354 A.2d 1

American Federation of State, County and Municipal Employes, AFL-CIO v. Commonwealth of Pennsylvania, Appellant.

Commonwealth Court of Pennsylvania.Argued December 2, 1975
March 24, 1976.

Labor — Arbitration — Jurisdiction of the Commonwealth Court of Pennsylvania — Pa. R.J.A. No. 2101 — Collective bargaining agreement — Essence of award — Scope of appellate review — Disregarding agreement — Resignation — Constructive discharge — Commencement of proceedings.

1. Under Pa. R.J.A. No. 2101, the Commonwealth Court of Pennsylvania has subject matter jurisdiction over an appeal from an arbitrator’s award rendered pursuant to a collective bargaining agreement. [164]

2. An award of an arbitrator rendered upon a grievance filed under a collective bargaining agreement will not be disturbed on appeal unless the arbitrator has manifestly disregarded the agreement and the award has not drawn its essence from that agreement. [165]

3. An award of an arbitrator, resulting from a finding that an employe resignation following a request to resign was a constructive discharge in violation of terms of the pertinent collective bargaining agreement relating to the commencement of discharge proceedings and based directly on the language of that agreement, will not be disturbed on appeal. [165]

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Judge MENCER filed a dissenting opinion which was substantially as follows:

1. An employe’s resignation is not a constructive discharge when it voluntarily occurs after the employe is confronted with an unsatisfactory performance record, advised that disciplinary proceedings would be initiated and requested to resign, and such a course of events does not constitute the commencement of discharge proceedings. [166]

Argued December 2, 1975, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.

Appeal, No. 111 Misc. Docket, from an arbitrator’s award in, case of In the Matter of Arbitration between Gary Stone and the American Federation of State, County and Municipal Employees, AFL-CIO, June 13, 1975.

Grievance under collective bargaining agreement submitted to arbitrator. Arbitrator rendered award. Employer filed petition for review of the arbitration award with the Commonwealth Court of Pennsylvania. Held: Award affirmed.

Miles J. Gibbons, Jr., for appellant.

Neal Goldstein, with him Richard Kirschner, and Markowitz Kirschner, for appellee.

OPINION BY JUDGE BLATT, March 24, 1976:

The Commonwealth of Pennsylvania (Commonwealth) entered into a collective bargaining agreement (agreement) with the American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME) on July 1, 1973. This agreement was entered into pursuant to the Public Employe Relations Act[1] (PERA) and purports to represent “the entire agreement” between

Page 164

the parties. A grievance was filed by a civil service employee, who was represented by AFSCME, and the grievance was submitted to arbitration. The Arbitrator’s award was in favor of the grievant and the Commonwealth has now appealed to this Court pursuant to Pa. R.J.A. No. 2101.

The grievant was a Correctional Officer Trainee at a state correctional institution. He had a poor job attendance record and had received a written memorandum of warning regarding his absenteeism. A short time after this warning, he was again absent from work. Upon his return, he was asked to meet with three of his superiors, and, approximately one-half hour after this meeting, he was recalled to his superior’s office and asked to sign a letter of resignation, which had been prepared in his absence. This he did. The grievance filed in his behalf alleges that he was constructively discharged in violation of his employment rights under the agreement, and the Commonwealth defended on the ground that he had resigned and, therefore, that no violation of the agreement had occurred. The Arbitrator decided, after listening to the conflicting testimony of the parties, that the grievant had been constructively discharged under circumstances which violated the collective bargaining agreement and ordered his reinstatement with back pay. It is this order which the Commonwealth appeals here.

It is clear that Pa. R.J.A. No. 2101 provides this Court with subject matter jurisdiction over an appeal from an arbitrator’s award made pursuant to a collective bargaining agreement County of Franklin v. American Federation of State, County and Municipal Employees, 21 Pa. Commw. 379, 346 A.2d 845
(1975); Community College of Beaver County v. Community College of Beaver County, Society of the Faculty (PSEA/NEA), 17 Pa. Commw. 231, 331 A.2d 921 (1975).

It is especially clear that the standard of review here is the so-called “essence test,” which provides that the

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award of an arbitrator, commissioned pursuant to a collective bargaining agreement, must draw its “essence” from that agreement. The arbitrator is restricted to an interpretation and application of the agreement, and his award must draw its “essence” from the basic agreement if it is in any way rationally derived therefrom. Only when there is a manifest disregard of the agreement may the reviewing court disturb the award. County of Franklin, supra; County of Allegheny v. Allegheny County Prison Employees Independent Union, 20 Pa. Commw. 173, 341 A.2d 578 (1975); Teamsters Local Union 77 v. Pennsylvania Turnpike Commission, 17 Pa. Commw. 238, 331 A.2d 588 (1975).

Here, the Arbitrator examined the testimony of the parties and concluded that the circumstances of the termination of the grievant’s employment constituted, in reality, a discharge. He referred to Appendix F of the agreement, which provides inter alia, as follows:

“The Employer shall furnish written notification of supervisory . . . charges against the employe at least twenty-four (24) hours prior to the commencement of proceedings.”

He noted that confronting an employee with oral charges of unsatisfactory job performance, informing him that disciplinary action was being recommended and requesting his resignation, all as happened here, amounted to a constructive discharge and constituted “the commencement of proceedings” as that phase is used in Appendix F. He then concluded that the requirement of Appendix F, a prior written notification of the commencement of proceedings, had not been afforded to the grievant. He held, therefore, that the agreement had been violated. The Arbitrator’s award here is based directly upon the collective bargaining agreement, clearly draws its essence therefrom and the Arbitrator’s interpretations of the agreement are reasonably made within its boundaries.

We, therefore, enter the following

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ORDER
AND NOW, this 24th day of March, 1976, the award of the Arbitrator, dated June 13, 1975, is hereby affirmed and the appeal of the Commonwealth is dismissed.

[1] Act of July 23, 1970, P. L. 563, as amended, 43 P. S. § 1101101 et seq.

DISSENTING OPINION BY JUDGE MENCER:

I respectfully dissent. I cannot conclude, as the majority does, that “confronting an employee with oral charges of unsatisfactory job performance, informing him that disciplinary action was being recommended and requesting his resignation, all as happened here, amounted to a constructive discharge and constituted ‘the commencement of proceedings’ as that phase is used in Appendix F.”

Appendix F of the agreement in question provides, inter alia,
as follows:

“The Employer shall furnish written notification of supervisory . . . charges against the employe at least twenty-four (24) hours prior to the commencement of proceedings.”

Here there was no such notification, but there was none needed since the grievant resigned. However, accepting the majority’s determination that under the facts here the grievant was constructively discharged, it does not seem to me that (1) confronting an employee with unsatisfactory job performance, (2) informing him that disciplinary action was being recommended, and (3) requesting his resignation constitutes the “commencement of proceedings.” Without such a conclusion, written notification was not required and the agreement had not been violated.

The arbitrator’s award, based solely on his determination that a prior written notification of the commencement of proceedings had not been afforded to the grievant, should not be allowed to stand on a record which cries out that no proceedings were commenced.

Page 167

354 A.2d 1

American Federation of State, County and Municipal Employes, AFL-CIO v. Commonwealth of Pennsylvania, Appellant.

Commonwealth Court of Pennsylvania.Argued December 2, 1975
March 24, 1976.

Labor — Arbitration — Jurisdiction of the Commonwealth Court of Pennsylvania — Pa. R.J.A. No. 2101 — Collective bargaining agreement — Essence of award — Scope of appellate review — Disregarding agreement — Resignation — Constructive discharge — Commencement of proceedings.

1. Under Pa. R.J.A. No. 2101, the Commonwealth Court of Pennsylvania has subject matter jurisdiction over an appeal from an arbitrator’s award rendered pursuant to a collective bargaining agreement. [164]

2. An award of an arbitrator rendered upon a grievance filed under a collective bargaining agreement will not be disturbed on appeal unless the arbitrator has manifestly disregarded the agreement and the award has not drawn its essence from that agreement. [165]

3. An award of an arbitrator, resulting from a finding that an employe resignation following a request to resign was a constructive discharge in violation of terms of the pertinent collective bargaining agreement relating to the commencement of discharge proceedings and based directly on the language of that agreement, will not be disturbed on appeal. [165]

Page 163

Judge MENCER filed a dissenting opinion which was substantially as follows:

1. An employe’s resignation is not a constructive discharge when it voluntarily occurs after the employe is confronted with an unsatisfactory performance record, advised that disciplinary proceedings would be initiated and requested to resign, and such a course of events does not constitute the commencement of discharge proceedings. [166]

Argued December 2, 1975, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.

Appeal, No. 111 Misc. Docket, from an arbitrator’s award in, case of In the Matter of Arbitration between Gary Stone and the American Federation of State, County and Municipal Employees, AFL-CIO, June 13, 1975.

Grievance under collective bargaining agreement submitted to arbitrator. Arbitrator rendered award. Employer filed petition for review of the arbitration award with the Commonwealth Court of Pennsylvania. Held: Award affirmed.

Miles J. Gibbons, Jr., for appellant.

Neal Goldstein, with him Richard Kirschner, and Markowitz Kirschner, for appellee.

