HARRISBURG – The Commonwealth Court of Pennsylvania has affirmed an arbitrator's and a trial court’s decision that says favorable shifts must be offered to workers with more seniority than an injured officer who was given those duties. 

The opinion was filed July 13 in a dispute between the Allegheny County Prison Employee Union and Allegheny County.

Samuel Pastore had been employed as a county correction officer for 12 years when in 2007, he suffered a work-related injury that eventually prompted county supervisors to afford him a preferred work schedule with lighter duties as a security camera monitor and later in Internal Affairs.

Over time, the union filed suit, arguing that the “floater” schedule assigned to Pastore should be reserved for workers based on seniority as stipulated by the union contract and ratified as part of the collective bargaining agreement between the two sides.

As the case was heard by arbitrator Mark McCloskey, the union argued that contract bylaws regarding seniority and scheduling should be adhered to according to the letter of the law, while the county countered that “the creation and implementation of light duty is a managerial prerogative and therefore is not subject to the grievance procedure.”

McCloskey issued his opinion and award in early 2015, asserting that the county cannot grant schedules and off days to Pastore that have denied to more senior workers. Soon after that, the trial court issued an order denying the county’s motion to vacate that decision.  

In rendering its decision, the appeals court alluded to the so-called “essence test,” establishing that “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.”

With that, the court rejected the county’s contention the arbitrator’s determination did not draw its essence from the CBA. 

The order was signed by Judge Julie K. Hearthway and the three-judge appeals panel also included Senior Judge Dan Pellegrini and Judge Robert Simpson.

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Harrisburg, PA - 17120

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