The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Williamsport Area School District :
:
v. : No. 496 C.D. 2020
: Argued: December 8, 2020
Williamsport Area Education :
Support Professionals Association, :
:
Appellant :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: August 6, 2021
Williamsport Area Education Support Professionals Association
(Association) appeals the April 28, 2020 order of the Court of Common Pleas of
Lycoming County (trial court) granting the Williamsport Area School District’s
(District) petition to vacate the arbitration award, on the basis that the arbitrator’s
opinion and award violated the second prong of the essence test. Upon review, we
affirm.
On August 15, 2017, the District and Association entered into a
collective bargaining agreement (CBA) effective July 1, 2017, through June 30,
2022. Reproduced Record (R.R.) at 26a-63a. Pertinent sections of the CBA include:
8-3: BIDDING ON VACANCIES - Determination for
employees’ qualifications for a position shall be based
upon verified work experience, verified
educational/training/credential, applicable testing results
and the District’s defined qualifications for each position.
All eligible qualified employees of the bargaining unit
may submit bids for vacant or newly-created
positions . . . .
***
8-5: AWARDING POSITIONS - All vacancies shall be
filled by awarding the position to the most senior eligible
qualified bidding employee, except where qualified
employees are on a recall list as defined in Article 8-7
below . . . .
***
8-8: QUALIFICATIONS - For purposes of Article 8,
qualifications for all positions shall be defined solely by
the District. The District may consider an employee’s
work attendance, disciplinary history, credentials and
other job specific qualifications in defining qualifications
for all positions. If the District establishes a written test
for a vacant position that will be scored, a passing grade
shall be established for that test. The position
qualifications established by the District shall not be
challenged through the grievance process.
R.R. at 41a-42a.
At the time of the dispute, Association member and the grievant, Dana
Richards (Richards), was employed as a full-time custodian at Hepburn-Lycoming
Elementary School (Hepburn). In late 2018, the head custodian position at Hepburn
was up for bid. The head custodian position was properly posted, and Richards
submitted an application. Richards was one of three internal applicants who were
invited to test for the head custodian position. Richards took the test administered
by the District and achieved a passing score of 75%. Richards was the most senior
2
applicant who passed the test for the head custodian position, having been employed
by the District for more than 21 years. R.R. at 82a.
On February 15, 2019, Richards was informed via email that the
District determined that he was not qualified for the head custodian position at
Hepburn. The District cited one written disciplinary warning that Richards received
on April 3, 2018, for tardiness, as well as Richards’ most recent performance
evaluation in which he received a “needs improvement,” as the reasons why
Richards was not qualified for the head custodian position. The District admitted
that all instances of Richards’ tardiness occurred within the seven-minute grace
period. R.R. at 95a. The head custodian position was awarded to a less senior
employee who had also passed the test. Id. at 82a.
The Association, on behalf of Richards, timely filed a grievance
challenging the award of the head custodian position to a less senior employee. On
December 10, 2019, after a hearing and briefing, the arbitrator sustained the
grievance and directed that Richards be awarded the head custodian position at
Hepburn. R.R. at 97a.
The arbitrator analyzed the relevant provisions of the CBA, including
Article 8-5’s requirement that “all vacancies shall be filled by awarding the position
to the most senior, eligible, qualified bidding employee.” R.R. at 92a. The arbitrator
noted that this language is typically referred to as a “modified seniority/sufficient
ability clause,” under which it must merely be determined whether the most senior
employee can do the job. Id. The arbitrator determined that the District’s decision
that Richards was unqualified for the head custodian position was “an arbitrary and
capricious exercise of its discretionary authority.” Id. at 94a.
3
The arbitrator found that Richards’ disciplinary history for tardiness
was a minor infraction that was corrected, and that “any fair assessment of
[Richards’] overall evaluations reflect that they were more than satisfactory.” R.R.
at 95a. In granting the grievance, the arbitrator stated that he
[f]ully recognize[s] the broad discretionary powers
granted to the District in evaluating applicants for various
positions. However, [I am] not reviewing [Richards’]
qualifications in a vacuum. [I am] reviewing them under
a significant bargained for benefit, where, as the most
senior applicant, [Richards’] seniority must be given
substantial consideration along with having only
“minimum qualifications” for the posted position. In
balancing these two factors, it readily appears the District
gave little to no weight to the fact that [Richards] was the
most senior bidder when determining whether he simply
possessed the minimum qualifications necessary to
perform the position of head custodian. I cannot help but
believe that the District was perhaps inadvertently,
comparing [Richards] to the next most senior applicant, if
not others, when deciding to “disqualify him[.]”
