City of Philadelphia v. FOP, Lodge 5 ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia, :
:
Appellant :
:
v. : No. 1243 C.D. 2021
: Argued: March 6, 2023
Fraternal Order of Police, :
Lodge #5 :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: June 28, 2023
The City of Philadelphia (Employer) appeals from an order of the
Philadelphia County Court of Common Pleas (trial court) that denied Employer’s
petition to vacate an arbitration award (arbitration award). At issue is Employer’s
dispute with the Fraternal Order of Police, Lodge #5 (Union) over whether Arbitrator
James Darby (arbitrator) exceeded his authority when he reduced a 30-day
suspension to a 5-day suspension for police officer James McGorry (Grievant) for a
single rule violation, after he found that Employer failed to prove that it had just
cause to discipline Grievant for repeated rule violations. Employer presents two
questions for review: (1) whether the trial court erred in denying Employer’s petition
to vacate an arbitration award where the arbitrator exceeded his authority by
imposing a five-day suspension for an offense Employer did not charge against
Grievant; and (2) whether the trial court erred in remanding the dispute to the
arbitrator to remove reference to the new disciplinary charge while leaving the five-
day suspension intact. After careful review, we affirm.
The facts as found by the arbitrator are as follows and are not in dispute.
Grievant began working for Employer’s Police Department (Department) as a police
officer in 2006, and he had a good employment record until the incidents in question
here. Reproduced Record (R.R.) at 44a.1 On July 13, 2018, while Grievant and
another officer were serving an arrest warrant on Chanel Freeman (C.F.), Grievant
took C.F.’s cell phone number and contacted her a few days later, and they began a
consensual romantic and sexual relationship that lasted a few weeks. Id. at 45a.
Their relationship involved a few dates and hundreds of text exchanges, including
sexually graphic pictures. Id. at 45a.
On August 22, 2018, C.F. filed a complaint with the Department’s
internal affairs division, alleging that Grievant sexually assaulted her and informed
her he would “look into her case for her.” R.R. at 45a. The Department’s
investigation revealed that Grievant texted C.F. while he was on duty, in which he
asked C.F. “to come out of the back of her residence and give him a hug.” Id. While
searching Grievant’s personal cell phone, the Department discovered 38 crime scene
photos and videos, which included images of firearms, narcotics, victims that were
shot, and deceased persons, some of which were from active crime scenes that
Grievant had worked on, and some of which were sent to him by other officers. Id.
1
Pa.R.A.P. 2173 states: “Except as provided in Rule 2174 (tables of contents and
citations), the pages of . . . the reproduced record . . . shall be numbered separately in Arabic
figures and not in Roman numerals: thus 1, 2, 3, etc., followed in the reproduced record by a small
a, thus 1a, 2a, 3a, etc.” Although the pagination of Employer’s Reproduced Record does not
conform to the foregoing Rule, we will cite to the relevant pages as required by the Rule. The
arbitration award may be found in the Reproduced Record (R.R.) at 43a-53a.
2
Grievant conceded that once he had the opportunity to review the photos, he should
have deleted them, which he did not do. Id.
On July 29, 2019, the Department issued its investigative report, in
which it concluded that C.F.’s sexual assault claim was unfounded and that Grievant
had not committed any crimes. R.R. at 46a. However, the Department found that
Grievant’s actions violated several of the Department’s rules and regulations. Id.
Specifically, the Department determined that Grievant had abused his authority by
engaging in a romantic relationship with C.F., had violated the Department’s social
media policy by texting C.F. while he was on duty, and had violated Department
Directive 4.1: Responsibilities at Crime Scenes (Directive 4.1), by using his personal
cell phone to record crime scenes and evidence.2 Id. After a Police Board of Inquiry
hearing, the Department determined that Grievant should be reprimanded for neglect
of duty (for texting C.F. while on duty), suspended for 5 days without pay for
conduct unbecoming (relating to his relationship with C.F.), and suspended for 30
days without pay for conduct unbecoming (for repeated violations of Directive 4.1
2
The arbitrator noted that Directive 4.1 prohibits officers from using their personal cell
phones to record crime scenes and evidence. R.R. at 46a. The arbitrator described Directive 4.1,
in relevant part, as follows:
F. The use of privately owned cell phone cameras, cameras, video
recorders or any other electronic recording device to record crime
scenes, potential evidence, suspects, offenders[,] or victims while on
duty will only be used in exigent circumstances when departmental
equipment is unavailable and there is no other means to record the
item or event.
