City of Pittsburgh v. FOP FORT PITT LODGE NO. 1

• Decision Date: 15 December 2000
• Citation: 764 A.2d 101
• Parties: CITY OF PITTSBURGH, Appellant, v. FRATERNAL ORDER OF POLICE FORT PITT LODGE NO. 1.
• Court: Pennsylvania Commonwealth Court

764 A.2d 101

CITY OF PITTSBURGH, Appellant, v. FRATERNAL ORDER OF POLICE FORT PITT LODGE NO. 1.

Commonwealth Court of Pennsylvania.

Argued November 1, 2000.

Decided December 15, 2000.

Hugh F. McGough, Pittsburgh, for appellant.

Michael S. Sherman, Pittsburgh, for appellee.

Before COLINS, Judge, LEADBETTER, Judge, and McCLOSKEY, Senior Judge.

COLINS, Judge.

The City of Pittsburgh appeals the order of the Court of Common Pleas of Allegheny County affirming the decision of an arbitration panel to decline jurisdiction and rescind the termination of city police officer Donald Mitchell without a hearing on the merits on the ground that the Act 111¹ arbitration hearing did not take place within 45 days of the request for arbitration as required under the terms of the collective bargaining agreement.

The City discharged Officer Mitchell effective December 22, 1998 after he admitted to stealing $835 from an unoccupied vehicle and failing to submit a report on the vehicle.² Officer Mitchell, through the Fraternal Order of Police Fort Pitt Lodge No. 1 (FOP), filed a grievance and requested review by a panel of arbitrators. By letter dated December 30, 1998, the City notified David Petersen that he had been chosen as the neutral arbitrator and requested that he submit available dates "in January or early February" for the arbitration hearing. Arbitrator Petersen (the arbitrator) suggested a hearing date of February 15, 1999, and the parties accepted that date.³

At the February 15 hearing, both sides raised procedural objections pertaining to the panel's jurisdiction, and the panel heard argument on the objections. Pertinent to this appeal are the objections of Mitchell and the FOP that the hearing was untimely because it was held beyond the 45-day period set forth in Section 19-8 of the collective bargaining agreement (CBA).⁴ Before recessing to consider the objections, arbitrator Petersen advised the parties that according to the panel's understanding, if the City's objection was sustained, Mitchell's discipline would be final and not subject to further appeal, if the FOP's objection was sustained, the discipline would be rescinded and if both objections were denied, the hearing would be reconvened. (Board of Arbitration decision, p. 2.) Neither party objected to the arbitrator's characterization of the issues. Id. The panel refused to consider additional arguments or evidence submitted after the hearing recessed. (Board of Arbitration decision, p. 2 fn.2.)

The arbitrators sustained the FOP's timeliness objection. It concluded that under the terms of Section 19-8 the arbitration hearing must be held within 45-days after the request for arbitration, and that the 45-day period should be measured in calendar days rather than working days based on the CBA's use of both "working days" and "days" when describing two different time periods in Section 19-8. The panel rejected the City's contention that the FOP's failure to object to the arbitrator's suggestion of February 15, 1999 as the date for the hearing constituted a waiver of the 45-day limitation. In so doing, the panel noted that based on representations at the hearing, the City had refused to recognize the FOP president or its counsel as having the authority to waive Section 19 time limits on behalf of a disciplined officer, and that it was undisputed that Officer Mitchell did not waive the time limits. The panel also noted that the City's letter requesting hearing dates did not request a date within a 45-day period. The trial court dismissed the City's petition to review and vacate the arbitrator's award, and it affirmed the arbitrators' decision. On appeal to Commonwealth Court, the City argues: 1) the City has a contractual right to proceed to arbitration on the merits; and 2) the arbitrator's acceptance of the timeliness objection after accepting the parties' consent to proceed with the hearing on February 15 resulted in an irregularity in the proceeding. In appeals of an Act 111 grievance arbitration, our scope of review is narrow certiorari, which permits an appellate court to consider 1) the arbitrator's jurisdiction; 2) the regularity of the proceedings; 3) an excess of the arbitrator's powers; or 4) deprivation of constitutional rights. Pennsylvania State Police v. Pennsylvania State Troopers Association (Smith), 559 Pa. 586, 741 A.2d 1248 (1999) (citing Pennsylvania State Police v. Pennsylvania State Troopers' Association (Betancourt), 540 Pa. 66, 656 A.2d 83 (1995)). An error of law alone is not sufficient to support a reversal of an arbitrator's award. Id. An appellate court may not disregard an arbitrator's findings of fact or contract interpretation if the arbitrator is even arguably construing or applying the contract and acting within the scope of his or her authority. City of Philadelphia v. Fraternal Order of Police, Lodge No. 5, 720 A.2d 811 (Pa.Cmwlth.1998).

First, the City argues that the arbitrator erred when it concluded that it lacked jurisdiction to hear this matter on the merits. In essence, this argument disputes the arbitrator's interpretation of the terms of the CBA and its application of those terms. The City argues that the parties satisfied the terms of Section 19-8 when they requested a hearing date in January or early February and subsequently agreed to proceed with the hearing on February 15, 1999. It further argues that unlike the unambiguous time limitations set forth in Sections 19-2 through 19-7, the forty-five day period in Section 19-8 is not assigned to either party; therefore the arbitrator lacked the authority under the CBA to rescind the discipline on the ground that the City, as employer, failed to comply with the time limit.

An arbitrator acts within the scope of its authority in determining its own jurisdiction. Township of Sugarloaf v. Bowling, 563 Pa. 237, 759 A.2d 913 (2000). In concluding that it did not have jurisdiction, the arbitrator interpreted Section 19-8 of the CBA to provide that the hearing before the panel of arbitrators must take place within forty-five calendar days after the employee requests arbitration. Because the hearing did not take place within 45 calendar days in this case, the arbitrator applied Section 19-10 of the CBA and ruled that the discipline was rescinded.

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