17 Pa. Commw. 238 | Pa. Commw. Ct. | 1975
Opinion by
On November 25, 1972, at about 4:30 a.m., an employee (Ms. X) of the Pennsylvania Turnpike Commission (appellee) was allegedly observed making love to a
Appellant, on July 25, 1973, filed a complaint in equity praying this Court to reverse the arbitrator’s award insofar as it refused back pay to Ms. X. By Order of this Court dated January 10, 1974, appellee’s preliminary objections, in the nature of a demurrer, to the equity complaint were sustained. However, the same Order granted leave to appellant to petition for allowance of appeal under Pa. R.J.A. No. 2101. Appellant filed such a petition on January 24, 1974, and appellee once again responded with preliminary objections. By Order of this Court dated February 7, 1974, these preliminary objections were overruled
The letter which informed Ms. X of her discharge from employment stated “behavior unbecoming an em
The United States Supreme Court has expansively defined the role of an arbitrator in a labor dispute in United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597 (1960): “When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. There the need is for flexibility in meeting a wide variety of situations. The draftsmen may never have thought of what specific remedy should be awarded to meet a particular contingency. Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement.” (Emphasis added.)
In Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123 (3rd Cir. 1969), the “essence test” enunciated in United Steelworkers was explained as follows: “[A]
“Warning notice” appears to have been an improvident title for the writing required of appellee incident to a discharge or other disciplinary action since this writing is more in the nature of a legal complaint than a warning. The “warning notice” is designed to apprise the employee of those specific activities on his or her part which precipitated the discharge or other disciplinary action. The collective bargaining agreement does not obligate appellee to supply the “warning notice” prior to appellee’s decision to discharge or otherwise discipline. In fact, under the terms of the agreement, appellee could properly notify the employee of the discharge or other disciplinary action concurrently with or even antecedent to the sending of the “warning notice.” In eifect, this reduces appellee’s procedural faux pas to its use of “behavior unbecoming an employee” in its letter terminating Ms. X’s services, rather than “making love with a truck driver, while on duty,” or other more precise language. In weighing the seriousness of appellee’s error
Award affirmed.
. These preliminary objections attacked the subject matter jurisdiction of this Court. Appellee has raised this objection once more, both in its brief and in argument. However, having received a prior disposition of this issue, appellee is precluded from having any further consideration of it by this Court. See Community College of Beaver County v. Community College of Beaver County, Society of the Faculty (PSEA/NEA), Pa. Commonwealth Ct. , 331 A.2d 921 (1975).