City of Philadelphia v. Fraternal Order of Police, Lodge No. 5

• Decision Date: 12 January 1990
• Citation: 129 Pa.Cmwlth. 392,565 A.2d 1232
• Parties: CITY OF PHILADELPHIA, Appellant, v. FRATERNAL ORDER OF POLICE, LODGE NO. 5, Appellee. 1952 C.D. 1988
• Court: Pennsylvania Commonwealth Court

Page 1232

565 A.2d 1232

129 Pa.Cmwlth. 392

CITY OF PHILADELPHIA, Appellant, v. FRATERNAL ORDER OF POLICE, LODGE NO. 5, Appellee.

1952 C.D. 1988

Commonwealth Court of Pennsylvania.

Argued June 8, 1989.

Decided Nov. 2, 1989.

Reargument Denied Jan. 12, 1990.

Maria L. Petrillo, Chief Asst. City Sol., with her, Ralph J. Teti, Chief Deputy City Sol., and Richard C. McNeill, Jr., Philadelphia, for appellant.

Anthony J. Molloy, Jr., Mozenter, Molloy & Durst, Philadelphia, for appellee.

Before DOYLE and PALLADINO, JJ., and NARICK, Senior Judge.

DOYLE, Judge.

Before us for review is an order of the Court of Common Pleas of Philadelphia County which upheld an arbitrator's award directing that two members of the Philadelphia Police Department, John Wilson and David Grove, (Grievants), who had been dismissed from their positions, be subject only to suspensions of thirty days and ten days respectively.

The relevant facts are as follows. On May 28, 1987, then Police Commissioner Kevin M. Tucker dismissed Grievants from their positions on a variety of charges including the offense of conduct unbecoming an officer. The various charges related to Grievants' refusals to turn over arrest books to the Philadelphia Police Department (Department) and their failure to cooperate with the Department in an investigation being conducted by the Department's Ethics Accountability Division.

Pursuant to the collective bargaining agreement between the City of Philadelphia (City) and the Fraternal Order of Police Lodge No. 5 (FOP), Grievants filed grievances over the dismissals. The grievances were submitted to arbitration and the arbitrator sustained the grievances only in part, finding that Grievants had violated only one section of the Disciplinary Code (Code) (failure to cooperate in a Departmental investigation) and specifically rejecting charges that Grievants had violated other sections of the Code. Accordingly, he reduced Grievant Wilson's dismissal to a thirty-day suspension and Grievant Grove's dismissal to a ten-day suspension.

Thereafter, the City filed a petition to vacate the arbitrator's award in the common pleas court asserting that the arbitrator had exceeded his jurisdiction when he determined that Grievants were guilty of some of the charges but, nonetheless, ordered reinstatement. The trial court denied the City's petition to vacate and this appeal followed.

Initially, we must determine the appropriate scope of review. The law regarding judicial review of an arbitration award has not been without its confusion. Essentially, there are three substantive groups which must be distinguished. Under the Public Employe Relations Act ¹ (Act 195) there are public employees who are given a

right to strike. There are also, however, under Act 195 a small segment of employees who are not given that right. We shall refer for purposes of this discussion to those individuals as Act 195 Special Employees. The Act 195 Special Employees include prison guards and court-appointed employees. See Section 805 of Act 195, 43 P.S. § 1101.805. Finally, there are those individuals (police and fire personnel) whose arbitration rights arise from the Act of June 24, 1968, P.L. 237, 43 P.S. §§ 217.1 through 217.10 (Act 111). Further, for each of the three categories of public employees there are two types of arbitration--interest and grievance. And, the appropriate scope of review is dependent upon which group of employees is under discussion and what type of arbitration is involved.

INTEREST ARBITRATION

Our Supreme Court has indicated that where an interest arbitration award arises under Act 111 a "narrow certiorari" review is appropriate. Appeal of Upper Providence Police Delaware County Lodge # 27 Fraternal Order of Police, 514 Pa. 501, 526 A.2d 315 (1987). Under this standard the reviewing court must limit its inquiry to questions concerning the jurisdiction of the arbitrators, the regularity of the proceedings, an excess in the exercise of the arbitrators' powers, and constitutional questions. Id. This narrow scope of review is based upon the recognition that Act 111 employees have no right to strike, the consequent public policy concern that their disputes be quickly settled and appeals discouraged, and more importantly upon Section 7(a) of Act 111, 43 P.S. § 217.7(a), which pertinently directs: "The determination of the majority of the board of arbitration ... shall be final on the issue or issues in dispute and shall be binding upon the public employer and the policemen or firemen involved.... No appeal therefrom shall be allowed to any court." 43 P.S. § 217.7(a). See also Washington Arbitration Case, 436 Pa. 168, 259 A.2d 437 (1969). Interpreting this statutory restriction on judicial review of an arbitration panel and pointing out that an arbitration panel is neither a court nor an administrative agency, our Supreme Court, citing Keystone Raceway Corp. v. State Harness Racing Commission, 405 Pa. 1, 5-6, 173 A.2d 97, 99 (1961), stated:

If an appeal is prohibited by an Act, or the decision of the Agency is stated to be final or conclusive, the law is well settled that an appeal will lie to the Courts in the nature of a narrow certiorari and this Court will review only (1) the question of jurisdiction; (2) the regularity of the proceedings before the agency; (3) questions of excess in exercise of powers; and (4) constitutional questions....

Washington Arbitration Case, 436 Pa. at 174, 259 A.2d at 441.

As to the question of what scope of review applies to Act 195 and Act 195 Special Employees under an interest arbitration award, it appears that that inquiry has never been judicially determined and, of course, is not an issue now before us.

GRIEVANCE ARBITRATION

When examining a grievance arbitration case under Act 195 it is clear that for most employees the proper inquiry is whether the award draws its essence from the collective bargaining agreement, Community College of Beaver County v. Community College of Beaver County, Society of the Faculty (PSEA/NEA), 473 Pa. 576, 375 A.2d 1267 (1977), and that standard is akin to the one set forth in Section 7302(d)(2) of the Uniform Arbitration Act, 42 Pa. C.S. § 7302(d)(2)(UAA). Under this Section a reviewing court is permitted to modify or correct an arbitration award only where "the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict." Community College. Community College relied upon United Steelworkers of America v. Enterprise Wheel and Car Corp, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), wherein the High Court observed:

[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may, of course, look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of award.

Id. at 597, 80 S.Ct. at 1361. Our state Supreme Court has made it clear that the essence test is essentially the same as the judgment n.o.v. standard under the UAA, Community College, ² when it wrote, "[w]hile introduction of the 'n.o.v.' concept into the field of arbitration may have been a new departure, it is hardly a radical change, nor does it dictate that a much closer or different scrutiny of an arbitration award will be available than under the [essence test]." Id. [129 Pa.Cmwlth. 397] at 589-90, 375 A.2d at 1273. The Court has further opined that subsumed within the essence test standard of review is a requirement that the arbitrator's award cannot be manifestly unreasonable. Pennsylvania Liquor Control Board v. Independent State Stores Union, 520 Pa. 266, 553 A.2d 948 (1989) (ISSU ).

Cases involving Act 195 Special Employees are subject to the same scope of review. County of Centre v. Musser, 519 Pa. 380, 548 A.2d 1194 (1988); Philadelphia Housing Authority v. Union of Security Officers # 1, 500 Pa. 213, 455 A.2d 625 (1983).

The instant case, of course, is a grievance proceeding arising under Act 111 and the appropriate scope of review here is narrow certiorari, not a review under the UAA. Allegheny County Police Association v. County of Allegheny, 100 Pa. Commonwealth Ct. 327, 514 A.2d 964 (1986); Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 120 Pa. Commonwealth Ct. 610, 549 A.2d 1014 (1988) (FOP 5); ³ City of Philadelphia v. Fraternal Order of Police Lodge No. 5, --- Pa. Commonwealth Ct. ----, 558 A.2d 163 (1989) (City of Philadelphia ). ⁴ In summary, the following diagram, we believe, represents the current state of the law on the scope of review over arbitration awards:

ARBITRATOR'S AUTHORITY

Keeping the appropriate standard of review in mind, we must now decide whether the arbitrator's award should be set aside on the basis that the arbitrator acted in excess of his powers because he modified the penalty imposed upon Grievants. Our review of the collective bargaining agreement reveals that nowhere therein is the question of the arbitrator's ability to substitute a penalty addressed.

Judge Palladino, in the City of Philadelphia case, in construing the identical contract provisions to those here under review and in considering the question of whether an arbitrator could change a dismissal to a suspension, wrote The arbitrator essentially determined that mitigating factors as well as procedural errors could be considered in evaluating whether "just cause" for Grievant's discharge did or did not exist. Such a definition or standard of "just cause" amounts to, at most, a mere error of law. After careful review of the arbitrator's award in light of the above-referenced contract provisions as well as our limited scope of review of Act 111 arbitration cases...