          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


County of Allegheny, Pennsylvania, :
                  Appellant        :
                                   :
            v.                     : No. 744 C.D. 2016
                                   : ARGUED: April 6, 2017
Allegheny County Prison            :
Employees Independent Union        :


BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE HEARTHWAY                          FILED: July 13, 2017

             The County of Allegheny (County) appeals from the March 28, 2016,
order of the Court of Common Pleas of Allegheny County (trial court), which
denied the County’s Petition to Vacate Arbitration Award and affirmed the
arbitrator’s award in all respects. Relevant here is that portion of the arbitrator’s
award stating that the County cannot award Samuel Pastore (Pastore) work
schedules or pass days that have been denied to more senior members of the
bargaining unit. We affirm.


             The County and the Allegheny County Prison Employees Independent
Union (Union) are parties to a collective bargaining agreement (CBA).
(Arbitrator’s opinion (Arb. op.) at 3.) Pastore has been employed as a Corrections
Officer with the County since 1995. In 2007, Pastore suffered a work-related
injury, and as a result, the County provided him with a light duty position as a
security camera monitor and, subsequently, with a light duty position in Internal
Affairs. Pastore was designated as a “Floater,” and he subsequently bid on and
was granted an ongoing Monday to Friday 7:00 a.m. to 3:00 p.m. shift with
Saturday/Sunday as his pass days, or days off. (See Arb. op. at 3.)


               Article XXVIII of the CBA sets forth the bidding process. Floaters
may be assigned to work anywhere in the jail. Floaters express a preference (by
listing three choices) for a particular shift and pass days but are not guaranteed to
receive them. Seniority governs the shifts and pass days awarded to Floaters.1
(Arb. op. at 1-2, quoting Arbitrator W. Timothy Barry 1/13/14 op.; see CBA, Art.
XXVIII.)




       1
           Article XXVIII sets forth the bidding process. First are “bid jobs” which are identified
in the CBA. The officers bid on a particular job and each job has a particular shift and
designated pass days. A list of bid jobs is posted monthly and each job is awarded based on
seniority. Second are “level bids” in which officers bid to work jobs on a particular level of the
jail. Each carries a particular shift and pass days and are also awarded based on seniority. Third
are “bid days” in which officers bid on shifts and pass days but otherwise float throughout the
jail to different assignments. Fourth are Floaters in which officers express a preference for a
particular shift and pass days but are not guaranteed to have it. On the work schedule, a Floater’s
seniority number is listed, followed by his or her shift preference, and pass day preference. The
officer lists his or her name, then a first, second and third choice. Shifts and pass days are
awarded based on seniority. Fifth are “letter bids” which are specific assignments not awarded
by seniority because they require special skills. The positions are identified in the CBA and
officers submit resumes and apply for the positions. (Arb. op. at 1-2, quoting Arbitrator W.
Timothy Barry 1/13/14 op.; see CBA, Art. XXVIII.)
        Before the Arbitrator, the County argued that the bidding process was merely a statement
of preference. The Arbitrator rejected that argument, and the County does not renew that
argument before this Court.


                                                2
               On March 9, 2014, the Union filed a grievance alleging a violation of
Article XXX (concerning light duty) and requested that Pastore be removed from
Internal Affairs and be assigned pass days by seniority.2 (Reproduced Record
(R.R.) at 183.)3 Ultimately, the case was assigned to arbitrator Mark McCloskey
(Arbitrator), and an arbitration hearing was held, at which both parties presented
evidence.


               Before the Arbitrator, the parties raised multiple arguments. Only
those relevant to the issues raised before us will be recounted. The Union argued
that the issue concerning the assignment of work schedules and pass days was a
matter of seniority. The Union maintained that Pastore’s light duty status did not
entitle him to bypass the bidding process and that no other light duty designated
personnel have received such preferential treatment. The County, on the other
hand, asserted that the creation and implementation of light duty is a managerial
prerogative, and therefore is not subject to the grievance procedure. The County
also argued that the grievance was not filed in a timely manner because Pastore’s
pass day schedule was modified in 2007, and the grievance was not filed until
seven years later.


