Opinion
No. 1060 C.D. 2014
06-09-2015
Rosanne Hendrick v. City of Pittsburgh, Pennsylvania and County of Allegheny, Pennsylvania Appeal of: City of Pittsburgh
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
The City of Pittsburgh appeals from an order of the Court of Common Pleas of Allegheny County that denied the City's motion for post-trial relief in a case where the court rendered a $645,450 verdict for lost wages and pension benefits in favor of former City employee Rosanne Hendrick. We reverse.
The County filed a notice of non-participation in August 2014.
From August 1988 until her March 2004 discharge for alleged misconduct, Hendrick worked for the City as a dispatcher in its Emergency Operations Center. Pursuant to a 2001 collective bargaining agreement (CBA) between the City and the Association of Federal, State, County and Municipal Employees (AFSCME), Hendrick filed a grievance seeking reinstatement. In the interim, the City and the County entered into a 2004 agreement providing for the consolidation of 9-1-1 services (consolidation agreement). Shortly before the County was scheduled to take over the system, the arbitrator entered an award from which the City did not appeal.
In the award, the arbitrator concluded that the preponderance of the credible evidence established Hendrick's guilt of the charged offenses, which included disrespectful behavior towards co-workers, harassment of co-workers, neglect of duties, conduct unbecoming a City employee and a disregard for the safety of others. Taking into consideration the mitigating factors of Hendrick's seniority and history, he determined that her discipline should be modified from a discharge to a lengthy suspension, noting that, "[t]his Opinion and Award suffices to place the grievant on specific personal notice that any further acts of harassment or misconduct can subject her to discharge." December 23, 2004 Arbitration Award at 15-16; Reproduced Record (R.R.) at 157-58. Accordingly, he ruled as follows: "The grievance is denied in part and sustained in part, and the discharge is modified to a suspension until December 27, 2004." Id. at 17; R.R. at 159.
In response, AFSCME issued Hendrick a congratulatory memo with the subject "return to work" and instructed her to report to the new call center on Monday, December 27, 2004, at 8 a.m. December 23, 2004 AFSCME Memo at 1; R.R. at 160. When Hendrick reported to work, however, she learned that she was not on the list of City employees who were eligible for transfer to the County. Common pleas determined that Hendrick was entitled to be on the list but that the City intentionally had failed to include her. Although she subsequently filled out an application, the County had no job for her. Effectively barred from transfer to the County, the City subsequently laid off Hendrick shortly after her December 2004 reinstatement because her job with the City no longer existed. When Hendrick attempted to file a second grievance, AFSCME advised her that it could not assist her because she was no longer an employee. Hendrick testified that, on the advice of her attorney, she chose not to sue AFSCME for refusing to represent her. Instead, she subsequently filed a federal lawsuit in August 2005 against AFSCME, the City and the County alleging that she did not get hired based on her gender. January 27, 2013 Hearing, Notes of Testimony (N.T.) at 63-64; R.R. at 239-40.
January 27, 2013 Hearing, Notes of Testimony (N.T.) at 61-62; R.R. at 237-38. In addition, the following colloquy took place regarding Hendrick's actions subsequent to receiving the City's January 2005 layoff letter, which also included a provision advising her that she was entitled to bid on vacancies for which she was qualified:
[City Attorney]: Q. So, when your union wouldn't help you after the January 2005 layoff letter, why didn't you then go to civil service, because the union wouldn't represent you, and Defendant's Exhibit 2 [the letter] said you had two options?
[Hendrick]: A. Because you could go through civil service or have an attorney. You couldn't have both. It was either/or.
In October 2007, Hendrick filed the complaint at issue seeking damages for a breach of contract and for declaratory and injunctive relief against the City and the County. The first count was for breach of contract, which referenced both the consolidation agreement and the CBA. In pertinent part, Hendrick averred in Count I that the City breached the CBA by failing to follow the consolidation agreement's obligation to submit her name to the County as either an employee in good standing or as an employee not in good standing but with a termination and pending grievance. Further, she averred that the City breached the CBA by treating her termination as final and refusing to permit her to file an application for employment with the County. In Count II, request in equity for declaratory and injunctive relief, Hendrick sought to have the County offer her employment with retroactive seniority.
In May 2008, common pleas sustained the County's preliminary objections and dismissed the complaint, with prejudice, as to the County only. The County had asserted that Hendrick had no standing to sue under the consolidation agreement as a non-party and that it did not provide for third-party beneficiaries. Common pleas overruled the City's preliminary objections, however, ruling that further factual development was warranted regarding the time period after the arbitration and any facts relevant to Hendrick's separation from the City. In so doing, common pleas rejected the City's argument that Hendrick had no standing to sue the City directly for an alleged breach of the CBA without first joining AFSCME as a defendant. With the complaint dismissed as to the County, Hendrick's remaining relief consisted of having common pleas enter an order requiring the City to tender full retroactive back-pay and the value of any benefits wrongfully denied to her from the date of arbitration to the present.
In January 2013, common pleas conducted a one-day, non-jury trial and rendered a verdict in favor of Hendrick in the amount of $645,450 for lost wages and pension benefits. In pertinent part, it found as follows:
The City wrongfully discharged [Hendrick] and then constructed a Catch-22 specifically for her while her ultimately successful appeal was pending. Every City employee who was on the list was hired by the County. Only [Hendrick] was singled out. The City breached the union contract that was intended for her benefit as well as the other City employees working in the 911 call center.
Furthermore, they committed the breach in such a way that her Union was no longer able to help her in obtaining relief. She had to proceed on her own and properly did so through this action.Common Pleas' January 14, 2014 Opinion at 3. Additionally, contrary to the arbitrator's decision, common pleas determined as follows: "There was much evidence regarding the City's supposed reasons for [Hendrick's] discharge, but, in the end, those reasons are both not credible and irrelevant. [She] was reinstated and the City did not appeal the ruling against it." Id. at 2. Finally, the court concluded that there was no governmental immunity for breach of contract, including breach of a duty of good faith and fair dealing.
In May 2014, common pleas denied the City's motion for post-trial relief seeking entry of a judgment notwithstanding the verdict (JNOV) in favor of the City. The City's appeal to this Court followed. On appeal, we consider whether common pleas erred in permitting Hendrick to bring an individual suit against the City for an alleged breach of the CBA without naming AFSCME in her complaint and in the absence of allegations that the City and AFSCME conspired or colluded together.
Our review of the court's denial of a motion for JNOV is as follows:
[W]e must consider all of the evidence admitted to decide if there was sufficient competent evidence to sustain the verdict. . . . Concerning any questions of law, our . . . review is plenary. Concerning questions of credibility and weight accorded the evidence at trial, we will not substitute our judgment for that of the finder of fact. . . . A JNOV should be entered only in a clear case.
In support of its position that common pleas erred in determining that an alleged breach of a duty of good faith and fair dealing was sufficient, in and of itself, to satisfy the narrow exception for standing to sue it directly for an alleged breach of the CBA, the City relies on the following well-established law:
Absent a showing of active participation by the employer in the union's bad faith, or conspiracy or collusion between the employer and the union, the merits of the employee's claim for breach of the labor contract must be determined by arbitration, and not by a court; indeed, the court "lacks authority to resolve the underlying grievance." The employee may obtain relief against the employer for violation of the labor contract, but only through arbitration of a grievance under the contract's grievance procedures.Garzella v. Borough of Dunmore, 62 A.3d 486, 494 (Pa. Cmwlth.), appeal denied, 72 A.3d 605 (Pa. 2013) (citations omitted). Further, the City emphasizes counsel for Hendrick's acknowledgement that she was not alleging conspiracy:
We're not contending that the City conspired with the union. We're contending that we meet the bad faith exception set forth in Ziccardi [v. Commonwealth, 456 A.2d 979 (Pa. 1982)]. We had an arbitrator's award. The City refused to abide by it. That's . . . bad faith. And that's our argument, Your Honor.April 23, 2014 Argument on City's Post-Trial Motion at 15; R.R. at 382. We agree with the City.
Hendrick has misinterpreted Ziccardi and, consequently, the narrow exception to permitting an aggrieved employee to sue a public employer directly for an alleged breach of a CBA. The law simply does not provide that a public employer's alleged bad faith, in and of itself, is sufficient to satisfy the exception. As we have emphasized:
It is well established under both our Supreme Court's Martino [v. Transport Workers' Union of Philadelphia, Local 234, 480 A.2d 242 (Pa. 1984)] and Ziccardi decisions and the decisions of this Court that an aggrieved public employee cannot sue his employer for breach of a labor contract governed by state collective
bargaining laws, even where his union has in bad faith refused to bring his grievance to arbitration, unless he shows, by specific facts, that the employer actively participated in the union's bad faith or that the employer conspired or colluded with the union to deny the employee his rights under the labor contract.Garzella, 62 A.3d at 494 (emphasis in original).
Moreover, the fact that Hendrick is a former employee and not a current employee is of no moment. As evidenced by Ziccardi and the present case, alleged wrongful discharges form the basis for many grievances. As the Ziccardi court observed: "[A] public employee's remedy for his bargaining agent's refusal to submit a grievance to arbitration is an action against the union for damages for breach of its duty of fair representation." 456 A.2d at 981. Accordingly, regardless of why AFSCME chose not to pursue Hendrick's potential second grievance and even if it was wrong in refusing to do so, she had to make a claim against it for failure of good-faith representation. By her own admission, she chose not to do so. Consistent with the well-established case law, therefore, common pleas erred in permitting Hendrick to sue the City directly for an alleged breach of the CBA when she failed to include AFSCME in the lawsuit and failed to make the requisite allegations of conspiracy or collusion.
Without abandoning her argument that a determination of bad faith on the City's part was sufficient to sue it directly for an alleged breach of the CBA, Hendrick would distinguish Ziccardi and its progeny on the ground that the present case did not involve a failure to pursue grievance arbitration where she already had a final ruling. Instead, she would characterize her case as one where the City failed to effectuate the award by breaching its obligation to place her on the eligibility list. This alternative argument, however, also rests on common pleas permitting Hendrick to bring an individual suit against the City for an alleged breach of a CBA, without having sued AFSCME and absent the requisite allegations. As counsel for Hendrick acknowledged, his client was making a claim pursuant only to the CBA. To the extent, therefore, that the alleged obligation to place Hendrick on the eligibility list emanated, even in part, from the consolidation agreement, she has waived any claim regarding that agreement.
If we had to reach the issue of whether common pleas erred in determining that the City had an obligation to include Hendrick's name on the list of City employees who were eligible for transfer to the County, we note only that the court's resolution of that issue in Hendrick's favor is somewhat problematic given the apparent lack of sufficient competent evidence to support it. In that regard, it is possible that AFSCME declined to pursue a second potential grievance because it determined that the City was correct in not including on the list an employee who may not have been in good standing during the relevant time period.
Specifically, counsel for Hendrick represented as follows: "[Counsel for the City] talked about the consolidation agreement, that we were not a third-party beneficiary. And we don't disagree with that. That's not our claim. Our claim is made under the [CBA]. . . ." April 23, 2014 Argument on City's Post-Trial Motion at 12; R.R. at 379. --------
Accordingly, having determined that common pleas erred in permitting Hendrick to bring an individual suit against the City for an alleged breach of the CBA based solely on the City's alleged bad faith, we reverse.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 9th day of June, 2015, the order of the Court of Common Pleas of Allegheny County is hereby REVERSED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge
Id. at 64-65; R.R. at 240-41.
Van Zandt v. Holy Redeemer Hosp., 806 A.2d 879, 885-86 (Pa. Super. 2002) (citations omitted).