DOC v. PSCOA ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Department of Corrections, :
Petitioner :
:
v. : No. 1173 C.D. 2021
:
Pennsylvania State Corrections :
Officers Association, :
Respondent : Submitted: May 6, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE CEISLER FILED: July 27, 2022
The Commonwealth of Pennsylvania, Department of Corrections (DOC),
petitions for review of the September 26, 2021 Arbitration Award (Award), which
sustained in part a grievance filed on behalf of the Pennsylvania State Corrections
Officers Association (PSCOA) and directed DOC to: (1) add a “rover”1 in the B
Unit at the State Correctional Institution at Greene (SCI-Greene) on the 6:00 a.m. to
2:00 p.m. and 2:00 p.m. to 10:00 p.m. shifts; and (2) conduct at least three random
searches in the B Unit each calendar year. For the reasons that follow, we affirm the
Award.
Background
PSCOA and DOC are parties to a collective bargaining agreement (CBA)
covering a bargaining unit consisting of certain employees of DOC and the
1
A “rover” is a corrections “officer[] that rove[s] around the [b]locks from one to another
as support.” Reproduced Record (R.R.) at 15a.
Commonwealth of Pennsylvania, Department of Human Services. Corrections
Officer 1 Patrick Raygor, a member of the bargaining unit, was assaulted by an
inmate at SCI-Greene on January 2, 2020, while working the 2:00 p.m. to 10:00 p.m.
shift. Arbitrator Christopher E. Miles (Arbitrator) described the incident as follows:
The inmate, who remained in the [B U]nit during mealtime, attacked
Officer Raygor and stabbed him multiple times in the head and face
area. It was ultimately discovered that the inmate had three
“home[]made” stabbing devices and two socks used as bolas: one with
a lock in it and one containing batteries. The inmate admitted to using
something called K-2, a synthetic version of marijuana, for several
days. The record also reveals that the inmate “staged” a bottle
containing urine/feces, which was thrown on Officer Raygor.
R.R. at 30a-31a. The B Unit, where the attack occurred, houses maximum custody
inmates knows as “L4” inmates, and the inmate involved in the attack was an L4
inmate.2 The Arbitrator further summarized the incident as follows:
The assault lasted . . . a little over two . . . minutes until Sergeant [Lewis]
Comer heard Officer Raygor over the radio requesting help. The
2
The Arbitrator explained:
[I]nmates in Pennsylvania are generally classified on a custody level scale of [1]
through [5] with L1s requiring the least level of restrictive custody and L5s
requiring the maximum level. About 25 percent of the inmates housed at SCI-
Greene are classified as L4s, with about 75 percent classified as L3 and L2, which
indicates their levels of required restrictive custody based upon their overall
demonstrated patterns of behavior.
....
B[]Unit is a L4 housing unit and consists of 64 cells on each pod with a maximum
capacity of 118 inmates on A-Pod and 114 inmates on B-Pod, housed within the
same butterfly configuration, with a maximum inmate bed capacity of 232 inmates
on the entire housing unit.
R.R. at 5a-6a.
2
inmate then ran around the tier and into the foyer area of [the] B[]Unit
where he was initially secured by Sergeant Comer and another officer
until the other responding officers intervened. Prior to the assault,
Officer Raygor had no previous interactions with this particular inmate.
Immediately after the assault, the responding officers took [the i]nmate
. . . off the unit while another inmate actually rendered some aid to
Officer Raygor.
According to the record, since [the] B[]Unit’s inception over 27
years ago, an assault has never been to this extent or occurred in this
manner and this unit has had no more issues than any other unit in
regards to assaults or contraband. [The] Superintendent [at SCI-
Greene] testified that it was truly the perfect storm in that Officer
Raygor could not get a response quickly since the attention and focus
of the Sergeant and the Control Booth Officer were directed on different
areas of the unit.
Id. at 7a-8a.
The inmate who attacked Officer Raygor had been “convicted of first[-]degree
murder and sentenced on January 30, 2015 to life imprisonment.” Id. at 14a.
According to testimony presented at the arbitration hearing, the inmate “engaged in
the assault because his pending court appeal of his sentence was recently rejected
and he was high on K[-]2 and had been ‘disrespected’ [earlier] by [Sergeant]
Comer,” who was also injured in the attack. Id.
Following this incident, PSCOA filed a class action grievance on behalf of
Officer Raygor and other bargaining unit members. The Grievance Report averred:
[DOC] is violating the CBA by not showing due regard for staff safety.
On January 2, 2020 [Officer] Raygor was alone on a housing unit when
he was brutally assaulted. SCI[-]Greene staffs only one officer on each
pod which led to [Officer] Raygor’s attack [carrying] on for over two
minutes before anyone became aware.
Id. at 405a (emphasis added). As a remedy, PSCOA requested, inter alia, that its
members “be made whole,” that DOC be required to give due regard for officer
3
safety in compliance with the CBA, that DOC assign additional “rover” officers on
all housing units at SCI-Greene on the 6:00 a.m. to 2:00 p.m. and 2:00 p.m. to 10:00
p.m. shifts, and “[a]ll other appropriate relief.” Id. at 401a, 403a.
After unsuccessful attempts to resolve the matter through the grievance
procedure set forth in the CBA, the parties submitted the matter to arbitration
pursuant to Section 903 of the Pennsylvania Public Employe Relations Act (PERA),
Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.903, and Article 35 of
the CBA.3 The Arbitrator held an evidentiary hearing on May 4, 2021, to determine
whether DOC failed to give due regard to the safety of its employees in violation of
Article 33, Section 22 of the CBA.4
3
Section 903 of PERA provides, in pertinent part:
Arbitration of disputes or grievances arising out of the interpretation of the
provisions of a collective bargaining agreement is mandatory. The procedure to be
adopted is a proper subject of bargaining with the proviso that the final step shall
provide for a binding decision by an arbitrator or a tri-partite board of arbitrators as
the parties may agree.
43 P.S. § 1101.903. Article 35 of the CBA sets forth the three-step grievance process and the
parties’ agreed-upon rules for arbitration. See R.R. at 434a-49a. The relevant CBA was in effect
from July 1, 2017 through June 30, 2020.
4
Article 33, Section 22 of the CBA provides:
[DOC] must retain certain prerogatives which include but are not limited to the
determination of the required employee complement. Due regard shall be given by
[DOC] in determining personnel needs to the safety of employees. [PSCOA] may
invoke the provisions of the grievance procedure in the event it determines that
assignments are made without due regard to safety. In the event that [PSCOA]
should successfully challenge an action by [DOC] as being in violation of this
Section, the Arbitrator shall be empowered to enter such award as is necessary to
remedy the violation, including the reinstatement of the status quo.
R.R. at 441a (emphasis added).
4
At the hearing, PSCOA asserted that DOC failed to give due regard to officer
safety because SCI-Greene staffs only one corrections officer on each wing of each
housing unit and because DOC’s security technology was insufficient to protect its
officers from dangerous inmates. DOC, on the other hand, asserted that it gave due
regard for officer safety by determining appropriate staffing levels in the B Unit and
by upgrading its security measures, including its mobile emergency phone system,
its personal alarm receiver system, shoulder microphones, pull-string whistles, and
security cameras. See R.R. at 15a-17a.
On September 26, 2021, the Arbitrator issued his Award, sustaining in part
PSCOA’s grievance. The Arbitrator found that DOC failed to give due regard to the
safety of its employees in the B Unit at SCI-Greene, in violation of Article 33,
Section 22 of the CBA. The Arbitrator concluded as follows:
[T]he changes undertaken by [DOC] in the form of improved or
upgraded technology, operational procedures, and equipment were
warranted and represent improvements in the work areas for the
[corrections officers]. These improvements were undertaken for the
due regard of safety for the employees in accordance with Article 33,
Section 22 [of the CBA]. With regard to staffing, however, there is no
doubt that increased staff may not prevent all assaults, however, the
record in this case reveals that for . . . [the] B Unit, all or primarily all
[of] the inmates are classified as L4. [DOC] asserts that [the] B Unit is
no more volatile than the other units, but testimony at the hearing
indicated that [the] B Unit was a depository for the problem inmates
and this is confirmed by the fact that after the assault on January 2,
2020, management found it necessary to move ten of those inmates
from [the] B Unit.
