The opinion of the court was delivered by: Opinion BY Judge LEAVITT*fn1
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge
The Commonwealth of Pennsylvania, Department of Corrections (Department) petitions for review of a grievance arbitration award issued under the Public Employe Relations Act (Act 195).*fn2 The award designated those positions at state correctional institutions that, upon vacancy, will be filled by bid of corrections officers and not by choice of management. The Department challenges that portion of the award that grandfathered the bid post designations that had been made under 1988 contractual language that was later repealed. The Department asserts that this portion of the grievance arbitration award fails to draw its essence from the 2008-2011 Collective Bargaining Agreement. Concluding that the challenged portion of the award cannot be reconciled with the 2008-2011 Collective Bargaining Agreement, we vacate and remand.
A "bid post" is a job position at a state correctional institution that is filled according to the seniority of the corrections officers who bid on the position when it becomes vacant. Stated otherwise, the position is filled by choice of corrections officers and not by management. Generally, a bid post is considered a desirable position because it involves less contact with inmates and more regular hours. The designation of bid posts has been a longstanding point of friction between the employees and management. The Department seeks to preserve its management prerogative by limiting the number of bid post positions, and the corrections officers seek, logically enough, the opposite.
In 1988, the Department and the American Federation of State, County and Municipal Employees (AFSCME), which represented employees at state correctional institutions at that time, addressed the bid post designation issue in two "side letters" that amended the parties‟ collective bargaining agreement. The January 1988 side letter defined "bid posts" as:
[P]osts which are desirable because they involve considerably reduced and/or limited inmate contact and control and, consequently, involve less of the demands normally associated with exercising care, custody and/or control over inmates for an eight hour shift. Additionally, the work hours and/or days of such positions may be those typically considered as premium (i.e. 8:00 a.m. to 4:00 p.m., Monday through Friday), but not necessarily operated on those hours and/or days.
Reproduced Record at 997a (R.R. ___). In September 1988, a second side letter between the Department and AFSCME expanded the criteria to be used to designate bid posts. The September 1988 side letter stated:
Whenever agreement is reached between the local Union and Management, posts shall be designated as bid posts. The basis of such agreement may be either the definition outlined in #1 of the January 21, 1988, side letter or some other relevant factor(s).
R.R. 1001a (emphasis added). Using these side letters, local union representatives and local management designated certain job positions as bid post positions at their particular institution. There was no consistency in these bid post designations. For example, the position of transport officer could be a bid post at one institution and non-bid post at another, even though the job responsibilities were identical. This was because the parties could make the designation either by using the 1988 contractual definition of bid post or by using other "relevant factors."
In 2001, the Pennsylvania State Corrections Officers Association (Association) replaced AFSCME as bargaining agent for corrections officers and other state correctional employees. Interest arbitration established the parties‟ collective bargaining agreement for the period July 1, 2005, to June 30, 2008. Article 33, Section 18 of that agreement directed the 1988 side letters to remain in effect while the parties created a joint committee to address "the definition of bid posts and increasing the number of bid posts." Act 195 Interest Arbitration Award (2005-2008 Collective Bargaining Agreement), Article 33, Section 18; R.R. 345a. A committee was formed, but it could not develop a comprehensive definition of bid post before the expiration of the 2005-2008 agreement.
When the parties were unsuccessful in negotiating a post-2008 collective bargaining agreement, they proceeded to interest arbitration, which established the terms of a collective bargaining agreement for the period July 1, 2008, to June 30, 2011. The interest arbitration award extended all provisions of the 2005-2008 Collective Bargaining Agreement not explicitly modified by the interest arbitration. Act 195 Interest Arbitration Award (2008-2011 Collective Bargaining Agreement) at 15; R.R. 609a.
One of the provisions modified by the interest arbitration award was that relating to bid posts. The award repealed Article 33, Section 18 of the 2005- 2008 Collective Bargaining Agreement and the 1988 side letters. In its place, Section 8 of the 2008-2011 Collective Bargaining Agreement defined bid posts and mandated a procedure for resolving any disagreements about the application of the definition. Section 8 states, in relevant part, as follows:
Replace Article 33, Section 18, and the sideletters dated
January 21, 1988 and September 28, 1988, regarding bid posts with a new Article in the agreement, as follows:
1. A Bid Post is a Corrections Officer post that is desirable because it involves considerably reduced and/or limited inmate contact and control and, consequently, involves less of the demands normally associated with exercising care, custody and/or control over inmates for an eight hour shift. Additionally, the work hours and/or days of such positions may be those typically considered as premium (i.e. 8:00 a.m. to 4:00 p.m., Monday through Friday), but not necessarily operated on those hours and/or days.
7. Existing positions satisfying the above criteria shall be mutually identified in writing by the parties at each institution within three months of this Award. Disputes regarding the application of this criteria shall be resolved by direct reference to the grievance and arbitration process set forth in Article 35 of this collective bargaining agreement.
There shall be one state-wide grievance and arbitration proceeding to resolve all open issues regarding bid posts and existing positions.
9. Notwithstanding any provision of this article, any Restricted Housing Unit post shall not be considered a Bid Post. The agreed upon designation of Control Center posts in effect as of the date of this Award shall be maintained in effect. Any institution without an agreement on the Control Center post shall resolve that issue in accordance with the provisions found in paragraph seven (7).
This article will supersede the January 21, 1988 and September 28, 1988 sideletters on Bid Posts.
2008-2011 Collective Bargaining Agreement, Section 8; R.R. 602a-603a (emphasis added).
The Section 8 definition of bid post controlled the designation of all bid post positions in all correctional institutions, with two exceptions. First, the Restricted Housing Unit position was designated as a non-bid post position at every institution. Second, the Control Center position retained whatever bid post designation it had at a particular prison on the day the interest arbitration award was decided. Stated otherwise, the pre-2008 designations of Control Center positions were grandfathered. All other positions had to be designated using the definition of bid post and the procedures set forth in Section 8.
The 2008-2011 Collective Bargaining Agreement directed the parties to submit, in writing, within three months of the award, their agreement for each position at each institution that satisfied the criteria found in paragraph 1 of Section 8 for a bid post. 2008-2011 Collective Bargaining Agreement, Section 8, ¶7; R.R. 603a. If the parties could not do so, they had to resort to one state-wide grievance arbitration proceeding to resolve outstanding bid post designations.
The parties were unable to agree on a single bid post designation at a single institution. Accordingly, they submitted to grievance arbitration all bid post designations at every institution.
The grievance arbitrator used the definition in Section 8 of the 2008- 2011 Collective Bargaining Agreement to make his bid post designations. In doing so, the arbitrator formulated a three-factor test for assessing whether a particular job position "involves considerably reduced and/or limited inmate contact and control" and, thus, should be designated as a bid post:
(1) the number of inmates with whom an officer on the post has to have "contact" with and have "control" over; (2) the frequency during an eight hour shift that number must be contacted and controlled on the post; and (3) the intensity (otherwise described as the degree of effort) of the contact and control the officer must exert on the post.
Grievance Arbitration Award at 12-13. Applying these factors, the arbitrator designated all bid post positions, institution by institution. Neither party has challenged a single designation made by the arbitrator using his ...