The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Allegheny County, :
Pennsylvania, :
:
Appellant :
:
v. : No. 1122 C.D. 2023
: Argued: May 23, 2024
Allegheny County Prison Employees :
Independent Union :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE MATTHEW S. WOLF, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: August 7, 2024
Allegheny County (County) appeals from an order of the Court of
Common Pleas of Allegheny County (trial court) that denied its petition to vacate an
arbitration award (Arbitration Award) because the County failed to prove that the
Arbitration Award did not draw its essence and was not rationally derived from the
language of the collective bargaining agreement (CBA) between the County and the
Allegheny County Prison Employees Independent Union (Union). At issue is the
Union’s grievance over whether the County had just cause to discipline two
correctional officers (COs) employed at the Allegheny County Jail (ACJ), who each
received a one-day unpaid suspension for failing to report for mandatory overtime
shifts because they were too fatigued to ensure they could be alert on the required
overtime shift. The County presents two questions on appeal: whether the trial court
erred in denying the County’s petition to vacate the Arbitration Award where the
Arbitration Award amends the CBA regarding mandatory overtime and violates the
essence test; and whether the trial court erred in denying the County’s petition to
vacate the Arbitration Award where the arbitrator’s conflicting resolution of the
mandatory overtime dispute is not rationally derived from the CBA and violates the
essence test. After careful review, we affirm.
The background facts as found by the arbitrator are not in dispute.1 The
County operates the ACJ, and the County and Union are parties to a CBA that was
first entered into in 1994, which has been amended several times by way of binding
interest arbitration awards, the latest of which covers the period from July 1, 2019,
to December 31, 2023. Reproduced Record (R.R.) at 1a-139a.2 ACJ employees are
also subject to the County Code of Ethics through County Policy 605 (Code of
Ethics). Id. at 168a-181a.3 The Code of Ethics requires COs to be alert and vigilant,
1
The Arbitration Award, April 3, 2023, may be found in the Reproduced Record (R.R.) at
360a-88a.
2
Relevant here, Article IV.1 of the CBA provides that “[t]he Union recognizes that it is
absolutely necessary for the County to be operated on a twenty-four (24) hour, seven (7) day a
week basis and that the County’s operations be properly manned.” R.R. at 11a. Article VIII.1.F.
of the CBA requires that mandatory overtime be assigned in reverse seniority order and establishes
a procedure to equalize overtime among employees. Id. at 126a. Article XVIII.1 of the CBA
provides that the County has the right to discharge or suspend any employee for just cause. Id. at
35a.
3
The Code of Ethics provides, in relevant part, that certain behaviors by ACJ employees
are strictly prohibited, including “dereliction of duty,” defined as: “An [e]mployee who is derelict
has willfully refused to perform his/her duties or has incapacitated one[’]s self in such a way that
he/she cannot perform his/her duties. Such incapacitation includes but is not limited to falling
asleep on duty requiring wakefulness . . . .” R.R. at 170a. The Code of Ethics further provides
that “[a]ll employees will carry out all orders and directives issued or given them by a supervisor,
in a prompt and efficient manner. DISREGARD OF ORDERS AND DIRECTIVES ISSUED BY
A SUPERVISOR IN A WILFUL OR DILATORY MANNER WILL BE CAUSE FOR SEVERE
(Footnote continued on next page…)
2
particularly due to the security risks and dangers in the ACJ. The County reserves
the right to discipline COs for violations of the Code of Ethics, including the failure
to be sufficiently alert and vigilant while working. Id. at 365a. The ACJ houses
inmates in various units and pods and is continuously staffed with COs 24 hours per
day, 7 days per week, with scheduled shifts every day from 7:00 a.m. to 3:00 p.m.,
3:00 p.m. to 11:00 p.m., and 11:00 p.m. to 7:00 a.m. Id. at 363a. A CO may
volunteer or be mandated to work additional hours or shifts to cover staffing
shortages. Id. The County has always had the authority to determine when
additional COs are needed for a particular shift and to mandate COs work additional
shifts if sufficient volunteers cannot be obtained. Id. at 364a. The record reflects
that the County has been faced in recent years with an increasingly severe staffing
shortage, and the amount of forced overtime has increased substantially over the last
several years. The provisions in the CBA for mandating overtime utilize a process
of inverse seniority and the approximate equalization of overtime among employees.
The CBA also includes a provision whereby the Union and the COs accept
responsibility to exert “every effort to ensure that all shifts are properly manned at
all times.” Id. at 11a, 364a.
The arbitration proceeding arose out of two, essentially identical
disciplinary actions taken by the County against CO Justin Drexler (Grievant
Drexler) and CO Courtney Cornell (Grievant Cornell), (together, Grievants). R.R.
at 364a. The County issued Grievant Drexler a one-day unpaid suspension for
refusing a mandatory overtime shift on April 12, 2022. The County issued Grievant
Cornell a one-day unpaid suspension for refusing a mandatory overtime shift on May
10, 2022. Id. The Union grieved Grievants’ one-day suspensions, which proceeded
DISCIPLINARY ACTION UP TO AND INCLUDING DISCHARGE.” Id. at 176a (emphasis in
original).
3
through the grievance process and were consolidated before Arbitrator Ronald
Talarico for a final and binding determination. Id. A hearing was held before the
arbitrator on December 12, 2022, at which the County and Union were represented
by counsel and presented testimony and documentary evidence. The arbitration
hearing was not transcribed. The grievances arose out of similar situations “where
each CO was mandated to work an overtime shift and declined on the basis of
fatigue.” Id. There is no dispute that the County followed the process in the CBA
for mandating overtime for Grievants. The circumstances involved “multiple
consecutive days of mandatory overtime” which Grievants “claimed placed them in
a position of being unable to perform their jobs at the level of proficiency expected
by the County.” Id.
At the hearing, the County introduced evidence that approximately 60%
of COs at the ACJ have some sort of pre-approved intermittent leave under the
Family and Medical Leave Act of 1993 (FMLA).4 R.R. at 365a. A CO may avoid
or decline mandatory overtime by using FMLA where appropriate, or through
application of the Americans with Disabilities Act (ADA).5 Id. In addition, COs
can trade shifts and volunteer for overtime shifts to avoid mandated overtime on a
shift or unit that involves less desirable or more strenuous work. Generally,
however, COs understand they will be working a significant amount of overtime due
to staffing shortages at the ACJ, which have increased over the past several years.
Id.
Grievant Drexler began working as a CO at the ACJ in 2019, where he
was assigned to an acute mental health unit during the 11:00 p.m.-7:00 a.m. shift,
4
29 U.S.C. §§2601, 2611-2620, 2631-2634, 2651-2654.
5
42 U.S.C. §§12101-12213.
4
with Tuesdays and Wednesdays as his scheduled days off. R.R. at 365a. Grievant
Drexler worked four consecutive double shifts, 16 hours per day for four days
straight, on April 7, 8, 9, and 10, 2022. Id. Grievant Drexler was contacted during
his shift that started at 11:00 p.m. on April 11, 2022, and informed that he would be
required to work a fifth consecutive double shift, meaning that he would work his
regular eight-hour shift and then work a second eight-hour shift commencing at 7:00
a.m. on April 12, 2022. Id. Grievant Drexler informed his supervisor that he would
work his scheduled shift but refused the mandatory overtime shift. Grievant Drexler
testified that the basis for his refusal was his “fear that he would be unable to remain
sufficiently alert and vigilant to meet the County’s requirements, primarily due to
the lack of enough rest resulting from already working four, consecutive [16]-hour
workdays,” plus the regular shift on April 11, 2022. Id. The County requires a CO
to indicate the basis for refusing mandated overtime on a form, on which Grievant
Drexler marked “other,” because there was no specific designation for a CO to
indicate fatigue. Id. at 366a. Grievant Drexler explained his reason for refusing the
mandated overtime shift throughout the grievance process, during his pre-
disciplinary interview, and through his testimony at the arbitration hearing. Id. The
Union introduced documentary evidence that Grievant Drexler had worked 271
hours of overtime in the first three months of 2022, and 76 hours of overtime through
the end of April 2022. Id.
