Opinion
No. 2353 C.D. 2011
11-09-2012
Colwyn Borough, Appellant v. Delaware County Lodge No. 27, Fraternal Order of Police
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal of an Act 111 grievance arbitration, Colwyn Borough (Borough) asks whether the Court of Common Pleas of Delaware County (trial court) erred in declining to vacate an arbitrator's award reinstating the Colwyn Borough Police Department (CBPD) police chief, Bryan Hills (Grievant), with back pay and seniority. Specifically, Borough contends the arbitrator improperly determined Borough lacked just cause to terminate Grievant's employment because his determination was based on issues the parties did not raise and a misinterpretation of the Borough Code (Code). Upon review, we affirm.
Act of June 25, 1968, P.L. 237, as amended, 43 P.S. §§217.1-217.10.
Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. §§45101-48501. By Act of May 17, 2012, P.L. 262, the General Assembly provided a comprehensive modernization and reorganization to the Code. This act was intended as a continuation of the existing law. Section 103 of the Borough Code, as amended, 53 P.S. §45103. Thus, we consider the Code as amended and reorganized except were prohibited.
I. Background
In 2009, Borough disciplined Grievant on three separate occasions. In each instance, the Delaware County Lodge No. 27, Fraternal Order of Police (Union) grieved the discipline on Grievant's behalf pursuant to the collective bargaining agreement (CBA) between Borough and Union. Specifically, Union asserted in each instance Borough lacked just cause to discipline Grievant.
In the first two disciplines, Borough suspended Grievant. After grievance arbitrations related to those suspensions, the arbitrators overturned Borough's discipline, finding it lacked just cause to suspend Grievant. Thereafter, in September, Borough issued Grievant his third discipline, this time, in the form of a notice of possible discharge.
In the notice, Borough asserted it intended to dismiss Grievant because he was not responsive to Borough Council's concerns regarding: its lack of access to the police station, a lack of patrol visibility, the absence of CBPD's officers from the Borough while on duty, its lack of control over CBPD overtime and discipline, and Grievant's failure to follow its directives. As to Borough Council's directives, Borough asserted that Grievant failed to follow Borough Council's orders to keep a daily activity log and to investigate two alleged instances of police misconduct. Such alleged misconduct related to a CBPD officer's use of racially offensive language with a member of the public, and to the underlying reason a neighboring municipality, Darby Borough, would no longer allow at least one of CBPD's officers to continue using its jail cells.
After providing Grievant the opportunity to be heard, Borough terminated his employment. In the notice of termination, Borough stated it discharged Grievant for his neglect or violation of duties and for conduct unbecoming an officer.
Thereafter, Union filed a grievance challenging Grievant's discharge. Evidentiary hearings ensued before an arbitrator. Union asserted that many of Borough's charges occurred prior to Borough's earlier disciplines of Grievant; therefore, they were properly subject to the earlier arbitrations. As to the daily activity logs, Union contended that CBPD's officers did submit logs as requested, but that Grievant did not personally do so because he did not believe the duty applied to the chief of police. Additionally, Union argued Grievant did comply with Borough Council's directive when Borough notified him that he was also required to submit time logs in his capacity.
With regard to Borough Council's directive to investigate alleged police misconduct, Grievant testified he referred the matter to the district attorney, who declined to investigate. Moreover, Grievant assigned a CBPD officer to internally investigate. Additionally, Grievant testified that with regard to use of the Darby Borough jail cells, he previously spoke to the Darby Borough police chief about the issue, but would speak to him again. As such, Union argued Grievant's actions did not constitute grounds to terminate his employment.
Ultimately, the arbitrator sustained the grievance and ordered Borough to reinstate Grievant with full back pay and seniority. Specifically, the arbitrator determined the notice of termination consisted of mere generalities, some of which predated the prior disciplines. As such, the arbitrator dismissed those charges, reasoning that Borough's failure to bring the charges during the earlier disciplines indicated Grievant's actions were not in violation of the standards that applied to him. Moreover, if such behavior was subject to discipline, the arbitrator reasoned that Borough acted in bad faith by bringing serial proceedings.
As to the remaining charges, Grievant's refusal to maintain a daily activity log and to investigate specific instances of police misconduct, the arbitrator determined those charges did not constitute just cause to support the imposed discipline. Specifically, the arbitrator determined Grievant's failure to follow Borough Council's directives did not give Borough just cause to terminate Grievant's employment because Borough Council had no authority under the Code or the CBA to issue the directives. Specifically, the arbitrator determined the authority to command the conduct of the chief of police was statutorily vested in the mayor, not in Borough Council. Further, the arbitrator reasoned that even if Borough Council had statutory authority, by contract it still had to bargain with Union to impose any new duties, which it had not done. Therefore, the arbitrator reasoned that because Borough Council had no authority to order Grievant's performance, it also lacked authority to discipline him for disobeying its directives.
Additionally, the arbitrator determined that regardless of whether Borough Council had statutory and contractual authority to issue the directives, Grievant's violations did not cause Borough any harm. Thus, the arbitrator determined Grievant's actions did not constitute "just cause," warranting the termination of his employment. As a result, the arbitrator ordered Borough reinstate Grievant with back pay and seniority.
Thereafter, Borough filed a petition to vacate the award with the trial court. After argument, the trial court denied Borough's request and confirmed the award. Borough appealed to this Court.
II. Issues
On appeal, Borough contends the arbitrator exceeded his authority under the CBA by basing his decision on issues he raised on his own motion. Specifically, Borough asserts the arbitrator improperly considered whether Borough Council had statutory and contractual authority to order that Grievant maintain daily activities logs and investigate two instances of police misconduct. Furthermore, Borough argues the arbitrator misapplied the Code and relevant case law defining the duties of Borough Council and the mayor, and, in doing so, he misappropriated Borough Council's managerial authority to the mayor.
Under Act 111, our review of a grievance arbitration award is in the nature of a narrow certiorari limited to issues concerning: (1) the jurisdiction of the arbitrator; (2) the regularity of the proceedings; (3) the arbitrator exceeding his powers; and, (4) the deprivation of constitutional rights. Pa. State Police v. Pa. State Troopers' Ass'n (Bentancourt), 540 Pa. 66, 656 A.2d 83 (1995). Under this standard, an error of law alone does not warrant reversal. Id. --------
III. Discussion
An arbitrator may only decide those issues that are presented by the parties. City of Phila. v. Fraternal Order of Police, Lodge No. 5, 717 A.2d 609 (Pa. Cmwlth. 1998). An arbitrator cannot decide issues that are not submitted before him on the grounds that he thinks an issue should be addressed to put everything right or construct a better contract. Marple Twp. v. Del. Cnty. F.O.P. Lodge 27, 660 A.2d 211 (Pa. Cmwlth. 1995). Under this narrow certiorari, an arbitrator is required to limit his review of the submitted issues, to the positions of the parties, and to provide only such relief as is requested. Id.
An arbitrator's erroneous interpretation of "just cause" is, at most, a mere error of law that cannot be grounds for reversal. See City of Phila. v. Fraternal Order of Police, Lodge No. 5, 558 A.2d 163 (Pa. Cmwlth. 1989). Although an arbitrator's legal error alone will not support a reversal, where the arbitrator infringes on an employer's managerial prerogative, the arbitrator exceeds his authority. Schuylkill Haven Borough v. Schuylkill Haven Police Officers Assoc., 914 A.2d 936 (Pa. Cmwlth. 2006). Furthermore, an arbitrator cannot mandate an employer carry out an illegal act or require it do what it could not do voluntarily. City of Scranton v. E.B. Jermyn Lodge No. 2 of the Fraternal Order of Police, 903 A.2d 129 (Pa. Cmwlth. 2006).
Here, the issue presented before the arbitrator was whether Borough had just cause to terminate Grievant's employment based on his insubordinate conduct. Reproduced Record (R.R.) at 6a. As to Grievant's refusal to maintain daily activity logs and to investigate police misconduct, the arbitrator determined Borough lacked just cause based on three grounds: 1) Borough Council lacked statutory authority to impose such directives; 2) Borough Council lacked contractual authority to impose a record keeping duty without first bargaining with Union; and, 3) Grievant's actions caused no harm to Borough.
As is customary in Act 111 grievance arbitration, no stenographic record was created of the arbitrator's hearings. See City of Phila. v. Fraternal Order of Police Lodge No.5 (Breary), 604 Pa. 267, 985 A.2d 1259 (2009). Thus, we consider the arbitrator's opinion, Borough's petition to vacate, and the Union's response thereto, to determine what issues the parties raised before the arbitrator.
Upon review, we discern that neither party asked the arbitrator to consider whether the Borough lacked just cause on the grounds that Borough Council did not have statutory or contractual authority to issue the underlying directives to Grievant. Thus, the arbitrator lacked jurisdiction to raise these issues on his own motion. See Marple Twp., 660 A.2d at 215 ("an arbitrator does not have a roving commission to do what he or she believes is necessary to put everything right").
However, the arbitrator also determined Borough lacked just cause to terminate Grievant's employment because his violations of Borough Council's directives did not cause Borough any harm. R.R. at 14a. The question of whether a finding of just cause under the CBA requires a showing of harm to an employer is a legal question for the arbitrator. See City of Phila. v. Fraternal Order of Police, Lodge No. 5, 558 A.2d 163 (Pa. Cmwlth. 1989). Therefore, at most, a definition of just cause could amount to an error of law, which cannot be grounds to reverse an award. Int'l Ass'n of Firefighters Local 1400 v. Chester City Firefighters, 991 A.2d 1001 (Pa. Cmwlth. 2010).
Here, the CBA does not define just cause. R.R. at 98a-100a, 105a-106a. The arbitrator reasoned Borough cannot establish just cause sufficient to impose the discipline of job termination without establishing some record of harm to Borough as a result of Grievant's insubordinate conduct. R.R. at 14a-15a. In finding none, the arbitrator determined Borough could not justify terminating Grievant's employment. Id. The arbitrator's definition of just cause and his application of that definition are beyond our review. See Int'l Ass'n of Firefighters Local 1400. As such, the trial court did not err in determining the arbitrator acted within his authority when defining and applying the just cause standard. In sum, because we cannot review the legal soundness of the arbitrator's definition, Borough's argument is meritless.
Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 9th day of November, 2012, the order of the Court of Common Pleas of Delaware County is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge