Frank P. G. Intrieri, Jubelirer, McKay, Pass & Intrieri, Ernest B. Orsatti, Pittsburgh, for appellant.
Stephen A. Zappala, County Sol., Henry W. Ewalt, Sp. Labor Counsel, Pittsburgh, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Nix, J., did not participate in the consideration or decision of this case. Jones, Former C. J., did not participate in the decision of this case. Roberts, J., filed a dissenting opinion. Manderino, J., filed a dissenting opinion.
The question presented by this appeal is whether, in an arbitration of a grievance by public employees under a collective bargaining agreement, an award sustaining the grievance may properly be based on a practice of the parties which had obtained during a period prior to the agreement. Under the facts of this case and in light of the terms of the agreement, which contains no past practice clause nor any mention of the practice in question, but does contain an integration clause, we answer the question in the negative.
This case was initiated by the appellant, Allegheny County Prison Employees Independent Union (hereinafter "Union") when on May 10, 1972, it filed a grievance against the County of Allegheny (hereinafter "County") under the provisions
of a collective bargaining agreement between the parties.*fn1 The grievance concerned two aspects of mealtime conditions for guards working at the Allegheny County jail: The Union demanded that the officers' lounge where the guards took their meals be supervised at mealtime by a guard and that the guards be able to select for their meals any food available from the jail kitchen rather than being limited to the menus offered to the prisoners. The matter proceeded to arbitration and, following a hearing in which the County entered only a "special" appearance, the arbitrator issued an award which agreed with appellant's position and sustained the grievance. On appeal, the Commonwealth Court, in a unanimous opinion, set aside the arbitrator's award. County of Allegheny v. Allegheny Cty. Pris. Emp. I. U., 20 Pa. Commw. 173, 341 A.2d 578 (1975).*fn2 This Court then granted the Union's petition for allowance of appeal.
The ultimate question before us is whether the arbitrator's interpretation of the collective bargaining agreement*fn3
"'can in any rational way be derived from the agreement, viewed in the light of its language, context, and any other indicia of the parties' intention . . . .'"*fn4 Because we conclude that the negative answer which the Commonwealth Court gave to this question was correct, we affirm its order setting aside the award.
The threshold question in this case is whether the subject matter of the asserted grievance was arbitrable. As this Court noted in Board of Education of Philadelphia v. Federation of Teachers Local No. 3, 464 Pa. 92, 99, 346 A.2d 35, 39 (1975),*fn5 Pennsylvania labor policy not only favors but requires the submission to arbitration of public employee grievances "arising out of the interpretation of the provisions of a collective bargaining agreement".*fn6 See also Lincoln System of Education v. Lincoln Association of University Professors, 467 Pa. 112, 354 A.2d 576 (1976). From this policy is derived the corollary principle that where, as here, an arbitrator has interpreted a collective bargaining agreement
in favor of the arbitrability of the grievance before him, a reviewing court should be slow indeed to disagree.*fn7 As the Supreme Court of the United States observed in United Steelworkers of America v. Warrior & Gulf Navigation Company, 363 U.S. 574, 584-85, 80 S.Ct. 1347, 1354, 4 L.Ed.2d 1409 (1960):
"In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad." (Emphasis added).
After reviewing the applicable clauses of the collective bargaining agreement in question*fn8 we cannot say that the arbitrator was in error when he concluded that the dispute concerning the mealtime conditions of the employee guards arose out of the interpretation or application of the provisions of the agreement. We must, therefore, disagree with
the Commonwealth Court insofar as it held that the grievance filed by the Union was not arbitrable.
Turning to the substantive question of whether the arbitrator's award had a rational basis in the collective bargaining agreement, we must conclude that it did not. The agreement contains no provision whatever which deals either with the question of security arrangements for the employees' mealtimes or with what food should be available to the employees from the prison kitchen.*fn9
The arbitrator's decision that the union members were entitled to choose for their luncheons any food available in the prison kitchen and were not limited to the items available on the daily prison menu was based on what he found to have been the past practice of the parties over a period of time, a practice which, so the arbitrator held, had been ...