           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania,            :
Department of Corrections,               :
                 Petitioner              :
                                         :
      v.                                 : No. 802 C.D. 2018
                                         : ARGUED: April 11, 2019
Pennsylvania State Corrections           :
Officers Association,                    :
                   Respondent            :


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                          FILED: May 13, 2019

      The Pennsylvania Department of Corrections (Department) petitions for
review of an arbitrator’s award entered May 15, 2018. The arbitrator found the
Department had just cause to demote and transfer Corrections Officer Edward Patla
(Patla). Accordingly, the arbitrator denied the grievance asserted on Patla’s behalf
by the Pennsylvania State Corrections Officers Association (Union). Nonetheless,
the arbitrator ordered the Department to provide Patla with an opportunity for
reinstatement to his former position.        After thorough review, we affirm the
arbitrator’s award in part and vacate it in part.
                                    I. Background
      Patla began working for the Department in 1997 as a Corrections Officer 1
(“CO1”) at the State Correctional Institution in Dallas (SCI-Dallas). In 2006, he
attained the rank of sergeant as a Corrections Officer 2 (“CO2”) in conjunction with
joining the Department’s K-9 Unit. All K-9 Unit members hold at least the rank of
sergeant and the position of CO2. Patla held that rank and position until 2016.
      Patla’s CO2 position with the K-9 Unit required him to work without
supervision and to rotate among various state correctional institutions. With his
assigned canine, he performed security search activities, including searches of
inmates’ cells, visitors’ vehicles, and any other areas as needed by each institution.
      In late 2015, one institution reported to the Department that Patla had failed
to arrive for his assignment there. The Department’s inquiries into the situation
revealed that Patla had failed to report to work at various institutions on seven dates
during the second half of 2015. He had not informed his supervisor of his absences
and had not submitted leave slips relating to those absences. He had also traveled to
SCI-Dallas on various dates without documenting the trips or recording his mileage.
      In addition, the Department learned Patla had repeatedly violated Department
search protocols. The violations included performing inadequate cell and vehicle
searches, failing to notify correct personnel on arriving at an institution, making
unilateral decisions on where to search rather than working where the institution
needed him, and failing to take along a witness during searches.
      Based on the results of its investigation, the Department charged Patla with
multiple violations of its Code of Ethics and its K-9 Unit policy. Department
personnel met with Patla on two occasions to provide him an opportunity to respond
to the charges or offer any mitigating circumstances. Thereafter, finding the charges




                                          2
were substantiated, the Department demoted Patla to his original CO1 position and
transferred him back to SCI-Dallas.1
       The Union filed a grievance on Patla’s behalf, challenging his demotion and
removal from the K-9 Unit. After the grievance procedure set forth in the collective
bargaining agreement failed to resolve the grievance, the parties proceeded to
arbitration. The parties stipulated to the precise issue to be presented to the
arbitrator: “Whether the [Department] has disciplined [Patla] for just cause, and, if
not, what restitution is to be made.” Notes of Testimony (N.T.), 1/3/18, at 11
(emphasis added).
       The arbitrator held a hearing in January 2018. In May 2018, the arbitrator
issued his decision and award.
       The arbitrator noted that Patla suffered a seizure in June 2015. His neurologist
diagnosed some short-term memory loss, but nonetheless cleared Patla to return to
work. He returned to work in August 2015.
       The arbitrator found Patla committed the infractions enumerated by the
Department, and those infractions had negative security consequences at the
correctional institutions.       The arbitrator concluded Patla’s failures to follow
Department protocols prevented the correctional institutions from directing him to
the areas where searches were needed, prevented the presence of witnesses when
contraband was found, and left inmates uncontrolled while their cells were being
searched. The arbitrator observed that closed circuit videos showed Patla’s cell
searches on at least 2 days averaged only 8 seconds each, although a correctly



       1
         Of significance, in its letter notifying Patla of the demotion and transfer, the Department
pointed out that Patla had previously incurred a one-day suspension in 2010 for violations of the
same search policies. Reproduced Record (R.R.) at 308a.


                                                 3
performed search would take 15 to 30 seconds. Patla also failed to search several
required areas of a vehicle.
       The arbitrator expressly concluded: “The [Department] has shown just cause
to demote and transfer Patla, on this record.”2 Op. and Award, 5/15/18, at 7. In
support of that conclusion, the arbitrator stated, “Patla’s position as a K-9 Sergeant
involved discovering contraband in state prisons. The repercussions of doing that
job in a shoddy manner cannot be over[-]emphasized.” Id.
       The arbitrator further noted that in Patla’s fact-finding interview, he was asked
about his absences and deficient searches and “offered no reasons” in response,
although he acknowledged he did know correct search procedures.                        Id. at 8.
Significantly, the arbitrator found Patla never told the Department he was suffering
any ongoing effects related to his 2015 seizure. The arbitrator stated, “Some
responsibility must fall on Patla for never simply informing the [Department] of his
continuing memory difficulties.” Id.
       Concerning Patla’s hearing testimony, the arbitrator observed:

                      When testifying, Patla was quick to explain that he
               wasn’t “playing horse shoes [sic] and stuff,” or “partying”
               during his unexcused absences, but rather, he had no
               recollection of what he did during those days. On cross
               examination he was asked the obvious question[:] if he
               had no memory of his actions on those days, how could he
               be so sure what he wasn’t doing? Patla had no
               explanation. (N.T. 234.)




       2
         A theft of time in the form of seeking payment for time not worked constitutes just cause
for termination. City of Easton v. Am. Fed’n of State, Cty. & Mun. Emps., 756 A.2d 1107 (Pa.
2000), overruled in part on other grounds by Phila. Hous. Auth. v. Am. Fed’n of State, Cty. &
Mun. Emps., 52 A.3d 1117 (Pa. 2012).


                                                4
Id. at 9. Further, the arbitrator rejected the Union’s attempt to link the timing of
Patla’s seizure to his deficient searches and unexplained absences, noting that
“[c]orrelation . . . does not establish causation.” Op. and Award at 8-9.
      Finally, the arbitrator concluded: “There is nothing on this record to establish
that Patla, absent constant supervision, will perform with the proficiency as he had
in the past.” Id. at 9. Therefore, the arbitrator issued an award expressly denying
the Union’s grievance. Id. at 10.
      However, despite his denial of the grievance and his lengthy explanation of
his finding of just cause, the arbitrator posited that Patla’s “twenty-year record with
the [Department] cannot be ignored.” Id. at 9. Apparently based on that single
sentence, the arbitrator added a provision to his award, ordering the Department to
allow Patla to reapply for his prior K-9 sergeant position, and to reinstate him if he
can successfully meet the requirements of that position. Id. at 10.
      This appeal followed.
                                           II. Issue
      The Department contends the arbitrator’s award is not rationally derived from
the parties’ collective bargaining agreement. The Department argues the arbitrator
exceeded his authority by issuing an award outside the confines of the stipulated
issue submitted by the parties. Further, the Department asserts that the arbitrator
exceeded his authority and infringed on the Department’s managerial right under the
Pennsylvania Employe Relations Act (PERA)3 to select and direct its workforce.
                                       III. Discussion
      Our review of a grievance arbitration award under PERA is governed by the
standard of review known as the “essence test.” Office of the Attorney Gen. v.


      3
          Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101 - 1101.2301.


                                               5
Council 13, Am. Fed’n of State, Cty. & Mun. Emps., 844 A.2d 1217, 1222 (Pa. 2004).
The essence test has two prongs. First, we determine whether the issue submitted to
arbitration is encompassed within the terms of the collective bargaining agreement.
Second, we determine whether the arbitrator’s award can be rationally derived from
the collective bargaining agreement. We must uphold the arbitrator’s award if it can
be rationally derived from the terms of the collective bargaining agreement. Id.
                              A. The Submitted Issue
       The parties’ collective bargaining agreement provides, in pertinent part: “The
[Department] shall not demote, suspend, discharge or take any disciplinary action
against an employee without just cause.” R.R. at 299a. The parties’ stipulated issue
for arbitration related directly to the question of just cause for an employee
demotion. Thus, the issue submitted to arbitration was encompassed within the
terms of the collective bargaining agreement. Therefore, the first prong of the
essence test is satisfied.
                             B. Propriety of the Award
               1. The Arbitrator’s Authority to Provide a Remedy
       The Department argues the arbitrator exceeded his authority by issuing an
award outside the confines of the stipulated issue submitted by the parties. The
parties’ stipulated issue was whether the Department had just cause for demoting
and transferring Patla, and if not, what the proper remedy would be. Although the
arbitrator found just cause, he nonetheless proceeded to provide Patla with a remedy
by altering the Department’s action.      Therefore, the Department contends the
arbitrator’s award was not rationally derived from the parties’ collective bargaining
agreement. We agree.




                                          6
      “The jurisdiction of an arbitrator is restricted to resolving the dispute that the
parties have submitted for arbitration.” Dep’t of Corr. v. Pa. State Corr. Officers
Ass’n, 920 A.2d 989, 900 (Pa. Cmwlth. 2007) (DOC I) (citing Bensalem Twp. Sch.
Dist. v. Bensalem Twp. Educ. Ass’n, 512 A.2d 802 (Pa. Cmwlth. 1986)). A
stipulation of an issue to be arbitrated is a form of contract, and it determines the
scope of the arbitration, under general contract principles. Id. (citing Sley Sys.
Garages v. Transp. Workers Union of Am., 178 A.2d 560 (Pa. 1962)). Moreover, if
the parties’ collective bargaining agreement confines arbitrations to the precise
issues submitted, that contractual provision is binding. Id. at 901.
      Here, the parties’ collective bargaining agreement expressly limited
arbitration to the issue submitted, providing in pertinent part: “The arbitrator shall
be confined to the precise issue submitted for arbitration and shall have no authority
to determine any other issues not so submitted.” R.R. at 303a. That agreement was
binding. DOC I.
      The parties’ stipulated issue first required the arbitrator to determine whether
the Department had just cause to demote and transfer Patla; only if there was not just
cause did the arbitrator have authority to consider a remedy. This was true under
general contract principles based on the parties’ agreement as to the issue, as well
under the collective bargaining agreement. Accordingly, the arbitrator could not
consider any remedy for the Department’s disciplinary action unless the Department
lacked just cause for that action.
      Decisions in analogous cases have confirmed that an arbitrator lacks authority
to modify an employer’s disciplinary action that is supported by just cause. For
example, in Pennsylvania Liquor Control Board v. Independent State Stores Union,
553 A.2d 948 (Pa. 1989), a state store employee was suspended and later terminated



                                          7
after he falsified store records and misappropriated funds. The union filed a
grievance on his behalf, claiming he suffered from mental illness that caused his
misconduct.
      The collective bargaining agreement required “just cause” for disciplinary
action. Id. at 950. The parties stipulated to the precise issue for arbitration: “Was
the [g]rievant dismissed for just cause, and if not, what shall the remedy be?” Id.
      Applying concepts of intent and culpability analogous to criminal law, the
arbitrator found that the grievant’s conduct resulted from mental illness and was not
his fault.    Therefore, the arbitrator concluded there was not just cause for
termination. The arbitrator ordered the employer to reinstate the grievant and
provide him with an opportunity to demonstrate his recovery and capability of
responsible job performance.
      This Court affirmed the arbitrator’s award, but our Supreme Court reversed.
Citing the agency’s “fundamental responsibility to protect the integrity of its
operation,” our Supreme Court found:

      [T]he concepts of culpability and mitigation applicable in criminal law
      are not applicable to this area. In this setting the issue must be confined
      to the competency and ability of the employee to perform the tasks
      required by the position in which he is serving. The fact that the
      dereliction may not have been maliciously inspired or that at some
      future time the impediment which occasioned the unsatisfactory
      performance may be removed, has no place in the inquiry.

Id. at 953 (citing Phila. Hous. Auth. v. Union of Sec. Officers #1, 455 A.2d 625 (Pa.
1983) (public employer had an absolute responsibility to ensure the integrity of its
security force)).
      Here, the Department is responsible for safety and security in Pennsylvania’s
correctional institutions. See Iseley v. Beard, 841 A.2d 168 (Pa. Cmwlth. 2004).

                                          8
Thus, as in Pennsylvania Liquor Control Board, the Department has a responsibility
to ensure the integrity of its security force. Consequently, as our Supreme Court
concluded in Pennsylvania Liquor Control Board, the arbitrator was not permitted
to consider whether Patla may have recovered his capability of performing his
former job in the K-9 Unit. This is particularly true in light of the job requirement
of unsupervised performance and the arbitrator’s observation that Patla would need
constant supervision.
      In Manheim Central Education Association v. Manheim Central School
District, 572 A.2d 31 (Pa. Cmwlth. 1990), a union filed a grievance after a teacher
was dismissed for writing love letters to two female students. The collective
bargaining agreement required “just cause” for disciplinary action. Id. at 33. The
parties stipulated to the precise issue to be arbitrated: “Whether the grievant was
discharged for just cause? If not, what shall the remedy be?” Id. at 34.
      The arbitrator acknowledged that the grievant’s conduct constituted
“immorality” as that term was defined in the applicable statute. Id. at 32. However,
the arbitrator noted, as mitigating circumstances, the grievant’s exemplary
employment record during the prior 20 years, as well as serious emotional and
economic stress he was suffering during the time he wrote the letters. The arbitrator
concluded immediate termination was too severe a penalty in light of the mitigating
factors. The arbitrator ordered the district to allow the grievant to use all of his
accumulated sick leave before the termination would be effective.
       This Court determined that the arbitrator’s finding of immorality equated to
a finding of just cause. We observed that under the parties’ stipulated issue, the
arbitrator was to consider a remedy only if he determined there was not just cause
for the grievant’s dismissal. Citing Pennsylvania Liquor Control Board, we found



