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 ...