The opinion of the court was delivered by: Senior Judge Flaherty
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge, HONORABLE JIM FLAHERTY, Senior Judge.
The Pennsylvania Turnpike Commission (Commission), petitions for review from an Arbitration Award dated May 6, 2009 (Award), which sustained grievances filed by Teamsters, Local Union No. 250 (Local 250) on behalf of grievants Alex Lugin (Lugin) and Ken Fowler (Fowler) (Collectively, Grievants), and found that the Commission violated the Collective Bargaining Agreement (CBA) by utilizing supplemental employees outside the scope of the permissible reasons contained in Article 1, Section 3.E of the CBA, and determined that the "Commission must make the grievants in this instance whole for the situations of lost work opportunities." Award at 31. We affirm.
The Commission, Local 250, and Teamsters Local 77 (Local 77) are all parties to the CBA. The CBA covers toll collectors, maintenance employees, construction employees and supplemental employees. Local 77 represents employees employed in the eastern portion of the state, while Local 250 represents employees in the western portion of the state. Grievants, both toll collectors for the Commission, are members of Local 250.
A grievance was filed on behalf of Lugin on January 8, 2008, and on behalf of Fowler on January 10, 2008. The grievances were processed together, as both contested the Commission's use of supplemental employees in violation of Article 1, Section 3.E of the CBA.*fn1 On April 10, 2008, Local 250 filed two requests for grievance arbitration panels, one on behalf of Fowler, the other on behalf of Lugin. In September of 2008, the parties jointly agreed to select Michelle Miller-Kotula (Arbitrator) to serve as the arbitrator in this dispute. A hearing was held on December 10, 2008 and on February 17, 2009, during which the parties presented evidence. In arbitration, Local 250 requested the following remedy:
We are asking that the Arbitrator award back pay in the amount of time and one-half for all hours worked by supplemental employees when they worked beyond the parameters set forth in Article 1, Section E (sic), and that the Arbitrator order that the Employer cease and desist from ignoring Article 1, Section E (sic).
At the hearing, it was set forth that the Commission manages numerous turnpikes throughout Pennsylvania. It employs approximately 2,240 employees, 1,765 of whom are bargaining unit members, including 190 supplemental toll collectors. There are approximately 57 fare collection facilities throughout the state. The Commission is divided into six districts. Each district is composed of interchanges and within each interchange, there are various shifts.
Gary Pedicone (Pedicone) is the Secretary-Treasurer of Local 250 and Jock Rowe (Rowe) is the Secretary-Treasurer of Local 77. The jurisdictional split of Locals 250 and 77 (collectively, the Union) relates solely to daily operations. When negotiating with the Commission, both Locals represent the Union as a whole. Thus, anything that is negotiated and agreed to between the Commission and one of the Locals and ultimately placed in the CBA, applies to both Locals.
In 2007, the Commission and the Union began negotiations for a new multi-year CBA. Both Locals participated in the negotiations, which ultimately resulted in a new CBA, effective from October 1, 2007 to September 30, 2011. During negotiations, supplemental toll collectors were discussed. Local 77 took the lead with respect to negotiating changes to the scheduling of supplemental toll collectors.
From the Commission's standpoint, the changes were necessary to provide the Commission with more flexibility to deliver services in an efficient and cost effective manner. For the Union, the impetus for the change was to rectify a fundamental unfairness to the supplemental employees in the prior way of scheduling. Prior to the 2007 negotiations, a supplemental employee would designate a shift for which the supplemental employee was required to be available seven days a week until he or she obtained 40 hours. The shift was not limited to an interchange and that supplemental employee could be required to report to any interchange within the district for that shift. A supplemental employee could work only in the event there was a vacancy pursuant to Article 1, Section 3.E of the CBA. If the supplemental employee was not available during the designated shift, then he or she would face discipline.
During negotiations, the parties agreed to a procedure for scheduling supplemental employees, consistent with Article 1, Section 3.E. The scheduling provisions are set forth in Article 8, Section 8.B.2 which reads in pertinent part as follows:
2. Selection of work schedules and availability of supplemental employees.
a. Supplemental employees' lines shall be reselected in December of each year. Supplemental employees' schedules may need to be rescheduled every twenty-eight (28) days to accommodate the operational needs of the Commission.
b. Supplemental employees shall be permitted to designate by seniority during line selection the shifts for which they will be available for assignment. Once all lines are selected, the remaining supplemental employees shall select by seniority a location within the District within which he or she was hired. In the event that insufficient supplemental employees make themselves available by designation for a particular shift, the Commission shall assign shifts in inverse seniority order.
c. Once shifts are designated as above, a supplemental employee is expected to be available to work that shift as necessary. A supplemental employee who is unavailable for work on his designated shift more than ...