City of Philadelphia v. Fraternal Order of Police, Lodge No. 5
| Decision Date | 12 January 1994 |
| Citation | 160 Pa.Cmwlth. 272,634 A.2d 800 |
| Parties | , 145 L.R.R.M. (BNA) 2237 CITY OF PHILADELPHIA, Appellant, v. FRATERNAL ORDER OF POLICE, LODGE NO. 5, Appellee. |
| Court | Pennsylvania Commonwealth Court |
Richard G. Freeman, for appellant.
John K. Weston, for appellee.
Before DOYLE, COLINS and PELLEGRINI, JJ.
The City of Philadelphia (City) appeals from an order of the Court of Common Pleas of Philadelphia County affirming an award of an arbitrator reinstating Gary Wakshul (Grievant) as an officer with the Philadelphia Police Department. 1
On December 7, 1985, Grievant arrested two individuals and transported them to a police station. One of those two prisoners suffered injuries as a result of a physical confrontation with Grievant while being placed in a cell. This prisoner was then taken by Grievant to a local hospital. While the admission clerk was taking information from the prisoner, a second physical confrontation occurred.
Grievant was summoned to the Internal Affairs Division of the Police Department on April 29, 1986, with counsel, and was read his constitutional rights under Miranda. 2 On the advice of his counsel, Grievant refused to give a statement.
On May 28, 1986, a warrant for the arrest of Grievant was obtained based on a complaint alleging aggravated assault, simple assault and other charges. 3 On the same day, Grievant was served with a "Notice of Suspension" which provided: "You are hereby notified by Order of the Police Commissioner that effective immediately, you are suspended for a period of thirty (30) days with Intent to Dismiss." On May 29, 1986, the Fraternal Order of Police, Lodge No. 5 (FOP) filed a grievance protesting the suspension and contemplated dismissal of Grievant.
Thereafter, Grievant was served with "Notice of Intention to Dismiss." 4 The notice, signed by the Police Commissioner, listed conduct unbecoming a police officer and neglect of duty as the reasons for the dismissal. The notice recounted the incident involving the prisoner which occurred on December 7, 1985, and further provided in pertinent part:
Although your dismissal is based on the aforementioned substantive acts, on Wednesday, May 28, 1986, you were also arrested inside [Internal Affairs Bureau] Headquarters and charged with Aggravated Assault, Simple Assault and Criminal Attempt.
The aforementioned conduct indicates you violated Police Department Orders and Directives and show little or no regard for your responsibilities as a member of the Philadelphia Police Department.
You are hereby notified that for the same reasons you were suspended without pay from your position effective at the beginning of your tour of duty on May 28, 1986, for thirty days, or until your prior dismissal.
The form also advised Grievant that if he believed that "this intended action is unjustified, you may, under regulations of the Civil Service Commission, within ten days from the service of this notice, notify [the Police Commissioner] in writing of your reasons therefor and summarize the facts in support of your belief." Grievant was sent the Notice of Dismissal on June 16, 1986.
Arbitration proceedings commenced on April 21, 1988. The sole issue to be decided as framed by the arbitrator was: "Was Grievant discharged for just cause and in accordance with the requirements of the parties' Agreement." 5 On July 31, 1989, the arbitrator issued his opinion and award. The arbitrator first noted that "[t]he parties' Agreement, the [Philadelphia] Home Rule Charter, referenced therein, and the Civil Service Regulation issued to implement the procedure for dismissal, all provide for notice and an opportunity to reply." The arbitrator found that the dismissal of Grievant was defective because it violated Grievant's "contractual due process rights" by precluding notice and an opportunity to reply. Specifically, the arbitrator observed that because Grievant's arrest preceded his suspension and dismissal, his exercise of his right against self-incrimination precluded him from offering an explanation for his conduct. See generally Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). 6 Accordingly, the arbitrator directed that Grievant be reinstated with back pay.
The arbitrator additionally considered the merits of the grievance, and issued an award on that basis which was to be applicable only if the arbitrator's decision that Grievant's due process rights were violated was reversed. The arbitrator found that Grievant's actions at the hospital on December 7, 1985, constituted an excessive use of force, but that this was a first violation of Section 1.75 of the Disciplinary Code of the City Police Department. 7 Accordingly, the arbitrator found that a 30-day suspension was warranted.
The City petitioned the Court of Common Pleas of Philadelphia County to vacate, set aside or modify the arbitration award. By order entered July 31, 1990, the Common Pleas Court denied the City's petition and confirmed the arbitrator's award. The City then filed this appeal.
On appeal, the City raises two issues: (1) that the arbitrator exceeded his authority by deciding a constitutional issue; and (2) that the arbitrator erred when he, after finding just cause, substituted a lesser penalty. Both the City of Philadelphia and the FOP set forth the essence test as the appropriate standard of review of the arbitrator's decision. We must first determine the proper standard of review of the arbitrator's decision of the agreement between the parties negotiated under Act 111. 8
Previously, our case law has applied the "narrow certiorari" standard of review to appeals of Act 111 grievance arbitration. See City of Philadelphia v. FOP Lodge No. 5 (Wilson), 129 Pa.Commonwealth Ct. 392, 565 A.2d 1232 (1989). However, we have recently decided that the proper standard of review is the one provided for in the Uniform Arbitration Act (UAA), 42 Pa.C.S. § 7302(d), or the "essence" test. Pennsylvania State Police v. Pennsylvania State Troopers' Association (Trooper James Betancourt), 159 Pa.Commonwealth Ct. 489, 633 A.2d 1278 (1993). In that case, we recognized that Act 111 does not provide for grievance arbitration, but grievance arbitration is appropriate in Act 111 cases under the provisions of the UAA. See Township of Moon v. Police Officers of Moon Tp., 508 Pa. 495, 498 A.2d 1305 (1985). Because the source of the authorization for police and fire grievance arbitration is the UAA, the standard of review that should be applied should also have its source in the UAA. 9
The "essence test", as it has been formulated in our case law, requires a determination as to whether the terms of the agreement encompass the subject matter of the dispute, and, if so, the validity of the arbitrator's interpretation is not a matter of concern to the court. Leechburg Area School District v. Dale, 492 Pa. 515, 424 A.2d 1309 (1981); Joint Bargaining Committee of the Pennsylvania Social Services Union v. Commonwealth, 81 Pa.Commonwealth Ct. 126, 472 A.2d 1194 (1984). Therefore, on judicial review, an arbitration award should be upheld if the award "draws its essence from the collective bargaining agreement." Leechburg, 492 Pa. at 520, 424 A.2d at 1309. Within the essence test standard is a requirement that the arbitrator's award cannot be manifestly unreasonable. FOP Lodge No 5 (Wilson), 129 Pa.Commonwealth Ct. at 397, 565 A.2d at 1235.
In this case, the arbitrator sustained the grievance, not because he found Grievant not guilty of the alleged conduct, but because he was deprived of something called "contractual due process". Although the arbitrator stated that his determination was based on "contractual" due process, he addressed the notice and opportunity to be heard as a constitutional issue and found a right to a pre-termination hearing. However, the Third Circuit in Gniotek v. City of Philadelphia, 808 F.2d 241 (3rd Cir.1986), cert. denied, 481 U.S. 1050, 107 S.Ct. 2183, 95 L.Ed.2d 839 (1987), 107 S.Ct. 2183, 95 L.Ed.2d 839 (1987), and this court in City of Philadelphia v. FOP Lodge No. 5 (Boykins), 140 Pa.Commonwealth Ct. 235, 592 A.2d 779 (1991) petition for allowance of appeal denied, 529 Pa. 626, 600 A.2d 541 (1991), upheld the constitutionality of post-termination hearing procedures, like those available to Grievant in this case, finding that no formal pre-termination hearing was required. 10
In Gniotek, police officers who were accused of accepting unlawful bribes were suspended and then given notice of intention to dismiss. The Circuit Court held that the notice of intention to dismiss sufficiently stated the charges against the officers and were timely, considering the governmental interest in quickly removing an unsatisfactory employee, and the 10-day response time was sufficient opportunity to respond. Id., 808 F.2d at 244-45. The Circuit Court stated that coupled with a post-termination adjudication, the pre-termination proceedings were proper.
In FOP Lodge No. 5 (Boykins), the officer was arrested for aggravated assault and other charges and read his Miranda warnings. The officer chose to assert his privilege against self-incrimination. He was subsequently suspended with the intent to dismiss and notified that he could contact the police commissioner in writing of his reasons for objecting to the disciplinary action. The arbitrator found that the officer's due process rights were violated. Applying Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), we held that "given the City's substantial countervailing interest in protecting the public from improper police conduct, the procedure used to suspend a police officer pending further action by the Police Commissioner satisfies due process and obviates the need for a full-blown pre-suspension hearing." FOP Lodge No. 5 (Boykins), 140 Pa.Commonwealth Ct. at...
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City of Philadelphia v. Fraternal Order of Police, Lodge 5
...Fraternal Order of Police, Lodge 5 (Office Gary Wakshul) NO. 0122 E.D.ALLOC. (1994) Supreme Court of Pennsylvania June 13, 1995 160 Pa.Cmwlth. 272, 634 A.2d 800 Appeal from the Commonwealth Disposition: Granted. ...