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Gender Requirement Trumps Seniority in Lackawanna County

Lizzy McLellan, The Legal Intelligencer

November 4, 2014

Lackawanna County did not violate a collective bargaining agreement when choosing to hire a female detention officer over 12 senior males, the Commonwealth Court has ruled.

A split three-judge panel decided that a portion of the agreement that requires consideration of seniority without regard to gender does not trump a part of the agreement that says female personnel must be present when juvenile detention officers are transporting a female detainee.

"A contract's construction requires a consideration of the entire contract to decipher its intent," Judge Mary Hannah Leavitt wrote for the majority in an opinion filed Oct. 24 in AFSCME, District Council 87 v. County of Lackawanna. "Here, the arbitrator's examination of the entire CBA was consistent with, not contrary to, his obligation to make an award that draws its essence from the collective bargaining agreement."

Judge Bernard McGinley filed a dissenting opinion. He said the arbitrator ignored unambiguous language in the contract that stated seniority should be the paramount factor in hiring. He also wrote that the requirement for female personnel does not equate to a requirement for a female officer.

"Article 19, Section 11 of the CBA does not address seniority and does not define the term 'qualified female personnel,'" McGinley wrote. "However, the arbitrator interpreted the term to mean a full-time 'juvenile detention officer' without regard to seniority when she fashioned the arbitration award.

For this reason, McGinley said, the arbitrator's interpretation was not rationally derived from the agreement.

The decision to hire a female detention officer came out of a June 2010 court order from Lackawanna County Court of Common Pleas Judge Trish Corbett. Corbett had presided over several cases in which female juvenile offenders were locked up in the morning at the all-male Lackawanna County Juvenile Detention Center and had to wait there for up to six hours until a female employee from another county department arrived to supervise the transfer to a female detention facility.

Following the court order, the county proceeded to hire a female detention officer in October 2010 to work the day shift at the juvenile facility who was outranked in seniority by 12 male officers. In addition, in order to accommodate one female officer in the day shift, one male officer would have to switch to a different shift. The union filed grievances on both the seniority issue and the displacement of the male officer, which has not yet occurred because the case was ongoing.

At the grievance hearing, Clifford Hoffman, the director of the juvenile facility, explained why the facility requires a female officer to be present during the transport of a female offender, according to the Commonwealth Court opinion.

Hoffman said officers in the past have had to restrain a female offender who got "out of hand" in the back of the vehicle, and that it is a liability to allow an offender to go to the bathroom alone. He also said it is better for the county to have a female present in these cases, instead of allowing two males to drive the female during transfer.

"The female could accuse the two males of anything she pretty much wants," he said in testimony, according to the opinion. "A female with us lends more credibility to nothing has happened."

For these reasons, Article 29, Section 11 of the collective bargaining agreement says "'juvenile detention officers who are required to transport female detainees must be accompanied by qualified female personnel,'" the opinion said.

The union argued that the arbitrator "erred in equating 'female personnel' with 'female detention officers,'" Leavitt wrote. But even if the court disagreed with that interpretation, it could not vacate the arbitrator's award because it did not find that the interpretation was not rationally derived from the collective bargaining agreement, the opinion said.

McGinley, in his dissent, expressly disagreed with this point.

"Clearly, the contract language of the CBA was unambiguous that seniority would be the paramount factor," he said. "I believe that the arbitrator's interpretation that the county was authorized to place a probationary employee into a day-shift position without regard to the seniority provisions of the CBA regarding bidding on shifts and job openings was not rationally derived from the CBA.

John Bielski of Willig, Williams & Davidson in Philadelphia is representing the union. He did not return calls for comment.

Richard Goldberg and Lars Anderson of HKQ Law in Kingston, Pa., are representing the county.

"We think the Commonwealth Court rendered the right decision," Anderson said.

About HKQ Law

Hourigan, Kluger & Quinn is considered one of the top civil litigation and commercial law firms that has had the privilege of representing more families in the courtroom than any other NEPA firm. The attorneys at HKQ Law have been honored as Super Lawyers, Best Lawyers, Best Law Firms by US News and World Report, and have received the AV Preeminent Rating by Martindale-Hubbel. HKQ Law was recently recognized for one of the top 20 Verdicts in Pennsylvania.

The firm’s Personal Injury Team, led by Attorney Joe Quinn, Jr., has won some of the largest verdicts and settlements in the region's history. The Personal Injury Team focuses on a wide array of personal injury claims and civil litigation, including medical malpractice, auto and truck accidents, aviation accidents, unsafe vehicles, dangerous or defective products, workplace injuries (worker's compensation), construction site accidents, claim denials by insurance companies, dangerous drugs, defective children's products, nursing home abuse and neglect, and falls due to unsafe conditions (slip and fall).

Attorney Joseph A Quinn, Jr. is one of only 100 attorneys in the United States (and one of only three in Pennsylvania) honored with membership in the Inner Circle of Trial Advocates, and one of only 500 attorneys worldwide chosen to be a Fellow of the International Academy of Trial Lawyers. He has been a Pennsylvania Super Lawyer every year since the program began and has been listed in The Best Lawyers in America every year since the publication was established in 1987. Best Lawyers also named him top personal injury attorney for Northeastern Pennsylvania and the Lehigh Valley. In addition, Best Lawyers, in conjunction with U.S. News & World Report, has designated HKQ a Tier 1 Best Law Firm across multiple categories in Northeastern Pennsylvania and the Lehigh Valley.

Since the inception of the firm, the Commercial / Corporate Team led by Attorney Allan Kluger has provided comprehensive, integrated legal services to many of Northeastern and Eastern Pennsylvania's largest corporations, businesses, banks, non-profits and institutions, handling matters involving labor and employment, wills, trusts and estate planning, estate administration, elder law, commercial transactions, residential and commercial real estate, zoning, land use and development, telecommunications, mediations and arbitrations, commercial litigation, title insurance, business planning and business succession, corporate/business structuring, employment discrimination law for employers, banking, creditor’s rights, finance, lender liability defense, covenants not to compete, construction law, mergers and acquisitions and other business matters.

Additional information can be found at or by calling (800) 760-1529.



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