The opinion of the court was delivered by: Anne E. Covey, Judge
Argued: September 12, 2012
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
The Commonwealth of Pennsylvania, Department of Corrections (Department), State Correctional Institution at Pittsburgh (SCI-Pittsburgh) petitions for review of the February 29, 2012 grievance arbitration award (Award) reinstating corrections officers Harry Nicoletti, Kevin Friess, Tory Kelly, Jerome Lynch, Brian Olinger, Sean Storey, Kevin Johnson, and John Michaels (collectively, Grievants), and awarding them lost pay and benefits. The issues before this Court are: (1) whether the determination that the grievances were timely filed was rationally derived from the collective bargaining agreement (CBA); and, (2) whether the Award violates the well-defined, dominant public policy to ensure that inmates are free from staff abuse. We reverse.
The Pennsylvania State Corrections Officers Association (PSCOA) is the exclusive collective bargaining representative of Pennsylvania state corrections officers pursuant to the Public Employe Relations Act (Act 195).*fn1 Grievants are state corrections officers employed at SCI-Pittsburgh. Due to corroborated allegations of mistreatment of inmates temporarily housed in the reception unit (F-Block) at SCI-Pittsburgh, on January 5, 2011, Grievant Nicoletti was verbally suspended from his job pending investigation. A January 10, 2011 letter from then SCI-Pittsburgh Superintendent Melvin S. Lockett confirmed Nicoletti's verbal suspension. On February 7, 2011, PSCOA filed a grievance report on Nicoletti's behalf, alleging that he was disciplined in violation of the CBA.
On April 1, 2011, Grievants Friess, Kelly, Lynch, Olinger, Storey, Johnson and Michaels were verbally suspended from their jobs at SCI-Pittsburgh pending investigation. April 1, 2011 letters from Superintendent Lockett confirmed their verbal suspensions. On June 27, 2011, the PSCOA filed grievance reports on their behalf alleging that they were disciplined in violation of the CBA.
By agreement of the parties, a bifurcated and expedited arbitration hearing was held before Ronald F. Talarico (Arbitrator) on October 28, 2011 as to, inter alia, whether the eight grievances were timely filed. On February 29, 2012, the Arbitrator issued the Award, stating that the grievances were timely filed and were, therefore, arbitrable. The Department appealed to this Court.*fn2
The Department argues that the Arbitrator's determination that the grievances were timely filed was not rationally derived from the CBA. We agree. At the time of the suspensions, the Grievants were subject to a CBA between the Commonwealth and the PSCOA, effective July 1, 2008 to June 30, 2011. Article 26, Section 1 of the CBA, proscribes that the Department "shall not . . . suspend . . . an employee without just cause," and "[a]n employee may appeal a . . . suspension . . . beginning at the first step of the grievance procedure, subject to any conditions set forth in . . . Article 35. . . . ." Reproduced Record (R.R.) at 56a.
Article 35 (Grievances and Arbitration), Section 1 of the CBA authorizes an employee to challenge disciplinary actions either pursuant to the CBA's grievance procedures, or through the Pennsylvania Civil Service Commission. Article 35, Section 2 of the CBA provides that an employee, alone or by the PSCOA, "shall present the grievance in writing to the respective institution . . . within fifteen (15) working days of the date of the occurrence giving rise to the dispute, or when the employee knew or by reasonable diligence should have known of the occurrence." (Emphasis added). R.R. at 74a, 208a.
The CBA makes clear that suspensions may be grieved in writing within 15 working days of the suspension. Here, the parties stipulated that Nicoletti was verbally suspended on January 5, 2011, which was confirmed by letter dated January 10, 2011, yet his grievance was not filed until February 7, 2011, 28 working days after the letter was issued. It was also stipulated that Friess, Kelly, Lynch, Olinger, Storey, Johnson and Michaels were verbally suspended on April 1, 2011, and their confirmation letters were issued the same day, yet their grievances were not filed until June 27, 2011, 87 working days after the letters were issued. There is no indication in the record as to why the grievances were not filed within 15 working days.*fn3 Applying these facts to a strict reading of the CBA, Grievants' appeals were untimely, and should have been dismissed by the Arbitrator.
Instead, the Arbitrator held that continuing violations of the CBA give rise to continuing grievances and, under such circumstances, a delay in filing will do nothing more than limit the remedy, while the grievances remain viable. The Arbitrator concluded that "[t]ypically, suspensions are of a finite duration" and, despite that the CBA does not appear to limit suspension periods, he concluded that there is "no better example of what constitutes a 'continuing' violation than . . . [a suspension] for an indeterminate period of time . . . ." Department Br. App. A at 15-16. Having determined that each suspended day gives rise to a new occurrence, he held that all of the grievances in this case were timely filed. The Arbitrator did not cite specifically to any provision in the CBA to support his conclusion.*fn4
We recognize that a reviewing court owes great deference to an arbitration award. Under what is known as the 'essence test,' the award must be upheld if: (1) the issue as properly defined is within the terms of the collective bargaining agreement; and
(2) the arbitrator's interpretation can rationally be derived from the collective bargaining agreement. An arbitrator's award will be vacated only if it 'indisputably and genuinely is without foundation in, or fails to logically flow from, the collective bargaining agreement.' The test is not whether the reviewing court agrees with the arbitrator's interpretation of the collective bargaining agreement but whether the ...