Southeastern Pennsylvania Transportation Authority v. Transport Workers' Union

Concurring Opinion by

Judge Craig:

Because the Southeastern Pennsylvania Transportation Authority (SEPTA) implemented its trolley operator medical qualifications standards by effecting a transfer of former operator Earl Melvin to a non-operator position pursuant to the collective bargaining agreement’s sections 307 and 308, which govern the transfer of physically disqualified operators to cashier positions, the *447issue here was definitely a transfer in the agreements own terms and therefore subject to grievance arbitration under section 305 of the agreement, which specifies that the “[qualification of an employee for transfer will be determined by [SEPTA]” but permits the union to “take the matter up under the grievance procedure” if it “believes [SEPTAs] determination as to such qualification has been erroneously made. . . .”

Accordingly, the arbitration board here was correct in treating this issue as an arbitrable transfer while, at the same time, recognizing that the board had no authority to make any determination as to the correctness or propriety of SEPTAs medical policy itself. That approach is the only way to read and apply the collective bargaining agreement without negating the effect of section 305, relating to arbitration of SEPTAs determination as to the application of qualification rules affecting transfers. Managerial prerogative permits the employer to decree that one qualification for an operator shall be freedom from ischemic heart disease, but the arbitration mechanism of the agreement is available to forestall fraudulent or erroneous application of that qualification as when, for instance, SEPTA might attempt to transfer an operator for a mere heart murmur or other physical condition not constituting ischemic heart disease.

However, even though the transfer was subject to arbitration, this record, in which there is no dispute that the operator had a history of ischemic heart disease, requires this court to reverse under the authority of Division 85, Amalgamated Transit Union v. Port Authority of Allegheny County, 62 Pa. Commonwealth Ct. 528, 437 A.2d 105 (1981), holding that an arbitration board exceeded its authority when it created an exception to a transit authority’s medical standard in order to mandate the reinstatement of an operator. In Division 85, the arbitrability of the grievance was negated by *448collective bargaining terms different from those present here. Nevertheless, our decision in that case requires a conclusion that, even though the issue here was arbitrable, the arbitration board exceeded its authority when it did not just examine the application of the medical standard, but instead overrode the medical standard.

President Judge Crumlish, Jr. and Judge Barry join this concurring opinion.