              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Turnpike Commission,        :
                       Petitioner        :
                                         :
                   v.                    :
                                         :
Teamsters Local Union No. 77,            :   No. 1347 C.D. 2019
                       Respondent        :   Submitted: March 24, 2020


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                  FILED: May 1, 2020

             The Pennsylvania Turnpike Commission (Commission) petitions this
Court for review of the September 5, 2019 Arbitration Award (Award) sustaining
Teamsters Local Union No. 77’s (Union) grievance and reinstating Greg Cholish
(Grievant) to full duty with back pay. The Commission presents two issues for this
Court’s review: (1) whether the Award is rationally derived from the parties’
collective bargaining agreement (CBA); and (2) whether the Award contravenes well-
settled public policy. After review, we affirm.
             The Commission employed Grievant as a foreman/equipment operator at
its Wyoming Valley maintenance facility. On November 23, 2018, Grievant had an
accident with his personal four-wheel drive truck on his way to work. As a result of
this accident, he could not drive the truck home without new tires. As part of its
maintenance program, the Commission routinely changes tires on its trucks after
40,000 to 50,000 miles of use, and it pays a company (Company) to take away the old
tires. After a Commission first responder vehicle had its tires changed on or about
November 1, 2018, the tires were taken to the scrap trailer for the Company to pick
up. Grievant placed four of the tires from the scrap trailer on his vehicle.
             On November 28, 2018, Commission employee Tom Koslit (Koslit)
advised Grievant’s immediate supervisor Jai Mertz (Mertz) that Grievant had taken
the tires and Mertz needed to talk with Grievant about it. Mertz spoke with Grievant
that afternoon, and repeated what Koslit had said. Mertz advised Grievant that they
would have to speak further the following evening, when Grievant was scheduled to
work.   The following evening, Mertz met with Grievant and his shop steward.
Grievant initially admitted to taking one tire, and then later admitted to taking four
tires. Grievant was subsequently requested to, and did, submit a written statement, in
which he declared: “I [Grievant] am responding to accusations that I put some tires
on my personal vehicle, because I had damage to my sidewall and would have been
stuck at work without a way home. Planned on returning them once I got them
replaced.” Reproduced Record (R.R.) at 72a.
             Grievant also told the Commission’s then-District 5 Superintendent
Brian Toseki (Toseki) that he had damaged one truck tire on his way to work around
November 23rd, but he replaced all four tires because a four-wheel drive vehicle
cannot have a mismatched tire.       Grievant stated that he did not think to ask a
supervisor for permission to take the tires, and admitted that he made a mistake.
Toseki recommended Grievant’s employment termination because he committed
theft, a dischargeable offense under Article 25, Section 2C of the CBA.           The
Commission’s Chief Operating Officer Craig Shuey followed the recommendation,
and Grievant was removed effective November 28, 2018.
             On December 14, 2018, the Union filed a grievance on Grievant’s
behalf. On January 3, 2019, the Commission denied the grievance. The Union
appealed to arbitration and, on May 23, 2019, the Arbitrator held a hearing. On
September 5, 2019, the Arbitrator issued the Award, therein sustaining the grievance
                                            2
and reinstating Grievant to full duty with back pay. The Commission appealed to this
Court.
            Initially, “[this Court’s] standard of review of an arbitrator’s award is the
deferential essence test[.]” Upper Merion Area Sch. Dist. v. Teamsters Local #384,
165 A.3d 56, 62 (Pa. Cmwlth. 2017).

            In an effort to provide clarity, [the Pennsylvania Supreme
            Court] announced in [State System of Higher Education
            (Cheyney University) v. State College University
            Professional Ass’n, 743 A.2d 405, 412 (Pa. 1999),] that the
            essence test entails two prongs: ‘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].’ Id. at 413.

