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Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA American Federation of State, : County and Municipal Employees, : District Council 47, Local 2187, : Appellant : : v. : : No. 1438 C.D. 2004 City of Philadelphia : Argued: November 1, 2004 BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE COLINS FILED: February 25, 2005 We consider the appeal of the American Federation of State, County and Municipal Employees, District Council 47, Local 2187's (Union) appeal of the decision of the Court of Common Pleas of Philadelphia County (trial court) denying the Union's Petition to Vacate an Arbitration Award in favor of the City of Philadelphia (City). We affirm the trial court. Some time prior to April, 1998, the Union became aware that non-Union personnel were performing work identical to that performed by Civil Service employees represented by the Union and included in the Local 2187 bargaining unit. The Union investigated and discovered that a large number of individuals had been hired as non-Civil Service, non-Union employees to perform work identical to that performed by Local 2187 members who were Civil Service employees. The Union's investigation revealed that this hiring had occurred over a period of at least six years and that the Civil Service Commission and/or the Mayor's Office had been aware of the practice since its inception. The Union filed a grievance on April 22, 1998, claiming that the transfer of work to non-Union employees violated their collective bargaining agreement, the Home Rule Charter and the Civil Service Regulations. The grievance was arbitrated before Richard Kasher (Arbitrator). The Arbitrator found that the record made before him established "without doubt, that a number of exempt employees [non-Civil Service] hired into positions such as After School Leaders, Library Technicians, TOT Recreation Leaders and several other classifications are, indeed, performing the same work as non-exempt, Civil Service employees who are part of the bargaining unit." The Arbitrator denied the grievance, however, because "the Recognition Clause here was negotiated in the context of the public sector, a public sector where the public employer, the City of Philadelphia, is governed not only by the contract but by the Home Rule Charter and the Civil Service Regulations, which overlay and interface with the collective bargaining agreement." The Union appealed the Award to the trial court, arguing that the un-rebutted evidence offered by the Union at the arbitration established a contract violation and that the rationale offered by the 2 Arbitrator for his denial of the grievance was flatly contradicted by the collective bargaining agreement and the regulations and statutes he relied on. There was, the Union asserted before the trial court, no basis to support the Arbitrator's conclusion that a Recognition Clause offers less protection to a union in the public sector than it does in the private sector, nor that there is any need for a scope clause before a contract can be found to protect the transfer of work outside the bargaining unit. The Union urged that many provisions of the collective bargaining agreement, in addition to the Recognition Clause, preserved bargaining unit work to the bargaining unit; these included, but were not limited to the Successor Clause, Separability and Saving Clause, Classification, Specification and Pay Change Clause, Subcontracting of Work Performed by the Bargaining Unit Clause, and the Use of Volunteers, Listing of Classes, Redesign of Government Initiative Clause, Grant Fund Positions Clause, and the Bargaining Unit Work Clause. The Union also urged the trial court to recognize that neither the Philadelphia Home Rule Charter nor the Civil Service Regulations permitted any elected or appointed official to create exempt positions outside Civil Service classifications that would allow non-Union workers to indefinitely perform work identical to that performed by the Civil Service employees represented by Local 2187. Such a practice, the Union said, was not only a violation of the collective bargaining agreement, but constituted a flagrant unfair labor practice that violated Act 195.1 The trial court denied the Petition to Vacate. Relying on the Arbitrator's conclusion that the collective bargaining agreement contained 1 Public Employe Relations Act; Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§1101.201-1101-2301. 3 no scope clause or "any specific delineation of the work that belongs to the members of the bargaining unit," it concluded that "the award was rationally derived from the collective bargaining agreement when viewed in context with the Home Rule Charter and the Civil Service Commission's exemption regulations." This appeal followed. The questions we are asked to consider are 1) whether the arbitration award that allows the City of Philadelphia to hire non-Civil Service, non-Union employees to perform duties identical to the Civil Service classifications of Local 2187 should be vacated because the award fails to draw its essence from the collective bargaining agreement; and 2) whether the arbitration award violates Philadelphia's Home Rule Charter and the Civil Service Regulations as they affect the collective bargaining agreement. Our standard for the review of arbitration awards is the "essence test" articulated by our Supreme Court in State System of Higher Education (Cheyney University) v. State College University Professional Association, 560 Pa. 135, 743 A.2d 405 (1999), that states, [A] reviewing court will conduct a two-prong analysis. First, the court shall determine if the issue as properly defined is within the terms of the collective bargaining agreement. Second, if the issue is embraced by the agreement, and thus, appropriately before the arbitrator, the arbitrator's award will be upheld if the arbitrator's interpretation can rationally be derived from the collective bargaining agreement. That is to say, a court will only vacate an arbitrator's award where the award indisputably and genuinely is without foundation in, or fails to logically flow from, the collective bargaining agreement. 4 743 A.2d at 413 (footnotes omitted) The issue before the arbitrator was whether the hiring of non- Civil Service employees to perform the same work as Civil Service employees violated the collective bargaining agreement. This issue is clearly within the terms of the collective bargaining agreement and thus we find that the first prong of the essence test is satisfied. We employ a deferential standard when we apply the second prong of the essence test and determine if an arbitrator's award is rationally derived from the collective bargaining agreement. We described this standard in Greater Nanticoke Area School District v. Greater Nanticoke Area Education Association, 760 A.2d 1214 (Pa. Cmwlth. 2000) [W]here a task of an arbitrator, PERA or otherwise, has been to determine the intention of the contracting parties as evidenced by their collective bargaining agreement and the circumstances surrounding its execution, then the arbitrator's award is based on a resolution of a question of fact and is to be respected by the judiciary if the interpretation can in any rational way be derived from the agreement, viewed in light of its language, its context, and any other indicia of the parties' intention. 760 A.2d at 1218 (quoting Community College of Beaver County v. Community College of Beaver County, Soc. Of Faculty (PSEA/NEA), 473 Pa. 576, 375 A.2d 1267 (1977). [A]n arbitrator must consider all the circumstances probative of the parties' intent and, where the COLLECTIVE BARGAINING AGREEMENT is 5 ambiguous, may rely upon both the language of the agreement and the extrinsic evidence in his interpretation. In this situation, the arbitrator's determination is to be given great deference. 760 A.2d at 1220. The Arbitrator concluded that the testimony of the Union's witnesses "was entirely credible and for all relevant purposes it was un- rebutted." He found that the testimony established to his satisfaction that "beginning in the late 1990s there was an increase in the number of exempt employees being hired into jobs whose work was substantially similar to the work customarily, ordinarily and regularly performed by members of Local 2187's bargaining unit." The Arbitrator found that "the City has, on occasion, been less than cooperative in complying with information requests from the Union, information requests which sought to discover the extent to which positions were being filled by exempt employees and/or the nature of the work being assigned to those employees." The Arbitrator concluded that "if the Recognition Clause was the sole contractual provision which the Arbitrator had to consider, then the grievance would be sustained." But the Arbitrator also noted the absence of a "so-called scope provision specifying the particular types of work that are reserved to the bargaining unit" and concluded that "there is no evidence that the contract contains any specific delineation of the work that `belongs' to the members of the bargaining unit." The Arbitrator went on to deny the grievance because "the Recognition Clause here was negotiated in the context of the public sector, a public sector where the public employer, the City of Philadelphia, is governed not only by the contract but by the Home Rule Charter and the 6 Civil Service Regulations, which overlay and interface with the collective bargaining agreement." Our review of the record convinces us that while the Recognition Clause recognizes the Union as "the sole exclusive representative for the purpose of bargaining in respect to wages, benefits, hours of employment or other terms and conditions of employment for the term of the Agreement for all employees of the Employer bargaining unit," it does not in any way speak to the work that is to be done by the members of the bargaining unit and we agree with Judge Carafiello's affirmance of the Arbitrator's finding that the collective bargaining agreement is devoid of any language that assigns specific work to the bargaining unit. In light of these findings, we conclude that the award satisfies the essence test, and we defer to the Arbitrator's decision to deny the grievance. Nanticoke; Cheyney. Accordingly, the order of the Court of Common Pleas of Philadelphia County in this matter is affirmed. _________________________________________ JAMES GARDNER COLINS, President Judge 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA American Federation of State, : County and Municipal Employees, : District Council 47, Local 2187, : Appellant : : v. : : No. 1438 C.D. 2004 City of Philadelphia : ORDER AND NOW, this 25th day of February 2005, the order of the Court of Common Pleas of Philadelphia County in this matter is AFFIRMED. __________________________________________ JAMES GARDNER COLINS, President Judge
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