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decided: June 30, 1982.


Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In the Matter of Arbitration between City of Pittsburgh and American Federation of State, County and Municipal Employees, District Council 84, Local No. 2719, No. SA 376 of 1981.


Bernard M. Schneider, Assistant City Solicitor, with him Mead J. Mulvihill, Jr., City Solicitor, for appellant.

Alaine S. Williams, Kirschner, Walter & Willig, for appellee.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 67 Pa. Commw. Page 282]

The City of Pittsburgh questions an order by the Court of Common Pleas of Allegheny County dismissing its appeal from an arbitrator's award which directed the city to appoint employee/grievant Pamela Swann, a member of the appellee-union,*fn1 as an Engineering Technician I (ET-I) with back wages.

Swann was one of three applicants for an ET-I position which the city posted in December of 1979. Without making a prior determination as to whether the applicants fulfilled the minimum qualifications, the Assistant Director for the Department of Personnel, who also functioned as the Secretary and Chief

[ 67 Pa. Commw. Page 283]

Examiner for the Civil Service Commission, forwarded the three applications to the Director of the Department of Public Works with directions to select an applicant and return the material to her. The applicant selected by the director was not a member of the collective bargaining unit; his experience included a summer job with a utility subcontractor -- background which the DPW Supervisor and Director found to satisfy the posted requirements.*fn2

Because she had not received any word on her first application, Swann applied again when, a month later, a second posting for the job appeared, directed to all interested persons and was not restricted to city employees only, as the first posting had been. Although similar, the job requirements were stated more specifically.*fn3 The Assistant Director for the Department of Personnel reviewed the thirty-five applications and concluded that Swann was not qualified.

Swann filed a grievance on the basis that she was not notified of eligibility for the ET-I position before the second posting, which allowed lesser qualified individuals

[ 67 Pa. Commw. Page 284]

    to apply before the list of eligible city employees was exhausted; she requested "[i]nstatement . . . prior to the hiring of any individual applying under the new advertisement." After a meeting with the Director of DPW, Swann amended her grievance; she requested retroactive compensation for an earlier period during which she had voluntarily assumed certain duties normally performed by ET-I's, so that she could learn the position while then working under a designation of Clerk-Typist for the DPW; she also requested immediate instatement in the ET-I position, rescission of her disqualification, and official notification of her eligibility. The city denied the grievance, claiming that the proper remedy was a proceeding before the Civil Service Commission.

The arbitrator based his order to grant Swann the ET-I position on Article XIV C of the collective bargaining agreement, which outlined the procedures for filling vacancies without an examination, holding that Swann was entitled to a "first look" preference in filling entry level vacancies as an employee member of the bargaining unit. Subsections (3) and (4) of that article state:

(3) It is agreed that only promotional vacancies above entry level will be filled in accordance with these procedures; however, the City will look first to and accept applications from its own employees, but shall not be limited to such employees in filling such vacancies. (Emphasis supplied)

(4) A qualified employee shall be one that meets the minimum requirements of the job classification as determined by the Civil Service Commission.

The arbitrator concluded that the "first look" preference applied only to entry level positions, with

[ 67 Pa. Commw. Page 285]

    the formal job vacancy assignment requirements of Article XIV C(2)*fn4 limited to non-entry level openings. He found that the contract was both specific and limited in its reference to "employees," those being "members of the bargaining unit under the contract as defined by the Pennsylvania Labor Relations Board in its case identified as PERA-R-8833-W."*fn5

The arbitrator outlined the scope of the contract preference:

While [the] preference does not guarantee appointment, it does place grievant ahead of non-bargaining unit applicants . . . [T]he Employer has the right to appoint other than its employees, so long as it does not act in an arbitrary, capricious or bad faith manner.

The pivotal issue defined by the arbitrator was whether the qualifications of the non-member applicant

[ 67 Pa. Commw. Page 286]

    ultimately selected were so significantly superior to Swann's that the city could ignore Swann's "first look" preference. Finding that the city failed adequately to check Swann's qualifications, thus arbitrarily excluding Swann and avoiding her contractual preference, the arbitrator sustained the grievance and ordered the city to appoint Swann an ET-I as of the date the other applicant had received the apointment, with damages from such date.*fn6

The city first questions the arbitrator's jurisdiction to determine Swann's qualifications for the position, contending that arbitration over the Civil Service Commission's hiring decisions is prohibited by the General Service Act,*fn7 which provides an exclusive procedure to challenge the Commission's initial determination as to qualification, and the Public Employee Relations Act.*fn8

[ 67 Pa. Commw. Page 287]

The contract's grievance procedure, found in Articles XV and XVI, provides for arbitration of "any complaint, dispute or request by an employee or the Union which involves the interpretation, application of, or compliance with the provisions of this Agreement." Article XXI, delineating the "Scope of Agreement," states: "[t]his Agreement spells out the total agreement in its entirety between the parties, including wages, salaries, pensions and all fringe benefits, and there shall be no other additions or changes during the term of the contract, except as mutually agreed to by the Mayor and the Union."

Our courts have been vigilant in protecting the arbitrator's domain, holding that the arbitrator must be permitted to decide the arbitrability of a matter, "unless the contract expressly excludes a particular grievance from arbitration." Mazzie v. Commonwealth, 495 Pa. 128, 432 A.2d 985, 990 (1981), citing Pittsburgh Joint Collective Bargaining v. City of Pittsburgh, 481 Pa. 66, 391 A.2d 1318 (1978) and Board of Education of the School District of Philadelphia v. Philadelphia Federation of Teachers Local No. 3, AFT, AFL-CIO, 464 Pa. 92, 346 A.2d 35 (1975). Where the arbitrator has decided in favor of the arbitrability of a grievance, reviewing courts have been reluctant to interfere. Mazzie, Shippensburg Area Education Association v. Shippensburg Area School District, 42 Pa. Commonwealth Ct. 128, 400 A.2d 1331 (1979).

[ 67 Pa. Commw. Page 288]

In Pittsburgh Joint Collective Bargaining Committee, the Supreme Court resolved the issue of the employer's capacity to submit an employee discharge dispute to arbitration, stating:

Where the decision to commit a matter to grievance arbitration arises from the terms of a contract between the parties rather than as a result of statutory mandates, the policy to favor this type of dispute resolution is even stronger. Here the alleged obligation to submit the question to arbitration flows directly from the terms of the collective bargaining agreement and not Section 903 of Act 195. The Union's argument is premised upon the fact that Sections 5 and 6 of the agreement provide the procedure for obtaining redress for the asserted grievance. (Footnote omitted.) This court has recognized that alternative dispute resolutions arrived at voluntarily by the parties to a contract is to be fostered. . . .

481 Pa. at 72, 391 A.2d at 1321.

With the procedure for filling vacancies clearly set forth in the contract, along with a grievance and arbitration mechanism for resolution of disputes arising from the terms of the agreement, we must follow the rationale of Pittsburgh Joint Collective Bargaining Committee that the city cannot refuse to abide by provisions for arbitration which were the result of good faith bargaining where to do so "would invite discord and distrust and create an atmosphere wherein a harmonious relationship would virtually be impossible to maintain." 481 Pa. at 74, 391 A.2d at 1322.

Thus here, as in other state and municipal employment relation situations, the aggrieved employee may elect the civil service remedy or the collective bargaining remedy.

[ 67 Pa. Commw. Page 289]

Absent specific contract language limiting review of job application determinations to the Civil Service Commission, we must hold that the arbitrator's decision to assume jurisdiction was rationally "derived from the collective bargaining agreement, viewed in light of its language, its context and any other indicia of the parties' intention." West Jefferson Hills School District v. Jefferson Federation of Teachers, 61 Pa. Commonwealth Ct. 374, 433 A.2d 643, 645 (1981) citing Port Authority of Allegheny County v. Amalgamated Transit Union, 492 Pa. 494, 497, 424 A.2d 1299, 1300 (1981). The state Supreme Court has reaffirmed the policy of broad judicial deference to an arbitrator's determination regarding the arbitrability of the subject matter of a grievance in Scranton Federation of Teachers, Local 11147, AFT v. Scranton School District (No. 413 January Term, 1979, filed April 19, 1982).

The city's assertion that the arbitrator had no contractual authority to review the ineligibility determination because that decision had not been re-examined by the Commission on appeal, and was therefore not final, is just an alternate statement of its argument that the civil service appeal process is the proper forum for relief, whether as a substitute for the arbitral process, or as a prerequisite to it.

Finding no error in the arbitrator's conclusion that the job qualification and application dispute was a proper subject of arbitration under the contract, we are precluded from further inquiry into the validity of his subsequent interpretation of its terms. Leechburg Area School District v. Dale, 492 Pa. 515, 424 A.2d 1309 (1981), Port Authority of Allegheny County.

Accordingly, we affirm the order of the common pleas court.

[ 67 Pa. Commw. Page 290]


Now, June 30, 1982, the order of the Court of Common Pleas of Allegheny County, dated July 16, 1981, No. SA 376 of 1981, is affirmed.



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