IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Allegheny, Pennsylvania, :

Appellant :

:

v. : No. 744 C.D. 2016

: ARGUED: April 6, 2017

Allegheny County Prison :

Employees Independent Union :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE HEARTHWAY FILED: July 13, 2017

The County of Allegheny (County) appeals from the March 28, 2016, 

order of the Court of Common Pleas of Allegheny County (trial court), which 

denied the County’s Petition to Vacate Arbitration Award and affirmed the 

arbitrator’s award in all respects. Relevant here is that portion of the arbitrator’s 

award stating that the County cannot award Samuel Pastore (Pastore) work 

schedules or pass days that have been denied to more senior members of the 

bargaining unit. We affirm. 

The County and the Allegheny County Prison Employees Independent 

Union (Union) are parties to a collective bargaining agreement (CBA). 

(Arbitrator’s opinion (Arb. op.) at 3.) Pastore has been employed as a Corrections 

Officer with the County since 1995. In 2007, Pastore suffered a work-related 
2

injury, and as a result, the County provided him with a light duty position as a 

security camera monitor and, subsequently, with a light duty position in Internal 

Affairs. Pastore was designated as a “Floater,” and he subsequently bid on and 

was granted an ongoing Monday to Friday 7:00 a.m. to 3:00 p.m. shift with 

Saturday/Sunday as his pass days, or days off. (See Arb. op. at 3.) 

Article XXVIII of the CBA sets forth the bidding process. Floaters 

may be assigned to work anywhere in the jail. Floaters express a preference (by 

listing three choices) for a particular shift and pass days but are not guaranteed to 

receive them. Seniority governs the shifts and pass days awarded to Floaters.1 

(Arb. op. at 1-2, quoting Arbitrator W. Timothy Barry 1/13/14 op.; see CBA, Art. 

XXVIII.) 

 

1

 Article XXVIII sets forth the bidding process. First are “bid jobs” which are identified 

in the CBA. The officers bid on a particular job and each job has a particular shift and 

designated pass days. A list of bid jobs is posted monthly and each job is awarded based on 

seniority. Second are “level bids” in which officers bid to work jobs on a particular level of the 

jail. Each carries a particular shift and pass days and are also awarded based on seniority. Third 

are “bid days” in which officers bid on shifts and pass days but otherwise float throughout the 

jail to different assignments. Fourth are Floaters in which officers express a preference for a 

particular shift and pass days but are not guaranteed to have it. On the work schedule, a Floater’s 

seniority number is listed, followed by his or her shift preference, and pass day preference. The 

officer lists his or her name, then a first, second and third choice. Shifts and pass days are 

awarded based on seniority. Fifth are “letter bids” which are specific assignments not awarded 

by seniority because they require special skills. The positions are identified in the CBA and 

officers submit resumes and apply for the positions. (Arb. op. at 1-2, quoting Arbitrator W. 

Timothy Barry 1/13/14 op.; see CBA, Art. XXVIII.) 

Before the Arbitrator, the County argued that the bidding process was merely a statement 

of preference. The Arbitrator rejected that argument, and the County does not renew that 

argument before this Court.
3

On March 9, 2014, the Union filed a grievance alleging a violation of 

Article XXX (concerning light duty) and requested that Pastore be removed from 

Internal Affairs and be assigned pass days by seniority.2(Reproduced Record 

(R.R.) at 183.)3 Ultimately, the case was assigned to arbitrator Mark McCloskey

(Arbitrator), and an arbitration hearing was held, at which both parties presented 

evidence.

Before the Arbitrator, the parties raised multiple arguments. Only 

those relevant to the issues raised before us will be recounted. The Union argued 

that the issue concerning the assignment of work schedules and pass days was a 

matter of seniority. The Union maintained that Pastore’s light duty status did not 

entitle him to bypass the bidding process and that no other light duty designated 

personnel have received such preferential treatment. The County, on the other 

hand, asserted that the creation and implementation of light duty is a managerial 

prerogative, and therefore is not subject to the grievance procedure. The County 

also argued that the grievance was not filed in a timely manner because Pastore’s 

pass day schedule was modified in 2007, and the grievance was not filed until

seven years later. 

On February 2, 2015, the Arbitrator issued his opinion and award

(Award) sustaining the grievance, and stated that the County cannot award Pastore 

 

2

The grievance also requested that Pastore not be given free parking; however, that issue 

is not before us. 

3

The County did not number the pages in the Reproduced Record in the manner required 

by Pa. R.A.P. 2173, which requires the page numbers to be followed by a small “a.” We will 

cite to them as the County does to avoid confusion.
4

work schedules or pass days that have been denied to more senior members of the 

bargaining unit. The Arbitrator acknowledged that the County has a right to create 

and implement a light duty program as a managerial prerogative, but stated that 

right was not being challenged by the Union and was not at issue. The Arbitrator 

found that Pastore was designated as a Floater and that the County granted him a 

Monday through Friday, 7:00 a.m. to 3:00 p.m. work schedule with 

Saturday/Sunday pass days. (See Arb. op. at 8.) The Arbitrator found that light 

duty assignments are possible regardless of shift, level or pass days. (Arb. op. at 

8.) The Arbitrator noted the Union’s evidence, including the schedule for the week 

of March 9, 2014, and found that the County ignored the seniority status of union 

members and did not adhere to the established bidding process. In particular, the 

County had granted the Monday through Friday, 7:00 a.m. to 3:00 p.m. work 

schedule with Saturday/Sunday pass days to Officer Pastore when Officer 

Lawrence Reilly and Officer David Isenberg both had greater seniority than 

Pastore and should have been granted their bids before Pastore on that schedule. 

The Arbitrator noted that the grievance sought to remove Pastore from his position 

in Internal Affairs, but stated that the Award does not necessarily preclude Pastore

from performing duties in Internal Affairs.

The County appealed to the trial court, which issued an order denying 

the County’s Petition to Vacate Arbitration Award and affirming the Arbitrator’s 

Award in all respects. Subsequently, the trial court issued an opinion in support of 

its order. The County now appeals to this Court. 
5

This Court's standard of review of a grievance arbitration award is one 

of deference to the award, and our scope of review is the essence test. Slippery 

Rock University of Pennsylvania, Pennsylvania State System of Higher Education

v. Association of Pennsylvania State College and University Faculties, 916 A.2d 

736 (Pa. Cmwlth. 2007). Under the essence test, 

the award must be upheld if: (1) the issue as properly 

defined is within the terms of the collective bargaining 

agreement; and (2) the arbitrator's interpretation can 

rationally be derived from the collective bargaining 

agreement. An arbitrator's award will be vacated only if 

it ‘indisputably and genuinely is without foundation in, or 

fails to logically flow from, the collective bargaining 

agreement.’ The test is not whether the reviewing court 

agrees with the arbitrator's interpretation of the collective 

bargaining agreement but whether the arbitrator's 

interpretation and application of the agreement can be 

reconciled with the language of the agreement.

Department of Corrections, State Correctional Institution at Pittsburgh v. 

Pennsylvania State Corrections Officers Association, 56 A.3d 60, 64 (Pa. Cmwlth. 

2012) (citation omitted). The essence test is subject to a narrow exception that 

allows a court to vacate an arbitrator's award if it violates the public policy of the 

Commonwealth. Westmoreland Intermediate Unit #7 v. Westmoreland 

Intermediate Unit #7 Classroom Assistants Educational Support Personnel 

Association, PSEA/NEA, 939 A.2d 855 (Pa. 2007). “Such public policy, however, 

must be well-defined, dominant, and ascertained by reference to the laws and legal 

precedents and not from general considerations of supposed public interests.” Id. 

at 866. 
6

The County first argues that the Arbitrator’s determination that the

CBA’s bidding process applied to the County’s assignment of light duty positions

does not draw its essence from the CBA. The County maintains that the alleged 

violations are explicitly excluded from the arbitration process because the CBA’s 

grievance procedure excludes any matter reserved to the County by authority of 

law. The County points out that the Public Employe Relations Act4(PERA) does 

not require that light duty programs be negotiated, and that the County retains a 

managerial prerogative to create and implement light duty programs. The County 

further maintains that the managerial prerogative extends to include those 

tangential terms and conditions of employment which might otherwise constitute 

bargainable terms, such as the assignment of light duty shift and pass days here.5

Accordingly, the County contends that this matter is not arbitrable and that the 

Arbitrator exceeded his jurisdiction by addressing this issue.

