IN THE COMMONWEALTH COURT OF PENNSYLVANIA
County of Allegheny, Pennsylvania, :
Appellant :
:
v. :
:
Allegheny County Prison : No. 1469 C.D. 2019
Employees Independent Union : Argued: October 13, 2020
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: November 19, 2020
The County of Allegheny, Pennsylvania (County) appeals the
September 17, 2019 order of the Court of Common Pleas of Allegheny County (trial
court) that denied the County’s Petition to Vacate an arbitration award entered under
the Public Employe Relations Act (PERA),1 that sustained a grievance filed by the
Allegheny County Prison Employees Independent Union (Union) seeking
reinstatement of a terminated corrections officer Union member. Upon review, we
affirm.
The underlying facts of this matter are not in dispute. On the evening
of June 3, 2017, Kenneth Goings (Goings) was working as a corrections officer on
1
Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1011.101-1101.2301.
the medical unit of the Allegheny County Jail.2 See Arbitration Decision and Award
dated December 12, 2018 (Arbitration Award) at 2. Among Goings’ duties as a
corrections officer on the medical unit was a requirement that he perform guard
tours3 twice hourly. See Arbitration Award at 3. This guard tour requirement
appeared in the medical unit’s post orders,4 which are orders posted in each pod that
list all the required duties of the corrections officers assigned to the specific pod.
See Arbitration Award at 3. Each corrections officer was required to read the post
orders for their assigned pod on a daily basis and sign a sheet indicating they had
done so. See id. When Goings began as a corrections officer on the medical unit in
mid-2015, the post orders at the time had been in effect since July 6, 2015, and
required only one guard tour per hour. See Arbitration Award at 3. The medical
unit post orders were amended effective February 22, 2017, however, to require two
guard tours per hour instead of one. See id. Despite regularly certifying by signing
a sign-in sheet, as required, that he had read the post orders, Goings remained
unaware of the change in the number of required guard tours by virtue of not having
read the amended post orders. See id.
Sometime between Goings’ 7:00 p.m. and 8:00 p.m. guard tours on the
evening of June 3, 2017, an Allegheny County Jail inmate committed suicide in his
2
The Allegheny County Jail employs a “pod” system in which inmates are placed in
various pods – or groups of cells – based on the inmates’ security levels. See Arbitration Award
at 2. Goings’ assigned pod, the medical unit pod, consisted of only 17 cells and was one of
Allegheny County Jail’s smaller pods. Id.
3
Guard tours are walking rounds of assigned cell areas during which corrections officers
visually check on cells and other areas under their supervision to ensure inmate safety and
compliance with prison rules. See Arbitration Award at 3. Corrections officers press buttons
throughout their pod during the guard tours that record the time they visit each area. See id.
4
The medical unit post orders listed the two guard tours per hour requirement as order No.
8 on a list of 47 specific guard duties. See Arbitration Award at 3.
2
cell on the medical unit. See Arbitration Award at 4. As he usually did, Goings had
signed the post order sign-in sheet, thereby indicating that he had read the post orders
on June 3, 2017, despite the fact that he had not actually done so. See id. at 3.
Following a disciplinary hearing conducted on June 6, 2017, the County
discharged Goings for failing to complete mandatory guard tours and for falsifying
post order sign-in sheets that indicated Goings had daily read the post orders as
required. See Arbitration Award at 4 & 9; Trial Court Rule 1925(a) Opinion dated
January 6, 2020 (Trial Court Opinion) at 2. On June 7, 2017, the Union filed a
grievance on Goings’ behalf that alleged the County lacked just cause to discharge
Goings and seeking Goings’ reinstatement as a corrections officer with full back
pay. See Arbitration Award at 2; see also Grievance filed June 7, 2017 (Grievance),
Trial Court Reproduced Record (T.C.R.R.) at R133-34. After the Grievance was
denied,5 the Union sought to arbitrate the matter per the collective bargaining
agreement in force between the County and the Union from 2014 through 2019
(CBA).
An arbitrator conducted a hearing on August 15, 2018, at which both
Goings and the County were represented by counsel and presented evidence. See
Arbitration Award at 2. On December 12, 2018, the arbitrator issued the Arbitration
Award, which sustained the Grievance in part. See Arbitration Award at 2 & 12-13;
Trial Court Opinion at 2. The arbitrator found Goings guilty of violating the post
order requirement that he conduct two guard tours per hour and of repeatedly
5
The Grievance underwent multiple levels of review and, following hearings at all levels,
was denied at Level 1 on June 12, 2017, at Level 2 on June 30, 2017, and at Level 3 on July 31,
2017. See Letter of Simon Tyrone Wainwright dated June 12, 2017, Trial Court Reproduced
Record (T.C.R.R.) at R135; Letter of Orlando Harper dated June 30, 2017, T.C.R.R. at R136;
Letter of Steve Pilarski dated July 31, 2017, T.C.R.R. at R137-38.
3
falsifying the daily post order sign-in sheet indicating that he had read the post
orders. See Arbitration Award at 9-12. The arbitrator determined that these
violations represented significant misconduct that justified disciplinary action
against Goings. See id. However, after examining multiple mitigating factors, the
arbitrator determined that the County lacked just cause for terminating Goings’
employment and converted Goings’ termination to a 30-day unpaid suspension. See
id. at 12. Accordingly, the arbitrator converted Goings’ discharge to a 30-day
suspension without pay and awarded Goings back pay.6 See id. at 12-13.
The County filed a Petition to Vacate, which the trial court denied by
order dated September 17, 2019. See Trial Court Order dated September 17, 2019
(Trial Court Order). In its Rule 1925(a) opinion, the trial court explained that the
Arbitration Award in this matter satisfied the essence test in that the issue presented
– termination for just cause – was within the terms of the CBA, and that the
arbitrator’s decision logically flowed from the terms of the CBA. See Trial Court
Opinion at 4. Further, the trial court declined to invoke the public policy exception
to the essence test, explaining that
[t]he facts of this case, including the remedy imposed by
the arbitrator (i.e., mitigation of the discipline from
termination to a thirty-day suspension and back pay), do
not implicate a well-defined, dominant public policy
warranting interference with the arbitrator’s decision.
Moreover, the arbitrator’s decision in this case does not
compel [the] County to violate any such policy.
6
The Arbitration Award specifically limited Goings’ back pay to his regular earnings less
interim earnings and amounts received as unemployment compensation during the discharge
period. See Arbitration Award at 12-13. The Arbitration Award expressly denied the Union’s
request that Goings also receive compensation for missed overtime opportunities he may have
received during the discharge period. Id. at 13.
4
Trial Court Opinion at 4. The County appealed the Trial Court Order to this Court.
On appeal, the County claims that the trial court erred by denying its
Petition to Vacate. Specifically, the County alleges that Goings’ misrepresentations
that he read post orders daily as required and his alleged false statements during
testimony before the arbitrator represent violations of public policy that should have
served as grounds for the trial court to vacate the Arbitration Award. See County’s
Brief at 3, 11-24.
Appellate review of a grievance arbitration award is generally
conducted pursuant to the two-part “essence test.” Sch. Dist. of Phila. v. Phila.
Fed’n of Teachers, 164 A.3d 546, 552 (Pa. Cmwlth. 2017). Under the essence test,
[f]irst, 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.
State Sys. of Higher Educ. (Cheyney Univ.) v. State Coll. Univ. Prof’l Ass’n (PSEA-
NEA), 743 A.2d 405, 413 (Pa. 1999); see also Westmoreland Intermediate Unit # 7
v. Westmoreland Intermediate Unit # 7 Classroom Assistants Educ. Support Pers.
Ass’n, PSEA/NEA, 939 A.2d 855, 863 (Pa. 2007) (Westmoreland I). Thus, “[a]n
arbitrator’s award must be sustained ‘if it is based on anything that can be gleaned
as the ‘essence’ of the [collective bargaining agreement].’” Pa. State Sys. of Higher
Educ. v. Ass’n of Pa. State Coll. & Univ. Faculties, 98 A.3d 5, 14 (Pa. Cmwlth.
2014) (quoting Am. Fed’n of State, Cty. & Mun. Emps., Dist. Council 84, AFL–CIO
5
v. City of Beaver Falls, 459 A.2d 863, 865 (Pa. Cmwlth. 1983)). Further, “[t]he
essence test does not permit this Court to vacate an arbitrator’s award even if we
disagree with the arbitrator’s interpretation of the [collective bargaining
agreement].” Am. Fed’n of State, Cty. & Mun. Emps., Dist. Council 87 v. Cty. of
Lackawanna, 102 A.3d 1285, 1290 (Pa. Cmwlth. 2014) (citing Cent. Susquehanna
Intermediate Unit Educ. Ass’n v. Cent. Susquehanna Intermediate Unit # 16, 459
A.2d 889, 890 (Pa. Cmwlth. 1983)). “The essence test is an exceptionally deferential
standard, because binding arbitration is a highly favored method of dispute
resolution.” Dep’t of Corr., State Corr. Inst. at Forest v. Pa. State Corr. Officers
Ass’n, 173 A.3d 854, 858 (Pa. Cmwlth. 2017) (citing Northumberland Cty. Comm’rs
v. Am. Fed’n of State, Cty. & Mun. Emps., AFL–CIO Local 2016, Council 86, 71
A.3d 367, 374 (Pa. Cmwlth. 2013)). The party challenging an arbitration award
bears the “burden of proving the award does not draw its essence from the [collective
bargaining agreement].” See Pa. State Sys. of Higher Educ., 98 A.3d at 14.
However, even where an arbitration award satisfies the essence test, our
Supreme Court has delineated a discreet exception whereby a reviewing court may
still vacate the award if it violates public policy. See Millcreek Twp. Sch. Dist. v.
Millcreek Twp. Educ. Support Pers. Ass’n, 210 A.3d 993, 1007-11 (Pa. 2019); see
also Westmoreland I, 939 A.2d at 865-66. The application of this public policy
exception requires that “[s]uch public policy . . . must be well-defined, dominant,
and ascertained by reference to the laws and legal precedents and not from general
considerations of supposed public interests.” Westmoreland I, 939 A.2d at 866.
Additionally, unlike the deferential standard of review employed to review
determinations under the essence test, appellate review of the public policy
exception “lies in the proper application of the public policy exception to the essence
6
test. This is a pure question of law; [the] standard of review is de novo, and [the]
scope of review is plenary.” Phila. Hous. Auth. v. Am. Fed’n of State, Cty. & Mun.
Emps., Dist. Council 33, Local 934, 52 A.3d 1117, 1121 (Pa. 2012). Further, our
Supreme Court has expressly recognized that
not only is the public policy exception “exceptionally
narrow” in its own right, but it is also an exception to the
essence test, which is itself a narrow exception to the
doctrine that arbitration awards are final and binding. A
baseline recognition that the public policy exception is a
narrow exception to a narrow exception must guide a
reviewing court’s analysis.
Millcreek, 210 A.3d at 1011 (internal citations omitted).
The Supreme Court has articulated a three-part test to determine the
appropriate application of the public policy exception to the essence test. See
Millcreek Twp. Sch. Dist., 210 A.3d at 1011.
First, a reviewing court must identify precisely what
remedy the arbitrator imposed. Next, the court must
inquire into whether that remedy implicates a public
policy that is well-defined, dominant, and ascertained by
reference to the laws and legal precedents and not from
general considerations of supposed public interests.
Finally, the reviewing court must determine if the
arbitrator’s award compels the employer to violate the
implicated policy, given the particular circumstances and
the factual findings of the arbitrator.
Id. (emphasis, internal citations, and internal quotation marks omitted). The
Supreme Court further emphasized that “the arbitrator’s interpretation of the contract
controls during this entire analysis, which is only triggered upon the reviewing
court’s determination that the award satisfies the essence test, and should be upheld
7
absent a clear violation of public policy.” Id. Moreover, “[t]he burden is on the
party that opposes the award to demonstrate that it violates public policy.” Id.
The instant matter involves Article XVIII of the CBA, which states that
“[t]he Employer has the right to discharge or suspend any employee for just cause.”
CBA at 28, Supplemental Reproduced Record at R.2b. In reviewing the Arbitration
Award, the trial court determined that the essence test was satisfied because the issue
in this case was within the terms of the CBA and the Arbitration Award logically
flowed from the terms of the CBA. See Trial Court Opinion at 4. Neither party
disputes the trial court’s conclusion that the essence test has been met. Therefore,
the only question presently before this Court is whether the public policy exception
to the essence test applies to this case. To make this determination, we review the
facts of this case pursuant to the three-part Millcreek test.
1. The precise remedy imposed by the arbitrator.
The arbitrator in this matter reduced Goings’ termination to a 30-day
unpaid suspension with back pay. See Arbitration Award at 12-13. To the extent
the County argues that the back pay awarded Goings in the Arbitration Award
represents a “windfall payment of seventeen months of back pay” that should be
considered part of the remedy fashioned in the Arbitration Award for purposes of
the three-part Millcreek public policy exception test, we disagree. County’s Brief at
17. The arbitrator concluded that the County had improperly terminated Goings’
employment and converted Goings’ discharge to the still significant penalty of a 30-
day unpaid suspension. See Arbitration Award at 12-13. The fact that the arbitration
process required by the CBA to reach this determination took 18 months was beyond
Goings’ control. Denying back pay for the entire period before the arbitration
8
decision would have effectively converted the 30-day unpaid suspension remedy
fashioned by the arbitrator into an unpaid suspension throughout the entirety of the
arbitration process, in this case 18 months’ unpaid suspension. Here, the precise
remedy imposed for consideration in this matter is the 30-day unpaid suspension
with back pay.
2. Whether the remedy implicates a well-defined, dominant public policy.
Next, as the party that opposed the Arbitration Award, the County bears
the burden of demonstrating that the Arbitration Award remedy implicates public
policy. See Millcreek Twp. Sch. Dist., 210 A.3d at 1011. As stated supra, in order
for the public policy exception to the essence test to apply, the alleged public policy
involved “must be well-defined, dominant, and ascertained by reference to the laws
and legal precedents and not from general considerations of supposed public
interests.” Westmoreland I, 939 A.2d at 866.
Our Supreme Court found the public policy exception to the essence
test appropriately employed in Philadelphia Housing Authority, a case involving an
employee whose “lewd, lascivious and extraordinarily perverse” conduct toward a
co-worker without question amounted to sexual harassment. See Phila. Hous. Auth.,
52 A.3d at 1124-25. The Supreme Court reviewed relevant federal sexual
harassment case law and recognized the existence of an explicit, well-defined, and
dominant public policy against workplace sexual harassment “grounded in both
federal and state law against sex discrimination in employment, including Title VII
[of the Civil Rights Act of 1964], the regulations of the [federal Equal Employment
Opportunity Commission], and [the Pennsylvania Human Rights Act].” Id. at 1123,
1127-28. The Court then found that the arbitration award reinstating the offending
9
employee with full back pay violated that well-defined, dominant public policy
against sexual harassment. See id. The Court noted:
To allow an arbitration award which finds that an
employee engaged in “extraordinarily perverse” physical
sexual harassment of a co-worker, yet then simply
dismisses the conduct as unworthy of an employer
response beyond initial “counseling,” and reinstatement
with back pay, would eviscerate the ability of employers
to enforce dominant public policy.
Id. at 1125. The majority concluded that, considering the “egregious” nature of the
employee’s conduct, the arbitrator’s award reinstating him “[made] a mockery of the
dominant public policy against sexual harassment.” Id. at 1128.
Following the Supreme Court’s decision in Philadelphia Housing
Authority, this Court took up the Westmoreland I remand in Westmoreland
Intermediate Unit # 7 v. Westmoreland Intermediate Unit # 7 Classroom Assistants
Educational Support Personnel Association, PSEA-NEA, 72 A.3d 755 (Pa. Cmwlth.
2013) (Westmoreland II). Therein, the Court determined that the arbitrator’s award
that reinstated, with conditions, an elementary school teacher who had suffered a
drug overdose while wearing a Fentanyl patch during the performance of her duties
at school was in direct contravention of a well-defined, dominant public policy to
protect school children from illegal drugs and drug use. See Westmoreland II, 72
A.3d at 759. Accordingly, the Court vacated the arbitrator’s award as a violation of
public policy. See id.
However, approximately six years later in Millcreek, the Supreme
Court found that a school district failed to meet its burden to demonstrate that a
specific duty to solicit subcontracting bids to present to a union in furtherance of
good faith bargaining regarding subcontracting represented a dominant public policy
10
that triggered the application of the public policy exception to the essence test. See
Millcreek Twp. Sch. Dist., 210 A.3d at 1012. The Supreme Court reviewed PERA
and noted that section 701 of PERA, 43 P.S. § 1101.701, requires parties to a
collective bargaining agreement to confer, in good faith, regarding multiple
bargained-for aspects of collective bargaining agreements. See Millcreek Twp. Sch.
Dist., 210 A.3d at 1011. The Supreme Court further noted that a proposal to
subcontract union work is a mandatory subject for bargaining that triggers the duty
of good faith bargaining, and that the failure to so bargain represents an unfair labor
practice. Id. at 1011-12. However, the Supreme Court concluded that even though
an employer’s duty to bargain in good faith may include a duty to provide a union
with proposals submitted by subcontractors, this does not sufficiently demonstrate
the existence of a well-defined, dominant public policy ascertained by reference to
the laws and legal precedents that encompasses any specific duty on the part of the
school district to solicit subcontracting bids and provide them to the union. See id.
at 1012. The Supreme Court therefore determined that the school district failed to
show “that any Pennsylvania statute or decision [] sets forth a clear requirement
regarding the conduct at issue in this case[,]” and declined to employ the public
policy exception to the essence test. Id.
To meet its burden in the instant matter, the County argues that, because
Goings repeatedly signed the post order sign-in sheets indicating he had read the
post orders on a daily basis when he had not, and because the arbitrator did not credit
Goings’ explanation of his failure to read the post orders, the arbitrator’s remedy
violates a “duty to provide truthful responses” and “precludes any expectation of a
truthful discourse between employer and employee, much less a rational expectation
of an honest exchange which must serve as the foundation for the employment
11
relationship.” County’s Brief at 17 & 24. To support the argument that the
arbitrator’s remedy violates a well-defined, dominant public policy requiring
employee truthfulness, the County points to the existence of two offenses from
Pennsylvania’s Crimes Code7 – tampering with public records or information, 18
Pa.C.S. § 4911,8 and unsworn falsification to authorities, 18 Pa.C.S. § 49049 – as
7
18 Pa.C.S. §§ 101-9546.
8
The Crimes Code defines the offense of tampering with public records or information as
follows:
(a) Offense defined.--A person commits an offense if he:
(1) knowingly makes a false entry in, or false alteration of, any
record, document or thing belonging to, or received or kept by, the
government for information or record, or required by law to be kept
by others for information of the government;
(2) makes, presents or uses any record, document or thing knowing
it to be false, and with intent that it be taken as a genuine part of
information or records referred to in paragraph (1) of this
subsection; or
(3) intentionally and unlawfully destroys, conceals, removes or
otherwise impairs the verity or availability of any such record,
document or thing.
18 Pa.C.S. § 4911(a).
9
The Crimes Code defines the offense of unsworn falsification to authorities as follows:
(a) In general.--A person commits a misdemeanor of the second
degree if, with intent to mislead a public servant in performing his
official function, he:
(1) makes any written false statement which he does not
believe to be true;
(2) submits or invites reliance on any writing which he
knows to be forged, altered or otherwise lacking in
authenticity; or
12
well as a provision of the Public Employee Pension Forfeiture Act10 that references
these crimes as possible grounds for the forfeiture of a public employee’s pension
benefits.11 See County’s Brief at 13-15. Effectively, the County argues that the
existence of these criminal statutes and the Public Employee Pension Forfeiture Act
evidences that a well-defined, dominant public policy of required truthfulness exists
and condemns actions such as Goings’ continued, knowing false certifications – by
signing the post order sign-in sheets – that he had read post orders that he had not,
in fact, read. See id.
The trial court, on the other hand, determined that
(3) submits or invites reliance on any sample, specimen,
map, boundary mark, or other object which he knows to be
false.
(b) Statements “under penalty”.--A person commits a
misdemeanor of the third degree if he makes a written false
statement which he does not believe to be true, on or pursuant to a
form bearing notice, authorized by law, to the effect that false
statements made therein are punishable.
18 Pa.C.S. § 4904.
10
Act of July 8, 1978, P.L. 752, as amended, 43 P.S. §§ 1311-1315.
11
Section 3(a) of the Public Employee Pension Forfeiture Act provides that
no public official or public employee nor any beneficiary designated
by such public official or public employee shall be entitled to receive
any retirement or other benefit or payment of any kind except a
return of the contribution paid into any pension fund without
interest, if such public official or public employee is found guilty of
a crime related to public office or public employment or pleads
guilty or nolo contendere to any crime related to public office or
public employment.
43 P.S. § 1313(a). The Public Employee Pension Forfeiture Act includes both tampering with
public records or information and unsworn falsification to authorities in the act’s definition of
crimes related to public office or public employment. See 43 P.S. § 1312.
13
[t]he facts of this case, including the remedy imposed by
the arbitrator (i.e., mitigation of the discipline from
termination to a thirty-day suspension and back pay), do
not implicate a well-defined, dominant public policy
warranting interference with the arbitrator’s decision.
Trial Court Opinion at 4. We agree with the trial court that, under the facts of this
case, the County has not met its burden to demonstrate that an alleged duty of
employee/employer truthfulness constitutes a well-defined and dominant public
policy ascertained by reference to laws and legal precedents. See Millcreek Twp.
Sch. Dist., 210 A.3d at 1012.
Initially, while we appreciate that the arguable facial criminality of
conduct may represent a consideration in determining whether a well-defined,
dominant policy exists for the purpose of applying the public policy exception to the
essence test,12 the existence of defined offenses under the Crimes Code that involve
dishonesty that could arguably be applied to Goings’ behavior in the instant matter
does not mandate the application of the public policy exception. The General
Assembly did not enact the crimes of tampering with public records and unsworn
falsifications to authorities to impose a strict requirement of honesty in all
interactions between employers and employees or to otherwise control oversight of
errors in employment paperwork, even where deliberate. The existence of the public
policy the County identifies – a requirement of truthfulness between employee and
employer – simply cannot be gleaned from the mere existence of either these
criminal provisions or the portion of the Public Employee Pension Forfeiture Act
that references the crimes. Beyond blanket implications that the crimes of tampering
12
See Phila. Hous. Auth., 52 A.3d at 1125 (noting that a public employer should have
power to impose consequences for extremely inappropriate, and facially criminal, conduct).
14
with public records and unsworn falsifications to authorities punish dishonesty, the
County did not elaborate on how the listed crimes bear on Goings’ specific behavior
of falsely filling out his employer’s paperwork.
Additionally, we note that Goings was not charged with, much less
convicted of, any crimes in this matter. While the arbitrator did find that Goings
repeatedly failed to read the post orders and repeatedly falsified the post order sign-
in sheet, and further that such failures “provided just cause for significant
disciplinary action[,]”13 the arbitrator in no way determined, as the County
suggests,14 that Goings violated criminal law. Instead, the arbitrator ultimately
concluded that Goings’ repeated falsification of post order sign-in sheets indicating
he had read the post orders – although “significant misconduct” – amounted to
negligence in attending to his employment duties, as opposed to any specific intent
to commit the crimes of unsworn falsifications to authorities or tampering with
public records. See Arbitration Award at 10 & 12.
The arbitrator found that Goings violated a management directive by
knowingly falsifying the post order sign-in sheets to indicate that he had read the
post orders each shift. See Arbitration Award at 9. However, the arbitrator went on
to state this was an aggravating factor to be considered “in determining the
appropriate penalty for [Goings’] negligent actions.” Id. at 10. The arbitrator also
13
Arbitration Award at 9.
14
The County states that the arbitrator “determined that Goings . . . [k]nowingly and
intentionally violated not only Allegheny County Jail rules and regulations against falsification,
but also criminal law prohibiting such conduct[.]” County’s Brief at 17. The County further states
that the arbitrator made an “unqualified determination that Goings violated [] County policy and
very likely the criminal code[.]” Id. These statements are not supported by the Arbitration Award,
which makes no reference whatsoever to any criminal statute or violation and properly contains
the conclusions therein to a discussion of the facts of this case. See Arbitration Award at 9-13.
15
noted several mitigating factors, including Goings’ 19 years of service with only two
minor counseling sessions, the lack of supervisory oversight in Goings’ actions, and
the lack of any discipline of the supervisors who were responsible for insuring
Goings’ compliance with the post orders. Id. at 10-11. Given these factors, the
Arbitration Award stated:
It is therefore concluded that [Goings’] engaged in
significant misconduct that provided just cause for
discipline. However, given the equivalent negligence of
supervisory personnel in failing to catch [Goings’] error
and the County’s failure to act against them, there was not
just cause for discharge.
Arbitration Award at 12.
Also, despite largely basing its appellate argument on Goings’
falsification of the post order sign-in sheets, and despite the existence of a specific
Code of Ethics provision allowing for discipline of prison employees for falsifying
information on reports,15 the County did not list falsification of reports as a reason
for the discipline imposed. See Letter of Matt Kohler dated June 5, 2017,
Reproduced Record (R.R.) at 26a; Letter of Matt Kohler dated June 6, 2017, R.R. at
27a. Instead, Goings was charged with, and ultimately discharged for, violation of
the requirement contained in Post Order No. 8, that guards in the medical unit
conduct two guard tours per hour, as well as failure to comply with written directives
15
Section 3.14 of the County’s Code of Ethics provides as follows:
Any employees found to have falsified information on reports, will
be subject to severe disciplinary action inclusive of termination,
regardless of when discovered. This includes pre-employment
information (written and verbal).
Code of Ethics at 9, Reproduced Record at 42a.
16
(the post orders), and Code of Ethics Sections 2.1 and 2.3,16 which require that
employees be familiar with, and carry out, their duties. See Letter of Matt Kohler
16
The Code of Ethics Section 2.1 provides:
2.1 ALL EMPLOYEES SHALL:
a. Be thoroughly familiar with their duties and responsibilities.
Employees are required to review all announcements, memos, [and]
directives that were issued while they were off duty for any period
of time.
b. Be knowledgeable of and enforce the rules and regulations
governing the inmate population.
c. Be knowledgeable of and enforce the rules and regulations
governing the jail staff and visitors.
d. Be friendly, but professional, maintaining an impersonal attitude
and relationship toward all inmates, remaining always impartial.
e. Never strike an inmate, except in self-defense and then only using
that degree of force necessary to control or contain the situation.
f. Never enter into any transaction or relationship with any inmate,
or ex-inmate on parole or probation.
g. Never verbally abuse or agitate an inmate.
h. Never take anything for granted, always investigate and get all the
facts.
i. Never overlook the potential of any situation and act affirmatively
to report and/or eliminate conditions that could lead to serious and
dangerous incidents. This includes potential safety risks due to
personal grooming and/or attire.
Code of Ethics at 4, R.R. at 37a. Section 2.3 of the Code of Ethics provides as follows:
2.3 ALL EMPLOYEES SHALL CARRY OUT ALL ORDERS
AND DIRECTIVES:
a. All employees will carry out all orders and directives issued or
given them by a supervisor, in a prompt and efficient manner.
17
dated June 5, 2017, R.R. at 26a; Letter of Matt Kohler dated June 6, 2017, R.R. at
27a. The County cannot add, on appeal, a reason for discharge not presented to the
arbitrator. See R.R. at 23a (Step 1 of Grievance Procedure requires citation to the
CBA provisions believed to be violated); see also Pa. State Corr. Officers Ass’n v.
Commonwealth, 976 A.2d 1236, 1239 (Pa. Cmwlth. 2009) (“issues not raised before
the arbitrator are waived on appeal before this Court”).
Further, we find unpersuasive the County’s argument that the public
policy exception to the essence test should be employed in this case because the
arbitrator refused to credit Goings’ proffered reason for his failure to read the post
orders–that he lacked time–and, therefore, Goings was dishonest with his employer.
See County Brief at 16-17. To conclude a well-defined, dominant public policy for
truthfulness to one’s employer validates the use of the public policy exception to the
essence test every time an arbitrator makes a credibility determination adverse to the
employee would allow for an overly broad use of the exception. Such a result is
completely contrary to Supreme Court precedent establishing that the public policy
exception is an especially narrow exception to the already narrow exception to the
DISREGARD OF ORDERS AND DIRECTIVES ISSUED BY A
SUPERVISOR IN A WILFUL OR DILATORY MANNER WILL
BE CAUSE FOR SEVERE DISCIPLINARY ACTION UP TO
AND INCLUDING DISCHARGE.
b. Insubordination in any fashion will not be tolerated. All
employees will render due respect to all supervisory staff and will
carry out all orders and instructions given. No staff member will
engage in making derogatory remarks or discrediting statements or
slanderous gossip, concerning supervisors, nor their orders or
instructions. Disregard of such, will be cause for severe disciplinary
action up to and including termination.
Code of Ethics at 5, R.R. at 38a.
18
doctrine that arbitration awards are final and binding. See Millcreek Twp. Sch. Dist.,
210 A.3d at 1011.
3. Whether the Arbitration Award compels violation of a well-defined, dominant
public policy.
Even assuming the existence of the alleged well-defined, dominant
public policy requiring truthfulness between employers and employees, the
Arbitration Award in this case would not violate such a policy. An arbitrator’s award
will be found in violation of a stated public policy where it makes a mockery of, or
causes an employer to violate, an implicated public policy. See Phila. Hous. Auth.,
52 A.3d at 1125 (finding absurd and a mockery of the dominant public policy against
sexual harassment an award that reinstated, with full back pay, an individual whose
egregious conduct amounted to sexual harassment). The award in this matter does
neither.
The arbitrator herein imposed a 30-day unpaid suspension based on
Goings’ significant misconduct. See Arbitration Award at 12-13. In fashioning this
remedy, the arbitrator considered certain aggravating factors: (1) the death of the
inmate, and (2) the fact that Goings lacked sufficient excuse to justify his repeated
misconduct. See Arbitration Award at 10. As mitigating factors, the arbitrator
considered: (1) Goings’ employment longevity and clean work record; (2) the lack
of supervisory oversight of Goings’ work performance; and (3) the lack of discipline
of any superiors responsible for oversight of Goings’ work performance. See
Arbitration Award at 10-11. Despite the gravity of the tragedy of the inmate death
in this matter, the imposition of a 30-day unpaid suspension represents a significant
penalty for Goings’ actions, which the arbitrator ultimately characterized as
negligent. See Arbitration Award at 12. As the trial court noted – in addition to not
19
implicating any well-defined, dominant public policy – the arbitrator’s remedy
would in no way, under the facts of this case, make a mockery of the alleged public
policy of required truthfulness between employer and employee, if such a policy
existed, nor would it require that the County violate such a policy. See Trial Court
Opinion at 4.
We note further that Goings’ actions and the penalty imposed herein
are simply not comparable to the actions of the employee or the remedy in
Philadelphia Housing Authority. A 30-day unpaid suspension for employee
dishonesty in an employment relationship in no way eviscerates the County’s ability
to enforce any public policy. See Phila. Hous. Auth., 52 A.3d at 1125. The serious
nature of the tragic death of the inmate in this matter notwithstanding, unlike the
reinstatement without other consequences awarded in Philadelphia Housing
Authority, the Arbitration Award does not require that the County violate public
policy.
For the above reasons, we affirm the order of the trial court denying the
County’s Petition to Vacate the Arbitration Award.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
County of Allegheny, Pennsylvania, :
Appellant :
:
v. :
:
Allegheny County Prison : No. 1469 C.D. 2019
Employees Independent Union :
ORDER
AND NOW, this 19th day of November, 2020, the September 17, 2019
order of the Court of Common Pleas of Allegheny County is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge