20 Pa. Commw. 173 | Pa. Commw. Ct. | 1975
Opinion by
For the past eight years, the policy of the County of Allegheny (appellant) regarding the luncheon practice of the prison guards at the Allegheny County Jail has been consistently inconsistent. Prior to 1967, apparently there existed no such policy. In May of 1967, the warden issued a directive which forbade the guards from bringing home-prepared lunches to work. The guards then initiated a grievance procedure, and the matter pro
In 1971, subsequent to the enactment of the Public Employe Relations Act,
The arbitrator agreed with appellee and interpreted the Agreement as allowing the guards access to any food available and also decided that the guards were entitled to the protection of a supervisory guard when the Officers’ Lounge was in use. Appellant simultaneously appealed this award both to the Court of Common Pleas of Allegheny County and to this Court. The latter appeal arose by petition pursuant to Pa. R.J.A. No. 2101. By Order of this Court, the petition was granted. Thereafter, we ordered that the proceedings before the Court of Common Pleas be vacated, and that review of the arbitrator’s award proceed before this Court.
We recently had the opportunity to consider a court’s scope of review of an award granted by the arbitrator of a labor dispute. See Teamsters Local 77 v. Pennsylvania Turnpike Commission, 17 Pa. Commonwealth Ct. 238, 331 A.2d 588 (1975). In that decision, we
“[Ojnly where there is a manifest disregard of the [collective bargaining] agreement... may a reviewing court disturb the award.”5 (Emphasis added.)
Appellant contends that there was, in fact, such “manifest disregard” in the formulation of the award. We agree.
The Agreement defines a “grievance” as “[a]n alleged breach or violation of this Agreement or a dispute arising out of the interpretation or application of the provisions of this Agreement.” (Article III 1A.) While, arguably, this dispute may be said to arise “out of ... the provisions” of the Agreement, in that the arbitrator concluded that the arbitration recommendation of 1967 became implicitly incorporated in the subsequent Agreement, we believe that such a nebulous incorporation by reference contradicts the express language of the Agreement.
“[A]ny matter reserved to the discretion of the County... by the terms of this Agreement is not a grievance and will not be construed as a grievance.”6
Simply stated, the particular aspects of the guard’s luncheon procedure which are at issue here are not properly within the context of a “grievance” as contemplated by the Agreement. The Agreement’s sole reference to Luncheon practice relates to scheduling. (Article VIII 4.) All other facets of such practice, incuding the availability of food and the assignment of supervisory personnel, must be deemed to be within “the discretion of the County” and, thus, beyond the scope of arbitrable grievances.
*178 “The County retains and reserves unto itself all powers, rights, authority, duties and responsibilities including ... all matters not covered by this Agreement.7 (Emphasis added.)
If there did, in fact, exist a past policy regarding luncheon procedure, it was a policy of constant change. Being aware of the ever-varying nature of appellant’s practice towards guards’ luncheons, to escape the application of Article III 2A and Article XXII of the Agreement, it was incumbent upon appellee to have negotiated and explicitly reached an agreement upon this particular condition of employment. Not having done so, appellee cannot now place its reliance upon an unenforceable arbitration “recommendation” of 1967 and an unrelated reference to luncheon scheduling covered in the Agreement. In reaching a contrary conclusion on the flimsy structure of a past practice which did not exist, the arbitrator acted in manifest disregard of the Agreement. Award set aside.
. The authority for this grievance procedure lay within the prescriptions of the now repealed Act of June 30, 1947, P. L. 1183, as amended, 43 P.S. §215.1 et seq.
. Act of July 23, 1970, P. L. 563, as amended, 43 P.S. §1101.101 et seq.
. Subsequent to the expiration of the original, a second collective bargaining agreement was adopted (effective August 2, 1973 through April 30, 1976). However, this dispute having arisen out of the original, only its terms and conditions will be considered by this Court.
. Appellant, despite its precautionary appeal to this Court, asserts that review properly lies in the Court of Common Pleas. This jurisdictional question has previously been resolved contrary to appellant’s position. See Community College of Beaver County v. Community College of Beaver County, Society of the Faculty (PSEA/NEA), 17 Pa. Commonwealth Ct. 231, 331 A. 2d 921 (1975).
. Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1128 (3rd Cir. 1969).
. Article III 2A.
. Article XXII of the Agreement.