York County Prison v. Teamsters Local Union No. 776

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

York County Prison, :

Appellant :

:

v. :

: No. 265 C.D. 2020

Teamsters Local Union No. 776 : Argued: December 8, 2020

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION BY

JUDGE COVEY FILED: January 8, 2021

York County Prison (County/Prison) appeals from the York County

Common Pleas Court’s (trial court) February 10, 2020 order denying the County’s

Petition to Modify or Vacate Arbitration Award. The County presents two issues

for this Court’s review: (1) whether the trial court erred or abused its discretion by

affirming the Arbitrator’s Award, which conflicted with the parties’ collective

bargaining agreement (CBA);1 and (2) whether the trial court erred or abused its

discretion by finding that the Arbitrator’s Award did not violate the public policy of

protecting inmates from abuse. After review, this Court affirms.

On May 1, 2018, County Correctional Officers (Correctional Officers)

Marcial Baez (Baez) and Graig Phillips (Phillips) (collectively, Grievants) were

responsible for the custody and care of an inmate with mental health issues who had

been placed on suicide prevention watch (SP2). Grievants verbally engaged in

1

The CBA is a result of an interest arbitration award issued by a panel of arbitrators

pursuant to Section 805 of the Act of July 23, 1970, P.L. 563, 43 P.S. § 1101.805, Public Employe

Relations Act, between the County and the Teamsters Local Union No. 776 covering January 1,

2013 to December 31, 2016. As the parties have not been able to agree to terms since then, it is

still in effect. Because the parties refer to this as the CBA, this Court will likewise refer to it as

such herein.

bantering with the inmate, which included taunting and antagonizing the inmate, and

using profanity and slurs, causing the inmate to become agitated to the point that he

placed a mattress against his cell door. Grievants notified a Prison Lieutenant, who

directed them and several other Correctional Officers to open the cell door and

remove the obstructing mattress. While the Correctional Officers were attempting

to remove the mattress, the inmate punched a Correctional Officer and bit his arm.

This precipitated an incident that involved subduing the inmate, placing him in a

restraint chair and, thereafter, moving him to the Prison Medical Unit. This incident

became the subject of a Use of Force report.

Prison administration officials questioned Grievants about the Use of

Force incident during fact-finding meetings. Grievants were specifically asked if

they or any other staff had taunted or antagonized the inmate, to which they both

responded: “No.” Reproduced Record (R.R.) at 282a.2 A surveillance

video/audiotape (Audiotape) verified that Grievants did, in fact, use obscene and/or

demeaning language towards the inmate, which they ultimately acknowledged after

their initial interviews.3 At the conclusion of the investigation, the County issued

employment termination letters to Grievants (Termination Letters), which stated, in

part, that they were found to have “taunted and antagonized an inmate” and “were

dishonest during the investigation.” R.R. at 332a (Baez Termination Letter), 334a

(Phillips Termination Letter). The Termination Letters further stated that Grievants’

actions violated the CBA, the Prison Procedures Manual and the Code of Ethics, and

were “contrary to the orderly operations and reputation interests of the . . . Prison.”

Id. Teamsters Local Union No. 776 (Union) filed grievances on behalf of Grievants,

alleging therein that their employment termination was without just cause. The

2

The record does not include a transcript of the arbitration hearing; thus, the quotes are

from the Arbitrator’s decision.

3

See R.R. at 291a-293a.

2

County denied the grievances and the matters eventually proceeded to arbitration for

final resolution.

On June 9, 2019, the Arbitrator determined:

On the basis of the record as a whole and for the reasons

discussed, just cause for discharge is not found. However,

just cause for discipline is found. [] Grievants are to be

returned to work with full seniority but without back pay.

Their time out of service is to be carried as a disciplinary

suspension.[4]

R.R. at 296a (Arbitrator’s Dec. at 20). The County appealed to the trial court.

On February 10, 2020, the trial court affirmed the Arbitrator’s Award.

On February 11, 2020, the trial court filed an opinion in support of its order. The

County appealed to this Court. On March 4, 2020, the trial court ordered the County

to file a Concise Statement of Errors Complained of on Appeal pursuant to

Pennsylvania Rule of Appellate Procedure (Rule) 1925(b) (Rule 1925(b) Statement).

The County filed its Rule 1925(b) Statement on April 21, 2020.5 On May 7, 2020,

4

As of the date of the Arbitrator’s Award, Grievants had been out of service for

approximately one year.