1. Use of non-departmental equipment by employees will be
documented on the investigation report by the employee.
Id. at 47a, 51a. The full text of Directive 4.1 is not included in either the Reproduced Record or
the Original Record, but the parties do not dispute the arbitrator’s description of Directive 4.1.
3
relating to his personal cell phone containing numerous crime scene photos and
videos). Id. On January 3, 2020, the Police Commissioner notified Grievant that
she was imposing the reprimand recommended by the Police Board of Inquiry for
neglect of duty, a 5-day suspension for conduct unbecoming for his relationship with
C.F. as an abuse of authority,3 and a 30-day suspension for conduct unbecoming for
repeated violations of Directive 4.1 for keeping crime scene photos and videos on
his personal cell phone. Id.
On February 13, 2020, the Union filed a grievance alleging that
Employer’s discipline lacked just cause, which Employer denied. R.R. at 43a. The
grievance proceeded to arbitration before the arbitrator, who held a virtual hearing
on March 2, 2021, during which the parties were represented by counsel and
presented testimony, evidence, and arguments. Id. at 44a. The parties stipulated to
the following issue to be resolved by the arbitrator: “Did [Employer] have just cause
to discipline [] Grievant []? If not, what shall the remedy be?” Id.
At the hearing, Employer presented testimony from internal affairs
Sergeant James Lane, who testified that Grievant violated Directive 4.1, because
Grievant admitted he never documented any of his crime scene recordings, and he
did not assert that he needed to make recordings on his personal cell phone due to
exigent circumstances. R.R. at 47a. The Union presented testimony from two police
officers who testified that officers are expected to use their personal cell phones to
perform their official duties because the Department does not provide officers with
cameras to use at crime scenes. Id. These officers also testified that their supervisor
3
Although the arbitrator incorrectly stated in his factual summary that the Police
Commissioner increased the penalty for Grievant’s abuse of authority violation from a 5-day
suspension to a 30-day suspension, the rest of the arbitration award correctly states that Grievant
received a 5-day suspension for this violation. R.R. at 46a, 50a-51a, 52a.
4
had asked them to take pictures with their cell phones at crime scenes to be shared
on social media to show the community that officers were doing their jobs. Id.
Grievant testified that he exercised “poor judg[]ment” by starting a relationship with
C.F., but he denied using his position as an officer to make sexual advances to her.
Id. at 47a-48a.
The arbitrator summarized the parties’ positions, as follows. Employer
argued that Grievant’s discipline was supported by just cause, based on Grievant’s
admissions that he took pictures and videos of crime scenes on his personal cell
phone, used poor judgment in starting a relationship with C.F., and texted C.F. while
on duty. R.R. at 48a. Employer argued that Grievant admitted to taking multiple
photos at crime scenes, which supported its charge of repeated violations of
Directive 4.1 under Section 1-§020-10 of the Department’s Disciplinary Code
(Disciplinary Code) for repeated rule violations.4 Id. The Union responded that
there was no just cause for Employer’s discipline. Id. The Union contended that
Section 1-§020-10 of the Disciplinary Code should not apply to Grievant because he
was never counseled that keeping crime scene images on his personal cell phone
violated Departmental rules. Id. at 48a-49a. The arbitrator found that here, “the
evidence shows that many of Grievant’s colleagues and superiors knew that his cell
phone contained such videos and pictures and encouraged him to keep taking
pictures for law enforcement and publicity purposes.” Id. at 49a. The Union also
argued that Employer failed to prove that Grievant abused his authority by entering
into a relationship with C.F. because there was no evidence Grievant used his
4
The Disciplinary Code is part of the Collective Bargaining Agreement (CBA) between
Employer and the Union. R.R. at 55a-243a. Section 1-§020-10 of the Disciplinary Code prohibits
“[r]epeated violations of any Departmental rules or regulations,” where the first offense is
punishable by a 30-day suspension or dismissal, and the second offense is punishable by dismissal.
