Pennsylvania State Police v. Fraternal Order of Police

• Decision Date: 15 November 1993
• Citation: 634 A.2d 270,159 Pa.Cmwlth. 628
• Parties: , 145 L.R.R.M. (BNA) 2104 PENNSYLVANIA STATE POLICE, Petitioner, v. The FRATERNAL ORDER OF POLICE, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 270

634 A.2d 270

159 Pa.Cmwlth. 628, 145 L.R.R.M. (BNA) 2104

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

Commonwealth Court of Pennsylvania.

Argued Dec. 17, 1991.

Decided Nov. 15, 1993.

Joseph S. Rengert, Chief Counsel, for petitioner.

Anthony C. Busillo, II, for respondent.

Before SMITH and PELLEGRINI, JJ., and KELTON, Senior Judge.

SMITH, Judge.

The Pennsylvania State Police (State Police) petitions for review of the February 20, 1991 award of the arbitrator that sustained Trooper Joseph P. DiRaimo's (Grievant) grievance filed upon his dismissal from employment with the State Police, and reduced the dismissal penalty imposed upon Grievant to a fifteen-day suspension without pay. The issue presented for review is whether the arbitrator's award exceeded the bounds of his authority. In considering this issue, this Court is called upon to articulate the appropriate scope of review of the arbitrator's award in a grievance arbitration filed by Act 111 ¹ police personnel.

I

On May 16, 1988, Grievant was returning from training in Meadville, Pennsylvania in a state police vehicle with his wife following in Grievant's personal vehicle. Grievant stopped at the South Midway Plaza on the Pennsylvania Turnpike where he put $10 worth of gasoline into the state vehicle and $5 worth of gasoline into his personal vehicle, and had the station attendant place the entire amount of the purchase on a Commonwealth credit card. Grievant thereafter made no attempt to ascertain how to repay the amount utilized for his personal vehicle. When Grievant's acts were subsequently discovered and referred to a local district attorney, Grievant was charged with a violation of Section 4106 of the Crimes Code, as amended, 18 Pa.C.S. § 4106(a)(1)(iv), a summary offense. ² Grievant pleaded guilty and paid a fine and costs.

On February 9, 1989, court martial proceedings against Grievant were held concerning the allegations of misuse of a Commonwealth credit card. Specifically, Grievant was charged with violation of Field Regulation (F.R.) 1-1.01 (conduct unbecoming a police officer) and F.R. 1-1.02 (failure to conform to and abide by the laws). Grievant pleaded guilty to these charges and on March 3, 1989, the State Police Commissioner, after finding among other things that Grievant had a prior arrest for retail theft which was disposed of through the accelerated rehabilitation disposition program, issued his disposition and order dismissing Grievant from employment with the State Police. Under provisions of the collective bargaining agreement (Agreement) negotiated between the State Police and the Fraternal Order of Police (FOP), Grievant was given the option of abiding by the prior court martial proceedings or grieving the penalty imposed by the Commissioner. Grievant elected the grievance procedure and a hearing was held before the arbitrator on December 14, 1990.

The sole question presented to the arbitrator was whether the State Police had just cause to terminate Grievant's employment for placing $5 worth of the Commonwealth's gasoline into his personal vehicle and failing to report his actions. The arbitrator noted there was no dispute that Grievant's actions were wrong, and that while Grievant contended that it was his continuing intent to repay the sum, his claim was nonetheless betrayed by the fact that he never contacted a superior in order to ascertain how to accomplish repayment. The arbitrator stated that Grievant's guilty plea to the charges against him "exposes the central issue in this dispute, the question of whether or not the Grievant is a thief." Arbitrator's Decision, p. 9. The arbitrator reasoned that Grievant's actions did not portray the actions of a thief because, "if [he] were a thief in the fullest context of the meaning, he would have filled his gas tank rather than just taking enough gasoline to get home." Id. The arbitrator concluded that Grievant was guilty of "committing a blatently [sic] stupid and unthinking act," id. at 10, sustained the grievance, reduced Grievant's discharge to a fifteen-day suspension without pay, and ordered that he be immediately reinstated and that he compensate the Commonwealth for the $5 worth of gasoline. The State Police appealed to this Court.

II

In accordance with a recent decision by this Court, the proper scope of review of an arbitrator's award in cases of grievance arbitration involving Act 111 police personnel is the "essence test," specifically set forth in Section 7302(d) of the Uniform Arbitration Act, 42 Pa.C.S. §§ 7301-7320. See Pennsylvania State Police v. Pennsylvania State Troopers' Ass'n (Trooper James Betancourt), 159 Pa.Commonwealth Ct. 489, 633 A.2d 1278 (1993). Section 7302(d)(1), (2) provides that where a person is required to submit a controversy to arbitration, a court in reviewing the award shall "modify or correct the award 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."

Under the essence test, this Court is confined to determining whether the arbitrator's decision could rationally be derived from the collective bargaining agreement. Pennsylvania Liquor Control Board v. Independent State Stores Union, 520 Pa. 266, 553 A.2d 948 (1989). An arbitrator's award is to be respected by the courts if it represents a reasonable interpretation of the labor agreement between the parties. County of Centre v. Musser, 519 Pa. 380, 548 A.2d 1194 (1988). However, the Pennsylvania Supreme Court has adopted the caveat expressed in United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), that an arbitrator is confined to the interpretation and application of the collective bargaining agreement and does not sit to dispense his or her own brand of industrial justice. See Independent State Stores Union; Musser. Subsumed within the essence test standard of review is the requirement that the arbitrator's interpretation of the agreement cannot be manifestly unreasonable. Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 526 Pa. 301, 586 A.2d 355 (1991); American Federation of State, County & Municipal Employees Local 2026 v. Borough of State College, 133 Pa.Commonwealth Ct. 521, 578 A.2d 48 (1990).

III

Based upon this Court's stated scope of review of the arbitrator's decision, the State Police argues that the arbitrator's award does not draw its essence from the collective bargaining agreement. Article XXVIII of the Agreement provides for grievance procedures and the selection of an arbitrator. Section 1 provides, in pertinent part:

The arbitrator shall neither add to, subtract from nor modify the provisions of this Agreement or of the arbitration awards. The arbitrator shall confine himself/herself to the precise issue submitted for arbitration and shall have no authority to determine any other issues not so submitted to him/her.

Section 4 of Article XXVIII provides in part:

In the event that a member is accused of an offense that would otherwise be subject to court-martial proceedings ..., he shall, simultaneous with the receipt of the notice of the offense be advised in writing that he may elect to challenge that accusation either through a court-martial proceeding or through the grievance procedure.... ³

The question submitted to the arbitrator for resolution was whether just cause existed for Grievant's discharge. "Just cause" is not defined or discussed in the Agreement. Guidance can be found in field regulations which Grievant was charged with having violated and to which he pleaded guilty. F.R. 1-1.02 requires that an officer shall conform to and abide by the laws of the Commonwealth and the United States. F.R. 1-1.01 provides that an officer shall not conduct himself/herself in a manner which is unbecoming to a police officer. Unbecoming conduct is defined in the regulation as "that type of conduct which could reasonably be expected to destroy public respect for State Police officers and/or confidence in the Pennsylvania State Police." In discussing unbecoming conduct, the Pennsylvania Supreme Court has noted: "It is indispensable to good government that a certain amount of discipline be maintained in the public service.... It is not necessary that the alleged conduct be criminal in character nor that it be proved beyond a reasonable doubt." Zeber Appeal, 398 Pa. 35, 43, 156 A.2d 821, 825 (1959).

Once it is established that the record reflects there was just cause for the action taken by the governmental agency, the inquiry must close and the action of the agency must be accepted. Independent State Stores Union. In other words, if just cause for the action was present, "any further effort on the part of the arbitrator to disturb the agency's action can not be said to flow from the essence of the bargaining agreement nor can it in any rational way be derived from that agreement." Id., 520 Pa. at 274, 553 A.2d at 952. In Independent State Stores Union, the Supreme Court determined that once an arbitrator concurred in the Liquor Control Board's findings that a dismissed employee committed the charged act of misappropriation of funds, that finding established just cause for dismissal so that the Board's action should have been sustained. The arbitrator's modification of the dismissal penalty on the ground that the employee's conduct was caused by mental illness could not be rationally derived from the collective bargaining agreement.

In the matter sub judice, the arbitrator acknowledged there was no dispute that Grievant committed the acts charged, pleaded guilty to those charges, and that Grievant's actions were wrong. In fact, the arbitrator rejected Grievant's claim that he intended to repay the money. Nevertheless, the arbitrator strayed from the question presented to him--the question of just...