           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lackawanna County                         :
                                          :
                   v.                     :   No. 657 C.D. 2017
                                          :   Argued: December 4, 2017
Lackawanna County Adult and               :
Juvenile Probation and Domestic           :
Relations Section Employees               :
Association,                              :
                        Appellant         :



BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE J. WESLEY OLER, JR., Senior Judge




OPINION BY
JUDGE COHN JUBELIRER                          FILED: January 10, 2018


      Lackawanna County Adult and Juvenile Probation and Domestic Relations
Section Employees Association (Association) appeals from the May 5, 2017 Order
of the Court of Common Pleas of Lackawanna County (trial court), which granted
the Petition of Lackawanna County (County) to vacate an arbitration award
(Arbitration Award). The Association argues that the trial court erred when it
concluded that a gift day policy granting Association members a paid holiday of
either Christmas Eve or New Year’s Eve did not draw its essence from the parties’
Collective Bargaining Agreement (CBA). Alternatively, the County argues for
affirmance on the basis that the gift day policy violates the public policy exception
to the essence test in that it violates the separation of powers doctrine. Because,
under these facts as determined by the Arbitrator, the gift day policy had become a
past practice of the County, and so did draw its essence from the CBA, and there
was no violation of the public policy exception, we reverse the trial court’s Order
and reinstate the Arbitration Award.


I.     Background
       The Association and the County are parties to a CBA in effect from January
1, 2010, until December 31, 2013, but which was extended by an interest arbitration
award to December 31, 2017. Article 16 of the CBA provides that “[t]he following
holidays will be observed as paid holidays for all full time employees covered by
this Agreement[.]” (Reproduced Record (R.R.) at 20a.) The CBA provides for 14
paid holidays, but it names neither Christmas Eve nor New Year’s Eve as paid
holidays. The CBA also provides that in the context of a grievance, “[t]he arbitrator
shall have no power or authority to add to, subtract from or modify the provisions of
this Agreement in arriving at a decision of the issue or issues presented and shall
confine his/her decision to the application and interpretation of this Agreement.”
(Id. at 39a.)
       On October 19, 2015, the Association filed a grievance, alleging that the
County had ceased complying with its past practice of providing Association
members with a gift day. Specifically, one-half of Association members were given
a paid day off, or gift day, on Christmas Eve, and the other half of the members were
given a gift day on New Year’s Eve. (2003 Vacation Policy, R.R. at 70a.)
       According to the testimony at the arbitration hearing, as recounted in the
Arbitrator’s Opinion, Patrick Luongo, the former Director of the County’s Domestic
Relations Office, instituted the gift day policy beginning in 2001. (Arbitrator Op. at
2, R.R. at 80a.) Before doing so, Luongo consulted with the President Judge of the



                                          2
Court of Common Pleas of Lackawanna County (Common Pleas)1 who told him that
whether to institute the gift day policy was up to Luongo. (Id.) Luongo testified
that “he had the authority to decide whether to grant gift days, and [he] merely told
the [P]resident [J]udge of his decision.” (Id. at 3, R.R. at 81a.) Each year, Luongo
would issue a vacation policy, setting forth, among other things, procedural issues
relative to the gift day policy. (Id.) According to Luongo, written vacation policies
were started in 2002. The Association submitted into evidence the written vacation
policies for 2003, 2004, 2006, 2007, and 2014, each of which mentions the granting
of gift days for Christmas Eve or New Year’s Eve to Association members.
(Vacation Policies, R.R. 65a-70a.) “Luongo testified that the gift day policy, in
general, lasted from 2001 to 2014,” but that gift days were not granted every year;
he was not more specific other than mentioning that there were no gift days in 2011.
(Arbitrator Op. at 3, R.R. at 81a.) Another Domestic Relations employee, Daniel
Ebersole, testified that the gift day policy started in 1998 “and was granted each year
until 2015.” (Id.)
       In 2015, Luongo stopped granting gift days “after the County’s labor counsel
advised [him] that such a benefit might result in a future unfair labor practice” charge
since only a portion of the bargaining unit was granted gift days and “the policy paid
members for time they had not worked.” (Id. at 4, R.R. at 82a.) Counsel’s advice
was the result of a then pending unfair labor practice charge filed by the Association,
which ultimately resulted in a settlement (2014 settlement) where “the parties agreed
to offer gift days [in 2014] based upon seniority, as opposed to alternating whether
employees [received] Christmas Eve or New Year’s Eve off.” (Id. at 4, 12, R.R. at

       1
          Although, in this case, while our references to the trial court and Common Pleas are to
the same entity, we use these two different references to distinguish between who permitted the
gift day policy and who reviewed the Arbitration Award.


                                               3
82a, 90a.) Luongo told the President Judge of his decision to issue a revised gift day
policy in 2014 and that he intended to stop the practice in 2015. (Id. at 4, R.R. at
82a.) The Arbitrator recounted that “Luongo had the authority to decide whether or
not to offer the gift day to employees.” (Id.)
      The Arbitrator granted the grievance and ordered the County to reinstate the
gift day policy as agreed to in the 2014 settlement. (Id. at 12, R.R. at 90a.) In doing
so, the Arbitrator concluded that “it was the County, through Luongo, that had the
authority over the gift day policy.” (Id. at 11, R.R. at 89a.) The Arbitrator went on
to conclude that the gift day policy was an established past practice that became a
part of the parties’ CBA. (Id. at 11-12, R.R. at 89a-90a.)
      The County then petitioned the trial court to vacate the Arbitration Award,
arguing that the Arbitration Award did not draw its essence from the CBA. While
acknowledging that the CBA does not have a broad integration clause, the County
argued that other language in the CBA strongly suggested that “the parties intended
the CBA to be a ‘final and complete expression’ of their agreement with respect to
the terms and conditions of employment, including entitlement to paid holidays.”
(Petition ¶ 12.) Alternatively, the County argued that the Award had to be vacated
because it violated the well-defined public policy of separation of powers, which is
an exception to the essence test. (Id. ¶ 27.) The Award did so in that it binds
Common Pleas to the CBA even though Common Pleas is not a party to the CBA,
and the Award compels the County to continue providing and paying for gift days,
which Common Pleas no longer wishes to afford to Association employees. (Id.
¶ 32.) Vacation scheduling for court employees is part of the judicial branch’s
supervisory right to direct its personnel, and any interference with this right of the




                                          4
judicial branch by the legislative or executive branches violates the separation of
powers principle, the County argued. (Id. ¶¶ 29-30.)
      The trial court granted the Petition and vacated the Arbitration Award,
concluding that it did not flow logically from the parties’ CBA and, therefore, failed
the essence test. (Trial Ct. Memorandum and Order at 5.)


II.   Analysis
      A.     The Essence Test
      On appeal, the Association argues that the Arbitration Award does indeed
draw its essence from the CBA, emphasizing the very narrow standard of review of
an arbitration award. The Association notes that the CBA does not contain a broad
integration clause. While acknowledging that the CBA addresses paid holidays, and
that an argument could be made that the Arbitrator should not have relied on past
practices because the CBA is clear and unambiguous, the Association counters that
there is no distinction between ambiguous and unambiguous contracts in the
arbitration context. An arbitrator is not limited by the general rules of contract
interpretation where language in a CBA is found to be unambiguous. The trial court,
the Association argues, substituted its judgment for that of the Arbitrator, which is
contrary to the standard of review of an arbitration award.
      The County responds that the Arbitration Award does not draw its essence
from the CBA. While noting that there is no broad integration clause in the CBA,
the Association points to other provisions in the CBA as proof that the CBA is fully
integrated with respect to paid leave.
      A grievance arbitration award is reviewed under the essence test, which sets
forth a two-prong test: a court must determine whether “the issue as properly defined



                                          5
is within the terms of the” CBA, and, if so, whether the “arbitrator’s interpretation
can rationally be derived from the” CBA.2 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) (quoting State Sys. of Higher Educ.
(Cheyney Univ.) v. State Coll. Univ. Prof’l Ass’n (PSEA-NEA), 743 A.2d 403, 413
(Pa. 1999)). Stated differently, in applying the second prong, a reviewing court does
not inquire into whether the arbitration decision is reasonable or even manifestly
unreasonable, but rather the question is whether the award may in any way be
rationally derived from the agreement between the parties, “viewed in light of its
language, its context, and any other indicia of the parties’ intention[s.]” Id. at 862-
63. Thus, review of an arbitration award under the essence test is “circumscribed”
and entitled to “great deference.” Id. at 863; Penns Manor Area Sch. Dist. v. Penns
Manor Area Educ. Support Pers. Ass’n, 953 A.2d 614, 616 (Pa. Cmwlth. 2008).
       Here, the County does not dispute, as the trial court concluded, that the
Arbitration Award satisfies the first prong of the essence test.
       As for the second prong, the County argues that while there is no broad
integration clause in the CBA, the parties intended the CBA to be a final and
complete expression of their agreement with respect to paid holidays because the
CBA states that its provisions represent the bargained for “terms and conditions of
employment applicable to the employees represented by the Association,” (R.R. at
5a), Articles 16 through 20 of the CBA specifically address the types of paid leave
to which employees are entitled, none of which include Christmas Eve and New

       2
         The County concedes, “[f]or purposes of this appeal only,” that the gift day policy was a
past practice, (County’s Br. at 1 n.1), which, we note, can serve “to create or prove a separate,
enforceable condition of employment which cannot be derived from the express language of the”
CBA. Cty. of Allegheny v. Allegheny Cty. Prison Emps. Indep. Union, 381 A.2d 849, 852 (Pa.
1977).


                                                6
Year’s Eve, (id. at 20a-27a), and Article 28, involving grievance procedures,
prohibits the arbitrator from adding to, subtracting from, or modifying the provisions
of the CBA, (id. at 37a, 39a). However, none of these provisions of the CBA are
inconsistent with the parties agreeing to additional paid holidays. Article 16 merely
lists certain holidays that “will be observed as paid holidays,” but it does not preclude
the parties from agreeing to additional paid holidays. (Id. at 20a.) The County, in
support of its proposition that these provisions of the CBA constitute the full and
complete expression of their agreement, cites to Kehr Packages, Incorporated v.
Fidelity Bank, National Association, 710 A.2d 1169 (Pa. Super. 1998), but Kehr is
distinguishable because it involved the interpretation of a credit agreement in the
context of a sale of a business, and not the interpretation of a CBA. In contrast, in
County of Allegheny v. Allegheny County Prison Employees Independent Union, 381
A.2d 849, 850, 854 (Pa. 1977), where the parties’ CBA included a broad integration
clause but did not mention past practices, and the Union grieved two aspects of
mealtime conditions, claiming that those conditions were implicitly incorporated
into the CBA via past practice, our Supreme Court held that those conditions were
not part of the CBA. Specifically, the Supreme Court held,

      where a collective bargaining agreement not only makes no mention
      whatever of past practices but does include a broad integration clause,
      an award which incorporates into the agreement, as separately
      enforceable conditions of the employment relationship, past practices
      which antedate the effective date of that agreement cannot be said to
      “draw its essence from the collective bargaining” agreement.

Id. at 854. In County of Allegheny, unlike here, the adoption of past practices not
included within the CBA would have conflicted with the CBA’s broad integration




                                           7
clause,3 and, therefore, the past practices could not be part of the CBA. See also
Dep’t of Corr. v. Pa. State Corr. Officers Ass’n, 38 A.3d 975, 982 (Pa. Cmwlth.
2011) (reviewing County of Allegheny and noting that “a past practice cannot be
used where it is proscribed or conflicts with the language of the current” CBA).
Here, in contrast, in the absence of a broad integration clause in the CBA, or other
such conflicting language, the Arbitrator could interpret the CBA as including past
practices such as the gift day policy. See City of Carbondale v. Fraternal Order of
Police Lodge 63, 531 A.2d 76, 78 (Pa. Cmwlth. 1987) (holding that where the CBA
contained no broad integration clause, the arbitrators did not err in interpreting the
agreement to include past practices). Therefore, the trial court erred when it
concluded that the gift day policy did not draw its essence from the CBA.


       B.       Public Policy Exception to the Essence Test
       Alternatively, the County argues that the Arbitration Award violates the
public policy exception to the essence test, namely, the public policy of separation




       3
           The integration clause of the CBA in County of Allegheny provided as follows:

                1. The parties mutually agree that the terms and conditions expressly set
                   forth in this Agreement represent the full and complete agreement and
                   commitment between the parties thereto.
                   ...
                2. All items proposed by the Union, whether agreed to or rejected, will not
                   be subject to renegotiation until negotiations for a new contract
                   commence . . . and items included within the scope of the bargaining
                   which were or are not proposed by the Union shall likewise not be
                   subject to negotiation until the period specified above . . . .

Cty. of Allegheny, 381 A.2d at 854 n.15.



                                                 8
of powers.4 The County contends the Arbitration Award violates the separation of
powers in that the legislative branch, which is the County, is required to compel the
judiciary to continue providing judicial employees with paid time off that the
judiciary no longer wishes to provide. According to the County, the judiciary alone
has the right to hire, fire, and supervise its employees, and its authority over court
personnel is essential to the maintenance of an independent judiciary; here, the
Arbitration Award impairs that right of the judiciary. Further, the County posits the
Arbitration Award requires the County to dictate to Common Pleas how it should
allocate its budget in that Common Pleas has to allocate at least a portion of its
annual budget to pay these employees for a gift day.5
       In Westmoreland, our Supreme Court carved out a narrow exception to the
essence test whereby an arbitration award will be vacated if it violates a “well-
defined, dominant” public policy. Westmoreland Intermediate Unit #7, 939 A.2d at
866. The public policy must be “ascertained by reference to the laws and legal
precedents and not from general considerations of supposed public interests.” Id.
       Even assuming the separation of powers doctrine meets the requirements of
the public policy exception to the essence test, the Arbitration Award, under these
facts, does not violate the separation of powers doctrine. The Arbitrator specifically
found that it was Luongo’s idea to grant Association members a gift day of either
Christmas Eve or New Year’s Eve, and, when Luongo presented his idea to the
President Judge of Common Pleas, the President Judge said that it was up to Luongo.


       4
          The public policy exception to the essence test presents a pure question of law and, thus,
our standard of review is de novo. Phila. Hous. Auth. v. Am. Fed’n of State, Cty. & Mun. Emps.,
Dist. Council 33, Local 934, 52 A.3d 1117, 1121 (Pa. 2012).
        5
          The Association did not submit a reply brief responding to the County’s argument that
the Arbitration Award violates the separation of powers doctrine.



                                                 9
While the Arbitrator mistakenly stated that Luongo was a County employee, such is
of no moment since by law, and as the County acknowledges in its brief (County’s
Br. at 9), Luongo was a court employee.6 Section 961 of the Judicial Code, 42 Pa.
C.S. § 961 (“Each court of common pleas shall have a domestic relations section,
which shall consist of such probation officers and other staff of the court as shall be
assigned thereto.”). Thus, this is not a case where the county commissioners,
pursuant to Section 1620 of the County Code,7 16 P.S. § 1620, while bargaining on
behalf of the judges, unilaterally reached an agreement with union employees on an
issue affecting the administration of justice without first consulting with the judges.
See Cty. of Lehigh v. Pa. Labor Relations Bd., 489 A.2d 1325, 1329 (Pa. 1985)
(stating that county commissioners “must consult” with the judges to ascertain
whether a proposal in a CBA, such as a shorter work day, increased vacation time,
or additional paid holidays in return for a smaller wage increase, would affect the
administration of justice). Rather, the judiciary itself apparently was involved in,
and at the least approved of, granting these Association members a gift day of either
Christmas Eve or New Year’s Eve. Over time, this granting of a gift day became a
past practice. Common Pleas, like any other public employer, can become bound
by a past practice. See Commonwealth of Pa. ex rel. Bradley v. Pa. Labor Relations
Bd., 388 A.2d 736, 739 (Pa. 1978) (holding that court reporters are public employees
under the Public Employe Relations Act8 and thus are entitled to enjoy its benefits).
Therefore, Common Pleas cannot unilaterally terminate the gift day policy but must


       6
          The parties’ CBA sets forth that these employees “are involved with and necessary to the
functioning of the courts and are hired, fired[,] and directed by the courts[.]” (R.R. at 6a.) Counsel
for the Association also stated during oral argument before this Court that Luongo was a court
employee.
        7
          Act of August 9, 1955, P.L. 323, as amended, 16 P.S. § 1620.
        8
          Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101-1101.2301.


                                                 10
first bargain with the Association over it. Penns Manor Area Sch. Dist., 953 A.2d
at 619.
      Accordingly, we reverse the trial court’s Order and reinstate the Arbitration
Award.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge


Judge Cosgrove did not participate in the decision in this case.




                                         11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lackawanna County                      :
                                       :
                 v.                    :   No. 657 C.D. 2017
                                       :
Lackawanna County Adult and            :
Juvenile Probation and Domestic        :
Relations Section Employees            :
Association,                           :
                        Appellant      :


                                    ORDER


     NOW, January 10, 2018, the May 5, 2017 Order of the Court of Common
Pleas of Lackawanna County, vacating the Arbitration Award, dated August 17,
2016, is REVERSED, and the Arbitration Award is REINSTATED.




                                     _____________________________________
                                     RENÉE COHN JUBELIRER, Judge