Id. at 215a.
5
authority to force C.F. to do anything. Id. The Union further claimed that Employer
should have counseled Grievant rather than reprimanding him over a de minimis
violation of the social media policy, given Grievant’s exceptional record. Id.
The arbitrator concluded that Employer had just cause to reprimand
Grievant for neglect of duty by violating the Department’s social media policy,
based on Grievant’s admission that he texted C.F. during work hours to come outside
and give him a hug. R.R. at 50a. The arbitrator also determined that Employer had
just cause to suspend Grievant for five days for conduct unbecoming, based on his
admitted relationship with C.F. Id. at 51a. The arbitrator further found that although
the relationship was consensual, Grievant “clearly used his position as an arresting
officer to obtain [C.F.’s] phone number and pursue a relationship with her.” Id. at
50a. The arbitrator concluded that Grievant’s behavior “clearly created an
appearance that he was compromising his position as a police officer and/or creating
a conflict with his sworn duties.” Id. at 51a.
As to the charge of conduct unbecoming for repeated violations of
Directive 4.1, the arbitrator found that Grievant admitted to taking crime scene
photos and videos on his personal cell phone, which is a violation of Directive 4.1.
R.R. at 51a. The arbitrator concluded that even if other officers took crime scene
photos on their cell phones, or Grievant’s supervisors asked for such images, it does
not explain why Grievant had failed to delete them from his cell phone or document
them in his reports, as required by Directive 4.1. Id. The arbitrator was not
persuaded that Grievant was unaware of this rule, as all officers are expected to be
familiar with Departmental rules and regulations. Id. at 52a.
6
However, the arbitrator concluded that the Department failed to prove
that Grievant repeatedly violated Directive 4.1, because it never called the violations
to Grievant’s attention. On this point, the arbitrator concluded as follows:
However, in light of the undisputed evidence that
Grievant’s superiors did not call to his attention his open
and notorious failure to abide by Directive 4.1, it would be
unfair to sustain [Employer’s] finding that he should be
punished for repeatedly violating [] Directive [4.1]. Had
management brought this violation to his attention sooner
there is no evidence [] Grievant would have refused to
bring himself within full compliance with Directive 4.1.
R.R. at 52a.
Accordingly, the arbitrator sustained in part and denied in part the
Union’s grievance. R.R. at 52a. The arbitrator concluded that Employer had just
cause to reprimand Grievant for violating the social media policy and had just cause
to impose a five-day suspension on Grievant for abuse of authority. Id. As to the
violation of Directive 4.1, the arbitrator concluded:
[W]hile [Employer] had just cause to discipline []
Grievant for violating Directive 4.1, it did not have just
cause to do so for repeatedly violating the same. Thus,
that portion of the 30-day suspension imposed for
repeatedly violating Directive 4.1 shall be reduced to a [5]-
day suspension without pay (for a violation of Section 5-
§011-10, Neglect of Duty), for a total [10]-day suspension
without pay.
Id. at 52a, 53a.
Employer filed a petition to vacate the arbitration award with the trial
court, limited to the issue of whether the arbitrator exceeded his authority when he
reduced Grievant’s suspension from 30 days to 5 days for a single violation of
7
Directive 4.1.5 Trial Court Opinion, 2/2/22, at 1.6 As noted by the trial court,
Employer conceded that although the arbitrator had some discretion, Employer
objected to the form and not the substance of the arbitration award. Id. Following
oral argument, the trial court confirmed the arbitration award, but remanded the
matter to the arbitrator to modify his decision by deleting the parenthetical references
to Grievant’s violation of Section 5-§011-10 of the Disciplinary Code7 for a single
failure to comply with Directive 4.1, but leaving in place the five-day suspension.
Id.
The trial court summarized the facts, focusing on the “repeated
violations” charge. Trial Court Opinion at 2-3. The trial court explained that the
CBA between Employer and the Union was covered by the Policemen and Firemen
Collective Bargaining Act, commonly referred to as Act 111 (Act 111).8 Id. at 4-6.
The trial court further explained that the CBA provides that police officer discipline
must be consistent with Employer’s Home Rule Charter and regulations of the Civil
Service Commission, which vest in the Department the authority to supervise and
discipline its police officers. Id. at 5. These rules provide the Police Commissioner
with discretion to impose discipline on her officers. Id.
5
Employer did not seek to vacate the part of the arbitration award relating to discipline for
the other two charges, so we will not discuss them further.
6
The Trial Court Opinion may be found in the Original Record (O.R.) at 308-19. Because
the Original Record was filed electronically and was not paginated, the page numbers referenced
reflect electronic pagination.
7
Section 5-§011-10 of the Disciplinary Code prohibits any “[f]ailure to comply with any
Police Commissioner’s orders, directives, memorandums, or regulations; or any oral or written
order of superiors[,]” where the first offense is punishable by a reprimand up to a five-day
suspension, with increasing progressive discipline for subsequent offenses. R.R. at 229a.
8
Act of June 24, 1968, P.L. 237, No. 111, as amended, 43 P.S. §§217.1-217.12.
8
The Disciplinary Code specifies that
[p]enalties recommended by either the Police Board of
Inquiry or commanders for offenses listed shall be within
the prescribed limits. The Disciplinary Code shall in no
way limit any penalty which the Police Commissioner
may impose. The Police Commissioner is the final
authority on all disciplinary matters.
Trial Court Opinion at 5; see also R.R. at 207a. Pursuant to the CBA, when police
disciplinary matters are subject to arbitration, the arbitrator does not have authority
to “add to, subtract from[,] or in any way alter the terms of this contract, Act 111
arbitration awards or the scale of wages set forth herein.” Trial Court Opinion at 5;
see also R.R. at 142a.
The trial court summarized the applicable “narrow certiorari” scope of
review applicable to Act 111 grievance arbitrations, discussed more fully below.
Trial Court Opinion at 6-7. Under the applicable scope of review, the trial court
opined that Employer must demonstrate either that the arbitration award does not
involve a term or condition of employment, or that it required Employer to commit
an illegal act. Trial Court Opinion at 8. The trial court rejected Employer’s
argument that disciplinary decisions involve an issue of managerial discretion,
which would remove the issue from the arbitrator’s authority, and held that
employee discipline is a term or condition of employment that is subject to
mandatory bargaining. Id. The trial court was unpersuaded that the arbitrator
intruded on Employer’s managerial functions by imposing his own discipline by
invoking Section 5-§011-10 of the Disciplinary Code (single rule violation), because
Employer did not charge Grievant under that Section. Id. The trial court rejected
Employer’s contention as a “hyper-technical argument” that “lacks merit and
common sense.” Id. The trial court explained that if it accepted Employer’s
9
argument, managerial discretion would “in essence, be capable of swallowing the
entire purpose of Act 111 and the narrow certiorari standard of review.” Id. The
trial court rejected this expansive reading, particularly in light of Employer’s
“concessions at oral argument,” which he summarized as an objection to the “form”
of the arbitrator’s award, and not the result. Id. at 9.
The trial court opined that Employer “conceded at oral argument that
the arbitrator had discretion to reduce [Grievant’s] suspension from 30 days to 5
days for the violation, but the arbitrator did not have discretion to invoke a section
of the [D]isciplinary [C]ode that was not part of the Police Commissioner’s original
punishment.” Trial Court Opinion at 9. The trial court noted the following relevant
exchanges between the court and counsel at oral argument.
[UNION’S COUNSEL]: But the issue here isn’t really
[Grievant] because he’s not a party in the matter. The
issue is the integrity of this award and whether there’s a
basis to appeal it. And I think Your Honor hit on what the
real underlying issue here is when you asked [Employer’s
counsel] whether in your view this is an all or nothing
thing. There’s either just cause for that penalty or that’s
it. So that’s a fundamental disagreement between the
parties. It’s an interpretation of the CBA issue, and that’s
not something that this arbitrator found. He didn’t find
that he was constrained to only mitigate a penalty within
the [D]isciplinary [C]ode charging guidelines attached to
the CBA. [R.R. at 292a-93a.]
[EMPLOYER’S COUNSEL]: The [P]olice
[C]ommissioner’s unfettered discretion to issue discipline
in the direction of personnel is not a matter of collective
bargaining. [R.R. at 297a.]
THE COURT: [Counsel], let me just ask this. [Union
Counsel] just noted, and I see what she referred to, where
the arbitrator dropped in Section 5-[§]011-10 neglect of
duty into the decision and the award. Hypothetically, what
10
if he did not do that? What if he just said it shall be
reduced to a five-day suspension without pay and didn’t
have the parentheticals in there? At the beginning, you
talked about how he just thumbed through and found a
five-day suspension. What if he didn’t reference any other
section there? Would that change the analysis?
[EMPLOYER’S COUNSEL]: Your Honor, we would not
be here before you. I think focusing on the penalty is the
wrong thing. We’re focusing on the disciplinary charges.
That is entirely within the discretion of the [P]olice
[C]ommissioner. If he had just dropped the penalty, it
would be a little bit wacky, but we would not be here
before you. [R.R. at 308a.]
THE COURT: Well, what is the heart of the issue? And
I’m not trying to be flip about it. If you don’t have an issue
with the total of [10] days, [5] plus [5], and you don’t take
issue with the arbitrator’s authority to say, well, I’m not
going to penalize [30]; I’m going to penalize [5], but the
issue is with these [8] words of whatever it is in a
parenthetical, if we excise that from the decision and that
would cure the issue, then what is the heart of the issue?
[EMPLOYER’S COUNSEL]: The heart of the issue that
is the arbitrator exceeded his authority. [R.R. at 309a-
10a.]
Trial Court Opinion at 9-10.
Based on counsel’s statements at oral argument, the trial court “entered
an order that reflected the respective positions of the parties, as understood by [the
court]. This [c]ourt simply instructed the arbitrator to remove his references to
Section 5-§011-10.” Trial Court Opinion at 10. The trial court opined that the
arbitrator was “well within his broad authority to modify the discipline that had been
imposed by the Police Commissioner.” Id. at 11. The trial court rejected Employer’s
argument over the arbitrator’s reference to Section 5-§011-10 as a “nominal detail.”
Id. The trial court concluded that the “arbitrator’s reason for invoking the new
11
disciplinary provision (Section 5-§011-10) is clearly understood in the context of the
entire decision.” Id. The trial court concluded that the arbitrator exercised his
discretion and found that Grievant violated Directive 4.1 “on one occasion,” but
Employer failed to prove he repeatedly violated Directive 4.1. Id. “As a result, the
arbitrator referenced Section 5-§011-10, as opposed to the ‘Repeated Violations’
offense []in Section 1-§020-10.” Id. The trial court rejected Employer’s argument
that an arbitrator must choose “all or nothing” regarding discipline, and instead
concluded that the arbitrator exercised his discretion to “impose what the arbitrator
believes to be a fair punishment based on the facts developed at arbitration.” Id. at
12.
As a result, the trial court concluded that the arbitrator did not exceed
his authority when he modified Grievant’s 30-day suspension to a 5-day suspension,
because the modification was an exercise of the arbitrator’s discretion under the
CBA. Trial Court Opinion at 12. Employer then appealed the trial court’s decision
to this Court.
This Court recently stated and summarized the narrow certiorari scope
of review as follows:
In Act 111 cases, our scope of review is limited to “narrow
certiorari,” which allows inquiry only into: (1) the
jurisdiction of the arbitrator; (2) the regularity of the
proceedings; (3) whether the arbitrator exceeded his
powers; or (4) the deprivation of constitutional rights.
Pennsylvania State Police v. Pennsylvania State
Troopers’ Association (Betancourt), 656 A.2d 83, 90 (Pa.
1995). If an arbitration award cannot be vacated on one of
these bases, then it must be upheld. Id. A mere error of
law is insufficient to support a court’s decision to reverse
an Act 111 arbitrator’s award. Appeal of Upper
Providence Police Delaware County Lodge #27 Fraternal
Order of Police, 526 A.2d 31[5], 322 (Pa. 1987).
12
Uwchlan Township, Pennsylvania v. Uwchlan Township Police Association
(Uwchlan Township) (Pa. Cmwlth., No. 259 C.D. 2020, filed October 9, 2020), slip
op. at 4.9
Further, as long as an arbitrator’s award concerns terms and conditions
of employment and does not require performance of an illegal act, or one that a party
could not do voluntarily, the “authority” prong of narrow certiorari is “generally
met.” City of Pittsburgh v. Fraternal Order of Police, Fort Pitt Lodge No. 1, 224
A.3d 702, 712 (Pa. 2020). An argument that an arbitrator misinterpreted a CBA is
not within the confines of the narrow certiorari review. Id. at 713. This Court’s
scope of review is a “plenary, non-deferential standard where the resolution of the
issues turns on a question of law or application of law to undisputed facts.” City of
Philadelphia v. Fraternal Order of Police Lodge No. 5, 932 A.2d 274, 279 n.6 (Pa.
Cmwlth. 2007).
As to the first issue, Employer argues that the arbitrator exceeded his
authority because he imposed discipline for a Disciplinary Code violation with
which Employer did not charge Grievant. Employer asserts that when the arbitrator
found that Employer lacked just cause to discipline Grievant for repeated rule
violations, he should have stopped there. Employer contends that when the arbitrator
inserted a new charge into the arbitration award, he infringed on the Department’s
managerial rights to set standards of service for its officers, including the decision
of what Disciplinary Code violations to charge.
The Union responds that under the narrow certiorari scope of review,
the Court should affirm the trial court because the arbitration award does not require
9
See Pa.R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an
unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. []
Non-precedential decisions . . . may be cited for their persuasive value.”).
13
Employer to perform an illegal act or one that it could not have done voluntarily.
The Union claims that the arbitrator decided the issue posed to him, as stipulated to
by the parties, whether Employer had “just cause to discipline [] Grievant []? If not,
what shall the remedy be?” R.R. at 44a. The Union submits that the arbitrator was
within his authority to modify Grievant’s discipline, and that such modifications are
common in disciplinary cases that proceed to arbitration.
Employer’s second issue is closely related to the first issue. As to the
second issue, Employer argues that the trial court’s remand, in which it modified the
arbitration award to remove the two parenthetical references to Section 5-§011-10
of the Disciplinary Code, did not address Employer’s objection. Employer
maintains that the resulting arbitration award continues to exceed the arbitrator’s
authority because it levies a five-day suspension that is untethered to a specific
Disciplinary Code violation. Employer argues that, in essence, the trial court
allowed the arbitrator to rewrite the CBA.
As to the second issue, the Union responds that the trial court’s remand
to remove the parenthetical references to Section 5-§011-10 of the Disciplinary Code
did not constitute error. The Union claims that the trial court corrected the form of
the arbitration award based on his understanding of both Employer’s and the Union’s
positions at oral argument. The Union rejects Employer’s attempt to turn a garden-
variety discipline mitigation decision made by an experienced arbitrator into an
excess of authority when Employer does not meet the standards for narrow certiorari
review.
Under the narrow certiorari scope of review applicable here, we
conclude that the arbitrator did not exceed his authority when he issued the
arbitration award. The purpose of Act 111 is to prevent arbitration awards “from
14
miring down in litigation.” Betancourt, 656 A.2d at 89. The narrow certiorari scope
of review applies to both interest arbitrations and grievance arbitrations under Act
111. Id. Interest arbitration occurs when an employer and employees are unable to
agree to terms of a CBA, and grievance arbitration occurs when the parties disagree
as to the interpretation of an existing CBA. City of Philadelphia v. International
Association of Firefighters, Local 22, 999 A.2d 555, 559 n.2 (Pa. 2010).
Courts have been cautious to vacate an arbitration award for an excess
of authority. As this Court has stated:
[O]ur Supreme Court has instructed, 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.
City of Scranton v. E. B. Jermyn Lodge No. 2 of the Fraternal Order of Police, 903
A.2d 129, 135 (Pa. Cmwlth. 2006).
Here, Employer does not contend that the arbitration award reducing
Grievant’s suspension from 30 days to 5 days compels it to take unlawful action.
Further, the parties do not dispute that the Police Commissioner has discretion to
impose discipline on her officers, and that she “is the final authority on all
disciplinary matters” under the plain language of the CBA. R.R. at 207a. Because
the Police Commissioner could have imposed a five-day suspension on Grievant for
his single violation of Directive 4.1, we do not conclude that the arbitrator exceeded
his authority by doing the same.
In fact, courts have resisted attempts to review Act 111 arbitration
awards that mitigate discipline as an excess of authority. In Northern Berks Regional
15
Police Commission v. Berks County Fraternal Order of Police, Lodge #71 (Northern
Berks Regional Police Commission), 230 A.3d 1022 (Pa. 2020), our Supreme Court
held that an arbitrator’s decision to reinstate a police officer and convert his time off
to a suspension without back pay did not exceed the arbitrator’s authority because
reinstatement would not compel the employer to take unlawful action. In Uwchlan
Township, slip op. at 5, our Court upheld an arbitrator’s decision to reduce a police
officer’s discipline from reinstatement to a one-year suspension, when the employer
could have voluntarily imposed that discipline pursuant to the discipline manual
made part of the CBA. In these cases, the arbitrators were asked to determine if the
employer had just cause to discipline the grievant, and if not, what is the appropriate
remedy that should be imposed.
In both Northern Berks Regional Police Commission and Uwchlan
Township, the arbitrators determined that the employers lacked just cause to impose
their recommended discipline and reduced the penalties, and the courts declined to
find that the arbitrators exceeded their authority by doing so. Here, the same
question was posed to the arbitrator, who found that Employer lacked just cause to
discipline Grievant for repeated violations of Directive 4.1, but found just cause to
discipline Grievant for a single, admitted violation of Directive 4.1. We decline to
review the arbitration award here as an excess of the arbitrator’s authority as in
Northern Berks Regional Police Commission, Uwchlan Township, and similar cases.
We further conclude that the trial court did not err when it remanded
the matter to remove the parenthetical references to Section 5-§011-10 of the
Disciplinary Code, but left the five-day suspension in place. The trial court directed
that the form of the arbitration award be modified to address the objections made by
Employer’s counsel at oral argument. Employer cannot now successfully argue that
16
the trial court erred by making the correction that it agreed was at issue in its petition
to vacate. We agree with the trial court that, in the context of the arbitration award,
the five-day suspension imposed was not untethered to the disciplinary charge that
Employer brought forth, but was directly tied to Grievant’s single, but not repeated,
violation of Directive 4.1 for improperly using his cell phone to document crime
scenes.
Accordingly, we hold that the arbitrator did not exceed his authority
under the applicable narrow certiorari scope of review, and we affirm the trial court’s
order.
MICHAEL H. WOJCIK, Judge
Judge Covey did not participate in the decision of this case.
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia, :
:
Appellant :
:
v. : No. 1243 C.D. 2021
:
Fraternal Order of Police, :
Lodge #5 :
ORDER
AND NOW, this 28th day of June, 2023, the order of the Court of
Common Pleas of Philadelphia County dated October 6, 2021, is AFFIRMED.
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MICHAEL H. WOJCIK, Judge