In November 2017, the Commonwealth Court of Pennsylvania issued an opinion concerning an arbitrator’s reinstatement of a state correctional officer (“CO”). The CO was responsible for monitoring inmates who worked on the prison’s loading dock. As far back as 2015, the CO’s supervisors noticed unauthorized food items in the dock area. Despite instruction to remove all unauthorized food from the dock, the CO continued to allow inmates to remove food from deliveries, and he personally took food for himself. Finding that he violated several orders, the CO was temporarily removed from his position and later reinstated. Shortly after his reinstatement, a routine search of the dock again found contraband food. This time he was discharged.
The CO filed a grievance and later submitted the issue to arbitration, claiming that the Department of Corrections violated the collective bargaining agreement by discharging him without just cause. The arbitrator agreed and reinstated the CO with a 30-day suspension. The arbitrator found that the CO was not irredeemable, just that “he should not be in a position which requires his supervision of inmates.” The arbitrator noted that the CO must have agreed with his inability to supervise inmates because he applied for, and was granted, a transfer to a guard tower position prior to his termination. Thus, the arbitrator found there was just cause to discipline the CO, but termination was not warranted.
The Department appealed the arbitrator’s award to the Commonwealth Court. The Court reviewed the award using the well-established “essence test,” which is a highly deferential standard. The essence test requires the court to affirm an arbitrator’s award so long as it can be rationally derived from the collective bargaining agreement. The Department argued that the award was not rationally derived from the CBA. It asserted that the award required it to employ a CO who could not perform the functions of the job, i.e. the care, custody and control of inmates. The Commonwealth Court agreed.
The court held that since the arbitrator found that the CO should not be in a position which requires supervision of inmates, the CO could not perform the statutorily-defined duties of a correctional officer. Thus, reinstatement would force the Department to employ an officer with limitations on his ability to interact with inmates. The court found this was in direct contradiction to the managerial rights enumerated in the CBA, which provided the Department had authority to direct its workforce to satisfy its operational needs. Accordingly, the court found arbitrator’s award was not rationally derived from the CBA.
For many public employers in Pennsylvania, the court’s decision is a welcomed limitation on the seemingly limitless power of arbitrators. It just makes sense that an arbitrator should not be permitted to reinstate an employee who the arbitrator himself has determined is incapable of performing his job.
However, a subsequent decision of the Commonwealth Court, analyzing a similar issue, has left some public employers scratching their heads. We will cover the subsequent decision in a post tomorrow.