               On February 2, 2015, the Arbitrator issued his opinion and award
(Award) sustaining the grievance, and stated that the County cannot award Pastore


       2
           The grievance also requested that Pastore not be given free parking; however, that issue
is not before us.
         3
           The County did not number the pages in the Reproduced Record in the manner required
by Pa. R.A.P. 2173, which requires the page numbers to be followed by a small “a.” We will
cite to them as the County does to avoid confusion.


                                                3
work schedules or pass days that have been denied to more senior members of the
bargaining unit. The Arbitrator acknowledged that the County has a right to create
and implement a light duty program as a managerial prerogative, but stated that
right was not being challenged by the Union and was not at issue. The Arbitrator
found that Pastore was designated as a Floater and that the County granted him a
Monday through Friday, 7:00 a.m. to 3:00 p.m. work schedule with
Saturday/Sunday pass days. (See Arb. op. at 8.) The Arbitrator found that light
duty assignments are possible regardless of shift, level or pass days. (Arb. op. at
8.) The Arbitrator noted the Union’s evidence, including the schedule for the week
of March 9, 2014, and found that the County ignored the seniority status of union
members and did not adhere to the established bidding process. In particular, the
County had granted the Monday through Friday, 7:00 a.m. to 3:00 p.m. work
schedule with Saturday/Sunday pass days to Officer Pastore when Officer
Lawrence Reilly and Officer David Isenberg both had greater seniority than
Pastore and should have been granted their bids before Pastore on that schedule.
The Arbitrator noted that the grievance sought to remove Pastore from his position
in Internal Affairs, but stated that the Award does not necessarily preclude Pastore
from performing duties in Internal Affairs.


            The County appealed to the trial court, which issued an order denying
the County’s Petition to Vacate Arbitration Award and affirming the Arbitrator’s
Award in all respects. Subsequently, the trial court issued an opinion in support of
its order. The County now appeals to this Court.




                                         4
             This Court's standard of review of a grievance arbitration award is one
of deference to the award, and our scope of review is the essence test. Slippery
Rock University of Pennsylvania, Pennsylvania State System of Higher Education
v. Association of Pennsylvania State College and University Faculties, 916 A.2d
736 (Pa. Cmwlth. 2007). Under the essence test,

             the award must be upheld if: (1) the issue as properly
             defined is within the terms of the collective bargaining
             agreement; and (2) the arbitrator's interpretation can
             rationally be derived from the collective bargaining
             agreement. An arbitrator's award will be vacated only if
             it ‘indisputably and genuinely is without foundation in, or
             fails to logically flow from, the collective bargaining
             agreement.’ The test is not whether the reviewing court
             agrees with the arbitrator's interpretation of the collective
             bargaining agreement but whether the arbitrator's
             interpretation and application of the agreement can be
             reconciled with the language of the agreement.

Department of Corrections, State Correctional Institution at Pittsburgh v.
Pennsylvania State Corrections Officers Association, 56 A.3d 60, 64 (Pa. Cmwlth.
2012) (citation omitted). The essence test is subject to a narrow exception that
allows a court to vacate an arbitrator's award if it violates the public policy of the
Commonwealth.        Westmoreland Intermediate Unit #7 v. Westmoreland
Intermediate Unit #7 Classroom Assistants Educational Support Personnel
Association, PSEA/NEA, 939 A.2d 855 (Pa. 2007). “Such public policy, however,
must be well-defined, dominant, and ascertained by reference to the laws and legal
precedents and not from general considerations of supposed public interests.” Id.
at 866.