5

By March 16, 2020 Order, the Pennsylvania Supreme Court declared a general, statewide

judicial emergency until April 14, 2020, due to COVID-19. In re General Statewide Judicial

Emergency, 228 A.3d 1281 (Pa. 2020) (table). By March 18, 2020 Order, our Supreme Court

generally suspended “all time calculations for purposes of time computation relevant to court cases

or other judicial business, as well as time deadlines.” In re General Statewide Judicial Emergency,

228 A.3d 1283 (Pa. 2020) (table). In its subsequent orders, the Supreme Court expanded the scope

and extended the length of the judicial emergency. As to the general suspension of time

calculations and deadlines, on April 28, 2020, the Supreme Court directed: “[L]egal papers or

pleadings (other than commencement of actions where statutes of limitations may be in issue)

which are required to be filed between March 19, 2020, and May 8, 2020, generally SHALL BE

DEEMED to have been filed timely if they are filed by close of business on May 11, 2020.” In re

General Statewide Judicial Emergency, 230 A.3d 1015 (Pa. 2020) (table) (emphasis in original).

Here, the trial court issued its order pursuant to Rule 1925(b) on March 4, 2020. Thus, in

the absence of the general, statewide judicial emergency, the County’s Rule 1925(b) Statement

would have been due on or before March 25, 2020. See Trial Ct. March 4, 2020 order. However,

the Pennsylvania Supreme Court’s April 28, 2020 Order extended the County’s filing date to May

11, 2020. Accordingly, the County’s Rule 1925(b) Statement was timely filed on April 21, 2020.

3

the trial court filed a Statement in Lieu of Additional Opinion Pursuant to Rule

1925(a), stating that the basis for the trial court’s order can be found in the trial

court’s February 11, 2020 opinion.

The County first argues that the Arbitrator’s Award fails the essence

test by exceeding the four corners of the CBA. Particularly, the County contends

that the CBA defined just cause by supplying a discipline table which specifically,

clearly and unambiguously provided for immediate employment termination in

cases of proven dishonesty. The County asserts that, once the Arbitrator found the

Grievants were dishonest, the essence test required the Arbitrator to uphold

Grievants’ employment termination as outlined in the CBA’s discipline table. The

County further claims that the Arbitrator’s Award violated the essence test by the

Arbitrator rewriting the CBA’s terms and instituting a new level of discipline for

cases of proven dishonesty.

The Union rejoins that the parties stipulated to the issue of just cause to

discharge, and the County is asking this Court to re-determine the facts and interpret

the CBA in a manner contrary to the Arbitrator. The Union further retorts that fact

finding is not a proper function of the court where a matter has been arbitrated

pursuant to a CBA. In addition, the Union asserts that, where it is determined that

the subject matter of the dispute is encompassed within the CBA’s terms, the validity

of the Arbitrator’s interpretation of the agreement is not a matter of concern to this

Court. The Union cites Chambersburg Area School District v. Chambersburg

Education Ass’n (Professional), 120 A.3d 407 (Pa. Cmwlth. 2015), to support its

position.

Initially, Article 18, Section 1 of the CBA provides:

[The County] shall not demote, suspend, discharge, or

take any disciplinary action against an employee

without just cause. An employee may appeal a demotion,

suspension, or discharge beginning at the third step of the

4

grievance procedure, subject of [sic] any conditions set

forth in the Grievance Procedure. The Union shall be

notified in writing within four (4) calendar days by [the

County] of any demotion, suspension or discharge.

R.R. at 230a-231a, 280a (emphasis added). Article 18, Section 4 of the CBA directs,

in relevant part:6

OFFENSE 1[st] 2nd 3rd 4th

....

4. Involvement in unprovoked altercation. S T

5. Proven theft or dishonesty. T

....

13. Failure to follow instruction or perform W 3-D T

assigned work.

....

Note: T means ‘Termination’

1D means ‘1[-]day Suspension’

3D means ‘3[-]day Suspension’

W means ‘Written Warning’

The parties agree and understand that those offenses

indicated[, supra,] do not necessarily constitute or

incorporate all the rules and regulations of [the County],

and that [the County] may take disciplinary action

pursuant to Article 3 for offenses other than those listed

above, which in the opinion of [the County] are contrary

to its orderly operation or reputation interests.

R.R. at 231a-233a, 281a.

6

The Arbitrator specified these offenses as relevant to the current dispute.

5

This Court explained in Chambersburg:

When reviewing an arbitrator’s interpretation of a

[collective bargaining agreement], the essence test is the

proper standard of review. ‘The essence test is a two[-

]prong test under which 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 collective

bargaining agreement.’ Coatesville Area Sch. Dist. v.

Coatesville Area Teachers’ Ass’n/Pa. State Educ. Ass’n,

978 A.2d 413, 415 n.2 (Pa. Cmwlth. 2009) . . . . We are

not required to agree with the arbitrator’s interpretation of

the [collective bargaining agreement], 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 foundation in, or

fails to logically flow from, the collective bargaining

agreement.’ Northumberland Cnty. Comm’rs v. Am.

Fed’n of State, Cnty. & Mun. Emps., AFL-CIO Local

2016, Council 86, 71 A.3d 367, 375 (Pa. Cmwlth. 2013)

(en banc) (citation omitted) (internal quotation marks

omitted).

Chambersburg, 120 A.3d at 412 (emphasis added; citation omitted). The

Chambersburg Court continued:

Under the first prong,

[t]he essence test requires a determination as to

whether the terms of the agreement encompass the

subject matter of the dispute. Where it is

determined that the subject matter of the dispute is

encompassed within the terms of the agreement,

the validity of the arbitrator’s interpretation is not

a matter of concern to the court.

Cranberry Area Sch. Dist. v. Cranberry Educ. Ass’n, 713

A.2d 726, 729 (Pa. Cmwlth. 1998) (quoting Leechburg

Area Sch. Dist. v. Dale, . . . 424 A.2d 1309, 1312-13 ([Pa.]

1981)) . . . .

Chambersburg, 120 A.3d at 412.

6

Here, the Arbitrator defined the issue as “whether the County had just

cause to discharge [] Grievants and, if not, what shall be the remedy?” R.R. at 281a

(Arbitrator’s Dec. at 5). Because Article 18 of the CBA encompasses just cause, the

first prong of the essence test is met.

The County asserts that the Arbitrator’s Award cannot satisfy the

second prong of the essence test because the Arbitrator disregarded the CBA’s plain

language. The County cites County of Berks v. International Brotherhood of

Teamsters Local Union No. 429 (Pa. Cmwlth. No. 1230 C.D. 2007, filed May 5,

2008),7 and Department of Corrections, State Correctional Institution at Pittsburgh

v. Pennsylvania State Corrections Officers Ass’n (SCI-Pittsburgh), 56 A.3d 60 (Pa.

Cmwlth. 2012), to support its position.

In County of Berks, the collective bargaining agreement contained a

new provision requiring all employees who failed their use of weapons qualifications

be suspended without pay and given four opportunities to qualify within one week

(New Provision). The old provision contained a grandfather clause protecting

correctional officers hired before January 1, 2000, from suspension or discharge as

a result of their failure to qualify (Old Provision). Several correctional officers, hired

before January 1, 2000, were suspended for their failure to qualify. The union filed

a grievance, which proceeded to arbitration. The arbitrator determined that the New

Provision was irreconcilable with the Old Provision and therefore replaced the Old

Provision. The arbitrator also found that the balancing of competing interests

between higher consequences and less training were considered when the New

Provision was enacted. Nonetheless, the arbitrator rescinded the suspensions.

7

Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §

69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited

for its persuasive value, but not as binding precedent.

7

The appellants appealed to common pleas court, which affirmed the

arbitrator’s award. The appellants appealed to this Court, which reinstated the

suspensions, opining: “Despite that stated recognition that the [a]rbitration [p]anel

considered the circumstances and competing interests of the parties when crafting

the [New Provision], the [a]rbitrator nevertheless ignored the determination of the

[a]rbitration [p]anel and inserted his own judgment to, in effect, change the rights of

the parties.” Cnty. of Berks, slip op. at 10-11. This Court concluded that, by

substituting his judgment and definition of just cause for that established by the

express language of the labor contracts, the arbitrator failed to draw the award from

the essence of the contract. See id.

In SCI-Pittsburgh, the issue before the arbitrator was whether certain

grievances were timely filed. According to the collective bargaining agreement, the

grievants had 15 days after their suspensions were issued to file a grievance. The

grievants did not file their grievances until 85 working days after their suspensions

were issued. Rather than dismiss the matter, the arbitrator ruled that each day of

suspension was a new suspension and therefore the grievances were timely. The

employer appealed to this Court, which ruled: “An arbitrator may not add time

provisions that could have been, but were not included in the [collective bargaining

agreement] when it was drafted.” SCI-Pittsburgh, 56 A.3d at 64. This Court

reversed the arbitrator’s award, opining: “The [a]rbitrator’s conclusion that the

grievances were timely is without foundation in, fails to logically flow from, and

cannot be reconciled with the clear language of the [collective bargaining

agreement].” Id.

In both County of Berks and SCI-Pittsburgh, the issue before the

arbitrator was the application of an unequivocal collective bargaining agreement

provision. The arbitrator in both cases, despite recognizing the provision applied,

did not apply the provision. There was no fact finding by the arbitrator, nor an

8

interpretation of the specific collective bargaining agreement provisions. Here, the

issue before the Arbitrator was whether the County had just cause to discharge

Grievants who were each charged with two offenses. The Arbitrator found that there

was no just cause to discharge Grievants based on the facts as he found them and his

interpretation of the CBA. Accordingly, County of Berks and SCI-Pittsburgh are

inapposite.

The Pennsylvania Supreme Court has clarified:

[E]ven 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.’ [United Paperworkers

Int’l Union, AFL-CIO v. Misco, Inc.], 484 U.S. [29,] 38 . .

. [(1987).] 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. [State Sys. of Higher Educ.

(Cheyney Univ.) v. State College Univ. Pro. Ass’n,] 743

A.2d [405,] 411 [(Pa. 1999)] (citing [United Steelworkers

v. Enter. Wheel & Car Corp.], 363 U.S. [593] . . . [(1960)];

see also Danville [Area Sch. Dist. v. Danville Area Educ.

Ass’n, PSEA/NEA,] 754 A.2d 1255[, 1260] [(Pa. 2000)]

(observing that an arbitrator ‘is not confined to the

express terms’ of the [collective bargaining agreement]

in discerning the parties’ intent). 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]. 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)] (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’’).

9

Millcreek Twp. Sch. Dist. v. Millcreek Twp. Educ. Support Pers. Ass’n, 210 A.3d

993, 1006 (Pa. 2019) (emphasis added).

Here, concerning the dishonesty charge, the Arbitrator opined:

It is clear that both men were less than honest when

questioned by Commander Rohrbach during the fact[-

]finding meetings. The record clearly reveals and they,

themselves, ultimately admitted, that they did make

taunting comments to the inmate. Although Grievant

Phillips did admit that he may have made sexual

comments to the inmate five days after his fact[-]finding

meeting, neither fully acknowledged their actions until

they heard the [A]udio[]tape.

R.R. at 295a (Arbitrator’s Dec. at 19) (emphasis added).

The Arbitrator thus concluded:

Grievants were not forthcoming in their responses

during their fact[-]finding meetings. For these

reason[s], while discharge is not found to be appropriate,

a serious penalty is warranted, and will be so awarded.

R.R. at 296a (Arbitrator’s Dec. at 20) (emphasis added). Accordingly, the Arbitrator

declared: “On the basis of the record as a whole and for the reasons discussed, just

cause for discharge is not found. However, just cause for discipline is found.” Id.

(emphasis added).

This Court cannot conclude that the Arbitrator’s Award “indisputably

and genuinely is without foundation in, or fails to logically flow from, the [CBA].”

Chambersburg, 120 A.3d at 412. The Arbitrator found that both Grievants were

“less than honest” when questioned during the fact-finding meetings. R.R. at 295a.

Although the CBA specifies employment termination for a first offense of

dishonesty, the Arbitrator clearly did not find the requisite level of dishonesty on the

10

part of Grievants to establish just cause for termination.8 Consequently, the

Arbitrator’s Award satisfied the second prong of the essence test.

“The essence test does not permit this Court to vacate [the]

[A]rbitrator’s [A]ward even if we disagree with the [A]rbitrator’s interpretation of

the CBA.” Am. Fed’n of State, Cnty., & Mun. Emps., Dist. Council 87 v. Cnty. of

Lackawanna, 102 A.3d 1285, 1290 (Pa. Cmwlth. 2014). Accordingly, “the [Award]

must be affirmed[.]”9 Millcreek Twp. Sch. Dist., 210 A.3d at 1002 (quoting Cheyney

8

The County argued before the Arbitrator that there is precedent for employment

termination for dishonesty. Specifically, the Arbitrator summarized:

The County points out that discharges such as the ones at issue are

not without precedent. Approximately one year ago, three

Correctional Officers were discharged for arranging and conducting

demeaning ‘games’ using inmates. While two of the Correctional

Officers were found to be perpetrators of the ‘games’, the third was

found to have known of the ‘games’, yet lied during the

investigation by denying such knowledge. These discharges were

upheld through an arbitration award. The County argues that as []

Grievants in the instant matter lied during the investigation, their

discharges for dishonesty should similarly be upheld.

R.R. at 283a. This Court agrees with the Arbitrator that such dishonesty does not come close to

Grievants’ conduct herein.

9

The Dissent states:

Grievants, who were directly responsible for supervising the inmate

and ensuring that he did not engage in self-harm, clearly should have

exercised restraint in their interactions with the inmate, as the

Arbitrator acknowledged. Grievants compounded their wrongdoing

by lying to their superiors during the investigation, only admitting

to their conduct after being confronted with [A]udiotapes of the

incident. Under these circumstances, and in light of the

unambiguous language of the parties’ CBA, I would conclude that

the Arbitrator’s award violates the essence test.

York Cnty. Prison v. Teamsters Local Union No. 776 (Pa. Cmwlth. No. 265 C.D. 2020, filed

January 8, 2021) (Ceisler, J., dissenting), slip op. at 4 (citation omitted).

Respectfully, the Majority agrees with the Dissent that the behavior is unacceptable;

however, it is not this Court’s prerogative to replace the judgment of the Arbitrator with this

Court’s judgment. The Pennsylvania Supreme Court has instructed, in explicit terms, that the

Arbitrator’s interpretation must prevail. See Millcreek Twp. Sch. Dist.

11

Univ., 743 A.2d at 413); see also Pa. Tpk. Comm’n v. Teamsters Local Union No.

77 (Pa. Cmwlth. No. 1347 C.D. 2019, filed March 24, 2020) (wherein the collective

bargaining agreement specified theft was a dischargeable offense and the arbitrator

found the grievant’s taking of the employer’s tires did not warrant discharge).10

The County next argues that the Arbitrator’s Award violates the public

policy against prison inmate abuse. Specifically, the County contends that the

Pennsylvania statutory authority relied upon in County of Centre v. Musser, 548

A.2d 1194 (Pa. 1988), provides the explicit, well-defined, and dominant public

policy against abuse of prison inmates, which is required to vacate an arbitration

award under the public policy exception to the essence test. The County further

asserts that Pennsylvania courts have also identified this public policy from Section

5102 of the State Employees’ Retirement Code.11 The County avers that, in

Department of Corrections, State Correctional Institution at Forest v. Pennsylvania

State Corrections Officers Ass’n, 173 A.3d 854 (Pa. Cmwlth. 2017) (SCI-Forest),

this Court held that, by reinstating the grievant to a corrections officer position while

placing a restriction on him that is irreconcilable with the statutory definition of

correction officer, the arbitrator’s award failed to satisfy the essence test. The

County maintains the same rationale should be adopted in this case.

This case is similar to Pennsylvania Turnpike Commission v. Teamsters Local Union No.

77 (Pa. Cmwlth. No. 1347 C.D. 2019, filed March 24, 2020), wherein the parties’ collective

bargaining agreement specified that theft was a dischargeable offense. Notwithstanding that the

collective bargaining agreement defined just cause, the arbitrator found that the grievant’s taking

of the employer’s tires did not warrant discharge. While the Court may have found differently,

the arbitrator’s interpretation prevailed. Accordingly, this Court is constrained to affirm the trial

court’s order affirming the Arbitrator’s Award.

10

Pennsylvania Turnpike Commission is cited for its persuasive value.

11

71 Pa. C.S. § 5102 (Defines “Correction Officer” as: “Any full-time employee assigned

to the Department of Corrections . . . whose principal duty is the . . . care, custody and control of

inmates of a penal or correctional institution . . . operated by the Department of Corrections . . .

.”).

12

This Court notes that while Musser and SCI-Forest may establish a

public policy against inmate abuse, neither Court addressed the public policy

exception to the essence test. In Musser, the public policy exception was not raised

or argued before the Court. The Musser Court held that the arbitrator’s award was

not rationally derived from the collective bargaining agreement and, thus, was

properly set aside. The SCI-Forest Court held that, because the arbitrator’s award

was not rationally derived from the collective bargaining agreement, it did not need

to address whether the public policy exception applied to vacate the award.

Therefore, both cases are inapposite.

The Union rejoins that the narrow public policy exception is applied

where the arbitrator finds that a grievant has committed the offense or acts of which

he was accused, but nevertheless reduces the penalty, thereby contradicting a

significant public policy. The Union further retorts that the trial court correctly

found that the public policy against inmate abuse can be upheld through disciplinary

measures less severe than employment termination for a first offense, and that the

Arbitrator’s Award appropriately enforces such public policy by imposing a lengthy

suspension.

Initially,

‘[a]n arbitration award will not be upheld if it contravenes

public policy.’ New Kensington-Arnold Sch[.] Dist[.] [v.

New Kensington-Arnold Educ. Ass’n], 140 A.3d [726,]

736 [(Pa. Cmwlth. 2016)]. In considering whether an

arbitrator’s award violates public policy, the following

three-step analysis is employed:

First, the nature of the conduct leading to the

discipline must be identified. Second[,] we must

determine if that conduct implicates a public

policy which is well-defined, dominant, and

ascertained by reference to the laws and legal

precedents and not from general consideration of

supposed public interests. Third, we must

13

determine if the arbitrator’s award poses an

unacceptable risk that it will undermine the

implicated policy and cause the public employer to

breach its lawful obligations or public duty, given

the particular circumstances at hand and the

factual findings of the arbitrator.

