         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Amalgamated Transit Union Local 85, :
                         Appellant  :
                                    :
            v.                      :          No. 2323 C.D. 2014
                                    :          Argued: April 12, 2016
Port Authority of Allegheny County  :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                               FILED: May 24, 2016

             Amalgamated Transit Union, Local 85 (Union), appeals from an order
of the Court of Common Pleas of Allegheny County (trial court), which denied the
Union’s petition to vacate an arbitration award. The arbitration award denied the
Union’s grievance concerning the Port Authority of Allegheny County’s
(Port Authority)   revision   of   its   performance    code governing   employee
absenteeism. We now reverse the trial court’s order to the extent that it affirmed
the arbitration panel’s disposition of the merits of the grievance.
             The Union and the Port Authority are parties to a Collective
Bargaining Agreement (CBA). On November 25, 2008, the parties executed a new
CBA for 2008 through 2012, which amended some of the terms of the CBA in
effect prior to 2008. (Reproduced Record (R.R.) at 15-17.)1 One of the new terms
of the parties’ CBA required the parties to “establish a committee to discuss and
deal with any excessive absenteeism and methods to rectify the same.” (Id. at 16.)
On July 1, 2011, the Port Authority, without the Union’s agreement, revised a
portion of its employee performance code concerning the penalties for
absenteeism. The Union filed a grievance on September 21, 2011, alleging that the
Port Authority violated the parties’ CBA by revising its performance code.
(Id. at 18.)   The Port Authority denied the Union’s grievance, and the Union
requested arbitration to resolve the parties’ dispute. (Id. at 19.)
               The matter proceeded to arbitration, and an arbitration panel
comprised of a partisan arbitrator for the Port Authority, a partisan arbitrator for
the Union, and a neutral arbitrator conducted a hearing. The parties presented
evidence in support of their opposing positions concerning the Port Authority’s
right to revise the performance code without the Union’s agreement. The Port
Authority also contended, in the alternative, that the matter was not arbitrable,
because the Union’s grievance was not filed within thirty days of the Port
Authority’s revision of the performance code as required by Section 106(A)(2) of
the CBA. (Id. at 29, 72.) The Port Authority thus contended that the Union’s
grievance should be denied as untimely or, alternatively, that the grievance should
be denied on the merits. (Id. at 36.)
               The neutral arbitrator, considering both the procedural and substantive
issues raised by the parties, issued a draft opinion and award denying the Union’s


       1
        The agreement provided that the terms of the parties’ previous CBA “not specifically
changed [in the November 25, 2008 agreement] shall remain as is.” (R.R. at 17.)



                                             2
grievance. In so doing, the neutral arbitrator concluded that despite the language
of the parties’ November 25, 2008 amendment to the CBA, the role of the
absenteeism committee was intended to be advisory and, therefore, the Port
Authority did not violate the CBA by revising its performance code. (Id. at 76-77.)
The arbitrator further concluded that the Union’s grievance was untimely filed:
             Regarding the question of timeliness raised by the Port
             Authority, the record evidence shows that the revisions to
             the performance code occurred on July 1, 2011. It is also
             clear that a grievance was not filed until September 21,
             2011. Section 106, Section A.2 [of the CBA] provides
             that grievances are to be filed within 30 calendar days
             from occurrence of the incident.          Obviously, the
             grievance was filed beyond the required 30 calendar day
             period. In this case the evidence has shown that there
             may have [been] some discussion between [a Union
             representative] and a Port Authority representative, but
             such discussion has not been shown to have resulted in
             any kind of agreement for an extension of time to file a
             grievance. While I recognize there may be instances
             where the parties do in fact extend grievance filing time
             limits, there is no such evidence to support such a finding
             in this case. Consequently, it is my determination the
             grievance was untimely filed.
(Id. at 77.) The arbitrator thus addressed both the merits of the grievance and the
procedural issue.
             After the draft opinion was issued, the Union requested an executive
session. The Union objected to the neutral arbitrator’s opinion on the basis that the
arbitrator’s conclusion that the Union’s grievance was untimely filed deprived the
arbitrator of jurisdiction to address the merits of the dispute. The neutral arbitrator
declined to revise the draft opinion so as to eliminate the portion of the opinion
deciding the merits.     On September 30, 2013, the Port Authority’s partisan
arbitrator signed the award, indicating his acceptance of the neutral arbitrator’s


                                          3
opinion and award. (Id. at 79.) The Union’s arbitrator did not sign the award.
(Id.)
              The Union filed a petition to vacate the arbitration award with the trial
court on October 30, 2013. In its petition, the Union argued that the merits portion
of the arbitration award should be vacated, because the arbitration panel, having
found that the Union’s grievance was untimely, issued an arbitration award that did
not draw its essence from the CBA. The Port Authority opposed the Union’s
arguments as to the merits portion of the arbitration award, explaining that the
arbitration panel properly addressed both of the issues before it.                      The
Port Authority also argued that pursuant to the terms of the CBA, the failure of the
Union’s arbitrator to sign the award constituted a deemed acceptance of the award,
thereby barring the Union from requesting that the award be vacated.                  Upon
consideration of the parties’ briefs, the trial court issued an opinion and order,
denying the Union’s petition to vacate the arbitration award. The trial court,
applying the essence test, explained that “[t]he decision by the Arbitrator dealt with
a subject that was clearly within the scope of the [CBA]. The Union proceeded
with the evidentiary hearing and never asked to bifurcate the procedural from the
substantive issues.” (Trial Ct. Op. at 2.) The trial court did not address the Port
Authority’s argument as to the Union’s ability to request that the trial court vacate
the award.
              On appeal to this Court,2 the Union argues that the trial court erred in
concluding that the arbitration award drew its essence from the parties’ CBA.


        2
        The proper standard of review for an appeal of an arbitration award arising under the
Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563, as amended, 43 P.S.
(Footnote continued on next page…)

                                             4
Specifically, the Union contends that the merits portion of the arbitration award has
no foundation in the terms of the CBA, because the arbitration panel found that the
grievance was untimely filed. The Port Authority counters that the Union waived
that issue and was barred from appealing this matter to the trial court due to the
failure of the Union arbitrator to sign the award.
              We first address the Union’s argument that the trial court erred in
concluding that the arbitration award drew its essence from the CBA. Because the
arbitration panel found that the grievance was untimely, the Union maintains that
the arbitration panel’s holding as to the merits is not within the terms of the CBA,
nor can it be rationally derived from the CBA. The Union requests that we vacate
the arbitration panel’s ruling on the merits. The Port Authority counters that the
Union did not request bifurcation, and, consequently, the arbitration panel properly
addressed both the procedural and substantive issues raised by the parties. Further,
the Port Authority argues that the issues presented to the arbitration panel—
namely, the timely filing of grievances and the Port Authority’s right to revise the
performance code—are both issues that are governed by the CBA, and, therefore,
the arbitration award derives its essence from the CBA. Finally, the Port Authority
argues that the Union should be precluded from arguing before this Court that the
arbitration panel could not address the merits of the grievance after finding the
grievance untimely, as the Union did not raise the issue before the arbitration
panel.

(continued…)

§§ 1101.101-.2301, is the essence test. Westmoreland Intermediate Unit # 7 v. Westmoreland
Intermediate Unit # 7 Classroom Assistants Educ. Support Pers. Ass’n, 939 A.2d 855, 863 (Pa.
2007) (Westmoreland I.U. # 7).



                                             5
             We agree with the Union that the merits portion of the arbitration
award does not satisfy the essence test, because the arbitration panel found that the
grievance was untimely filed. An arbitration panel’s award satisfies the essence
test if it “draw[s] 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). A court reviewing an arbitration panel’s award
under the essence test must conduct a two-prong analysis:
             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
             collective bargaining agreement. 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.

Id. “Where the arbitrator’s words exhibit an infidelity to the agreement, courts
have no choice but to refuse enforcement of the award.” S. Tioga Educ. Ass’n v. S.
Tioga Sch. Dist., 668 A.2d 260, 262 (Pa. Cmwlth. 1995) (quoting Riverview Sch.
Dist. v. Riverview Educ. Ass’n, PSEA-NEA, 639 A.2d 974, 977 (Pa. Cmwlth.
1994)), appeal denied, 676 A.2d 1203 (Pa. 1996).
             Section 106(A)(2) of the CBA provides that “[a]ll grievances with the
exception of claims for welfare must be filed within thirty (30) calendar days from
occurrence of incident or issuance of discipline.” (R.R. at 12 (emphasis added).)
Here, the arbitration panel found that the grievance was filed beyond this thirty day
deadline, and neither party appealed the arbitration panel’s finding as to the
untimely filing of the grievance. Because the arbitration panel found that the