                                          5
              The County first argues that the Arbitrator’s determination that the
CBA’s bidding process applied to the County’s assignment of light duty positions
does not draw its essence from the CBA. The County maintains that the alleged
violations are explicitly excluded from the arbitration process because the CBA’s
grievance procedure excludes any matter reserved to the County by authority of
law. The County points out that the Public Employe Relations Act 4 (PERA) does
not require that light duty programs be negotiated, and that the County retains a
managerial prerogative to create and implement light duty programs. The County
further maintains that the managerial prerogative extends to include those
tangential terms and conditions of employment which might otherwise constitute
bargainable terms, such as the assignment of light duty shift and pass days here.5
Accordingly, the County contends that this matter is not arbitrable and that the
Arbitrator exceeded his jurisdiction by addressing this issue.


              The Union, on the other hand, accepts that the creation of light duty
assignments are managerial prerogatives and that a unilateral decision to assign a
light duty position to an employee is within said prerogative. However, the Union
maintains that the specific light duty assignment here violates the terms of the
CBA concerning shift assignments. The Union argues that, pursuant to the CBA, a
Floater needs seniority in order to hold particular pass days.

       4
         Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101 – 1101.2301.
       5
         In support of this argument, the County relies on this Court’s unreported opinion in
York County Prison v. International Brotherhood of Teamsters, Local 776, (Pa. Cmwlth., 2143
C.D. 2006, filed January 30, 2008). Unreported opinions of this Court may be cited for their
persuasive value only. 210 Pa. Code § 69.414. More importantly, as will be explained later,
York is distinguishable, because the language of the CBA concerning managerial prerogative
here significantly differs from that in York.


                                             6
             “[T]he creation of a light duty program is an exercise of managerial
prerogative, and therefore is not subject to mandatory bargaining.” Teamsters
Local 77 & 250 v. Pennsylvania Labor Relations Board, 786 A.2d 299, 304 (Pa.
Cmwlth. 2001). However, “while PERA does not obligate a public employer to
negotiate matters of ‘inherent managerial policy’ …, if a public employer chooses
to do so, absent contrary positive legislation, it is bound by the terms of a CBA.”
Pennsylvania State System of Higher Education v. Association of Pennsylvania
State College & University Faculties, 98 A.3d 5, 13 (Pa. Cmwlth. 2014) (quotation
marks and citations omitted).


             Here, Article III of the CBA defines a grievance as “[a]ny complaint
alleging any breach, misapplication or violation of any of these Agreement
provisions” subject to the following restriction:

                 Any complaint over any matter or action not
                 addressed in these Agreement provisions, specifically
                 excluded by any terms thereof, or reserved to the
                 County by authority of any law or public policy
                 thereon, shall not be subject to any of the Grievance
                 Procedure applications of these Article III such
                 provisions.
(Art. III, 1.A., 2.A.) In addition, Article XV of the CBA, notably entitled “Manage
Rights,” provides:

                    The County retains and reserves unto itself all
                 inherent, statutory and other powers, rights, authority,
                 duties and responsibilities of its management status—
                 including but not limited to those of operating,
                 manning and securing its facilities, hiring,
                 scheduling, directing, supervising and, for just cause,
                 disciplining and discharging its employees—which
                 are not expressly modified or restricted by any

                                          7
                   specific and enforceable terms or conditions of these
                   Agreement provisions.

(emphasis added.) Importantly, the parties here agreed to a limitation on the
County’s managerial prerogative to the extent that such matters are modified or
restricted by the CBA.6 While light duty normally is a managerial prerogative, the



