The opinion of the court was delivered by: Judge Pellegrini
BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE JOHNNY BUTLER, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.
The Pennsylvania State Corrections Officers Association (Association) has filed a petition for review from an interest arbitration award (Award) that increased future retiree contributions for retirement health care benefits, changed the method of dispute resolution from grievance-arbitration to alternative dispute resolution, and allowed the Commonwealth to prohibit, after meeting and discussing the matter with the Association, smoking at the work site. For the reasons that follow, we affirm the Award regarding future retiree payments and smoking but vacate as to the requirement of alternative dispute resolution.
The Association and the Commonwealth of Pennsylvania, Department of Corrections and Department of Public Welfare (Commonwealth) were parties to an Act 195*fn1 Collective Bargaining Agreement (CBA) covering the period from July 1, 2005, through June 30, 2008. The Association requested the Commonwealth to initiate collective bargaining for a successor contract in May 2007 in anticipation of a long collective bargaining process. After the parties reached an impasse, the issue was referred to mediation in accordance with PERA. When mediation failed, the Association petitioned the Pennsylvania Labor Relations Board (Board) to proceed to binding arbitration in accordance with Section 805 of PERA, 43 P.S. §1101.805.*fn2
After the hearings, the Board issued an award setting forth terms and conditions of employment for bargaining unit members for the period of July 1, 2008, through June 30, 2011. The Association then filed a petition for review which is now before this Court seeking to vacate or modify the following portions of the Award, specifically:
* Item No. 4 regarding Article 24 -- (Employee Contributions) Eliminating the 1% cap on the retiree contribution rate and increasing it up to 3% by the year 2010;
* Item No. 18 regarding Article 8, Section 1 -- Requiring the pursuit of a grievance through Step 2 of the H-1 Alternative Dispute Resolution Process for complaints regarding food provided to the bargaining unit; and
* Item No. 7 regarding Article 33, Section 33 -- Allowing for policies to be established by the Commonwealth regarding the use of tobacco at the work site, including the prohibition of its use, after a "meet and discuss" with the Association.
Addressing the first item of the award relating to retirement health care, the Association argues that the Award increasing the 1% retirement contribution rate up to 3% constitutes a diminishment of a retirement benefit which was in excess of the Board's authority under Article I, Section 17 of the Pennsylvania Constitution.*fn3 Relying on Association of Pennsylvania State College and University Faculties v. State System of Higher Education, 505 Pa. 369, 479 A.2d 962 (1984),the Association contends that the diminishment of retirement benefits for present employees is prohibited by Article I, Section 17 of the Pennsylvania Constitution.*fn4
The Commonwealth, however, contends that the Association has waived this constitutional argument on appeal because it was never raised below before the arbitration panel. We agree. Pa. R.A.P. 1551(a) provides that any issue not raised before a "government unit" is considered waived on appeal. Pa. R.A.P. 101 defines "government unit" to include "a board of arbitrators whose determination is subject to review under 42 Pa. C.S. §763(b) (awards of arbitrators)." 42 Pa. C.S. §763(b), entitled "Direct appeals from government agencies/awards of arbitrators," gives this Court exclusive jurisdiction of all petitions for review of an award of an arbitrator disputed between the Commonwealth and Commonwealth employees or their representative/union. See Town of McCandless v. McCandless Police Officers Association, 677 A.2d 879 (Pa. Cmwlth. 1996). Under Pa. R.A.P. 1551(a), issues not raised before the arbitrator are waived on appeal before this Court.
Our review of the record indicates that during the arbitration process, the Commonwealth presented its proposed changes to the CBA regarding the increased retirement contributions, but the Association never raised any arguments that the proposed changes were prohibited by Article I, Section 17 of the Pennsylvania Constitution. Consequently, because the issue was never raised, it is now waived on appeal before this Court.*fn5
The Association challenges the method set forth in Article 8, Section 1 of the Award for addressing grievances involving food provided ...