                                         6
grievance was untimely, the merits portion of the arbitration award does not derive
its essence from the terms of the CBA. Specifically, the bargained-for terms of the
parties’ CBA allow for an arbitration panel to consider the merits of grievances
that are filed within thirty days of an incident.             Despite the Port Authority’s
contention that the merits of the grievance are within the terms of the CBA, there is
no provision in the CBA allowing an arbitration panel to resolve the merits of
grievances filed beyond thirty days.3,4 Where an arbitration panel has found a
grievance untimely, no adjudication as to the merits of the grievance can logically
flow from a CBA that expressly requires timely filing of grievances. See State Sys.
of Higher Educ. v. United Plant Guard Workers of Am., Local Union No. 509, 612
A.2d 645, 647-48 (Pa. Cmwlth.) (reversing arbitration award which resolved
merits where arbitrator’s finding that grievance was timely did not draw its essence
from CBA), appeal denied, 618 A.2d 403 (Pa. 1992). Because the merits portion
of the arbitration award cannot logically flow from the CBA due to the arbitration
panel’s disposition as to timeliness, the arbitration award does not satisfy the
essence test. Accordingly, the trial court’s order is reversed to the extent that it


       3
          Regarding the Port Authority’s additional argument concerning bifurcation, it is of no
moment that the Union failed to request bifurcation of the procedural and substantive issues.
The Union’s failure to request bifurcation did not grant the arbitration panel any more authority
than it already had to resolve the merits of an untimely grievance. As explained above, the
arbitration panel’s resolution of the merits was not within the terms of the CBA. Although
bifurcation may have prevented this outcome, it was not incumbent upon the Union to request it.
We, therefore, reject this argument.
       4
          We recognize that in resolving the merits, the arbitration panel may have acted out of
caution. Specifically, if the arbitration panel’s conclusion as to timeliness were overturned on
appeal, the merits decision could be considered. Where, as here, the ruling on timeliness
prevails, the arbitration panel’s discussion of the merits is, at best, an advisory opinion and
cannot serve as a binding interpretation of the CBA.



                                               7
affirmed the arbitration panel’s disposition of the merits of the grievance, and the
matter is remanded to the trial court with instruction that it vacate the merits
portion of the arbitration award.
              We further reject the Port Authority’s argument that the Union failed
to preserve the issue of the arbitration panel’s ability to address the merits of the
grievance after finding the grievance untimely. The Union raised a substantive
issue before the arbitration panel, the Port Authority challenged the substantive
issue and raised a question as to the timeliness of the Union’s grievance, and the
arbitration panel ruled in the Port Authority’s favor on both issues. By challenging
the timeliness of the grievance, the Port Authority thus raised a question
concerning the arbitration panel’s ability to resolve the merits of the dispute if it
found the grievance to be untimely.5 Now, the Port Authority seeks to preserve the
entirety of the favorable award by arguing that the Union failed to raise this issue
before the arbitration panel. Generally, a party must raise an issue at the earliest
opportunity. Campbell v. Dep’t of Transp., Bureau of Driver Licensing, 86 A.3d
344, 349 (Pa. Cmwlth. 2014). Here, it was not until the arbitration panel ruled on
both the merits and the timeliness of the grievance that the Union could have raised
the issue as to whether the arbitration panel could address the merits after finding
the grievance untimely. The Union objected to the arbitration panel’s resolution of


       5
          We note that before the arbitration panel, the Port Authority contended that “[t]he
arbitrator must deny this grievance as untimely. Even if the arbitrator could decide this
grievance on the merits, it should still be denied.” (R.R. at 36 (emphasis added).) The Port
Authority did not ask the arbitration panel to address both issues. Rather, the Port Authority
requested that the arbitration panel deny the grievance as untimely. If, however, the arbitration
panel were to find the grievance timely, the Port Authority sought for the grievance to be denied
on the merits.



                                               8
the merits during the executive session, and, before the trial court, the Union
challenged the arbitration panel’s jurisdiction to consider the merits of the
grievance in the face of an untimely request for arbitration. The Union thus raised
the issue at the earliest possible opportunity.              We, therefore, reject the Port
Authority’s argument that the Union failed to preserve the issue of the arbitration
panel’s ability to address the merits of the grievance after finding the grievance
untimely.6
                Last, we address the Port Authority’s contention that the trial court
erred because the Union is barred from appealing this matter due to the failure of
the Union arbitrator to sign the award. Specifically, the Port Authority argues that
the language of Section 106(F) of the CBA7 indicates that a party who fails to sign

       6
          The Port Authority further contends that allowing the Union to prevail on this issue
would essentially permit the Union to repeatedly file untimely grievances as a method by which
the Union could fully litigate the procedural and substantive issues of a dispute and then seek to
have unfavorable awards vacated “on the basis of some latent procedural issue.” (Port Authority
Br. at 18-19.) It is not for this Court, however, to divine the Union’s intent in pursuing this
particular litigation strategy in the future. We note that the disposition of this matter will not
result in a different outcome for the Union as to the denial of its grievance. Even if the merits
portion of the arbitration panel’s award is vacated, the Union has not appealed the arbitration
panel’s ruling as to timeliness and, consequently, the grievance remains denied as untimely. We,
therefore, reject the Port Authority’s argument.
       7
           Section 106(F) of the CBA provides:
                Upon issuance of the neutral arbitrator’s decision to the party
                arbitrators, the parties shall have fifteen (15) business days to
                request an executive session. The parties shall have fifteen (15)
                business days after the conclusion of the executive session, if one
                is requested, or if no executive session is requested, thirty (30)
                calendar days from the date of issuance from the neutral arbitrator,
                to sign the award indicating either concurrence or dissent. The
                failure to sign the award in accordance with this section shall
                constitute that party’s concurrence in the neutral’s decision.
(Footnote continued on next page…)

                                                 9
an award is deemed to have concurred in the award. The Port Authority contends
that as a consequence of the Union’s concurrence in the award, the Union may not
now appeal.
                We interpret the Port Authority’s argument as a contention that the
Union violated the CBA by appealing the arbitration panel’s award when, by
operation of Section 106(F) of the CBA, it was precluded from appealing.
Whether a party has violated the CBA, however, is a question that must first be
addressed through the grievance process. The proper procedure here, therefore,
was for the Port Authority to raise the issue before the trial court, file a grievance
concerning the Union’s right to appeal the arbitration panel’s award, and seek a
stay of the proceedings before the trial court pending resolution of the grievance.
If, after the parties have had the opportunity to fully grieve the issue pursuant to
the terms of the CBA, a dispute continues to exist between the parties as to the
interpretation of Section 106(F) of the CBA, Section 903 of the Public Employe
Relations Act (PERA) mandates that such a dispute be submitted to an arbitration
panel for resolution.8 Only after a dispute has reached this stage is it appropriate
for a party to seek judicial review of the issues addressed during the grievance and
arbitration process. See Campbell v. Dep’t of Labor and Indus., Office of Emp’t
Sec., 471 A.2d 1331, 1334 (Pa. Cmwlth. 1984) (“[Petitioner’s] grievance . . . must

(continued…)

(R.R. at 13.)
       8
            Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.903 (“Arbitration of
disputes or grievances arising out of the interpretation of the provisions of a collective bargaining
agreement is mandatory.”); see also Section 106(E) of the CBA (“Should any dispute arise
between the parties concerning the interpretation or application of any section . . . in this [CBA]
. . ., the matter shall be submitted to a board of arbitration for decision.”).



                                                10
be submitted to arbitration before petitioner may seek judicial redress; and since he
has not yet exhausted that mandatory remedy, this Court has no jurisdiction over
the instant action.”) Here, rather than following the procedure outlined above, the
Port Authority improperly sought to have the trial court resolve the issue
concerning Section 106(F) of the CBA.9 Neither this Court nor the trial court,
however, may resolve disputes as to issues that have not first been grieved and
arbitrated pursuant to the terms of the parties’ CBA. See Section 903 of PERA;
Campbell, 471 A.2d at 1334; Section 106(E) of the CBA; see also Shumake v.
Phila. Bd. of Educ., 686 A.2d 22, 24 (Pa. Super. 1996) (explaining that common
pleas courts do not have jurisdiction over disputes concerning interpretation of
CBA until party exhausts remedies under CBA). We, therefore, reject the Port
Authority’s argument concerning Section 106(F) of the CBA, as the issue
concerning the Union’s right to appeal is not properly before this Court.
               Accordingly, the trial court’s order is reversed to the extent that it
affirmed the arbitration panel’s disposition of the merits of the grievance, and the
matter is remanded to the trial court with instruction that it vacate the merits
portion of the arbitration award.



                                     P. KEVIN BROBSON, Judge



       9
         We note that at this stage in the proceedings, the Port Authority likely would be unable
to prevail on a grievance concerning the Union’s ability to appeal in the instant matter. As
explained above, Section 106(A)(2) of the CBA requires the parties to file grievances within
thirty days of the incident at issue. Here, the Union filed its petition to vacate the arbitration
award on October 30, 2013. The Port Authority would have had to file a grievance within thirty
days of this date for the grievance to be timely.



                                               11
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Amalgamated Transit Union Local 85, :
                         Appellant  :
                                    :
            v.                      :      No. 2323 C.D. 2014
                                    :
Port Authority of Allegheny County  :



                                    ORDER


             AND NOW, this 24th day of May, 2016, the order of the Court of
Common Pleas of Allegheny County (trial court) is hereby REVERSED to the
extent that it affirmed the arbitration panel’s disposition of the merits of the
grievance filed by Amalgamated Transit Union Local 85, and the matter is
REMANDED to the trial court with instruction that it vacate the merits portion of
the arbitration award.
             Jurisdiction relinquished.




                                P. KEVIN BROBSON, Judge
