Fayette County Board of Commissioners v. American Federation of State, County & Municipal Employees, Council 84

FLAHERTY, Judge,

concurring and dissenting.

I respectfully concur and dissent. Although I agree with the majority that the *278grievance in the instant case was arbitrable, the majority did not go beyond that threshold. I feel that they should have reviewed the basis of the arbitration award which exceeded the power of the arbitrator when it modified the disciplinary action imposed on Correctional Officer, William Prinkey (Prin-key), by reinstating him after discharge when just cause for some form of discipline was found by the arbitrator.

Part I

The Fayette County Board of Commissioners (Commissioners) does not challenge the merits of the arbitrator’s decision. Generally, issues not raised below are waived on appeal. Pa. R.A.P. 302(a). Also, a reviewing court may not raise issues that were not raised by either of the parties. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 257, 322 A.2d 114, 116 (1974). However, questions of subject matter jurisdiction are never waived and should be raised by the court sua sponte to vindicate the integrity of judicial and quasi-judicial processes in the Commonwealth. Delaware County v. City of Philadelphia, 153 Pa.Cmwlth. 167, 620 A.2d 666 (1993).

When reviewing grievance arbitration awards issued pursuant to the Public Employe Relations Act (Act 195),1 the standard of review is the “essence test.” County of Centre v. Musser, 519 Pa. 380, 390-91, 548 A.2d 1194, 1199 (1988). Under the essence test, a reviewing court must reverse a manifestly unreasonable arbitration award. Philadelphia Housing Authority v. Union of Security Officers #1, 500 Pa. 213, 216, 455 A.2d 625, 627 (1983). In Lehigh County Community College Faculty Association v. Lehigh County Community College, 653 A.2d 47 (Pa.Cmwlth.1990), we held that once the arbitrator found that the grievant committed the alleged conduct and that there was just cause for disciplinary action, he was without authority to modify the degree of discipline imposed by the public employer. Id. at 49.

In this regard, grievance arbitration proceedings are bifurcated proceedings. An arbitrator must first act as a fact finder to determine whether the grievant engaged in the alleged conduct. If the arbitrator finds that the grievant engaged in the alleged conduct, he must then determine whether the conduct constitutes just cause under the agreement, work rules, or state law. Once the arbitrator finds that there is just cause for some type of discipline, under Philadelphia Housing Authority, he is without authority to modify the award as he does not have subject matter jurisdiction over the remedy. However, if the arbitrator finds that the grievant did not engage in the alleged conduct or that his conduct does not rise to the level of just cause for disciplinary action, only then does the arbitrator have the jurisdiction to proceed to the remedy phase of the arbitration proceedings. In the case sub judice, there is a question as to whether the arbitrator was without subject matter jurisdiction to modify the Prison Board’s discharge of Prinkey. Therefore, the court should have raised this issue sua sponte and addressed the merits of the arbitrator’s remedy which modified the disciplinary action taken by the Fayette County Prison Board (Board).

Part II

When reviewing the merits of the grievance arbitration award under the essence test, we must look to the nature of the griev-ant’s conduct, the agreement, and the arbitrator’s decision. In the instant case, the Fayette County Prison has a published list of Prison Rules of Conduct and Discipline. Chapter XXIV of these rules provides in relevant part the following:

Section 5:

The following violations are considered major infractions and may result in disciplinary action up to and including discharge:

No employee shall:

I. Commit any act unbecoming a correctional officer, including acts detrimental to good discipline or tending to bring discred*279it on the Prison, its employees, or the county.

Section 6:

The following violations are extremely serious and cannot be tolerated. Such violations are cause for discharge.

No employee shall:

C. Willfully and knowingly make an untruthful statement of any kind in any verbal or written statement pertaining to his official duties as a county employee to or in the presence of any supervisor_

Under Section 5, stated above, Prinkey was discharged by the Board because “[o]n Sunday, September 18, 1994, at or about 9:15 P.M. [he] willfully and without justification unzipped [his] pants, took out [his] penis and urinated onto the floor of the control room.” (Notice of Termination, dated September 28, 1994). Prinkey was also discharged for making false statements to the Warden, a direct violation of Section 6, stated above, which mandates discharge. Not only did Prinkey admit to this behavior during arbitration, but evidence of Prinkey’s conduct was also corroborated by several other correctional officers who witnessed Prinkey urinating.

In Philadelphia Housing Authority, where a security officer was discharged for defrauding a tenant in one of the buildings under the control of the Philadelphia Housing Authority (Authority) and the arbitrator reinstated the officer, our Supreme Court held that a public employer has an absolute public duty to ensure the integrity of its security force by discharging an employee who has committed criminal conduct against the individuals who that employee is paid to protect. Philadelphia Housing Authority, 500 Pa. at 216, 455 A.2d at 627. Once the arbitrator found that the grievant committed the alleged conduct, he “was without authority to overturn the Authority’s discharge. Id.

In Liquor Control Board v. Independent State Stores Union, 520 Pa. 266, 558 A.2d 948 (1989), our Supreme Court stated that the meaning of just cause does not have to be defined in the agreement itself. Published work rules or regulations, of which the discharged employee should have known, that list offenses which could result in disciplinary action against employees, will provide the arbitrator with the meaning of just cause regardless of whether or not these rules are expressly incorporated by reference into the collective bargaining agreement. Id. at 270, 277 n. 3, 558 A.2d at 950, 953 n. 3. The Independent State Stores Court stated:

Once it is established that the record reflects that there was just cause for the action taken, the inquiry must close and the action of the agency must be accepted. Thus, if just cause for the action was present, any further effort on the part of the arbitrator to disturb the agency’s action cannot be said to flow from the essence of the bargaining agreement nor can it in any rational way be derived from that agreement.

Id. at 273-74, 553 A.2d at 952. “It would also be ‘manifestly unreasonable’ to conclude that any agency of this Commonwealth ... intended to bargain away its responsibility to ensure the ... integrity of its operation.” Id. at 276, 553 A.2d at 953. Even if a term expressly excluded conduct that would interfere with a public employer’s duty to ensure the integrity of its operations, its validity would be questionable. Id.

Under the present state of the law, an arbitrator, as fact finder, must look to the agreement to discern the intent of the parties regarding the meaning of just cause. Absent a discernible expression in the agreement, the arbitrator must look beyond the agreement to work rules or regulations for the meaning of just cause. Additionally, Philadelphia Housing Authority and its progeny imply a narrow definition of conduct constituting just cause for discharge in every public employer collective bargaining agreement under Act 195. In this regard, Prinkey’s conduct in the instant case constituted just cause for discipline, including dismissal, for two reasons, and the arbitrator was without jurisdiction to award a modification of the disciplinary action of discharge imposed by the Board.

First, the Prison Rules of Conduct and Discipline defined the basis for just cause for discharging and otherwise disciplining employees within the meaning of Independent State Stores. Prinkey’s conduct of publicly *280exposing his genitalia and urinating in the control room, which was adjacent to the Mtehen, and his conduct of lying to the Warden was in direct contravention of the rules. The arbitrator expressly found that Prinkey engaged in the alleged conduct. Therefore, with a clear expression of just cause for discharge that included Prinkey’s conduct, the arbitrator went beyond his authority and ignored the intent of the parties by modifying the discharge.

Secondly, Prinkey’s conduct fits within the narrow definition of just cause implied by law in every Act 195 agreement. The Board has a statutory and institutional duty to serve and protect prison inmates. Section 1 of the Act of May 16, 1921, P.L. 579, as amended, 61 P.S. § 408, provides that the “safe-keeping, discipline, and employment of prisoners, and the government management of said institution, shall be exclusively vested” in the prison board. Aside from arguably being a violation of the Crimes Code,2 Prinkey’s act of exposing his penis and urinating near the kitchen facilities presented a serious health risk to the inmates. The health of the inmates is within the Board’s statutory responsibility to provide for the health and safekeeping of prison inmates. In this regard, the Board had just cause to discharge Prin-key for jeopardizing the health of the inmates and the integrity of its operations.

The arbitrator specifically stated in his award that “the County had just cause to discipline the grievant, but the discharge penalty was too severe under the circumstances of this case.” Once the arbitrator found just cause for discipline in the instant matter, the inquiry should have closed, and the action of the Board should have been accepted. Independent State Stores, 520 Pa. at 278, 558 A.2d at 954. Based on the foregoing reasons, the majority should have reviewed the merits of the arbitration award in the instant case and concluded that the arbitrator’s modification of the Board’s discharge of Prinkey to a 60-day suspension was manifestly unreasonable.

Part III

I also disagree with the categorical language in Part III of the majority opinion. The majority correctly recognized that our Supreme Court, in Pittsburgh Joint Collective Bargaining Committee v. City of Pittsburgh, 481 Pa. 66, 391 A.2d 1318 (1978), stated the following:

To permit an employer to enter into agreements and include terms such as grievance arbitration which raise the expectations of those concerned, and then to subsequently refuse to abide by those provisions on the basis of its lack of capacity would invite discord and distrust and create an atmosphere wherein a harmonious relationship wouid virtually be impossible to maintain.

Id. at 74, 391 A.2d at 1322. Therefore, any claimed lack of capacity to agree to an illegal term must be addressed at the bargaining table before a dispute arises under the agreement. Id. at 75, 391 A.2d at 1322-23. Relying on this rationale, the majority holds that the Commissioners are categorically es-topped from claiming that the arbitration provisions in the collective bargaining agreement are illegal and not binding, whether or not such provisions are actually illegal.

As previously explained in Part II of this dissenting opinion, our Supreme Court, however, has also held that, in the context of interpreting just cause for discharge in grievance arbitration proceedings under Act 195, a public employer cannot be deemed to have bargained away its managerial prerogative to ensure the integrity of its operations. Independent State Stores, 520 Pa. at 277, 553 A.2d at 953. In Independent State Stores, our Supreme Court stated that “a governmental agency does not have the freedom of a private enterprise to relinquish powers inherently essential to the proper discharge of its function.” Id. at 277-78, 553 A.2d at 954. Therefore, a public employer will always have and cannot bargain away its right to discharge employees for conduct that threatens the integrity of the public employer’s statutory duty, which will vary depending upon the nature of the public employer’s operation. If a public employer cannot bargain away its authority to discharge employ*281ees for certain conduct, neither can the statutorily authorized collective bargaining agent.

The legislative enactment of Act 195 in 1970 imposed a duty on public employers to bargain with public employees.3 Section 601 of Act 195 provides that “public employers may select representatives to act in their interest in any collective bargaining with representatives of public employes.” 43 P.S. § 1101.601. The Legislature amended Section 1620 of The County Code 4 (Act 115) in 1976 to provide that county commissioners would be the exclusive bargaining representative of management in collective bargaining with public employees in counties of the third through eight classes. 16 P.S. § 1620. The amended version of Section 1620 of Act 115 provides, in relevant part, the following:

[W]ith respect to ... collective bargaining negotiations involving any or all employes 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.

Id. (emphasis added). The emphasized language of Section 1620 of Act 115, therefore, preserves the established statutory structure of authority, as stated in 61 P.S. § 411, by ensuring that certain matters of inherent managerial policy, such as hiring and discharging employees, are not altered by county commissioners at the collective bargaining table.

Section 4 of the Act of May 16, 1921, 61 P.S. § 411, provides that “[a]ll deputies, assistants, or keepers ... may at any time be suspended by the warden or removed by the

[board of inspectors].” Article XIV, Section 1, of the collective bargaining agreement (agreement) provides that “[t]he County shall not discharge nor suspend any employee without just cause.” Section 2 of the same Article further provides that “[a]n employe may grieve a discharge beginning with Step 3 of the grievance procedure.”

In other words, Section 1620 of Act 115 preserves in whom the authority to discharge county employees is vested. The “just cause” and arbitration provisions of the agreement do not, in themselves, affect the managerial prerogative to hire or discharge employees, rather they require a threshold level of misconduct by the employee before management can exercise that power.

In Ellenbogen v. County of Allegheny, 479 Pa. 429, 388 A.2d 730 (1978), judges of the Court of Common Pleas of Allegheny County sought a declaratory judgment to identify their managerial representative for collective bargaining with court employees. In Ellen-bogen, our Supreme Court stated the following with regards to the amendment of Section 1620:

The amendment governing representation of managerial interests promotes several important public interests, including fiscal responsibilities. County commissioners are charged with the responsibility of raising revenue and allocating funds among various county services. Thus, the amendment allows county commissioners to make managerial decisions affecting tax dollars. This reflects the legislative judgment that the officials charged with providing revenue for budgets are best able to assess whether employee proposals at the bargaining table are feasible and consistent with the overall administration of county fiscal and governmental affairs.

Id. at 436, 388 A.2d at 734 (citations omitted). The Supreme Court further reasoned that “[t]he Legislature’s designation of county commissioners as managerial representative *282also avoids the potential difficulties of having too many decision-makers, none with the full authority to reach an agreement.” Id. The Ellenbogen Court held that “Allegheny County Commissioners are the exclusive representatives of management in representation proceedings and collective bargaining under Act 195 involving court employees paid from county funds. This exclusive authority, however, does not diminish the right of judges to ‘hire, discharge, and supervise’ these employees.” Id. at 438, 388 A.2d at 735. In upholding the constitutionality of Section 1620 of Act 115 and the managerial independence of judges who are a separate public entity of elected officials, the Ellenbogen Court stated that the amendment to Section 1620 of Act 115 does not infringe upon the constitutionally mandated independence of the judiciary. It follows, therefore, that Act 115 must be read into Act 195 and authorizes county commissioners to act as the negotiating agent for the other independent governing offices of the county in collective bargaining, but county commissioners cannot interfere with the supervisory authority of another governing body. Lycoming County Prison Board v. Department of Labor and Industry, 45 Pa. Cmwlth. 307, 405 A.2d 985, 988 (1979).

Ellenbogen makes clear that county commissioners are the statutorily authorized agents for public employers whose employees are paid from the county treasury. However, it also makes clear that the commissioners cannot bind their independent county principals to any terms that affect certain inherent managerial powers, e.g. to hire, promote, demote, or discharge employees. We have stated that “Act 115, by its very terms, recognizes that judges and other county offices retain” the supervisory powers of hiring and discharging employees. Pennsylvania Labor Relations Board v. Della Vecchia, 90 Pa.Cmwlth. 235, 494 A.2d 1151 (1985), reversed on other grounds, 517 Pa. 349, 537 A.2d 805 (1988). We further stated that “[t]he effect of Act 115 therefore was not to change employer status, but rather to designate a managerial representative for purposes of bargaining.” Id.

In the case sub judice, the Commissioners must be recognized to be bargaining in two different roles. First, they are acting as principals in negotiations for the County departments under their statutory control, e.g., planning, probation, etc. Secondly, as a result of Section 1620 of Act 115, supra, they are appointed by statute as agents with limited authority to negotiate for the branches of County government independent of their control, such as judges, Board of Prison Inspectors, Sheriff, etc. The fact that there are three County Commissioners on the Prison Board does not enhance or expand the limitations placed upon their negotiating powers because, even collectively, they are in a minority position on the Board which consists of five other independent constitutional officers who usually are not permitted an opportunity to vote or ratify the terms negotiated by the Commissioners. While the Commissioners could bargain for terms and conditions of employment, including salaries, they could not agree with union representatives to bargain away the ability of the Board or the Warden to discharge employees for conduct that interferes with the integrity of prison operations because Section 1620 of Act 115 prohibits the Commissioners from disturbing that managerial function of the independent constitutional offices in collective bargaining. Further, our Supreme Court has held that the managerial prerogative to discharge employees for such conduct is outside the collective bargaining process. Independent State Stores, 520 Pa. at 275-78, 553 A.2d at 953-54.

In light of our Supreme Court’s mandate that a public employer cannot restrict its supervisory power and ability to discharge an employee for conduct that threatens the integrity of its statutorily prescribed operations, I disagree with the majority when it dismisses the significance of whether the “just cause” provision and the arbitration procedures in the agreement are inconsistent with the Section 1620 of Act 115 and 61 P.S. § 411. In the instant case, the fact that the agreement is consistent with Section 1620 of Act 115 is extremely relevant because that section preserves the managerial authority to discharge employees established in 61 P.S. § 411, which cannot be bargained away.

In the instant case, if the arbitration terms in the agreement were inconsistent with 61 *283P.S. § 411 and Section 1620 of Act 115, i.e., vesting authority to discharge in persons other than the Board, the Commissioners would have attempted to bargain away the inherent managerial authority that is necessary to protect the integrity of the public employer’s operations from wayward employees who threaten those operations, which our Supreme Court has forbidden. The result reached by the majority in Part III of its opinion is wrong when it holds that the legality of a term included in a labor agreement is always irrelevant provided that the parties voluntarily bargained for the term. Under the Ellenbogen line of cases, our Supreme Court has clearly held that managerial prerogatives of hiring and discharging employees is not a subject of collective bargaining and county commissioners cannot bargain for terms that interfere with those supervisory powers of the other independent governing bodies of the counties.

Under the Philadelphia Homing Authority line of cases, our Supreme Court has held that, in agreeing to a term requiring just cause for discharging an employee, a public employer may not bargain away its inherent managerial authority to discharge employees for conduct that threatens the integrity of its operations. In this manner, county commissioners cannot bind their independent county principals to a collective bargaining term, which expressly excludes from the meaning of just cause, behavior that threatens the integrity of the governing bodies’ operations. Such a term would be akin to the county commissioners bargaining for a term that wholly places the authority to hire and discharge employees in officials other than those elected officials who constitute the county office in which the statutory authority to do so is exclusively vested.

Therefore, I must disagree with the majority to the extent that its reasoning would automatically bind the governing bodies of the county, which are independent of the county commissioners, to negotiated and illegal terms which effectively result in the bargaining away of certain inherent managerial prerogatives, e.g. hiring and discharging employees. Such a rule of law defies our Supreme Court and would eviscerate the ability of the county offices independent of the commissioners to protect the integrity of their operations and discharge their statutory duties.

LEADBETTER, J., joins in this concurring and dissenting opinion.

. Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101-1101.2301. This legislation is commonly known as "Act 195.”

. Section 5901 of the Act of December 6, 1972, P.L. 1482, 18 Pa.C.S. § 5901.

. Section 701 of Act 195, 43 P.S. § 1101.701. This section provides, in relevant part, that “[clollective bargaining is the performance of the mutual obligation of the public employer and the representative of the public employes to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment.” Id.

. Act of August 9, 1955, P.L. 323, as amended, 16 P.S. § 1620. This legislation is commonly known as "Act 115.”