Argued April 24, 2014.
Appealed from No. SA 10-970. Common Pleas Court of the County of Allegheny. Lutty, Jr., J.
Paul N. Lalley, Pittsburgh, for appellant.
David J. Mongillo, Pittsburgh, for appellee.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge. OPINION BY JUDGE McCULLOUGH.
PATRICIA A. McCULLOUGH, Judge
The Municipality of Penn Hills (Municipality) appeals from the May 30, 2013 order of the Court of Common Pleas of Allegheny County (trial court), which directed a grievance originally filed by the Municipal Employees Organization of Penn Hills (Union) on August 13, 2009, be submitted to a new arbitrator to hear and evaluate the case and render a decision on the merits. We affirm the trial court's order with a modification addressed below.
The underlying facts of this case are not in dispute. The Municipality and the Union are parties to a collective bargaining agreement (CBA). Article 19, Section 8 of the CBA includes a residency requirement, providing as follows:
All employees must live in the Municipality. In the event an employee is hired who lives outside the Municipality, he/she must, within one (1) year, move into the Municipality. Failure to comply
with this Section can result in an employee being discharged.
(Reproduced Record (R.R.) at 63a.) On August 5, 2009, Mohammed Rayan, the manager for the Municipality, sent identical letters to Mary Lou Flinn and Joseph Probo, code enforcement officers for the Municipality, requesting that they provide proof of their residency in the Municipality within ten days of the date of the letters. These letters noted that such proof could include a utility bill, property tax bill, or property deed. The letters further stated that if Flinn and Probo did not reside in the Municipality, they would have one year, until August 5, 2010, in which to establish such residency. The letters provided that if they did not provide the requested proof or change their residency by August 5, 2010, their employment with the Municipality would be terminated.
On August 13, 2009, the Union filed a grievance on behalf of Flinn and Probo asserting that: (1) the August 5, 2009 letters violated the " just cause" provision of the CBA by demanding that Flinn and Probo produce certain types of proof of residency when the specific types of proof necessary to satisfy the residency requirement had never been negotiated and the residency requirement had never been enforced previously; (2) the Municipality waived its right to enforce its residency requirement by not previously enforcing it; (3) the Municipality violated the anti-discrimination provision of the CBA by enforcing the residency requirement against union employees but not similarly enforcing it against non-union employees; and (4) the residency requirement was not uniformly enforced because some union members were not required to provide proof of residency.
The Union's grievance proceeded to a hearing before an Arbitrator on May 21, 2010. Before the Arbitrator, the Union argued that Flinn and Probo had provided adequate proof to satisfy the CBA's residency requirement, i.e., proof that they " live" in the Municipality. Additionally, the Union argued that the types of proof requested in Rayan's letters were not exclusive indicators of whether an employee " lived" in the Municipality. The Union characterized the requirement that Flinn and Probo produce a utility bill, property tax bill, or property deed as " inherently flawed, arbitrary and capricious." (R.R. at 85a.) In this regard, the Union asserted that ownership of property is not the equivalent of residency and that the Municipality " has required of the grievants something with which they cannot comply." (R.R. at 89a.) In response, the Municipality contended that Flinn and Probo have not provided adequate proof establishing that they " live" in the Municipality. The Municipality also cited Ordinance No. 1745 of 1982, which requires bargaining unit employees to adhere to the residency provisions of their respective labor agreements and identifies the failure to adhere as grounds for discipline or termination. (R.R. at 180a-90a.)
Rayan testified that he became the Municipality's manager in July 2009 and immediately sent out letters requesting that all employees provide proof of residency by submitting copies of their driver licenses. Rayan stated that he attempted to verify compliance with the residency requirement through the Allegheny County real estate website, after which he sent the letters to Flinn and Probo. Rayan acknowledged that, even though the residency requirement had been in place for nearly thirty years, it had not always been strictly enforced. (R.R. at 78a-79a.)
Flinn testified that she has worked for the Municipality for thirty-four years in various positions and has been with the Code Enforcement Division since 1993. Flinn stated that she has always lived in the Municipality, first with her husband on Poketa Drive in Penn Hills and, after her husband passed away, at 121 Opal Road in Verona. The parties stipulated that, although Flinn's mailing address indicates that Opal Road is in Verona, it is actually a Penn Hills address. Flinn also testified that she has always voted in Penn Hills, her voter registration reflects her address as 121 Opal Road, her driver's license, automobile registration, and W-2 reflect the same address, and she pays taxes to Penn Hills. She provided this information to Rayan. (R.R. at 79a-80a.)
Regarding her living arrangements, Flinn testified that she rents a room from a longtime family friend, but she does not have a lease. Flinn stated that she cannot provide any of the documentation requested by Rayan because she does not own property in Penn Hills and does not pay her own utilities. Flinn noted that she spends many nights in Monroeville at her daughter's residence because her daughter has two children who are severely disabled and require a great deal of assistance. (R.R. at 80a-81a.)
Probo testified he has worked for the Municipality since 1993 and has been with the Code Enforcement Division since 1998. Probo stated that he did not live in the Municipality when he was first hired but that he moved to Penn Hills shortly thereafter. Probo noted that he currently rents a room in a single-family dwelling located at 160 Claymont Drive that is owned by a friend's mother in exchange for $100.00 a month and help with chores, but he does not have a lease. The parties stipulated that, although Probo's mailing address reflects that Claymont Drive is in Verona, it is actually a Penn Hills address. Probo also testified that he cannot provide any of the documentation requested by Rayan because he does not own property in Penn Hills and does not pay his own utilities. Probo provided Rayan with copies of his voter registration card and driver's license reflecting the above address, as well as pay stubs indicating that taxes are paid to the Municipality. (R.R. at 81a-82a.) On cross-examination, Probo acknowledged that his wife and son reside at 2033 Haymaker Road in Monroeville and that he does not always sleep at 160 Claymont Drive. Probo explained that he and his wife were married in August 2008 and that the home in Monroeville is in his wife's name. (R.R. at 82a-83a.)
Cathy Zegarelli, Union president, testified that she has been active in every negotiating session with the Municipality for the past fifteen years. Zegarelli stated that the Union had asked the Municipality to either remove or enforce the residency requirement during the latest talks. Zegarelli noted that the Municipality was not interested in changing the requirement. (R.R. at 83a.)
By decision and award dated August 9, 2010, the Arbitrator essentially denied the Union's grievance. The Arbitrator concluded that the Municipality had not waived its right to enforce its residency requirement. Additionally, the Arbitrator specifically rejected the Union's allegations that the Municipality discriminated against Flinn and Probo because of their activities with the Union; the Municipality violated the CBA by enforcing the residency requirements against union members differently ...