Grievant Cornell began working as a CO at the ACJ in 2019, where she
was assigned to a maximum security unit during the 11:00 p.m.-7:00 a.m. shift, with
Tuesdays and Wednesdays as her scheduled days off. R.R. at 366a. Grievant
Cornell worked three, consecutive double shifts, 16 hours per day for three days
straight, on May 6, 7, and 8, 2022. Id. Grievant Cornell was contacted on Monday,
5
May 9, 2022, and informed that she would be required to work a fourth consecutive
double shift, meaning that she would work her regular eight-hour shift on May 9,
2022 and then work a second eight-hour shift commencing at 7:00 a.m. on May 10,
2022. Id. Grievant Cornell informed her supervisor that she would work her
scheduled shift but refused the mandatory overtime shift. Grievant Cornell testified
that the basis for her refusal was her “fear that she would be unable to remain
sufficiently alert and vigilant to meet the County’s requirements, primarily due to
the fact that she had already worked three, consecutive [16]-hour workdays,” plus
the regular shift on May 9, 2022. Id. Grievant Cornell testified that she “ʻhit a wall,
became irritable, had trouble focusing and suffered memory problems,’ which she
felt rendered her unable to meet the County’s job requirements” on the mandatory
overtime shift on May 10, 2022. Id. Grievant Cornell also checked “other” on the
form refusing mandatory overtime. The Union introduced documentary evidence
that Grievant Cornell had worked 262 hours of overtime in the first four months of
2022, and 82 hours of overtime through the end of May 2022. Id. at 367a.
Grievant Drexler could have, but did not, refuse the mandatory
overtime under his pre-approved intermittent FMLA leave. Grievant Cornell did not
qualify for intermittent FMLA leave. R.R. at 367a. Some COs, including Grievants,
sought a meeting with the ACJ Warden, which was held on April 15, 2022, to
address COs’ concerns about the “extreme amount of mandated overtime” being
forced on staff, and how to alleviate the strain. Id. The Union asserted that this
effort by COs supported the claim that mandated overtime was pushing COs to the
point where they could not safely and properly perform their jobs. Id.
The County imposed the one-day suspensions on Grievants for, among
other things, disregarding the directive of a supervisor and dereliction of duty. R.R.
6
at 367a. The County asserted that more severe disciplinary action could have been
justified and that the level of discipline was reasonable. Id. at 368a. The County
also asserted that the Union and Grievants “planned the refusals” as a test case,
attempting to set parameters for other COs to refuse mandatory overtime. Id. The
Union maintained that Grievants approached the matter conscientiously and sought
a solution that would permit them to meet their work responsibilities safely. The
Union advocated for a case-by-case analysis for determining whether a CO could or
should refuse mandatory overtime based on genuine safety reasons. Id.
The issue presented to the arbitrator was whether the County had just
cause to suspend Grievants for one day without pay, and if not, what shall be the
appropriate remedy. R.R. at 368a. The arbitrator summarized the positions of each
party and observed that
there are very compelling interests on both sides of the
case. Both parties seek not only a decision on each
[g]rievance, but also guidance or precedent that will be
important moving forward. This is most likely because the
underlying circumstances that brought these situations
forward [increasing staffing shortages at the ACJ] are not
likely to go away anytime soon.
Id. at 377a. The arbitrator observed that the County has a “fundamental obligation
to maintain and operate the ACJ in a safe and secure manner,” and that safety
concerns “are implicated in every staffing decision made by the County.” Id. The
arbitrator explained that it was
not at all surprising that the County has for decades
handled short-term staffing issues by mandating COs to
work overtime, and this approach is plainly endorsed
through various provisions in the [CBA]. Part of that
procedure is to attempt an overall equalization of
overtime, but the final step in every short-staffing situation
is to mandate a [CO to work overtime.]
7
Id. at 377a-78a. The arbitrator identified the Union’s important interest as “being
able to deliver on the expectations the County sets out for its workforce: employees
in this dangerous and demanding environment must be alert and vigilant to help
maintain the safety and security of the ACJ.” Id. at 378a. ACJ employees are subject
to discipline under the Code of Ethics if they fail to remain alert and vigilant on duty.
COs also understand that “a situation can quickly turn dangerous even under the best
of circumstances,” and an employee who is “unduly fatigued or unable to focus on
his/her duties can present an immediate danger to themselves and others.” Id. The
Union posited that COs who must work long hours without adequate rest will have
their job performance “inevitably decline” to an unacceptable level. Id.
