dissenting.
As a matter of public policy, it is indefensible to prosecute and incarcerate the sellers of Commonwealth jobs and at the same time exonerate and reinstate employees who benefited from this clearly illegal activity.
The arbitrators clearly exceeded their authority by concluding that the Auditor General was without power to discharge the employees who held their positions as the product of political corruption. For this reason, I respectfully but most strenuously dissent.
The majority relies on the findings of the arbitrators that the employees were neither aware that their jobs had been purchased nor involved in the scheme to sell jobs. Based on *95these findings, the majority concludes that no just cause existed to discharge the employees. The Auditor General has never asserted that the terminations were based on a finding of just cause, under Article 29 of the collective bargaining agreement. By focusing on the lack of just cause in its analysis, the majority sidesteps the thrust of the Auditor General’s argument that she terminated the employees based on her management rights.
The collective bargaining agreement states, that except as modified by the agreement, “[m]atters of inherent managerial policy are reserved exclusively to the Employer. These include but shall not be limited to such areas of discretion or policy as ... selection ... of personnel.” Collective Bargaining Agreement, Article 2, Section 1, Management Rights (emphasis added). This article further states: “The listing of specific rights in this Article is not intended to be nor should be considered restrictive or a waiver of any of the rights of management not listed and not specifically surrendered herein whether or not such rights have been exercised by the Employer in the past.” Article 2, Section 2.
A public employer’s management rights must be distinguished from the rights of a private employer whose managers may totally bargain away their power. County of Centre v. Musser, 519 Pa. 380, 548 A.2d 1194 (1988). In Musser, two prison guards were discharged for physically assaulting an inmate of a county prison. The arbitrator found that the prison guards’ conduct constituted just cause for discipline. However, the arbitrator went on to find that the conduct did not rise to a level which justified discharge and reinstated the prison guards, imposing a four week period of suspension. Chief Justice Nix, writing on behalf of the supreme court, in affirming a decision of the Commonwealth Court which reversed the arbitrator’s decision, concluded that:
The plain language of the Agreement’s disciplinary provisions points to a conclusion that employee discipline, as a general matter, was to remain within the exclusive power *96of management____ The arbitrator’s power regarding disciplinary decisions is carefully circumscribed [by the Agreement]: he is restricted to deciding whether or not the requisite factual predicate exists for the imposition of discipline, and whether the disciplinary measures selected by the employer is in accordance with the terms of the Agreement.
Musser, 519 Pa. at 894, 548 A.2d at 1201. Once the arbitrator found that just cause existed for the employer to discipline the prison guards, he exceeded his authority by substituting his own discipline for that of the employer.
Similarly in Philadelphia Housing Authority v. Union of Security Officers #1, 500 Pa. 213, 455 A.2d 625 (1983), the supreme court vacated the decision of an arbitrator, which reinstated a security guard who had defrauded an elderly person who lived in a housing project where the security guard worked. Chief Justice Roberts, writing for the supreme court, held that:
Having found that [the security guard] had defrauded an elderly tenant and then lied about his conduct, the arbitrator was without authority to overturn the Authority’s discharge of [the security guard]. As the arbitrator’s decision to reinstate [the guard] was unjustified by any terms that were or could have been contemplated by the parties to the collective bargaining agreement ... the award of the arbitrator [must be] vacated.
Philadelphia Housing Authority, 500 Pa. at 217, 455 A.2d at 627.
In the present case, the Agreement clearly reserves the selection of personnel to the exclusive power of management. Article 2 of the Collective Bargaining Agreement. This power must include not only the power to hire employees but also to decide if a past decision to hire an employee was unlawful. The arbitrators’ conclusions that the Auditor General lacked the power to rid the Department of the products of political corruption were unjustified by any terms that were or could have been contemplated by the parties to the collective bargaining agreement.
*97The Auditor General terminated the employees based on a determination that the employees were illegally hired. The arbitrators were limited to determining whether the employees were in fact illegally hired. Once the arbitrators found the reason for the discharges were factually correct, the matter fell within the exclusive management rights of the Auditor General, and the arbitrators had no further authority to determine the proper resolution of the matter.
The arbitrators’ reinstatements of the employees infringed upon the right of the Auditor General, which was reserved by the Department under the collective bargaining agreement. These infringements by the arbitrators constitute excesses of authority which our supreme court has not permitted.
Additionally, I must disagree with the majority’s conclusion that the employees have a property interest in their employment created by the collective bargaining agreement. A collective bargaining agreement is a contract between an employer and a certified representative of the employees which establishes the terms and conditions of employment. However, the agreement is not a contract of employment. “No one has a job by reason of a [collective bargaining agreement] and no obligation to any individual ordinarily comes into existence from it alone.” J.I. Case Co. v. National Labor Relations Board, 321 U.S. 332, 335, 64 S.Ct. 576, 579, 88 L.Ed. 762 (1944).
No individual employee has a right under a collective bargaining agreement unless, the employee has an initial legal claim to his or her employment. Here, the employees have no legal claim to their employment because they were initially employed as part of an illegal job-buying scheme. Consequently, the collective bargaining agreement granted them no right to continue in their employment because at its inception their employment was tainted.
Accordingly, I would vacate the arbitrators’ awards and uphold the discharges.