Millcreek Twp. Sch. Dist. v. Millcreek Twp. Educ. Support Pers. Ass’n, 210 A.3d 993,
1002 (Pa. 2019) (emphasis added).
            The Millcreek Court expounded:

            Emphasizing the import and impact of the essence test, [our
            Supreme Court] observed that a reviewing court ‘must
            accord great deference’ to an arbitration award. Cheyney,
            743 A.2d at 413. [The Pennsylvania Supreme Court]
            concluded in Cheyney that ‘in the vast majority of cases, the
            decision of the arbitrator shall be final and binding upon the
            parties.’ Id. [The Cheyney Court] framed the essence test
            as a narrow exception to this finality doctrine - the
            arbitration award must be affirmed unless it ‘indisputably
            and genuinely is without foundation in, or fails to logically
            flow from, the collective bargaining agreement.’ Id.
Millcreek Twp. Sch. Dist., 210 A.3d at 1002.
            Additionally, ‘[a]n arbitration award will not be upheld if it
            contravenes public policy.’ New Kensington-Arnold Sch[.]
            Dist[.] [v. New Kensington-Arnold Educ. Ass’n], 140 A.3d
            [726,] 736 [(Pa. Cmwlth. 2016)]. In considering whether an
                                           3
             arbitrator’s award violates public policy, the following
             three-step analysis is employed:
               First, the nature of the conduct leading to the discipline
               must be identified. Second[,] we must determine if
               that conduct implicates a public policy which is well-
               defined, dominant, and ascertained by reference to the
               laws and legal precedents and not from general
               consideration of supposed public interests. Third, we
               must determine if the arbitrator’s award poses an
               unacceptable risk that it will undermine the
               implicated policy and cause the public employer to
               breach its lawful obligations or public duty, given
               the particular circumstances at hand and the
               factual findings of the arbitrator.
             Id. (quoting City of Bradford v. Teamsters Local Union No.
             110, 25 A.3d 408, 414 (Pa. Cmwlth. 2011)[)].

Upper Merion Area Sch. Dist., 165 A.3d at 63 (emphasis added).
             The parties do not dispute that the first prong of the essence test is met in
this case. However, they disagree as to whether the Award satisfies the second prong
of the essence test. The Commission argues that the Award is not rationally derived
from the CBA. Specifically, the Commission contends that the Award disregarded
and vitiated Article 25, Section 2 of the CBA in its entirety. The Union rejoins that,
although the CBA specifies that theft is a dischargeable offense, the CBA does not
define theft. Because the Arbitrator concluded that Grievant did not engage in theft,
the Union asserts the Award did satisfy the essence test.
             At the outset, Article 25 of the CBA provides:

             DISCHARGE OR DISCIPLINARY ACTION
             Section 1. No employee shall be suspended or discharged
             except for just cause. It is understood and agreed that any
             employee who violates a Commission policy, rule or
             regulation or provision of this agreement shall receive a
             written warning for a first offense, a two (2)[-]day
             suspension without pay for a second offense and shall be
             subject to discharge for a third offense. A warning letter

                                            4
            shall remain effective for a period not exceeding six (6)
            months. A suspension shall remain effective for a period
            not exceeding twelve (12) months. The Union may appeal
            a discharge directly to the second step of the grievance
            procedure.
            Section 2. The following offenses shall constitute just cause
            for immediate discharge without adhering to the progressive
            disciplinary procedure described in Section 1 of this article.
            ....
            C. Theft, embezzlement or conviction of a felony.
            ....
            Section 4. No employee shall be disciplined unless he has
            been presented with the offense he has been charged with,
            in writing, and a copy sent to the Union and the Shop
            Steward. . . .

R.R. at 43a-44a (underline emphasis added).
            Further, Article 26 of the CBA states, in relevant part:

            The Arbitrator shall have no power or authority to add to,
            subtract from or modify the provisions of this [CBA] in
            arriving at a decision of the issue(s) presented and shall
            confine his decision solely to the application and
            interpretation of this [CBA]. The decision or award of the
            arbitrator shall be final and binding with the proviso that
            any decisions of the arbitrator or arbitrators requiring
            legislation will only be effective if such legislation is
            enacted.

R.R. at 46a (emphasis added).        The Commission asserts that the Arbitrator
disregarded the CBA’s plain language.

            [E]ven though an arbitrator is not permitted to ignore the
            [collective bargaining agreement’s] plain language in
            fashioning an award, the arbitrator’s understanding of
            the plain language must prevail. A reviewing court
            ‘should not reject an award on the ground that the arbitrator
            misread the contract.’ [United Paperworkers Int’l Union,
            AFL-CIO v. Misco, Inc.], 484 U.S. [29,] 38 . . . [(1987).]
            The law is clear that an arbitrator’s award must draw
                                          5
            its essence from the [collective bargaining agreement].
            It need not . . . reflect the narrowest possible reading of
            the [collective bargaining agreement’s] plain language.
            Cheyney, 743 A.2d at 411 (citing [United Steelworkers v.
            Enter. Wheel & Car Corp.], 363 U.S. [593] . . . [(1960)];
            see also Danville [Area Sch. Dist. v. Danville Area Educ.
            Ass’n, PSEA/NEA,] 754 A.2d 1255[, 1260] [(Pa. 2000)]
            (observing that an arbitrator ‘is not confined to the
            express terms’ of the [collective bargaining agreement]
            in discerning the parties’ intent). Even if a court’s
            interpretation of the [collective bargaining agreement] is
            entirely different than the arbitrator’s, the award must be
            upheld so long as it rationally derives from the [collective
            bargaining 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)] (holding that the essence test
            clearly does not permit the reviewing court ‘to intrude
            into the domain of the arbitrator and determine whether
            an award is ‘manifestly unreasonable’’).

Millcreek Twp. Sch. Dist., 210 A.3d at 1006 (emphasis added).
            Here, the Arbitrator opined:

            [T]heft, in the context of its general meaning in society, is
            the taking of something of value. Indeed, in labor relations,
            we routinely permit the immediate discharge of someone
            guilty of theft, for no employee has the right to rob its
            employer of any item of value belonging to the employer.
            Such an action manifests an irreparable breach of trust
            between employee and employer, and it is generally
            understood between parties and the neutrals interpreting
            their contracts, that employers need not maintain such
            employees on the payroll. However, the provision of
            agreement here certainly could not have meant that the
            parties were in agreement that such trust would be
            irreparably broken where an employee would take an
            item thrown on a scrap heap to be carted away. The
            mere fact that the item was thrown on the scrap heap . . .
            shows that the item is no longer desired by the
            [Commission], and is no longer of value to [it]. In sum, it is




                                           6
              trash. While the clear language of PTC-3[1] says that such
              property is not to be taken, the fact that such tires are
              placed in what is referred to as a ‘scrap trailer’ in the
              record, communicates a message to one and all that the
              items are worthless. At best, even if operators, as the
              [G]rievant, are made aware of the provisions of PTC-
              3,[2] the message given them by management is a mixed
              one as to whether or not such property is up for grabs.
Award at 5 (emphasis added). The Arbitrator, thus, concluded:
              While theft is clearly a dischargeable offense, there is a
              question as to whether such a phrase in the [CBA] even
              covers worthless items, such as those purportedly purloined
              here. Further, there is simply no persuasive evidence
              showing that [Grievant] was made aware of [the
              Commission’s] prohibition against taking these tires[.]
              Accordingly, the [Commission] did not meet its burden in
              establishing that [Grievant] had advance knowledge that the
              taking of such tires is viewed as theft. For these two
              reasons, I cannot find on the [Commission’s] behalf here.

Award at 6.
              This Court likewise cannot conclude that the Award “indisputably and
genuinely is without foundation in, or fails to logically flow from, the [CBA].”
Millcreek Twp. Sch. Dist., 210 A.3d at 1002 (quoting Cheyney, 743 A.2d at 413).
Although the CBA specifies that theft is a dischargeable offense, the Arbitrator
clearly did not interpret the taking of tires discarded in a scrap trailer as theft.