Id. (quoting City of Bradford v. Teamsters Local Union

No. 110, 25 A.3d 408, 414 (Pa. Cmwlth. 2011)[)].

Upper Merion Area Sch. Dist. v. Teamsters Local #384, 165 A.3d 56, 63 (Pa.

Cmwlth. 2017).

Here, concerning the charge of taunting and antagonizing an inmate,

the Arbitrator elucidated:

The Union asserts that the basic threshold element

required to establish just cause for discharge is notice to

the employee that particular behavior or conduct will

result in termination and argues that [] Grievants were

never given notice that common prison banter could result

in their discharge. While the banter in this case was

excessive and inappropriate, as testified to by

Commander Rohrbach, banter of a similar nature does

go on in a prison between Correctional Officer[s] and

inmates. The County points out that [] Grievants were

well aware of the York County Prison Procedures Manual,

the Code of Ethics and the [CBA]. In this case, as the

inmate was on SP2, [] Grievants had a greater

obligation to control their reactionary urge to engage

in demeaning banter upon being provoked by the

inmate.

R.R. at 293a (emphasis added).

The Arbitrator expounded:

[Grievants’] actions in this regard were less than

professional and they did not comport themselves in a way

designed to de-escalate the situation. Although their

conduct was wrong and deserving of discipline, it was

pejorative name-calling between [] Grievants and the

inmate, and does not come close to the despicable

misconduct that resulted in the discharge of the three

14

Correctional Officers in 2017, two for their behavior of

using inmates in ‘games’ and the third for his complicity

in not reporting the matters and for denying knowledge of

them.

R.R. at 295a-296a (Arbitrator’s Dec. at 19-20) (emphasis added). Concerning the

2017 case, the County expanded:

There is a past precedent of the Prison taking a firm stance

on cases of inmate abuse - especially when it comes to

inmates with mental issues. In a recent arbitration award

from February 2017, In re: Teamsters Local 776 [&] York

County (Prison) Re: Discharge of Daniel Graff, David

Whitcomb, [&] Mark Haynes [(CO Haynes)], see []R.R. at

336a-365a[], an arbitrator upheld the discharge of three

[C]orrectional [O]fficers who ‘were all involved in what

became known as the ‘Retard Olympics.’’ Arbitrator

Thomas McConnell in that case took a strict stance[,]

which recognized and protected inmates from any abusive

conduct by Prison [C]orrectional [O]fficers. He also

upheld the termination of CO Haynes, who he found had

no involvement in the inmate abuse, []R.R. at []359a-

360a[], but knew about the games and did not report them,

in addition to the fact that he ‘lied during the investigation

by denying knowledge of ‘the games[.]’[’] []R.R. at

362a.[]

Appellant Br. at 13 n.2 (italics added). This Court agrees with the Arbitrator that

Grievants’ alleged conduct herein “does not come close to the despicable

misconduct that resulted in the discharge of the three Correctional Officers in

2017.” R.R. at 296a.

Thus, the Arbitrator concluded:

Although [] Grievants’ misconduct is deserving of a

serious penalty, it does not merit discharge. As testified to

by Commander Rohrbach, he, himself, admitted to

inappropriate name-calling on occasion and

acknowledged that such occurs in the prison. Grievant

Baez’s unrebutted testimony that he had observed other

Correctional Officers engaging in such ‘banter’ with other

inmates, further reveals that such conduct was not unheard

of in the prison environment. In this case, however, the

15

inmate was on SP2 and [] Grievants had a greater

obligation to control their reactionary urge to engage in

demeaning banter.

R.R. at 296a (Arbitrator’s Dec. at 20).

This Court acknowledges that there is a dominant public policy against

inmate abuse. However, the conduct here was described by the Arbitrator as

“excessive and inappropriate” banter, and “pejorative name-calling between []

Grievants and the inmate[.]” R.R. at 293a, 296a. For that conduct, the Arbitrator

imposed a suspension of approximately one year without pay. Based upon “the

factual findings of the Arbitrator[,]” this Court holds that the Arbitrator’s Award

does not pose an unacceptable risk that a clear public policy will be undermined if it

is implemented. Upper Merion, 165 A.3d at 63 (quoting New Kensington-Arnold,

140 A.3d at 736). Accordingly, the Arbitrator’s Award does not directly contravene

the well-settled and long-recognized public policy against inmate abuse.12

For all of the above reasons, this Court is constrained to affirm the trial

court’s order.

__________________________

ANNE E. COVEY, Judge

President Judge Brobson did not participate in the decision in this case.

12

In addition, the County contends that the Arbitrator’s Award violates the public policy

against discrimination on the basis of disability and sex. Based on the Arbitrator’s findings, the

Arbitrator’s Award does not directly contravene the well-settled and long-recognized public policy

against unlawful disability and sex discrimination.

16

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

York County Prison, :

Appellant :

:

v. :

: No. 265 C.D. 2020

Teamsters Local Union No. 776 :

ORDER

AND NOW, this 8th day of January, 2021, the York County Common

Pleas Court’s February 10, 2020 order is affirmed.

___________________________

ANNE E. COVEY, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

York County Prison, :

Appellant :

:

v. : No. 265 C.D. 2020

: ARGUED: December 8, 2020

Teamsters Local Union No. 776 :

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

DISSENTING OPINION

BY JUDGE CEISLER FILED: January 8, 2021

I respectfully dissent. Because I would conclude that the Arbitrator’s award

violates both the essence test and the well-defined, dominant public policy against

abuse of prison inmates, I would reverse the Order of the Court of Common Pleas

of York County (Trial Court).

The facts of this case are undisputed. Grievants, two corrections officers at

York County Prison (Prison), verbally taunted and derided an inmate with known

mental health issues, who had just been placed on suicide prevention watch, for 45

minutes, calling him, among other things, “faggot,” “queer,” “pussy,” “big pussy,”

“a piece of shit,” “nobody,” “dumb dumb,” “licked by a lesbian,” and “little bitch.”

Reproduced Record (R.R.) at 291a-93a.

During the Prison’s investigation into the incident, both officers initially

denied their conduct. The Commander conducting the investigation asked both

officers, “Prior to or following the [u]se of [f]orce, did you or any other staff taunt

or antagonize [the inmate]?” to which they each replied, “No.” Id. at 294a, 327a,

331a. The officer who called the inmate “faggot,” “queer,” “pussy,” and “licked by

a lesbian” was also directly asked, “Did you at any time prior to or following the

[u]se of [f]orce[] make any demeaning or defamatory sexual comments to [the

inmate]?” to which he replied, “No.” Id. at 295a, 331a.

The parties’ collective bargaining agreement (CBA) contains a discipline

table, negotiated and agreed to by the parties, that expressly provides that in cases

of proven dishonesty, employees shall be subject to termination for a first offense.

Id. at 231a-33a. The CBA also provides that the list of offenses in the discipline

table is non-exhaustive and gives the Prison the right to discipline employees for any

conduct that it believes is contrary to the Prison’s orderly operation. Id. at 233a.

Significantly, in his decision, the Arbitrator found that: it was “clear that both

[officers] were less than honest when questioned by Commander Rohrbach during

the fact[-]finding meetings”; the officers were “not forthcoming in their responses

during their fact[-]finding meetings”; and “[t]he record clearly reveals[,] and

[Grievants] themselves[] ultimately admitted, that they did make taunting comments

to the inmate.” R.R. at 295a-96a. Despite finding that both Grievants were

dishonest, the Arbitrator nonetheless concluded that “just cause for discharge [was]

not found” and reduced Grievants’ discipline to suspensions. By substituting his

judgment regarding the appropriate level of discipline for Grievants’ proven

dishonesty, I believe the Arbitrator improperly modified the terms of the CBA in

violation of the essence test.

This is not a situation in which “just cause” for discipline was undefined in

the parties’ CBA. If that were the case, the Arbitrator would have had broad

authority to define “just cause.” Here, the CBA specifically defined “just cause” for

discharge by providing that dishonesty is a terminable offense. See R.R. at 230a

(stating that the Prison “shall not demote, suspend, discharge, or take any

disciplinary action against an employee without just cause”) (emphasis added); Id.

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at 231a-33a (under the discipline table, employees shall be subject to termination for

a first offense of proven dishonesty).

I recognize that our standard and scope of review in this case is limited.1

However, as the Majority points out, in reviewing the Arbitrator’s decision, “[W]e

must ‘look at whether [the Arbitrator’s] interpretation and application of the [CBA]

can be reconciled with the language of the [CBA]. We may vacate an award only if

it indisputably and genuinely is without foundation in, or fails to logically flow from,

the collective bargaining agreement.’” York Cnty. Prison v. Teamsters Local Union

No. 776 (Pa. Cmwlth., No. 265 C.D. 2020, filed January 8, 2021), slip op. at 6

(citations omitted) (emphasis added). In my view, the Arbitrator’s decision cannot

be reconciled with the clear and unambiguous language of the CBA and his own

finding that Grievants were, in fact, dishonest. Therefore, I would conclude that the

award fails to logically flow from the parties’ CBA.

The Majority seems to suggest that the parties’ CBA permits the exercise of

discretion in determining whether to impose the prescribed penalties, stating:

“Although the CBA specifies employment termination for a first offense of

dishonesty, the Arbitrator clearly did not find the requisite level of dishonesty on the

part of Grievants to establish just cause for termination.” Id. at 10-11 (emphasis

added). However, the CBA contains no provision permitting such discretion for

cases of proven dishonesty. Instead, it mandates termination for a first offense. R.R.

at 231a-33a.

1

Our standard of review of a grievance arbitration award “is one of deference to the

arbitrator’s award” and our scope of review is the essence test. Slippery Rock Univ. of Pa. of State

Sys. of Higher Educ. v. Ass’n of Pa. State Coll. & Univ. Faculties, 916 A.2d 736, 740 n.3 (Pa.

Cmwlth. 2007).

EC - 3

Furthermore, the Arbitrator justified his imposition of a lesser discipline on

Grievants based on his finding that the type of “banter” exchanged between the

officers and the inmate in this case is “commonplace” at the Prison, citing the

“unrebutted testimony that [one of the Grievants] had observed other [c]orrections

[o]fficers engaging in such ‘banter’ with other inmates.” R.R. at 296a (emphasis

added). This reasoning ignores the fact that this particular inmate suffered mental

health issues and, at the time of the incident, had just been placed on suicide

prevention watch, demonstrating the severity of his psychological condition.

Grievants, who were directly responsible for supervising the inmate and ensuring

that he did not engage in self-harm, clearly should have exercised restraint in their

interactions with the inmate, as the Arbitrator acknowledged. See id. (“In this case,

. . . the inmate was on [suicide prevention watch] and the Grievants had a greater

obligation to control their reactionary urge to engage in demeaning banter.”).

Grievants compounded their wrongdoing by lying to their superiors during the

investigation, only admitting to their conduct after being confronted with audiotapes

of the incident. Under these circumstances, and in light of the unambiguous

language of the parties’ CBA, I would conclude that the Arbitrator’s award violates

the essence test.

Even if the award did not violate the essence test, I would still reverse the

Trial Court’s Order because I believe the award violates the well-defined, dominant

public policy against abuse of prison inmates by corrections officers. The Arbitrator

acknowledged Grievants’ abuse of power and dishonesty, but ultimately determined

that discharge was unwarranted because such “banter” was “commonplace” in the

Prison. I strongly disagree with this justification. Calling a mentally unstable,

suicidal inmate “faggot,” “queer,” “pussy,” “big pussy,” “a piece of shit,” “nobody,”

EC - 4

“dumb dumb,” and “little bitch” over the course of 45 minutes is not simple “banter”;

it is demeaning, derogatory language that was clearly intended to harass and degrade

the inmate. As the Trial Court recognized, there is “no doubt that the conduct of the

corrections officers [in this case] [wa]s deplorable.” R.R. at 211a (citation omitted)

(emphasis added). Even worse, both officers attempted to conceal their behavior

afterward, and, if not for the audio recordings, they might have gotten away with it.

As the Prison cogently asserts in its brief:

This instant matter comes to this Court at a critical time in our

[n]ation’s history. We are a [n]ation divided on issues centered upon

distrust of law enforcement and also issues of discrimination. These

are not new or novel issues facing our country. Rather, they have been

deeply rooted in our country’s history. With the use of video recordings

becoming more prevalent, however, there is currently a large spotlight

on these issues and a major push for some type of reform.

What has come to light, especially as of recent, is an abuse of

power by those who we have entrusted to protect our society and

enforce its laws. We have seen, and continue to see, protests seeking

reform to address this abuse of power and social injustices that exist

hidden in our society. The instant case before this Court involves the

abuse of power by law enforcement and the use of “hate speech” which

many in this [c]ountry seek to eradicate.

Prison’s Br. at 12.

I believe the Majority’s decision in this case sends a troubling message to our

society that there is an acceptable level of tolerance for verbal and emotional abuse

of inmates by prison officials and corrections officers. Rather than decrying this

type of “deplorable” behavior, the Arbitrator’s award encourages similar abusive

conduct by other corrections officers “who are so inclined to feel free to misbehave

in egregious ways, without fear of any meaningful consequence.” Neshaminy Sch.

Dist. v. Neshaminy Fed’n of Teachers, 171 A.3d 334, 339 (Pa. Cmwlth. 2017) (en

EC - 5

banc); see Prison’s Br. at 14 (“If the Prison and its Warden are required to provide

any level of tolerance toward[] any officer’s attempted cover[-]up of abuse of

inmates . . ., then all hope is lost.”) (emphasis in original).

For these reasons, I would reverse the Trial Court’s Order.

__________________________________

ELLEN CEISLER, Judge

EC - 6