IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, : Department of Corrections, :

Petitioner :

: v. : No. 802 C.D. 2018
: ARGUED: April 11, 2019 Pennsylvania State Corrections : Officers Association, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge H ONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE CEISLER FILED: May 13, 2019

The Pennsylvania Department of Corrections ( Department ) petitions for
review of an arbitrator ’ s award entered May 15, 2018. The arbitrator found the Department had just cause to demote and transfer Corrections Officer Edward Patla ( Patla ). Accordingly, the arbitrator denied the grieva nce asserted on Patla ’ s behalf by the Pennsylvania State Corrections Officers Association (Union). Nonetheless,
the arbitrator ordered the Department to provide Patla with an opportunity for reinstatement to his former position. After thorough review, we affirm the
arbitrator ’ s award in part and vacate it in part.
I. Background
Patla began working for the Department in 1997 as a Corrections Officer 1 (“CO1”) at the State Correctional Institution in Dallas (SCI

- Dallas) . In 2006, he2

attained the rank of sergeant as a Corrections Officer 2 (“CO2”) in conjunction with joining the Department ’ s K

- 9 Unit. All K

- 9 Unit members hold at least the rank of sergeant and the position of CO2. Patla held that rank and position until 2016.
Patla ’ s CO2 position with t he K

- 9 Unit required him to work without supervision and to rotate among various state correctional institutions. W ith his assigned canine, he performed security search activities, including searches of
inmate s ’ cells, visitors ’ vehicles , and any other ar eas as needed by each institution. In late 2015, one institution reported to the Department that Patla had failed to arrive for his assignment there. The Department ’ s inquiries into the situation revealed that Patla had failed to report to work at various institutions on seven dates during the second half of 2015

. He had not informed his supervisor of his absences
and had not submitted leave slips relating to those absences

. He had also traveled to
SCI

- Dallas on various dates without documenting the trip s or recording his mileage. In addition, the Department learned Patla had repeatedly violated Department search protocols. The violations included performing inadequate cell and vehicle searches, failing to notify correct personnel on arriving at an institution, making
unilateral decisions on where to search rather than working where the institution needed him, and failing to take along a w itness during searches. Based on the results of its investigation, the Department charged Patla with multiple violations of its Code of Ethics and its K

- 9 Unit policy. Department personnel met with Patla on two occasions to provide him an opportunity to r espond to the charges or offer any mitigating circumstances

. Thereafter, finding the charges3

were substantiated, the Department demoted Patla to his original CO1 position and
transferred him back to SCI

- Dallas. 1 The Union filed a grievance on Patla ’ s beha lf, challenging his demotion and
removal from the K

- 9 Unit. After the grievance procedure set forth in the collective bargaining agreement failed to resolve the grievance, the parties proceeded to
arbitration. The parties stipulated to the precise issue to be presented to the arbitrator: “Whether the [Department] has disciplined [Patla] for just cause, and, if

not , what restitution is to be made. ” Notes of Testimony (N.T.), 1/3/18, at 11 (emphasis added)

. The arbitrator held a hearing in January 2018. In May 2018, the arbitrator
issued his decision and award.
The arbitrator not ed that Patla suffered a seizure in June 2015. His neurologist diagnosed some short

- term memory loss, but nonetheless cleared Patla to return to
work. He returned to work in A ugust 2015. The arbitrator found Patla committed the infractions enumerated by the Department , and those infractions had negative security consequences at the
correctional institutions . The arbitrator concluded Patla ’ s failures to follow Department protoc ols prevented the correctional institutions from directing him to the areas where searches were needed, prevented the presence of witnesses when contraband was found, and left inmates uncontrolled while their cells were being
searched. The arbitrator observed that closed circuit video s showed Patla ’ s cell
searches on at least 2 days averaged only 8 seconds each, although a correctly

1 Of significance, in its letter notifying Patla of the demotion and transfer, the Department pointed out that Patla had previously incurred a one

- day suspension in 2010 for violations of the same search policies. Reproduced Record (R.R.) at 308a.4

performed search would take 15 to 30 seconds. Patla also failed to search several required areas of a vehicle. The arbitrator expressly concluded : “The [ Department] has shown just cause to demote and transfer Patla, on this record.” 2 Op

. and Award, 5/15/18, at 7. In support of that conclusion, the arbitrator stat ed, “Patla ’ s position as a K

- 9 Sergeant involved discovering contraband in state prisons. Th e repercussions of doing that job in a shoddy manner cannot be over[

- ]emphasized.” Id.
The arbitrator further noted that in Patla ’ s fact

- finding interview, he was asked about his absences and deficient searches and “offered no reasons” in response
, although he acknowledged he did know correct search procedures

. Id. at 8. Significant ly, the arbitrator found Patla never to ld the Department he was suffering any ongoing effects related to his 2015 seizure. The arbitrator stated, “Some responsibility must fall on Patla for never simply informing the [Department] of his continuing memory difficulties.” Id

. Concerning Patla ’ s hearing testimony, the arbitrator observed:

When testifying, Patla was quick to explain that he
wasn ’ t “playing horse shoes [ sic ] and stuff,” or “partying” during his unexcused absences, but rather, he had no recollection of what he did during those days. On cross examination he was asked the obvious question [:] if he had no memory of his actions on those days, how could he be so sure what he wasn ’ t doing? Patla had no explanation. (N.T. 234. )

2 A theft of time in the form of seeking payment for time not worked constit utes just cause for termination. City of Easton v. Am. Fed ’ n of State, Cty

. & Mun. Emps. , 756 A.2d 1107 (Pa. 2000), overruled in part on other grounds by Phila. Hous. Auth. v. Am. Fed ’ n of State, Cty

. & Mun. Emps. , 52 A.3d 1117 (Pa. 2012).5

Id. at 9. Further, t he arbitrator rejected the Union ’ s attempt to link the timing of
Patla ’ s seizure to his deficient searches and unexplained absences, noting that “[c]or r elation

. . . does not establish causation.” Op. and Award at 8

- 9

. Finally, the arbitrator concluded: “There is nothing on this record to establish that Patla, absent constant supervision, will perform with the proficiency as he had in the past.” Id. at 9. The re fore, the arbitrator issued an award expressly denying
the Union ’ s grievance. Id. at 10. However, d espite his denial of the grievance and his lengthy explanation of his finding of just cause, the arbitrator posi ted that Patla ’ s “twenty

- year record with the [Department] cannot be ignored.” Id

. at 9. Appar ently b ased on that single sentence, the arbitrator added a provision to his award, ordering the Department to
allow Patla to re apply for his prior K

- 9 sergeant position, and to reinstate him if he can successfully meet the requirements of that position. Id. at 10. This appeal followed.
II. Issue
T he Department contend s the arbitrato r ’ s award is not rationally derived from the parties ’ collective bargaining agreement

. The Dep artment argues the arbitrator exceeded his authority by issuing an award outside the confines of the stipulated issue submitted by the parties. Further, the Department asserts that the arbitrator exceeded his authority and infringed on the Department ’ s ma nagerial right under the Pennsylvania Employe Relations Act (PERA) 3 to sel ect and dir ect its workforce.
III. Discussion Our review of a grievance arbitration award under PERA is governed by the standard of review known as the “essence test.” Office of the A ttorney G en. v.

3 Act of July 2 3, 1970, P.L. 563, as amended , 43 P.S. §§ 1101.101

- 1101.2301

.6

Council 13, A m. F

ed ’ n of S tate , C ty. & M

un. E mps. , 844 A.2d 1217, 1222 (Pa. 2004). The essence test has two prongs. First, we determine whether the issue submitted to arbitration is encompassed within the terms of the collective barg aining agreement. Second, we determine whether the arbitrator ’ s award can be rationally derived from the collective bargaining agreement. We must uphold the arbitrator ’ s award if it can
be rationally derived from the terms of the collective bargaining ag reement. Id.
A. The Submitted Issue
T he parties ’ collective bargaining agreement provides, in pertinent part: “The [Department] shall not demote, suspend, discharge or take any disciplinary action against an employee without just cause.” R.R. at 299a. The parties ’ stipulated issue
for arbitration related directly to the question of just cause for an employee demotion. Thus, the issue submitted to arbitration wa s encompassed within the terms of the collective bargaining agreement. The refore, the first prong of the
essence test is satisfie d

. B. Propriety of the Award

1 . The Arbitrator ’ s Authority to Provide a Remedy The Department argues the arbitrator exceeded his authority by issuing an award outside the confines of the stipulated issue submitted by the parties

. The parties ’ stipulated issue was whether the Department had just cause for demoting and transferring Patla, and if not , what the proper remedy would be. Although the arbitrator found just cause, he nonetheless proceeded to prov ide Patla with a remedy by altering the Department ’ s action. Therefore, the Department contends the
arbitrator ’ s award was not rationally derived from the parties ’ collective bargaining agreement. We agree.7

“The jurisdiction of an arbitrator is restricte d to resolving the dispute that the parties have submitted for arbitration.” Dep ’ t of Corr. v. Pa. State Corr. Officers
Ass ’ n , 920 A.2d 989 , 900 (Pa. Cmwlth. 2007) ( DOC I ) (citing Bensalem Twp. Sch. Dist. v. Bensalem Twp. Educ. Ass ’ n , 512 A.2d 802 (Pa. Cmwlth. 1986))

. A stipulation of an issue to be arbitrated is a form of contract, and it determines the scope of the arbitration, under general contract principles. Id. (citing Sley Sys. Garages v. Transp. Workers Union of Am ., 178 A.2d 560 (Pa. 1962)). Moreover, if the parties ’ collective bargaining agreement confines arbitrations to the precise issues submitted, that contractual provision is binding. Id. at 901. Here, the parties ’ collective bargaining agreement expressly limited
arbitration to the is sue submitted, providing in pertinent part: “The arbitrator shall be confined to the precise issue submitted for arbitration and shall have no authority to determine any other issues not so submitted.” R.R. at 303a. That agreement was binding. DOC I

. T he parties ’ stipulated issue first required the arbitrator to determine whether the Department had just cause to demote and transfer Patla ; o nly if there was not just cause did the arbitrator have authority to consider a remedy. This was true under

genera l contract principles based on the parties ’ agreement as to the issue , as well under the collective bargaining agreement

. Accordingly, the arbitrator could not consider any remedy for the Department ’ s disciplinary action unless the Department lacked just cause for that action.
Decisions in analogous cases have confirmed that an arbitrator lacks authority to modify an employer ’ s disciplin ary action that is supported by just cause. For example, in Pennsylvania Liquor Control Board v. Independent State Stores Union , 553 A.2d 948 (Pa. 1989), a state store employee was suspended and later terminated8

after he falsified store records and misappropriated funds. The union filed a grievance on his behalf, claiming he suffered from mental illness that caused hi s misconduct. The collective bargaining agreement required “just cause” for disciplinary
action. Id. at 950. The parties stipulated to the precise issue for arbitration: “Was the [g]rievant dismissed for just cause, and if not, what shall the remedy b e?” Id. Applying concepts of intent and culpability analogous to criminal law, t he arbitrator found that the grievant ’ s conduct resulted from mental illness and was not his fault. Therefore, the arbitrator concluded there was not just cause for
terminati on. The arbitrator ordered the employer to reinstate the grievant and provide him with an opportunity to demonstrate his recovery and capability of responsible job performance.
This Court affirmed the arbitrator ’ s award, but our Supreme Court reversed.
C iting the agency ’ s “fundamental responsibility to protect the integrity of its operation,” our Supreme Court found:
[T]he concepts of culpability and mitigation applicable in criminal law are not applicable to this area. In this setting the issue must b e confined to the competency and ability of the employee to perform the tasks required by the position in which he is serving. The fact that the dereliction may not have been maliciously inspired or that at some future time the impediment which occasioned the unsatisfactory performance may be removed, has no place in the inquiry.

Id. at 953 (citing Phila

. Hous

. Auth

. v. Union of Sec

. Officers #1 , 455 A.2d 625 (Pa. 1983) (public employer had an absolute responsibility to ensure the integrity of its security force ) ). Here, the Department is responsible for safety and security in Pennsylvania ’ s correctional institutions. See Iseley v. Beard , 841 A.2d 168 (Pa. Cmwlth. 2004).9

Thus, as in P ennsylvani a Liquor Control B oar d , the Department has a responsibility to ensure the integrity of its security force. Consequently, as our Supreme Court
concluded in Pennsylvania Liquor Control Board , the arbitrator was not permitted to consider whether Patla may have recovered his capability of performing hi s former job in the K

- 9 Unit. This is particularly true in light of the job requirement of unsupervised performance and the arbitrator ’ s observation that Patla would need constant supervision.
In Manheim Central Education Association v. Manheim Central Sc hool
District , 572 A.2d 31 (Pa. Cmwlth. 1990 ), a union filed a grievance after a teacher
was dismissed for writing love letters to two female students. The collective bargaining agreement required “just cause” for disciplinary action. Id. at 33. The

par ties stipulated to the precise issue to be arbitrated: “Whether the grievant was discharged for just cause? If not, what shall the remedy be?” Id. at 34. The arbitrator acknowledged that the grievant ’ s conduct constituted “immorality” as that term was d efined in the applicable statute. Id. at 32. However,

t he arbitrator noted, as mitigating circumstances, the grievant ’ s exemplary employment record during the prior 20 years, as well as serious emotional and economic stress he was suffering during the time he wrote the letters. T he arbitrator concluded immediate termination was too severe a penalty in light of the mitigating
factors. The arbitrator ordered the distric t to allow the grievant to use all of his
accumulated sick leave before the termination would be effective.
This Court determined that the arbitrator ’ s finding of immorality equated to a finding of just cause. W e o bserv ed that under the parties ’ stipulat ed issue, the arbitrator was to consider a remedy only if he determined there was not just cause for the grievant ’ s dismissal. Citing Pennsylvania Liquor Control Board , we found10

that once the arbitrator concluded there was just cause for the discipline im posed , his inquiry should have ended. Therefore, the arbitrator exceeded his authority by ordering a remedy after finding just cause. Here, the arbitrator answered the parties’ stipulated issue by finding the Department had just cause to demote and transf er Patla. W e agree with the Department that having reached that conclusion, the arbitrator lacked authority to address the issue of a remedy. 4 See Cent

. Dauphin Sch. Dist. v. Cent

. Dauphin Educ.
Ass ’ n , 767 A.2d 16 (Pa. Cmwlth. 2001) (citing Pa. Liquor Co ntrol Bd. and Manheim
Cent. Educ. Ass ’

n ). Where an arbitrator exceeds his authority, his award cannot be rationally derived from the collective bargaining agreement. Cent. Dauphin (citing Pa. Liquor
Control Bd. and Manheim Cent. Educ. Ass ’ n ). Therefore, we agree with the Department that the arbitrator ’ s award must be vacated to the extent that it purported
to order the Department to provide an opportunity for reinstatement even though there was just cause for Patla ’ s demotion and transfer.

2 . The Departme nt ’ s Managerial Rights
In an alternative argument , t he Department asserts that the arbitrator also exceeded his authority because his reinstatement directive impermissibly impinged the Department ’ s managerial prerogatives, which are safeguarded by both the

4 The Union insists that even though the arbitrator found Patla committed the misconduct charged by the Department, the arbitrator still had authority to alter the specific discipline imposed. As a general statement of law, the Union is correct that a factu al finding of misconduct does not automatically equate to a legal determination of just cause. See Office of the Attorney Gen. v. Council 13, Am

. Fed ’ n of State, Cty. & Mun. Emps. , 844 A.2d 1217 (Pa. 2004). However, that statement of the law has no appli cation in this case. Here, the arbitrator did not merely find misconduct as a fact. Rather, he applied the legal principle of just cause to the facts surrounding Patla ’ s conduct and its consequences to the affected institutions, and reached the express l egal conclusion that there was just cause for the Department ’ s demotion and transfer of Patla.11

collective bargaining agreement and PERA. In light of our disposition of the Department ’ s other argument, we need not reach this issue. However, we address it briefly in the interest of completeness. We agree with the Department

. In support of its argu ment, the Department cites Pennsylvania Department of Corrections v. Pennsylvania State Corrections Officers Association , 173 A.3d 854 (Pa. Cmwlth. 2017) ( DOC II ) . In that case, the grievant , a corrections officer, was discharged for misconduct in the course of his supervision of inmates working in a prison kitchen. An arbitrator found the Department had just cause to discipline the grievant, but not to discharge him. The arbitrator reduced the discharge to a

susp ension and directed the Department not to assign the grievant to supervise
inmates on his return. However, supervision of inmates is fundamental to the Department’s operations and is a duty common to all its corrections officers. Restricting the Departme nt’s placement of a corrections officer to positions not requiring inmate supervision would severely undermine the employee’s usefulness.
This Court therefore vacated the arbitrator ’ s award, finding that it infringed the Department ’ s managerial rights bec ause it “effectively created a second class of corrections officers, one with less utility to the Department

. . . . ” Id. at 859. Here, the arbitrator specifically found: “There is nothing on this record to establish that Patla, absent constant supervisi on, will perform with the proficiency as he had in the past.” Op

. and Award at 9. The arbitrator thus acknowledge d that
Patla could not perform as a sergeant in a C O 2 position with the K

- 9 Unit without “constant supervision.” Id. However, the record in dicat es that position consists almost completely of unsupervised work. Thus, as in DOC II , the arbitrator ’ s award imposes a directive at odds with the fundamental nature of the position at issue. In consequence, as in DOC II , the award impinges the manag erial rights retained by12

the Department, under both the collective bargaining agreement and PERA, to select and direct its employees.
IV. Conclusion
The arbitrator expressly determined the Department had just cause for demoting and transferring Patla. The arbitration award expressly denied the Union ’ s grievance. Therefore, the arbitrator ’ s reinstatement directive exceeded his authority by going beyond the scope of the parties ’ stipulated issue submitted to him. Accordingly , we conclude that the portion o f the arbitration award ordering the Department to reinstate Patla if he met the K

- 9 Unit CO2 requirements was not rationally drawn from the collective bargaining agreement.

ELLEN CEISLER , J udgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, : Department of Corrections, :

Petitioner :

: v. : No. 802 C.D. 2018
: Pennsylvania State Corrections : Officers Association, :

Respondent :

O R D E R

AND NOW, this 13 th day of May, 20 19 , the portion of the arbitration award denying the grievance of the Pennsylvania State Corrections Officers Assoc iation on behalf of Edward Patla (Patla) is AFFIRMED. The portion of the arbitration
award directing the Department of Corrections to allow Patla to reapply for a K

- 9 Unit position, and to reinstate him if he meets the qualifications for that position, is
VACATED.

ELLEN CEISLER , J udge