Wyoming Valley Lodge, No. 36, F.O.P. v. Wyoming Boro (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Wyoming Valley Lodge, No. 36, F.O.P. v. Wyoming Borough, Appellant BEFORE: : : : : : : : No. 1335 C.D. 2007 Argued: December 10, 2007 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: February 8, 2008 This is an appeal by the Borough of Wyoming (Borough) from a grievance arbitration conducted pursuant to what is commonly referred to as Act 1111 in which the Arbitrator reinstated Officer John P. Broda (Officer Broda) to his position as a Borough police officer. In 1998, Officer Broda initiated a pursuit of a Suzuki Motorcycle while in the course of his employment. The motorist abandoned the motorcycle and fled on foot. Officer Broda took custody of the motorcycle and placed it in the Wyoming Borough Building where it was secured as evidence. Officer Broda was subsequently directed to remove the motorcycle due to a remodeling project. Officer Broda chained the motorcycle to the outside fence adjacent to the Borough Building where it remained until 2001. 1 Act of June 24, 1968, P.L. 237, as amended, 43 P.S. § 217.1 - §217.10. Sometime in 2001, Officer Broda removed the motorcycle and took it to the residence of his brother-in-law, James Ostrowski, (Ostrowski). In 2005, the Borough s former Mayor, Michael Podwika, initiated an investigation into the whereabouts of the motorcycle. eventually recovered from Ostrowski. The motorcycle was According to a voluntary statement provided by Ostrowski, Officer Broda did not inform him that the motorcycle was police evidence. Ostrowski also said that he and Officer Broda rode the motorcycle recreationally on numerous occasions. On January 11, 2006, Mayor Robert Boyer (Mayor Boyer) notified Officer Broda that he was suspended subject to Section 1190 of the Borough Code.2 On January 30, 2006, Officer Broda, through the Fraternal Order of Police Lodge 36 (FOP), filed a grievance challenging his suspension pursuant to the grievance and arbitration provisions of the parties collective bargaining agreement (CBA). Specifically, Officer Broda asserted that the suspension was without just cause. Grievance, January 30, 2006, at 1; Reproduced Record (R.R.) at 21A. The Borough scheduled a hearing in accordance with the due process requirements of Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). Officer Broda waived this hearing. On February 13, 2006, the Wyoming Borough Council unanimously voted to discharge Officer Broda. Council President Robert Guilford advised Broda in writing of his termination pursuant to the civil service provisions of The Borough Code due to neglect and/or violation of [his] official 2 Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. §46190. 2 duty as a police officer, conduct unbecoming of a police officer and inefficiency, neglect and disobedience of orders. Letter from Robert A. Guildford, President Wyoming Borough Council, February 16, 2006 at 1; R.R. at 23A. Officer Broda filed a second grievance challenging his termination. Again, Officer Broda took the position that he was terminated without just cause. Grievance, undated, at 1; R.R. at 25A. Following unsuccessful attempts by the parties to resolve Officer Broda s grievances at steps 1 and 2 of the grievance and arbitration process as outlined in the CBA the parties agreed to dispense with the remaining arbitration procedures and proceed to Act 111 grievance arbitration. On November 27, 2006, the Arbitrator issued his award in which he concluded that Officer Broda committed the charged misconduct. He also found fault with the Borough. The Arbitrator reinstated Officer Broda s employment without back pay, relying on the following: (1) the Borough did not give Officer Broda forewarning of the possible disciplinary consequences of his actions; (2) there was neither a written policy nor a directive, and there was a lack of a clear unwritten policy; (3) the former and current Mayor and all police officers knew where the motorcycle was and did nothing for an extended period of time; (4) the Borough s inefficiently conducted internal investigation. Arbitrator s Award, November 27, 2006, at 10-11. The Borough timely moved to vacate the Arbitrator s award which was denied by the trial court on June 18, 2007. 3 On appeal, the Borough asserts that the trial court erred by failing to vacate the arbitration award because (1) the Arbitrator exceeded his authority and applied a different standard of review than that required by the CBA; (2) there was an irregularity in the proceedings; and (3) the Arbitrator violated the core function doctrine by reinstating Broda after he implicitly found that Broda undermined the public s trust in the Borough s police officers. 1. Whether the Arbitrator Exceeded his Authority First, the Borough contends that the Arbitrator exceeded his authority because he applied a different standard of review from that required by the parties CBA. The Borough contends that the Arbitrator s function was to determine whether the Borough violated Article XXV of the CBA which required the Borough to follow the guidelines in The Borough Code under the civil service provisions for the discharge, suspension or demotion of police officers. Article XXV of the CBA provides: Article XXV: Discharge, Suspension or Demotion: Council will follow the guidelines in The Borough Code under Civil Service for the discharge, suspension or demotion of police officers. Wyoming Borough Police Department contract January 1, 2005, thru December 31, 2007, at 11; Reproduced Record (R.R.) at 13A. The civil service provisions of the Borough Code that pertain to the discharge, suspension or demotion of police officers are found at Section 1190, 53 P.S. §§46190, and provide, in pertinent part: 4 Removals No person employed in any police or fire force of any borough shall be suspended, removed, or reduced in rank except for the following reasons: *** (2) Neglect or violation of any official duty. (3) Violation of any law which provided that such violation constitutes a misdemeanor or felony (4) Inefficiency, neglect, intemperance, immorality, disobedience of orders, or conduct unbecoming of an officer ¦ 53 P.S. §46190. The Borough asserts that the Arbitrator erroneously applied the heading of Article XVIII entitled JUST CAUSE which pertains to the manner in which a disciplined officer may contest discipline, when he should have instead followed the guidelines in the Borough Code. Article XVIII of the CBA provides: Article XVIII: Just Cause: A disciplined officer may elect to contest such discipline thru [sic] either the civil service provisions of The Borough Code or the Grievance Procedure, but not both. Wyoming Borough Police Department Contract January 1, 2005, thru December 31, 2007, at 8; R.R. at 10A. The Borough maintains that by inserting and applying an extracontractual just cause standard of review into the CBA the Arbitrator exceeded his authority and jurisdiction by improperly reforming the CBA. The Borough relies on caselaw holding that a civil service commission may reduce or modify a penalty imposed by the governing authority only if the commission soundly 5 concludes that the penalty was arbitrary, discriminatory or an abuse of the governing authority s discretion. According to the Borough, because the Arbitrator never concluded that the penalty was arbitrary, discriminatory or an abuse of discretion, the Arbitrator exceeded his authority by imposing the just cause standard to reinstate Officer Broda. This Court must reject the Borough s argument first and foremost because the issue is not reviewable given this Court s narrow scope of review. The scope of review, applicable to appeals from grievance arbitration awards involving police and fire personnel is one of narrow certiorari. The narrow certiorari scope of review is quite limited and allows an appellate court to inquire into only four areas: (1) the jurisdiction of the arbitrator, (2) the regularity of the proceedings, (3) an excess of the arbitrator s authority, and (4) deprivation of constitutional rights. Pennsylvania State Police v. Pennsylvania State Troopers Association (Betancourt), 540 Pa. 66, 656 A.2d 83 (1995). For a grievance arbitrator to exceed his authority, the arbitrator would have to either mandate an illegal act or grant an award that addresses issues beyond the scope of the CBA or that extends beyond the terms and conditions of the employment. Twp. of Ridley v. Fraternal Order of Police Lodge No. 27, 718 A.2d 872, 874 (Pa. Cmwlth. 1998). What is in excess of the arbitrator's powers under that test is not whether the decision is unwise, manifestly unreasonable, burdens the taxpayer, is against public policy or is an error of law; an arbitrator only exceeds his power if he mandates that an illegal act be carried out or requires a public employer to do that which the employer could not do voluntarily. Borough of Nazareth v. Nazareth Borough Police Association, 545 Pa. 85, 680 6 A.2d 830 (1996); See also City of Scranton v. E. B. Jermyn Lodge No. 2 of the Fraternal Order of Police, 903 A.2d 129 (Pa. Cmwlth. 2006). A mere error of law will not support a finding that the arbitrator exceeded his powers. City of Philadelphia v. Fraternal Order of Police, Lodge No. 5, 564 Pa. 290, 768 A.2d 291 (2001). For example, in Pennsylvania State Police v. Pennsylvania State Troopers Ass'n, 559 Pa. 586, 741 A.2d 1248 (1999), the grievance arbitrators did not exceed their statutory powers by reinstating state police officers, one who was dismissed for putting a loaded gun in his ex-girlfriend s mouth, the other for retail theft. Because the reinstatements did not mandate that the state police department perform an illegal act, and the arbitrators orders to reinstate the officers clearly related to the terms and conditions of employment, the arbitrators decisions had to be affirmed on appeal under the narrow certiorari scope of review. Here, the Arbitrator clearly did not exceed his powers. By ordering the reinstatement of Officer Broda the Arbitrator did not mandate that the Borough perform an illegal act. Furthermore, the Arbitrator s order to reinstate Officer Broda clearly related to the terms and conditions of the CBA. The term just cause appears in Article XVIII of the CBA in relation to a disciplined officer. The Arbitrator interpreted the CBA to employ a just cause standard of discipline.3 He placed the burden on employer to establish the 3 The Borough asserts that the measure of proof for just cause is different or substantially less than that required to dismiss an officer under The Borough Code. It contends that the just cause standard is amorphous while The Borough Code provides specific acts which merit termination. Borough s Brief at 13. Beyond that, the Borough fails to explain how application of (Footnote continued on next page ¦) 7 existence of just cause. Based on the evidence presented, he made the following factual findings: 1. Did the employer give the employee forewarning of the possible disciplinary consequences of his or her conduct? A. No. 2. Was the employer s rule or order reasonably related to the orderly, efficiency and safe operation of its business and the performance that the employer might properly expect of the employee? A. No, there was no written evidence policy or directive and a lack of a clearly articulated unwritten policy. 3. Did the employer make an effort to determine whether the employee in fact violated its rule or order? A. No, testimony at the hearing indicated that the former and current Mayor and all police officers knew where the bike was and did nothing for an extended period of time. 4. Was the employer s investigation conducted fairly and objectively? No, the investigation was conducted by a part-time Wyoming police officer with no experience conducting (continued ¦) the criteria set forth under The Borough Code would have commanded a different result. Under The Borough Code, a police officer should not be dismissed or suspended from service unless it is for just cause proven by substantial evidence. Hodgins Polomski v. Civil Service Commission, Borough of Wilkinsburg, 426 A.2d 1229 (Pa. Cmwlth 1981). Here, the Arbitrator employed the same standard, for all intents and purposes, when he concluded that the Borough did not show by substantial evidence that Officer Broda violated any clearly articulated rule or order. In any event, even assuming the Arbitrator erroneously employed the just cause standard, it would amount to a mere error of law which does not support the conclusion that he exceeded his authority. Twp. of Ridley. 8 internal affairs investigations. A time limit of one month was imposed upon the investigating officer. Mayor Boyer took over as lead investigator. He did not interview any of the evidence custodians as part of his investigation and could not give a reason for not interviewing these people. 5. Did the employer obtain substantial evidence of the employee s violation? A. No. 6. Has the employer applied its rules and penalties even-handedly to all employees? A. There was no testimony at the hearing as to how the borough applied its rules and penalties in this type of situation. 7. Was the degree of the imposed discipline reasonably related to the seriousness of the offense and the employee s work record? A. No, the imposed discipline did not warrant termination. Arbitrator s Award, November 27, 2006, at 10-11 (italics in original). The Arbitrator concluded that the CBA did not sanction the discharge of a police officer where the conduct complained of was essentially condoned by his superiors. Regardless of the standard applied, the Arbitrator performed his function, resolved the conflict and concluded that sufficient evidence did not exist to support the disciplinary action sought by the Borough. Under the narrow certiorari standard, this Court is bound by the Arbitrator's fact-finding and/or interpretation of the CBA. Pennsylvania State Police v. Pennsylvania State Troopers Association, 840 A.2d 1059 (Pa. Cmwlth.), appeal denied, 578 Pa. 711, 853 A.2d 363 (2004). 9 2. Whether there was an Irregularity in the Proceedings Next, the Borough urges this Court to vacate the Arbitrator s award because of an irregularity in the proceedings. Specifically, it contends that the Arbitrator failed to provide a well-reasoned basis for reinstating Officer Broda, and such a failure constituted an irregularity because it frustrated this Court s appellate review. This Court disagrees that its review is in any way frustrated by the Arbitrator s award. The Arbitrator issued a coherent, well reasoned arbitration award and he explained his reasons for reinstating Officer Broda. Moreover, the alleged procedural irregularities in the narrow certiorari standard is a reference to the process employed in reaching the result of the arbitration, not to the result itself. In order to vacate an arbitration award the moving party must show that irregularities occurred in the proceedings that imported bad faith, ignorance of the law, or indifference to the equities of the result. American Federation of State, County & Municipal Employees Local 2026 v. Borough of State College, 578 A.2d 48 (Pa. Cmwlth. 1990). Here, the purported irregularities alleged by the Borough are, in essence, that the Arbitrator reached an incorrect result. Because the argument is merely a recitation of the same arguments rejected in the first issue, this Court again finds it to be without merit. 10 3. Whether the Arbitrator s Award Violated the Core Function Doctrine Lastly, the Borough contends that the Arbitrator violated the core function doctrine because the reinstatement of Officer Broda undermined the public trust in the Borough s police officers. As the Borough concedes, the core function doctrine previously applied to Act 195 grievance arbitration awards, has no application to narrow certiorari review of an Act 111 grievance arbitration award. The Borough asserts, however, that the core function test should be applied to Act 111 employers given that the essential function of those employers, to provide police and fire services to its citizens, is of a heightened nature. However, this Court, like the trial court, declines to consider public policy because our Supreme Court has expressly rejected such considerations in deciding whether an Act 111 award is proper. In Pennsylvania State Police, our Supreme Court explained: Broadening the narrow certiorari scope of review to include a provision which would allow the courts to interfere with an arbitrator's award whenever that award could be deemed to be violative of public policy however that nebulous concept may be defined by a particular appellate court-would greatly expand the scope of review in these matters. If we were to adopt the State Police's recommendation to include this ill-defined term within the narrow certiorari scope of review, we would markedly increase the judiciary's role in Act 111 arbitration awards. This would undercut the legislature's intent of preventing protracted litigation in this arena Pennsylvania State Police, 559 Pa. at 593-594, 741 A.2d at 1252-1253. 11 As a result, this argument must be rejected. Under the narrow certiorari standard of review of an Act 111 arbitration award, the trial court's decision affirming the arbitration award must be upheld. The order of the trial court is affirmed. ____________________________ BERNARD L. McGINLEY, Judge 12 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Wyoming Valley Lodge, No. 36, F.O.P. v. Wyoming Borough, Appellant : : : : : : : No. 1335 C.D. 2007 ORDER AND NOW, this 8th day of February, 2008, the order of the Court of Common Pleas of Luzerne County in the above-captioned case is hereby affirmed. ____________________________ BERNARD L. McGINLEY, Judge
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