         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Allegheny County,                      :
                    Appellant          :
                                       :
             v.                        :
                                       :
United Steel, Paper and Forestry,      :
Rubber, Manufacturing, Energy,         :
Allied Industrial, and Service Workers :    No. 527 C.D. 2018
International Union, AFL-CIO, CLC      :    Argued: February 11, 2019



BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE ANNE E. COVEY, Judge (P.)
            HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                     FILED: March 13, 2019


            Allegheny County (County) appeals from the March 13, 2018 order of
the Court of Common Pleas of Allegheny County (trial court) affirming an
arbitration award which found that the County violated a collective bargaining
agreement (CBA) by assigning to certain Allegheny County Jail employees work
that was inconsistent with primary assignments in the absence of emergent
circumstances. Upon review, we affirm.
            The County and the United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial, and Service Workers International Union,
AFL-CIO, CLC (Union) are parties to a CBA governing the terms and conditions of
employment for a unit of County employees (Unit) providing health care services at
the Allegheny County Jail. See CBA at 1-41, Reproduced Record (R.R.) at 143-83.
The Union is the exclusive bargaining representative for the Unit, which the CBA
defines as “a group of County employees comprised of all permanent full-time and
regularly scheduled part-time employees rendering healthcare services and/or
support services associated with the rendering of health care services at [the]
Allegheny County Jail, but excluding medical doctors, dentists, supervisors, first
level supervisors, management and confidential employees as defined in [the Public
Employe Relations Act (PERA)].”1 CBA at 1-2, R.R. at 143-44. The CBA
establishes a grievance procedure to resolve any “alleged breach or violation of this
Agreement or a dispute [a]rising out of the interpretation or application of the
provisions of this Agreement,” providing for arbitration as a last resort in accordance
with Section 903 of the PERA, 43 P.S. § 1101.903. CBA at 2-4, R.R. at 144-46.
Pursuant to the CBA, “[t]he decision of the arbitrator shall be in writing, final and
binding on the matter grieved in accordance with the terms of Section 903 of [the
PERA].” CBA at 4-5, R.R. at 146-47.
               The present dispute pertains to the scope of the County’s authority
under Article VIII of the CBA to assign work to employees who have been awarded
primary assignments. Arbitration Award at 1-2, R.R. at 2-3. The CBA indicates
that a primary assignment is an assignment to a “specific work area” in the jail. CBA
at 8, R.R. at 150. With regard to mental health specialists, Article VIII(1)(C)(1) of
the CBA provides that “the County shall establish one (1) Primary Assignment in
each of the following work locations:” Intake, Sick Call and Mental Health Units.
CBA at 8-9, R.R. at 150-51. The grievant in the dispute is a County employee at the
Allegheny County Jail who bid for and was awarded the primary assignment of

      1
          Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101–1101.2301.

                                               2
“Mental Health Specialist – Intake during the dayshift.” Arbitration Award at 1,
R.R. at 2. The County subsequently issued a post order2 detailing the required duties
for this assignment, which contained “several duties not related to intake” and were
“generally not performed in the intake area of the [jail].” Arbitration Award at 1,
R.R. at 2. The Union filed a grievance alleging that the post order violated Article
VIII, Section 1, subsections (B) and (C)(1), as well as “[a]ny and all that apply” on
the basis that the “[a]dditional duties added to [p]rimary [a]ssignments . . . were not
negotiated” and that “[t]he [mental health employees] are doing each other’s work
which negates the purpose of having a [p]rimary [a]ssignment.”                      County of
Allegheny, Official Grievance Form, R.R. at 190. The County denied the grievance
and refused to modify the post order. Arbitration Award at 1, R.R. at 2. Unable to
resolve the dispute, the parties submitted the matter for arbitration. Arbitration
Award at 2, R.R. at 3.
              Before the arbitrator, the Union contended that the County violated the
CBA when it assigned duties that were inconsistent with the grievant’s primary
assignment in the absence of exigent circumstances. Arbitration Award at 3-4, R.R.
at 4-5. The Union “assert[ed] that the duties contained in these post orders [fell]
within the purview of a different assignment[,] which result[ed] in employees . . .
being pulled away from their primary assignment despite the absence of emergent
circumstances.” Arbitration Award at 3-4, R.R. at 4-5. “Accordingly, the Union
request[ed] that the grievance be sustained and the County cease and desist from
assigning regular duties to employees . . . that are outside of their primary
assignment, except for emergent circumstances.” Arbitration Award at 4, R.R. at 5.
In response, the County asserted “that it retains the right under Article VIII Section

