           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


City of Erie                              :
                                          :   No. 150 C.D. 2018
               v.                         :
                                          :   Argued: October 16, 2018
General Teamsters Local Union             :
No. 397 (Kelly Kirsch),                   :
                  Appellant               :



BEFORE:        HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge



OPINION BY
JUDGE McCULLOUGH                                           FILED: January 3, 2019


               General Teamsters Local Union No. 397 (Union) appeals from the
January 19, 2018 order of the Court of Common Pleas of Erie County (trial court)
granting the petition of the City of Erie (City) to vacate an arbitration award and
reinstating the City’s termination of the employment of Kelly Kirsch (Grievant).


                             Facts and Procedural History
               The following facts are garnered from the trial court’s and Arbitrator’s
opinions in this matter. Grievant was employed as an operator at the City’s wastewater
treatment facility. (Arbitrator’s op. at 2.) He began this employment part-time in April
of 2004 and later became full-time in September of 2009. Id.
                       2015 Arbitration Opinion and Award
             Grievant was initially terminated from his employment effective March
17, 2015, based on a poor attendance history, multiple warnings, and three days of
consecutive absences beginning on March 14, 2015. (Trial court op., March 16, 2018,
at 1-2.) These absences resulted from Grievant’s arrest and incarceration on charges
of driving under the influence and firearm possession charges. (Id. at 2.) The Union
thereafter filed a grievance on Grievant’s behalf. Id. Following an arbitration hearing
on December 16, 2015, Arbitrator Robert A. Creo issued an opinion and award
concluding that the City did not have just cause to terminate Grievant and directing that
he be reinstated to his former position with full back pay. Id. The City filed a petition
to vacate the arbitration award but the trial court denied the same by order dated
October 14, 2016, and the City did not file a further appeal. (Trial court op., March 16,
2018, at 2-3.)


                       2017 Arbitration Opinion and Award
             On January 13, 2016, two days before the City filed its petition to vacate
the 2015 arbitration award with the trial court, Grievant was arrested and incarcerated
on drug charges. (Trial court op., March 16, 2018, at 3.) He had not yet returned to
work at that time. Id. In February of 2016, the City made a position available to
Grievant. Id. By letter dated February 24, 2016, the City notified Grievant that his
continued absence from work and lack of an acceptable explanation for his absence led
to the City’s determination to commence an action to again terminate his employment,
but the City did afford him the opportunity to respond and offer any information he
believed might mitigate the situation or cause the City to reverse its decision. Id. By
correspondence dated March 9, 2016, the Union responded on Grievant’s behalf,



                                           2
advised the City of his incarceration, and noted his inability to return to work at that
time. Id.
               By letter dated March 21, 2016, the City advised Grievant of his
termination effective that date, citing the Union’s letter and the reason stated therein as
an inadequate excuse for Grievant’s absence from his job. (Arbitrator’s op. at 2.) Two
days later, on March 23, 2016, the Union filed a grievance on Grievant’s behalf alleging
that Grievant was unjustly terminated in accordance with the just cause provisions of
the parties’ collective bargaining agreement (CBA). Id. A new Arbitrator, Marc A.
Winters, was appointed and a hearing was ultimately held on June 9, 2017.1 Id. at 2.
               At this hearing, the City presented the testimony of Connie Cook (Cook),
its Human Resources Manager. Id. at 6. Cook testified that the City could not hold a
position open for Grievant. Id. Cook also indicated that Grievant himself, not the
Union, should have contacted the City and explained his situation, namely his
incarceration. Id. Cook stated that had Grievant contacted the City himself, the City
may have considered not terminating him and allowed him to return to work. Id. at 7.
Grievant testified on his own behalf, stating that he had never taken, sold, or
manufactured narcotics prior to the City’s filing of its petition to vacate the 2015
arbitration award. Id. Grievant explained that subsequent to this filing he became
depressed and felt that he had no alternative but to sell drugs to make money. Id.
               By opinion and award dated June 16, 2017, the Arbitrator granted the
grievance. The Arbitrator concluded that the City failed to establish just cause


       1
          Grievant was released from his confinement on January 23, 2017. (Arbitrator op. at 4.) By
that time, the trial court had denied the City’s petition to vacate the 2015 arbitration award reinstating
Grievant and said award had been confirmed and finalized. Id. On February 9, 2017, the Union filed
an unfair labor practice charge with the Pennsylvania Labor Relations Board based upon the City’s
failure to return Grievant to work or pay him back pay in accordance with the 2015 arbitration award.
Id. The Union and the City later reached a settlement of this charge whereby the City agreed to pay
Grievant his back pay consistent with the 2015 award. Id.
                                                    3
sufficient to warrant Grievant’s termination and directed the City to reinstate Grievant
to his former position and to make him whole back to January 24, 2017. (Arbitrator’s
op. at 9.) While emphasizing that Grievant was responsible for his own conduct, the
Arbitrator agreed with the Union that the City, by not complying with the 2015
arbitration award, “severely contributed to Grievant’s economic and emotional
problems and distress.” (Arbitrator’s op. at 7.) The Arbitrator also noted that the City
made no argument that Grievant’s incarceration would adversely affect its public image
or its operations, nor did it provide evidence as to any type of burden or hardship it
would incur in holding Grievant’s position open until his release from jail.
(Arbitrator’s op. at 7-8.) Finally, the Arbitrator characterized the City’s decision to
terminate Grievant as “arbitrary, capricious and unreasonable as the reasons given for
the termination do not meet the elements of just cause.” Id. at 9.


                                  Trial Court Opinion
             The City thereafter filed a petition to vacate the Arbitrator’s award with
the trial court, arguing that the Arbitrator erred in misapprehending the reason for
Grievant’s termination as his failure to offer an explanation himself for his absence,
rather than its stated reason of unexcused absence from work. The City also argued,
inter alia, that the Arbitrator erred in finding a right to reinstatement after incarceration
for a period of 13 months; placing a burden on it to offer evidence or justification as to
why it could not hold Grievant’s position open for 13 months; and finding that an open-
ended incarceration is a valid excuse for absence from work.
             By opinion and order dated January 19, 2018, the trial court granted the
City’s petition to vacate and reinstated Grievant’s termination.           The trial court
concluded that the City “reasonably terminated [Grievant’s] employment on March 21,
2016. The City, further, was not obligated to hold Grievant’s position open for an

                                             4
extended, indefinite, open-ended period of time.” (Trial court op., January 19, 2018,
at 3.) The trial court noted that the Arbitrator’s finding that there was no just cause for
Grievant’s termination was not supported by the record, emphasizing that Grievant’s
incarceration and the City’s inability to keep the position open indefinitely were
“adequate excuses and do satisfy the requirements of the CBA.” Id. at 4. The trial
court further explained that “Grievant’s self-imposed problems are directly within the
scope and context of Section 901[2] and relate to an employee’s qualifications,
performance, attitude, work habits or personal conduct. In this regard, the Arbitrator
failed to apply the ‘just cause’ definition as contained in the CBA.” Id.
              The Union thereafter filed a notice of appeal with the trial court. In
compliance with an order from the trial court dated January 31, 2018, the Union filed
a statement of errors complained of on appeal pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure (Pa.R.A.P.). The Union alleged, inter alia,
that the trial court misapplied the essence test in reviewing the Arbitrator’s award,
substituted its judgment for that of the Arbitrator, ignored critical facts, and erred in
concluding that the Arbitrator’s finding of an absence of just cause was unsupported
by the record. In its Pa.R.A.P. 1925(a) opinion, the trial court stated that these issues
were addressed in its January 19, 2018 opinion and did not need to be addressed further.




       2
          Section 901 of the CBA addresses the dismissal of an employee and provides, in pertinent
part, as follows:

              The Director of a Department may, with the approval of the Manager
              of Human Resource, dismiss the employee within his respective
              department at any time for just cause relating to qualifications,
              performance, attitude, work habits or personal conduct.

(Reproduced Record (R.R.) at 86a.)
                                                5
                                     Discussion
            On appeal, the Union argues that the trial court erred in vacating the
Arbitrator’s award. More specifically, the Union argues that the Arbitrator’s award
was rationally derived from, and drew its essence from, the parties’ CBA, and that the
trial court exceeded its scope of review by substituting its judgment for that of the
Arbitrator. We disagree.
            This Court recently discussed the extremely deferential standard of review
to be applied to labor arbitration awards in Northern Cambria School District v.
Northern Cambria Education Support Professional Association, PSEA/NEA, 180 A.3d
517 (Pa. Cmwlth. 2018), stating as follows:

            Under the exceptionally deferential essence test, an
            arbitrator’s award must draw its essence 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). When applying the essence test,
            an award should be upheld if: (1) the issue as properly
            defined is within the terms of the agreement, and (2) the
            award can be rationally derived from the agreement.
            Westmoreland Intermediate Unit # 7 v. Westmoreland
            Intermediate Unit # 7 Classroom Assistants Educ. Support
            Pers. Ass’n, PSEA/NEA, 939 A.2d 855, 863 (Pa. 2007). 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. Cheyney Univ., 743 A.2d at 413.

                                         ...

            In reviewing an arbitrator’s award, we are mindful that an
            arbitrator’s findings of fact are not reviewable on appeal, and
            as long as he has arguably construed or applied the collective
            bargaining agreement, an appellate court may not second-
            guess his findings of fact or interpretation. Coatesville Area
            Sch. Dist. v. Coatesville Area Teachers’ Ass’n/Pa. State
            Educ. Ass’n, 978 A.2d 413, 415 n.2 (Pa. Cmwlth. 2009),
            appeal denied, 989 A.2d 10 (Pa. 2010). A court may not

                                          6
              reject an arbitrator’s findings simply because it disagrees
              with them, nor may the court substitute its judgment for that
              of the arbitrator. Am. Fed’n of State, Cnty. & Mun.
              Employees, Dist. Council 88, AFL-CIO v. City of Reading,
              568 A.2d 1352, 1355-56 (Pa. Cmwlth. 2006).
Id. at 521.
              In the present case, there is no question that the issue of just cause for
Grievant’s termination was within the terms of the CBA executed by the City and the
Union. As noted above, section 901 of the parties’ CBA only permits the dismissal of
an employee for “just cause.” (R.R. at 86a.) This section goes on to define the “just
cause” necessary for dismissal as relating to an employee’s “qualifications,
performance, attitude, work habits or personal conduct.” Id. Hence, the only question
that remained to be decided was whether the Arbitrator’s award was rationally derived
from the agreement. The trial court concluded that it was not because the Arbitrator
added a new provision to the CBA. In this regard, as the City points out in its brief,
the Arbitrator essentially added a new, non-negotiated provision into the parties’ CBA,
i.e., requiring the City to hold open for an indefinite period of time the position of a
Union employee. The trial court noted that Grievant’s self-imposed problems, most
importantly his incarceration on drug charges, were “directly within the scope and
context of Section 901 and relate to an employee’s qualifications, performance,
attitude, work habits or personal conduct.” (Trial court op., January 19, 2018, at 4.)
As a result of this incarceration, the Arbitrator and the trial court recognized that
Grievant failed to report his absence to the City, which ultimately led to his termination.
              The trial court also questioned the Arbitrator’s reliance on the City’s
purported lack of evidence as to why it could not hold open Grievant’s position for an
extended, indefinite period of time. The trial court noted that the Arbitrator himself
recognized testimony from Cook, the City’s Human Resources Manager, that the City
could not hold a position open for Grievant. See Arbitrator’s op. at 6. As the record

                                            7
reflects, Grievant remained incarcerated and unavailable to work for a period of
approximately 13 months.
               An arbitrator’s award cannot be said to draw its essence from a CBA, and
consequently does not meet the essence test, where the award violates the express terms
of a CBA by changing the language therein or by “adding new and additional
provisions.” Millcreek Township School District v. Millcreek Township Educational
Support Personnel Association, 179 A.3d 1167, 1173 (Pa. Cmwlth. 2018) (emphasis
in original) (quoting American Federation of State, County & Municipal Employees,
District Council 84 v. City of Beaver Falls, 459 A.2d 863, 865 (Pa. Cmwlth. 1983)).3
In Millcreek Township School District, an arbitrator interpreted a provision of a CBA
that “[n]o work of the bargaining unit shall be sub[]contracted for the life of the [CBA]”
as precluding the school district from issuing requests for proposals (RFPs). 179 A.3d
at 1171, 1176. We noted that the language of the CBA was “clear and unambiguous”
and “completely silent on RFPs.” Id. at 1172. We concluded that the arbitrator went
outside of the CBA to make his determination, and, hence, his award was not rationally
derived from the CBA. Id. at 1173. Ultimately, we held that “where the arbitrator’s
words exhibit an infidelity to the agreement, courts have no choice but to refuse
enforcement of the award.” Id.


       3
          In American Federation of State, County & Municipal Employees, District Council 84 v.
City of Beaver Falls, the arbitrator concluded that an employee’s discharge was not for just cause
because the notice of discipline issued by the employer was untimely (the notice of discipline was
sent 42 days after the incident that led to the employee’s discharge) and constituted an “affront to due
process.” 459 A.2d at 864. Because the CBA executed by the parties did not contain any provision
regarding timely notification of discipline, the common pleas court set aside the arbitrator’s award.
This Court affirmed the common pleas court’s decision noting that the arbitrator improperly added a
new time provision to the parties’ CBA. We held, “We are aware that we must sustain the arbitrator’s
award if it is based on anything that can be gleaned as the ‘essence’ of the bargaining agreement, but
this does not include changing the language of the contract or adding new and additional provisions.”
Id. at 865.


                                                   8
             Moreover, as our United States Supreme Court explained long ago:

             An arbitrator is confined to interpretation and application of
             the [CBA]; he does not sit to dispense his own brand of
             industrial justice. He may, of course, look for guidance from
             many sources, yet his award is legitimate only so long as it
             draws its essence from the collective bargaining agreement.
United Steelworkers v. Enterprise Wheel & Car Corporation, 363 U.S. 593, 599
(1960).
             Herein, in sustaining the grievance and directing that Grievant be
reinstated to his former position with all attendant rights and privileges, the Arbitrator
relied heavily on the fact that “[t]here was no evidence or justification given as to why
the City could not hold the Grievant’s position.” (Arbitrator’s op. at 9.) However,
there is no provision in the parties’ CBA obligating the City to hold a position open
and allow a Union employee to return to his position after a lengthy and indefinite
absence due to incarceration. As the City states in its brief, “The Arbitrator essentially
added to the CBA a right possessed by a union employee to reinstatement despite the
employee’s indefinite unavailability.”     (City’s Brief at 9.)     In other words, the
Arbitrator went outside the terms of the CBA to find that an open-ended period of
incarceration constituted a valid excuse for an employee’s absence.           Similar to
Millcreek Township School District and City of Beaver Falls, the Arbitrator added a
new provision to the CBA, one that was not bargained for or agreed to by the parties.
Hence, the Arbitrator’s award directing Grievant’s reinstatement was neither rationally
derived from, nor drew its essence from, the CBA. Thus, the trial court did not err in
granting the City’s petition to vacate this award.
             Accordingly, the trial court’s order is affirmed.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
                                            9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


City of Erie                             :
                                         :    No. 150 C.D. 2018
               v.                        :
                                         :
General Teamsters Local Union            :
No. 397 (Kelly Kirsch),                  :
                  Appellant              :



                                     ORDER


               AND NOW, this 3rd day of January, 2019, the order of the Court of
Common Pleas of Erie County, dated January 19, 2018, is hereby affirmed.




                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