       6
          This is unlike the managerial prerogative provision in York which provided:
                The Management of the County operations and the discretion of
                the working force is vested exclusively in the Employer and
                includes, but is not limited to the right to hire, suspend, discipline
                or discharge for proper cause, or transfer, and the right to relieve
                employees from duty because of lack of work or for other
                legitimate reasons under this Agreement; make and enforce rules
                of conduct; select supervisory and management personnel;
                introduce new or improved methods, equipment or facilities or to
                change existing methods or facilities; determine the total
                employment requirements, hours of work required for a particular
                operation and job assignments and job classification of personnel;
                establish functions, programs, budgets, organizational structure
                and standards of service and performance.
York, slip op. at 7-8 (citations omitted).
                Additionally, County of Allegheny v. Allegheny County Prison Employees
Independent Union, 341 A.2d 578 (Pa. Cmwlth. 1975), is also distinguishable. The County
points out that County of Allegheny involved the same parties as here and that the CBA here
retains the same language quoted in that case; therefore, the County maintains that matters
reserved to the County “by authority of law” are excluded from the grievance procedures.
Notably, in that case, which involved lunch procedures, we stated that if the Union wanted to
escape the provisions concerning leaving certain matters to the discretion of the County and
excluding such matters from the grievance procedure, it was incumbent upon the Union to
negotiate and explicitly reach an agreement on the particular condition. Here, as will be
explained, the parties did that with respect to light duty.
                The other cases cited by the County in its brief are distinguishable as well, and in
some instances, also not binding authority on this Court. Those cases concerned charges of
unfair labor practices and whether the employer had the duty to bargain over a particular matter
or whether the matter constituted a managerial prerogative over which there was no duty to
bargain. Here, however, the parties elected to bargain and agreed to some limitations on the
County’s managerial prerogative as set forth in Articles XV and XXX.


                                                 8
parties negotiated a provision concerning light duty. Specifically, Article XXX of
the CBA, entitled Light Duty, states:

                     All correctional officers regardless of their status
                     (light duty, jail injury, illness or injury) have the right
                     to bid and hold seniority bid jobs, level bids, shift and
                     pass day bids. Once the officer is awarded the bid
                     job and is performing his or her duties, then
                     Appendix “A” #1C will take effect. Officers electing
                     not to take a bid will be afforded the opportunity to
                     express their choice of shift and pass days according
                     to their seniority.

Accordingly, officers who are deemed Floaters, such as Pastore, will be afforded
the opportunity to express their choice of shift and pass days according to their
seniority.7


                 Reviewing the Arbitrator’s Award as we must under the essence test,
we cannot say that it is without foundation in, or fails to logically flow from, the
CBA. The issue is properly defined within the terms of the CBA. Specifically,
with respect to the bidding procedure in Article XXVIII (which includes Floaters)
and with respect to the light duty agreement under Article XXX which allows
“correctional officers regardless of their status … to express their choice of shift
and pass days according to their seniority,” the CBA does arguably address
Pastore’s light duty position and the assignment of shift and pass days based on
seniority. Importantly, it can be logically said that this aspect of light duty is not
excluded from the grievance procedures by authority of law or as a matter of
managerial prerogative, because the “Manage Rights” provision of the CBA

       7
           See n. 1, supra.


                                               9
contains a limitation on those rights to the extent those rights are modified or
restricted by other provisions of the CBA. Articles XXVIII and XXX address
bidding and light duty, respectively, and modify or restrict the County’s “Manage
Rights.”    Thus, while light duty is a managerial prerogative, here the parties
included a provision in the CBA concerning the particular aspect of how shift and
pass days would be assigned for a Floater on light duty. As a result, the parties are
bound by the resulting CBA provisions dealing with light duty positions and the
seniority preference specified for Floaters, see Pennsylvania State System, and thus
the issue is within the terms of the CBA.


              The County exercised its managerial prerogative and assigned Pastore
to a light duty position; Pastore was designated as a Floater while holding that
position, and that status did not change.8 Pursuant to the CBA, officers who are
Floaters express a preference for shift and pass days based on seniority. Because
Article XXX provides for correctional officers in a light duty status to express their
choice of shift and pass days according to their seniority and because Article
XXVIII allows Floaters to express their preference for pass days which are
awarded based on seniority, the CBA arguably addresses the situation of assigning
shift and pass days to a Floater on light duty and subjects that situation to the
seniority bidding process. Thus, the Arbitrator’s Award, which relies on these
provisions, is rationally derived from the language of the CBA. Moreover, the
Arbitrator’s Award does not direct the County to cease assigning Pastore the light


       8
         Light duty assignments are possible regardless of shift, level or pass days. Thus, light
duty is not unique to Saturday/Sunday pass days, and there is nothing preventing the County
from exercising its managerial prerogative and assigning Pastore to a light duty position.


