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COMMONWEALTH PENNSYLVANIA v. INDEPENDENT STATE STORES UNION (09/03/86)

decided: September 3, 1986.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, PETITIONER
v.
INDEPENDENT STATE STORES UNION, RESPONDENT



Appeal from the award of arbitrator, in case of Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board v. Independent State Stores Union, dated August 13, 1985.

COUNSEL

Frank P. Clark, Assistant Counsel, with him, John D. Raup, Chief Counsel, for petitioner.

Kimber L. Latsha, Killian & Gephart, for respondent.

Judges MacPhail and Colins, and Senior Judge Rogers, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 100 Pa. Commw. Page 273]

The Pennsylvania Liquor Control Board (Board) appeals from an arbitrator's award resolving the employee grievance of Albert McCardle. We affirm the arbitrator's award.

On July 13, 1984, Mr. McCardle was suspended from his position as a General Manager 1B at a State Store in Bridgeville pending investigation of charges related to falsification of records and manipulation of Commonwealth merchandise and funds. On August 23, 1984, the suspension was affirmed and Mr. McCardle was discharged. Mr. McCardle has never denied that he

[ 100 Pa. Commw. Page 274]

    committed the acts the Board claimed he committed; he claims, however, that his behavior was caused by a mental condition which compelled him to commit those acts. In accordance with the terms of a Memorandum of Understanding between the Board and the Independent State Stores Union (Union) and the mandatory arbitration provisions of the Public Employe Relations Act (PERA),*fn1 the grievance was submitted by the consent of the parties to "final and binding" arbitration.*fn2 On August 13, 1985, the arbitrator made an award reinstating Mr. McCardle as a Clerk II in accordance with the Union's request for a temporary demotion so that Mr. McCardle could prove himself capable once again to work in the board's employ.

Paragraph 15-A of the Memorandum states that "[t]he Commonwealth shall not demote for disciplinary reasons, suspend, discharge or take any other disciplinary action against any manager without just cause."*fn3 The issue presented to the arbitrator, as agreed to by the parties, was as follows: "Was the Grievant dismissed for just cause, and if not, what shall the remedy be?"

[ 100 Pa. Commw. Page 275]

The resolution of this case can be arrived at largely by keeping in mind the very limited scope of judicial review of arbitrators' decisions. Our Supreme Court has made clear that the "essence test" applies to our review of an arbitrator's award pursuant to Section 903 of PERA; an arbitration award must be upheld if it can in any rational way be derived from the collective bargaining agreement in light of language, context and other indicia of the parties' intention. Pennsylvania State Education Page 275} Association v. Appalachia Intermediate Unit 08, 505 Pa. 1, 476 A.2d 360 (1984); Community College of Beaver County v. Community College of Beaver County, Society of the Faculty (PSEA/NEA), 473 Pa. 576, 375 A.2d 1267 (1977). In Leechburg Area School District v. Dale, 492 Pa. 515, 424 A.2d 1309 (1981), our Supreme Court said that

[t]he essence test requires a determination as to whether the terms of the agreement encompass the subject matter of the dispute. Where it is determined that the subject matter of the dispute is encompassed within the terms of the agreement, the validity of the ...


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