concurring.
I agree with the majority in affirming the order of the Superior Court. I disagree, however, with the notion that where an employee establishes that a union has breached its duty of fair representation, a court is limited to ordering arbitration of the underlying grievance nunc pro tunc, and such an order provides the employee with a complete and adequate legal remedy. This limitation on a court’s powers is not required and could serve to prevent a grieved employee from obtaining appropriate relief in all cases.
In Vaca v. Sipes, 386 U.S. 171, 176, 87 S.Ct. 903, 920, 17 L.Ed.2d 842 (1967), the United States Supreme Court considered the advisability of so limiting a court’s powers:
It is true that the employee’s action is based on the employer’s alleged breach of contract plus the union’s alleged wrongful failure to afford him his contractual remedy or arbitration. For this reason, an order compelling arbitration should be viewed as one of the available remedies when a breach of the union’s duty is proved. *411But we see no reason inflexibly to require arbitration in all cases. In some cases, for example, at least part of the employee’s damages may be attributable to the union’s breach of duty, and an arbitrator may have no power under the bargaining agreement to award such damages against the union. In other cases, the arbitrable issues may be substantially resolved in the course of trying the fair representation controversy. In such situations, the court should be free to decide the contractual claim and to award the employee appropriate damages or equitable relief.
Although the majority does not find the Vaca court’s reasoning persuasive, I do.
“Of paramount importance is the right of the employee, who has been injured by both the employer’s and the union’s breach, to be made whole.”
Bowen v. United States Postal Service, 459 U.S. 212, 103 S.Ct. 588, 74 L.Ed.2d 402 (1983).
The majority points out that a policy favoring arbitration is etched in the provisions of the Public Employe Relations Act (PERA), 1970, July 23, P.L. 563, No. 195, Art. I § 101, et seq., 43 P.S. § 1101.101 et seq. The Act requires arbitration of all disputes involving interpretation of a collective bargaining agreement. Section 903 of PERA, in pertinent part provides:
“Arbitration of disputes or grievances arising out of the interpretation of the provisions of a collective bargaining agreement is mandatory. The procedure to be adopted is a proper subject of bargaining with the proviso that the final step shall provide for a binding decision by an arbitrator or a tri-partite board of arbitrators as the parties may agree.”
Act. 1970, July 23. P.L. 563, NO. 195 Art. IX, § 903, 43 P.S. 1101.903. The instant case involves more than a dispute arising out of the interpretation of a collective bargaining agreement. The appellee complains that he was deprived of the very procedural rights provided by section 903. The wrongful denial of that final step — arbitration—is what *412gave rise to the lawsuit. In the typical case (as is the case here) the employee is fired from his employment. He alleges that his discharge is unlawful in that it violates a collective bargaining agreement. He seeks redress through the grievance procedure established by the bargaining agreement — a procedure controlled by the union and his employer. The union wrongfully fails to proceed to the final step of arbitration on behalf of the grieved employee. As a consequence, the injured employee is prevented from pursuing the contract remedy. This part of his claim does not involve interpretation of the provisions of the bargaining agreement. Rather, it involves the employee’s claim that the union has in bad faith, breached its duty of fair representation.1
“It is true that the employer in such a situation may have done nothing to prevent exhaustion of the exclusive contractual remedies to which [the employer] agreed in the collective bargaining agreement. But the employer has committed [an alleged] wrongful discharge in breach of that agreement, a breach which could be remedied through the grievance process to the [employee’s] benefit were it not for the union’s breach of its [duty to represent the employee fairly in the grievance process].”
Ziccardi v. Commonwealth, 500 Pa. 326, 335, 456 A.2d 979, 983 (1982) (Dissenting Opinion, Larsen, J.) citing Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).
In Teamsters Local Union No. 77 v. Pennsylvania Turnpike Commission, 17 Pa. Cmwlth. 238, 331 A.2d 588 (1975), the court, citing United Steelworkers of America v. Enterprise Wheel and Car Co., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960) defined the role of an arbitrator:
“[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement: he does not sit to dispense his own brand of industrial justice. He *413may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement.”
This standard, often referred to as the “essence test,” means that an arbitration award is proper only if it is derived from the bargaining agreement. See: Community College of Beaver County v. Community College of Beaver County, Society of the Faculty, 473 Pa. 576, 375 A.2d 1267 (1977). An arbitrator is bound to fashion a remedy which is based upon the terms of the bargaining contract. In cases where there is no agreement-based authority for the relief sought by a grieved employee, an order directing arbitration nunc pro tunc is unsatisfactory. In such cases the courts must have the power to fashion an appropriate remedy so that the injured employee may be made whole.
I would hold that where an employee is wrongfully discharged and seeks a remedy through the established grievance procedure, but is prevented from doing so by the union’s breach of its duty of fair representation in processing the grievance, that employee may maintain an action against the employer for any appropriate legal and equitable relief justified under the circumstances.
Applying the foregoing, I concur in the result reached by the majority.
. An employee-member of a bargaining unit has the right to maintain an action against his union for breach of its duty of fair representation. Ziccardi v. Commonwealth, 500 Pa. 326, 456 A.2d 979 (1982).