                                               10
duty position, nor does it necessarily eliminate Pastore’s Saturday/Sunday pass
days. Rather, the Award directs the County to cease assigning Pastore work
schedules or pass days while denying those days to more senior members. The
Arbitrator’s interpretation can be reconciled with the language of the CBA, and it
is not the role of this Court to override that determination by reinterpreting the
CBA. Accordingly, we may not vacate the Award.


              The County also argues that the grievance was untimely. Specifically,
the County maintains that the CBA requires that this type of grievance be filed
within five (5) days of the event complained of, but that the County assigned
Pastore to this light duty position over seven (7) years ago.9 The County contends
that the grievance could have been filed in 2007, and the Union failed to do so.
Therefore, the County maintains that the filing of the grievance more than seven


       9
         The County’s argument does not dispute that the timeliness issue is defined within the
terms of the CBA, which is the first prong of the essence test. Instead, its argument only
challenges the second prong of the essence test, i.e., the Award is not derived from the CBA
because the grievance was not filed within the time limitation set forth in the CBA.
       Article III of the CBA provides:
               [3.A.] Any grievance not challenging any suspension or discharge
               action (which shall be initiated and submitted under the Step 2
               procedures hereof) shall first be discussed with the Shift
               Commander of the employee(s) initiating it within five (5) work
               days following the event or action complained of, or following the
               event or action complained of [sic], or following the date such
               employee(s) had or should have learned of its occurrence in an
               effort to resolve it at that management level.
               …
               [4.A.] It is agreed that any grievance must be presented under the
               procedures of this Article promptly and within the prescribed time
               limitations….
(CBA Art. III 3.A, 4.A.)


                                              11
years beyond the contractually established period cannot draw its essence from the
CBA.10


              On the other hand, the Union states that although the Arbitrator
referred to this as a “continuing violation,” the Arbitrator explained that when a
new schedule is posted a violation occurs again. The Arbitrator also explained that
every day that more senior bargaining unit members work schedules less preferable
(according to the bidding process) than less senior members, the CBA is violated
again. The Union maintains that each newly posted schedule is a new incident-in-
fact, a new decision made by management under new facts and circumstances and
officers that can differ from week to week, and therefore, can be a new violation
that can be separately grieved. Moreover, the Union points out that it does not
seek to challenge any past schedule assignments and is not seeking a retroactive
remedy. It only seeks to remedy those violations from March 9, 2014, forward.


              As stated by the Union and accepted by the Arbitrator, there is the
potential for a new violation each time the schedule is posted depending on
whether a less senior officer’s (Pastore) assignment supersedes another more
senior officer’s preference for the same shift and pass days. Indeed, it is the nature




       10
           The County also makes arguments, which we classify as “fairness” arguments,
including that the Union waived any right to contest the assignment because Pastore allegedly
waived his bidding rights at the Union’s request, and that the Union apparently made an
inconsistent argument in a recent anti-nepotism case. These arguments are irrelevant,
particularly where our role is to determine whether the Arbitrator’s Award satisfies the essence
test.


                                              12
of the Floater position that schedules vary.11 If there are shift and pass days
available in a given week that coincide with a more senior officer’s expressed
preference but that senior officer is denied that shift and pass days, a new violation
occurs based on those unique circumstances. In other words, this alleged violation
is not inescapably grounded upon events that occurred back in 2007 when the
County first assigned Pastore a shift with Saturday/Sunday pass days. Here, the
violation is not solely dependent upon the incident of Pastore being assigned
Saturday and Sunday pass days but also depends on the other officers’ expressed
preference and availability of shifts and pass days.12


       11
           For example, an examination of the schedules offered into evidence shows that for the
week of March 9, 2014, two Floaters (Pastore and Officer Vollberg) were scheduled for
Saturday/Sunday pass days. (R.R. at 191-92.) For the week of March 23, 2014, however,
Officer Vollberg was assigned Friday/Saturday pass days, although his expressed first preference
was the same—Saturday/Sunday pass days, and he had higher seniority than Pastore. Compare
R.R. at 192 with R.R. at 193-94. Thus, while Officer Vollberg would have no grounds for a
grievance such as the one here based on the week of March 9, 2014 schedule, he arguably does
for the week of March 23, 2014 schedule.
        12
           The situation here is different from the cases relied on by the County, where the
employer factually took one action. See Department of Corrections v. Pennsylvania State
Corrections Officers Association, 56 A.3d 60 (Pa. Cmwlth. 2012) (suspension of officers for
indefinite period of time); and City of Allentown, 19 PPER 19123 (Final Order 1998) (unilateral
change in medical insurance plans to continue prospectively and continuously for an unknown
period of time).
        The other cases relied on by the County are distinguishable as well, and some also are not
binding on this Court. See Casner v. American Federation of State, County and Municipal
Employees, 658 A.2d 865 (Pa. Cmwlth. 1995) (concerning loss of payment of wages/benefits
from each paycheck); Zellie v. Department of Corrections, (Pa. Cmwlth., No. 97 M.D. 2011,
filed March 1, 2012) (concerning loss of payment and deductions from inmate accounts based on
prior court order pursuant to section 9728 of the Sentencing Code, 42 Pa. C.S. § 9728, and the
six-month statute of limitations set forth in Section 5522(b)(1) of the Judicial Code, 42 Pa. C.S. §
5522(b)(1)); see also Curley v. Smeal, 41 A.3d 916 (Pa. Cmwlth. 2012) (same), overruled on
other grounds by Morgalo v. Gorniak, 134 A.3d 1139 (Pa. Cmwlth. 2016); Morton Harr v.
Westmoreland County Community College, 45 PPER 85 (January 21, 2014) (finding subsequent
refusals to award overtime were based on initial refusal that employee was not eligible).


                                                13
               Although we acknowledge that the portion of the Arbitrator’s decision
discussing the timeliness of the grievance does not expressly reference the week of
March 9, 2014 schedule, (see Arb. op. at 9), it is apparent from reading the
Arbitrator’s decision in its entirety that this is the operative schedule giving rise to
the grievance.13 (See Arb. op. at 4, 8 (summarizing the Union’s evidence and
setting forth findings and analysis).) As to the schedule for the week of March 9,
2014, there is nothing to indicate that the grievance was not timely. 14 Thus, the
Arbitrator’s decision that the grievance is timely is rationally derived from the
CBA. Accordingly, it satisfies the essence test.


               For the foregoing reasons, we must affirm the trial court’s decision
that denied the County’s Petition to Vacate Arbitration Award and affirmed the
Arbitrator’s Award in all respects.




                                             __________________________________
                                             JULIA K. HEARTHWAY, Judge

Judges McCullough and Wojcik did not participate in the decision of this case.



       13
          Thus, we reject the County’s argument that the trial court improperly performed a de
novo review and engaged in fact-finding when it stated the relevant schedule was posted for
March 9, 2014. Additionally, we note that in our appellate role, this Court must review the
Arbitrator’s Award, and not the trial court’s decision, to determine if the Award’s essence can be
drawn from the CBA.
       14
          The County argues only that the grievance was untimely because it should have been
filed when Pastore was first assigned to the shift in 2007; the County does not contend that the
grievance was untimely if the March 9, 2014 schedule is the operative incident giving rise to the
grievance.


                                               14
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


County of Allegheny, Pennsylvania, :
                  Appellant        :
                                   :
            v.                     : No. 744 C.D. 2016
                                   :
Allegheny County Prison            :
Employees Independent Union        :


                                 ORDER


           AND NOW, this 13th day of July, 2017, the order of the Court of
Common Pleas of Allegheny County is hereby affirmed.




                                   __________________________________
                                   JULIA K. HEARTHWAY, Judge
