Department of Corrections v. Pennsylvania State Corrections Officers Ass'n

DISSENTING OPINION BY

Judge McGINLEY.

I dissent because I believe the Majority has overstepped its bounds by erroneously engaging in a “merits review” and “substituting its own judgment” for that of the Arbitrator.

It is axiomatic that “[a] court should not engage in merits review” of an arbitration award under the Public Employee Relations Act (PERA). Indeed, “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.’ ” Westmoreland Intermediate Unit # 7 v. Westmoreland Intermediate Unit # 7 Classroom Assistants Educ. Support Pers. Ass’n, PSEA/NEA, 595 Pa. 648, 661, 939 A.2d 855, 863 (2007). This Court may not substitute its own judgment for that of the arbitrator even if its interpretation of the CBA might differ from that of the arbitrator. That is precisely what the Majority has done here.

The only question before this Court concerns the second prong of the essence test, i.e., whether the specific portion of the Grievance Award entitled “Existing Mutually Recognized Bid Posts” was rationally derived from the 2008-2011 Interest Arbitration Award.

Before the Arbitrator, DOC had argued that the parties were unable to mutually identify in writing any generic1 position that satisfied the criteria for a “bid post” in the 2008-2011 Interest Arbitration Award. Accordingly, DOC submitted evidence regarding each and every generic post at each and every DOC institution and requested that the Arbitrator examine each and every one.

In response, the Association simply pointed out to the Arbitrator that some posts were “mutually recognized” as bid posts under the 1988 side letter language which was virtually “identical” to the language in the 2008-2011 Interest Arbitration Award with the exception of the “other relevant factors” language.

*985For example, Houtzdale State Correctional Institution has an “activities officer” that works 7:30 a.m. to 3:30 p.m., Monday through Friday. That is considered to be a “bid post” at Houtzdale presumably because of the desirable hours. Somerset State Correctional Institution’s (SCI-Somerset) “education lobby officer” works 8:00 a.m. to 4:00 p.m., Monday through Friday. By mutual agreement between the local union and SCI Somerset’s management, this post has been considered to be a “bid post” at that particular institution and the position is bid based on seniority again, presumably because of the desirable hours and conditions at that particular institution.

With respect to these long-standing bid-post jobs, the Association noted that “[a]t this point many of them have now been bid for years and even decades. There is no evidence anywhere in the record that the duties and responsibilities of these positions have changed one iota since being declared a Bid Post.” Post Hearing Brief of Pennsylvania State Corrections Officers Association, at 18; R.R. at 721a.

In turn, the Arbitrator, relying on the intent of the parties and the manner in which they had in several instances, on the local level, agreed to apply the definition of “bid post,” identified what he dubbed to be “Existing Mutually Recognized Bids.” The Arbitrator noted that “management and the Association at virtually all of the individual institutions have already mutually agreed that at least a few positions are bid posts.” Although he did not agree that the “outside hospital officer” and “transport officer” posts met the criteria of a “bid post,” he deferred to the experience and local knowledge of the parties and deemed that “all of those posts that are now under mutual agreement ” remained “bid posts.”

The Arbitrator did not get into the specifics of the conditions at each institution. Rather, he defined, generically the jobs, and determined based on the generic descriptions, whether they should be bid-posts or not. Whenever a particular institution and its local union agreed for whatever reason, that the job was not at issue, the Arbitrator refrained from changing that which was not broken. Rather, he deferred to the local union and local management and perceptively recognized that “they knew best.” The Arbitrator understood that some jobs were not up for debate. Those jobs were not at issue.

The Majority concludes that in so doing, the Arbitrator misinterpreted the CBA although this is precisely what this Court has been cautioned not to do. An arbitrator’s award must be respected by the judiciary if the interpretation may in any rational way be derived from the CBA, viewed in light of its language, its context and any other indicia of the parties’ intention. Pennsylvania Turnpike Com’n v. Teamsters Local 250, 988 A.2d 789 (Pa.Cmwlth.2010). A court will only vacate an arbitration award where the award indisputably and genuinely is without foundation, or fails to logically flow from the CBA. Northwest Area School District v. Northwest Area Education Association, 954 A.2d 111, 114 (Pa.Cmwlth.2008).

Contrary to the Majority, the Arbitrator’s decision regarding “mutually existing bid posts” drew its essence from the parties’ interest arbitration award. He was asked to define which of the generic jobs presented to him were bid posts. The Arbitrator did exactly what he was charged to do. DOC submitted to the Arbitrator every “generic” position that was commonly found at most, but not necessarily all, of the local institutions. The Arbitrator analyzed each of those “generic” positions and identified which qualified *986as bid posts for the parties to use as a guide on a state-wide basis to determine, in the future, which posts were bid posts.

What the Arbitrator did not do, because he was not required to do so under the interest arbitration award, was to disturb or disi'upt business at institutions at the local level where no dispute existed regarding which positions were bid posts.

The Association specifically argued before the Arbitrator that certain local institutions and its employees had agreed, for whatever reason, that certain positions were bid posts. The Arbitrator accepted the Association’s argument that there were certain jobs at specific institutions that, although they would have been considered to be non-bid posts under his “generic” analysis, were nevertheless, not alterable by him because those institutions and unions at the local level had bid them for decades.

The Majority concludes the Arbitrator should have forced these particular institutions to change the status of the posts and disrupt operations at the local level where by mutual agreement the posts were bid. However, this conclusion is based on the Majority’s own interpretation of the CBA that the Arbitrator was required do that. Again, the Arbitrator did exactly what he was charged to do, which was to classify the jobs from a generic standpoint. Whether the parties had agreed at a particular institution to bid what the Arbitrator deemed to be a non-bid post was not for him to second guess. He simply pronounced that those positions would remain as bid posts.

By refusing to force a change at the local level when the parties had an established practice, which was satisfactory to all parties, the Arbitrator merely acted within the parameters of the interest arbitration when he refused to disrupt that custom.

The 2008-2011 Interest Arbitration required the Arbitrator to resolve all “open issues” regarding “bid posts.” Based on the Award’s language, context, and evidence of the parties’ intention, the Arbitrator concluded that those posts were not posts that were at issue and therefore they were not subject to unilateral change. The Arbitrator’s remedy flowed directly from the 2008-2011 Interest Arbitration Award because it was the long-standing practice and mutual interpretation of the parties themselves which he adopted. Penns Manor Area School District v. Penns Manor Area, 953 A.2d 614 (Pa.Cmwlth.2008).

Accordingly, under the essence test, I believe this Court is bound to accept the Arbitrator’s interpretation.

. A "generic” post is one that exists at all, or almost all, institutions. For example, visiting room officer, sally port sergeant, perimeter patrol officer, search team, strip search officer, and transport officer.