       1
         PTC-3 refers to the Commission’s arbitration hearing exhibit 3, a Commission manual rule
which states, in relevant part:
              Items determined to be of no value may not be acquired by
              [Commission] employees except for previously used shipping and
              packaging material (e.g.[,] skids, paperboard, cardboard boxes,
              binders). Packaging material that has further use to the [Commission]
              may not be taken. Supervisor approval is required prior to obtaining
              and/or removing previously used shipping and packaging material
              from Commission property.
R.R. at 76a.
        2
          The Arbitrator specifically found that “the record was devoid of evidence that maintenance
operators were even made aware of the rule in the manual.” Award at 5 n.6.
                                                 7
Consequently, the Union satisfied the second prong of the essence test. Accordingly,
“the [Award] must be affirmed.” Id.
               The Commission next argues that the Award directly contravenes well-
settled and long-recognized public policy that public employers have the right to
discharge employees who commit theft. The Union rejoins that the Award does not
pose an unacceptable risk of undermining the public policy against public employee
theft, and cites City of Bradford to support its position.
               The City of Bradford Court explained:

               The public policy exception . . . makes the third prong of
               the analysis ultimately determinative: Does the arbitrator’s
               award pose an unacceptable risk that a clear public policy
               will be undermined if the award is implemented? This
               question allows for consideration of the particular
               circumstances of the case and any attendant aggravating or
               mitigating factors. In short, the three[-]prong test to
               determine the public policy exception draws the necessary
               balance between the public employer’s duty to protect the
               health, safety and welfare of the citizens it serves, the fair
               treatment of public employees and the salutary goal of [the
               Public Employe Relations Act3 (]PERA[)] to insure the
               prompt resolution of labor disputes in binding arbitration.

City of Bradford, 25 A.3d at 415.            The City of Bradford Court concluded that
reducing the discipline from employment termination to a lengthy suspension without
pay, for a refuse collector who took money that spilled from an open purse in the
trash he was collecting “does not pose a significant risk of undermining the public
policy against theft or the City [of Bradford’s (City)] ability to faithfully serve its
citizens[,]” reasoning:

               The arbitrator . . . found several mitigating factors,
               including [the employee’s] prior good work history, the fact
               that the incident was isolated and not likely to be repeated

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


                                                8
                and that [the employee] made full, if belated, restitution of
                the money taken. Additionally, as [the trial court] noted,
                [the employee’s] job as a garbage collector did not put him
                in a position of trust with respect to the City’s or residents’
                property. Finally, [the employee’s] crime[4] was not
                planned, but rather opportunistic and he stole from a bag
                found in the trash, not in someone’s possession or on
                someone’s property.

Id. at 415-16.
                In the instant case, the Arbitrator expressly ruled that “the provision of
agreement here certainly could not have meant that the parties were in agreement that
such trust would be irreparably broken where an employee would take an item
thrown on a scrap heap to be carted away.” Award at 5. Further, the Arbitrator
concluded that Grievant could not have known that the Commission would “view[]”
the taking of the tires “as theft” under the CBA. Award at 6. Based upon the
Arbitrator’s findings, this Court holds that the Award does not pose an unacceptable
risk that a clear public policy will be undermined if the Award is implemented.
Accordingly, the Award does not directly contravene well-settled and long-
recognized public policy that public employers have the right to discharge employees
who commit theft.
                For all of the above reasons, the Arbitration Award is affirmed.



                                             ___________________________
                                             ANNE E. COVEY, Judge




      4
          The employee in Bradford pled guilty to the crime of theft.
                                                  9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Turnpike Commission,     :
                       Petitioner     :
                                      :
                  v.                  :
                                      :
Teamsters Local Union No. 77,         :   No. 1347 C.D. 2019
                       Respondent     :


                                    ORDER

            AND NOW, this 1st day of May, 2020, the September 5, 2019
Arbitration Award is affirmed.



                                    ___________________________
                                    ANNE E. COVEY, Judge
