OPINION BY JUDGE McCULLOUGH
General Teamsters Local Union No. 397 (Union) appeals from the January 19, 2018 order of the Court of Common Pleas of Erie County (trial court) granting the petition of the City of Erie (City) to vacate an arbitration award and reinstating the Citys termination of the employment of Kelly Kirsch (Grievant).
Facts and Procedural History
The following facts are garnered from the trial courts and Arbitrators opinions in this matter. Grievant was employed as an operator at the Citys wastewater treatment facility. (Arbitrators op. at 2.) He began this employment part-time in April of 2004 and later became full-time in September of 2009. Id.
2015 Arbitration Opinion and Award
Grievant was initially terminated from his employment effective March 17, 2015, based on a poor attendance history, multiple warnings, and three days of consecutive absences beginning on March 14, 2015. (Trial court op., March 16, 2018, at 1-2.) These absences resulted from Grievants arrest and incarceration on charges of driving under the influence and firearm possession charges. (Id. at 2.) The Union thereafter filed a grievance on Grievants behalf. Id. Following an arbitration hearing on December 16, 2015, Arbitrator Robert A. Creo issued an opinion and award concluding that the City did not have just cause to terminate Grievant and directing that he be reinstated to his former position with full back pay. Id. The City filed a petition to vacate the arbitration award but the trial court denied the same by order dated October 14, 2016, and the City did not file a further appeal. (Trial court op., March 16, 2018, at 2-3.)
2017 Arbitration Opinion and Award
On January 13, 2016, two days before the City filed its petition to vacate the 2015 arbitration award with the trial court, Grievant was arrested and incarcerated on drug charges. (Trial court op., March 16, 2018, at 3.) He had not yet returned to work at that time. Id. In February of 2016, the City made a position available to Grievant. Id. By letter dated February 24, 2016, the City notified Grievant that his continued absence from work and lack of an acceptable explanation for his absence led to the Citys determination to commence an action to again terminate his employment, but the City did afford him the opportunity to respond and offer any information he believed might mitigate the situation or cause the City to reverse its decision. Id. By correspondence dated March 9, 2016, the Union responded on Grievants behalf, advised the City of his incarceration, and noted his inability to return to work at that time. Id.
By letter dated March 21, 2016, the City advised Grievant of his termination effective that date, citing the Unions letter and the reason stated therein as an inadequate excuse for Grievants absence from his job. (Arbitrators op. at 2.) Two days later, on March 23, 2016, the Union filed a grievance on Grievants behalf alleging that Grievant was unjustly terminated in accordance with the just cause provisions of the parties collective bargaining agreement (CBA). Id. A new Arbitrator, Marc A. Winters, was appointed and a hearing was ultimately held on June 9, 2017. Id. at 2.
At this hearing, the City presented the testimony of Connie Cook (Cook), its Human Resources Manager. Id. at 6. Cook testified that the City could not hold a position open for Grievant. Id. Cook also indicated that Grievant himself, not the Union, should have contacted the City and explained his situation, namely his incarceration. Id. Cook stated that had Grievant contacted the City himself, the City may have considered not terminating him and allowed him to return to work. Id. at 7. Grievant testified on his own behalf, stating that he had never taken, sold, or manufactured narcotics prior to the Citys filing of its petition to vacate the 2015 arbitration award. Id. Grievant explained that subsequent to this filing he became depressed and felt that he had no alternative but to sell drugs to make money. Id.
By opinion and award dated June 16, 2017, the Arbitrator granted the grievance. The Arbitrator concluded that the City failed to establish just cause sufficient to warrant Grievants termination and directed the City to reinstate Grievant to his former position and to make him whole back to January 24, 2017. (Arbitrators op. at 9.) While emphasizing that Grievant was responsible for his own conduct, the Arbitrator agreed with the Union that the City, by not complying with the 2015 arbitration award, severely contributed to Grievants economic and emotional problems and distress. (Arbitrators op. at 7.) The Arbitrator also noted that the City made no argument that Grievants incarceration would adversely affect its public image or its operations, nor did it provide evidence as to any type of burden or hardship it would incur in holding Grievants position open until his release from jail. (Arbitrators op. at 7-8.) Finally, the Arbitrator characterized the Citys decision to terminate Grievant as arbitrary, capricious and unreasonable as the reasons given for the termination do not meet the elements of just cause. Id. at 9.
Trial Court Opinion
The City thereafter filed a petition to vacate the Arbitrators award with the trial court, arguing that the Arbitrator erred in misapprehending the reason for Grievants termination as his failure to offer an explanation himself for his absence, rather than its stated reason of unexcused absence from work. The City also argued, inter alia , that the Arbitrator erred in finding a right to reinstatement after incarceration for a period of 13 months; placing a burden on it to offer evidence or justification as to why it could not hold Grievants position open for 13 months; and finding that an open-ended incarceration is a valid excuse for absence from work.
By opinion and order dated January 19, 2018, the trial court granted the Citys petition to vacate and reinstated Grievants termination. The trial court concluded that the City reasonably terminated [Grievants] employment on March 21, 2016. The City, further, was not obligated to hold Grievants position open for an extended, indefinite, open-ended period of time. (Trial court op., January 19, 2018, at 3.) The trial court noted that the Arbitrators finding that there was no just cause for Grievants termination was not supported by the record, emphasizing that Grievants incarceration and the Citys inability to keep the position open indefinitely were adequate excuses and do satisfy the requirements of the CBA. Id. at 4. The trial court further explained that Grievants self-imposed problems are directly within the scope and context of Section 901[ ] and relate to an employees qualifications, performance, attitude, work habits or personal conduct. In this regard, the Arbitrator failed to apply the just cause definition as contained in the CBA. Id.
The Union thereafter filed a notice of appeal with the trial court. In compliance with an order from the trial court dated January 31, 2018, the Union filed a statement of errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure (Pa.R.A.P.). The Union alleged, inter alia , that the trial court misapplied the essence test in reviewing the Arbitrators award, substituted its judgment for that of the Arbitrator, ignored critical facts, and erred in concluding that the Arbitrators finding of an absence of just cause was unsupported by the record. In its Pa.R.A.P. 1925(a) opinion, the trial court stated that these issues were addressed in its January 19, 2018 opinion and did not need to be addressed further.
Discussion
On appeal, the Union argues that the trial court erred in vacating the Arbitrators award. More specifically, the Union argues that the Arbitrators award was rationally derived from, and drew its essence from, the parties CBA, and that the trial court exceeded its scope of review by substituting its judgment for that of the Arbitrator. We disagree.
This Court recently discussed the extremely deferential standard of review to be applied to labor arbitration awards in Northern Cambria School District v. Northern Cambria Education Support Professional Association, PSEA/NEA , 180 A.3d 517 (Pa. Cmwlth. 2018), stating as follows:
Under the exceptionally deferential essence test, an arbitrators award must draw its essence from the collective bargaining agreement. State Sys. of Higher Educ. (Cheyney Univ.) v. State Coll. Univ. Profl Assn (PSEA-NEA) , 560 Pa. 135, 743 A.2d 405, 413 (1999). When applying the essence test, an award should be upheld if: (1) the issue as properly defined is within the terms of the agreement, and (2) the award can be rationally derived from the agreement. Westmoreland Intermediate Unit # 7 v. Westmoreland Intermediate Unit # 7 Classroom Assistants Educ. Support Pers. Assn, PSEA/NEA , 595 Pa. 648, 939 A.2d 855, 863 (2007). That is to say, a court will only vacate an arbitrators award where the award indisputably and genuinely is without foundation in, or fails to logically flow from, the collective bargaining agreement. Cheyney Univ. , 743 A.2d at 413.
In reviewing an arbitrators award, we are mindful that an arbitrators findings of fact are not reviewable on appeal, and as long as he has arguably construed or applied the collective bargaining agreement, an appellate court may not second-guess his findings of fact or interpretation. Coatesville Area Sch. Dist. v. Coatesville Area Teachers Assn/Pa.State Educ. Assn , 978 A.2d 413, 415 n.2 (Pa. Cmwlth. 2009), appeal denied , 605 Pa. 677, 989 A.2d 10 (2010). A court may not reject an arbitrators findings simply because it disagrees with them, nor may the court substitute its judgment for that of the arbitrator. Am. Fedn of State, Cnty. & Mun. Employees, Dist. Council 88, AFL-CIO v. City of Reading , 130 Pa.Cmwlth. 575, 568 A.2d 1352, 1355-56 (1990).
Id. at 521.
In the present case, there is no question that the issue of just cause for Grievants termination was within the terms of the CBA executed by the City and the Union. As noted above, section 901 of the parties CBA only permits the dismissal of an employee for just cause. (R.R. at 86a.) This section goes on to define the just cause necessary for dismissal as relating to an employees qualifications, performance, attitude, work habits or personal conduct. Id. Hence, the only question that remained to be decided was whether the Arbitrators award was rationally derived from the agreement. The trial court concluded that it was not because the Arbitrator added a new provision to the CBA. In this regard, as the City points out in its brief, the Arbitrator essentially added a new, non-negotiated provision into the parties CBA, i.e. , requiring the City to hold open for an indefinite period of time the position of a Union employee. The trial court noted that Grievants self-imposed problems, most importantly his incarceration on drug charges, were directly within the scope and context of Section 901 and relate to an employees qualifications, performance, attitude, work habits or personal conduct. (Trial court op., January 19, 2018, at 4.) As a result of this incarceration, the Arbitrator and the trial court recognized that Grievant failed to report his absence to the City, which ultimately led to his termination.
The trial court also questioned the Arbitrators reliance on the Citys purported lack of evidence as to why it could not hold open Grievants position for an extended, indefinite period of time. The trial court noted that the Arbitrator himself recognized testimony from Cook, the Citys Human Resources Manager, that the City could not hold a position open for Grievant. See Arbitrators op. at 6. As the record reflects, Grievant remained incarcerated and unavailable to work for a period of approximately 13 months.
An arbitrators award cannot be said to draw its essence from a CBA, and consequently does not meet the essence test, where the award violates the express terms of a CBA by changing the language therein or by adding new and additional provisions . Millcreek Township School District v. Millcreek Township Educational Support Personnel Association , 179 A.3d 1167, 1173 (Pa. Cmwlth. 2018) (emphasis in original) (quoting American Federation of State, County & Municipal Employees, District Council 84 v. City of Beaver Falls , 74 Pa.Cmwlth. 136, 459 A.2d 863, 865 (1983) ). In Millcreek Township School District , an arbitrator interpreted a provision of a CBA that [n]o work of the bargaining unit shall be sub[ ]contracted for the life of the [CBA] as precluding the school district from issuing requests for proposals (RFPs). 179 A.3d at 1171, 1176. We noted that the language of the CBA was clear and unambiguous and completely silent on RFPs. Id. at 1172. We concluded that the arbitrator went outside of the CBA to make his determination, and, hence, his award was not rationally derived from the CBA.
Id. at 1173. Ultimately, we held that where the arbitrators words exhibit an infidelity to the agreement, courts have no choice but to refuse enforcement of the award. Id.
Moreover, as our United States Supreme Court explained long ago:
An arbitrator is confined to interpretation and application of the [CBA]; he does not sit to dispense his own brand of industrial justice. He may, of course, look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement.
United Steelworkers v. Enterprise Wheel & Car Corporation , 363 U.S. 593, 599, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).
Herein, in sustaining the grievance and directing that Grievant be reinstated to his former position with all attendant rights and privileges, the Arbitrator relied heavily on the fact that [t]here was no evidence or justification given as to why the City could not hold the Grievants position. (Arbitrators op. at 9.) However, there is no provision in the parties CBA obligating the City to hold a position open and allow a Union employee to return to his position after a lengthy and indefinite absence due to incarceration. As the City states in its brief, The Arbitrator essentially added to the CBA a right possessed by a union employee to reinstatement despite the employees indefinite unavailability. (Citys Brief at 9.) In other words, the Arbitrator went outside the terms of the CBA to find that an open-ended period of incarceration constituted a valid excuse for an employees absence. Similar to Millcreek Township School District and City of Beaver Falls , the Arbitrator added a new provision to the CBA, one that was not bargained for or agreed to by the parties. Hence, the Arbitrators award directing Grievants reinstatement was neither rationally derived from, nor drew its essence from, the CBA. Thus, the trial court did not err in granting the Citys petition to vacate this award.
Accordingly, the trial courts order is affirmed.
ORDER
AND NOW, this 3rd day of January, 2019, the order of the Court of Common Pleas of Erie County, dated January 19, 2018, is hereby affirmed.
Grievant was released from his confinement on January 23, 2017. (Arbitrator op. at 4.) By that time, the trial court had denied the Citys petition to vacate the 2015 arbitration award reinstating Grievant and said award had been confirmed and finalized. Id. On February 9, 2017, the Union filed an unfair labor practice charge with the Pennsylvania Labor Relations Board based upon the Citys failure to return Grievant to work or pay him back pay in accordance with the 2015 arbitration award. Id. The Union and the City later reached a settlement of this charge whereby the City agreed to pay Grievant his back pay consistent with the 2015 award. Id.
Section 901 of the CBA addresses the dismissal of an employee and provides, in pertinent part, as follows:
The Director of a Department may, with the approval of the Manager of Human Resource, dismiss the employee within his respective department at any time for just cause relating to qualifications, performance, attitude, work habits or personal conduct.
(Reproduced Record (R.R.) at 86a.)
In American Federation of State, County & Municipal Employees, District Council 84 v. City of Beaver Falls , the arbitrator concluded that an employees discharge was not for just cause because the notice of discipline issued by the employer was untimely (the notice of discipline was sent 42 days after the incident that led to the employees discharge) and constituted an affront to due process. 459 A.2d at 864. Because the CBA executed by the parties did not contain any provision regarding timely notification of discipline, the common pleas court set aside the arbitrators award. This Court affirmed the common pleas courts decision noting that the arbitrator improperly added a new time provision to the parties CBA. We held, We are aware that we must sustain the arbitrators award if it is based on anything that can be gleaned as the essence of the bargaining agreement, but this does not include changing the language of the contract or adding new and additional provisions. Id. at 865.