Appeal from the Order of Arbitrator Dr. John Perry Horlacher in case of Teamsters Local Union No. 77 v. Pennsylvania Turnpike Commission.
Theodore A. Schwartz, with him Howard J. Casper, Mark P. Muller, and Casper & Muller, P.C., for appellant.
Jay R. Braderman, Assistant General Counsel, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Rogers and Blatt. Judge Mencer did not participate. Opinion by President Judge Bowman.
[ 17 Pa. Commw. Page 239]
On November 25, 1972, at about 4:30 a.m., an employee (Ms. X) of the Pennsylvania Turnpike Commission (appellee) was allegedly observed making love to a
[ 17 Pa. Commw. Page 240]
turnpike patron while on duty. The alleged incident occurred inside the tollbooth to which Ms. X was assigned. By letter dated November 29, 1972, Ms. X was informed by appellee's personnel director that her services had been terminated as of the date of her alleged amorous adventure. Pursuant to the provisions of the collective bargaining agreement then extant between her union, Teamsters Local Union No. 77 (appellant), and appellee, Ms. X attempted to have her discharge overturned. Having not been resolved to the satisfaction of Ms. X and appellant, the matter was finally submitted to an arbitrator mutually selected by the parties. By award of the arbitrator dated July 6, 1973, Ms. X was reinstated to her former position, but without the benefit of the wages she would have earned had her discharge not originally taken place.
Appellant, on July 25, 1973, filed a complaint in equity praying this Court to reverse the arbitrator's award insofar as it refused back pay to Ms. X. By Order of this Court dated January 10, 1974, appellee's preliminary objections, in the nature of a demurrer, to the equity complaint were sustained. However, the same Order granted leave to appellant to petition for allowance of appeal under Pa. R.J.A. No. 2101. Appellant filed such a petition on January 24, 1974, and appellee once again responded with preliminary objections. By Order of this Court dated February 7, 1974, these preliminary objections were overruled*fn1 and the appeal was allowed.
The letter which informed Ms. X of her discharge from employment stated "behavior unbecoming an employee"
[ 17 Pa. Commw. Page 241]
as the reason therefor. In his opinion which accompanied the award reinstating Ms. X, the arbitrator did not consider the question of whether the alleged behavior of Ms. X constituted "just cause" for discharge, as required by Article 8 of the collective bargaining agreement. Ms. X's reinstatement was based upon appellee's failure to provide her with a written "warning notice of the specific complaint" against her (Article 8, Section 2 of the collective bargaining agreement). The question now before this Court is whether, under the terms of the collective bargaining agreement and in light of the circumstances surrounding the discharge and reinstatement, the arbitrator exceeded his power in not awarding back pay to Ms. X in conjunction with her reinstatement.
The United States Supreme Court has expansively defined the role of an arbitrator in a labor dispute in United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597 (1960): "When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. There the need is for flexibility in meeting a wide variety of situations. The draftsmen may never have thought of what specific remedy should be awarded to meet a particular contingency. Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of ...