The Union, on the other hand, accepts that the creation of light duty 

assignments are managerial prerogatives and that a unilateral decision to assign a 

light duty position to an employee is within said prerogative. However, the Union 

maintains that the specific light duty assignment here violates the terms of the 

CBA concerning shift assignments. The Union argues that, pursuant to the CBA, a 

Floater needs seniority in order to hold particular pass days.

 

4 Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101 – 1101.2301.

5

In support of this argument, the County relies on this Court’s unreported opinion in 

York County Prison v. International Brotherhood of Teamsters, Local 776, (Pa. Cmwlth., 2143 

C.D. 2006, filed January 30, 2008). Unreported opinions of this Court may be cited for their 

persuasive value only. 210 Pa. Code § 69.414. More importantly, as will be explained later, 

York is distinguishable, because the language of the CBA concerning managerial prerogative 

here significantly differs from that in York.
7

“[T]he creation of a light duty program is an exercise of managerial 

prerogative, and therefore is not subject to mandatory bargaining.” Teamsters 

Local 77 & 250 v. Pennsylvania Labor Relations Board, 786 A.2d 299, 304 (Pa. 

Cmwlth. 2001). However, “while PERA does not obligate a public employer to 

negotiate matters of ‘inherent managerial policy’ ..., if a public employer chooses 

to do so, absent contrary positive legislation, it is bound by the terms of a CBA.” 

Pennsylvania State System of Higher Education v. Association of Pennsylvania 

State College & University Faculties, 98 A.3d 5, 13 (Pa. Cmwlth. 2014) (quotation 

marks and citations omitted).

 

Here, Article III of the CBA defines a grievance as “[a]ny complaint 

alleging any breach, misapplication or violation of any of these Agreement 

provisions” subject to the following restriction:

Any complaint over any matter or action not 

addressed in these Agreement provisions, specifically 

excluded by any terms thereof, or reserved to the 

County by authority of any law or public policy 

thereon, shall not be subject to any of the Grievance 

Procedure applications of these Article III such 

provisions.

(Art. III, 1.A., 2.A.) In addition, Article XV of the CBA, notably entitled “Manage 

Rights,” provides:

The County retains and reserves unto itself all

inherent, statutory and other powers, rights, authority, 

duties and responsibilities of its management status—

including but not limited to those of operating, 

manning and securing its facilities, hiring, 

scheduling, directing, supervising and, for just cause, 

disciplining and discharging its employees—which 

are not expressly modified or restricted by any 
8

specific and enforceable terms or conditions of these 

Agreement provisions.

(emphasis added.) Importantly, the parties here agreed to a limitation on the 

County’s managerial prerogative to the extent that such matters are modified or 

restricted by the CBA.6 While light duty normally is a managerial prerogative, the 

 

6

This is unlike the managerial prerogative provision in York which provided:

The Management of the County operations and the discretion of 

the working force is vested exclusively in the Employer and 

includes, but is not limited to the right to hire, suspend, discipline 

or discharge for proper cause, or transfer, and the right to relieve 

employees from duty because of lack of work or for other 

legitimate reasons under this Agreement; make and enforce rules 

of conduct; select supervisory and management personnel; 

introduce new or improved methods, equipment or facilities or to 

change existing methods or facilities; determine the total 

employment requirements, hours of work required for a particular 

operation and job assignments and job classification of personnel; 

establish functions, programs, budgets, organizational structure 

and standards of service and performance.

York, slip op. at 7-8 (citations omitted).

Additionally, County of Allegheny v. Allegheny County Prison Employees 

Independent Union, 341 A.2d 578 (Pa. Cmwlth. 1975), is also distinguishable. The County 

points out that County of Allegheny involved the same parties as here and that the CBA here 

retains the same language quoted in that case; therefore, the County maintains that matters 

reserved to the County “by authority of law” are excluded from the grievance procedures. 

Notably, in that case, which involved lunch procedures, we stated that if the Union wanted to 

escape the provisions concerning leaving certain matters to the discretion of the County and 

excluding such matters from the grievance procedure, it was incumbent upon the Union to 

negotiate and explicitly reach an agreement on the particular condition. Here, as will be 

explained, the parties did that with respect to light duty.

The other cases cited by the County in its brief are distinguishable as well, and in 

some instances, also not binding authority on this Court. Those cases concerned charges of 

unfair labor practices and whether the employer had the duty to bargain over a particular matter 

or whether the matter constituted a managerial prerogative over which there was no duty to 

bargain. Here, however, the parties elected to bargain and agreed to some limitations on the 

County’s managerial prerogative as set forth in Articles XV and XXX. 
9

parties negotiated a provision concerning light duty. Specifically, Article XXX of 

the CBA, entitled Light Duty, states:

All correctional officers regardless of their status 

(light duty, jail injury, illness or injury) have the right 

to bid and hold seniority bid jobs, level bids, shift and 

pass day bids. Once the officer is awarded the bid 

job and is performing his or her duties, then 

Appendix “A” #1C will take effect. Officers electing 

not to take a bid will be afforded the opportunity to 

express their choice of shift and pass days according 

to their seniority. 

Accordingly, officers who are deemed Floaters, such as Pastore, will be afforded 

the opportunity to express their choice of shift and pass days according to their 

seniority.7

Reviewing the Arbitrator’s Award as we must under the essence test, 

we cannot say that it is without foundation in, or fails to logically flow from, the 

CBA. The issue is properly defined within the terms of the CBA. Specifically, 

with respect to the bidding procedure in Article XXVIII (which includes Floaters) 

and with respect to the light duty agreement under Article XXX which allows 

“correctional officers regardless of their status ... to express their choice of shift 

and pass days according to their seniority,” the CBA does arguably address 

Pastore’s light duty position and the assignment of shift and pass days based on 

seniority. Importantly, it can be logically said that this aspect of light duty is not 

excluded from the grievance procedures by authority of law or as a matter of 

managerial prerogative, because the “Manage Rights” provision of the CBA 

 

7

See n. 1, supra.
10

contains a limitation on those rights to the extent those rights are modified or 

restricted by other provisions of the CBA. Articles XXVIII and XXX address 

bidding and light duty, respectively, and modify or restrict the County’s “Manage 

Rights.” Thus, while light duty is a managerial prerogative, here the parties 

included a provision in the CBA concerning the particular aspect of how shift and 

pass days would be assigned for a Floater on light duty. As a result, the parties are 

bound by the resulting CBA provisions dealing with light duty positions and the 

seniority preference specified for Floaters, see Pennsylvania State System, and thus 

the issue is within the terms of the CBA. 

The County exercised its managerial prerogative and assigned Pastore 

to a light duty position; Pastore was designated as a Floater while holding that 

position, and that status did not change.8 Pursuant to the CBA, officers who are 

Floaters express a preference for shift and pass days based on seniority. Because 

Article XXX provides for correctional officers in a light duty status to express their 

choice of shift and pass days according to their seniority and because Article 

XXVIII allows Floaters to express their preference for pass days which are 

awarded based on seniority, the CBA arguably addresses the situation of assigning 

shift and pass days to a Floater on light duty and subjects that situation to the 

seniority bidding process. Thus, the Arbitrator’s Award, which relies on these 

provisions, is rationally derived from the language of the CBA. Moreover, the 

Arbitrator’s Award does not direct the County to cease assigning Pastore the light 

 

8

Light duty assignments are possible regardless of shift, level or pass days. Thus, light 

duty is not unique to Saturday/Sunday pass days, and there is nothing preventing the County 

from exercising its managerial prerogative and assigning Pastore to a light duty position. 
11

duty position, nor does it necessarily eliminate Pastore’s Saturday/Sunday pass 

days. Rather, the Award directs the County to cease assigning Pastore work 

schedules or pass days while denying those days to more senior members. The 

Arbitrator’s interpretation can be reconciled with the language of the CBA, and it 

is not the role of this Court to override that determination by reinterpreting the 

CBA. Accordingly, we may not vacate the Award.

The County also argues that the grievance was untimely. Specifically, 

the County maintains that the CBA requires that this type of grievance be filed 

within five (5) days of the event complained of, but that the County assigned 

Pastore to this light duty position over seven (7) years ago.9 The County contends 

that the grievance could have been filed in 2007, and the Union failed to do so. 

Therefore, the County maintains that the filing of the grievance more than seven 

 

9

The County’s argument does not dispute that the timeliness issue is defined within the 

terms of the CBA, which is the first prong of the essence test. Instead, its argument only 

challenges the second prong of the essence test, i.e., the Award is not derived from the CBA 

because the grievance was not filed within the time limitation set forth in the CBA.

Article III of the CBA provides: 

[3.A.] Any grievance not challenging any suspension or discharge 

action (which shall be initiated and submitted under the Step 2 

procedures hereof) shall first be discussed with the Shift 

Commander of the employee(s) initiating it within five (5) work 

days following the event or action complained of, or following the 

event or action complained of [sic], or following the date such 

employee(s) had or should have learned of its occurrence in an 

effort to resolve it at that management level. 

...

[4.A.] It is agreed that any grievance must be presented under the 

procedures of this Article promptly and within the prescribed time 

limitations....

(CBA Art. III 3.A, 4.A.)
12

years beyond the contractually established period cannot draw its essence from the 

CBA.

10

 

On the other hand, the Union states that although the Arbitrator 

referred to this as a “continuing violation,” the Arbitrator explained that when a 

new schedule is posted a violation occurs again. The Arbitrator also explained that 

every day that more senior bargaining unit members work schedules less preferable 

(according to the bidding process) than less senior members, the CBA is violated 

again. The Union maintains that each newly posted schedule is a new incident-infact, a new decision made by management under new facts and circumstances and 

officers that can differ from week to week, and therefore, can be a new violation 

that can be separately grieved. Moreover, the Union points out that it does not 

seek to challenge any past schedule assignments and is not seeking a retroactive 

remedy. It only seeks to remedy those violations from March 9, 2014, forward. 

As stated by the Union and accepted by the Arbitrator, there is the 

potential for a new violation each time the schedule is posted depending on 

whether a less senior officer’s (Pastore) assignment supersedes another more 

senior officer’s preference for the same shift and pass days. Indeed, it is the nature 

 

10 The County also makes arguments, which we classify as “fairness” arguments, 

including that the Union waived any right to contest the assignment because Pastore allegedly 

waived his bidding rights at the Union’s request, and that the Union apparently made an 

inconsistent argument in a recent anti-nepotism case. These arguments are irrelevant, 

particularly where our role is to determine whether the Arbitrator’s Award satisfies the essence 

test.
13

of the Floater position that schedules vary.11 If there are shift and pass days 

available in a given week that coincide with a more senior officer’s expressed 

preference but that senior officer is denied that shift and pass days, a new violation 

occurs based on those unique circumstances. In other words, this alleged violation 

is not inescapably grounded upon events that occurred back in 2007 when the 

County first assigned Pastore a shift with Saturday/Sunday pass days. Here, the 

violation is not solely dependent upon the incident of Pastore being assigned 

Saturday and Sunday pass days but also depends on the other officers’ expressed 

preference and availability of shifts and pass days.

12

 

 

11 For example, an examination of the schedules offered into evidence shows that for the 

week of March 9, 2014, two Floaters (Pastore and Officer Vollberg) were scheduled for 

Saturday/Sunday pass days. (R.R. at 191-92.) For the week of March 23, 2014, however, 

Officer Vollberg was assigned Friday/Saturday pass days, although his expressed first preference 

was the same—Saturday/Sunday pass days, and he had higher seniority than Pastore. Compare

R.R. at 192 with R.R. at 193-94. Thus, while Officer Vollberg would have no grounds for a 

grievance such as the one here based on the week of March 9, 2014 schedule, he arguably does 

for the week of March 23, 2014 schedule. 

12 The situation here is different from the cases relied on by the County, where the 

employer factually took one action. See Department of Corrections v. Pennsylvania State 

Corrections Officers Association, 56 A.3d 60 (Pa. Cmwlth. 2012) (suspension of officers for 

indefinite period of time); and City of Allentown, 19 PPER 19123 (Final Order 1998) (unilateral 

change in medical insurance plans to continue prospectively and continuously for an unknown 

period of time).

The other cases relied on by the County are distinguishable as well, and some also are not 

binding on this Court. See Casner v. American Federation of State, County and Municipal 

Employees, 658 A.2d 865 (Pa. Cmwlth. 1995) (concerning loss of payment of wages/benefits 

from each paycheck); Zellie v. Department of Corrections, (Pa. Cmwlth., No. 97 M.D. 2011,

filed March 1, 2012) (concerning loss of payment and deductions from inmate accounts based on 

prior court order pursuant to section 9728 of the Sentencing Code, 42 Pa. C.S. § 9728, and the 

six-month statute of limitations set forth in Section 5522(b)(1) of the Judicial Code, 42 Pa. C.S. § 

5522(b)(1)); see also Curley v. Smeal, 41 A.3d 916 (Pa. Cmwlth. 2012) (same), overruled on 

other grounds by Morgalo v. Gorniak, 134 A.3d 1139 (Pa. Cmwlth. 2016); Morton Harr v. 

Westmoreland County Community College, 45 PPER 85 (January 21, 2014) (finding subsequent 

refusals to award overtime were based on initial refusal that employee was not eligible).
14

Although we acknowledge that the portion of the Arbitrator’s decision 

discussing the timeliness of the grievance does not expressly reference the week of 

March 9, 2014 schedule, (see Arb. op. at 9), it is apparent from reading the 

Arbitrator’s decision in its entirety that this is the operative schedule giving rise to 

the grievance.

13

 (See Arb. op. at 4, 8 (summarizing the Union’s evidence and 

setting forth findings and analysis).) As to the schedule for the week of March 9, 

2014, there is nothing to indicate that the grievance was not timely.14 Thus, the 

Arbitrator’s decision that the grievance is timely is rationally derived from the 

CBA. Accordingly, it satisfies the essence test.

For the foregoing reasons, we must affirm the trial court’s decision 

that denied the County’s Petition to Vacate Arbitration Award and affirmed the 

Arbitrator’s Award in all respects.

__________________________________

JULIA K. HEARTHWAY, Judge

Judges McCullough and Wojcik did not participate in the decision of this case.

 

13 Thus, we reject the County’s argument that the trial court improperly performed a de 

novo review and engaged in fact-finding when it stated the relevant schedule was posted for 

March 9, 2014. Additionally, we note that in our appellate role, this Court must review the 

Arbitrator’s Award, and not the trial court’s decision, to determine if the Award’s essence can be 

drawn from the CBA. 

14 The County argues only that the grievance was untimely because it should have been 

filed when Pastore was first assigned to the shift in 2007; the County does not contend that the 

grievance was untimely if the March 9, 2014 schedule is the operative incident giving rise to the 

grievance.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

County of Allegheny, Pennsylvania, :

Appellant :

:

v. : No. 744 C.D. 2016

:

Allegheny County Prison :

Employees Independent Union :

O R D E R

AND NOW, this 13th day of July, 2017, the order of the Court of 

Common Pleas of Allegheny County is hereby affirmed.

__________________________________

JULIA K. HEARTHWAY, Judge