       2
         Although the CBA does not define “post order,” the arbitration award indicates that post
orders “detail[] required duties for a given assignment.” Arbitration Award at 1, R.R. at 2.
                                               3
[(1)](A) to assign duties to employees throughout any area of the [p]rison and to
change schedules and assignments to ensure adequate patient care.” Arbitration
Award at 5, R.R. at 6.
             On July 24, 2017, the arbitrator sustained the grievance and ordered the
County to “cease and desist from assigning duties through post orders or otherwise
to employees . . . that are outside their primary assignment except for emergent
circumstances.” Arbitration Award at 7, R.R. at 8. The arbitrator identified “[t]he
crux of the issue” as disagreement regarding interpretation of the provisions
contained in Article VIII(1)(A), (B) & (C)(1) of the CBA. Arbitration Award at 5,
R.R. at 6. The arbitrator noted that “[n]ot every employee has a primary assignment,
and that “[i]t is undisputed on the record that at most one primary assignment per
worker per shift is the norm.” Arbitration Award at 5, R.R. at 6. The arbitrator
further noted that “[e]mployees who are awarded primary assignments are usually
the most senior employees who have gained experience in a variety of areas and
have obtained core competencies in those areas for which they are assigned.”
Arbitration Award at 6, R.R. at 7. The arbitrator explained that “for those employees
without a primary assignment, the County retains broad discretion under . . . Article
VIII[(1)](A) to assign duties throughout different areas of the [jail].” Arbitration
Award at 5-6, R.R. at 6-7.
             The arbitrator also noted that “the Management Rights clause set forth
in Article XVII of the CBA must be reconciled with the ‘emergent circumstances’
language in Article VIII[(1)](C) of the CBA.” Arbitration Award at 6, R.R. at 7.
The arbitrator determined that “[t]he word ‘emergent’ means arising unexpectedly;
an urgency.” Id. The arbitrator found that “[the] post order for the [g]rievant
contain[ed] duties that would pull the [g]rievant from her primary assignment


                                         4
despite the lack of emergent circumstances.” Id. Thus, the arbitrator found that “the
County violated Article VIII[(1)](C) of the CBA[.]” Id.
             The arbitrator further explained that although “Article VIII, Section 1,
subsections (A) and (B)[] create a general rule that the County can assign duties in
a way that is reasonably necessary for patient care and efficient operations[,] . . .
subsection (C) creates a clear exception to that general rule for employees who bid
for and are awarded primary assignments.” Id. The arbitrator explained as follows:


             In the instant case, the Union and the County mutually
             agreed in the CBA to a procedure whereby the most senior
             employees could bid for primary assignments in the area
             they felt most comfortable in or best suited for. These
             primary assignments are delineated in the table described
             in Article VIII[(1)](C) of the CBA. If the arbitrator were
             to conclude that the County has the unfettered discretion
             to assign employees by post order to any area in the [jail]
             regardless of their primary assignment, it would nullify the
             “emergent circumstances” language set forth in Article
             VIII[(1)](C) of the CBA. Further, such a finding would
             also violate the constraint imposed on the arbitrator in
             Article III[(4)](C) of the CBA[, pursuant to which] . . . .
             [t]he arbitrator is authorized only to clarify and interpret
             the express terms, provisions or clauses of this Agreement
             and does not have the authority to enlarge, alter, modify,
             delete or change the express terms, provisions or clauses
             of this Agreement.