. . . [I]t is my view that a “rover” on [the] B Unit for the 6:00
AM to 2:00 PM and the 2:00 PM to 10:00 PM shifts would ensure that
another [corrections officer] is in the area for coverage and for better
response time in the event of another assault.
5
....
. . . [F]or purposes of due regard for the employees, [DOC] is
directed to conduct at least three random searches in [the] B Unit each
calendar year. Testimony revealed that one search per year is required
and they try to conduct [searches] at least twice [per] year. It was
agreed that contraband is always found and after a search is conducted,
the inmates know that another one will not be carried out for some time.
Additional searches may be the single most effective way to ensure the
safety of the employees. In this case, had another search been done prior
to the incident, the multiple weapons possessed by the inmate who
assaulted Officer Raygor may have been discovered in addition to the
K-2 drug that he admitted using for several days. All of this is directed
in the exercise of sufficient, appropriate, and careful thought for the
safety of the bargaining unit employees in the B Unit at SCI-Greene.
Id. at 32a-33a (emphasis added).
On October 26, 2021, DOC filed a Petition for Review of the Award with this
Court. DOC also requested that the Arbitrator stay his award pending disposition of
its Petition for Review, which he denied. On December 1, 2021, DOC filed an
Application for Supersedeas with this Court, which this Court denied on January 7,
2022, after oral argument.
Analysis
On appeal, DOC asserts that the Arbitrator’s Award is not rationally derived
from the parties’ CBA. Specifically, DOC contends that the Arbitrator exceeded his
authority under the CBA by infringing on the right of DOC’s management to direct
its operations and workforce and by not confining his Award to the precise issue
submitted for arbitration.
This Court applies the highly deferential “essence test” when reviewing a
grievance arbitration award issued under PERA. Millcreek Twp. Sch. Dist. v.
Millcreek Twp. Educ. Support Pers. Ass’n, 210 A.3d 993, 996 (Pa. 2019). Under the
essence test, we must uphold an arbitration award if the issue, as properly defined,
6
is within the terms of the CBA5 and the arbitrator’s interpretation can be rationally
derived from the CBA. State Sys. of Higher Educ. (Cheyney Univ.) v. State College
& Univ. Prof’l Ass’n (PSEA-NEA), 743 A.2d 405, 413 (Pa. 1999). Thus, this
“[C]ourt will only vacate an arbitrator’s award where the award indisputably and
genuinely is without foundation in or fails to logically flow from, the [CBA].” Id.In other words, the question is “not whether th[is] Court agrees with the [a]rbitrator’s
interpretation of the CBA[,] but whether the [a]rbitrator’s interpretation and
application of the [CBA] can be reconciled with the language of the [CBA].” Dep’t
of Corr. v. Pa. State Corr. Officers Ass’n, 38 A.3d 975, 980 (Pa. Cmwlth. 2011).
First, DOC asserts that the Award violates the CBA because it orders DOC to
add an additional officer as a “rover” in the B Unit and to conduct a minimum
number of random searches, thereby infringing upon DOC’s organizational structure
and the direction of its operations and workforce. In support of its position, DOC
relies on Article 2, Section 1 of the CBA, which provides:
It is understood and agreed that [DOC], 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 [DOC], except as modified by this [CBA].
Matters of inherent managerial policy are reserved exclusively
to [DOC]. These include but shall not be limited to such areas of
discretion or policy as the functions and programs of [DOC], standards
of service, its[] overall budget, utilization of technology, the
organizational structure and selection and direction of personnel.
R.R. at 97a (emphasis added). DOC also relies on Article 33, Section 22 of the CBA,
which provides that DOC “must retain certain prerogatives which include but are
5
The parties do not dispute that the issue before the Arbitrator was within the terms of the
CBA.
7
not limited to the determination of the required employee complement.” Id. at 125a
(emphasis added).
These CBA provisions, however, when read together and in their entirety,
demonstrate that DOC’s managerial rights are not unfettered. While Article 2,
Section 1 recognizes DOC’s right to direct its operations and workforce, that
provision expressly states that such right is limited where modified by the CBA.
Article 2, Section 1 provides that DOC “possesses the right, in accordance with
applicable laws, to manage all operations including the direction of the working
force . . . , except as modified by this [CBA].” R.R. at 97a (emphasis added). Article
33, Section 22 of the CBA, in turn, provides such a modification. Article 33, Section
22 restricts DOC’s authority to “determin[e] . . . the required employee complement”
by requiring DOC to give “[d]ue regard . . . in determining personnel needs to the
safety of employees” and by “empower[ing]” the arbitrator “to enter such award as
is necessary to remedy [a] violation.” Id. at 125a. In other words, Article 33, Section
22 limits the managerial rights outlined in Article 2, Section 1 by requiring DOC to
give “due regard” for officer safety in directing its workforce and by giving the
arbitrator broad authority to remedy a violation if he determines that DOC failed to
give “due regard” for officer safety.
Here, with regard to officer safety, the Arbitrator determined:
[T]he use of only 4 [corrections officers] on a [b]lock on the 6:00 AM
to 2:00 PM and 2:00 PM to 10:00 PM shifts[] results in one [corrections
officer] on a [w]ing of a housing [b]lock during inmate movements, and
clearly does not evidence sufficient, appropriate and careful thought
and attention to the safety of the [corrections officers], especially when
the Sergeant [on duty] can provide relief for one of the officers when
on a break, which lowers the complement to 3 officers on the
[b]lock/shift.
8
....
The witnesses testified that the [B Unit] has been staffed with 4
officers since [SCI-Greene] opened [27 years ago]. They confirmed
that there have been prior incidents of inmate-on-inmate assaults, and
some inmate-on-officer assaults. The current incident with Officer
Raygor was the worst the institution has incurred, the “perfect storm.”
Yet . . . DOC saw no need to alter its staffing, preferring to “enhance”
the methods that already failed. PSCOA witnesses testified that the [B
Unit] became a “dumping ground” for problem inmates/bad actors,
which creates problems concerning care, custody, and control of the
inmates there. Further, DOC witnesses testified to the ample presence
of contraband, including weaponry and mind-altering drugs, in the
inmate population. DOC witnesses confirm that this assault permitted
them to investigate and remove 10 to 12 “problem” inmates from the
[B Unit] that is considered to house “problem inmates,” showing how
much of a problem they have been beyond the norm.
R.R. at 12a, 14a (emphasis added). The Arbitrator further noted that, prior to Officer
Raygor’s assault, there were no “rover” officers assigned to the B Unit, except for
one Sergeant who moved between the units while on duty. Id. at 15a, 18a. The
Arbitrator found that, despite DOC’s contention that the B “[U]nit has had no more
issues than any other unit in regard[] to assaults or contraband,” the evidence showed
that “the B Unit was a depository for problem inmates” and that “contraband [was]
always found after a [random] search [was] conducted.” Id. at 33a.
The Arbitrator also considered DOC’s evidence regarding its recently
implemented security enhancements at SCI-Greene,6 but he ultimately concluded
6
Several security upgrades had been planned, but not yet implemented, at the time of
Officer Raygor’s assault. The Arbitrator noted:
Since the assault in question, major upgrades to the control panels on the housing
units as well as upgrades and improvements for the equipment [used] by the officers
have been made. According to [DOC], the upgrades had been planned prior to the
incident but, at the time of the hearing, all upgrades ha[d] been completed.
(Footnote continued on next page…)
9
that those enhancements were insufficient to prevent the type of attack that occurred
in this case, primarily due to inadequate staffing in the B Unit. Specifically, the
Arbitrator determined:
Cameras and radios do provide aid to the officers, but the
technology did not stop the assault, nor did the other officers see what
happened or respond for over 3 minutes. There is no indication that if
these “enhancements” had occurred on January 2, 2020, . . . the assault
still would not have occurred without adequate response. Hence, the
“enhancements” do not actually provide the needed enhanced
protection/safety measures required. The technology is a helpful tool,
but it is no substitute for manpower (i.e. another officer there to provide
backup). As the witnesses confirmed, even the presence of the other
officer creates a deterrent effect that is missing when a single officer
attempts care, custody, and control.
Id. at 18a-19a (emphasis added).
Based on the credible evidence of record, the Arbitrator concluded that DOC
gave due regard to the safety of its corrections officers by undertaking recent
improvements to the security technology, operational procedures, and equipment at
SCI-Greene. However, the Arbitrator ultimately concluded that DOC failed to give
due regard to officer safety with regard to staffing and contraband searches in the B
Unit. To remedy that violation, the Arbitrator directed DOC to add a “rover” to the
B Unit on the 6 a.m. to 2 p.m. and 2 p.m. to 10 p.m. shifts, when the inmates are
most active, to “ensure that another [corrections officer] is in the area for coverage
and for better response time in the event of another assault.” Id. at 33a. The
Arbitrator further directed that DOC conduct at least three random contraband
R.R. at 31a. The Arbitrator also noted that, at the time of the hearing, DOC had recently
implemented several “operational and procedural changes” at SCI-Greene. For example, DOC
“eliminated meal[]time movements entirely,” as “inmates [now] eat their three meals a day within
their cells.” Id. at 32a. DOC also modified yard movements, as “the “yard officers now come on
the unit to help escort and secure inmates back to their units and into their cells.” Id.10
searches in the B Unit per calendar year, finding that “[a]dditional searches may be
the single most effective way to ensure the safety of [DOC’s] employees.” Id.The Arbitrator exercised his authority under Article 33, Section 22 of the CBA
to fashion a remedy that he believed would best ensure the safety of the corrections
officers in the B Unit going forward. In light of the deference we must give the
Arbitrator’s Award under the essence test, we cannot conclude that the Award in this
case “indisputably and genuinely is without foundation in, or fails to logically flow
from, the [parties’] CBA.” Cheyney Univ., 743 A.2d at 413.
We also reject DOC’s assertion that the portion of the Award directing DOC
to conduct a minimum number of searches in the B Unit violates Article 35, Section
2 of the CBA, which states that “[t]he arbitrator shall be confined to the precise issue
submitted for arbitration and shall have no authority to determine any other issues
not submitted.” R.R. at 426a (emphasis added); see also Dep’t of Corr. v. Pa. Corr.
Officers Ass’n, 920 A.2d 898, 901 (Pa. Cmwlth. 2007) (“While an arbitrator is given
latitude and flexibility in fashioning a proper remedy, that latitude and flexibility
does not stretch to allow an arbitrator to resolve matters not before him.”) (internal
citation omitted). DOC contends that the grievance at issue was limited only to
staffing in the B Unit and, therefore, the Arbitrator exceeded his authority when he
directed DOC’s employees to conduct a specific number of contraband searches per
year. We disagree.
The issue before the Arbitrator was “whether [DOC] at SCI-Greene, and more
specifically on the B Unit at the facility, failed to give due regard to the safety of its
employees in violation of Article 33, Section 22 of the [CBA].” R.R. at 30a (emphasis
added); see also id. at 405a (the Grievance report stated that “[DOC] is violating the
CBA by not showing due regard for staff safety”) (emphasis added). Contrary to
11
DOC’s contention on appeal, the issue before the Arbitrator was not limited only to
staffing, because Article 33, Section 22 of the CBA, which addresses “due regard”
for employee safety in personnel decisions, expressly authorized the Arbitrator “to
enter such [an] award as [was] necessary to remedy the violation.” Id. at 125a
(emphasis added); see id. at 401a, 403a (PSCOA, in addition to requesting more
“rovers,” also requested “[a]ll other appropriate relief” to remedy DOC’s violation)
(emphasis added). Although much of the evidence at the hearing related to staffing
in the B Unit, there was also testimony regarding the quantity of contraband weapons
and drugs possessed by inmates in the B Unit, some of which were used in the attack
of Officer Raygor. See, e.g., id. at 20a (stating that “subsequent cell searches
revealed numerous homemade weapons and drugs in the possession of the inmates
on the [B Unit]”).
Here, the Arbitrator determined, based on the credible evidence of record, that
an increase in both staffing and random contraband searches was necessary to
remedy the unsafe conditions for corrections officers in the B Unit, as evidenced by
an inmate’s attack on Officer Raygor. At the time of the attack, the inmate was
under the influence of a synthetic drug and used homemade weapons to repeatedly
stab Officer Raygor. The Arbitrator explained his reasoning as follows:
[T]here is no doubt that increased staff may not prevent all assaults,
however, the record in this case reveals that for . . . [the] B Unit, all or
primarily all [of] the inmates are classified as L4. [DOC] asserts that
[the] B Unit is no more volatile than the other units, but testimony at
the hearing indicated that [the] B Unit was a depository for the problem
inmates and this is confirmed by the fact that after the assault on
January 2, 2020, management found it necessary to move ten of those
inmates from [the] B Unit.
. . . [I]t is my view that a “rover” on [the] B Unit for the 6:00 AM
to 2:00 PM and the 2:00 PM to 10:00 PM shifts would ensure that
12
another [corrections officer] is in the area for coverage and for better
response time in the event of another assault.
Id. at 33a (emphasis added). With regard to contraband searches, the Arbitrator
determined:
Testimony revealed that one search per year is required and [the
corrections officers] try to conduct [searches] at least twice [per] year.
It was agreed that contraband is always found and after a search is
conducted, the inmates know that another one will not be carried out
for some time. Additional searches may be the single most effective
way to ensure the safety of the employees. In this case, had another
search been done prior to the incident, the multiple weapons possessed
by the inmate who assaulted Officer Raygor may have been discovered
in addition to the K-2 drug that he admitted using for several days. All
of this is directed in the exercise of sufficient, appropriate, and careful
thought for the safety of the bargaining unit employees in the B Unit at
SCI-Greene.
Id. (emphasis added); see also id. at 125a (authorizing the Arbitrator “to enter such
[an] award as is necessary to remedy [a] violation” of the “due regard” provision).
We conclude that the portion of the Award directing DOC to conduct additional
contraband searches in the B Unit was within the precise issue before the Arbitrator
– namely, whether DOC failed to give due regard for officer safety in the direction
of its workforce.
Furthermore, despite PSCOA’s request that the Arbitrator mandate additional
safety measures for all housing units at SCI-Greene to protect the officers’ safety,
see R.R. at 401a, 403a, the Arbitrator specifically limited his remedy to the B Unit,
where Officer Raygor was brutally assaulted. See R.R. at 3a, 34a. The Award did
not extend to any other housing unit at SCI-Greene. We conclude that the Award
was narrowly tailored to remedy the proven safety violation and, therefore, did not
violate the parties’ CBA.
13
Conclusion
Accordingly, because we conclude that the Arbitrator’s Award was rationally
derived from, and drew its essence from, the parties’ CBA, we affirm the Award.
____________________________
ELLEN CEISLER, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Department of Corrections, :
Petitioner :
:
v. : No. 1173 C.D. 2021
:
Pennsylvania State Corrections :
Officers Association, :
Respondent :
ORDER
AND NOW, this 27th day of July, 2022, we hereby AFFIRM the Arbitration
Award, entered on September 26, 2021, sustaining in part the grievance filed by the
Pennsylvania State Corrections Officers Association.
____________________________
ELLEN CEISLER, Judge