decided: March 20, 1985.
COMMONWEALTH OF PENNSYLVANIA, PETITIONER
JOINT BARGAINING COMMITTEE OF PENNSYLVANIA SOCIAL SERVICES UNION, ET AL., RESPONDENTS
Appeal from the Order of the Arbitrator in the case of In The Matter of Arbitration Between the Commonwealth of Pennsylvania and Pennsylvania Social Services Union, dated February 28, 1984.
Steven O. Newhouse, Assistant Counsel, with him, John D. Raup, Chief Counsel, and Frank A. Fisher, Assistant Counsel, for petitioner.
Bruce M. Ludwig, Stephen A. Sheller & Associates, for respondents.
Judges MacPhail, Barry and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Judge Williams, Jr., did not participate in the decision in this case.
[ 88 Pa. Commw. Page 322]
This appeal by the Commonwealth of Pennsylvania (Commonwealth) challenges an arbitration award rendered in favor of the Joint Bargaining Committee of Pennsylvania Social Services Union (Union) on the grounds that: 1) the award does not draw its essence from the Collective Bargaining Agreement (Agreement); 2) the arbitrator exceeded the scope of his authority; and 3) the arbitrator refused to allow the Commonwealth to present post-hearing evidence regarding bargaining history of the agreement. We affirm the arbitration award.
The Commonwealth employs Therapeutic Recreation Workers (employees), who are represented by the Union, at Norristown State Hospital. In May of 1981, the Commonwealth changed the employees' working hours and the employees submitted a grievance protesting the new schedule*fn1 on the ground that it violated various provisions of the Agreement.*fn2 In June of 1981
[ 88 Pa. Commw. Page 323]
the Commonwealth revised the schedules and the employees again filed a grievance.*fn3 Neither grievance was resolved and both were consolidated for arbitration. The arbitrator found that: 1) prior to May of
[ 88 Pa. Commw. Page 3241981]
the employees had been employed for a five-day, Monday through Friday, work week; 2) in May and June of 1981 the Commonwealth changed the employees' schedule; 3) the change was made so that the Commonwealth could avoid paying overtime; and 4) the avoidance of paying overtime was not "a legitimate operational reason which is not arbitrary and capricious." The arbitrator concluded that the Commonwealth had violated the Agreement and ordered that the pre-May, 1981 schedule be reinstated and that the employees be paid the amount of overtime which they would have received had they been working under the Monday-Friday schedules.
The Commonwealth first argues that the award does not draw its essence from the Agreement because the arbitrator looked to a previous arbitration award (Herring Award)*fn4 to help him determine whether the words "a legitimate operational reason" included avoiding paying overtime. This Court's scope of review of an arbitrator's award is limited to the "essence test":
[W]here a task of an arbitrator, PERA or otherwise, has been to determine the intention of the contracting parties as evidenced by their collective bargaining agreement and the circumstances surrounding its execution, then the arbitrator's award is based on a resolution of a question of fact and is to be respected by the Judiciary if "the interpretation can in any rational way be derived from the agreement
[ 88 Pa. Commw. Page 325]
viewed in light of its language, its context, and any other indicia of the parties' intention . . . ." (Citations omitted.)
Leechburg Area School District v. Dale, 492 Pa. 515, 520, 424 A.2d 1309, 1312 (1981).
Once it is determined that the subject matter of the dispute is encompassed by the terms of the collective bargaining agreement, this Court may not concern itself with the validity of the arbitrator's interpretation. Leechburg, 492 Pa. 515, 424 A.2d 1309. The dispute presented by the case before us is whether the Commonwealth violated the terms of the Agreement when it changed the employees' schedules. Article 6, Section 5 of the Agreement specifically addressed when and how an employee's schedule may be changed. It is therefore clear that the subject matter of the dispute is encompassed by the terms of the Agreement. The arbitrator was called upon to interpret the words "legitimate operational reason." In making his interpretation he looked to the Herring Award which had interpreted identical language.*fn5 This does not remove the award from the essence of the Agreement. In making an interpretation of the language of the Agreement
[ 88 Pa. Commw. Page 326]
the arbitrator is looking for the intent of the parties and may consider matters collateral to the Agreement in order to ascertain that intent. Joint Bargaining Committee of the Pennsylvania Social Services Union, Local 668 v. Commonwealth of Pennsylvania, 81 Pa. Commonwealth Ct. 126, 472 A.2d 1194 (1984).*fn6 We therefore hold that the award does draw its essence from the Agreement.
The Commonwealth's second argument is that the arbitrator exceeded the scope of his authority, in violation of Article 32, Section 2 of the Agreement,*fn7 by looking to the Herring Award in order to interpret the Agreement. "Because the arbitrator's interpretation of his authority is also subject to review by the essence test, the Commonwealth's contention adds nothing of substance to our analysis of the arbitrator's award." Commonwealth of Pennsylvania v. Joint Bargaining Committee of Pennsylvania Social Services Union, Local 668, 84 Pa. Commonwealth Ct. 613, 620, 480 A.2d 373, 377 (1984). It was not improper for the arbitrator to look to collateral matters to determine the intent of the parties; he did not, therefore, exceed his authority by doing so.
The Commonwealth's final argument, that the arbitrator erred in refusing to allow post-hearing evidence, is not properly preserved for appeal to this Court. There is nothing contained in the record to indicate
[ 88 Pa. Commw. Page 327]
that the Commonwealth objected to the Union's submission of the Herring Award, excepted to the arbitrator's ruling that the hearings not be reopened, or filed a post-award application to the arbitrator seeking correction or classification of the award. This Court is therefore unable to rule upon the issue within our appellate jurisdiction pursuant to which the Commonwealth filed its petition for review.
Accordingly, the arbitration award is affirmed.
And Now, March 20, 1985, the arbitration award in the above-captioned case, dated February 28, 1984, is affirmed.
Judge Williams, Jr., did not participate in the decision in this case.