Opinion
No. 225 C.D. 2011
01-04-2012
Richard Griffith and Sean Costa and Teamsters Local No. 205 v. South Park Police Department and The Township of South Park, Appellants
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge
This case was decided before Senior Judge Kelley's retirement on December 31, 2011.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
South Park Police Department (Police Department) and the Township of South Park (Township) (collectively, Appellants) appeal from an order of the Court of Common Pleas of Allegheny County (common pleas court) that sustained the appeal of Richard Griffith (Griffith), Sean Costa (Costa), and Teamsters Local No. 205 (Union) (collectively, Appellees) from Arbitrator Elliot Newman's (Arbitrator Newman) decision.
On May 11, 2010, Griffith, Costa, and the Union filed a local agency appeal and alleged:
1. By letter dated May 1, 2009, Officer Richard Griffith received a written reprimand from Township Chief of
Police Joseph F. Ferelli [sic], and by letter dated June 1, Sergeant Sean Costa received a written reprimand from Chief Ferelli [sic].
2. Thereafter, the Union timely filed Grievance No. 8935 on behalf of Officer Griffith, and No. 8937 on behalf of Sergeant Costa.
3. The appropriate grievance procedure was followed and the parties proceeded to arbitration on the issue of whether written reprimands were subject to the grievance/arbitration procedure. (emphasis added).
4. A hearing concerning said issue was held before Arbitrator Elliot Newman on February 3, 2010.
5. At the conclusion of the hearing, the parties submitted post-hearing briefs.
6. On April 12, 2010, Arbitrator Newman issued a decision, which concluded that written reprimands were not subject to the Grievance/Arbitration Procedure . . . . (emphasis added).
7. Appellant [Griffith, Costa, and Union] avers that the Decision, which concluded that written reprimands were not subject to the Grievance/Arbitration Procedure, is not in accordance with law, is arbitrary and capricious, is not supported by substantial evidence and constitutes an abuse of discretion.
8. Pursuant to Section 752 of the Local Agency Law, 2 Pa. C.S.A. [sic] Section 752, jurisdiction is vested in this Honorable Court to review the Decision concluding that written reprimands are not subject to the Grievance/Arbitration Procedure.
WHEREFORE, [Appellees] respectfully request this Honorable Court to issue an Order vacating the Decision issued by the Arbitrator . . . and Order that the matters to [sic] proceed to arbitration on the merits.Local Agency Appeal, May 11, 2010, Paragraphs 1-8 at 1-2; R.R. at 82a-83a.
The letter of written reprimand sent to Griffith stated:
* I find you to have been negligent in the operation of patrol car unit #3 by driving off of the paved highway into an unpaved parking lot during a snowstorm, which provided limited visibility and masked the hidden hazard of the sinkhole.
* You failed to apply common sense and placed yourself as well as the patrol cruiser in jeopardy.
* You violated department policy Chapter 8; paragraph 01 subsection f. whereas "Members of this department shall operate all departmental vehicles in a legal and prudent manner, and in accordance with the Pennsylvania Vehicle Code."
* Your negligence . . . cost the taxpayers of South Park Township $2,679.82 . . . .
Based on the above listed facts please accept this as an official letter of reprimand. This document will be placed in your personnel file in accordance with the current Collective Bargaining agreement.
The letter of written reprimand sent to Costa stated:
* Sergeant Costa you violated Chapter 9 "Conduct" subsection 13, "Confidential Information" when you divulged to State Constable Gigliotti the content of an operational order issued by the Deputy Chief of Police . . . .
* Sergeant Costa you violated Chapter 9, "Conduct" subsection 13, "Confidential Information", when you divulged to Judge Pat Capolupo the contents of an operational order issued by Deputy Chief of Police . . . while in the courtroom of Judge Capolupo as witnessed and independently corroborated by Judge Capolupo himself.
* Sergeant Costa you violated Chapter 9 "Conduct" subsection 24, paragraph 5, in both of your letters to the Deputy Chief of Police during this inquiry were insubordinate in nature as well as exhibiting conduct unbecoming an officer in your written responses to the Deputy Chief.
. . . By your decision to broadcast inaccurate information you have created mistrust between Judge Capolupo, State Constable Leo Gigliotti and the police department in general.
This letter is an official letter of reprimand for your conduct in the above incident. This letter will be placed in your personnel file as per the provisions of the current collective bargaining agreement.
Police Department and Township responded:
7. Denied. It is denied that the Decision of Arbitrator Newman, which concluded that written reprimands were not subject to the Grievance/Arbitration Procedure of the collective bargaining agreement, is not in accordance with the law, is arbitrary and capricious, is not supported by substantial evidence and constitutes an abuse of discretion. To the contrary, the proper standard for review of a grievance arbitration award is the "essence test." A grievance arbitration award shall only be vacated where the award is indisputably and genuinely is without foundation in, or fails to logically flow from, the collective bargaining agreement . . . . Arbitrator Newman's decision is based on the specific language of the collective bargaining agreement and, therefore, drew its essence from the collective bargaining agreement. A reversal of Arbitrator Newman's decision would violate the "essence test." (emphasis added and citation omitted).Answer to Local Agency Appeal, June 1, 2010, Paragraph 7 at 2; R.R. at 95a.
The common pleas court sustained Griffith, Costa, and the Union's appeal and concluded:
The arbitrator's decision effectively removes . . . [Griffith, Costa, and the Union] ability to challenge levels of discipline other than suspension or discharge,
and is not consistent with the language of the CBA. The language of Section 11 relied upon by the arbitrator does not limit the rights conferred in Section 10 with respect to all forms of discipline that can be arbitrated. The arbitrator ignored . . . [Griffith, Costa, and the Union] concerns regarding the officers' ability to challenge written reprimands by essentially contending that the officers would have the ability to challenge those written reprimands at a time when such reprimands culminated or aggregated into a suspension or removal . . . . The arbitrator's interpretation to the contrary, that the officers cannot contest what is clearly a contractual provision is arbitrary, capricious, and irrational.Opinion of the Common Pleas Court, March 22, 2011, at 5-6.
On appeal, Appellants contend that the common pleas court erred when it failed to apply the "essence test" as the standard of review of a grievance arbitration decision. Critically, Appellants assert that Arbitrator Newman's conclusion that written reprimands were not arbitrable failed to satisfy the "essence test" because it was not rationally derived from the collective bargaining agreement (CBA).
This Court's review of an appeal of a grievance arbitration award under Act 111 is narrow certiorari. Pennsylvania State Police v. Pennsylvania State Troopers' Association (Betancourt), 540 Pa. 66, 656 A.2d 83 (1995). Narrow certiorari permits inquiry only into the following four aspects of an Act 111 arbitrator's award: 1) the jurisdiction of the arbitrator; 2) the regularity of the proceedings; 3) an excess of the arbitrator's powers; or 4) deprivation of constitutional rights. The standard by which this Court reviews an arbitrator's determination of these issues depends on the nature of the issue in the case. Pennsylvania State Police v. Pennsylvania State Troopers' Association, 840 A.2d 1059 (Pa. Cmwlth,), appeal denied, 578 A.2d 711, 853 A.2d 363 (2004). Where resolution of the issue turns on a pure question of law, or application of law to undisputed facts, our review is plenary. However, where, as here, it depends upon fact-finding or upon interpretation of the collective bargaining agreement, the extreme standard of deference applicable to Act 111 awards is applied, that is, this Court is bound by the arbitrator's determination of these matters even though the Court finds it to be incorrect. Id.
The essential sections of the CBA entered into between the Union and the Township on January 1, 2009, which have spawned this controversy are:
Section 4.1 ( Union Responsibility ) of the CBA provides:
The Union recognizes and accepts the responsibility of insuring that every employee complies at all times with the South Park Township Police Manuel, also known as Resolution No. 6-1-76, a copy of said manual being attached hereto. Any grievance arising pursuant to said manual shall be disposed of in a manner outlined in the Grievance Procedure in the Agreement. The Union also recognizes and accepts the need for frequent updating, revision and amendment of the Police Policy Manual. (emphasis added).
Section 10 ( Grievances ) of the CBA provides:
GRIEVANCE PROCEDURE: A grievance is a dispute concerning the interpretation, application or alleged violation of the specific terms or provisions of this Agreement. Any grievance arising between the Employer and the Union or an Employee represented by the Union shall be settled in the following manner:
STEP ONE - The grievance shall be filed in writing within ten (10) working days of its occurrence or knowledge of its occurrence. The Officer and the Job Steward shall first discuss the grievance with the Chief of Police. If the grievance is not resolved to the mutual satisfaction of the parties, then the grievance may be appealed by the Union and/or the Officer within five (5) workdays following
receipt of the written response of the Chief of Police in Step One to the Township Manager and the Board of Supervisors.
STEP TWO -The Township Manager and the Board of Supervisors within ten (10) workdays after receipt of the appeal, shall meet with the aggrieved Officer, his Job Steward, and the Union's Business Agent in an attempt to adjust the grievance. The Township Manager and Board of Supervisors shall give the aggrieved Officer and his Job Steward a written decision within three (3) workdays following the regular monthly Supervisor's meeting. If the Union does not proceed with the Grievance to Step Three within the time limits mutually agreed upon, the grievance shall be considered to be satisfactorily resolved.
STEP THREE -If the grievance has not been satisfactorily resolved at Step Two, the Union may appeal to arbitration within ten (10) days after a decision at Step Two has been rendered. A request for arbitration may be initiated by the Union serving upon the Township Manager and the Board of Commissioners notice in writing of an intent to proceed to arbitration. The notice shall identify the agreement provisions in dispute, the issue(s) to be determined, and the Officer and/or Officers involved . . . . (emphasis added).
A. The arbitrator shall have no power or authority to add to, subtract from or modify the provisions of this Agreement in arriving at a decision on the issue(s) presented and shall confine his decision solely to the application and interpretation of this Agreement. (emphasis added).
B. . . . The arbitrator's decision shall be final and binding on all parties. (emphasis added).
Section 11 ( Suspension and Discharge ) of the CBA provides:
The Township retains the right to suspend and discharge any employee for just cause. In all cases involving discharge or suspension of any employee, the Township must notify the employee in writing of his discharge or suspension and the reason therefore. Such notice shall also be given to the appropriate union representative within forty-eight (48) hours after notice shall have been given to the employee.
The procedures governing emergency suspensions and misconduct complaints are as outlined in this agreement. (Refer to Section 36.16)
A discharged or suspended employee who believes he was suspended or discharged for unjust cause must notify the employer in writing within five (5) calendar days after receiving notification of such against him or his desire to appeal the discharge or suspension. In such events, such grievances shall then be handled in accordance with the grievance procedure set forth in the Agreement, starting with Step Two. (emphasis added).
Section 34.14 ( Violations of Rules and Conduct ) of the CBA provides:
A violation of any of the rules of conduct contained in this section or any other section of this manual shall be sufficient cause for disciplinary action to be taken by the Chief of Police in accordance with the rules and regulations of the Policy and Procedure Manual of the Township of South Park. Disciplinary action may constitute the following:
1. oral reprimand
2. written reprimand
3. internal suspension
4. external suspension
5. extended probation
6. reduction in rank
7. dismissal from the department (emphasis added).
Last, Section 34.15 ( Removals ) of the CBA provides:
No person employed by South Park Township Police Department shall be suspended, removed or reduced in rank except for the following reasons.
. . . .
Section 1. Any time an officer faces disciplinary action except for an oral and/or a written reprimand, he shall receive a departmental hearing before the Chief of Police and the Township Manager to establish any further action. (emphasis added).
Note: An officer under review must have a union representative present at the hearing.
In the present controversy, the able Arbitrator succinctly stated the positions of the Township and the Union concerning the provisions of the CBA:
Position of the Township
The Township asserts that the clear, unambiguous contract language of Section 11 bars any discipline other than suspensions and discharges from being submitted to binding arbitration under Section 10. Other provisions of the labor agreement indicate that the parties carefully delineate different procedures for different types of discipline. Detailed written reports are required for all discipline, including written reprimands and excluding only the case of oral reprimands. Hearings before the Chief of Police and the Manager and recourse to the grievance/arbitration procedure are restricted to suspensions and discharges. Throughout the labor agreement, careful delineation of procedures for different types of discipline shows the parties' clear intent to exclude reprimands from arbitration.
. . . .
Position of the Union
. . . In this case, multiple sections of the labor agreement address the circumstances under which a written reprimand may be issued and the procedure that must be followed to issue such reprimand. As such, because the terms of the labor agreement are at issue, written reprimands are subject to the grievance/arbitration process. In particular, Section 34.14 states: "a violation of the rules of conduct . . . shall be sufficient cause for disciplinary action to be taken by the Chief . . . ." Among the actions considered disciplinary in nature is a written reprimand. Clearly said issues are arbitrable as a determination must be made whether a violation of the rules occurred. The determination of whether or not a violation occurred goes to the heart of the reason for a grievance procedure.Arbitrator Newman's Decision and Award, April 12, 2010, at 2-3; R.R. at 102a-03a.
The Union notes that the Township presented testimony concerning Section 11 of the labor agreement addressing suspension and discharge of an employee for just cause. However, the Union asserts . . . that this section . . .has no impact upon whether or not other discipline is arbitrable . . . . Rather, any provision contained in the labor agreement is the subject of arbitration because under the terms of the agreement, a violation of the Policy and Procedural Manual must be established. (emphasis added).
In order for Appellants to prevail, the parties' intent concerning whether written reprimand may be grieved under Section 10 of the CBA must be found in the "clear and express language" of the CBA. Therefore, at the outset, it must be determined whether the CBA provided Griffith, Costa, and the Union with a vested and, unalterable right to grieve written reprimands.
Having reviewed the relevant provisions of the CBA, this Court must disagree with the common pleas court that, based on the express language of the CBA, written reprimands were intended by the parties to be grieved. Arbitrator Newman determined that pursuant to Section 10 (Grievance Procedure) and Section 11 (Suspension and Discharge) of the CBA a suspension or discharge of an employee shall be subject to the grievance procedure, not a written reprimand.
Specifically, Arbitrator Newman stated:
An important principle of contract interpretation is that the inclusion of specific items, in this case suspension and discharge, implicitly excludes similar items not mentioned, such as written reprimands. This principle that the inclusion of specific items (such as suspensions and discharges in Section 11) excludes other items (such as written reprimands from Section 11) is set forth in Elkouri and Elkouri, How Arbitration Works (Sixth Edition) at pages 467-468: "Frequently, arbitrators apply the principle that when parties list specific items, without any more general or inclusive term, they intend to exclude unlisted items, even though they are similar to those listed. From this assumption comes the rule expressio unius est exclusio alterius ("the expression of one thing is the exclusion of another"). Thus, contracts that specify certain exceptions imply that there are no other exceptions, and those that expressly include some guarantees in the agreement are thought to exclude other guarantees." (emphasis supplied). The specific guarantee of a just cause review in the grievance procedure of suspensions and discharges in Section 11 implicitly excludes such review of written reprimands.Arbitrator Newman's Award at 6.
The common pleas court reversed Arbitrator Newman's decision based on its interpretation of the CBA, that a written reprimand may be grieved because Section 4.1 states "any grievance arising pursuant to said manual shall be disposed of in a manner outlined in the Grievance Procedure in the Agreement" and Section 34.14 which includes "any violations of the Rules of Conduct . . . shall be sufficient cause for disciplinary action . . . which includes written reprimand . . . ." Opinion of the Common Pleas Court at 5. However, under this Court's narrow certiorari standard of review, this Court is without authority, as was the common pleas court, to vacate Arbitrator Newman's decision because it was not unlawful and did not require the Township to perform an unlawful act even though a court may disagree with the outcome, which this Court does not by the way.
Arbitrator Newman noted the proper venue to address whether a written reprimand may be grieved:
Finally, the appropriate venue for the Union to seek the inclusion of written reprimands under the just cause disciplinary grievance/arbitration procedures is the negotiations, and if necessary the interest arbitration, for the successor 2012 labor agreement. The inclusion of written reprimands within Article 11 cannot appropriately be done in the grievance/arbitration process . . . . 'The arbitrator shall have no power or authority to add to, subtract from or modify the provisions of this Agreement . . . .'Arbitrator Newman's Decision at 7.
Further, in Guthrie v. Wilkinsburg, 505 Pa. 249, 478 A.2d 1279 (1984), our Pennsylvania Supreme Court determined that a written reprimand did not invoke a protected property right. The Pennsylvania Supreme Court held:
The factual situation as recounted by our Pennsylvania Supreme Court in Guthrie was:
After receiving a number of complaints from citizens alleging abuse and mistreatment by Wilkinsburg police officers . . . the Borough Council proposed and adopted six findings and conclusions regarding instances of police misconduct. On December 27, 1979, the Council voted to issue written warnings to seven police officers and to place the warning in the officers' personnel files . . . . The officers were allowed to place a counterstatement concerning the charges in their personnel files, but chose not to exercise this option. No further action was taken against the officers: they were not fired, demoted or suspended, nor were their salaries reduced or frozen.
The officers petitioned for review of the Borough's actions in the Allegheny County Court of Common Pleas under the Local Agency Law, 2 Pa. C.S. § 752. That court held that the Borough's actions did not constitute an adjudication, and dismissed on jurisdictional grounds. The Commonwealth Court . . . affirmed and we granted allocator. We now affirm.
If the officers were dismissed, suspended or demoted they would have been entitled to notice and a hearing . . . . However, the officers were not removed, suspended or reduced in rank; they were warned about inappropriate conduct. Thus, no property right was implicated here.Guthrie, 505 Pa. at 256, 259-60, 478 A.2d at 1282, and 1284 (emphasis added).
. . . .
Furthermore, forcing municipalities to hold a hearing every time it wishes to sanction an employee could have a deleterious effect. Public employees might choose to look the other way at some infractions rather than expend the time, trouble and expense of a hearing in each instance . . . .
. . . .
Further, a public employee would be free to challenge an issued warning under a collective bargaining agreement's grievance procedure . . . if an arbitrator finds an abuse to have occurred. [Section 903 of the "Public Employe Relations Act"/Act 195,] 43 P.S. § 1101.903.
Act of July 23, 1970, P.L. 563, as amended. --------
Again, Arbitrator Newman interpreted that the CBA did not provide Griffith, Costa, and the Union the right to grieve a written reprimand under Section 10 of the CBA. Discerning that Arbitrator Newman had jurisdiction concerning this issue and that his decision was not in excess of his authority, this Court must reverse the order of common pleas court.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 4th day of January, 2012, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is reversed.
/s/_________
BERNARD L. McGINLEY, Judge
Letter from Chief Ferrelli to Officer Griffith, May 1, 2009, at 1; Reproduced Record (R.R.) at 163a.
Letter from Chief Ferrelli to Sergeant Costa, June 1, 2009, at 1-2; R.R. at 165a-66a.
Guthrie, 505 Pa. at 253-54, 478 A.2d at 1280-81.