The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Riverside School District :
:
v. :
:
Riverside Educational Support :
Personnel Association ESP-PSEA-NEA, : No. 1771 C.D. 2019
Appellant : Argued: September 15, 2020
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: October 9, 2020
Riverside Educational Support Personnel Association ESP-PSEA-NEA
(Association) appeals the November 22, 2019 order of the Court of Common Pleas
of Lackawanna County (trial court) vacating an arbitration award entered under the
Public Employe Relations Act (PERA),1 that directed the Riverside School District
(District) to award a vacant instructional paraprofessional position to a member of
the Association’s bargaining unit. Upon review, we affirm.
The District and the Association are parties to a collective bargaining
agreement effective July 1, 2016, through June 30, 2021 (CBA). See Petition to
Review and Vacate Award of Arbitrator (Petition to Vacate Arbitration Award) at
2, Reproduced Record (R.R.) at 5a; CBA, R.R. at 14a-52a. The CBA covers the
terms of the employment of paraprofessionals within the District, including
1
Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101-1101.2301.
Association paraprofessionals. See Petition to Vacate Arbitration Award at 2, R.R.
at 5a; see also CBA, R.R. at 14a-52a.
The present dispute pertains to Article XIV of the CBA, which concerns
the posting and filling of vacant positions within the District. See CBA at 23-24,
R.R. at 40a-41a. In the fall of 2016, an instructional paraprofessional2 position
became vacant in the District following the resignation of a District employee. See
Trial Court Opinion and Order dated September 11, 2018 (First Trial Court Opinion)
at 1, R.R. at 179a; see also Petition to Vacate Arbitration Award at 2, R.R. at 5a. To
fill the vacancy, the District posted the instructional paraprofessional position per
the requirements of Article XIV of the CBA on November 15, 2016, and again on
December 13, 2016.3 See First Trial Court Opinion at 1, R.R. at 179a; Petition to
Vacate Arbitration Award at 2, R.R. at 5a. The District received numerous
applications for the instructional paraprofessional position and selected and ranked
seven individuals to participate in a first round of interviews. See First Trial Court
Opinion at 1-2, R.R. at 179a-80a; Petition to Vacate Arbitration Award at 2-3, R.R.
at 5a-6a. Two of these seven candidates were Association bargaining unit members:
Lori Bradley, a personal care assistant, and Marion Maurer, a lunch monitor. See
2
The State Board of Education’s regulations recognize two types of paraprofessionals that
help provide special education services and programs to children with disabilities in
Pennsylvania’s public schools: instructional paraprofessionals and personal care assistants. “An
instructional paraprofessional is a school employee who works under the direction of a certificated
staff member to support and assist in providing instructional programs and services to children
with disabilities or eligible young children.” 22 Pa. Code § 14.105(a)(1). “A personal care
assistant provides one-to-one support and assistance to a student, including support and assistance
in the use of medical equipment[.]” 22 Pa. Code § 14.105(a)(4).
3
The exact information included in the position posting cannot be determined, as the record
includes neither a copy of the posting nor a transcript of the arbitration hearing conducted in this
matter. See Trial Court Opinion and Order dated November 22, 2019 (Second Trial Court
Opinion) at 2 n.1; Reproduced Record (R.R.) at 366a.
2
First Trial Court Opinion at 1-2, R.R. at 179a-80a; Petition to Vacate Arbitration
Award at 3, R.R. at 6a. The District ranked Ms. Bradley and Ms. Maurer third and
fourth, respectively, based on qualifications prior to the first interview. See id. The
District ranked non-bargaining unit member Kathy Taylor first among the candidates
prior to the initial round of interviews. See id.
Following the initial interviews,4 the District again ranked and selected
individuals for further consideration in a second interview. See First Trial Court
Opinion at 2, R.R. at 180a; Petition to Vacate Arbitration Award at 3, R.R. at 6a.
Following this second ranking procedure, Ms. Taylor again stood atop the District’s
list of candidates, with Ms. Bradley and Ms. Maurer again ranked third and fourth,
respectively. See First Trial Court Opinion at 2, R.R. at 180a; Petition to Vacate
Arbitration Award at 3, R.R. at 6a. The District, through its Superintendent,
conducted the second round of interviews on December 30, 2016. See First Trial
Court Opinion at 2, R.R. at 180a; Petition to Vacate Arbitration Award at 4, R.R. at
7a. The second round of interviews included an academic proficiency test derived
from the District’s second grade mathematics and ELA booklets. See First Trial
Court Opinion at 2, R.R. at 180a; Petition to Vacate Arbitration Award at 4, R.R. at
7a. After the interviews, the District’s Superintendent again ranked Ms. Taylor as
the top candidate, followed by Ms. Bradley and Ms. Maurer.5 See First Trial Court
Opinion at 2, R.R. at 180a; Petition to Vacate Arbitration Award at 4, R.R. at 7a. On
4
The initial interviews were conducted by the District’s Director of Special Education and
a principal of one of the District’s elementary schools, who asked the candidates behavioral
questions about past experiences and situational questions about how they would act in
hypothetical scenarios involving students. See Arbitration Award dated December 9, 2017
(Arbitration Award) at 6, R.R. at 59a.
5
The second-ranked candidate withdrew from consideration for the position on December
29, 2016, immediately prior to the second round of interviews. See R.R. at 6a-7a, 57a.
3
January 9, 2017, the Riverside School District Board of Education unanimously
voted to hire Ms. Taylor for the vacant paraprofessional position. See First Trial
Court Opinion at 2, R.R. at 180a; Petition to Vacate Arbitration Award at 4, R.R. at
7a.
On January 20, 2017, the Association filed a grievance alleging that the
District violated the CBA by hiring a non-bargaining unit member to fill the vacant
instructional paraprofessional position (Grievance). See Grievance Report Form,
R.R. at 84a-85a; First Trial Court Opinion at 3, R.R. at 181a. Following the denial
of the Grievance, an arbitration hearing occurred before Walter Glogowski
(Arbitrator) on September 28, 2017. See Grievance Report Form at 1, R.R. at 84a;
First Trial Court Opinion at 3, R.R. at 181a; Arbitration Award dated December 9,
2017 (Arbitration Award) at 2, R.R. at 55a. On December 9, 2017, the Arbitrator
issued an award that sustained the Grievance, stating:
There is no question that the [CBA] provides the District
the right to establish the qualifications and competency of
candidates when filling vacancies or newly created
positions. The fact that the District bargained and
agreement [sic] for more than eighteen years and that
during that period of time the District has posted hundreds
of positions that have been filled by bargaining unit
members has been well established. I am not persuaded
that the District has the unfettered right to add new
requirements to a posting once a position is posted and
bargaining unit members applied for the position. There
is no doubt in my mind that there has been a well-
established “past practice” over the period of time since
the Association was granted bargaining rights.
4
Arbitration Award at 8, R.R. at 61a. The Arbitrator then directed the District to
award the instructional paraprofessional position to one of the Association’s
bargaining unit members. See Arbitration Award at 9, R.R. at 62a.
On January 8, 2018, the District filed the Petition to Vacate Arbitration
Award. See generally Petition to Vacate Arbitration Award, R.R. at 4a-62a.
Following argument, on September 11, 2018, the trial court remanded the matter to
the Arbitrator to make further findings of fact regarding specific alleged past
practices and whether the District’s alleged past practice of not adding supplemental
requirements to job postings antedated the CBA. See First Trial Court Opinion, R.R.
at 179a-83a.
In response to the trial court’s remand, without taking additional
evidence, the Arbitrator issued a supplemental arbitration award dated March 20,
2019 (Supplemental Arbitration Award). See Supplemental Arbitration Award, R.R.
at 247a-49a. After a brief statement of procedural posture,6 the Supplemental
Arbitration Award stated:
The following are the key factors in this case:
6
The Arbitrator stated:
This brief decision is the result of the [District] appealing the
above[-]captioned Award to the 45th Judicial District and the ruling
by the [trial court]. [The trial court] remanded the case back to the
[A]rbitrator to make a finding of fact for the implementation of the
Award. The case was sent back to the Arbitrator solely due to a lack
of a transcript!
