Department of the Auditor General v. Council 13, American Federation of State Employees

582 A.2d 98, 136 Pa. Commw. 87, 136 L.R.R.M. (BNA) 2437, 1990 Pa. Commw. LEXIS 596
CourtCommonwealth Court of Pennsylvania
DecidedNovember 7, 1990
DocketNos. 90 & 91 C.D. 1990
StatusPublished
Cited by4 cases

This text of 582 A.2d 98 (Department of the Auditor General v. Council 13, American Federation of State Employees) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of the Auditor General v. Council 13, American Federation of State Employees, 582 A.2d 98, 136 Pa. Commw. 87, 136 L.R.R.M. (BNA) 2437, 1990 Pa. Commw. LEXIS 596 (Pa. Ct. App. 1990).

Opinions

CRUMLISH, Jr., President Judge.

The Commonwealth, Department of the Auditor General (Auditor General) has filed petitions for review of arbitrators’ decisions reinstating two department employees, Karol [89]*89Danowitz and John Weikel, who were dismissed.1 For the reasons which follow, we affirm the arbitrators’ reinstatement awards.

Danowitz was hired as a Clerk I in 1980. Weikel was hired as a clerk in the Files and Records department in 1983. After one month on the job, Weikel, still a probationary employee, was terminated, subsequently reinstated pursuant to an arbitrator’s award and continued working until 1989. On February 1 of that year, both Danowitz and Weikel were instructed to report to the personnel director’s office. Each was then handed a letter signed by the Auditor General terminating them as of 5:00 p.m. that day,

based on information gathered by my office as well as through cooperation with other governmental agencies as a result of an investigation into your involvement in a job buying and/or job promotion scheme in the Auditor General’s Office.

The “scheme” referred to in the Auditor General’s letter had earlier led to the indictment and guilty plea of Former Auditor General Benedict and the conviction on various charges of his Chief Deputy.

Pursuant to Section 903 of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563, No. 195, as amended, 43 P.S. § 1101.903, and its collective bargaining agreement, respondent Council 13, American Federation of State, County and Municipal Employees (AFSCME), filed grievances of both employees’ terminations. On December 15, 1989, Arbitrator Arvid Anderson upheld AFSCME’s grievance and awarded Weikel’s reinstatement with back pay and interest, upon finding that Weikel had no knowledge of or personal involvement in any job-buying arrange[90]*90ment. He concluded that no just cause existed for Weikel’s termination.

On December 27, 1989 Arbitrator Paul Klein upheld AFSCME’s grievance over Danowitz and ordered her reinstatement on essentially the same grounds. Hence, the Auditor General’s petitions were brought to this Court. Section 1501 of PERA, 43 P.S. § 1101.1501.

At the outset, we acknowledge that judicial review of an arbitrator’s award under the “essence test” of Community College of Beaver County v. Community College of Beaver County, Society of the Faculty (PSEA/NEA), 473 Pa. 576, 375 A.2d 1267 (1977), is extremely circumscribed. We are limited to determining whether that award “represents a reasonable interpretation of the labor agreement between the parties.” County of Centre v. Musser, 519 Pa. 380, 390, 548 A.2d 1194, 1198 (1988).

The Auditor General argues that the award cannot “in any rational way be derived from the [collective bargaining] agreement”, Commonwealth, Pennsylvania Liquor Control Board v. Independent State Stores Union, 520 Pa. 266, 268, 553 A.2d 948, 951 (1989), because it denies the employer control of its work force in an area not covered by the collective bargaining agreement — that of terminating, for non-disciplinary reasons, illegally hired employees.

The Auditor General also contends that the award is void as against the public policy declaring the buying and selling of jobs to be illegal, and void and unenforceable because it extends contractual protection to an illegal transaction.

Article 29 of the collective bargaining agreement (Agreement) provides:

Article 29

Discharge, Demotion, Suspension and Discipline Section 1. The Employer shall not demote, suspend, discharge or take any disciplinary action against the employee without just cause____

[91]*91The Auditor General has, by the terms of the Agreement, limited her powers over personnel actions. Nonetheless, she argues that her termination of these two employees, while certainly a personnel action, is not disciplinary in nature but is designed to remove from the Department employees who had been touched by a job-selling scandal. Thus, she maintains that the arbitrators’ awards fail under the essence test because the Agreement’s just cause provisions do not govern removal in this instance.

While it may be so that the Auditor General terminated the employees for reasons other than discipline, her power is limited by the terms of Article 29 to all discharges, not just disciplinary discharges. Nothing in Article 29’s language suggests otherwise. There are no words to suggest that the term “disciplinary action” is inclusive of the other three actions listed — demotion, suspension, discharge. Were the phrase to read "... or take other disciplinary action,” it could be argued that the Auditor General’s power to remove employees was limited by the agreement only to the extent those removals (or demotions and suspensions) were disciplinary. That is not the case, however.

Rather, each of those actions could be taken for reasons unrelated to discipline. No matter what the motivation, as Article 29 is plainly read, just cause is the standard for all discharges, and the Auditor General may not effect terminations or the other enumerated personnel actions without just cause. We find nothing manifestly unreasonable in the arbitrators’ interpreting the labor agreement according to this standard.

Further, the arbitrators in both cases found that neither employee had knowledge that their respective positions had been bought; the Auditor General admits their lack of knowledge. Therefore, each employee was found to have no involvement in a scheme to buy or sell jobs. The arbitrator also found that each had good job records and received regular, positive evaluations.

Because the arbitrators found no just cause for their dismissals, they found the collective bargaining agreement [92]*92had been breached and awarded reinstatement with full back pay. This decision can rationally be derived from the collective bargaining agreement and therefore must be upheld. Independent State Stores Union,

Nonetheless, the Auditor General would have us hold that the award is manifestly unreasonable because the Department of the Auditor General, as a governmental agency, cannot bargain away its legal responsibility to insure that its employees or officers do not violate the law in filling positions. We find the cases relied on by the Auditor General inapposite.

In Philadelphia Housing Authority v. Union of Security Officers #1, 500 Pa. 213, 455 A.2d 625 (1983), a public housing security officer was reinstated after his termination for fraud and falsification. The Supreme Court overturned the arbitrator’s award as manifestly unreasonable. In County of Centre v. Musser, 519 Pa. 380, 548 A.2d 1194 (1988), an arbitrator’s reinstatement award was again overturned. There, a county corrections unit terminated two employees for continued harassment and abuse of an inmate. Most recently, in

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582 A.2d 98, 136 Pa. Commw. 87, 136 L.R.R.M. (BNA) 2437, 1990 Pa. Commw. LEXIS 596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-the-auditor-general-v-council-13-american-federation-of-pacommwct-1990.