City of Erie v. Gen. Teamsters Local Union No. 397

250 A.3d 550 (Table)

CITY OF ERIE v. GENERAL TEAMSTERS LOCAL UNION NO. 397 (Kelly Kirsch), Appellant

No. 150 C.D. 2018

Commonwealth Court of Pennsylvania.

Argued: May 14, 2020

Filed: February 19, 2021

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McCULLOUGH

This matter is before the Court on remand from the Pennsylvania Supreme Court for reconsideration on the basis of its decision in Millcreek Township School District v. Millcreek Township, Educational Support Personnel Association , 210 A.3d 993 (Pa. 2019) ( Millcreek II ).

Facts and Procedural History

The following facts are garnered from the Court of Common Pleas of Erie County's (trial court) and arbitrator's opinions in this matter. General Teamsters Local Union No. 397 (Union) is the collective bargaining agent representing certain Union employees of the City of Erie (City). The City and the Union are parties to a collective bargaining agreement (CBA), which provides for the arbitration of grievances relating to that agreement. "Just cause" for termination is defined in Section 901 of the CBA, (Dismissal, Layoff, Demotion, Promotion, Discipline). It provides in relevant part that the City "may ... dismiss the employee ... at any time for just cause relating to qualifications, performance, attitude, work habits or personal conduct." (Reproduced Record at 86a.)

Kelly Kirsch (Grievant) was employed as an operator at the City's wastewater treatment facility. (Arbitrator's opinion at 2.) He began this employment part time in April of 2004 and later became full time in September of 2009. Id.

Grievant was initially terminated from his employment effective March 17, 2015, based on a poor attendance history, multiple warnings, and three days of consecutive absences beginning on March 14, 2015. (Trial court op., March 16, 2018, at 1-2.) These absences resulted from Grievant's arrest and incarceration on charges of driving under the influence and firearm possession. ( Id. at 2.)

2015 Arbitration Opinion and Award

The Union thereafter filed a grievance on Grievant's behalf. Id. Following an arbitration hearing on December 16, 2015, arbitrator Robert A. Creo issued an opinion and award concluding that the City did not have just cause to terminate Grievant and directing that he be reinstated to his former position with full back pay. Id. The City filed a petition to vacate the arbitration award, but the trial court denied the same by order dated October 14, 2016, and the City did not file a further appeal. (Trial court op., March 16, 2018, at 2-3.)

2017 Arbitration Opinion and Award

On January 13, 2016, two days before the City had filed its petition to vacate the 2015 arbitration award with the trial court, Grievant was arrested and incarcerated on drug charges. (Trial court op., March 16, 2018, at 3.) He had not yet returned to work at that time. Id. In February of 2016, the City made a position available to Grievant. Id. By letter dated February 24, 2016, the City notified Grievant that his continued absence from work and lack of an acceptable explanation for his absence led to the City's determination to commence another action to terminate his employment. Id. The City afforded him the opportunity to respond and to offer any information he believed might mitigate the situation or cause the City to reverse its decision. Id. By correspondence dated March 9, 2016, the Union responded on Grievant's behalf, advised of his incarceration, and noted his inability to return to work at that time, anticipating his release in the near future when he would then return to work. Id.

By letter dated March 21, 2016, authored by the Human Relations Manager, Connie Cook (Cook), the City advised Grievant of his termination effective that date, stating:

I am in receipt of the letter from the [ ] Union, dated March 9, 2016. This response from your representative is an inadequate excuse, as is your reason for not reporting to work or contacting your employer, that being your current incarceration.

Therefore, your employment is terminated effective March 21, 2016. Any benefits to which you are entitled will be paid out to you.

(Arbitrator's op. at 6.) Two days later, on March 23, 2016, the Union filed a grievance on Grievant's behalf alleging that Grievant was unjustly terminated in accordance with the just cause provisions of the parties’ CBA. Id. A new arbitrator, Marc A. Winters, was appointed and a hearing was ultimately held on June 9, 2017. ² Id. at 2. The arbitrator determined that the sole issue submitted for arbitration was whether the City had "just cause" to terminate Grievant's employment under the CBA.

At the hearing, the City presented the testimony of Cook, who testified that the City could not hold a position open for Grievant. Id. at 6. Cook also indicated that Grievant himself, not the Union, should have contacted the City and explained his situation, namely his incarceration. Id. Cook stated that had Grievant contacted the City himself, the City may have considered not terminating him and allowing him to return to work. Id. at 7. Grievant testified on his own behalf, stating that he had never taken, sold, or manufactured narcotics prior to the City's filing of its petition to vacate the 2015 arbitration award. Id. Grievant explained that subsequent to this filing, he became depressed and felt that he had no alternative but to sell drugs to make money. Id.

By opinion and award dated June 16, 2017, the arbitrator granted the grievance. Addressing Cook's testimony that the City could not hold the position for Grievant, the arbitrator noted that the City "did not provide any evidence that would indicate any type of burden or hardship to the City for holding his position until Grievant's release from jail." Id. at 8. Turning to the actual reason for Grievant's termination, the arbitrator found:

The City's entire case ... rest[ed] on the fact that [ ] Grievant, himself, did not contact the City with a plea and an explanation but relayed the fact that he was incarcerated through his Union, who has represented him throughout his first termination and the arbitration case that would have him reinstated including the City's petition to vacate the Award. The City wanted a response from [ ] Grievant, not the Union, telling why he couldn't come to work. In return[,] the City would have been willing to consider his return to work after hearing his explanation and circumstances.

Additionally, there is no language in the parties’ [CBA] which would preclude an employee, who is incarcerated, from having their union representative speak for them while incarcerated. Likewise, no Employer work rule or City ordinance was presented that would prohibit such from occurring.

Id. at 8.

The arbitrator concluded that "the evidence presented at the hearing in support of the charges [was] not sufficient to prove conduct which would satisfy the elements of just cause and justify termination." Id. at 9.

Trial Court Opinion

The City thereafter filed a petition to vacate the arbitrator's award with the trial court, arguing that the arbitrator misapprehended the reason for Grievant's termination as his failure to offer an explanation himself for his absence, rather than its stated reason of unexcused absence from work. The City also argued, inter alia , that the arbitrator erred in finding a right to reinstatement after incarceration; placing a burden on it to offer evidence or justification as to why it could not hold Grievant's position open for 13 months; and finding that an open-ended incarceration is a valid excuse for absence from work.

By opinion and order dated January 19, 2018, the trial court granted the City's petition to vacate and reinstated Grievant's termination. The trial court concluded that the City "reasonably terminated [Grievant's] employment on March 21, 2016. The City, further, was not obligated to hold Grievant's position open for an extended, indefinite, open-ended period of time." (Trial court op., January 19, 2018, at 3.) The trial court noted that the arbitrator's finding of no just cause for Grievant's termination was not supported by the record, emphasizing that Grievant's incarceration and the City's inability to keep the position open indefinitely were "adequate excuses and do satisfy the requirements of the CBA." Id. at 4. The trial court further explained that "Grievant's self-imposed problems are directly within the scope and context of Section 901 and relate to an employee's qualifications, performance, attitude, work habits or personal conduct. In this regard, the arbitrator failed to apply the ‘just cause’ definition as contained in the CBA." Id.

The Union thereafter filed a notice of appeal with the trial court. In compliance with an order from the trial court dated January 31, 2018, the Union filed a statement of errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1925(b). The Union alleged, inter alia , that the trial court misapplied the "essence test" in reviewing the arbitrator's award, substituted its judgment for that of the arbitrator, ignored critical facts, and erred in concluding that the arbitrator's finding of an absence of just cause was unsupported by the record. In its Pa.R.A.P. 1925(a) opinion, the trial court stated that these issues were addressed in its January 19, 2018 opinion and did not need to be addressed further.

This Court's Underlying Decision

By opinion and order dated January 3, 2019, this Court concluded that the trial court did not err in granting the City's petition to vacate the arbitrator's award. City of Erie v. General Teamsters Local Union No. 397 (Kelly Kirsch) , 200 A.3d 1061 (Pa. Cmwlth.), vacated and remanded , 218 A.3d 1201 (Pa. 2019).

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