R.R. at 96a (emphasis in original).
The District filed a petition to vacate the arbitration award in the trial
court. On April 28, 2020, after a hearing, the trial court granted the petition to vacate
the arbitration award. The trial court found that the arbitrator substituted his own
judgment for that of the District by defining the term “qualified” in Article 8-3 of
the CBA as “minimally qualified,” despite the provisions of Article 8-8 of the CBA
defining “qualifications as inclusive of work attendance, disciplinary history,
credentials and other job specific qualifications” and vesting the power to determine
such qualifications with the District. R.R. at 5a. The trial court held that “there is
nothing within the CBA that prescribes [sic] the District from treating attendance or
4
disciplinary infractions as disqualifying.” Id. The Association appealed to this
Court.
On appeal, the Association argues that the trial court abused its
discretion by vacating the arbitration award. The Association asserts that the trial
court substituted its own fact finding and contract interpretation for that of the
arbitrator, despite the arbitrator acting within the scope of his authority and
referencing the CBA’s language in rendering the decision, thereby meeting the
second part of the “essence test.” The Association asks this Court to reverse the trial
court’s order and reinstate the arbitration award.
The District argues that the trial court did not abuse its discretion by
vacating the arbitration award because the award failed the second prong of the
essence test. The District asserts that the arbitrator improperly substituted his
judgment for that of the District by adding new language to the CBA. The District
asks this Court to affirm the trial court’s order vacating the arbitration award.
Initially, as this Court has recently observed:
In reviewing an arbitration award, this Court applies
the highly deferential two-prong “essence test.”
Chambersburg Area School District v. Chambersburg
Education Association (Professional), 120 A.3d 407, 412
(Pa. Cmwlth. 2015). First, we decide whether the issue is
encompassed by the [CBA]. Second, if the arbitrator’s
interpretation can rationally be derived from the [CBA], it
will be sustained. As we have explained:
We are not required to agree with the
arbitrator’s interpretation of the [CBA], but
we must “look at whether that interpretation
and application of the agreement can be
reconciled with the language of the
agreement. We may vacate an award only if
it indisputably and genuinely is without
5
foundation in, or fails to logically flow from,
the [CBA].”
Id. [(citation omitted)]. “[I]n the vast majority of cases,
the decision of the arbitrator shall be final and binding
upon the parties.” Millcreek Township School District v.
Millcreek Township Educational Support Personnel
Association, [210 A.3d 993, 1002 (Pa. 2019) (Millcreek)]
(quotation omitted). The essence test is “a narrow
exception to this finality doctrine.” Id.
Slippery Rock University of Pennsylvania v. Association of Pennsylvania State
College and University Faculty, 241 A.3d 1278, 1284 (Pa. Cmwlth. 2020).
Specifically, with respect to the second prong of the essence test, the
Pennsylvania Supreme Court has emphasized:
Under the second prong, we ask whether the award itself
can rationally be derived from the CBA. Here, again, we
emphasize that the parties to a CBA have agreed to allow
the arbitrator to give meaning to their agreement and
fashion appropriate remedies for “unforeseeable
contingencies.” See [United Steelworkers of America v.
Warrior & Gulf Navigation Company, 363 U.S. 574, 578-
79 (1960)] (observing that a CBA “is more than a contract;
it is a generalized code to govern a myriad of cases which
the draftsmen cannot wholly anticipate”). The words of
the CBA are not “the exclusive source of rights and
duties.” Id.; see [United Steelworkers of America v.
Enterprise Wheel and Car Corp., 363 U.S. 593, 597-99
(1960).] The arbitrator is authorized to make findings of
fact to inform his interpretation of the CBA. United
Paperworkers Internat[ional] Union, AFL-CIO v. Misco,
Inc., 484 U.S. 29, 38 [(1987) (Misco)].