OPINION BY JUDGE BLATT, March 24, 1976:

The Commonwealth of Pennsylvania (Commonwealth) entered into a collective bargaining agreement (agreement) with the American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME) on July 1, 1973. This agreement was entered into pursuant to the Public Employe Relations Act[1] (PERA) and purports to represent “the entire agreement” between

Page 164

the parties. A grievance was filed by a civil service employee, who was represented by AFSCME, and the grievance was submitted to arbitration. The Arbitrator’s award was in favor of the grievant and the Commonwealth has now appealed to this Court pursuant to Pa. R.J.A. No. 2101.

The grievant was a Correctional Officer Trainee at a state correctional institution. He had a poor job attendance record and had received a written memorandum of warning regarding his absenteeism. A short time after this warning, he was again absent from work. Upon his return, he was asked to meet with three of his superiors, and, approximately one-half hour after this meeting, he was recalled to his superior’s office and asked to sign a letter of resignation, which had been prepared in his absence. This he did. The grievance filed in his behalf alleges that he was constructively discharged in violation of his employment rights under the agreement, and the Commonwealth defended on the ground that he had resigned and, therefore, that no violation of the agreement had occurred. The Arbitrator decided, after listening to the conflicting testimony of the parties, that the grievant had been constructively discharged under circumstances which violated the collective bargaining agreement and ordered his reinstatement with back pay. It is this order which the Commonwealth appeals here.

It is clear that Pa. R.J.A. No. 2101 provides this Court with subject matter jurisdiction over an appeal from an arbitrator’s award made pursuant to a collective bargaining agreement County of Franklin v. American Federation of State, County and Municipal Employees, 21 Pa. Commw. 379, 346 A.2d 845
(1975); Community College of Beaver County v. Community College of Beaver County, Society of the Faculty (PSEA/NEA), 17 Pa. Commw. 231, 331 A.2d 921 (1975).

It is especially clear that the standard of review here is the so-called “essence test,” which provides that the

Page 165

award of an arbitrator, commissioned pursuant to a collective bargaining agreement, must draw its “essence” from that agreement. The arbitrator is restricted to an interpretation and application of the agreement, and his award must draw its “essence” from the basic agreement if it is in any way rationally derived therefrom. Only when there is a manifest disregard of the agreement may the reviewing court disturb the award. County of Franklin, supra; County of Allegheny v. Allegheny County Prison Employees Independent Union, 20 Pa. Commw. 173, 341 A.2d 578 (1975); Teamsters Local Union 77 v. Pennsylvania Turnpike Commission, 17 Pa. Commw. 238, 331 A.2d 588 (1975).

Here, the Arbitrator examined the testimony of the parties and concluded that the circumstances of the termination of the grievant’s employment constituted, in reality, a discharge. He referred to Appendix F of the agreement, which provides inter alia, as follows:

“The Employer shall furnish written notification of supervisory . . . charges against the employe at least twenty-four (24) hours prior to the commencement of proceedings.”

He noted that confronting an employee with oral charges of unsatisfactory job performance, informing him that disciplinary action was being recommended and requesting his resignation, all as happened here, amounted to a constructive discharge and constituted “the commencement of proceedings” as that phase is used in Appendix F. He then concluded that the requirement of Appendix F, a prior written notification of the commencement of proceedings, had not been afforded to the grievant. He held, therefore, that the agreement had been violated. The Arbitrator’s award here is based directly upon the collective bargaining agreement, clearly draws its essence therefrom and the Arbitrator’s interpretations of the agreement are reasonably made within its boundaries.

We, therefore, enter the following

Page 166

ORDER
AND NOW, this 24th day of March, 1976, the award of the Arbitrator, dated June 13, 1975, is hereby affirmed and the appeal of the Commonwealth is dismissed.

[1] Act of July 23, 1970, P. L. 563, as amended, 43 P. S. § 1101101 et seq.

DISSENTING OPINION BY JUDGE MENCER:

I respectfully dissent. I cannot conclude, as the majority does, that “confronting an employee with oral charges of unsatisfactory job performance, informing him that disciplinary action was being recommended and requesting his resignation, all as happened here, amounted to a constructive discharge and constituted ‘the commencement of proceedings’ as that phase is used in Appendix F.”

Appendix F of the agreement in question provides, inter alia,
as follows:

“The Employer shall furnish written notification of supervisory . . . charges against the employe at least twenty-four (24) hours prior to the commencement of proceedings.”

Here there was no such notification, but there was none needed since the grievant resigned. However, accepting the majority’s determination that under the facts here the grievant was constructively discharged, it does not seem to me that (1) confronting an employee with unsatisfactory job performance, (2) informing him that disciplinary action was being recommended, and (3) requesting his resignation constitutes the “commencement of proceedings.” Without such a conclusion, written notification was not required and the agreement had not been violated.

The arbitrator’s award, based solely on his determination that a prior written notification of the commencement of proceedings had not been afforded to the grievant, should not be allowed to stand on a record which cries out that no proceedings were commenced.

Page 167