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

• Decision Date: 08 May 1989
• Citation: 558 A.2d 163,125 Pa.Cmwlth. 625
• Parties: CITY OF PHILADELPHIA, Appellant, v. FRATERNAL ORDER OF POLICE, LODGE NO. 5, Appellee. 1009 C.D. 1988
• Court: Pennsylvania Commonwealth Court

Page 163

558 A.2d 163

125 Pa.Cmwlth. 625

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

1009 C.D. 1988

Commonwealth Court of Pennsylvania.

Argued March 7, 1989.

Decided May 8, 1989.

Ralph J. Teti, Philadelphia, for appellant.

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

Before CRAIG, BARRY and PALLADINO, JJ.

PALLADINO, Judge.

The City of Philadelphia (Appellant) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court) confirming an arbitration award entered in favor of the Fraternal Order of Police, Lodge No. 5 (FOP). We affirm.

Appellant and FOP were parties to a collective bargaining agreement which provided for the arbitration of grievances concerning contract violations, disciplinary suspensions of eleven (11) to thirty (30) days, demotions, and discharges. See Article XIX, section A(1) of collective bargaining agreement. FOP filed a grievance on behalf of Angela Young (Grievant), a police officer employed by Appellant. The grievance arose when Grievant was discharged from her employment as a result of an off-duty altercation with two other uniformed police officers and a supervisory officer. During the altercation, which occurred on June 3, 1985, Grievant struck one of the officers in the face and kneed him in the groin. In addition, Grievant directed profane and abusive language toward the supervisory officer.

On June 7, 1985, Grievant was ordered to report to the Police Department's Internal Affairs Division, at which time she was arrested and charged with disorderly conduct, simple assault, and aggravated assault. ¹ Grievant was given a copy of the arrest warrant, read her Miranda rights, and was provided with a written notice of suspension for thirty (30) days with intention to dismiss. On June 13, 1985, Grievant was served with a formal notice of intention to dismiss based upon her off-duty conduct as well as repeated violation of departmental rules and regulations.

The grievance filed by FOP proceeded to arbitration; ² the arbitrator determined that Grievant's conduct warranted employment-related discipline. However, the arbitrator went on to conclude that Grievant should not have been discharged from her job. Accordingly, the arbitrator ordered that she be reinstated to her job with seniority, but without back pay or other lost benefits. Appellant then filed a petition for review of the arbitration award with the trial court. By order dated April 8, 1988, the trial court dismissed Appellant's petition for review and confirmed the arbitration award.

On appeal to this court, Appellant presents only one issue for our review: whether the arbitrator exceeded his authority by modifying the discipline imposed upon Grievant once the arbitrator found that Appellant established that Grievant engaged in misconduct warranting employment-related discipline.

Our scope of review of an Act 111 ³ arbitration award is in the nature of narrow certiorari. Thus, we are limited to reviewing the jurisdiction of the arbitrator, the regularity of the proceedings, constitutional questions, and excesses in the exercise of the arbitrator's powers. Appeal of Upper Providence Township, 514 Pa. 501, 526 A.2d 315 (1987); Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 120 Pa. Commonwealth Ct. 610, 549 A.2d 1014 (1988). In this case, we are asked to review only the fourth category, excesses in the exercise of the arbitrator's powers.

An arbitration award "may be in excess of the exercise of the arbitrators' powers if it requires the public employer to perform an act that it is prohibited by law from performing, ... or if it does not involve legitimate terms or conditions of employment." Upper Providence Township, 514 Pa. at 514-15, 526 A.2d at 321-22 (citations omitted). However, an error of law which does not so exceed the powers and authority of the arbitrator, such as a misinterpretation or misapplication of law affecting a term or condition of employment but that does not require the doing of a prohibited act by the employer, is not alone grounds for reversal of an Act 111 arbitration award. Upper Providence Township.

In this case, Appellant contends that once the arbitrator found that Grievant had engaged in the complained of conduct the arbitrator was without power under the parties' agreement to modify the discipline imposed upon Grievant. ⁴ Initially, we note that article XVIII of the parties' collective bargaining agreement provides that "[n]o employee shall be disciplined or discharged except as in [sic] consistent with the Home Rule Charter and the Regulations of the Civil Service Commission." Section 7-303 of the Philadelphia Home Rule Charter (Home Rule Charter), 351 Pa.Code § 7.7-303, states that "just cause" is the standard by which the propriety of a dismissal is to be determined. Section 7-401(p) of the Home Rule Charter states that civil service regulations are to provide for suspensions of not more than thirty (30) days. 351 Pa.Code § 7.7-401(p). Section 7-401(q) of the Home Rule Charter states that the regulations also are to provide that discharge or reduction in rank shall be effected only after the employee is apprised of the reasons for the contemplated action and afforded an opportunity to respond. 351 Pa.Code § 7.7-401(q).

The arbitrator in the instant case specifically credited the testimony of the three police officers as to the events which transpired on June 3, 1985 and concluded that Grievant's misconduct was sufficiently related to her job so as to warrant employment-related discipline. Further, the arbitrator stated that "[t]he validity of such [employment-related] discipline was not undermined by the Grievant's acquittal on criminal charges." Arbitrator's Award at 12.

However, we are faced with the statement by the arbitrator that one of the generally accepted tests of just cause is that a fair investigation take place prior to the imposition of discipline and that the City failed to meet this test. Arbitrator's Award at 14. The arbitrator noted that Appellant did not request Grievant to give her account of the altercation and, at the time Grievant was given her suspension notice, Appellant apprised her only of the criminal charges and not the departmental charges. Accordingly, the arbitrator concluded that Appellant failed to afford Grievant "contractual due process." Arbitrator's Award at 13-14. Further, the arbitrator determined that Appellant may have placed improper emphasis on a prior disciplinary charge beyond the expiration of the "reckoning period" for that...