The Commonwealth Court has reinstated an arbitration award requiring Lackawanna County to resume its past practice of providing to certain Court of Common Pleas employees an additional paid day off that is not specifically mentioned in the parties' collective bargaining agreement.

The county discontinued the gift day policy, which provided a paid day off on either Christmas Eve or New Year's Eve to members of the Lackawanna County Adult and Juvenile Probation and Domestic Relations Section Employees Association, in 2015 on the advice of its labor counsel. But the association filed a grievance, which an arbitrator granted, finding that the gift day policy was an established past practice that had become part of the parties' CBA and therefore must be resumed.

A Lackawanna County trial judge disagreed on appeal, however, vacating the arbitration award on the grounds that it did not flow logically from the parties' CBA and therefore failed the essence test.

On Jan. 10, a three-judge Commonwealth Court panel reversed that ruling, rejecting the county's argument that the CBA—which makes no mention of either Christmas Eve or New Year's Eve and bars arbitrators from adding to, subtracting from, or modifying its provisions—was intended to be the final and complete expression of the parties' agreement with respect to paid holidays.

The county sought to rely on the state Supreme Court's 1977 ruling in County of Allegheny v. Allegheny County Prison Employees Independent Union, in which the justices rejected a union's argument that two past practices involving mealtime conditions were implicitly incorporated into a CBA.

“In County of Allegheny, unlike here, the adoption of past practices not included within the CBA would have conflicted with the CBA's broad integration clause, and, therefore, the past practices could not be part of the CBA,” Judge Renee Cohn Jubelirer wrote for the panel. “Here, in contrast, in the absence of a broad integration clause in the CBA, or other such conflicting language, the arbitrator could interpret the CBA as including past practices such as the gift day policy. Therefore, the trial court erred when it concluded that the gift day policy did not draw its essence from the CBA.”

Jubelirer was joined by President Judge Mary Hannah Leavitt and Senior Judge J. Wesley Oler Jr.

According to Jubelirer's opinion, the gift day policy was instituted in 2001 by Patrick Luongo, the former director of the county's Domestic Relations Office. Under the policy, half the association members were given a paid day off, on Christmas Eve, and the other half were given a gift day on New Year's Eve.

But Luongo stopped granting gift days in 2015, after an unfair labor practices charge by the association resulted in a 2014 settlement in which the parties agreed that gift days would be granted on the basis of seniority rather than alternating between Christmas Eve and New Year's Eve, according to Jubelirer's opinion. That decision led to the grievance arbitration that resulted in an arbitrator ordering the county to reinstate the policy pursuant to the 2014 settlement.

In addition to arguing that the gift day policy did not draw its essence from the parties' CBA, the county also contended that the policy fell under the public policy exception to the essence test because it violated the separation of powers doctrine by interfering with the judicial branch's right to direct its personnel and dictating to the common pleas court how it should allocate a portion of its budget.

The Commonwealth Court, however, waved off this argument as well.

“The arbitrator specifically found that it was Luongo's idea to grant association members a gift day of either Christmas Eve or New Year's Eve, and, when Luongo presented his idea to the
president judge of common pleas, the president judge said that it was up to Luongo,” Jubelirer said, noting that Luongo was a court employee.

“Thus, this is not a case where the county commissioners, pursuant to Section 1620 of the County Code … while bargaining on behalf of the judges, unilaterally reached an agreement with union employees on an issue affecting the administration of justice without first consulting with the judges,” Jubelirer continued. “Rather, the judiciary itself apparently was involved in, and at the least approved of, granting these association members a gift day of either Christmas Eve or New Year's Eve. Over time, this granting of a gift day became a past practice. Common pleas, like any other public employer, can become bound by a past practice.”

Counsel for the association, Stephen J. Holroyd of Jennings Sigmond in Philadelphia, could not be reached for comment.

The attorney for the county, Matthew J. Carmody of Joyce, Carmody & Moran in Pittston, said he and his client will review their options for appeal.