Argued: February 12, 2014.
Appealed from No. M-12-021 and 13989. State Agency: Pennsylvania Labor Arbitration Panel.
Kelly S. Sullivan, Media, for Petitioner.
Thomas H. Kohn, Philadelphia, for Respondent.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge. OPINION BY JUDGE COVEY.
ANNE E. COVEY, Judge
The Pennsylvania Turnpike Commission (Commission) petitions this Court for review of the August 31, 2013 arbitration award (Award) sustaining Teamsters Local Union No. 77's (Union) grievance that the Commission violated the Collective Bargaining Agreement (CBA) by subcontracting grass cutting previously done by Union members. The issues before this Court are: (1) whether the Award is rationally derived from the CBA's plain language, and (2) whether the Award contravenes well-settled public policy. We affirm in part and vacate in part.
The Commission is responsible for operating and maintaining the Pennsylvania Turnpike (Turnpike) and numerous off-Turnpike properties. The Commission employs Union members to maintain the Turnpike pursuant to a CBA effective October 1, 2007 through September 30, 2011. Article 2 -- Management Rights -- of the CBA provides:
Section 1. Except as expressly limited by relevant statutes and codes or provisions of this agreement and reserving unto the Commission any and all management rights which, by law, may not be bargainable, the Commission shall have and retain, solely and exclusively, all other managerial responsibilities, power and authority, which shall include, but not be limited to: the right to establish policies; to establish, change or abolish job classifications or the job content of any classification; to hire, retire, demote, layoff and recall employees to work; to control and regulate the use of machinery, equipment and other property of the Commission; to introduce new or improved research, development and services; to determine the number and types of employees required and to assign work to such employees in accordance with the operational needs of the
Commission; and to direct the work force, except as expressly modified or restricted by a specific provision of this agreement. Absent an emergency or other operational need, the Commission will provide the Union with any new or revised policy 15 days prior to implementing the same.
Section 2. The listing of specific rights in this agreement is not intended to be nor shall it be considered restrictive or a waiver of any of the rights of management not listed and not specifically surrendered herein whether or not such rights have been exercised by the Commission in the past.
Reproduced Record (R.R.) at 6a (emphasis added). In Article 17 -- General Provisions, Section 3. Subcontracting -- of the CBA, the parties agreed:
The Commission may subcontract new construction; the reconstruction and rehabilitation of roadways, structures and facilities; the installation of new equipment; and all work incidental to the foregoing; and original equipment and facility warranties. The Commission agrees that it will not subcontract other work which, by past practice or tradition, it has not heretofore subcontracted. The Commission may subcontract work that either the employees are incapable of competently performing or which the Commission lacks the necessary manpower and/or equipment with which to perform such work.
R.R. at 36a-37a.
In 2010, the Commission's newly-installed Director of Maintenance, Todd Garrison (Garrison), analyzed the needs and demands of the Turnpike's maintenance departments. Garrison found that the Turnpike, particularly in District 4 (Trevose), was deteriorated due to neglected maintenance. Thereafter, the Commission implemented steps to reallocate maintenance resources to physical highway maintenance, emphasizing that when prioritizing maintenance department tasks, the primary focus was to be on safety. In 2012, the Commission obtained bids and eventually retained the services of a landscaping firm to mow the Commission's 25 off-Turnpike properties at Trevose. Until that time, Trevose shed equipment operators and summer interns mowed the off-Turnpike properties in that jurisdiction.
On July 31, 2012, Union Steward Robert Miller (Miller) filed a grievance claiming that the Commission violated CBA Article 17, Section 3 by using subcontractors to perform Trevose's grass mowing operations. See R.R. at 58a. On August 22, 2012, the Commission, by Trevose Superintendent Charles Jackson (Jackson), admitted that the mowing had been subcontracted, but denied violating the CBA, stating:
The reason behind this action is the amount of work that is needed on the highway. We do not have the man hours available to take care of both the work that needs to be done on the highway and the cutting of off[-T]urnpike properties. The [C]ommission[']s first priority is always roadway maintenance[,] therefore the grass cutting was subcontracted out.
R.R. at 60a.
The Union appealed from the Commission's denial under Step 2 of the grievance procedure. See R.R. at 59a. By December 19, 2012 letter, the Commission's Manager of Labor Relations Patrick Caro, likewise, denied the grievance, stating that " due to the changes in traffic volume and the Maintenance Department's strategic planning, the current workload o[f] the employees at Trevose Maintenance does not allow the time nor the manpower to properly maintain 25 off-[Turn]pike properties.
Therefore[,] the decision was made to subcontract the mowing." ...