senior deputy.

On January 20, 2015, the arbitrator sustained the Union’s grievance,
concluding that Flores was demoted without just cause and that the Sheriff violated
section 14.4 of the CBA by denying Flores his bumping rights. The arbitrator
declined to interpret section 1620 of the Code as granting the Sheriff absolute
discretion to void bargained-for terms of the CBA.

On February 13, 2015, the County filed its Petition, asserting that the
arbitration award violated the Sheriff’s rights under section 1620 of the Code. After
briefing and oral argument, the trial court denied the County’s Petition. In its
opinion, the trial court explained:

(continued…)

paid from the county treasury, the board of county commissioners shall have the sole
power and responsibility to represent judges of the court of common pleas, the
county and all elected or appointed county officers having any employment powers
over the affected employes. The exercise of such responsibilities by the county
commissioners shall in no way affect the hiring, discharging and supervising rights
and obligations with respect to such employes as may be vested in the judges or
other county officers.

16 P.S. §1620 (emphasis added).

3
 [T]he instant matter involves the Sheriff’s act of demoting
Flores without cause and arbitrarily moving him to a lower
grade/lower pay position, when he was not the least senior
deputy[,] and precluding him from exercising his bumping
rights under the CBA. The Court agrees with the Arbitrator
and declines to interpret Section 1620 of the County Code
as allowing the Sheriff to “arbitrarily reassign employees to
any job, at any time, despite contractual language to the
contrary.” This Court further declines to interpret the
phrase “supervising rights and obligations” under [section
1620 of] the County Code as allowing the Sheriff to
randomly demote a deputy, without cause, to a lower pay
position without the ability to bump a less senior deputy.

(Trial Ct. Op. at 7.) The County now appeals from that decision.4

First, the County asserts that the trial court erred in concluding that
Flores was demoted arbitrarily and without just cause. We disagree.

The County claims that the Sheriff was exercising his supervisory
powers under section 1620 of the Code when he reassigned both Wolf and Flores.
According to the County, the Sheriff’s decision to reassign Flores to front-door
security was neither a demotion nor was it arbitrary because the reassignment was
precipitated by the elimination of Wolf’s SRO position. At the time, there were no

4
A labor arbitration award must draw its essence from the CBA and may be vacated only if
it violates the essence test. County of Lehigh v. Lehigh County Deputy Sheriffs’ Association, 52
A.3d 376, 379 n.3 (Pa. Cmwlth. 2012). We will uphold an arbitration award if the arbitrator’s
interpretation can be rationally derived from the CBA. Id. However, an arbitration award that
satisfies the essence test will not be enforced if it violates an explicit public policy. Pittsburgh
Board of Public Education v. Pittsburgh Federation of Teachers, 105 A.3d 847, 852 (Pa. Cmwlth.
2014). Here, the trial court determined that “the issue [in this case] is not whether the arbitrator’s
award meets the essence test, but rather whether it violated an explicit public policy.” (Trial Ct. Op.
at 5.)

4
positions available in the Department other than an SRO position, which Flores
admittedly did not want, and a front-door security position, which is where Flores
was transferred.5

We agree with the trial court that section 1620 of the Code cannot be
interpreted as granting the Sheriff absolute discretion to reassign his employees to
any job at any time despite contractual language to the contrary. As the arbitrator
properly found, there was no showing that the Sheriff’s decision to reassign Flores to
front-door security was based on Flores’ job performance or any operational needs.
(Arb. Op. at 13.) What constitutes “supervision” is a question for the arbitrator, and
this court must defer to that interpretation. See Rebert v. York County Detectives
Association, 909 A.2d 906, 910-11 (Pa. Cmwlth. 2006). We conclude that the
arbitrator and the trial court properly declined to interpret “supervising rights” in
section 1620 of the Code as granting the Sheriff unfettered discretion to contravene
bargained-for terms of the CBA.

Next, the County asserts that the trial court erred in disregarding Erie
County v. Pennsylvania Labor Relations Board, 908 A.2d 369 (Pa. Cmwlth. 2006),
and Troutman v. American Federation of State, County and Municipal Employees,

5
Both in its brief and at oral argument, the County asserted that the Sheriff initially offered
to move Flores to an equal-grade position in the firearms department, but Flores declined. This
claim, however, is unsupported by the record. The arbitrator found that although Flores and the
Sheriff had casually discussed a firearms position, Flores did not believe that he had been formally
offered that position. (Arb. Op. at 6.) In any event, the County did not raise this issue in its
Petition, nor did the trial court address it in its opinion.

5
District Council 88, AFL-CIO, 87 A.3d 954 (Pa. Cmwlth.) (en banc) (Troutman II),
appeal denied, 99 A.3d 927 (Pa. 2014), in rendering its decision.6

In Erie County, the Pennsylvania Labor Relations Board found that the
sheriff committed an unfair labor practice by refusing to permit a county employee
from another department to bump into the sheriff’s office under the CBA. 908 A.2d
at 375-76. On appeal, this court stated that the bumping rights of public employees
are not a mandatory subject of collective bargaining as applied to the sheriff’s office,
which retains sole discretion to hire, supervise, and discharge employees under
section 1620 of the Code. Id. We emphasized that the sheriff has the right to prohibit
someone outside his department from bumping into it under the “hiring” prong of
section 1620 of the Code. Id. at 376. Therefore, we held that the sheriff did not
intend to relinquish his exclusive right to hire employees for his office. Id.

More recently, in Troutman II, this court reiterated the principle stated in
Erie County that the bumping rights of public employees are not a mandatory subject
of collective bargaining. Troutman II, 87 A.3d at 964. We also noted that the
statutory rights of row officers to hire their own staff is “‘very plainly acknowledged
and protected’” by section 1620 of the Code. Id. (quoting Erie County, 908 A.2d at
375). Thus, this court held that county row officers, who expressly objected to the
seniority and just-cause provisions of a CBA, could not be found to have tacitly
acquiesced to those provisions. Id. at 964-65.

6
This court previously decided a related case, Troutman v. Pennsylvania Labor Relations
Board, 735 A.2d 192 (Pa. Cmwlth. 1999) (Troutman I), which was addressed in Erie County.

6
 We conclude that the trial court properly distinguished Erie County and
Troutman II from the facts of this case. Neither Erie County nor Troutman II
interpreted or applied the “supervising rights” provision of section 1620 of the Code.
Erie County did not involve intra-departmental bumping; it involved the bumping of
an employee from another county department into the sheriff’s department, which
infringed on the sheriff’s right to hire his own employees under section 1620 of the
Code. Here, Flores had worked in the Department for five years before he sought to
bump into another position within the Department; thus, this case did not implicate
the Sheriff’s hiring rights. Flores’ demotion was also not disciplinary in nature. It is
undisputed that Flores was a good employee and satisfactorily performed his duties as
a deputy sheriff. (Arb. Op. at 13, 15.) Moreover, unlike Troutman II, there was no
showing here that the Sheriff had objected to the bumping-rights provision of the
CBA.

We agree with the Union that “supervising rights” in section 1620 of the
Code cannot be interpreted as allowing one employee to internally bump pursuant to
the CBA while arbitrarily denying another employee that same right. We conclude
that the arbitrator’s award in this case does not encroach upon the Sheriff’s authority
to supervise his employees.

Accordingly, we affirm.

___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge

7
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Erie, :
: No. 1996 C.D. 2015
Appellant :
:
v. :
:
American Federation of State, :
County and Municipal Employees :
District Council 85, Local 2666 :

ORDER

AND NOW, this 12th day of May, 2016, we hereby affirm the September
11, 2015, order of the Court of Common Pleas of Erie County.

___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge