28 Pa. Commw. 323 | Pa. Commw. Ct. | 1977
Opinion by
The United Transportation Union, Local 1594 (Union), pursuant to Pa. R.J.A. No. 2101, has appealed from an award of arbitration made in a labor dispute between the Union and Southeastern Pennsylvania Transportation Authority (SEPTA) over the propriety of the discharge by SEPTA of one Anthony Ruger, a bus driver, for alleged substandard work.
The collective bargaining agreement provided a grievance procedure, the last step of which was “final and binding” arbitrators by a three person Board of Arbitrators, one each selected by the parties and the third selected under the rules of the American Arbitration Association. The arbitrators conducted extensive hearings, at the conclusion of which a majority decided that Mr. Ruger’s discharge was unwarranted and that he should be reinstated but without reimbursement of any loss of earnings or other financial losses during the period between the date of the discharge, November 20, 1975, and of the award, May 14, 1976. The dissenting member of the Board, the Union’s designee, believed that full back pay and other benefits should have been awarded.
The arbitration award written for the majority of the Board records apparent incidents of bad behavior on the part of Mr. Ruger memorialized by complaints of passengers or SEPTA supervisors, warnings is
We have adopted the Federal test for review of arbitrators’ awards appealed under Pa. R.J.A. No. 2101.
The Union first argues that the majority of the Board of Arbitrators should not have considered the triggering incident, because charges based thereon were not filed as prescribed by Article 33(1) of the collective bargaining agreement which provides that “ [disciplinary charges against an employe will be filed within ten (10) days of SEPTA’s knowledge of the incident . . . .” As noted, the incident in question
The Union next complains that the majority of the arbitrators exceeded its power in not awarding back pay. Its position seems to be that the arbitrators had before them only the issue of the propriety of Mr. Euger’s discharge and that, having concluded that he should be reinstated, they were powerless to withhold back pay. This is clearly not the law. Arbitrators have broad powers in the fashioning of remedies. Justice Douglas in United Steelworkers of America v. Enterprise Wheel and Car Corp., supra, wrote:
When an arbitrator is commissioned to interpret and apply the collective bargaining*328 agreement, lie 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 ne,ed 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.
363 U.S. at 597.
Further, in Teamsters Local Union No. 77 v. Pennsylvania Turnpike Commission, supra, the question posed and decided in the affirmative was that of whether arbitrators may deny back pay to a discharged employe whom they order to be reinstated.
The Union says, finally, that the majority of the arbitrators were biased in favor of SEPTA and against Mr. Ruger and that the award, insofar as it withheld back pay, was unjust, inequitable and unconscionable. The charge of bias is based upon the assertion that the arbitrators considered hearsay evidence and that they disregarded evidence favorable to Mr. Ruger. In School District of the City of Allentown v. Allentown Education Association, 23 Pa. Commonwealth Ct. 224, 351 A.2d 292 (1976), we held that an arbitrator’s consideration of probative hearsay was no basis for setting aside an award. Furthermore, the rule in the Federal system, which we have adopted, is that,
[i]n an arbitration case a court cannot act as a legal screen to comb the record for technical errors in the receipt or rejection of evidence by arbitrators, who in most cases are laymen.
Newark Stereotypers Union No. 874 v. Newark Morning Ledger Co., 397 F.2d 594, 599 (3rd Cir. 1968), and that reviewing judges:
*329 must recognize — indeed, discipline ourselves to make certain that we are conscious of it always — that if the controversy is one for grievance machinery and for resolution by an arbitrator whose decision is expressly to be final and binding, there is every likelihood that that chosen umpire may well make errors both of fact and law — that is errors in the eyes of Judges now having a narrowly circumscribed function.
Dallas Typographical Union No. 173 v. A. H. Belo Corp., 372 F.2d 577, 581 (5th Cir. 1967).
Nothing complained of by the Union with respect to( the conduct of the hearing and the findings and conclusions of the majority arbitrators describes error so detrimental to the Union’s or Mr. Euger’s rights that it may be said that they were deprived of a fair hearing.
We therefore dismiss the Union’s appeal and affirm the award of arbitrators.
Order
And Now, this 26th day of January, 1977, it is ordered that the appeal of the United Transportation Union, Local 1594 be and it is dismissed and the award of arbitrators be and it is hereby affirmed.
The majority of the Board of Arbitrators concluded that SEPTA rules forbade its employes from smoking while operating buses, including charters. The Union does not' take issue with this conclusion in the appeal to this Court.
Pa. R.J.A. No. 2101 was rescinded by Pa. R.A.P. No. 5104, effective July 1, 1976. See now, Pa. R.A.P. No. 703.
United Steelworkers of America v. Enterprise Wheel and Car Corporation, 363 U.S. 593 (1960).
Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123 (3rd Cir. 1969).