Arbitration Award at 6-7, R.R. at 7-8. Thus, the arbitrator sustained the grievance
and ordered the County “to cease and desist from assigning duties through post
orders or otherwise to employees . . . that are outside their primary assignment except
for emergent circumstances.” Arbitration Award at 7, R.R. at 8.


                                          5
               On August 23, 2017, the County filed a petition to vacate the arbitration
award with the trial court. Petition to Vacate, Modify or Amend Arbitrator’s Award
at 1-6, R.R. at 9-14.3 The Union filed its answer on November 14, 2017. R.R. at
15-21. On March 13, 2018, upon reviewing the arbitration award under the “essence
test,”4 the trial court issued an order denying the County’s petition and affirming the
arbitration award. Trial Court Order, R.R. at 127. The trial court found that there
was no contention that the issue was properly defined within the terms of the CBA
and that “the [a]rbitrator’s decision [is] rationally derived from [the] CBA.” Id.
               Before this Court, the County argues that the arbitrator’s award fails to
comport with the essence test and should be reversed. County’s Brief at 8 & 19.
The County contends that “[t]he parties explicitly contracted to retain the Allegheny
County Jail’s managerial prerogative to change schedules and assignments
notwithstanding any other provisions [in the CBA].” Id. at 19 (internal quotation
marks omitted). To support this assertion, the County cites Article VIII(1)(A) of the
CBA:

               Notwithstanding any other provision in this Agreement,
               the County has the right to establish work schedules and
               starting times and to change schedules and assignments as
               reasonably necessary for patient care and efficient
               operations.

Id. at 13 (quoting CBA at 8, R.R. at 150). The County asserts that “[a]n arbitrator’s
interpretation of a CBA is guided by general contract construction principles,” such

       3
         Although titled a Petition to Vacate, Modify or Amend Arbitrator’s Award, the County
only requests that the trial court vacate the arbitrator’s award. See Petition at 4 & 6, R.R. at 12 &
14.
       4
        See State Sys. of Higher Educ. (Cheyney Univ.) v. State Coll. Univ. Prof’l Ass’n (PSEA-
NEA), 743 A.2d 405 (Pa. 1999) and discussion infra p.11.

                                                 6
that interpretation of a CBA “requires a consideration of the entire [agreement] to
decipher its intent.” Id. at 18 n.4 (quoting Am. Fed’n of State, Cty., & Mun. Emps.,
Dist. Council 87 v. County of Lackawanna, 102 A.3d 1285, 1291 (Pa. Cmwlth. 2014)
(citation omitted)). The County further contends that interpreting a CBA requires
“that no provision of a contract should be treated as surplusage or redundant if any
reasonable meaning consistent with other parts of the agreement can be given to
it[.]” Id. at 18 (quoting Wyo. Valley W. Sch. Dist. v. Nw. Sch. Dist., 695 A.2d 949,
953 (Pa. Cmwlth. 1997) (citation omitted)). With these principles in mind, the
County asserts that the arbitrator’s determination that employees may only be
assigned work that is inconsistent with primary assignments in the event of emergent
circumstances “render[s] Article VIII(1)(A) nothing more than meaningless
surplusage,” and “cannot be said to be rationally derived from the CBA[.]” Id. at
19.
             The County also cites Section 702 of the PERA to support its contention
that it retained the assignment of employees’ duties as a managerial prerogative,
stating, “[p]ublic employers shall not be required to bargain over matters of inherent
managerial policy, which shall include but shall not be limited to such areas of
discretion or policy as the . . . selection and direction of personnel.” Id. at 10 (quoting
Section 702 of the PERA, 43 P.S. § 1101.702). In addition, the County relies upon
Department of Corrections, State Correctional Institution at Forest v. Pennsylvania
State Correctional Officers Association, 173 A.3d 854 (Pa. Cmwlth. 2017), in
support of its assertion that “the Allegheny County Jail unequivocally retained its
managerial prerogative to assign work as needed and to modify work
assignments[.]” County’s Brief at 13.




                                            7
             Further, the County cites Article XVII(2) of the CBA, which provides
that “[e]mployees will comply with County rules, regulations and policies as adopted
or revised and will perform all duties as assigned.” Id. at 14 (quoting CBA at 23,
R.R. at 165). The County contends that “[t]his authority is reiterated within the job
description for the position in question,” which placed applicants on notice that they
would be required to “[p]erform[] other duties as assigned.” Id. at 13-14 (citing
Allegheny County Job Announcement at 1, R.R. at 192). The County also cites
Article VIII(1)(B) of the CBA, which provides as follows:


             Both parties agree that continuity of care plays an
             important role in the delivery of patient care and also agree
             that employees shall work in a variety of areas in order to
             assure that patient needs can be accommodated in
             changing circumstances . . . . In recognition to [sic] the
             parties joint objectives outlined in subsection 1(B), the
             County will exercise reasonable efforts to regularly
             schedule fulltime and part-time employees to a specific
             work area (Primary Assignment) in accordance with
             required qualifications, preference and seniority.

Id. at 16 (citing CBA at 8, R.R. at 150). According to the County, “[t]his clause
establishes the understanding and intention of the parties” that the County “is to
exercise reasonable efforts to regularly schedule employees who have bid primary
assignments to a specific work area,” and that “[t]his is not to be construed as an
absolute.” Id. The County maintains that “the parties recognized that primary
assignments are not contractual mandates, and that “[e]mployees who bid a primary
assignment may be moved in order to ensure familiarity with other areas of the jail.”
Id. at 17. The County contends that it must only make a “reasonable effort” to adhere
to primary assignments and that employees do not possess “an unalienable right to


                                          8
a primary assignment.” Id. The County maintains that “[n]othing within this CBA
suggests that the Primary Assignment constitutes the sole or only assignment an
employee may be given,” but that “[t]o the contrary, the clear language of the CBA
provides that there will be assignments outside the scope of the primary assignment.”
Id.
             According to the County, “[a]ny interpretation which limits the
authority of the Allegheny County Jail effectively negates the explicitly granted
authority bargained for by the parties.”        Id.   The County reasons that “[t]he
[a]rbitrator’s interpretation of ‘primary’ as ‘absolute and final’ creates this irrational
result,” and that, “[b]y definition, a primary assignment implies the existence of
secondary or tertiary positions which at times an employee may be required to
work.” Id. at 19. The County asserts that “[i]t is in this aspect that the arbitrator has
gone beyond a rational interpretation to deny all parties their bargained for benefits.”
Id. Thus, the County contends that “[t]he arbitrator has rendered provisions of [the
PERA and the CBA] meaningless in order to prohibit the assignment of additional
duties to these employees,” such that the arbitrator’s “decision cannot be said to draw
its essence from and/or [be] rationally derived from the CBA.” Id. at 20.
             The Union argues that “[t]he decision of the [trial court] confirming the
[a]rbitration [a]ward should be affirmed,” because “[t]he [a]rbitration [a]ward
addressed specific terms of the [CBA]” and “the interpretation of the [a]rbitrator is
rationally derived from the terms of the [CBA]” to which “the parties had mutually
agreed[.]” Union’s Brief at 16. The Union contends that “the County seeks to
relitigate the facts presented to [the] [a]rbitrator . . . during the arbitration hearing
and to get this Honorable Court to second guess the arbitrator’s construction of the
clauses of the [CBA].” Id. at 11. The Union contends that “the [a]rbitrator[,] in


                                            9
finding the grievance meritorious, addressed specific terms of the [CBA].” Id. at 12.
The Union cites Pennsylvania State System of Higher Education v. Association of
Pennsylvania State College and University Faculties, 98 A.3d 5 (Pa. Cmwlth. 2014)
for support, contending that “[t]he university made the same argument that the
County offers [i]n this appeal,” and that “[t]he Court rejected those arguments[.]”
Union’s Brief at 14. Further, the Union maintains that the County’s interpretation
of the CBA “would render the ‘emergent circumstances’ language set forth in Article
VIII[(1)](C) of the [CBA] a nullity, while leading the [a]rbitrator to violate Article
III(4)(C)[,] . . . which prohibits the [a]rbitrator from changing express terms of the
[CBA].” Id. at 16.
             Appellate review of a grievance arbitration award is conducted
pursuant to the two-part “essence test”:


              First, the court shall determine if the issue as properly
             defined is within the terms of 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 [CBA].
             That is to say, a court will only vacate an arbitrator’s award
             where the award indisputably and genuinely is without
             foundation in, or fails to logically flow from, the collective
             bargaining agreement.

State Sys. of Higher Educ. (Cheyney Univ.) v. State Coll. Univ. Prof’l Ass’n (PSEA-
NEA), 743 A.2d 405, 413 (Pa. 1999). Thus, “[a]n arbitrator’s award must be
sustained ‘if it is based on anything that can be gleaned as the ‘essence’ of the
[CBA].’” Pa. State Sys. of Higher Educ., 98 A.3d at 14 (quoting Am. Fed’n of State,
Cty. & Mun. Emps., Dist. Council 84, AFL–CIO v. City of Beaver Falls, 459 A.2d


                                           10
863, 865 (Pa. Cmwlth. 1983)). Further, “[t]he essence test does not permit this Court
to vacate an arbitrator’s award even if we disagree with the arbitrator’s interpretation
of the CBA.” Dist. Council 87, 102 A.3d at 1290 (citing Cent. Susquehanna
Intermediate Unit Educ. Ass’n v. Cent. Susquehanna Intermediate Unit # 16, 459
A.2d 889, 890 (Pa. Cmwlth. 1983)). “The essence test is an exceptionally deferential
standard, because binding arbitration is a highly favored method of dispute
resolution.” Forest, 173 A.3d at 858 (citing Northumberland Cty. Comm’rs v. Am.
Fed’n of State, Cty. & Mun. Emps., AFL–CIO Local 2016, Council 86, 71 A.3d 367,
374 (Pa. Cmwlth. 2013)). The party challenging an arbitration award bears the
“burden of proving the award does not draw its essence from the CBA.” See Pa.
State Sys. of Higher Educ., 98 A.3d at 14.
             As noted by the arbitrator, this case hinges on the interpretation of
certain provisions of Article VIII of the CBA in order to resolve the question of
whether the County may assign duties to employees that are inconsistent with
primary assignments in the absence of emergent circumstances.             The County
essentially argues that Article XIII(1)(A) of the CBA secures nearly unconditional
authority to do so. The arbitrator found, however, that Article VIII, Section 1,
subsections (A) and (B) create a general rule, to which subsection (C) is a “clear
exception” for employees with primary assignments. Arbitration Award at 6, R.R.
at 7. Upon review of the relevant provisions of the CBA, we find that the arbitrator’s
award is rationally derived therefrom and, therefore, affirm.
             A recent decision of this Court concerning a similar question is
instructive. In Pennsylvania State System of Higher Education, the Pennsylvania
State System of Higher Education, Kutztown University (University), petitioned for
review of a grievance arbitration award finding that the University violated the


                                          11
parties’ CBA by assigning librarians the task of providing academic advice to
students. Pa. State Sys. of Higher Educ., 98 A.3d at 7. The University argued,
similar to the County here, that the arbitrator “disregarded its managerial rights.” Id.
The arbitrator determined that the CBA did not “[give] a right to management to
assign librarians the duty of providing students academic advice,” but instead
“established . . . advising students [as] a contractual duty of the teaching faculty.”
Id. at 11. The arbitrator reached this conclusion even though the CBA cited Section
702 of the PERA, stating that “matters of inherent managerial policy are reserved
exclusively to the state system/universities,” and that these “include but shall not be
limited to . . . the . . . selection and direction of personnel.” Id. at 12. In affirming
the arbitrator’s award, we explained:


             [T]he PERA does not obligate a public employer to
             negotiate matters of “inherent managerial policy.”
             Pennsylvania Turnpike Commission v. Teamsters Local
             Union No. 77, 87 A.3d 904, 910 (Pa. Cmwlth. 2014).
             However, “if a public employer chooses to do so, absent
             contrary positive legislation, it is bound by the terms of a
             CBA.” Id. (quoting Coatesville Area School District [v.
             Coatesville Area Teachers’ Ass’n/Pa. State Educ. Ass’n],
             978 A.2d [413,] 417 [(Pa. Cmwlth. 2009)]).

Id. at 13 (brackets omitted). Thus, we affirmed the arbitrator’s “determin[ation] that
the CBA limited [the] University from assigning the task of advising students to any
of its employees other than teaching faculty.” Id.       Further, we noted that “[t]he
[a]rbitrator analyzed the CBA in its entirety,” citing “a number of provisions in the
CBA and offer[ing] a reasonable construction of them.” Id. at 14.
              In the matter sub judice, the County seems to imply by citing Section
702 of the PERA that it could not possibly have agreed to limit its authority to

                                           12
determine employees’ assignments, because such a matter is not bargainable.
However, as we have held previously, where, as here, a public employer elects to
bargain over a matter of inherent managerial policy, it is bound by the negotiated
terms of the CBA.5 See id. at 13. As the trial court stated, “[t]o rule in favor of the
[County] here would allow [it] to change the terms of the negotiated agreement.”
Trial Court Opinion at 7, R.R. at 135. Further, we note that the County’s reliance
on Forest in support of its assertion that it retained a managerial prerogative to
modify primary assignments in the absence of emergent circumstances is misplaced,
as that case did not involve whether the Department of Corrections bargained over
and, therefore, limited an alleged matter of inherent managerial policy. See Forest,
173 A.3d at 860.
              Further, the County’s contention that the job description reinforces its
authority is meritless, as our review under the essence test is confined to whether the
arbitrator’s interpretation logically flows from the CBA. Moreover, we find that the
contract construction principles invoked by the County in fact support the
arbitrator’s interpretation of the CBA. Whereas the County’s interpretation of
Article VIII(1)(A) as providing for nearly unlimited authority over employee
assignments essentially renders the “emergent circumstances” provision of Article
VII(1)(C)(1) meaningless, the arbitrator’s decision harmonizes the two provisions
by discerning that the former sets forth the general rule to which the latter creates a
specific exception for employees who bid for and are awarded primary assignments.
Further, the arbitrator’s reconciliation of these two provisions is in accord with the
rule of contract construction that “where there is a repugnancy, a general provision

       5
         We note that we need not opine as to whether the County’s issuance of post orders that
were inconsistent with primary assignments in fact constitutes the exercise of a managerial
prerogative for purposes of Section 702 of the PERA. Having negotiated the matter, the County
is bound by the resulting CBA provisions. See Pa. State Sys. of Higher Educ., 98 A.3d at 13.
                                              13
in a contract must give way to a special one covering the same ground.” Harrity v.
Cont’l-Equitable Title & Tr. Co., 124 A. 493, 495 (Pa. 1924) (citations omitted).
Thus, because the arbitrator analyzed the CBA in its entirety and offered a
reasonable construction of its provisions, we find that its award logically flows from
the essence of the CBA. See Pa. State Sys. of Higher Educ., 98 A.3d at 14.
             Accordingly, we affirm the decision of the trial court affirming the
decision of the arbitrator and denying the County’s petition to vacate the arbitration
award.


                                       __________________________________
                                       CHRISTINE FIZZANO CANNON, Judge




                                         14
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Allegheny County,                      :
                    Appellant          :
                                       :
             v.                        :
                                       :
United Steel, Paper and Forestry,      :
Rubber, Manufacturing, Energy,         :
Allied Industrial, and Service Workers :   No. 527 C.D. 2018
International Union, AFL-CIO, CLC      :




                                  ORDER


            AND NOW, this 13th day of March, 2019, the March 13, 2018 order
of the Court of Common Pleas of Allegheny County is AFFIRMED.




                                    __________________________________
                                    CHRISTINE FIZZANO CANNON, Judge