Based on the [trial court’s] ruling, the following decision is based
solely on facts, documents and testimony presented at the hearing
held on September 28, 2017, which has not been refuted by the
[District]. There is no dispute as to what took place!
Supplemental Arbitration Award at 2, R.R. at 248a (emphasis in original).
5
1. That the [District] for two decades hired only bargaining
unit members to fill vacant or newly created positions.
2. There was never an academic, educational or mental test
as part of the application or interview process.
3. The [District] on December 30, 2016 unilaterally added
the testing requirements after the interviewing process was
started.
4. That there would not have been an additional cost to the
[District] by hiring or transferring a bargaining unit
member(s).
5. Due to the fact that there is not a “Past Practice Clause”
in the [CBA] does not preclude a “Past Practice” to exist!
A “Past Practice” is defined as follows: “A Past Practice
is a long standing, frequent practice that is accepted and
known about by the union and management. A Past
Practice that meets the standards of a bona fide past
practice is considered to be part of the Contract.”
6. There was no transcript of the case solely due to the fact
that the [District]/[Association] did not request one due to
the additional unnecessary cost to either party!
Supplemental Arbitration Award at 2-3, R.R. at 248a-49a (exclamation marks in
original). After presenting these “key factors,” the Arbitrator made the following
award:
AWARD
THEREFORE, after a complete and thorough review of all
of the facts, document [sic], testimony, evidence,
argument and discussion surrounding this case I have
concluded that my original signed and dated award on
January 9, 2017 stands as presented!
6
Supplemental Arbitration Award at 3, R.R. at 249a (exclamation mark in original).
After hearing further argument, on November 22, 2019, the trial court
issued a second Opinion and Order vacating the Arbitration Award. See Trial Court
Opinion and Order dated November 22, 2019 (Second Trial Court Opinion), R.R. at
365a-71a. The Association then appealed to this Court.
On appeal, the Association claims the trial court erred in vacating the
Arbitration Award because it misapplied the essence test and concluded that the
Arbitration Award was not rationally derived from the CBA. See Association Brief
at 6, 24-37. Additionally, the Association argues that the trial court improperly
concluded that the CBA’s integration clause prohibited the Arbitrator from relying
on evidence of past practice between the District and the Association. See id. at 6,
38-49. Finally, the Association claims the trial court erred by exceeding its authority
and “second guessing” the Arbitrator’s findings of fact and determinations. See id.
at 6, 49-53.
Appellate review of a grievance arbitration award is conducted
pursuant to the two-part “essence test.” Sch. Dist. of Phila. v. Phila. Fed’n of
Teachers, 164 A.3d 546, 552 (Pa. Cmwlth. 2017).
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.
7
State Sys. of Higher Educ. (Cheyney Univ.) v. State Coll. Univ. Prof’l Ass’n (PSEA-
NEA), 743 A.2d 405, 413 (Pa. 1999); see also Westmoreland Intermediate Unit # 7
v. Westmoreland Intermediate Unit # 7 Classroom Assistants Educ. Support Pers.
Ass’n, PSEA/NEA, 939 A.2d 855, 863 (Pa. 2007). Thus, “[a]n arbitrator’s award
must be sustained ‘if it is based on anything that can be gleaned as the ‘essence’ of
the [collective bargaining agreement].’” Pa. State Sys. of Higher Educ. v. Ass’n of
Pa. State Coll. & Univ. Faculties, 98 A.3d 5, 14 (Pa. Cmwlth. 2014) (quoting Am.
Fed’n of State, Cty. & Mun. Emps., Dist. Council 84, AFL–CIO v. City of Beaver
Falls, 459 A.2d 863, 865 (Pa. Cmwlth. 1983)). Further, “[t]he essence test does not
permit this Court to vacate an arbitrator’s award even if we disagree with the
arbitrator’s interpretation of the [collective bargaining agreement].” Am. Fed’n of
State, Cty., & Mun. Emps., Dist. Council 87 v. Cty. of Lackawanna, 102 A.3d 1285,
1290 (Pa. Cmwlth. 2014) (citing Cent. Susquehanna Intermediate Unit Educ. Ass’n
v. Cent. Susquehanna Intermediate Unit # 16, 459 A.2d 889, 890 (Pa. Cmwlth.
1983)). “The essence test is an exceptionally deferential standard, because binding
arbitration is a highly favored method of dispute resolution.” Dep’t of Corr., State
Corr. Inst. at Forest v. Pa. State Corr. Officers Ass’n, 173 A.3d 854, 858 (Pa.
Cmwlth. 2017) (citing Northumberland Cty. Comm’rs v. Am. Fed’n of State, Cty. &
Mun. Emps., AFL–CIO Local 2016, Council 86, 71 A.3d 367, 374 (Pa. Cmwlth.
2013)). The party challenging an arbitration award bears the “burden of proving the
award does not draw its essence from the [collective bargaining agreement].” See
Pa. State Sys. of Higher Educ., 98 A.3d at 14.
Here, the Association contends that the trial court erred and should be
reversed because the Arbitration Award satisfies the essence test. See Association
Brief at 24-37. Neither party argues that the first prong of the essence test is not
8
met; both parties agree that the terms of the CBA cover the proper procedures for
posting and selecting candidates for vacant paraprofessional positions within the
District. Therefore, we proceed directly to the second prong of the essence test – the
question of whether the Arbitration Award can be rationally derived from the CBA.
Our Supreme Court has explained the following:
Under the second prong, we ask whether the award itself
can rationally be derived from the [collective bargaining
agreement]. Here, again, we emphasize that the parties to
a [collective bargaining agreement] have agreed to allow
the arbitrator to give meaning to their agreement and
fashion appropriate remedies for unforeseeable
contingencies. The words of the [collective bargaining
agreement] are not the exclusive source of rights and
duties. The arbitrator is authorized to make findings of
fact to inform his interpretation of the [collective
bargaining agreement].
Accordingly, even though an arbitrator is not permitted to
ignore the [collective bargaining agreement’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 misread the contract. The law is clear
that an arbitrator’s award must draw its essence from the
[collective bargaining agreement]. It need not [] reflect
the narrowest possible reading of the [collective
bargaining agreement’s] plain language. Even if a court’s
interpretation of the [collective bargaining agreement] is
entirely different than the arbitrator’s, the award must be
upheld so long as it rationally derives from the [collective
bargaining agreement].
Millcreek Twp. Sch. Dist. v. Millcreek Twp. Educ. Support Pers. Ass’n, 210 A.3d
993, 1006 (Pa. 2019) (internal quotation marks and citations omitted).
9
The instant case hinges on the interpretation of certain provisions of
Article XIV of the CBA in order to resolve the question of whether the District may
utilize academic proficiency testing not disclosed in a position announcement to
assess candidate qualifications in filling vacancies with the District. The Association
essentially argues that Article XIV of the CBA disallows the District from adding
academic testing once a position announcement has been published. Upon review
of the relevant CBA provisions, we find that the Arbitration Award is not rationally
derived therefrom and, therefore, affirm the trial court.
Article XIV of the CBA concerns the posting of vacant positions within
the District and provides as follows:
Article XIV
Posting of Positions
A. Openings for all positions and promotions, whether
newly-created or vacated within the bargaining unit, shall
be posted on the appropriate bulletin boards at least thirty
(30) days before the position is to be filled, except in
unusual or emergency circumstances, in which event the
position may be posted for no less than five (5) days before
the position is filled. A copy of all postings shall be sent
to the President of the ASSOCIATION.
B. The posting may include, at the discretion of the
DISTRICT, the title and location of the position, the
qualifications required of applicants, the salary to be paid,
and specific instructions for making an application or the
posted notice shall reference a DISTRICT Administrator
from whom this information may be obtained upon
request.
10
C. An opening for any position within the bargaining unit,
whether newly-created or vacated, including a promotion,
shall be considered a vacancy.
D. The DISTRICT maintains the right to determine
qualifications. When equally qualified individuals are to
be selected for a vacancy, bargaining unit members shall
be given a preference for the vacancy, provided the
DISTRICT shall retain, in its sole discretion, the right to
determine levels of competencies and qualifications
necessary to fill the vacancy. When equally qualified
individuals are both bargaining unit members, the
individuals with the greater seniority shall be selected.
CBA at 23-24, R.R. at 40a-41a. The language of Article XIV(A) of the CBA
requires that the District post notice of all vacant positions in the District on
appropriate bulletin boards. See CBA at 23, R.R. at 40a. Article XIV(B) of the CBA
further details the information the District may, in its discretion, include in vacancy
notices, including, inter alia, applicant qualifications. See id. Article XIV(D) of the
CBA expressly states that the District “maintains the right to determine
qualifications” and “retain[s], in its sole discretion, the right to determine levels of
competencies and qualifications necessary to fill the vacancy.” CBA at 24, R.R. at
41a.
The Arbitrator acknowledged that “[t]here is no question that the
[CBA] provides the District the right to establish the qualifications and competency
of candidates when filling vacancies or newly created positions.” Arbitration Award
at 8, R.R. at 61a. Despite this, however, the Arbitrator stated: “I am not persuaded
that the District has an unfettered right to add new requirements to a posting once a
position is posted and bargaining unit members applied [sic] for the position.” Id.
11
Article XIV(D) of the CBA expressly states that the District “maintains
the right to determine qualifications” and “retain[s], in its sole discretion, the right
to determine levels of competencies and qualifications necessary to fill the vacancy.”
CBA at 24, R.R. at 41a. Contrary to the Association’s suggestion, this language is
not ambiguous. The manner in which the District chooses to exercise its retained
discretion to determine the qualifications necessary of applicants to fill a vacancy –
conducting academic proficiency testing in this case – neither adds new
qualifications nor changes the qualifications themselves. Instead, such testing aids
the District in determining the level of the various candidates’ required competencies
and qualifications as stated in the position announcement. The plain language of the
CBA reserves to the District the right, in its sole discretion, to so determine these
candidate competencies and qualifications. See CBA at 24, R.R. at 41a. The
Arbitrator expressly acknowledged that the CBA affords the District this right. See
Arbitration Award at 8, R.R. at 61a. While we appreciate that an arbitration award
need not reflect the narrowest possible reading of the CBA’s plain language, see
Millcreek, 210 A.3d at 1006, the Arbitrator’s conclusion that by requiring academic
proficiency testing during the second round of interviews, the District improperly
added new requirements to the previously-posted vacant paraprofessional position,
ignores the plain language of the CBA that the Arbitrator himself acknowledged and,
thus, is not rationally derived from the language of the CBA.7
7
There is nothing in the record or the Arbitration Award to support the Association’s
suggestion that the results of the academic proficiency testing were used as a “tie breaker” or
somehow the only factor differentiating the bargaining unit applicants and Ms. Taylor, to whom
the District awarded the vacant paraprofessional position. Moreover, the Association’s argument
that the academic proficiency testing was the deciding factor in the hiring process and that, absent
the results of such testing, the candidates were otherwise all equal, ignores the fact that Ms. Taylor
had been ranked multiple times by different individuals as the District’s top candidate for the
position based on other qualifications, including the fact that she had a teacher’s certificate, which
12
We note that the Supreme Court’s decision in Millcreek is
distinguishable on the facts from the instant matter. Millcreek involved a school
district and a union that were parties to a collective bargaining agreement that
contained a no-subcontracting provision. 210 A.3d at 996. The union filed a
grievance after the school district issued a request for proposals (RFP) for custodial
work done by a union’s bargaining units that ostensibly sought pricing for the
performance of custodial work that was contracted to the union’s bargaining units
under the CBA for a three-year contract for a period to begin the day after the current
collective bargaining agreement between the school district and the union was to
expire. Id. at 996-97. The arbitrator determined that the process of subcontracting
began when the school district decided to pursue outside contracting and then
advised the union and advertised through the use of an RFP. Id. at 998. As a result,
the arbitrator concluded that the school district’s actions in issuing an RFP violated
the collective bargaining agreement’s no-subcontracting provision. Id. at 999.
The school district appealed to the court of common pleas, which
affirmed the arbitrator’s determination, finding under the essence test that (1) the
issue of subcontracting was within the terms of the parties’ collective bargaining
agreement, and (2) the arbitrator’s interpretation of the subcontracting clause was
rationally derived from the collective bargaining agreement. Millcreek, 210 A.3d at
999.
The school district appealed and the Commonwealth Court reversed.
Millcreek, 210 A.3d at 999. The Commonwealth Court found that, because the
collective bargaining agreement was completely silent regarding RFPs and other
parts of the subcontracting process, the issue before the arbitrator did not fall within
the bargaining unit candidates – a non-instructional PCA and a lunch monitor – did not possess.
See Association’s Brief in Opposition to Petition to Vacate Arbitration Award at 6, R.R. at 120a.
13
the terms of the collective bargaining agreement. Id. at 1000. Accordingly, the
Commonwealth Court concluded that the arbitrator’s award was not rationally
derived from the collective bargaining agreement. Id. The Commonwealth Court
also determined that, even if the essence test had been met, the arbitrator’s
determination violated public policy because the arbitrator’s award preventing that
RFPs be used in the bargaining process contravened the notion that such solicitations
are prerequisites for intelligent bargaining. Id.
The Supreme Court reversed, determining that the arbitrator’s
conclusion that the text of the collective bargaining agreement, when viewed in
relation to the parties’ past practice, indicated that the parties intended to prohibit
the school district from subcontracting, including taking formal steps toward
entering a subcontract. Millcreek, 210 A.3d at 1006. This, the Supreme Court found,
was an interpretation that rationally derived from the collective bargaining
agreement. Id.
The text of the CBA in the instant matter, on the other hand, provides
the District 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-
bargaining unit members for advertised vacancies. As discussed herein, therefore,
the Arbitration Award does not rationally derive from the terms of the CBA.
Further, to the extent the Association claims that certain alleged past
practices between the Association and the District should guide the determination of
this matter, we disagree.
Determining whether parties’ past practices should be considered in
deciding grievances under a collective bargaining agreement requires examining
14
later-executed collective bargaining agreements, and specifically any integration
clauses contained therein. See Allegheny County v. Allegheny Cty. Prison Emps.
Indep. Union, 381 A.2d 849, 854 (Pa. 1977). As our Supreme Court has explained:
the existence in a contract of a broad integration clause, if
it means anything, does clearly negate the notion that the
parties meant to include any terms or conditions, including
those based only on past practices, not specifically
incorporated in the written contract or reasonably inferable
from its provisions.
Id. The Supreme Court further explained that:
where a collective bargaining agreement not only makes
no mention whatever of past practices but does include a
broad integration clause, an award which incorporates into
the agreement, as separately enforceable conditions of the
employment relationship, past practices which antedate
the effective date of that agreement cannot be said to
“draw its essence from the collective bargaining”
agreement.
Id. Otherwise stated, “a past practice cannot be used where it is proscribed or
conflicts with the language of the current collective bargaining agreement.” Dep’t
of Corr. v. Pa. State Corr. Officers Ass’n, 38 A.3d 975, 982 (Pa. Cmwlth. 2011)
(reviewing Allegheny Cty.).
Here, the CBA makes no mention of past practices. See generally CBA,
R.R. at 14a-52a. Additionally, Article XX of the CBA contains the following
integration clause:
15
Article XX
Miscellaneous Provisions
....
C. ENTIRE AGREEMENT
This Agreement represents the entire understanding
between the DISTRICT and the ASSOCIATION, and
there are no agreements, conditions or understandings,
either oral or written, other than as set forth herein. It is
further agreed that no amendment, change, modification
or addition to this Agreement shall be binding upon either
party hereto unless reduced to writing and signed by both
parties.
CBA at 26-27, R.R. at 43a-44a. Moreover, Article XXIII of the CBA contains a
repealer provision that states as follows:
ARTICLE XXIII
Repealer
Any and all previous contracts or agreements between the
[District] and the [Association] are hereby repealed
absolutely and declared to be null and void and of no force
or effect whatsoever and are superceded in all respects
whatsoever by the terms and conditions of this Agreement.
CBA at 29, R.R. at 46a.
After the first hearing, the trial court remanded the matter to the
Arbitrator to receive evidence regarding the specific District past practice that
allegedly precluded the District from awarding the paraprofessional position to a
non-Association bargaining unit member, and further to make a determination
16
regarding whether such practice postdated the effective date of the CBA. See First
Trial Court Opinion at 5, R.R. at 183a. Without taking further evidence, the
Arbitrator listed in the Supplemental Arbitration Award what he felt were
demonstrated past practices between the District and the Association.8 See
Supplemental Arbitration Award at 2-3, R.R. at 248a-49a. The Arbitrator did not,
however, make any findings of fact regarding whether the alleged past practices
postdated the CBA, which had been the point of the remand in the first place. Id.
Due to this lack of temporal evidence, the trial court found that “[t]he record is
entirely void of any evidence that the past practice of not adding testing to an
interview process once the job is advertised postdates the effective date of the CBA.”
Second Trial Court Opinion at 6, R.R. at 370a. Based on the fact that the record
contained no evidence regarding the timing of the alleged past practice, together with
the fact that the CBA does not mention past practices but does include a broad
integration clause, the trial court concluded that the Arbitrator improperly relied on
past practices in granting the Grievance. See id. at 6-7, R.R. at 370a-71a. We find
no error in this conclusion. Allegheny Cty.
8
The Arbitrator listed the following three alleged past practices he felt were “key factors”
in the instant matter:
1. That the [District] for two decades hired only bargaining unit
members to fill vacant or newly created positions.
2. There was never an academic, educational or mental test as part
of the application or interview process.
3. The [District] on December 30, 2016 unilaterally added the
testing requirements after the interview process started.
Supplemental Arbitration Award at 2, R.R. at 248a.
17
Further, the Arbitration Award places the parties’ past hiring history
over the express language of the CBA. Regardless of the parties’ historical hiring
pattern, Article XIV(D) of the CBA expressly reserves to the District the exclusive
right to determine candidates’ competencies and qualifications in filling vacancies.
See CBA at 23-24, R.R. at 40a-41a. Contrary to the Arbitrator’s suggestion, the
CBA in no way directs that successful candidates for vacancies must be Association
bargaining unit members. See Supplemental Arbitration Award at 2, R.R. at 248a.
In fact, the express preference contained in Article XIV(D) of the CBA – that
Association bargaining unit members are to be given preference over other
candidates in the event of equally qualified applicants – contemplates that non-
bargaining unit member candidates may apply, be considered for, and be awarded
vacancies advertised under the terms of the CBA, provided such candidates are more
qualified than Association bargaining unit member applicants. See CBA at 23-24,
R.R. at 40a-41a. Accordingly, in addition to the contemplation of past practices
being precluded by the CBA’s comprehensive integration clause, the Arbitrator’s
determination that the District was bound by the parties’ past practice to fill the
advertised paraprofessional position with an Association bargaining unit member is
not rationally derived from the CBA.
For the above reasons, we affirm the decision of the trial court vacating
the Arbitration Award.9
__________________________________
CHRISTINE FIZZANO CANNON, Judge
9
Because we find that the Arbitration Award does not rationally derive from the CBA, we
need not address whether the Arbitration Award violates public policy.
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Riverside School District :
:
v. :
:
Riverside Educational Support :
Personnel Association ESP-PSEA-NEA, : No. 1771 C.D. 2019
Appellant :
ORDER
AND NOW, this 9th day of October, 2020, the November 22, 2019
order of the Court of Common Pleas of Lackawanna County is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge