Opinion
No. 935 C.D. 2014
07-09-2015
Frazer Township, Appellant v. Frazer Township Police Association
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Frazer Township (Township) appeals from the Order of the Court of Common Pleas of Allegheny County (trial court) denying the Township's Petition to Vacate Arbitration Award. The Arbitration Award sustained a grievance filed by the Frazer Township Police Association (Association) pursuant to what is commonly called Act 111, contesting the termination of Corporal Justin Bouch (Bouch) from the Township Police Department (Department). On appeal, the Township argues that: (1) the trial court erred in concluding that the Arbitration Award's reinstatement of Bouch with the Department did not violate public policy; and (2) the Arbitration Award should be vacated because it is illegal and in excess of the Arbitrator's authority. Because there are no grounds for vacating the Arbitration Award under the narrow certiorari review employed in reviewing Act 111 arbitration awards, we are constrained to affirm the Order of the trial court.
Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1-217.10. Act 111 applies only to police and fire personnel. Section 1 of Act 111, 43 P.S. § 217.1
During Bouch's employment with the Department, Bouch moonlighted as a security guard at a movie theatre. (Trial Ct. Op. at 2.) Bouch appeared in full police officer uniform while working the security detail and was paid directly by the movie theatre. Due to concerns about potential liability related to the security detail, the Township mandated that Bouch discontinue his work as a security guard. (Trial Ct. Op. at 2.) Soon after, in early June 2011, the Department's Chief of Police (Chief) informed Bouch that he could make up some of the lost compensation by "participating in pre-trial proceedings with representatives of the [D]istrict [A]ttorney's office." (Trial Ct. Op. at 2.) Following Bouch's conversation with the Chief, Bouch requested compensation for each of three, four hour pre-trial conferences, which he did not attend. (Trial Ct. Op. at 3.) Rather than attend the pre-trial conferences, Bouch merely submitted the necessary documentation to the District Attorney by fax. (Trial Ct. Op. at 3.)
Because Bouch was paid additional compensation for pre-trial proceedings that he did not actually attend the Township terminated Bouch's employment, by letter, in August 2011. (Arbitrator Decision at 1.) The letter specifically stated that Bouch was terminated for falsifying the Township's time records, failing to follow the Chief's orders regarding the recordation of time, stealing compensatory time to which he was not entitled, and lying to the Chief. (Arbitrator Decision at 1-2.) The Association filed a grievance to contest Bouch's termination under the Collective Bargaining Agreement (CBA) between the Township and the Association, in effect from July 1, 2009 through December 31, 2012, and the matter progressed to arbitration. (Arbitrator Decision at 2.)
The Arbitrator Decision is located in the reproduced record at pages 29a-46a.
On May 15, 2012, the Arbitrator conducted a hearing. The Township presented the Chief as a witness. (Arbitrator Decision at 2-3.) The Chief stated that, after Bouch's theatre detail was cut, he explained to Bouch that Bouch could gain additional compensation by attending the pre-trial proceedings. (Arbitrator Decision at 4.) However, the Chief testified that, "he never gave anyone permission to attend the pre[-]trial with a fax and claim two or four hours" of compensation. (Arbitrator Decision at 3.)
The Chief stated that he was informed in July 2011 that Bouch submitted a time sheet requesting compensation for pre-trial proceedings that Bouch did not actually attend. (Arbitrator Decision at 3.) After this was brought to the Chief's attention, he notified the Township Supervisors. (Arbitrator Decision at 3.) The Chief testified that he completely trusted Bouch and never checked his time sheets to determine if he actually attended the pre-trial proceedings. (Arbitrator Decision at 4.) The Chief also noted that he asked Bouch if he attended the pre-trial proceedings and that Bouch said he attended. (Arbitrator Decision at 3.)
On cross-examination the Chief stated that, when Bouch was upset about losing compensation for the theatre detail, he explained to Bouch that he could attend the pre-trial hearings. (Arbitrator Decision at 5.) The Chief noted that Bouch "had a very good record, but after [Bouch was] terminated[,] he found out some other things." (Arbitrator Decision at 5.) On cross-examination, the Chief also explained the process by which time sheets are approved. (Arbitrator Decision at 5.) He stated that the policy regarding the faxing of information to the District Attorney's office was not memorialized and that he was looking into the issue. (Arbitrator Decision at 5.) The Chief also explained that "[Bouch] was terminated because he claimed time he did not work" and that "he gave no one permission to claim time for faxing." (Arbitrator Decision at 5.) The Chief further asserted that only Bouch and one other officer misunderstood the pre-trial attendance policy. (Arbitrator Decision at 5.) He noted that most officers fax the relevant information rather than attend the pre-trial proceedings and that there is currently not a policy in place regarding whether officers must attend the proceedings or may fax the relevant information. (Arbitrator Decision at 5.)
Next, the Association presented Bouch as a witness. Bouch stated that the Chief hired him in 2008 and later promoted him to Corporal. (Arbitrator Decision at 5-6.) Bouch noted that he was the shift supervisor and had never been reprimanded until this incident. (Arbitrator Decision at 6.) He claimed that he was confused about the pre-trial policy. (Arbitrator Decision at 6.) In particular, Bouch stated that, in a car ride with the Chief, the Chief told him to put down four hours for pre-trial proceedings, but that "the Chief did not tell him [that] he had to go to the court house." (Arbitrator Decision at 6.) Bouch asserted that, following the ride, he prepared the time sheets requesting a total of 12 hours of compensation for sending three faxes, and that he had only claimed compensation for sending faxes on those three occasions. (Arbitrator Decision at 6.) Bouch claimed that he requested compensation for sending those three faxes at the Chief's direction. (Arbitrator Decision at 6.) Moreover, Bouch asserted that the incident arose due to a misunderstanding, he was confused about the faxing policy, and that he could not recall ever attending a pre-trial proceeding. (Arbitrator Decision at 6.) Bouch also contended that "he did not ask the Chief for the policy" and that "he believed the Chief had the power and authority to decide how many hours to put down." (Arbitrator Decision at 6.) His decision to request compensation was based on the Chief's statement that he could get Bouch "four hours for pre[-]trial." (Arbitrator Decision at 6.) Bouch stated that he was unsure why he was terminated. (Arbitrator Decision at 6.)
On cross-examination, Bouch claimed that "he did not tell the Chief he went downtown for the pre[-]trial and [that] the Chief did not ask him." (Arbitrator Decision at 7.) Bouch also admitted that, on the three occasions in question, he faxed the information rather than attend the pre-trial proceedings. (Arbitrator Decision at 6.)
The Arbitrator reviewed the record and concluded that Bouch "faxed pre[-] trial documents to the District Attorney's office on at least three occasions" and that he requested to be paid for four hours for each occasion even though it took him only fifteen minutes to fax the documents. (Arbitrator Decision at 15.) The Arbitrator also found that the Chief instructed Bouch to request compensation for pre-trial work and that Bouch "followed what other officers in the [D]epartment were doing related to this kind of work and compensation." (Arbitrator Decision at 15.)
Although the Township asserted that, because there was no just cause termination provision in the CBA it had "the unilateral and exclusive right to discipline [officers]," the Arbitrator determined this right was not unlimited and that "[m]anagement cannot act in an arbitrary manner," but must have "some basis for issuing discipline." (Arbitrator Decision at 14.) The Arbitrator further noted that "management needs to have a reasonable basis for issuing discipline" and that, while the just cause standard has been used in arbitration, "whatever standard may be used will necessitate management providing a basis or justification for its disciplinary action." (Arbitrator Decision at 14.) The Arbitrator determined that such a justification was required in the instant matter. (Arbitrator Decision at 14.)
The Arbitrator concluded that "[t]he record fails to show a policy is in place to prohibit the conduct for which [Bouch] was accused" and that Bouch "was only provided with verbal direction on how to handle the pre[-]trial matters." (Arbitrator Decision at 15.) The Arbitrator noted that Bouch alleged he followed the same protocol as other officers in the Department and that there was no evidence that other officers were "disciplined for engaging in the same" conduct as Bouch. (Arbitrator Decision at 16.) Thus, the Arbitrator concluded that the Township should not have disciplined Bouch. (Arbitrator Decision at 16.) Specifically, the Arbitrator determined that Bouch "was not aware his actions of requesting time for faxing documents more than the actual time it took him to fax would lead to discipline." (Arbitrator Decision at 16.) Moreover, the Arbitrator determined that Bouch "was instructed by the Chief that the pre[-]trial hearings were an opportunity for [Bouch] to make up lost income from another source" and that Bouch's time sheets, which requested compensation for faxing documents, were approved through the regular procedure. (Arbitrator Decision at 16.)
The Arbitrator further concluded that, "had a policy been in place which addressed such pre[-]trial matter[s,] that the Township would have been permitted to discipline" Bouch. (Arbitrator Decision at 16.) According to the Arbitrator, Bouch appeared to have followed the Chief's direction in making up lost income with pre-trial proceedings. (Arbitrator Decision at 16.) Because Bouch was unaware that his conduct could lead to discipline, the Arbitrator concluded that "the Township should not have taken disciplinary action against him." (Arbitrator Decision at 16.) Therefore, the Arbitrator concluded that "the Township did not have a basis for discharging" Bouch. (Arbitrator Decision at 16.) The Arbitrator mandated that Bouch "be returned to work and be made whole for all losses he incurred," but awarded the Township "an offset for any wages or supplemental payments received by [Bouch] from the date of his termination until he [was] returned to work." (Arbitrator Award.)
On appeal, the trial court relied on principles first set forth by our Supreme Court in Westmoreland Intermediate Unit # 7 v. Westmoreland Intermediate Unit # 7 Classroom Assistants Educational Support Personnel Association, PSEA/NEA, 939 A.2d 855 (Pa. 2007), in rendering its decision. In Westmoreland Intermediate Unit # 7, our Supreme Court addressed a grievance arbitration award brought under the Public Employe Relations Act (PERA). Id. at 857. In that case, because the grievance was filed pursuant to PERA, our Supreme Court employed the "essence test" scope of review in reviewing the arbitration award, rather than the narrow certiorari scope of review applicable to Act 111 cases. Id. at 863. The Supreme Court concluded that, although the "essence test" is a highly deferential scope of review, there is a narrow exception: if the arbitration award "violates some explicit public policy, then the award cannot be enforced." Id. at 864. Here, based on this narrow exception, the trial court concluded that the analysis to be applied in "a challenge to a labor-arbitration decision involving a public employer is . . . whether the challenged award contravenes a well-defined, dominant public policy that is ascertained by reference to the laws and legal precedents." (Trial Ct. Op. at 3 (emphasis added).)
Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101-1101.2301.
Under the two part essence test employed in reviewing arbitration awards involving public employees not covered by Act 111, the court first "determine[s] if the issue as properly defined is within the terms of the collective bargaining agreement. Second, if the issue is embraced by the agreement, and thus, appropriately before the arbitrator, the arbitrator's award will be upheld if the arbitrator's interpretation can rationally be derived from the collective bargaining agreement." Westmoreland Intermediate Unit # 7, 939 A.2d at 863.
The trial court determined that, where an arbitration award tolerates conduct that "has been broadly regarded by the public at large as intolerable on the part of such employees," the award is not entitled to deference. (Trial Ct. Op. at 4.) Although the Township argued that the Arbitration Award should be overturned because Bouch was a liar and a thief, the trial court concluded that the Arbitrator did not deem Bouch dishonest, but, rather, determined that Bouch believed his conduct was consistent with the general practices of the Department. The trial court noted that the Arbitrator concluded that the Township had not met its evidentiary burden of demonstrating that Bouch engaged in prohibited conduct and that Bouch had not violated a known policy of the Township. (Trial Ct. Op. at 4.) Finally, the trial court concluded that, although the Township disputed the Arbitrator's Decision, "[a] dispute that is fundamentally a disagreement over the sufficiency of proof of the underlying allegations of wrongdoing does not, however, state a case for setting aside an arbitration opinion on public policy grounds." (Trial Ct. Op. at 5.) Thus, the trial court denied the Petition to Vacate Arbitration Award. The Township has now appealed to this Court.
We first address whether the trial court applied the correct scope of review in employing the public policy exception for its review of the Arbitration Award. The Township argues that the trial court correctly recognized that a public policy exception applies to appellate review of Act 111 arbitration awards, but incorrectly concluded that Bouch's conduct did not violate public policy. The Township maintains that Bouch's falsification of time records clearly violated the public trust and that reinstating an officer who has acted dishonestly increases the risk to the public, brings disrespect to the force, and makes it more difficult for other officers to carry out their duties. The Township argues that because the Arbitration Award contravenes public policy it should be vacated.
The Township also argues that the Association waived its ability to contest the scope of review used by the trial court because the Association did not file a cross appeal. However, because the Association prevailed before the trial court, it was not required to file a cross appeal and has not waived the arguments raised in its brief regarding the proper scope of review in Act 111 cases. McWreath v. Department of Public Welfare, 26 A.3d 1251, 1258 n.6 (Pa. Cmwlth. 2011); see also Note to Rule 511 of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 511 (stating that "an appellee should not be required to file a cross appeal because the court below ruled against it on an issue, as long as the judgment granted appellee the relief it sought").
In reviewing Act 111 arbitration awards, reviewing courts are limited to a narrow certiorari scope of review. Pennsylvania State Police v. Pennsylvania State Troopers' Association (Betancourt), 656 A.2d 83, 89-90 (Pa. 1995). This limits reviewing courts to questions concerning only four areas: "(1) the jurisdiction of the arbitrators; (2) the regularity of the proceedings; (3) an excess of the arbitrator's powers; and (4) deprivation of constitutional rights." Id. at 90. Regarding what constitutes "an excess of the arbitrator's powers," our Supreme Court has determined that "[a]n arbitrator's powers are limited. He or she may not mandate that an illegal act be carried out; he or she may only require a public employer to do that which the employer could do voluntarily." Id. In addition, "the award must encompass only terms and conditions of employment and may not address issues outside of that realm." Id. However, "[a]n error of law alone will not warrant reversal under the narrow certiorari scope of review." Id. (emphasis added).
This Court has also opined on the relevant standard of review when reviewing Act 111 arbitration awards. Pennsylvania State Police v. Pennsylvania State Troopers Association, 840 A.2d 1059, 1062 (Pa. Cmwlth. 2004). We determined that:
[w]here resolution of the issue turns on a pure question of law, or the application of law to disputed facts, our review is plenary. However, where it depends upon fact-finding or upon interpretation of the collective bargaining agreement, we apply the extreme standard of deference applicable to Act 111 awards; that is, we are bound by the arbitrator's determination of these matters even though we may find them to be incorrect.
In Pennsylvania State Police v. Pennsylvania State Troopers Association (Smith & Johnson), 741 A.2d 1248, 1252 (Pa. 1999), which involved two consolidated cases, our Supreme Court determined that there is no public policy exception to the narrow certiorari scope of review. In the first case, Officer Smith spent the afternoon drinking at a bar. Smith & Johnson, 741 A.2d at 1250. Later, Officer Smith encountered his ex-girlfriend and, following an argument over money, "jamm[ed] his loaded, police-issued weapon into [her] mouth and threaten[ed] to kill her." Id. Due to Officer Smith's actions, the Pennsylvania State Police (State Police) notified him that he was dismissed from the force. Id. Officer Smith filed a grievance, which proceeded to arbitration. Id. The arbitrator focused on how the discipline "meted out to Smith compared to discipline imposed on other troopers." Id. The arbitrator "concluded that since Smith's action were less egregious than actions committed by troopers whom the State Police had merely suspended, the[] dismissal of Smith was inappropriate" and, consequently, ordered his immediate reinstatement. Id. In the second case, Officer Johnson was reinstated by the arbitrator after the State Police dismissed him for committing retail theft. Id.
Our Supreme Court concluded that the arbitrators had not exceeded their powers in reinstating the officers. Id. at 1252. The Supreme Court first determined that the officers' reinstatement "did not mandate that the State Police perform an illegal act," and "clearly related to the terms and conditions of employment." Id. The State Police, however, argued that the arbitrators had exceeded their powers "by issuing an order which contravenes 'public policy.'" Id. The Supreme Court stated:
We are unable to accept this position. 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.
We emphasize that these matters are not, as the State Police implies, about whether this court finds the reinstatement of these troopers to be repugnant. Rather, they concern the application of existing legislation. If we were to broaden the narrow certiorari scope of review to the extent propounded by the State Police, we would not be interpreting Act 111 but rather would be rewriting it. Clearly, such a legislative function is denied to the judiciary.Id. at 1252-53 (emphasis added) (footnotes omitted).
Thereafter, in City of Scranton v. E.B. Jermyn Lodge No. 2 of Fraternal Order of Police, 903 A.2d 129, 135 (Pa. Cmwlth. 2006), this Court reiterated that there is no public policy exception to narrow certiorari review of Act 111 arbitration awards. In that case, the City of Scranton argued that an arbitration award should be overturned because the arbitrator had exceeded his powers by issuing an order that violated public policy. City of Scranton, 903 A.2d at 134. We held that, although the public policy exception applies to the essence test review of arbitration awards, "in an arbitration award involving Act 111 bargaining units, the narrow certiorari test, not the essence test, is used to review those awards [and that t]his test is much more circumscribed than the essence test." Id. at 135. Relying on the Smith & Johnson decision, we concluded that what constitutes an excess of the arbitrator's powers under the narrow certiorari 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 . . . an illegal act . . . or requires a public employer to do that which the employer could not do voluntarily." City of Scranton, 903 A.2d at 135 (emphasis added). Thus, we upheld the trial court's order denying the petition to vacate the arbitration award. Id. at 136. See also Pennsylvania State Police v. Pennsylvania State Troopers Association, 902 A.2d 599, 602 (Pa. Cmwlth. 2006) (where following state trooper's reinstatement after his dismissal for placing a custodial worker in a headlock and pointing a loaded gun at his head, this Court relied on Smith & Johnson in declining to expand the narrow certiorari scope of review to include a public policy exception).
Contrary to the trial court's determination, our Courts have mandated that there is no public policy exception to the narrow certiorari scope of review for Act 111 cases. Therefore, in reviewing the Arbitration Award this Court must not question whether the Arbitrator's decision was unwise, manifestly unreasonable, or against public policy, but must limit itself to a narrow certiorari scope of review. City of Scranton, 903 A.2d at 135.
The Township argues that, under the narrow certiorari review, the Arbitration Award should be vacated because the Arbitrator exceeded his authority for two reasons: 1) the award is contrary to law; and 2) the award went beyond the four corners of the CBA. First, the Township contends that Bouch's falsification of time sheets constituted a criminal violation and since the Arbitration Award, therefore, permits police officers to commit criminal acts, it is illegal, contrary to law, and should be vacated. Second, the Township argues that the CBA contains no "just cause" termination provision and, therefore, it is permitted to terminate employees for legitimate reasons. Because the Township's right to terminate employees was not limited by any part of the CBA, the Arbitrator went beyond the four corners of the CBA, thus exceeding his authority in reinstating Bouch.
Because the Township does not allege that the Arbitrator lacked jurisdiction to issue the Arbitration Award, that its constitutional rights were deprived, or that the arbitration proceedings were irregular, the sole question before this Court is whether the Arbitrator exceeded his authority in reinstating Bouch with the Department. Betancourt, 656 A.2d at 90. The Township is correct that the Arbitrator would have exceeded his powers if the Arbitration Award mandated that the Township carry out an illegal act, id.; however, Bouch was never convicted of a crime for requesting compensation for hours not worked, and the Township has not demonstrated that Bouch's reinstatement is illegal. Therefore, this is not sufficient to show an illegal act.
The Township also argues that the Arbitrator exceeded his authority because he "grant[ed] an award that addresses issues beyond the scope of the collective bargaining agreement or that extends beyond the terms and conditions of the employment." Township of Ridley v. Fraternal Order of Police Lodge No. 27, 718 A.2d 872, 874 (Pa. Cmwlth. 1998).
Under Article II of the CBA:
The Township has and retains all management rights and functions to manage the Township and the employees covered by [the CBA] . . . It is understood and agreed that the Township, at its sole discretion, shall have and retain, solely and exclusively, in accordance with applicable laws, all managerial responsibilities including, but not limited to, the right to manage all operations; . . . to reprimand, suspend, discharge, take other disciplinary action or otherwise relieve employees from duty for lack of work or other legitimate reasons . . .(CBA at Art. II, § 1, R.R. at 20a (emphasis added).) Article III of the CBA, however, provides, in relevant part, as follows:
Grievances within the meaning of this Article shall consist of disputes regarding the interpretation or application of this Agreement, all matters of discipline and all matters involving the Heart and Lung Act, 53 P.S. § 637, as amended.(CBA at Art. III, § 1, R.R. at 21a (emphasis added).) Where the Association "disagrees with the disposition of the grievance," the dispute may proceed to arbitration. (CBA Art. III, § 2, Step 3, R.R. at 22a.) The Arbitrator must "confine his or her decision solely to the application and interpretation of" the CBA, but the Arbitrator's Decision "shall be final and binding." (CBA Art. III, § 3, R.R. at 22a (emphasis added).)
In the instant matter, the CBA specifically grants the Arbitrator authority to resolve grievances involving matters of discipline, such as termination. While the CBA permits the Township to relieve officers from duty for legitimate reasons, the CBA also grants the authority to the Arbitrator to determine whether the Township did, in fact, have a legitimate reason for terminating an officer. The Township argues that the Arbitration Award went beyond the four corners of the CBA by creating a "just cause" termination policy where there is none. The Arbitrator, however, did not create a "just cause" standard, but merely concluded that, "the Township did not have a basis for discharging the grievant" because Bouch was unaware that he would be disciplined for his actions, Bouch was instructed by the Chief that he could gain additional compensation through pre-trial hearings, Bouch followed what other officers in the Department were doing, other officers were not disciplined for similar behavior, and the Township did not have a policy in place to address pre-trial matters. (Arbitrator Decision at 16 (emphasis added).)
Although the Township disagrees with the Arbitrator's determination regarding whether a legitimate reason for Bouch's termination existed, in reviewing the Arbitration Award under our narrow certiorari scope of review, we may not "question the reasonableness of an arbitrator's interpretation of a collective bargaining agreement." Township of Ridley, 718 A.2d at 874. Moreover, in instances such as here, where the Arbitrator's conclusion "depends upon fact-finding or upon interpretation of the collective bargaining agreement . . . we are bound by the arbitrator's determination of these matters even though we may find it to be incorrect." City of Pittsburgh v. Fraternal Order of Police Fort Pitt Lodge No. 1, (on-duty and off-duty pay for events), 111 A.3d. 794, 800 (Pa. Cmwlth. 2015) (quotation omitted). In reinstating Bouch, the Arbitrator did not grant an award that went beyond either the scope of the CBA or the terms and conditions of employment. Township of Ridley, 718 A.2d at 874. Thus, the Arbitrator did not exceed his authority in reinstating Bouch.
Accordingly, for the foregoing reasons, the Order of the trial court denying the Township's Petition to Vacate Arbitration Award is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, July 9, 2015, the Order of the Court of Common Pleas of Allegheny County, entered in the above-captioned matter, is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge