holding that issue of panel’s authority was not waived because “finally, and perhaps most significantly, the Commonwealth’s appointed arbitrator dissented from Paragraph 18 of the award as being, inter alia, ‘contrary to law.’”
How later courts described this case
- holding that issue of panel’s authority was not waived because “finally, and perhaps most significantly, the Commonwealth’s appointed arbitrator dissented from Paragraph 18 of the award as being, inter alia, ‘contrary to law.’”
- An interest arbitration award may embrace only those issues which the submitting party has specifically raised in the notice of arbitration, or which are reasonably considered as subsumed within those issues.
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
County of Berks, :
Appellant :
: No. 542 C.D. 2022
v. :
: Argued: November 6, 2023
Teamsters Local 429 :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION
BY JUDGE McCULLOUGH FILED: December 1, 2023
The County of Berks (County) appeals from the May 6, 2022 order of the
Berks County Court of Common Pleas (trial court) denying the County’s Petition to
Modify and/or Vacate Partially an Act 1951 Interest Arbitration Award (Petition).
Upon review, we affirm.
FACTUAL AND PROCEDURAL HISTORY
The underlying subject of this appeal is the December 2, 2021 Act 195
Interest Arbitration Award (Award), which establishes the terms and conditions for a
collective bargaining agreement (CBA) between the County and Berks County Jail
correctional officers and maintenance employees (Jail Employees). These Jail
Employees are organized in a collective bargaining unit represented by Teamsters
Local 429 (Union).
1
Act of July 23, 1970, P.L. 563, No. 195, as amended, 43 P.S. §§ 1101.101-1101.2301. Act
195, as it is commonly referred to, is the Public Employe Relations Act (PERA). Act 195 requires
public employers and their employees to bargain in good faith over “wages, hours, and other terms
and conditions of employment[.]” Section 701 of Act 195, 43 P.S. § 1101.701.
The County and Union were parties to a CBA that expired on December
31, 2019. When negotiations did not produce a successor agreement, the parties
proceeded to binding interest arbitration pursuant to Section 805 of Act 195, 43 P.S. §
1101.805.2 The County-appointed and Union-appointed arbitrators jointly agreed that
Jared Kasher would serve as the impartial member of the three-person interest
arbitration panel (Panel). Before the Panel convened for hearings, the COVID-19
Pandemic began to develop and impact the County and its operations.
On March 18, 2020, the federal Families First Coronavirus Relief Act
(FFCRA)3 was signed into law, which created emergency paid leave benefits in
response to the COVID-19 global pandemic. Its provisions became effective on April
2
Section 805 of Act 195 provides as follows:
Section 805. Guards and court personnel; Binding Arbitration.
Notwithstanding any other provisions of this act where
representatives of units of guards at prisons or mental hospitals or
units of employes directly involved with and necessary to the
functioning of the courts of this Commonwealth have reached an
impasse in collective bargaining and mediation as required in section
801 of this article has not resolved the dispute, the impasse shall be
submitted to a panel of arbitrators whose decision shall be final and
binding upon both parties with the proviso that the decisions of the
arbitrators which would require legislative enactment to be effective
shall be considered advisory only.
43 P.S. § 1101.805 (emphasis added).
3
Pub. L. No. 116-127, § 5102(a), 134 Stat. 178, 195 (2020). Under time-limited statutory
authority established by the FFCRA, the United States Secretary of Labor promulgated temporary
implementing regulations, effective April 2, 2020, through December 31, 2020, which were set forth
in the Code of Federal Regulations at 29 CFR Part 826. However, as of the time of this writing, 29
CFR § 826.20 and 29 CFR § 826.30 are not found within 29 CFR Part 826, either on Westlaw or in
the Electronic Code of Federal Regulations published at hHps://www.ecfr.gov/cgi-bin/ECFR.
2
2, 2020, and expired on December 31, 2020. The FFCRA provided eligible employees
who were unable to work for reasons related to COVID-19 with up to 80 hours of
emergency paid time off to use for a “qualifying reason” related to COVID-19 prior to
using their own available paid leave benefits. A “qualifying reason” for paid leave
included: (a) being subject to a quarantine pursuant to Federal, State, or local
government order or advice of a health care provider; (b) experiencing COVID-19
symptoms and seeking a medical diagnosis; and (c) caring for someone subject to
quarantine, or caring for a child whose school or day care was closed due to COVID-
19. The FFCRA also expressly provided employers with the discretion to exempt
“emergency responders” from the FFCRA’s leave provisions. Pub. L. No. 116-127, §
5102(a). An “emergency responder” under the FFCRA includes correctional
institution personnel. It is undisputed that the Jail Employees were considered
“emergency responders” under the FFCRA. The premise underlying these exemptions
was recognition of the fact that some employers, including many public employers,
provided essential services that could not be discontinued or disrupted by a lack of
available employees. See Paid Leave Under the Families First Coronavirus Response
Act, 85 Fed. Reg. 19,326, 19,335 (April 6, 2020).
Here, the County elected to exclude, inter alia, the Jail Employees from
the leave provisions of the FFCRA to ensure there were sufficient staff members to
operate critical 24/7 operations.4 (R.R. at 148a.) The Jail Employees remained eligible
to use available paid or unpaid time off for personal illness. Id. at 151a. For instance,
they could utilize sick leave provided under the CBA and/or apply for leave under the
4
The County also exempted from the FFCRA emergency responders in the 911 Call Center,
the Sheriff’s Department, and the Berks Heim Nursing Facility. (Reproduced Record (R.R.) at 148a.)
3
Family and Medical Leave Act (FMLA)5 or unpaid leave. Id. In addition, following
confirmed exposure to a colleague who tested positive for COVID-19, the County
provided paid administrative leave to a number of Jail Employees directed to
quarantine for 14 days. Id.
In March of 2020, the County began to receive grievances from Jail
Employees under the above procedure challenging the County’s decision to charge
absences against their available sick time or accrued leave time to cover their absence
from work. Id. at 10a, 21a. In these grievances, the Jail Employees and Union sought
payment/reimbursement from the County for various absences alleged to be related to
COVID-19 and/or exposure to COVID-19. Id. In total, the County received
approximately 43 such grievances, including individual and class action grievances.
Id. at 10a, 21a. In response, the County notified the Union on several occasions of its
decision to exercise its statutory option to exempt Jail Employees from the FFCRA’s
paid leave provisions.
The Panel conducted hearings on November 9 and 10, 2020, December 8
and 11, 2020, January 28, 2021, and March 19, 2021.6 Additionally, the Panel
completed a guided tour of the Berks County Jail on May 25, 2021. During the
hearings, the Union presented its issues in dispute, in which it identified the proposals
it sought to have the Panel include in its Award. As to the COVID-19 related issues,
the Union included the following proposal:
Security (Article 32): Amend Article 32 with the following
new sections, as follows:
....
5
29 U.S.C. §§ 2601, 2611-2620, 2631-2634, 2651-2654.
6
The hearings were not transcribed or recorded since the County elected not to secure a court
reporter.
4
32.16. The [County] will provide 80 hours of paid leave to
each employee, retroactive to April 2, 2020, to be used for
one of the following needs: (1) the employee is subject to a
Federal, state or local quarantine or isolation order; (2) the
employee has been advised by a health care professional to
self-quarantine due to concerns related to a pandemic; (3) the
employee is experiencing symptoms of an infectious disease
related to the pandemic and seeking a medical diagnosis; (4)
the employee is caring for an individual who is subject to an
isolation order or self-quarantine; (5) the employee is caring
for a son or daughter whose school or place of care has been
closed due to a pandemic; and/or (6) a similar reason as
specified by the designated Federal agencies.
Id. at 74a.
The County also included a list of proposals, appointed an arbitrator and
proceeded to arbitration.
Testimony and documentary evidence were provided regarding the
Union’s proposal and prior demands for the County to provide FFCRA benefits to the
Jail Employees. (R.R. at 143a-46a.) The Union produced and the Panel received into
evidence statistics regarding comparable counties of the Commonwealth which
voluntarily provided FFCRA and FFCRA-like benefits to its correctional officers, thus
choosing not to invoke the permissible, but not mandatory, exemption contained in the
FFCRA. Id. Furthermore, the parties presented evidence and argument regarding
staffing at the Berks County Jail.
The Panel issued its final Opinion and Award on December 2, 2021. The
Award modified Section 32 of the CBA by requiring the County to provide 80 hours
of paid leave to Jail Employees for absences related to COVID-19 retroactive to March
18, 2020, and through the expiration of the FFCRA on December 31, 2020.
Specifically, Paragraph 12 of the Award stated:
12. Health and Safety (Article 32)
5
[Article] 32.2 shall be amended to add the following:
The Covid[-]19 pandemic has had an enormous impact on
employers and employees. On March 18, 2020 the Federal
Government passed the Families First Coronavirus Response
Act (“FFCRA”), which expired on December 31, 2020. One
of the primary purposes of the Act was to provide leave
benefits to employees who have been forced to miss time
from work as a result of the virus. The County has asserted
that [Jail Employees] are exempt from the mandates of the
Act. The Union however has provided evidence that similar
and comparable surrounding counties have provided 80
hours of paid leave to employees to be used for one of the
following needs: (1) the employee is subject to a Federal,
state or local quarantine or isolation order; (2) the employee
has been advised by a health care professional to self-
quarantine due to concerns related to the pandemic; (3) the
employee is experiencing symptoms of an infectious disease
related to the pandemic and seeking a medical diagnosis; (4)
the employee is caring for an individual who is subject to an
isolation order or self-quarantine; or (5) the employee is
caring for a son or daughter whose school or place of care
has been closed due to a pandemic.
This Panel believes that employees working in the County
Jail should be afforded these benefits during the effective
period of the FFCRA. Accordingly, the Panel directs the
[County] to provide 80 hours of paid leave to each
affected employee retroactive to March 18, 2020, and
through the expiration of the FFCRA on December 31,
2020.
There are a number of pending cases involving members of
the bargaining unit who are impacted by the Panel’s
determination to order such coverage. The County argues
that in some of the cases, the behavior of the [Jail Employee]
unreasonably caused his or her infection and has requested
an opportunity to challenge application of this benefit
because of that behavior. Accordingly, while the Panel
6
adopts the conclusion that members of the bargaining unit
should be made whole for such lost time, the Panel will retain
jurisdiction after the issuance of this award to hear the
challenge of the County to individual cases and decide
whether the County’s argument on such individual cases has
merit. The County is directed to submit a list of the [Jail
Employees] and dates which the County believes should not
receive such benefits because of the [Jail Employee’s]
behavior within 60 days of the issuance of this Award. The
Panel shall reconvene to consider and resolve the disputed
cases. All other impacted [Jail Employees] shall be made
whole within 60 days of the date of issuance of this Award.
Award, at 6-7 (emphasis added).
The County-appointed arbitrator dissented to the above cited portion of
the Award on the basis that the Panel majority had exceeded its authority and
jurisdiction by nullifying the clear statutory right and managerial prerogative of the
County to exempt emergency responders from providing paid sick leave under the
FFCRA, the purpose of which was to ensure the delivery of essential services. He
stated:
In my view, by including Paragraph 12 of the Award (Health
and Safety), a majority of the Panel has exceeded the limited
authority bestowed by [Act 195]. This provision of the
Award purports to confer upon [Jail Employees] the full
scope of benefits contained in the Families First Coronavirus
Response Act (“FFCRA”), including paid time off for
[C]ovid-related school and child-care closures, retroactive to
March 13, 2020, and through the expiration of the FFCRA
on December 31, 2020.
However, the now-expired FFCRA contains a specific
provision that permitted employers to exempt “emergency
responders,” which includes a variety of first responders as
well as prison guards, in recognition that full-blown
application of the FFCRA to certain workers could have a
detrimental impact on essential government services.
7
Although soundly exercising its right to invoke this
exemption for its [Jail Employees] and certain other essential
County employees, the County provided up to ten (10) days
of leave with pay where contact tracing or other evidence
indicated that a [C]ovid-related health condition or exposure
took place under work related circumstances. In my view,
the attempt by a majority of the Panel to apply the
FFCRA to a group of County employees who are
specifically and properly exempted from that statute,
thereby nullifying a clear statutory right and area of
discretion belonging exclusively to the County under
federal law, exceeds this Panel’s authority and
jurisdiction.
(Award, Dissenting Opinion, at 1) (emphasis added). The County-appointed arbitrator
further asserted that the Panel majority erred by sua sponte consolidating outstanding
grievances for resolution by the Panel notwithstanding the fact that the grievances had
been processed to arbitration and assigned to other arbitrators for disposition. Id.
On December 30, 2021, the County filed the Petition, requesting the trial
court to strike Paragraph 12 in its entirety from the Award based on the following:
38. In the present case, a majority of the [Panel] exceeded its
authority and jurisdiction and committed reversible error by
awarding the language of Paragraph 12 of the Award.
Specifically, in unilaterally imposing provisions identical to
the now-expired FFCRA, a majority of the [Panel] nullified
the managerial prerogative of the County to exempt
emergency responders from coverage under the FFCRA, the
purpose of which was to ensure the delivery of essential
services.
39. By purporting to impose the provisions of the FFCRA on
members of the bargaining unit, a majority of the [Panel]
exceeded its authority and jurisdiction and committed
reversible error by attempting to dictate decisions which are
fundamental to the direction of public enterprise.
8
Specifically, as set forth in the letter to the Union from the
County which is contained in the record, the County’s
decision to exempt all of the County’s emergency responder
positions from coverage under the FFCRA was to ensure that
essential 24/7 services could continue to be provided by the
County.
40. A majority of the [Panel] further compounded its initial
reversible error by purporting to consolidate before the
[P]anel, approximately 43 grievances concerning absences
allegedly related to Covid-19. These grievances were never
placed before the interest arbitration panel or offered into the
record before the interest arbitration panel. At no point in
time did either party request that the interest arbitration panel
assume or assert jurisdiction over the diverse group of
grievances. Moreover, many of the underlying grievances
had already been assigned to other arbitrators through the
contractual grievance procedure.
(R.R. at 14a-15a.) The Union answered, and filed new matter, and the case was
subsequently briefed and argued. On May 6, 2022, the trial court issued an order
denying and dismissing the Petition, first concluding that the County waived its right
to argue that provision of FFCRA benefits was a non-negotiable matter of managerial
prerogative by allowing the litigation of those issues to go forward, and second,
concluding that it was constrained by the narrow certiorari standard of review to
affirm. The trial court did not specifically address the substance of the County’s
Petition, based on its conclusion that the County had waived any objections to
Paragraph 12 of the Award by participating in the underlying arbitration hearings. The
trial court’s May 6, 2022 order states, in its entirety, as follows:
AND NOW this 6th day of May 2022, after argument and
consideration of the briefs of the parties, the Petition of the
County of Berks “to Modify and/or Vacate Partially an Act
195 Interest Arbitration Award” is hereby Denied and
Dismissed. This order is entered for the reason that, under
9
the narrow scope of review (narrow certiorari review) that
constrains the powers of this Court, the interest arbitration
[P]anel did not act in excess of its jurisdiction and did not
act in excess of its powers as any objection at the time of
the hearings was waived, thereby permitting the
litigation of the issues complained of by the [C]ounty to
go forward. See 2020 Act Interest Arbitration Award which
is attached hereto as Exhibit A. That award clearly indicates
in the background section on page one (1) that “both parties
dedicated considerable time and effort in presenting evidence
and argument regarding the staffing at the prison.” Thus,
both parties litigated the issue[s] fully and completely, being
able to call witnesses and cross[-]examine adverse witnesses.
Therefore, we believe that the [P]anel acted properly.
(Trial Ct. Order, 5/6/22, at 1) (emphasis added).
ISSUES
On appeal, the County raises three issues:
1. Whether the Panel infringed upon the County’s managerial
prerogatives and statutory rights by requiring the County to
provide benefits to under the FFCRA in derogation of the
County’s decision to exempt Jail Employees from the
coverage of the FFCRA?
2. Whether the Panel exceeded its authority and jurisdiction by
consolidating grievances which had not been placed into
evidence during the hearing and/or jurisdiction of the Panel
by the parties?
3. Whether the trial court erred in dismissing the County’s
Petition based on the erroneous conclusion that the County
waived the issues presented on appeal?
10
DISCUSSION
Scope and Standard of Review
Interest arbitration awards issued pursuant to Act 195, like appeals under
Act 111,7 are subject to review under the narrow certiorari standard. See Fraternal
Order of Police, Lodge No. 5 v. City of Philadelphia, 725 A.2d 206 (Pa. Cmwlth. 1999).
Courts reviewing Act 195 interest arbitration awards are confined to the following
areas: (1) the jurisdiction of the arbitrator; (2) the regularity of the proceedings; (3) an
excess of the arbitrator’s powers; and (4) deprivation of constitutional rights. The third
question is implicated here.
An interest arbitration panel exceeds its power when it mandates that the
public employer, inter alia, perform an action unrelated to a bargainable term or
condition of employment.8 Department of Corrections v. Pennsylvania State
7
The Police and Firemen Collective Bargaining Act, Act of June 24, 1968, P.L. 237, as
amended, known as Act 111. 43 P.S. §§ 217.1-217.10.
8
Section 701 of Act 195, 43 P.S. § 1101.701, delineates those matters which may be properly
subject to collective bargaining agreements. It states:
Collective bargaining is the performance of the mutual obligation of
the public employer and the representative of the public employes to
meet at reasonable times and confer in good faith with respect to wages,
hours and other terms and conditions of employment, or the negotiation
of an agreement or any question arising thereunder and the execution
of a written contract incorporating any agreement reached but such
obligation does not compel either party to agree to a proposal or require
the making of a concession.
Section 702 of Act 195, 43 P.S. § 1101.702, however, places limitations on the scope of
Section 701 by identifying matters specifically not subject to bargaining. It states:
Public employers shall not be required to bargain over matters of
inherent managerial policy, which shall include but shall not be
limited to such areas of discretion or policy as the functions and
(Footnote continued on next page…)
11
Correctional Officers Association, 12 A.3d 346, 356 (Pa. 2011). Under the above
standard of review, a reviewing court may modify or vacate an arbitration award which
impinges upon an employer’s managerial rights. Borough of Morrisville v. Morrisville
Borough Police Benevolent Association, 756 A.2d 709 (Pa. Cmwlth. 2000).
1.
We address the waiver issue first. The basis for the trial court’s decision
to dismiss the County’s Petition was its conclusion that the County waived any
objection to the Award by permitting the litigation of the issues complained of “to go
forward.”9 We assume the trial court meant that the County did not argue to the Panel
that the FFCRA leave benefit issue was not bargainable under Section 702 of Act 195
because it was a matter of inherent managerial policy. Because there was no transcript
of the proceedings, and without any explanation by the trial court, we are unable to
verify from the record that this was the case. Nevertheless, we do note that the
County’s appointed arbitrator, in his dissenting opinion, directly dealt with the issue,
arguing that the Panel majority had exceeded its authority and jurisdiction by
nullifying a clear statutory right and area of discretion belonging exclusively to
the County under federal law to exempt emergency responders from providing
paid sick leave under the FFCRA. We have previously held that the issue of a panel’s
authority was not waived where the dissenting arbitrator’s opinion indicated that the
programs of the public employer, standards of services, its overall
budget, utilization of technology the organizational structure and
selection and direction of personnel. Public employers, however,
shall be required to meet and discuss on policy matters affecting wages,
hours and terms and conditions of employment as well as the impact
thereon upon request by public employe representatives. (emphasis
added).
9
The Union does not address the waiver issue in its brief.
12
award was “contrary to law.” See Department of Corrections v. Pennsylvania State
Corrections Officers Association, 932 A.2d 359, 364-65 (Pa. Cmwlth. 2007), aff’d in
part and rev’d in part on other grounds, 12 A.3d 346 (Pa. 2011) (holding that issue of
panel’s authority was not waived because “finally, and perhaps most significantly, the
Commonwealth’s appointed arbitrator dissented from Paragraph 18 of the award as
being, inter alia, ‘contrary to law.’”) Here, as in Department of Corrections, the
dissenting opinion directly addressed the issue raised before the trial court, which was
whether the Award exceeded the Panel’s authority and jurisdiction because it infringed
upon the County’s statutory and managerial prerogative to exempt Jail Employees from
the FFCRA leave benefits. Because the issue was specifically addressed by the
dissenting opinion, and the proceedings were not transcribed, we are unable to
conclude that other Panel members were not aware of the County’s position that
awarding Jail Employees FCCRA benefits would be in excess of the Panel’s authority
and jurisdiction. Furthermore, the record includes correspondence in the Spring of
2020 between the County and Union wherein the Union voiced its objection concerning
the County’s decision to exempt Jail Employees from the protections afforded by the
FFCRA. (R.R. at 137a-38a, 144a-45a.) In response, the County clearly and
specifically advised the Union that it was “not providing FFCRA benefits to any
essential County employees” and that its decision was “necessary to ensure there are
sufficient staff members to operate these critical 24/7 operations.” Id. at 148a. This
is evidence that the issue of FFCRA leave benefits was an issue of contention between
the parties, which led up to the impasse. Absent any evidence of record to the contrary,
there is no reason for us to assume that the County did not carry forward this same
argument before the Panel. We also find it significant that the Union does not challenge
13
the County’s position that the issue was not waived. Accordingly, for the above
reasons, we deem it appropriate to address the merits of the County’s arguments.
2.
The County argues that the Panel encroached upon its managerial
prerogatives and statutory rights by requiring the County to provide Jail Employees
leave benefits under the FFCRA in derogation of the County’s decision to exempt them
from the coverage of the FFCRA as “emergency responders.” The County contends
that the decision of whether to provide Jail Employees benefits under FFCRA was an
inherent managerial prerogative; therefore, the Panel exceeded its authority and
jurisdiction by issuing Paragraph 12 of the Award.
In response, the Union argues that the Award did not compel the County’s
compliance with the FFCRA. Rather, it merely provided 80 hours of paid leave limited
to those bargaining unit members who met the criteria asserted, retroactive to the period
between March 18, 2020, and December 31, 2020. The Union submits that paid leave,
whether in the form of vacation, personal or sick, is indisputably a mandatory subject
of bargaining which affects the wages, hours and other terms and conditions of
employment and, therefore, is a matter within the jurisdiction and authority of an Act
195 interest arbitration panel. See Sections 1001 and 701 of Act 195, 43 P.S. §§
1101.1001, 1101.701. Moreover, the Union contends that the FFCRA had already
expired by the time the Panel issued the Award. Therefore, the Panel could not have
compelled the County to comply with a temporary law which expired nearly a year
earlier. Finally, the Union contends that, even if we accept that the Award mandates
the County to provide FFCRA benefits to the Jail Employees, the Panel’s Award does
not require the County to do anything illegal or that which it could not do voluntarily.
14
Whether a particular provision is a matter of inherent managerial
prerogative rather than a bargainable condition of employment is a question of the
arbitrators’ power. Department of Corrections v. Pennsylvania State Corrections
Officers Association, 12 A.3d 346. As our Supreme Court has noted:
Because management decisions regarding policy or direction
almost invariably implicate some aspect of employer-
employee relations or the workplace, disputed arbitration
awards more often than not concern both the terms and
conditions of employment and the public employer’s
managerial prerogatives. City of Phila[delphia] v.
[International Association] of Firefighters, Local 22, [] 999
A.2d 555, 570 ([Pa.] 2010). When such a hybrid item is in
dispute, the following test applies:
Under the excess-powers prong of narrow certiorari, the
following test applies: first, the court asks whether the item
in dispute is rationally related to the terms and conditions of
employment, i.e., whether it is germane to the working
environment. If not, then the item is not subject to mandatory
bargaining. If a rational relationship does exist, however, the
court then inquires whether collective bargaining over the
topic would unduly infringe upon the public employer’s
essential managerial responsibilities. If so, the award reflects
an excess of the arbitrators’ powers.
Id. at 357. In addition, the Supreme Court has acknowledged the applicability of
several balancing tests to employ in these situations. Under Pennsylvania Labor
Relations Board v. State College Area School District, 337 A.2d 262 (Pa. 1975), the
balancing test weighs the directness of the impact of the issue on the employee’s
wellbeing against its effect on the operation of the agency in question. In Borough of
Ellwood City v. Pennsylvania Labor Relations Board, 998 A.2d 589 (Pa. 2010), the
Supreme Court noted a weighing paradigm under which it is to be determined “whether
the impact of the issue on the interest of the employe in wages, hours and terms and
15
conditions of employment outweighs its probable effect on the basic policy of the
system as a whole.” Id. at 600 n.13 (quoting State College Area School District, 337
A.2d at 268).
In Borough of Ellwood City v. Pennsylvania Labor Relations Board, the
Supreme Court recognized that managerial prerogatives “include, but are not limited
to, ‘such areas of discretion or policy as the functions and programs of the public
employer, standards of services, its overall budget, utilization of technology, the
organizational structure, and selection and direction of personnel.’” Id. at 599 (citation
omitted).
Applying these tests, the exemption of Jail Employees from the FFCRA
provisions is rationally related to the terms and conditions of employment. Exempting
Jail Employees and other emergency responders from the FFCRA leave benefits was
intended to deter them from taking time off to care for a school age child or person
under quarantine – and was germane to the working environment. The County
emphasizes that it exercised its authority under the FFCRA to exempt emergency
responders from the leave provisions to ensure that it would have adequate staff to
continue providing critical 24/7 services at the Jail during the Pandemic. (County’s Br.
at 10.) Again, this was premised on the notion that, unlike some private sector
employers, the County could not simply shutter the essential services it provided to the
public. Id. Thus, calls to 911 could not just go to voicemail, the Sheriff’s Department
could not simply cease the services it provided, and the Jail could not simply close and
cease operations. Id. The decision to elect to exempt Jail Employees and other
emergency responders from the FFCRA was clearly the County’s managerial
prerogative. The County, in this case, elected to exclude the corrections officers, as
emergency responders, because Jail employes are on the frontlines of public safety and
16
are responsible for the care, custody, and control of incarcerated individuals. As the
County points out in its post-hearing brief, the County did so to maintain essential
public services and ensure safety during the pandemic since the Jail is a 24/7 operation.
Thus, the decision to exempt Jail Employees from FFCRA leave benefits concerns a
managerial prerogative. Department of Corrections, 12 A.3d at 357. Because we find
a rational relationship exists between the decision to exempt Jail Employees from the
FFCRA leave benefits and the terms and conditions of employment, we next inquire
whether the Award unduly infringed upon the County’s essential managerial
responsibilities. Id. If so, the Award reflects an excess of the arbitrators’ powers. Id.
Based upon a careful reading of Paragraph 12, we are not convinced that
the Award “unduly infringed upon” the County’s managerial prerogatives or statutory
rights. By the clear terms of the Award, the Panel awarded Jail Employees 80 hours of
retroactive paid leave to be provided to bargaining unit members to cover absences
related to the COVID-19 pandemic. By the time the Award was issued, the managerial
effects of the County’s decision to exempt Jail Employees from FFCRA leave benefits
had already ensued. In other words, the County’s managerial prerogative to exempt
the Jail Employees had already suppressed Jail Employees from calling off work. That
is, the County had already achieved its intended outcome of curtailing absences at the
Jail. Pursuant to the Award, Jail Employees were made whole for lost sick leave they
were forced to take by virtue of being exempted from the FFCRA leave benefit
provisions. Nothing in Paragraph 12 of the Award will disrupt or cause the County to
discontinue essential services. Thus, the Award, which was issued long after the
FFCRA provisions expired, did not interfere with the County’s managerial decision not
to disrupt essential services. Rather, it provided paid leave benefits to Jail Employees
who had taken leave due to COVID-19. Paid leave, whether in the form of vacation,
17
personal, or sick, is indisputably a mandatory subject of bargaining which affects the
wages, hours and other terms and conditions of employment and, therefore, is a matter
within the jurisdiction and authority of an Act 195 interest arbitration panel.
Accordingly, we must conclude that the Panel did not exceed its authority in issuing
Paragraph 12 of the Award.
3.
In its next issue, the County contends the Panel exceeded its jurisdiction
and authority by sua sponte consolidating grievances, which had not been placed into
evidence during the hearing and/or been placed within the jurisdiction of the Panel by
the parties, and where many of the grievances were already pending before other
appointed labor arbitrators. We must disagree.
As noted by this Court, “where a demand is a major one or cannot be fairly
subsumed within an issue, it must be specifically raised.” City of Pittsburgh v.
Fraternal Order of Police, Fort Pitt Lodge No. 1, 850 A.2d 846, 854 (Pa. Cmwlth.
2004), vacated in part, 886 A.2d 682 (Pa. 2005); see also Michael G. Lutz Lodge No.
5, Fraternal Order of Police v. City of Philadelphia, 129 A.3d 1221, 1230 (Pa. 2015)
(An interest arbitration award may embrace only those issues which the submitting
party has specifically raised in the notice of arbitration, or which are reasonably
considered as subsumed within those issues.) Thus, the statutory framework of Act
195 and the caselaw speaking to the interest arbitration process require that only issues
not reasonably subsumed within properly preserved issues are beyond the scope of the
interest arbitration process and will not be enforceable.
Here, the remedy for the resolution of the COVID-19-related grievances
is fairly and reasonably subsumed within the issue of retroactive paid leave for COVID-
19-related absences, which was properly placed in dispute by the Union. At the interest
18
arbitration proceedings, the Union put forth testimony by a bargaining unit member
who was required to use earned leave to cover absences related to quarantining for a
close COVID-19 contact. The issue of several related grievances was discussed by the
parties during the proceedings and in executive sessions. This fact is brought to light
within the text of the Award, which states “[t]he County argues that in some of the
cases, the behavior of the officer unreasonably caused his or her infection and has
requested an opportunity to challenge application of this benefit because of that
behavior.” Indeed, if the Union’s proposal was granted in the Award, it would resolve
all the COVID-19-related grievances which sought reimbursement of earned leave
used by the officers for COVID-19-related absences. The Panel did just that and the
retroactive paid leave provision resolves all the grievances. Because the remedy for
the resolution of the COVID-19-related grievances is fairly and reasonably subsumed
within the issue of retroactive paid leave for COVID-19-related absences, which was
properly placed in dispute by the Union, the County’s Petition was properly denied.
Based on the forgoing, the order of the trial court is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
Judge Dumas did not participate in this decision.
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
County of Berks, :
Appellant :
: No. 542 C.D. 2022
v. :
:
Teamsters Local 429 :
ORDER
AND NOW, this 1st day of December, 2023, the May 6, 2022 order of
the Berks County Court of Common Pleas is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge