American Federation of State, County, & Municipal Employees, District Council 87 v. County of Lackawanna

DISSENTING OPINION BY

Judge McGINLEY.

I respectfully dissent to the majority’s conclusion that “[t]he arbitrator resolved the meaning of different provisions in the CBA in favor of the specific provision in Article 29, which specified a female must be involved in transporting female detainees. We cannot say that the arbitrator’s interpretation was not rationally derived from the CBA.” Opinion at 1290-91.

*1292In Westmoreland Intermediate Unit # 7 v. Westmoreland Intermediate Unit # 7 Classroom Assistants Educational Support Personnel Association, PSEA/NEA 595 Pa. 648, 989 A.2d 855, 863 (2007), our Pennsylvania Supreme Court enunciated the two-prong approach to judicial review of grievance arbitration awards:

‘First the court shall determine if the issue as properly defined is within 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. ’ [State System of Higher Education] Cheyney University [v. State College and University Professional Association (PSEA-NEA), 560 Pa. 135], 743 A.2d [405], 413 [ (1999) ]. ‘That is to say a court will only vacate an arbitrator’s award where the award is indisputably and genuinely without foundation in, or fails to logically flow from, the collective bargaining agreement.’ Id. Regarding a review for reasonableness, we rejected such review, finding that it would invite a reviewing court to substitute its own interpretation of the contract language for that of the arbitrator. Id. Therefore, we instructed that a court should not engage in merits review of the matter. Indeed, after our reafifir-mance of the circumscribed essence test we made it eminently clear that ‘the essence test does not permit an appellate court to intrude into the domain of the arbitrator and determine whether an award is ‘manifestly unreasonable.’ Pennsylvania Game Commission v. Civil Service Commission (Toth) [561 Pa. 19], 747 A.2d 887, 891 [ (2000) ] .... (emphasis added and citations omitted).

“While there is no dispute amongst the parties that the first prong of the essence test is met, the Union argues, and the County disputes, that the Arbitrator’s decision is not rationally derived from the CBA.” (Emphasis in original.) Brief of Appellant at 21.

Article 8 (Seniority Probationary Periods), Section 1 of the CBA provides that “[sjeniority shall be bargaining unit wide by classification and is defined as the length of an employee’s continuous service with the County ....” (emphasis added).

Article 9 (Assignment of Work/Temporary Transfers) of the CBA provides:

Section 4. No later than the first day of each contract year, employees shall be allowed to bid for shift assignment and then for two (2) consecutive days off in accordance with their seniority. The shift and days so bid shall be permanent for duration of the calendar year, unless a vacancy occurs, except that if it is necessary for the County to transfer an employee to a different shift it shall transfer the least senior qualified in the classification which must be filled; if there is no employee in that classification, the employer shall select the least senior qualified employee who is capable of fully and immediately performing the job. (emphasis added).
Upon providing reasonable notice to the Warden and/or Director of Juvenile Detention Center, the Warden and/or Director of Juvenile Detention Center may permit employees to exchange days off with the understanding that the overtime provision will not be applicable in this instance.

Article 10 (Layoffs), Section 10 of the CBA provides that “[f]or purposes of this Article bargaining unit seniority is defined as the employee’s length of last continuous service with the County Prison and/or Juvenile Detention Center ....” (emphasis added).

*1293Article 15 (Promotions and Transfers) of the CBA provides:
Section 1. All promotions shall be filled by employees already in the bargaining unit who possess the seniority.
Section 3. Bumps and Bids: All positions will be posted and bid in January of each year, which all Correctional Officers and Sergeants at the Prison and all Juvenile Detention Officers at the Detention Center shall have the right to bid by seniority regardless of gender. Any vacancy that occurs during the year (except promotions) will be posted and awarded to the most senior employee who has not previously executed a bid. Employee shall have only one bid per calendar year. Submitting a bid for employee’s current shift while required shall not be considered a bid for this purpose, (emphasis added).

Lastly, Article 29 (Miscellaneous Provisions), Section 7 of the CBA provides that “[t]he County shall furnish to the Union President a seniority list of all full-time employees and the one regular part-time employee every six (6) months.” (Emphasis added.) Article 29, Section 11 further provides that “Juvenile Detention Officers who are required to transport female detainees must be accompanied by qualified female personnel.” (Emphasis added.)

In Greater Nanticoke Area School District v. Greater Nanticoke Area Education Association, 760 A.2d 1214, 1219 (Pa. Cmwlth.2000), this Court stated:

Nevertheless, to say that an arbitrator must consider extrinsic evidence in interpreting a CBA is not to say that the law draws no distinction between ambiguous and unambiguous language in the arbitration context. The intent of the parties to a CBA, like any other contract, is deemed to be embodied in ‘what the agreement manifestly expressed, not what the parties may have silently intended.’ Delaware County v. Delaware County Prison Employees Independent 552 Pa. 184], 713 A.2d [1135,] 1138 [ (1998) ]. Thus, ‘when the words [of a CBA] are clear and unambiguous the intent is to be gleaned exclusively from the express language of the agreement.’ Id. at 1137. This statement should not be read in the sense of exclusion or disregard of evidence, as though we expect an arbitrator to act like a trial judge and rule on the question of ambiguity, then based upon this ruling ‘charge’ himself as factfinder whether to consider or disregard the extrinsic evidence. To infer from this statement that an arbitrator should shut his eyes to probative evidence would place Delaware County at odds with other recent decisions of the court, and we do not so read it. Rather, Delaware County stands only for the principle that where the contract language is truly susceptible of only one meaning, and thus unambiguous as a matter of law, the arbitrator may not deem it to mean something else, (emphasis added and footnote omitted).

Clearly, the contract language of the CBA was unambiguous that seniority would be the paramount factor when deciding who was eligible for work assignments, temporary transfers, bidding, bumping, promotions, and transfers as indicated in Articles 8, 9, 10, and 15 of the CBA. However, the Arbitrator elected to ignore this unambiguous contract language of the CBA in favor of Article 29, Section 11 of the CBA. Article 29, Section 11 of the CBA does not address seniority and does not define the term “qualified female personnel.” However, the Arbitrator interpreted the term to mean a full-time “Juvenile Detention Officer” without regard to *1294seniority when she fashioned the Arbitration Award.1

I believe that the Arbitrator’s interpretation that the County was authorized to place a probationary employee into a day shift position without regard to the seniority provisions of the CBA regarding bidding on shifts and job openings was not rationally derived from the CBA. I would revérse the decision of the common pleas court and vacate the arbitrator’s award.

. As noted by the Union in its brief, “[njeither AFSCME nor the County relied upon Article 29, Section 11 in their presentations at the hearing. R.[R.] 49a-99a. Nor did AFSCME cite Article 29 in its grievances. See R.[R.] la, 2a.” Brief of Appellant at 24.