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DIVISION 85 v. PORT AUTHORITY ALLEGHENY COUNTY (11/20/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 20, 1981.

DIVISION 85, AMALGAMATED TRANSIT UNION, APPELLANT
v.
PORT AUTHORITY OF ALLEGHENY COUNTY, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Port Authority of Allegheny County v. Division 85, Amalgamated Transit Union, No. SA 962 of 1980.

COUNSEL

Joseph J. Pass, Jr., Jubelirer, Pass & Intrieri, P.C., for appellant.

Jacques M. Wood, Vasilis C. Katsafanas and Sidney Zonn, Berman, Ruslander, Pohl, Lieber & Engel, for appellee.

Judges Mencer, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 62 Pa. Commw. Page 529]

In this appeal, Division 85, Amalgamated Transit Union (Union) challenges an order of the Court of Common Pleas of Allegheny County which set aside the award of an arbitration board and upheld the disqualification of Ellwood Tegtmeier (Tegtmeier) from

[ 62 Pa. Commw. Page 530]

    his position as a bus operator with the Port Authority of Allegheny County (PAT). We affirm.

The record reveals that Tegtmeier began his employment with PAT as a bus operator on April 16, 1976. In February or March of 1977, Tegtmeier was diagnosed as having diabetes which required insulin for control. Nevertheless, Tegtmeier continued to work as a bus operator and at no time informed PAT of his diabetic condition. In January 1980, PAT learned that Tegtmeier had diabetes and was insulin-dependent. Tegtmeier was promptly disqualified as a bus operator due to the possibility that he could suffer insulin shock while driving. The disqualification was required by a PAT Medical Department standard which provides, in pertinent part:

The standards required to be met are as follows:

12. Diabetes Mellitus

New -- Not acceptable for any job.

Old -- Operators or drivers of company vehicles or machinery not allowed to use Insulin Injections. May operate if controlled by diet or oral medication.

All other employees -- Must keep Diabetes under control medically, or by diet or may use insulin.

Note -- All diabetic employees must be under proper Diabetic control as determined by the Medical Department.

Union filed a grievance following Tegtmeier's disqualification seeking his reinstatement as a bus operator. PAT denied the grievance stating that "Decision to disqualify operator was made by PAT Medical Department." An arbitration board was subsequently selected and, after a hearing, the board issued a detailed opinion in which it concluded that although the medical standard was a proper, valid and reasonable exercise of PAT's managerial prerogative, the standard

[ 62 Pa. Commw. Page 531]

    collective bargaining agreement encompass the subject matter of the dispute. Leechburg Area School District.

With regard to the first issue before us, we conclude that the arbitration board did exceed its authority when it effectively created an exception to PAT's medical standard. In fact, we believe that the issue as framed by the arbitrators in this case is not arbitrable under the terms of the collective bargaining agreement. Pennsylvania labor policy requires that public employee grievances which arise from the interpretation of a collective bargaining agreement be submitted to arbitration. Section 903 of the Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.903. Where, as here, an arbitration board has interpreted an agreement in favor of the arbitrability of the grievance before it, a reviewing court should be slow to disagree. County of Allegheny v. Allegheny County Prison Employees Independent Union, 476 Pa. 27, 381 A.2d 849 (1977). Judicial review of the arbitrability of a grievance is limited to determining whether the parties entered into an agreement to arbitrate and whether the dispute falls within the arbitration clause. Shippensburg Area Education Association v. Shippensburg Area School District, 42 Pa. Commonwealth Ct. 128, 400 A.2d 1331 (1979).

The board of arbitration in the instant case defined the issue before it as follows: "Whether or not the grievant was properly disqualified by the Port Authority from operation of a passenger bus on discovery of his insulin use." (Emphasis added.) The grievances and arbitration clause of the collective bargaining agreement provides that where an employee is found to have been "unjustly suspended or discharged " (emphasis added) he must be reinstated to his former position. The law is clear that the authority of arbitrators is limited by the terms of the agreement and where, as here, the arbitration clause does not include

[ 62 Pa. Commw. Page 533]

    the matter of "disqualification," we must conclude that the propriety of an employee's disqualification is not within the terms of the agreement.*fn1 Thus, in our opinion, the issue is not arbitrable. See Neshaminy Federation of Teachers v. Neshaminy School District, 59 Pa. Commonwealth Ct. 63, 428 A.2d 1023 (1981).

After a thorough review of the pertinent agreement provisions we have concluded that the sole arbitrable issue which was before the board was whether or not the right to promulgate the subject medical standard was reserved by PAT under the following provision in the agreement:

Section 104 -- MANAGEMENT RIGHTS

The Employer reserves all rights and powers conferred upon it by the Constitution and laws of the Commonwealth of Pennsylvania, and of the United States, except as specifically modified by agreement between the parties.

On this issue the board stated that "the presumptive disqualification of insulin-dependent diabetics from the operation of Port Authority mass transit vehicles is found to be proper and reasonable and a valid exercise of managerial prerogatives." Having reached that conclusion, we believe the authority of the arbitrators was at an end. When the board nevertheless continued in its decision to interpret the medical standard

[ 62 Pa. Commw. Page 534]

    as it applied to Tegtmeier, the decision violated the "essence test." We think it is clear that the interpretation of a managerial policy, specifically reserved by the employer and not made a part of the collective bargaining agreement, is not rationally derived from that agreement. Thus, we must conclude that the arbitration board exceeded its authority when it created an exception to PAT's medical standard on diabetes mellitus and ordered that Tegtmeier be reinstated.

We finally note that even if the arbitrators' award satisfied the "essence test," we would consider that award to be contrary to public policy. PAT was created as a "body corporate and politic" pursuant to the Second Class County Port Authority Act (Port Authority Act), Act of April 6, 1956, P.L. (1955) 1414, as amended, 55 P.S. §§ 551-563.5. Section 1 of the Port Authority Act, 55 P.S. § 551 declares it to be the policy of the Commonwealth "to promote the safety and welfare of the inhabitants thereof" by the creation of port authorities for counties of the second class. Section 10, 55 P.S. § 560, provides that the use of authority facilities and its business operations are subject to rules and regulations adopted by the authority. Based on the admitted safety risks presented by the possibility of insulin shock as found by the arbitrators*fn2 we conclude that the medical standard here at issue promotes the declared public policy in favor of promoting transportation safety and was within the rule-making authority

[ 62 Pa. Commw. Page 535]

    of PAT. We further conclude that the arbitrators' award is inconsistent with that public policy and could be set aside on that ground. See Ludwig Honold Mfg. Co. at 1129, n. 27.

Having concluded that the board of arbitration exceeded its authority in interpreting PAT's medical standard we will not address the constitutionality of that standard since to do so would likewise require an interpretation of a matter beyond the scope of the collective bargaining agreement.

Order affirmed.

Order

And Now, this 20th day of November, 1981, the order of the Court of Common Pleas of Allegheny County, Case No. SA 962 of 1980, dated October 22, 1980, is hereby affirmed.

Disposition

Affirmed.


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