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decided: October 3, 1986.


Appeal from the Order of the Court of Common Pleas of Centre County in the case of County of Centre, Centre County Prison Board v. Darrell Musser, Steve Brachbill and District 1199P, National Union of Hospital and Health Care Employees, AFL-CIO, No. 85-587.


Joseph M. Devecka, for appellants.

John W. Blasko, McQuaide, Blasko, Schwartz, Fleming & Faulkner, Inc., for appellees.

Judges Barry and Palladino, and Senior Judge Rogers, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 101 Pa. Commw. Page 194]

Darrell Musser and Stephen Brachbill (Guards) and District 1199P National Union of Health Care Employees,

[ 101 Pa. Commw. Page 195]

AFL-CIO, (Union) appeal from an order of the Court of Common Pleas of Centre County (trial court) correcting an award of arbitration by reversing the arbitrator and reinstating the Guards' discharge from their employment at the Centre County Prison. We affirm.

The Guards were employed as correction officers at the Centre County Prison. On August 30, 1984, notice of termination was given to the Guards. The Centre County Prison Board, (Prison Board) in whom authority for management of the prison is vested, ratified Warden Jeffrey Bell's discharge of the Guards. These discharges resulted from the physical abuse and shackling of inmate Robert Riggleman*fn1 in contravention of state

[ 101 Pa. Commw. Page 196]

    regulations.*fn2 On September 4, 1984, a written grievance was filed by the Union as provided by Article XXII of the Collective Bargaining Agreement (Agreement) between the County of Centre and the Union. After a

[ 101 Pa. Commw. Page 197]

    conference required by the grievance procedure resulted in a decision to affirm the dismissals, the Union notified the Prison Board of its intent to arbitrate the dismissal under the Agreement. The parties stipulated

[ 101 Pa. Commw. Page 198]

    that the dispute was procedurally and substantively arbitrable and that the labor agreement was the governing document in the matter.

[ 101 Pa. Commw. Page 199]

The arbitration hearing was held on January 22, 1985. On February 27, 1985, the arbitrator rendered an award in which he reversed the decision of the Prison Board to discharge the Guards. The arbitrator concluded that there was not cause for discharge. However, he also concluded that the Guards' conduct was deserving of some punishment. He then imposed a four-week suspension

[ 101 Pa. Commw. Page 200]

    to effectuate the employer's disciplinary objective.

The County of Centre and Centre County Prison Board (Respondents) petitioned the Court of Common Pleas of Centre County to modify, correct, or vacate the award of the arbitrator. On September 5, 1985, the trial court corrected the award by sustaining the Guards' discharge by the Prison Board. The Guards contend that the trial court erred in reversing the decision of the arbitrator. We disagree.

The Pennsylvania Supreme Court adopted*fn3 the "essence test" as the standard of judicial review of arbitration awards. 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), quoting United Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593, 596. The United States Supreme Court first announced this standard in Enterprise Wheel and Car Corp. :

[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may, of course, look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of award.

[ 101 Pa. Commw. Page 201]

In Community College of Beaver County, the Pennsylvania Supreme Court interpreted this standard of review, and stated that if the arbitrator's interpretation can in any rational way be derived from the agreement, viewed in light of its language, its context, and any other indicia of the parties' intention it is to be respected by the judiciary.

In reviewing the arbitrator's award in the instant case then, we will examine the issue, as framed by the arbitrator, and the result. Our purpose is to ensure that the authority granted has not been exceeded and that the conclusion draws its essence from terms of the Agreement. The law is clear that the authority of an arbitrator is limited by the terms of the collective bargaining agreement. Division 85, Amalgamated Transit Union v. Port Authority of Allegheny County, 62 Pa. Commonwealth Ct. 528, 437 A.2d 105 (1981).

The authority granted to the arbitrator can be found in Article XXII, Section 3(a) and Article XX, Section 4 of the Agreement which states in pertinent part:

Section 3 : (a) The arbitrator shall have no power or authority to add to, subtract from, or modify the provisions of this Agreement in arriving at a decision of the issue or issues presented and shall confine his decision solely to a determination of the facts and application and interpretation of this Agreement. . . .

Section 4 : Should a grievance over discharge or discipline go to arbitration for determination, the sole question to be decided by such arbitrator shall be a question of fact as to whether or not such employee was discharged for just cause. . . (Emphasis added.)

In accord with the aforementioned grant of authority, the sole question to be decided by the arbitrator is

[ 101 Pa. Commw. Page 202]

    whether there was just cause for discharge. To the contrary, the arbitrator framed the issue as follows:

Did the Employer have just cause to discharge the grievants on August 30, 1984, and, if not, what is the appropriate remedy.

Our review of the Agreement reveals no provision which grants an arbitrator the authority to fashion a penalty once just cause has been determined. Article XX, Section 1 states: "The sole right to discipline and discharge employees for just cause is retained by the county." Further, Article IV, Section 1, specifically reserves to the county the "right to discipline employees, including the right to suspend, lay off, demote and/or discharge employees for just cause. . . ." Upon reaching a just cause determination, the authority of the arbitrator was at an end. Therefore, the substitution of a four-week suspension for discharge was not within the authority of the arbitrator, and as a matter of law, it may not be upheld.

Section 501(a) of the Uniform Arbitration Act empowers a court to review an arbitrator's award:

     a court in reviewing an arbitation [sic] award pursuant to this subchapter shall, notwithstanding any other provision of this subchapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment nothwithstanding [sic] the verdict.

Uniform Arbitration Act, October 5, 1980, P.L. 693, No. 142 § 501(a); 42 Pa. C.S.A. § 7302(d)(2). In the instant case, the Guards argue that the just cause determination is a finding of fact which must be upheld if supported by the evidence viewed in a light most favorable to the award winner. This standard, they contend,

[ 101 Pa. Commw. Page 203]

    is applicable because in passing on a Motion for Judgment n.o.v., findings of fact will not be disturbed if supported by evidence. However, in Community College of Beaver County, the Court emphasized that the "essence test" is the standard of review of an arbitrator's award:

While introduction of the 'n.o.v.' concept into the field of arbitration may have been a new departure, it is hardly a radical change, nor does it dictate that a much closer or different scrutiny of an arbitration award will be available than under the approach of Enterprise Wheel and Car.

Community College of Beaver County, 473 Pa. 576, 589-590, 375 A.2d 1267, 1273 (1977).

The "essence test" requires the court to set aside an arbitrator's award which is unreasonable and does not draw its essence from the Agreement. Philadelphia Housing Authority v. Union of Security Officers, 500 Pa. 213, 455 A.2d 625 (1983). Therefore, the just cause determination is reviewable to ensure that it is reasonable and draws its essence from the Agreement.

The trial court considered Philadelphia Housing controlling in the determination of the present dispute. The trial court held that the arbitrator's award was not reasonable. We agree. In Philadelphia Housing, a security guard of the Philadelphia Housing Authority was discharged for defrauding an elderly tenant. There was a collective bargaining agreement which provided that "[T]he authority may for just cause take whatever disciplinary action it deems appropriate at its discretion." The arbitrator found that the security officer induced the tenant to part with his money by playing on their personal friendship. The arbitrator concluded that although some disciplinary action was appropriate, discharge was too severe. He reinstated the security officer and determined that the loss of back pay for eight months was "sufficient punishment".

[ 101 Pa. Commw. Page 204]

On appeal, the Pennsylvania Supreme Court reviewed the arbitrator's award to ensure that it was reasonable. Specifically, the Court considered the arbitrator's reasoning when he concluded that discharge was not warranted because the security officer induced the tenant to part with his money as a result of their personal friendship and not by taking advantage of his position as a security officer:

Such a distinction, however, does not mitigate the severity of the offense or justify the arbitrator's reversal of the Authority's decision to discharge a dishonest employee. The defrauding of an elderly tenant, whether by friend or stranger, by a housing authority security officer is unquestionably conduct justifying the officer's discharge. Indeed, such dishonest conduct constitutes an affront to the integrity of the entire Housing Authority security force . . . it is manifestly unreasonable to conclude that the Housing Authority could have intended to bargain away its absolute responsibility to ensure the integrity of its housing security force by discharging an officer who has defrauded one of the very people whom he is paid to protect. Having found that the security officer Green had defrauded an elderly tenant and then lied about his conduct, the arbitrator was without authority to overturn the Authority's discharge of Green.

Philadelphia Housing, 500 Pa. 213, 216, 455 A.2d 625, 626 (1983). (Emphasis added.)

In the instant case, the arbitrator made the following findings:

[ 101 Pa. Commw. Page 205]

The evidence in this case reveals conclusively that Brachbill and Musser committed abusive acts toward Riggleman which were beyond the scope of their professional duties and quite Page 205} possibly violated state regulations. But the evidence is also undisputed that horseplay, which was at least similar in kind if not degree, had been tolerated at the prison for a long period of time. There is no indication in the record that any meaningful steps were ever taken to eliminate it or that any employee prior to Brachbill and Musser had ever been disciplined for the specific offense. Consequently, their discharges contravened one of the fundamental requisites of 'just cause' -- that is, the fair and non-discriminatory enforcement of rules.

All of the Union witnesses stated that grievants' misconduct was deserving of some punishment. Acting Warden Immel, who serves as the ranking managerial employee at the prison, stated that a two or four week suspension was a proper penalty. Finding that there was no cause for discharge, the Arbitrator accepts the recommendation of Acting Warden Immel that a four-week suspension will effectuate the employer's disciplinary objectives.

(Emphasis added.)

The fact that similar conduct previously went unpunished does not mitigate the severity of the Guards' conduct. The unauthorized shackling and cuffing of the inmate, the forced application of Ben Gay to the inmate's penis and testicles and the forcible insertion of a 2-inch spout into the inmate's anus is unquestionably conduct justifying the Guards' discharge. Having found that the guards "conclusively . . . committed abusive acts" against the inmate, and that their conduct was "deserving of some punishment", the arbitrator was without authority to overturn the discharge by the Board in whom the managerial prerogative to dispense

[ 101 Pa. Commw. Page 206]

    discipline was vested.*fn4 An arbitrator, as stated by the United States Supreme Court, "does not sit to dispense his own brand of industrial justice." Enterprise Wheel and Car Corp., 363 U.S. 593, 596 (1960).

We agree with the trial court's holding that

We hold that the arbitrator's decision to reinstate the Guards and impose a four-week suspension exceeded his authority. Further, his just cause determination was unreasonable and did not draw its essence from the terms of the Agreement. Therefore, the order of the Court of Common Pleas of Centre County must be affirmed.

As the resolution of this appeal is encompassed within the standard of review of arbitration awards, we

[ 101 Pa. Commw. Page 207]

    need not address Respondent's contention that the arbitrator's award was contrary to public policy. In view of our affirmance of the court of common pleas, we need not address the Guards' request for attorney's fees and delay damages.


And Now, October 3, 1986, the order of the Court of Common Pleas of Centre County at No. 85-587, dated September 5, 1985, is affirmed.



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