Accordingly, even though an arbitrator is not
permitted to ignore the CBA’s plain language in
fashioning an award, the arbitrator’s understanding of the
plain language must prevail. A reviewing court “should
not reject an award on the ground that the arbitrator
6
misread the contract.” Misco, 484 U.S. at 38[.] The law
is clear that an arbitrator’s award must draw its essence
from the CBA. It need not . . . reflect the narrowest
possible reading of the CBA’s plain language. [State
System of Higher Education, (Cheyney University) v. State
College University Professional Association (PSEA-
NEA), 743 A.2d 405, 411 (Pa. 1999)] (citing Enterprise
Wheel, 363 U.S. at 597[]); see also [Danville Area School
District v. Danville Area Education Association,
PSEA/NEA, 754 A.2d 1255, 1260 (Pa. 2000)] (observing
that an arbitrator “is not confined to the express terms” of
the CBA in discerning the parties’ intent). Even if a
court’s interpretation of the CBA is entirely different than
the arbitrator’s, the award must be upheld so long as it
rationally derives from the CBA. [Westmoreland
Intermediate Unit #7 v. Westmoreland Intermediate Unit
#7 Classroom Assistants Educational Support Personnel
Association, PSEA/NEA, 939 A.2d 855, 863 (Pa. 2007)]
(holding that the essence test clearly does not permit the
reviewing court “to intrude into the domain of the
arbitrator and determine whether an award is ‘manifestly
unreasonable’”).
Millcreek, 210 A.3d at 1006. See also Riverview Intermediate Unit #6 v. Riverview
Intermediate Unit #6 Education Association (Pa. Cmwlth., No. 1134 C.D. 2020,
filed June 7, 2021), slip op. at 13 (“All that is necessary is that 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.’
[Millcreek, 210 A.3d] at 1002 (quotations omitted).”).1
Here, the trial court found that the arbitrator’s grievance award violated
the second prong of the essence test because the arbitrator substituted his own
1
See Pa. R.A.P. 126(b)(1) and (2) (“As used in this rule, “non-precedential decision” refers
to . . . an unreported memorandum opinion of the Commonwealth Court filed after January 15,
2008. []Non-precedential decisions . . . may be cited for their persuasive value.”); 210 Pa. Code
§69.414(a).
7
definition of “qualified” in Article 8-3 despite the Agreement providing a definition.
We agree.
The arbitration award held that the language of Article 8-5 is
typically identified as a “modified seniority/sufficient
ability” clause which provides, in general, that the senior
employee will be given preference if he/she possesses
sufficient ability to perform the job. As such, minimum
qualifications are enough, and it is necessary to determine
only whether the employee with greater seniority can, in
fact, do the job.
R.R. at 92a-93a.
However, Article 8-5 of the CBA requires that the most senior qualified
individual be awarded the position. R.R. at 42a. The express language of Article 8-
8 confers upon the District the authority to determine the qualifications for a
position, and does not prohibit the District from treating various disciplinary
infractions, such as punctuality and attendance, as disqualifying. Id. Indeed, Article
8-8 specifically provides that “[t]he District may consider an employee’s work
attendance, disciplinary history, credentials and other job specific qualifications in
defining qualifications for all positions.” Id. The arbitrator’s award improperly
inserted a “modified seniority/sufficient ability” provision into the CBA where the
parties had not bargained for nor agreed upon one. The arbitrator’s insertion of such
a provision into the CBA resulted in the impairment of the District’s express
authority to define “qualified” under Article 8-8 and as applied under Article 8-3.
See id. at 41a-42a.
Similarly, in Riverside School District v. Riverside Educational
Support Personnel Association ESP-PSEA-NEA (Pa. Cmwlth., No. 1771 C.D. 2019,
filed October 9, 2020) (Riverside), the school district and the union were parties to
8
a CBA covering the employment of paraprofessionals within the district, including
union paraprofessionals. An instructional paraprofessional vacancy was posted and
the district received a number of applications for that position. The district selected
and ranked seven individuals to participate in a first round of interviews. Two of the
selected applicants were union members and were ranked third and fourth among
the seven applicants based upon their qualifications. However, a non-union member
was ranked first among the seven applicants. Following the first round of interviews,
the same non-union member was ranked first among the applicants and the union
members remained ranked third and fourth, respectively. The second round of
interviews included an academic proficiency test following which the non-union
member remained first in the rankings followed by the two union members. As a
result, the non-union member was hired to fill the instructional paraprofessional
position vacancy.
The union filed a grievance alleging, inter alia, that only union
members were eligible to fill paraprofessional vacancies, and there was never an
academic proficiency test as part of the application or interview process to fill a
paraprofessional vacancy, based on the past practices of the parties. Following a
denial of the grievance and arbitration, an arbitrator ultimately issued an award
sustaining the grievance. In the final award, the arbitrator determined that although
the relevant CBA contained a clause that provided the district with the right to
establish the qualifications and competency of candidates when filling vacancies,
and although the CBA did not contain a past practices clause, the district did not
have an unfettered right to add new requirements to a position once it was posted
and union members applied for that position. The arbitrator found that the past
practice of the parties was part of the CBA and precluded the district from adding
9
the academic proficiency test as part of the interview process to fill the instructional
paraprofessional position vacancy or from offering the position to a non-union
candidate. On appeal by the district, the court of common pleas vacated the
arbitration award.
On further appeal, this Court affirmed the trial court’s order vacating
the arbitration award. As this Court explained:
The text of the CBA in the instant matter . . .
provides the [d]istrict with the sole discretion to determine
the levels of candidate qualifications, contains a broad
integration clause precluding the consideration of past
practices, and contemplates by its express language the
consideration of non-[union] members for advertised
vacancies. As discussed herein, therefore, the [a]rbitration
[a]ward does not rationally derive from the terms of the
CBA.
***
Further, the [a]rbitration [a]ward places the parties’
past hiring history over the express language of the CBA.
Regardless of the parties’ historical hiring pattern, . . . the
CBA expressly reserves to the [d]istrict the exclusive right
to determine candidates’ competencies and qualifications
in filling vacancies. Contrary to the [a]rbitrator’s
suggestion, the CBA in no way directs that successful
candidates for vacancies must be [union] members. In
fact, the express preference contained in . . . the CBA –
that [union] members are to be given preference over other
candidates in the event of equally qualified applicants –
contemplates that non-[union] candidates may apply, be
considered for, and be awarded vacancies advertised under
the terms of the CBA, provided such candidates are more
qualified than [union] applicants. Accordingly, in addition
to the contemplation of past practices being precluded by
the CBA’s comprehensive integration clause, the
10
[a]rbitrator’s determination that the [d]istrict was bound
by the parties’ past practice to fill the advertised
paraprofessional position with [a union] member is not
rationally derived from the CBA.
Riverside, slip op. at 14, 18 (citations omitted).
Likewise, as outlined above, the express language of Article 8-8 of the
CBA herein provides the District with the authority to determine the qualifications
for a position, and does not prohibit the District from treating various disciplinary
infractions as disqualifying. See R.R. at 41a-42a. Additionally, the arbitrator’s
award improperly inserted a “modified seniority/sufficient ability” provision into the
CBA where none was agreed to by the parties, and improperly constrained the
District’s express authority in this regard. See id. Moreover, as in Riverside, the
CBA herein also contains an integration clause thereby precluding the insertion of
this provision into the CBA during its effective term.2 Based on the foregoing, we
agree with the trial court’s determination that the arbitration award was not rationally
derived from the CBA, thereby failing to meet the second prong of the essence test.
Accordingly, the trial court’s order is affirmed.
MICHAEL H. WOJCIK, Judge
2
Article 19-1 of the CBA states, in relevant part:
Both parties to the [CBA] agree that they have fully bargained with
respect to all items which are negotiable between the parties, and
both parties agree that during the term of this [CBA] there shall be
no further negotiations with respect to any subject or item,
irrespective of whether or not the subject or item is contained in the
[CBA] . . . .
R.R. at 62a.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Williamsport Area School District :
:
v. : No. 496 C.D. 2020
:
Williamsport Area Education :
Support Professionals Association, :
:
Appellant :
ORDER
AND NOW, this 6th day of August, 2021, the April 28, 2020 order of
the Lycoming County Court of Common Pleas is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge