Pennsylvania State Police v. Fraternal Order of Police

• Decision Date: 30 November 1993
• Citation: 634 A.2d 789,160 Pa.Cmwlth. 251
• Parties: , 145 L.R.R.M. (BNA) 2113 PENNSYLVANIA STATE POLICE, Petitioner, v. The FRATERNAL ORDER OF POLICE, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 789

634 A.2d 789

160 Pa.Cmwlth. 251, 145 L.R.R.M. (BNA) 2113

PENNSYLVANIA STATE POLICE, Petitioner, v. The FRATERNAL ORDER OF POLICE, Respondent.

Commonwealth Court of Pennsylvania.

Argued April 8, 1992.

Decided Nov. 30, 1993.

Joanna N. Reynolds, Asst. Counsel, for petitioner.

Anthony C. Busillo, for respondent.

Before CRAIG, President Judge, and DOYLE, COLINS, PALLADINO, PELLEGRINI, FRIEDMAN and KELLEY, JJ.

PELLEGRINI, Judge.

The Pennsylvania State Police (State Police) appeal an award entered in an arbitration award sustaining the grievance of the Pennsylvania State Troopers' Association (Association) filed by the Association on behalf of Corporal Bernard Chatman, Sr. (Chatman). ¹

The record before us is scant. Although the exhibits introduced by both parties in the arbitration proceeding have been preserved for the record, there is no transcript of the hearing available. The following recitation of fact is gleaned primarily from the arbitrator's opinion in support of his award and the parties' briefs to the extent that the parties are in agreement.

In June of 1987, the enforcement functions of the Pennsylvania Liquor Control Board were transferred to the State Police. Former Liquor Control Board enforcement officers (LEOs) were retained as civilian employees under the supervision of state troopers. In February of 1988, Chatman was designated as Commander of the Altoona District Office of the new Liquor Enforcement Bureau within the State Police. According to the arbitrator, this transfer of enforcement powers "was resisted and resented by the civilian liquor enforcement officers who were retained and had to change their easy ways to the rigors of State Police oversight when Chatman assumed command of the Altoona District Office ..."

On May 4, 1988, Chatman accompanied four LEOs to a raid on an unlicensed establishment for violations of the Liquor Code. The LEOs seized beer, liquor and other items (e.g., jukebox, cigarette machines, a cooler, etc.) and transported the seized property to the Bedford County prison where such property was kept in a storage room.

On Chatman's order, the LEOs removed six cases of previously seized wine from the storage room to make way for the newly seized goods. Mistakenly believing that there was a destruction order for the previously seized wine, he directed each LEO to take one case of wine and destroy it personally. Chatman took two cases of this wine. The arbitrator found that Chatman destroyed the wine at home, although he first tasted the wine from one bottle. ² During the course of inventorying the seized property, the LEOs discovered two glass steins and some six dozen beer mugs in the cooler confiscated from the raid. Chatman acquiesced in the distribution of the beer mugs among the LEOs, but according to the arbitrator, ordered them to get rid of them. Chatman kept the two glass steins and some of the mugs, but the arbitrator found, never used them.

Chatman began experiencing difficulties with the LEOs, according to the arbitrator, as a result of making them increasingly accountable for their performances and commenced disciplinary actions against the LEOs. Because of this increased resistance by the LEOs to his supervision, he requested the State Police to conduct an internal investigation. On May 18, 1989, Chatman was summoned to State Police headquarters in Harrisburg where he met with two Lieutenants in the Bureau of Liquor Control Enforcement. Expecting to discuss the investigation request, Chatman was instead questioned about the May 4, 1988 raid and about the disposition of the six cases of wine, the plastic beer mugs and glass steins.

Chatman admitted that the disposition of this seized property was not in accordance with applicable regulations, but denied any criminal intent or any intent to appropriate these items to his own use. He stated that he took the two glass steins and distributed the plastic mugs among the other LEOs, and that he directed the LEOs to "get rid of" the mugs. Chatman also stated that he had ordered the LEOs to each destroy one case of wine to make room in storage, and he later instructed the sheriff at the property to destroy the rest of the cases of wine.

The following day, Chatman was arrested and charged with theft, receiving stolen property and other offenses relating to the May 4, 1988 incident, and was suspended without pay. The State Police did not file criminal charges against any of the LEOs.

On October 31, 1989, the Commissioner of the Pennsylvania State Police scheduled a court-martial proceeding against Chatman which was continued pending disposition of the criminal charges. On July 2, 1990, Judge Callan of the Court of Common Pleas of Blair County dismissed the criminal charges against Chatman pursuant to 18 Pa.C.S. § 312 because any criminal conduct on May 4, 1988, was, at most, a "de minimis infraction" that was "too trivial to warrant the condemnation of conviction ...". ³ On October 17, 1990, the State Police notified Chatman that he would be dismissed from the force for violation of various field regulations relating to the disposition of the wine and beer mugs/steins on May 4, 1988, namely, FR 1-1.01, Unbecoming Conduct; FR 1.2.01, Performance of Duty; and FR 1-1.02, Conformance to Laws. Three of the four LEOs received five-day suspensions for their participation. Pending disposition of any grievance, Chatman was to remain suspended without pay.

Chatman exercised his option to file a grievance challenging this discipline under the 1990-1992 collective bargaining agreement. ⁴ By letter of October 23, 1990, to the Director of the Bureau of Labor Relations, he denied "all criminal intent and all intentional alleged violations of P.S.P. Rules and Regulations." Because of some uncertainty regarding the new elective grievance arbitration procedures, the FOP did not file a formal written grievance with the Bureau, and the parties did not formally identify in writing the exact issues submitted for arbitration. Prior to this arbitration hearing, counsel for the FOP and the State Police informally discussed with the arbitrator the issues that would be presented for resolution.

On December 10, 1990, the arbitrator issued an award in favor of Chatman, which concluded that Chatman "was not dismissed for cause." ⁵ He found that there was no evidence to support the State Police's charges that Chatman had any criminal intent to steal or take seized property for his own use. The award directed that Chatman "be reinstated with full seniority ... be made whole for all monies lost without any offset," and that the State Police "reimburse the attorneys' fees ... both for the criminal court and arbitration proceedings." Arbitrator's Opinion at 16. This appeal followed.

Although we had previously held that the standard of review on appeal from an Act 111 ⁶ grievance arbitration is in the nature of "narrow certiorari," ⁷ we have recently decided that because the source for the authorization for police and fire grievance arbitration is the Uniform Arbitration Act, correspondingly, the standard of review is the one provided for in that Act, 42 Pa.C.S. § 7302(d), the essence test. Pennsylvania State Police v. Pennsylvania State Troopers' Association (Trooper James Betancourt), 159 Pa.Commonwealth Ct. 489, 633 A.2d 1278 (1993). The "essence test", in just cause cases, is whether the arbitrator's award is one that can be derived from the essence of the collective bargaining agreement. Pennsylvania Liquor Control Board v. Independent State Stores Union, 520 Pa. 266, 553 A.2d 948 (1989).

The State Police are not challenging the arbitrator's decision that there was no just cause to terminate Corporal Chatman, only that the arbitrator exceeded his authority in not ordering an offset on the back pay award and in awarding Chatman attorneys' fees for both the criminal and arbitration proceedings.

The briefs, however, disclose a factual dispute between the parties as to what issues were actually submitted to the arbitrator ⁸ relating to whether he even had jurisdiction to grant some of the relief awarded. The parties agree that there was an informal, untranscribed discussion between counsel for the parties and the arbitrator regarding the scope of the issues submitted. ⁹ The parties do not, however, agree as to the exact issue submitted once the arbitrator made a finding of no just cause nor does the arbitrator identify the issue submitted. The State Police claim that the issue submitted was "what the appropriate penalty should be", while the Association claims it was "what should the remedy be." If the issue dealt only with the penalty, then the arbitrator would be without any authority to grant any affirmative relief to Chatman.

They ask us to resolve the exact question submitted to the arbitrator for resolution. Not having a record and not being factfinders, we decline to do so. While grievance arbitration proceedings are even less formal than most administrative proceedings, the parties should create and preserve a record so that the court can properly conduct its judicial review, not ask that critical blanks be filled in by the reviewing court. To avoid the situation of the parties on appeal disagreeing as to what happened and what was presented both legally and factually to the arbitrator, if, as here, there is no record evidence to the contrary, we will assume that the arbitrator had jurisdiction over the matters resolved in his award and that the facts are as he or she recounts them.

I.

The arbitrator reinstated Chatman with full seniority and ordered "back pay without any offsets" in order to make Chatman "whole". The State Police concede that back pay is an appropriate remedy if the arbitrator's determination of no "just cause" is upheld, but argues that there was no basis upon which the arbitrator could make such an award because the issue of whether the State Police were entitled to an offset was not...