PITTSBURGH – Allegheny County continues to oppose the dismissal of arbitration proceedings and any payout of donated sick time to the estate of a former district attorney who passed away of cancer in 2019, charging that such a move would violate a collective bargaining agreement with the decedent’s union.
The United Steel, Paper and Forestry, Rubber, Manufacturing, Allied Industrial and Service Workers International Union, AFL-CIO, CLC (USW) first filed a petition to Allegheny County on April 7, 2020 in the Allegheny County Court of Common Pleas.
Per the petition, the USW represents a number of professions and trades for collective bargaining purposes, including court employees. USW and Allegheny County are parties to a collective bargaining agreement setting forth terms and conditions of employees in the court employees bargaining unit.
One member of that unit was former Allegheny County Assistant District Attorney Michael Berquist. Berquist, an employee of the Allegheny County District Attorney’s Office since 2005, was diagnosed with stage four pancreatic cancer in 2016.
Berquist passed away from the disease in May 2019, at the age of 42. He reported to work until just one week before his death, where he had 135 sick days accrued. After he exhausted his own accrued sick time by 2016, the other hours came in the form of donated sick time from other employees in the department or sick time hours those employees would otherwise not have been able to use.
Per the terms of the collective bargaining agreement in effect between the parties, it provides for sick pay and sick leave through the following provisions:
• Article 12, Section 6 allows employees to accumulate sick leave up to a total of 132 days;
• Article 12, Section 8 provides that if a member of the bargaining unit dies while employed by the County, the County shall reimburse his beneficiaries for his or her sick days accumulated at the date of death;
• Article 12, Section 9 provides that an employee may donate up to 10 accrued sick days to another employee unable to work because of a prolonged period of sickness.
“After Michael Berquist died, the USW sought sick pay benefits for Berquist. When the county refused to pay [the 135] sick accumulated days, the USW filed a grievance under the collective bargaining agreement. The County denied the grievance stating that there was no language in the contract addressing how to handle ‘donated time upon the death of an employee,” the petition read.
The total value of Berquist’s accumulated and donated sick time was $33,823.55.
Through mediation, the matter proceeded to arbitrator Robert A. Creo, who then “denied and dismissed” the grievance.
But the union opposed the arbitrator’s decision.
“The arbitrator’s award failed to draw its essence from the collective bargaining agreement, and as such fails the essence test for court review of labor arbitration awards. Arbitrator Creo failed to abide by the terms and conditions agreed upon by the parties to the agreement and as such the award cannot be said to be rationally derived from the agreement,” the petition read.
“Arbitrator Creo exceeded his jurisdiction when he issued a decision contrary to the explicit terms of the agreement between the parties. Arbitrator Creo exceeded his powers, issuing an arbitration award within which he imposed his own notion of industrial justice in a case in which the county and the Office of the District Attorney had different positions on the merits of the grievance.”
On June 22, 2020, counsel for Allegheny County filed an answer to the petition, admitting some of its arguments, such as Berquist being a member of the bargaining unit at all times mentioned in the litigation, but denying others as conclusions of law to which no official response was necessary and demanding strict proof at trial.
“It is admitted that the cited clauses constitute a portion of the collective bargaining agreement addressing the sick pay and sick leave. It is denied that the cited clauses constitute the full scope of contractual mandates regarding sick pay and sick leave,” read the petition from defense counsel Diego Correa, in part.
“It is admitted that after his death the USW sought payment of sick day benefits to Mr. Berquist’s estate for sick day benefits donated by other employees to Mr. Berquist during his illness.”
In a Nov. 5 brief accompanying its original petition, the union argued again for the vacating of the arbitrator’s decision and that the award does not logically follow the collective bargaining agreement.
UPDATE
Allegheny County responded with its own brief on Dec. 7, holding that vacating the arbitrator’s decision would violate the collective bargaining agreement reached with the union.
“The Union’s efforts to deny the distinction between earned sick days and the use donated sick days goes to the intent of the parties. As noted by the arbitrator, the CBA specifically provides that donated sick days are provided for a singular purpose – to be used for a singular purpose – allowing an employee paid time off while the employee is sick,” the County’s brief stated.
“These donated sick days do not fall into a category of days earned by the employee which are paid out upon his/her death. These determination are not illogical, but are supported by the fact that the negotiated CBA provides for a separate insurance benefit for these situations.”
The County argues that the union’s desired review is not based in fact.
“The union seeks nothing more than a de novo review of the arguments offered to Arbitrator Creo in hopes of a more favorable result. The argument offered fails to identify irrational determinations or a determination which lacks foundation. That the union disagrees with the arbitrator’s definition of accrued does not qualify as grounds for reversing the arbitrator’s decision,” per the brief.
The petitioner is represented by Michael J. Healey of Healey Block, in Pittsburgh.
The respondent is represented by Diego Correa and Andrew F. Szefi of Andrews & Price, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-20-004992
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com