*1 380 America, (3rd Cir.1984);
Mine
v. MUSSER, Brachbill, Darrell Steven District 1199P National AFL-CIO, Employees, Appellants. Union of Health Supreme Pennsylvania. Court of
Argued 9,May 1988. 17, 1988.
Decided Oct. interest, subjects damages prejudgment 4. On of interest see McCormick, (1935); Damages Knapp, 7 C. McCormick on 50-52 C. §§ Damages: Litigation Commercial A Remedies Business Guide Comment, (1988); Prejudgment Survey §§ 6.02-04 Interest: (1982). Suggestion, 77 Nw.U.L.Rev. *2 Devecka, Joseph College, appellants. M. State Blasko, College, W. State for appellees. John C.J., NIX, LARSEN, FLAHERTY, Before McDERMOTT, ZAPPALA, STOUT, PAPADAKOS JJ.
OPINION NIX, Chief Justice. this is an subject appeal order of a pleas common reversing
court an award labor arbitrator and sustain- county ing employees. two When trial Court, court’s order affirmed Commonwealth their employees involved labor union successfully petitioned 724(a) us for further pursuant review section Code, 724(a). of the Judicial 42 Pa.C.S. § *3 The Darrell employee-appellants, Musser and Steven Brachbill, as guards prison worked at the county of Centre 1984, In County. August late of Officers Musser and Brachbill positions, were dismissed from their as a result against prison inmate, acts committed them a one Robert on Riggleman. factually findings Based supported above, the labor to arbitrator referred the acts in question may described follows: of August 10,1984, In the evening Officer Musser tricked Riggleman going into to a certain in one of prison area arrival, dormitories. Upon Riggleman’s Officers Musser him, and Brachbill seized him his put wrestled to knees and a his pillowcase Assisting guards over head. the two in this inmate, was pillowcase action another named Nicholas. The shaving cream, was full of and three assailants proceed- ed to rub it repeatedly Riggleman's over head face. and nose, got When cream into mouth he Riggleman’s and began to have a difficulty breathing. After few moments removed, pillowcase point at which was someone Riggleman’s picture. Riggleman from snapped emerged episode cursing men; at yelling the three he then lavatory went to a his wash face and head. Officer Musser, yet affair, done with the put another handful of shaving cream on Riggleman’s head. day, August next Riggleman again set upon Musser, trio Brachbill and Nicholas. Brachbill Riggleman inmate Nicholas held while Musser went
obtain a tube of ointment Ben-Gay from the medical supply room. returned, When Musser Brachbill and Nicholas pulled Riggleman’s trousers; down and Musser applied the captive’s ointment to the penis and testicles. Matters did not stop with the Ben-Gay later, incident. A short time after Riggleman had gone to shower and change his clothes, he was Brachbill, confronted anew by Nicholas and a guard named Goodrow. The two and Nicholas Riggleman handcuffed gate, his hands being wrapped around one of its bars. also They shackled his ankles. One the three captors then produced a paper bag, upon allusion, inscribed it a homosexual put it over Riggleman’s head. With Riggleman thus displayed, one of captors photographed him. thereafter, Shortly a Lieu- Bodge tenant came upon the scene and ordered that Riggle- man be freed from the handcuffs and shackles. That instruction was complied with—at least temporarily.
Evidently, the command given by Lieutenant Bodge did not have a lasting effect on either Goodrow or Nicholas. Later that same day, August 1984, Goodrow and Nich- olas again joined forces to re-acquaint Riggleman with the handcuffs and the shackles. This time they Riggleman held down between two desks and shackled each of his ankles to *4 a desk leg. They also cuffed his hands and secured the handcuffs to a machine candy by means of a belt. Officer Musser came upon the scene and in joined on by sitting Riggleman’s Next, stomach. Officers Musser and Goodrow used a to felt-tip pen mark his The body. guards two drew circles around Riggleman’s face, marked nipples, his put stripes penis, on his and wrote the names of two known homosexuals on his event, buttocks. Following Riggle- desks, man was freed from the but in the kept was hand- cuffs and shackles for an period additional of time.
Brachbill, Musser, and Nicholas continued with their sport August the next day, 12. About seven o’clock that evening, grabbed Brachbill and Nicholas Riggleman Robert pinned him to the floor. Riggleman While was thus restrained, carrying Musser approached spouted, plastic a filled bottle with Musser then proceeded inject water. spout Riggleman’s anus, the bottle’s into and by that means emptied the his body. Upon water into the completion of perpetrators that mission the ran three from the scene. The final during series of events occurred the evening of 13, August 1984. Musser and Brachbill Riggle- accosted put having man and him choice of his head shaved or weighed his testicles shaved. After the inmate had given, options Musser and escorted him a Brachbill to chair they where then to cut all the hair proceeded from his head and to shave it. at
Riggleman’s term of incarceration County Centre expired August 14, Prison on During 1984. a pre-release counselor, revealed, with a Riggleman upon interview in- quiry, that the head appearance his was the work of guards Musser and Brachbill. The counselor reported head-shaving prison authorities, incident to the then who had Deputy guards’ Warden look into the behavior. investigation brought to light the various commit- acts guards ted against Riggleman during his last four days prison. Riggleman at at first reluctant press lodge complaint charges; his the inci- view However, merely “horseplay” dents were friends. between Warden, urging at the he Deputy changed his mind prison and decided to cooperate authorities taking disciplinary against action Musser and Brachbill. thereafter, prison report Soon Warden submitted a Board, the Centre Prison recommending that Offi- cers discharged Musser and Brachbill be abuse physical Riggleman shackling inmate him violation of state regulations. On Prison August accept- Board ed the Warden’s recommendation and notified the two their dismissal. *5 The at the County Centre Prison were represented by District 1199P National Union of Hospital and Health (“Union”). Union, Employees, Care AFL-CIO The challeng- ing Brachbill, of Musser and discharge filed a written pursuant to grievance Bargaining the Collective Agreement (“Agreement”) in force between Centre County and conference, parties Union. The met as required by the Prison Agreement; but the Board affirmed its decision to guards, citing terminate the two employee discipline provisions Agreement.
Article IV of Agreement general sets forth the propo- sition all “of managerial that matters inherent policy” are reserved exclusively County they unless have been expressly away contracted some specific provision of the Agreement. This same Article also states: “The County shall right have the to discipline employees, including the off, right suspend, lay demote discharge and/or employ- ees for just added.) However, cause.” (Emphasis County’s right to or discipline discharge employees ad- dressed more specifically by another part Agreement, Article XX. XX,
Article in the parts pertinent, here reads as follows:
DISCIPLINE right Section 1: The sole to discipline employees cause is just retained The County. for will principles follow of correcting discipline with respect offenses; is, minor written warning offense; first disciplinary offense; layoff for second discharge for the third offense. If employee an believes he or disciplined she has just cause, been without he may file a grievance (5) within five days discipline. date of warning first written may be withdrawn within one year, unless such during year employee receives warning. another following
Section 2: The grounds are for immediate dismissal, subject arbitration, which are not except insofar as 4 of Section this Article XX is applicable:
a) using drugs alcoholic dur- Drinking beverages *6 hours, reporting or for work under the ing working drugs. influence of alcohol or b) physical employees. of violence to Commission c) of material or Stealing money, equipment. d) Carrying weapon an unauthorized concealed when working hours. reporting during or e) during working or hours. Sleeping job on crime. f) of a Conviction j: grievance discharge discipline over Section Should determination, for the sole go question to arbitration question shall be a by be decided such arbitrator of fact such was employee discharged as to whether or not for employee If finds an was cause. an arbitrator just or laid-off discharged just contrary without cause award Agreement, may terms of this arbitrator back (a) from any any unemployment less amount received pay during period; compensation or other sources received federal, state, (b) or local taxes and other a deduction for shall be withheld. There shall normally items deducted caused payment any period delay by no discharged employee (Emphasis action of the or Union. added.) Union, question that the dismissals in were contending
The cause,” the Prison Board of its “just on notified based under the terms of intent to take the matter to arbitration Agreement. arbitrator, there was no In the before the proceedings committed the as to Musser and Brachbill dispute whether dismissal. The deeds formed the basis for their which The uncontradicted. County’s regard evidence that was of the whether the conduct point controversy sole was discharge; cause” for their guards provided “just two out that Musser position, brought of its County, support given had Brachbill, prison, like all at been the treatment regulations governing as to state instruction restraints, such as physical inmates and the use of handcuffs, Thus, according and shackles. to the County, aware, grievants aware, or the two were should have been Riggleman that their treatment of violated state law.1 The employer question, also asserted that the conduct besides being blatantly unprofessional, could exposed have liability. County to civil
The first contention advanced Union was that the only infractions which warranted immediate un- der the were Agreement specified those in section 2 of XX, Article the offenses charged against Musser did not come any Brachbill within ones listed in that class. That argument rejected arbitrator on the basis his conclusion that the provision referred to *7 employer’s power did delimit the of immediate dismis- The sal. Union next contended that the sanction of dis- charge too involved, was severe the behavior and that nothing suspension more than a was justified. grievants’ arbitrator found that the conduct toward Riggleman standards, was a clear violation of professional acts, and that their respects, probably several violated regulations state governing the prison treatment of in- mates. The arbitrator also determined that the conduct of grievants was cause for disciplinary action some decided, however, He type. that the penalty of dismissal inappropriate. concluding was In that a lesser sanction was for, called accepted arbitrator two of the Union’s asser- (1) tions: that the conduct in question merely was “horse- friends; play” and, (2) between that “horseplay” between long and inmates had prison been tolerated at the without ever before a causing guard. Based on the findings mentioned, two last the arbitrator decided Prison Board’s termination of Musser and and, Brachbill discriminatory reason, was for that could not be found to rest upon “just cause.” The arbitrator then proceeded to enter an award reducing each of the dismissals regulations 1. Administrative found at 37 § Pa.Code 95.241 set forth specifically prison limited circumstances may under which a inmate subjected restraint, physical to force and instruments of all related protect persons property, to the need to prevent escape. or to to a period suspension. four-week His also stated award that he to retain jurisdiction question was resolve the pay. back award,
In response to the arbitration the County and the Prison Board in a joined petition Court of Common County, requesting Pleas of Centre the court to sustain the alternative, discharges or, in the vacate the award. Their one to petition, “modify, labeled as correct or vacate an award,” sought relief pursuant arbitration to section 7302(d)(2) (“Uniform Act”), of the Uniform Arbitration Act 7302(d)(2). That statutory provision Pa.C.S. states as § follows: paragraph applicable this court in reviewing
Where pursuant shall, an to this subchapter arbitration award other of this notwithstanding any provision subchapter, modify or correct the award where the award is contrary to law and is such that had it been a jury verdict of a court would have entered a or a judgment different the verdict. judgment notwithstanding (Emphasis add- ed.)
By 7302(d)(l)(ii), virtue of section the above-quoted provision applies against political labor arbitration awards subdivi- seeking 7302(d)(2), sions. In relief under section award, and the Prison Board asserted that the arbitrator’s issue of regard “just discharge, cause” for law, contrary to was violative of the terms of the Collective *8 Bargaining Agreement, and was such as re- would have quired the court to enter a different had the judgment been a verdict. jury award 7302(d)(2) of pleas
The court common held that section of in scope the Uniform Act defined its of review the matter. section, indicates, That its is a mandate language clearly as concerning to the courts their of review arbitration awards provision covered the section. The directs that a review- shall court or correct an if the ing modify award award is that, verdict, such had it contrary jury law been non it a motion for judgment, would have survived obstante verdicto. pleas The common court in the instant
389 case, review, so framed its having scope proceeded against public conclude that the arbitrator’s award was policy and thus invalid. concluding stand,
In the that award could not the trial court relied on our decision Philadelphia Housing Au- Security 213, v. # thority Union 500 Pa. 455 Officers (1983). A.2d 625 The Philadelphia Housing Authority case, one, present like the concerned an award aby labor the reversing discharge arbitrator a governmental em- involved, ployee. employee there a security guard at a public housing had been project, dismissed defrauding an tenant. the elderly Although found, arbitrator as the employer alleged, security had guard had commit- conduct, ted fraud and had lied about his an award was entered reinstating guard position. to his former That decision was based on the arbitrator’s determination that guard’s fraud resulted from an abuse of friendship, not abuse of his official status. This Court declared the award that, to be invalid. given We held the infraction proved, the terms of the bargaining agreement collective did not em- power the arbitrator to reverse the discharge. We charac- terized as “manifestly unreasonable” the implic- arbitrator’s it conclusion that the employer bargained had away, under agreement, its absolute responsibility ensure the of its integrity security guards power of dismissal. Philadelphia Housing 500 Authority, Pa. at 455 A.2d at 627.
The trial matter, court the instant finding present the same considerations that shaped our decision in Philadel- phia Housing entered Authority, correcting an order arbitration award so to sustain of Musser grievants Brachbill. The two and the Union followed an appeal Commonwealth Court.
The Commonwealth Court affirmed the decision pleas court, common although, doing so, it differed from the lower court in articulating judicial the standard of applicable review to the award sub judice. Pa.Cmwlth. 193, According Court, A.2d 1027. to Commonwealth *9 of is the “essence” test set standard review governing
the
College
Beaver
by
Community
forth
this Court
of
County, Society
Beaver
Community College
v.
County
of
Pa.
We of judicial standard applicable identified correctly Court Beaver Community College our By review. decision that, respect public-employ held County, supra, we Act to the Arbitration subject ee awards arbitration 1927,2 question to focus on the judicial review interpretation represented reasonable whether award standard, That bargaining agreement. of the collective test, the “essence” was derived known as later become 301 of decisions under section from federal by this Court amended, 25, 1927, seq. 161 et April 5 P.S. § P.L. 2. Act of
391 Act, federal Management the Labor Relations 29 U.S.C. The most of 185. notable those federal cases was the § of the decision United States Court in Supreme United v. Enterprise Steelworkers America and Wheel Car of 593, 1358, 363 4 Corp., (1960), U.S. 80 S.Ct. L.Ed.2d 1424 language reasoning whose and we expressly adopted in purposes for of Community College defining the standard judicial of review under this state’s 1927 arbitration stat- ute.3 case,
In
Wheel and
Enterprise
Car
the Supreme
forth
put
Court
idea that
general
judicial intervention in
arbitration
to
very limited,
labor
awards was
stating
that,
refusal of courts to
review
merits of an
“[t]he
the proper
arbitration award is
approach to arbitration
agreements.”
under collective bargaining
596,
363 U.S. at
view,
80
at 1360. In
S.Ct.
connection with that
the Supreme
that,
added
of
Court
federal policy
settling labor
“[t]he
would
disputes
arbitration
be undermined if courts had
say
the final
on the
of
merits
the awards.” Id. According
reasoning
in Enterprise
Car,
Wheel
and
arbitra-
interpretation
tor’s
collective bargaining agreement
is one of the things for which the parties bargained; “and
as
so far
the arbitrator’s decision concerns construction of
contract,
the courts have no business
him
overruling
because their
interpretation
the contract
is different
599,
from his.”
Although Enterprise
was,
Wheel
in large
and Car
part,
a pronouncement
judicial deference to arbitration
under
awards
labor agreements, the
Court
Supreme
added
following
important
well known caveat:
arbitrator is confined to interpretation and applica-
[A]n
tion
bargaining agreement;
collective
he does not
to dispense
sit
his own brand of
justice.
industrial
He
known,
Enterprise
Wheel
is well
and Car 3. As
one
of three related
day
cases decided the
same
now referred
as the
"Steelworkers
Trilogy.” The other two cases were United Steelworkers America v.
Co.,
564,
Mfg.
1343,
American
(1960)
363 U.S.
80 S.Ct.
L.Ed.2d
4
1403
Co.,
Navigation
United
Steelworkers America v. Warrior &
Gulf
(1960).
U.S.
80 S.Ct.
The above
in Community
this Court
adopted by
standard
“essence”
supra.
County,
Beaver
further
formula-
College of
As a
an
is to
standard,
in effect
award
we stated
tion of the
*11
“ ‘can in any
if the award
the
respected by
judiciary
be
light
viewed in
agreement,
from the
derived
way
rational
be
context,
other
indicia of the
any
its
language,
of its
intention____’”
Beaver
Community College
parties’
(quoting Ludwig
County,
594,
A.2d at 1275
375
473 Pa. at
Fletcher, 405 F.2d
1123,
(3d
v.
Mfg.
Honold
Co.
1128
Ass’n. v. Board
Area Education
Lewisburg
See
Cir.1969)).
District, 474
Directors,
Area School
Lewisburg
School
“essence”
(1977).
adopting
In
the
102,
A.2d 993
Pa.
376
test,
that
it was consistent
standard,
concluded
or
we
in the Arbitra-
contained
for
review
judicial
the provisions
standard of
1927, and,
in
with the
particular,
Act of
tion
Brotherhood
International
in
forth
previously put
review
Oilers,
Local 1201 v. School
AFL-CIO
Firemen and
Philadelphia,
(1976).
356,
District of
A.2d 804
465 Pa.
350
in the 1927
decision,
provisions
addressed the
In that
which
award, we
an srbitration
correcting
modifying
act
of the labor
interpretation
the arbitrator’s
had held
Id.,
one.
if
a reasonable
it was
upheld
be
agreement
366,
393
11(d)
a reenactment of
substantially
section
of the 1927
171(d)).
statute
(formerly
P.S.
Pennsylvania State
§
Appalachia
Education Ass’n. v.
Intermediate Unit
(1984).
Pa.
In us, the case instantly before the appellants con below, tend that courts reversing the arbitration award, exceeded the limits of proper judicial review and thus exceeded their judicial authority. This argument starts with the appellants’ premise that the Collective Bar gaining Agreement between the County and the Union empowered the arbitrator to alter the employer’s discipli nary decision in this matter. Having made that assumption, appellants emphasize next the arbitrator’s finding that grievants’ misconduct was “horseplay” his further finding that “horseplay” between and inmates had long been tolerated prison authorities. Those two findings, the appellants argue, established a circumstance which, under the Agreement, empowered the arbitrator to lighten the discipline sum, imposed. In they argue *12 that the award was a rational derivative of the Agreement and as such should not be by disturbed the courts. As for our in decision Philadelphia Housing v. Authority Union #1, Security supra, appellants assert that of Officers it is significantly distinguishable frim the present case.
Given the nature and scope of judicial review under the test, “essence” must begin we our resolution of this appeal by focusing on the Bargaining Collective Agreement itself. As noted previously this opinion, Article of the Agree- IV ment expressly reserves to the County “the right to disci- pline employees, including the right suspend, off, to lay demote and/or discharge employees (Em- just cause.” for added.) phasis This power reservation of is reiterated in XX, Article which more specifically addresses the subject employee discipline. The very first sentence in section 1 of
394 XX Article states: “The sole to right discipline dis- charge employees just for cause is by retained the Coun- added.) That clause ty." (Emphasis tempered by a concerning offenses”; “minor provision for offenses of that to type employer agreed graduated follow scheme of discipline, starting warning with a written for the first offense, to a progressing “disciplinary layoff” for the sec- ond, ending for the third. 1 of Article XX also confers an upon employee
Section him, right grieve any discipline imposed upon should he the existence of cause.” 4 dispute “just Section of that powers same Article sets forth the of an regard- arbitrator the matter ing employee discipline. grieved Where is a discharge, provides section that “the question sole by decided arbitrator shall be a question as to [the] of fact employee whether or not such was discharged just for added.) (Emphasis cause.” language Agreement’s plain disciplinary provi- to a conclusion points employee discipline, sions as a matter, to remain within general power the exclusive management. Articles IV and XX of the Agreement clearly Indeed, understanding. set forth that recog- arbitrator nized as much his discussion. Besides the limita- express any disciplinary tion that action must rest on a factual basis cause,” constituting “just only other contractual limita- on the employer’s power discipline tion relates to a class offenses,” misconduct denominated “minor employee has bound itself to follow a scheme of employer which graduated, progressive, pow- sanctions. The arbitrator’s decisions is circum- regarding disciplinary carefully er section of Article XX: he is restricted to scribed deciding requisite predicate whether or not the factual for the imposition discipline, exists whether measure selected is in accord- disciplinary employer Agreement. ance with the terms of the in the power arrangement Agree- Under the embodied *13 ment, the determines that cause” “just once arbitrator worker, employer discipline existed for the a the sanction selected the by employer is beyond modification arbitrator, unless it is a penalty provision which violates the relating to “minor offenses.” provision Unless the latter applies, Agreement does not empower the arbitrator to determine is the appropriate discipline.4 what
Since the in this case grievants arbitrator decided that Musser and deserving suspension, Brachbill were implication unavoidable is that he determined that their presented conduct cause” “just discipline for type. some Furthermore, by concluding that suspension appro- was sanction, first it is priate obvious that the arbitrator did not grievants’ deem the conduct as coming within the provision for “minor offenses.” Consequently, since it is clear that there “just existed cause” for the employer impose discipline of type, provision some and since the for graduat- punishment ed did not apply, the nature of the discipline to imposed remained the province exclusive of the employ- er. When the arbitrator took it upon modify himself to employer’s dismissal, decision of stepped arbitrator be- yond the bounds of power upon conferred him Bargaining Agreement. Collective noting that, It is worth according arbitrator, the Prison Board could reason- ably upon have decided dismissal based on the information ground it had. As a overruling decision, for the Board’s arbitrator “inferred” that the Board aware of the history of “horseplay” prison. However, at the even if the surmise, arbitrator was correct it provide does not consideration which would limit the employer’s contractual power impose discipline conduct constituting “just cause.”
The county prison of Centre County is not a private enterprise whose managers may totally bargain their away powers. prison is a governmental institution whose provision XXII, Agreement, 3(a) 4. Another in the section of Article part states in material that: to, power authority The arbitrator shall have no or to add subtract from, modify Agreement provisions arriving of this at a presented decision of the issue or issues and shall confine his solely application decision to a determination of the facts and interpretation Agreement____ of this *14 administrators charged are governmental functions duties, many of which are in codified statute and regulation. Under the mandate of section 1 of the Act of 16, 1921, May amended,,5 P.L. 579 as the Prison Board of Centre is exclusively vested with the governance and management of the county prison, and with the safe- keeping of If inmates. the Board is to carry out its duty relating safe-keeping of prisoners, the Board must have the unfettered power discharge an employee who is found to have subjected an inmate to physical abuse.
Clearly, grievants' acts of handcuffing shackling prisoner Riggleman in violation of state regulations, and enema, act of him forcibly subjecting to an come within the category of physical abuse. We can ascertain nothing in the Collective Bargaining Agreement to suggest that the arbitrator had the power overrule the employer’s discipli decision nary regarding Thus, such conduct. the courts below were correct in applying to this case the reasoning of our decision Philadelphia Housing Authority v. Union Security # supra.6 fact that the out Officers rageous conduct here involved was perpetrated the fun and frolic of guards is hardly a basis for exempting it from the full employer’s disciplinary power. Equally un compelling is the finding arbitrator’s that “horseplay” was historically common at the prison. The two here involved did not have a prescriptive right to violate the law they as did. herein,
For the reasons set forth we conclude that the arbitration award sub judice was rationally derived from the Collective Bargaining Agreement, and thus was properly set aside. the order
Accordingly, of the Commonwealth Court is affirmed.
5. 61 P.S. 408. § Although 6. Philadelphia Housing the decision in Authority came after it, adoption our of the “essence” test but does not mention the of the underlying considerations “essence” cated. necessary part the decision are a governmental impli- standard in cases where functions are LARSEN, J., concurring opinion files a which PAPADAKOS, J., joins.
ZAPPALA, J., concurs the result. Justice,
LARSEN, concurring. that, opinion. emphasize I I wish to join majority observes, intervention in arbitra- majority judicial labor *15 is and should the rare exception. long tion awards be So (i.e., derives the “essentially” reasonably) the arbitrator the collective bargaining agreement, award from award will not disturbed. be however,
Here,
as in
v.
Philadelphia Housing Authority
#
500 Pa.
PAPADAKOS, J., joins concurring opinion. this