                                         9
that once the arbitrator concluded there was just cause for the discipline imposed,
his inquiry should have ended. Therefore, the arbitrator exceeded his authority by
ordering a remedy after finding just cause.
       Here, the arbitrator answered the parties’ stipulated issue by finding the
Department had just cause to demote and transfer Patla.                       We agree with the
Department that having reached that conclusion, the arbitrator lacked authority to
address the issue of a remedy.4 See Cent. Dauphin Sch. Dist. v. Cent. Dauphin Educ.
Ass’n, 767 A.2d 16 (Pa. Cmwlth. 2001) (citing Pa. Liquor Control Bd. and Manheim
Cent. Educ. Ass’n).
       Where an arbitrator exceeds his authority, his award cannot be rationally
derived from the collective bargaining agreement. Cent. Dauphin (citing Pa. Liquor
Control Bd. and Manheim Cent. Educ. Ass’n). Therefore, we agree with the
Department that the arbitrator’s award must be vacated to the extent that it purported
to order the Department to provide an opportunity for reinstatement even though
there was just cause for Patla’s demotion and transfer.
                         2. The Department’s Managerial Rights
       In an alternative argument, the Department asserts that the arbitrator also
exceeded his authority because his reinstatement directive impermissibly impinged
the Department’s managerial prerogatives, which are safeguarded by both the


       4
         The Union insists that even though the arbitrator found Patla committed the misconduct
charged by the Department, the arbitrator still had authority to alter the specific discipline imposed.
As a general statement of law, the Union is correct that a factual finding of misconduct does not
automatically equate to a legal determination of just cause. See Office of the Attorney Gen. v.
Council 13, Am. Fed’n of State, Cty. & Mun. Emps., 844 A.2d 1217 (Pa. 2004). However, that
statement of the law has no application in this case. Here, the arbitrator did not merely find
misconduct as a fact. Rather, he applied the legal principle of just cause to the facts surrounding
Patla’s conduct and its consequences to the affected institutions, and reached the express legal
conclusion that there was just cause for the Department’s demotion and transfer of Patla.


                                                 10
collective bargaining agreement and PERA. In light of our disposition of the
Department’s other argument, we need not reach this issue. However, we address it
briefly in the interest of completeness. We agree with the Department.
      In support of its argument, the Department cites Pennsylvania Department of
Corrections v. Pennsylvania State Corrections Officers Association, 173 A.3d 854
(Pa. Cmwlth. 2017) (DOC II). In that case, the grievant, a corrections officer, was
discharged for misconduct in the course of his supervision of inmates working in a
prison kitchen. An arbitrator found the Department had just cause to discipline the
grievant, but not to discharge him. The arbitrator reduced the discharge to a
suspension and directed the Department not to assign the grievant to supervise
inmates on his return. However, supervision of inmates is fundamental to the
Department’s operations and is a duty common to all its corrections officers.
Restricting the Department’s placement of a corrections officer to positions not
requiring inmate supervision would severely undermine the employee’s usefulness.
This Court therefore vacated the arbitrator’s award, finding that it infringed the
Department’s managerial rights because it “effectively created a second class of
corrections officers, one with less utility to the Department . . . .” Id. at 859.
      Here, the arbitrator specifically found: “There is nothing on this record to
establish that Patla, absent constant supervision, will perform with the proficiency
as he had in the past.” Op. and Award at 9. The arbitrator thus acknowledged that
Patla could not perform as a sergeant in a CO2 position with the K-9 Unit without
“constant supervision.” Id. However, the record indicates that position consists
almost completely of unsupervised work. Thus, as in DOC II, the arbitrator’s award
imposes a directive at odds with the fundamental nature of the position at issue. In
consequence, as in DOC II, the award impinges the managerial rights retained by



                                           11
the Department, under both the collective bargaining agreement and PERA, to select
and direct its employees.
                                  IV. Conclusion
      The arbitrator expressly determined the Department had just cause for
demoting and transferring Patla. The arbitration award expressly denied the Union’s
grievance. Therefore, the arbitrator’s reinstatement directive exceeded his authority
by going beyond the scope of the parties’ stipulated issue submitted to him.
Accordingly, we conclude that the portion of the arbitration award ordering the
Department to reinstate Patla if he met the K-9 Unit CO2 requirements was not
rationally drawn from the collective bargaining agreement.




                                       ELLEN CEISLER, Judge




                                         12
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania,           :
Department of Corrections,              :
                 Petitioner             :
                                        :
      v.                                : No. 802 C.D. 2018
                                        :
Pennsylvania State Corrections          :
Officers Association,                   :
                   Respondent           :


                                     ORDER


      AND NOW, this 13th day of May, 2019, the portion of the arbitration award
denying the grievance of the Pennsylvania State Corrections Officers Association
on behalf of Edward Patla (Patla) is AFFIRMED. The portion of the arbitration
award directing the Department of Corrections to allow Patla to reapply for a K-9
Unit position, and to reinstate him if he meets the qualifications for that position, is
VACATED.




                                        ELLEN CEISLER, Judge