The arbitrator acknowledged that the County “has a very daunting
problem” in ascertaining whether a CO has reached the point of “an unacceptable
decline brought on by extended work hours and fatigue.” R.R. at 378a. The
arbitrator found that “anyone working multiple [16]-hour shifts for consecutive days
will sooner or later become tired or fatigued. The question is how to determine when
that tiredness or fatigue has actually reached a level that will significantly affect the
person’s job performance.” Id. Given that different employees will have different
capacities to adapt to the work scheduled, the arbitrator concluded that “[t]here are
no tests that can be administered beforehand to figure out if an employee is
sufficiently fatigued so as to be incapable of being sufficiently alert and vigilant; the
only ‘test’ is to examine on a post hoc basis the employee’s actual job performance.”
Id.
Critically, the arbitrator outlined what was properly before him, and
what was not.
It is very apparent that there is no contractual basis in the
parties’ [CBA] for an arbitrator to evaluate each case using
a bright-line rule where employees may refuse mandated
8
overtime due to fatigue. To the extent that such a bright-
line rule would be helpful or valuable, that is for the parties
to address through their negotiations. As noted above,
there are very serious concerns on both sides of the issue,
and the parties are best suited to determine (1) if there
should be a bright-line rule, and (2) how is that bright-line
applied in each case? Those answers simply cannot be
derived from a grievance/arbitration hearing.
R.R. at 379a.
The arbitrator concluded that “[i]t would be entirely inappropriate for
this [a]rbitrator to attempt to establish any type of bright-line rule on a subject over
which the parties have never been able to agree. The parties can and should address
the deeper issues between them when they engage in bargaining.” R.R. at 380a. The
arbitrator continued:
Accordingly, it is the intention of this [a]rbitrator to
evaluate each grievance solely on the facts and
circumstances unique to said [g]rievance and render a
decision that applies only to that [g]rievance. Drawing a
bright line to cover all situations is the responsibility of the
parties. Determining whether just cause existed in each of
these individual cases, without interfering in the overall
bargaining relationship, is within the authority of the
arbitrator.
Id.
The arbitrator acknowledged the County’s valid concern that allowing
employees to make the decision whether to refuse mandatory overtime would
endanger the safety of both staff and inmates. R.R. at 379a. The arbitrator found no
evidence in the record that Grievants “acted in concert, or that the Union encouraged
either officer to refuse a mandated overtime shift as a ‘test’ case.” Id. The arbitrator
further noted that it should be
obvious that any decision by an employee to disregard or
reject a directive of supervision challenges the very
bedrock of the employment relationship. The County
9
must show just cause for discipline in each of these cases,
but anytime an employee refuses a mandated overtime
shift, that decision must be closely scrutinized.
Id. at 380a. The arbitrator concluded that the burden is “largely on the employee to
demonstrate” he or she reached the level of fatigue that renders them incapable of
performing their job to the level required by the County. Id. According to the
arbitrator, this requires
a critical examination of the actual circumstances in which
the employee asserted an inability to safely perform the
mandated shift due to fatigue. To approach the case
otherwise (by establishing some outer limit of hours
worked after which any employee could refuse a mandated
shift on the basis of fatigue) would be to allow the
employees to manage the operations of the ACJ. The
County is correct that such an outcome would be directly
contrary to the unambiguous provisions of the [CBA]
securing the County’s managerial prerogatives.
Moreover, setting any such outer limit should be a matter
of bargaining between the parties. The decisions in this
case are limited to the facts presented with each
[g]rievance and are not intended to set any type of limit for
any other case.
Id. at 380a-81a (emphasis in original).
The arbitrator then focused on the “fundamental point of disagreement
between the parties,” namely, “whether there is any type of good-faith defense to the
alleged misconduct.” R.R. at 381a. The County maintained that employees must
obey the directives of management, and employees may not engage in “self-help”
when confronted with a directive they are unwilling to accept. Id. The Union
maintained that an employee should be able to present a good-faith defense to
charges of insubordination or dereliction of duty when fatigue resulting from
working a grueling schedule renders the employee “temporarily unable” to
competently perform their duties on the mandated overtime shift. Id. The arbitrator
10
recognized the well-established principle of “work now/grieve later,” instead of
allowing an employee to simply refuse to comply, which “would argue against any
type of good-faith defense.” Id. The arbitrator concluded that
[h]owever, in this situation, the County’s own job
requirements (and the express terms of the [CBA]) dictate
that the employees have a responsibility to help “assure
that all shifts are properly manned at all times.” Even
though this phrase supports the County’s premise that
employees are required to accept mandatory overtime
assignments, it also must be interpreted to impose an
obligation to be forthright when the employee knows they
cannot competently meet that obligation. An employee is
“not assuring that all shifts are properly manned” if the
employee is fully aware that they cannot work up to the
expectations required by the County.
Id. at 381a-82a (emphasis in original).
The arbitrator reasoned that an employee who accepts a mandatory
overtime shift when they are too fatigued to properly perform their duties creates a
safety risk. “When this occurs because the County has required the employee to
work a significant amount of overtime in a very short timeframe with little
opportunity for rest, it is not the fault of the employee that they have become
temporarily fatigued.” R.R. at 382a. But the employee “will face disciplinary action
for these circumstances outside of the employee’s ability to control, unless the
employee makes the decision to report even though they cannot competently
perform the job.” Id. The arbitrator concluded as follows:
There has to be room in the just cause analysis to
determine, first, if the employee was indeed confronted
with such circumstances, and second, whether those
circumstances served as a basis for refusal of a mandated
overtime assignment. This is both a subjective and
objective inquiry. To conclude otherwise would mean that
the employee would either have to: (i) accept the
11
assignment knowing full well that they were not going to
be able to fulfill the County’s expectations and in so doing
create an immediate risk of safety and security breaches,
or (ii) accept discipline for conduct that is beyond the
employee’s ability to control. One reason for progressive
discipline is to give an employee the opportunity to modify
their conduct so as to avoid more serious discipline in the
future, but if the discipline is based on factors outside of
the employee’s ability to control, the discipline becomes
arbitrary in nature and lacking in just cause.
Id.
Because Grievants were disciplined for “knowing” and “willful”
conduct in violation of the Code of Ethics, the arbitrator concluded that
the alleged grievances have a component of intent, and
therefore just cause requires the accused to be given the
opportunity to disprove that element of the offense.
Although it is necessary and appropriate that the
opportunity is very narrow, nevertheless each [Grievant]
must be given the opportunity to establish that they did not
have the requisite intent to act in a manner that would be
insubordinate or derelict in their duties.
R.R. at 383a. The arbitrator rejected the County’s reading of the CBA focusing only
on “mandatory overtime” as too narrow, because it failed to account for other
provisions that require “a more informed and balanced approach,” in particular the
just cause provision, the requirement that employees be wakeful and alert when
performing their duties, and employees’ responsibility to ensure that all shifts are
properly manned. Id.
Turning to the individual grievances, the arbitrator concluded that the
County had the burden to establish just cause for the one-day suspension imposed
on Grievant Drexler, which it did by bringing forth the facts that Grievant Drexler
was properly assigned to, and then refused to work, the mandatory overtime shift on
April 12, 2022. R.R. at 384a. At that point, the burden shifted to the Union to show
12
that Grievant Drexler’s refusal was not a willful disregard of his supervisor’s order
to report. Id. The arbitrator found that Grievant Drexler had already worked four
consecutive double shifts and that the mandated overtime shift would have required
him to work a fifth consecutive double shift over five days. Id. Grievant Drexler
“claimed at the hearing, and I [the arbitrator] credit his testimony, that he had
become genuinely concerned that he would not be able to continue to work safely if
required to work the fifth mandated [overtime] shift.” Id. The arbitrator also found
that the Union demonstrated that Grievant Drexler had a consistent record of
working a considerable amount of overtime leading up to, and following, the April
12th incident. Id. The arbitrator found nothing in the record to suggest that Grievant
Drexler was being less than genuine in asserting that his fatigue jeopardized his
ability to perform his job properly. Id.
The arbitrator then reviewed Grievant Drexler’s work schedule during
the week of April 7th and concluded that “during the 104-hour period from 11:[00]
p.m. on April 7th through 7:[00] a.m. on April 12th, [Grievant] Drexler had a total
of 32 hours where he was not on the clock at work.” R.R. at 384a. The arbitrator
concluded “[t]hat is an ambitious work schedule to say the least; suffice to say that
a workweek consisting of [72] hours of work in less than five calendar days gives
rise to some concern about whether the employee is fatigued to the point where the
job performance will suffer.” Id. The arbitrator then reviewed Grievant Drexler’s
work history in the months leading up to April 2022, and found that he worked 271
hours of overtime in the first three months of 2022, an average of 90 hours per
month, and 76 hours of overtime in April 2022. Id. at 384a-85a. The arbitrator
concluded that these figures supported the Union’s contention that Grievant Drexler
did not shirk his work responsibilities. Id. at 385a.
13
On the basis of these undisputed facts, the arbitrator found that the
“Union and [Grievant] Drexler presented sufficient evidence to show, on both a
subjective and objective basis, that [Grievant] Drexler had a genuine concern over
his ability to safely and properly perform his job” when he declined mandatory
overtime on April 12, 2022. R.R. at 385a. The arbitrator concluded that “[t]his
evidence, which is in the overall nature of an affirmative defense, satisfied the
Union’s burden to establish that [Grievant] Drexler, through no fault of his own, had
been placed in a situation where he was compelled to refuse” the mandatory overtime
shift on April 12, 2022. Id. The arbitrator then evaluated the County’s response to
the Union’s affirmative defense, where the County “did not offer any specific
evidence” to refute the reasons for Grievant Drexler’s refusal. Id.
The arbitrator then concluded that “[t]his is the point at which the
County failed to meet its overall burden to establish just cause.” R.R. at 385a. The
arbitrator again acknowledged the County’s compelling interest in ensuring staffing
at the ACJ but faulted the County’s response to Grievants’ fatigue as “robotic,”
because it failed to recognize the “simple fact that any employee will sooner or later
reach such a point if pressed hard enough.” Id. at 386a. The arbitrator concluded
that the language in the CBA that requires all parties to “ʻassure that all shifts are
properly manned at all times’” supports the conclusion that the CBA requires “not
only that there are enough staff but also that those staff are competent to perform the
expected job duties.” Id. Under the circumstances credited by the arbitrator, “it
would have been improper” for Grievant Drexler to report to work for mandatory
overtime on April 12th when he was temporarily unable to perform his expected
duties due to fatigue, and face discipline for failing to remain alert on duty. Id.
14
The arbitrator admitted that it is not at all clear what the County’s
response should be when an employee genuinely expresses a concern about their
ability to work a mandated overtime shift due to fatigue that is supported by both
subjective and objective evidence. R.R. at 386a. “What is clear is that a blanket
refusal to accept [Grievant] Drexler’s decision in this specific situation, without
allowing for the possibility that [Grievant] Drexler had legitimately reached the
point of being temporarily unable to work the extended shifts” without any
consideration of the subjective and objective evidence present, was not “an adequate
response in this case.” Id. at 386a-87a. The arbitrator concluded that
[w]here the circumstances compelling the refusal are
beyond the employee’s control, there is no basis to
sanction the employee. The County’s approach arbitrarily
ruled out any consideration of this possibility, even though
there were objective factors supporting [Grievant]
Drexler’s claim. For this reason, the effort to impose
discipline was arbitrary and not grounded in just cause.
Id. at 387a. The arbitrator further explained that the record was ambiguous regarding
the County’s treatment of other COs who refused mandatory overtime, or any
specific evidence regarding COs use of intermittent FMLA leave, and that this factor
did not impact the outcome in either direction. Id.
The arbitrator followed the same analysis for Grievant Cornell and
found that she “credibly testified” that she felt she had “temporarily reached the limit
of her ability to competently perform her job duties” for the mandated overtime shift
on May 10th. R.R. at 387a. The arbitrator found, “under the particular
circumstances here” there was at least “some objective evidence” that Grievant
Cornell had worked consecutive double-shifts before her refusal, worked significant
overtime hours in the months before, and immediately after, her refusal, which the
County did not refute. Id. The arbitrator then concluded that the County failed to
15
establish just cause for imposing discipline on Grievant Cornell and sustained the
Union’s grievances. Id. at 388a.
The County filed a petition to vacate the Arbitration Award with the
trial court, that denied the petition because the County failed to prove that the
Arbitration Award did not draw its essence from, or was not rationally derived from,
the language of the CBA. Trial Court Opinion, December 18, 2023, at (unnumbered)
4.6 The trial court concluded that the Arbitration Award met the first prong of the
essence test because the issue of whether the County had just cause to suspend
Grievants was within the terms of the CBA and the Code of Ethics. Id. at 5. The
trial court further concluded that the Arbitration Award met the second prong of the
essence test and was rationally derived from the CBA because it “does not extend
beyond the negotiated terms of the [CBA] or the jurisdiction of the [a]rbitrator, nor
violates PERA.”7 Id. The trial court explained that although the CBA does not
define just cause, Pennsylvania courts have provided some of the factors to be
considered including whether there was an investigation, pre-discharge and post-
discharge misconduct, a grievant’s past employment record, length of service, post-
discharge rehabilitation, and unequal treatment of employees in similar situations,
citing Office of the Attorney General v. Council 13, American Federation of State,
County and Municipal Employees, AFL-CIO, 844 A.2d 1217 (Pa. 2004). Trial Court
Opinion at 6. The trial court found that the arbitrator correctly limited his
determination to just cause and refrained from attempting to establish “any type of
bright-line rule over the issue of mandatory overtime and employee fatigue” which
6
The Trial Court Opinion, December 18, 2023, is attached to Appellant’s Brief.
7
Public Employe Relations Act, Act of July 23, 1970, P.L. 563, as amended, 43 P.S.
§§1101.101-1101.2301.
16
the parties must address in bargaining. Id. at 8. The trial court rejected the County’s
argument that the Arbitration Award “ʻopens the door’” to allowing employees to
avoid mandatory overtime with an allegation of fatigue as “a stretch,” because the
arbitrator scrutinized the just cause decision on a “case[-]by[-]case basis.” Id. at 9.
The trial court concluded that the arbitrator’s decision to
not create a bright-line rule, but rather to treat these cases
on a case-by-case factual basis is a fair application of the
essence test of the CBA and a commonsense solution until
the parties address this issue at a higher level or in their
next [CBA]. The safety situation here is not that different
than other industries and professions that regulate the
number of consecutive hours worked to the number of
hours mandated for rest before being able to work again,
i.e., long-haul truck driver and certain health care
providers.
Id. The trial court then declined to vacate the Arbitration Award on public policy
grounds. Id. at 9-11.8 The County then appealed the trial court’s order to this Court.
This Court recently stated and summarized the essence test standard of
review applicable to this case as follows:
The essence test is an exceptionally deferential standard,
because binding arbitration is a highly favored method of
dispute resolution. An arbitrator’s award, however, must
draw its essence from the [CBA]. Pursuant to the “essence
test,” an award should be upheld if (1) the issue as properly
defined is within the terms of the collective bargaining
agreement, and (2) the arbitrator’s award can be rationally
derived from the [CBA]. 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 [CBA].
8
The County did not raise the public policy argument before this Court, and we need not
discuss it further.
17
Rose Tree Media School District v. Rose Tree Media Secretaries and Educational
Support Personnel Association-ESPA, PSEA-NEA, 157 A.3d 558, 564-65 (Pa.
Cmwlth. 2017) (internal citations omitted).
When interpreting the CBA, the arbitrator is
not confined to the express terms of the agreement. Our
court has stated that an arbitrator’s award may draw its
essence from the [CBA] if the arbitrator’s “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.”
Danville Area School District v. Danville Area Education Association, PSEA/NEA,
754 A.2d 1255, 1260 (Pa. 2000). Reviewing courts may not second-guess an
arbitrator’s findings of fact and may not reject them simply because they may
disagree with them. Rose Tree Media Secretaries and Educational Support
Personnel Association-ESPA, PSEA-NEA v. Rose Tree Media School District, 136
A.3d 1069, 1078 (Pa. Cmwlth. 2016). An arbitrator’s findings of fact are not
reviewable by an appellate court, and as long as the arbitrator “ʻhas arguably
construed or applied the [CBA], an appellate court may not second-guess his
findings of fact or interpretation.’” Northumberland County Commissioners v.
American Federation of State, County and Municipal Employees, AFL-CIO Local
2016, Council 86, 71 A.3d 367, 375 (Pa. Cmwlth. 2013) (internal citation omitted).
The essence test “does not permit an appellate court to intrude on the domain of the
arbitrator and determine whether an award is ‘manifestly unreasonable.’” Id.
(internal citations omitted). An appellate court “must sustain the arbitrator’s award
if it is based on anything that can be gleaned as the ‘essence’ of the [CBA].” Id.
(internal citations omitted).
18
As to the first issue, the County argues that the Arbitration Award
violates the first prong of the essence test, because the arbitrator created an
exemption to the mandatory overtime provisions of the CBA, when such an
exemption does not exist in the CBA. The County objects to what it characterizes
as a “piecemeal application” of the just cause provision of the CBA, which results
in a modification of the CBA. The Union responds that the Arbitration Award is
derived from the just cause language of the CBA, and that the arbitrator’s careful
reasoning limited the determination to a case-specific analysis of Grievants’
subjective and objective reasons for refusing mandatory overtime, rather than
establishing a bright-line rule. The Union further argues that the arbitrator’s findings
and conclusions were based on credited testimony and evidence, and that the
Arbitration Award must be upheld if even a reviewing court disagrees with the
arbitrator’s findings and interpretation of the CBA.
As to the second issue, the County argues that the Arbitration Award
cannot be said to be rationally derived from the CBA, when the arbitrator
acknowledged that “there are no tests that can be administered beforehand to figure
out if an employee is sufficiently fatigued so as to be incapable of being sufficiently
alert and vigilant.” R.R. at 378a. The County argues that the Arbitration Award
places the County in an impossible position when it cannot properly and safely staff
ACJ operations, in violation of the County’s undisputed authority to mandate
overtime in every short-staffing situation as a final step. The Union responds that in
the specific circumstances presented, the Arbitration Award was rationally derived
from the just cause provision in the CBA, which must permit Grievants to offer
genuine fatigue and genuine concern over their abilities to perform as expected, as a
defense to the willful or intentional disregard of a supervisor’s order.
19
Under the applicable limited standard of review of arbitration awards,
we affirm the trial court’s denial of the County’s petition to vacate, because the
Arbitration Award drew its essence and was rationally derived from the CBA. The
arbitrator’s careful analysis of the circumstances leading to Grievants’ refusals of
mandatory overtime in the context of just cause is clearly derived from the just cause
provision of the CBA. R.R. at 35a. The County’s discipline was premised on
Grievants’ willful disregard of a supervisor’s orders and, as such, the County erred
by not considering Grievants’ good-faith defense to the charges. When, as here, an
arbitrator has “ʻarguably construed or applied the [CBA],’” we “ʻmay not second-
guess his findings of fact or interpretation.’” Northumberland County
Commissioners, 71 A.3d at 375 (internal citation omitted).
Further, we reject the County’s argument on the second prong of the
essence test, that the Arbitration Award is not rationally derived from the CBA,
because the Arbitration Award does not amend the mandatory overtime provisions
in the CBA by creating a bright-line fatigue exception. Here, the arbitrator carefully
declined to create a bright-line test and reserved the issue for contract negotiation
between the parties. The Arbitration Award was specifically limited to the
circumstances surrounding Grievants’ refusal of mandatory overtime and was not
“intended to set any type of limit for any other case.” R.R. at 381a. Contrary to the
County’s argument, the essence test does not permit this Court “ʻto intrude on the
domain of the arbitrator and determine whether an award is []manifestly
unreasonable.’” Northumberland County Commissioners, 71 A.3d at 375 (internal
citation omitted).
20
Accordingly, we affirm the trial court’s order.
MICHAEL H. WOJCIK, Judge
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Allegheny County, :
Pennsylvania, :
:
Appellant :
:
v. : No. 1122 C.D. 2023
:
Allegheny County Prison Employees :
Independent Union :
ORDER
AND NOW, this 7th day of August, 2024, the order of the Court of
Common Pleas of Allegheny County dated September 5, 2023, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge