Pennsylvania State Police v. Pennsylvania State Troopers' Ass'n (Betancourt)

• Decision Date: 08 November 1993
• Citation: 633 A.2d 1278,159 Pa.Cmwlth. 489
• Parties: , 144 L.R.R.M. (BNA) 2700 PENNSYLVANIA STATE POLICE, Petitioner, v. PENNSYLVANIA STATE TROOPERS' ASSOCIATION (Trooper James BETANCOURT), Respondent.
• Court: Pennsylvania Commonwealth Court

Page 1278

633 A.2d 1278

159 Pa.Cmwlth. 489, 144 L.R.R.M. (BNA) 2700

PENNSYLVANIA STATE POLICE, Petitioner, v. PENNSYLVANIA STATE TROOPERS' ASSOCIATION (Trooper James BETANCOURT), Respondent.

Commonwealth Court of Pennsylvania.

Submitted April 8, 1992.

Decided Nov. 8, 1993.

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

James L. McAneny, for respondent.

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

PELLEGRINI, Judge.

The Pennsylvania State Police (State Police) appeal from an arbitration award sustaining the grievance of the Pennsylvania State Troopers' Association (Union) and Trooper James Betancourt and holding that Trooper Betancourt did not engage in "Unbecoming Conduct." ¹

On February 24, 1988, Trooper Betancourt was on duty in the "Warrants and OR Section" at Troop "K" Headquarters. In the early afternoon hours, Trooper Betancourt was engaged in a jovial conversation with Trooper Francine Taggart while working in the office. At some point during the conversation, following a quip by Trooper Taggart that Trooper Betancourt would be a "half-man luge team" in reference to the Winter Olympic sport, Trooper Betancourt turned away and exposed his penis. Although there were eight other troopers present in the office, including Trooper Taggart, this action was observed purportedly by only Trooper Carlton Watson, who happened to be behind Trooper Betancourt.

Information concerning this episode came to the attention of Sergeant John Lyle, "Warrants and OR Supervisor", who questioned Trooper Betancourt. After initially denying the allegations, Trooper Betancourt admitted he exposed himself in the office. Sergeant Lyle initiated a complaint with the Bureau of Professional Responsibility and placed Trooper Betancourt on restrictive duty for a period of two months, where he was required to scrub the office floors on his hands and knees. As a result of the complaint, Trooper Betancourt was charged with Unbecoming Conduct, a violation of Section 1-1.01 of the State Police Field Regulations (Field Regulations).

On March 30, 1989, court-martial proceedings were held before the State Police Court-Martial Board concerning the charge of Unbecoming Conduct. The Court-Martial Board then filed a report with the Commissioner, finding Trooper Betancourt guilty of Unbecoming Conduct and recommending a 30-day suspension without pay. On April 24, 1989, the Commissioner agreed with the Court-Martial Board's recommendations and found Trooper Betancourt guilty of Unbecoming Conduct and imposed a 30-day suspension. Pursuant to a newly adopted grievance procedure, Trooper Betancourt chose to grieve his suspension and hearings were held before an arbitrator. ² On April 1, 1991, the arbitrator issued an award sustaining Trooper Betancourt's grievance, finding that the conduct did not fall within the definition of Unbecoming Conduct, because, while Trooper Betancourt exposed himself, it did not occur in public and some of his fellow officers condoned his behavior. The arbitrator also awarded Trooper Betancourt lost wages and benefits he suffered while on restrictive duty and suspension and directed that the incident be expunged from his personnel file. The State Police now appeal. ³

I.

We ordered reargument in this case because of the difficulty we are having with what standard of review to apply in reviewing grievance arbitration awards arising out of collective bargaining agreements negotiated or awarded pursuant to Act 111. ⁴ We have previously held that the standard of review for appeal of Act 111 grievance arbitration is in the nature of "narrow certiorari". See City of Philadelphia v. Fraternal Order of Police Lodge No. 5 (Wilson), 129 Pa.Commonwealth Ct. 392, 565 A.2d 1232 (1989). Oftentimes, however, we lapse into essence test language in reviewing these awards with statements such as "we must limit our inquiry into [whether] the arbitrator's interpretation ... derives its essence from the collective bargaining agreement between the FOP and the City." FOP Lodge No. 5 (Bojanowski) v. City of Philadelphia, 137 Pa.Commonwealth Ct. 1, 5, 586 A.2d 459, 462 (1991). ⁵

The State Police ask us to revisit this area. While not disputing that the narrow certiorari standard is appropriate to review "interest arbitration" ⁶ awards, it contends that it is inapplicable to grievance arbitration awards which should be reviewed under the standard set forth in Section 7302(d)(2) of the Uniform Arbitration Act (UAA), 42 Pa.C.S. § 7302(d)(2), the "essence test".

A.

The "essence test" is the standard of review that is routinely applied in both the public and private sectors to review arbitration awards in grievance proceedings. It is used to review all awards under the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, No. 195, as amended, 43 P.S. §§ 1101.101-1101.2301 (for other public "regular" and "special" employees, commonly referred to as Act 195). The "essence test", as originally formulated in our case law, was that an arbitration award would be upheld if the award "draws its essence from the collective bargaining agreement." FOP Lodge No. 5 (Wilson), 129 Pa.Commonwealth Ct. at 396, 565 A.2d at 1234 (citing 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)). Stated more precisely, where the arbitrator's task has been to determine the parties' intention in drafting the collective bargaining agreement, then the arbitrator's award is based on a resolution of a factual dispute and "is to be respected by the judiciary if 'the interpretation can in any rational way be derived from the agreement, viewed in light of its language, its context, and any other indicia of the parties' intention ...'." Leechburg Area School District v. Dale, 492 Pa. 515, 520, 424 A.2d 1309, 1312 (1981) (quoting Community College of Beaver County, 473 Pa. at 594, 375 A.2d at 1275 (additional citation omitted)). The essence test requires a determination of whether the agreement encompasses the subject matter of the dispute. Leechburg, 492 Pa. at 520-21, 424 A.2d at 1312. ⁷

After enactment of the Uniform Arbitration Act ⁸ in Pennsylvania in 1980 (UAA), significant nuances have been added to the essence test. The UAA provides that a reviewing court is permitted to modify or correct an award in an arbitration proceeding conducted under its auspices 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." 42 Pa.C.S. § 7302(d)(2). Although this language introduces the judgment n.o.v./error of law concept into review of labor arbitration awards, the cases have continued to apply the "essence test" to grievance arbitration under Act 195, and have viewed the UAA's judgment n.o.v. scope of review and the "essence test" as essentially the same. FOP Lodge No. 5 (Wilson), 129 Pa.Commonwealth Ct. at 396, 565 A.2d at 1235 (quoting Community College of Beaver County, 473 Pa. at 590, 375 A.2d at 1273 ("the 'n.o.v.' concept ... 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].")

B.

The other standard, narrow certiorari, a more limited standard, gives even greater deference to an arbitration award required in labor arbitration proceedings under Act 111. As developed in the "interest-arbitration" context, a court may review Act 111 arbitration awards in the nature of "narrow certiorari", limited to questions regarding: (1) the jurisdiction of the arbitrators; (2) the regularity of the proceedings; (3) an excess in exercise of the arbitrator's powers; and (4) deprivation of constitutional rights. See Washington Arbitration Case, 436 Pa. 168, 174, 259 A.2d 437, 441 (1969). Under this "narrow certiorari" standard of review, the courts give even greater deference to an arbitrator's award than is given in judicial review of Act 195 and other arbitration proceedings. See, e.g., FOP Lodge No. 5 (Wilson), 129 Pa.Commonwealth Ct. at 401, 565 A.2d at 1237; City of Philadelphia v. FOP Lodge No. 5 (Young), 125 Pa.Commonwealth Ct. 625, 558 A.2d 163 (1989); Allegheny County Police Ass'n. v. County of Allegheny, 100 Pa.Commonwealth Ct. 327, 514 A.2d 964 (1986), appeal dismissed, 516 Pa. 17, 531 A.2d 1108 (1987).

C.

The result in a given "just cause for discipline" case can differ, depending upon whether a grievance arbitration award is reviewed under the "essence test"/UAA standards or in the nature of narrow certiorari. This difference is manifest in the "just cause for discipline" cases where an arbitrator determines a grievant committed the acts which led to imposition of discipline by the employer, but also finds that such acts do not constitute "just cause" for the discipline imposed and substitutes either some lesser punishment or none. A recurring issue in this situation is whether the arbitrator exceeded his or her authority in substituting a penalty or in overriding the employer's decision as to the appropriate discipline for the misconduct which the arbitrator found to have occurred.

In grievance arbitration under Act 195, application of the error of law/judgment n.o.v. standard of review (or the "essence test") frequently results in reversing the arbitrator's determination of no just cause for discipline for imposing his or her own "brand of industrial justice", ⁹ and going beyond the intention of the parties. See, e.g., Pennsylvania Liquor Control Board v. Independent State Stores Union, 520 Pa. 266, 553 A.2d 948 (1989) (award was not rationally derived from CBA where arbitrator found grievant guilty of theft and other crimes against the employer, but considered other factors in mitigation in determining that there was no "just cause" for his discharge and substituted a lesser...