Pa. State Corr. Officers Ass'n v. Dep't of Corr.

244 A.3d 85

PENNSYLVANIA STATE CORRECTIONS OFFICERS ASSOCIATION, Petitioner

v.DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL INSTITUTION AT BENNER, Respondent

No. 203 C.D. 2020

Commonwealth Court of Pennsylvania.

Argued October 15, 2020

Decided December 15, 2020

Christopher J. Cimballa, Pittsburgh, for Petitioner.

Joseph M. Gavazzi, Assistant Counsel, Mechanicsburg, for Respondent.

BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge

OPINION BY JUDGE BROBSON

Pennsylvania State Corrections Officers Association (Association) petitions for review of a grievance arbitration award (De Treux Award), dated January 20, 2020, issued pursuant to the Public Employe Relations Act (PERA).¹ Arbitrator Walter De Treux denied the Association's grievance and concluded that the Commonwealth of Pennsylvania, Department of Corrections (Department) violated neither the relevant terms of the Collective Bargaining Agreement (CBA)² nor previously issued binding arbitration awards (Colflesh Awards),³ when it split bid the Infirmary Officer and Psychiatric Observation Cell (POC) Officer relief positions at the State Correctional Institution at Benner Township (SCI-Benner). For the reasons that follow, we affirm the decision.

I. BACKGROUND

The facts underlying this matter are not in dispute. The Department and its employees are responsible for the care, custody, and control of inmates. In this regard, Article 2, Section 1 of the CBA provides, in pertinent part:

It is understood and agreed that the [Department], at its sound discretion, possesses the right, in accordance with applicable laws, to manage all operations including the direction of the working force and the right to plan, direct, and control the operation of all equipment and other property of the [Department], except as modified by this Agreement.

Matters of inherent managerial policy are reserved exclusively to the [Department]. These include but shall not be limited to such areas of discretion or policy as the functions and programs of the [Department], standards of service, its’ [sic] overall budget, utilization of technology, the organizational structure and selection and direction of personnel.

(R.R. at 4a.) The Department has broad managerial discretion over how the prison operates, but it can, as it did in this case, agree to limit that discretion in situations where it bargained with the Association per the provisions of the CBA.

Operating a prison is a twenty-four-hour responsibility, and corrections officers (COs) are assigned to day, evening, and night shifts at each SCI. The Department's operational responsibilities occur seven days of the week, resulting in COs working weekends and holidays. Additionally, during a work shift, the amount of contact a CO has with inmates, as well as the control over a "post" (i.e. , a specific assignment for that particular day), varies, with some posts having routine and regular contact with inmates, while others have very little to no contact. The parties have incorporated a process into the CBA that allows a CO, who is the most qualified senior bidder, the opportunity to work his or her shift at one of the more desirable posts, referred to as a "bid post." The CBA, Article 33, Section 18, provides:

A [b]id [p]ost is a [CO] post that is desirable because it involves considerably reduced and/or limited inmate contact and control and, consequently, involves less of the demands normally associated with exercising care, custody and/or control over inmates for an eight-hour shift. Additionally, the work hours and/or days of such positions may be those typically considered as premium (i.e. 8 a.m.-4 p.m., Monday through Friday), but not necessarily operated on those hours and/or days.

(R.R. at 8a.) Article 33, Section 18(b) of the CBA provides, in relevant part:

The [Department] agrees to post any vacancy in a permanent job assignment (i.e. not involving promotion) 15 days prior to the filling of such vacancy unless an emergency requires a lesser period of time. Employees at an institution ... who are in the eligible job classification will be given an opportunity to bid on such a vacancy and preference shall be granted onto the qualified senior bidder. Whenever the vacancy is filled by a person other than the most qualified senior eligible employee bidding on the job, the institution superintendent or his representative will explain to the most qualified senior eligible employee the reason for selecting a less senior person ... [and] [a] grievance under this Section may be pursued ....

(Id .) Article 33, Section 18(h) of the CBA provides:

In the event that a new position is created after the issuance of this award [(i.e ., the Colflesh Awards)], and the parties are unable to agree whether the new position constitutes a bid post, the dispute will be resolved by submission to the grievance and arbitration process set forth in Article 35 of this [CBA].^{[4 ]}

(R.R. at 9a.) Accordingly, Article 33, Section 18 of the CBA limits the Department's managerial discretion to assign COs to certain posts within the SCI if the post constitutes a bid post.

Historically, the issue of which posts were bid posts varied across the SCIs in the Commonwealth. This ultimately led to arbitration between the parties, a decision, and the implementation of the Colflesh Awards on November 20, 2011.⁵ Arbitrator Ralph H. Colflesh reviewed the various CO posts at each SCI and, after twelve days of arbitration hearings, used the following factors to decide which posts were bid posts: (1) the number of inmates with whom a CO on the post has to have "contact" with and have "control" over; (2) the frequency during an eight-hour shift that inmates must be contacted and controlled on the post; and (3) the intensity (otherwise described as the degree of effort) of the contact and control the CO must exert on the post. Arbitrator Colflesh then reviewed twenty-eight common posts within each SCI and, using his three factors, decided whether each post would be a bid post (assigned based on seniority) or a non-bid post (assigned by the Department's discretion). The arbitration resulted in awards that provided the Department and Association with statewide consistency on which positions at the SCIs were bid posts.

When a CO is awarded a bid post, the expectation is that he or she will remain at the post for the entire shift, absent being "relieved" by another CO for breaks or mealtimes during the shift (i.e. , a relief post). Arbitrator Colflesh deemed that the relief posts should also be awarded to a qualified senior bidder under the terms of the CBA. As to relief posts, the Colflesh Awards provide, in pertinent part:

A post as used in my award includes [r]elief day posts for all those posts identified. These shall be bid except when management determines it to be necessary to fill such a post with a trainee to acquire the requisite training. Provided that relief bids shall be developed to cover multiple reliefs within the designated post. No relief bid shall be for a period of less than [two] days. With respect to reliefs, if the duties of a relief holder are not being performed during any period of a shift, the incumbent holding the relief bid shall be reassigned as necessary for that time.

(R.R. at 48a, 49a.) Although the Department initially disputed that the relief post needed to be a bid post position, it ultimately agreed that relief posts should also be awarded to the qualified senior bidder. The disagreement remaining between the parties now focuses on how (i.e. , which position should be utilized) to provide relief for the SCI-Benner POC bid post.

As a background, beginning in September 2018, the Department began rotating the CO assigned to the POC (POC Officer) with a CO assigned as a Utility Officer, a non-bid post position.⁶ The POC Officer rotated back and forth between the POC and another CO position. Later, the Department used the Infirmary Officer, a bid post position, to relieve the POC Officer in a "split bid" arrangement. "Split bid arrangements" occur when one CO bid post is used as the relief for another CO bid post. The Association disagreed with the Department's use of the Infirmary Officer in the split bid arrangement.⁷ The Association wanted the Department to use the Utility Officer as the relief position, provided that the Utility Officer became a bid post. Local Association President, Jonathan Gray, filed a class action grievance with the Department on September 26, 2018, citing Article 33, Section 18 of the CBA and claiming "[m]anagement is removing the POC Officer from his bid job on all shifts. Make grievants whole."⁸ (R.R. at 15a.)

An arbitration hearing was held at SCI-Benner on October 21, 2019. (R.R. at 154a-60a.) Arbitrator De Treux, after the hearing, allowed the parties to file post-hearing briefs. Arbitrator De Treux noted in his Award that the parties were not able to agree on how to define the issue at the hearing; both parties, however, agreed to allow him to frame the issue. (R.R. at 175a.) Arbitrator De Treux defined the issue as follows:

[Whether] the determination by SCI[-]Benner management to have the [POC] [b]id [p]ost [r]elief be a split bid with the Infirmary Officer position violate[s] Article 33, Section 18 of the [CBA] or the Colflesh Award[s][.] If so, what shall be the remedy?

(Id. ) Arbitrator De Treux explained:

The issue now presented by this evolving grievance is not whether management has the discretion to bid the POC [b]id [p]ost [r]elief position as it sees fit; but rather, [the issue is] how the position should be bid based on the needs and efficient operation of the facility and consistent with the [CBA] and Colflesh Award[s].

(R.R. at 176a-77a.)

Arbitrator De Treux, after determining the relevant issue, disagreed with the Department's argument that Article 2, Section 1 of the CBA gave it unilateral discretion to determine how the POC relief position should be filled. (R.R. at...