(Id. ) Further, the trial court found that Hobart sexually stalked a female coworker and that the award would force Hobarts victim to continue working with him. (Id. at 699a.) The FOP argues that these considerations are beyond the trial courts scope of review.
As previously mentioned, the trial courts scope of review is one of narrow certiorari. This narrow review precludes the use of public policy considerations to vacate an arbitration award. See Pa. State Police v. Pa. State Troopers Assn (Smith & Johnson) , 559 Pa. 586, 741 A.2d 1248, 1252-53 (1999). In rejecting the application of public policy considerations, our Supreme Court opined:
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 arbitrators 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 ... recommendation to include this ill-defined term within the narrow certiorari scope of review, we would markedly increase the judiciarys role in Act 111 arbitration awards. This would undercut the legislatures intent of preventing protracted litigation in this arena.
Id.
While we agree that the convenience to the Commission, the financial impact on the Department and its taxpayers, and the underlying facts of the arbitration are matters beyond the scope of the trial courts review, we do not conclude that these considerations are reversible error. The crux of the trial courts decision centered on the fact that the award compelled the Department to commit an illegal act. The discussion regarding the burden to the Department and the taxpayers is auxiliary to that main holding, independent of the trial courts conclusion.
C. Error in Factfinding
In the same vein, we also dispose of the FOPs third argument-that the trial court erred by basing its decision on an incorrect factual finding. Specifically, the FOP takes issue with the trial court finding that Hobart sexually stalk[ed] victims, including a fellow officer, and that reinstating Hobart would compel the Commission to force a victim to work with Hobart. (R.R. at 699a.) Although the parties agree that this finding is unsupported by record evidence, we determine that it played no significant part in the trial courts conclusion that reinstating Hobart would compel the Commission to commit an illegal act.
D. Substituting Judgment
Finally, the FOP argues that the trial court erred by substituting its judgment for that of the arbitrator. Specifically, the FOP argues that the trial court felt the arbitrator should have considered the results and impact of his decision. (Appellants Br. at 17.) By analyzing the results and impact of the award-including the burden to the Department and the taxpayers-the FOP argues that the trial court replaced the arbitrators judgment with its own.
It is well-settled that a court may not substitute its own judgment for that of an arbitrator. See Sch. Dist. of Phila. v. Cmwlth. Assoc. of Sch. Admrs, Teamsters Local 502 , 160 A.3d 928, 933 (Pa. Cmwlth.), appeal denied , --- Pa. ----, 172 A.3d 591 (Pa. 2013). Here, we conclude that did not happen. Rather, the trial court evaluated ramifications of award implementation not contemplated by the arbitrator. The trial court sought to answer if the award compelled the Commission to commit an illegal act. The arbitrator provided no judgment with respect to this question. While the trial court unnecessarily explored other ramifications of the award-e.g. , the burden to the Department and the taxpayers-these considerations were peripheral to the central conclusion. The trial court, therefore, did not substitute its judgment for that of the arbitrator.
IV. CONCLUSION
For the reasons set forth above, we reject the majority of the FOPs contentions on appeal. Nonetheless, because implementation of the arbitrators award in this case is possible if Hobarts access to JNET, CLEAN, and PennDOTs system is restored, we will vacate the trial courts award and remand with direction that the trial court stay the matter to allow the Department and Hobart to pursue with the appropriate agencies restoration of Hobarts access to those systems.
ORDER
AND NOW, this 31st day of October, 2018, the order of the Court of Common Pleas of Berks County (trial court) is VACATED, and the matter is REMANDED to the trial court for further proceedings consistent with the accompanying opinion.
Jurisdiction relinquished.
DISSENTING OPINION BY SENIOR JUDGE PELLEGRINI
The Court of Common Pleas of Berks Countys (trial court) decision reversing the arbitration is cogent and well-reasoned. I wish I could affirm that decision. The majority opinion amending the arbitrators decision in an attempt to make it more palatable is imaginative but impermissible. Yet I still wish I could join. However, because I am obligated to do so, I would reverse the trial court and reinstate the arbitrators award. Let me explain.
I.
The underlying facts are not in dispute. Charles Hobart (Hobart) was a police officer for the Northern Berks Regional Police Commission (Commission). Hobart had a file at work containing approximately 80 pages of documents that included photographs of women in lingerie, bathing suits and other revealing attire. Several of the photographs showed women with exposed breast and vaginal areas and some showed women in bondage. Included within the file were several pages from the Pennsylvania Justice Network (JNET) system containing photographs and information of five civilians and a fellow female police officer in the department. There is no dispute that Hobart used these photographs for masturbation in the Departments mens room.
There is also no dispute that because of his misuse of the JNET system, Hobarts access to the Department of Transportation (PennDOT), JNET and the Commonwealth Law Enforcement Assistance Network (CLEAN) portals, which all police officers need to perform their jobs, was permanently revoked.
Notwithstanding all this, the arbitrator found there was not just cause for Hobarts termination, even though his access to the portals was permanently revoked and he may never be able to use those systems to apprehend criminals, which essentially means that he cannot give full value of his services for the salary that is paid to him by taxpayers.
If this were the outcome of a jury trial, I would reverse the jurys verdict because no reasonable person could find that Hobarts conduct in gathering pictures from official sources - including those of a fellow female police officer - so that he could masturbate in the Departments mens room, causing him to be permanently banned from access to the PennDOT, JNET and CLEAN portals necessary for an officer to perform his job, is not just cause for dismissal.
Even though I would hold that no reasonable person would agree with the arbitrators outcome, I cannot do what any reasonable person would do and reverse the arbitrator because this Court is forced to apply the narrow certiorari test rather than the judgment notwithstanding the verdict (nov)/error of law standard that the General Assembly provided to be used in reviewing public employee grievance arbitration, including grievance arbitration involving police officers. Now let us take a look at the statutory standard for courts to use to review arbitration awards.
II.
A.
In the Uniform Arbitration Act of 1980 (UAA), 42 Pa.C.S. §§ 7301 - 7362, the General Assembly set forth the scope of judicial review of public sector agreements, including employee grievance arbitration of disputes. Section 7302(b) of the UAA provides the standard of review for grievance arbitrations arising out of a public collective bargaining agreement. Quoted in full, it provides:
(a) General rule.-An agreement to arbitrate a controversy on a nonjudicial basis shall be conclusively presumed to be an agreement to arbitrate pursuant to Subchapter B (relating to common law arbitration) unless the agreement to arbitrate is in writing and expressly provides for arbitration pursuant to this subchapter or any other similar statute, in which case the arbitration shall be governed by this subchapter.
(b) Collective bargaining agreements.-This subchapter shall apply to a collective bargaining agreement to arbitrate controversies between employers and employees or their respective representatives only where the arbitration pursuant to this subchapter is consistent with any statute regulating labor and management relations.
(c) Government contracts.-This subchapter shall apply to any written contract to which a government unit of this Commonwealth is a party to the same extent as if the government unit were a private person, except that where a contract to which the Commonwealth government is a party provides for arbitration of controversies but does not provide for arbitration pursuant to any specified statutory provision, the arbitration shall be governed by this subchapter.
(d) Special application.-
(1) Paragraph (2) shall be applicable where:
(i) The Commonwealth government submits a controversy to arbitration.
(ii) A political subdivision submits a controversy with an employee or a representative of employees to arbitration.
(iii) Any person has been required by law to submit or to agree to submit a controversy to arbitration pursuant to this subchapter.
(2) Where this paragraph is applicable a court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision of this subchapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict.
42 Pa.C.S. § 7302 (emphases added).
The reason I cannot apply the judgment nov/error of law standard that governs grievance arbitrations, including those involving police officers, is because our Supreme Court has issued several decisions that preclude applying the legislatively prescribed mandate. First, a short history of the development of standards of review regarding appeals from grievance arbitration awards is in order.
B.
Our Supreme Court has continued to apply the essence test standard of review in the context of grievance arbitration under the Public Employe Relations Act (Act 195), though recognizing the UAA judgment nov/error of law standard is what the General Assembly has said is to be used in reviewing all public sector grievance arbitration cases, because it views the essence test as essentially the same as the judgment nov scope of review. The Supreme Court held in Community College of Beaver County v. Community College of Beaver County, Society of the Faculty (PSEA/NEA) , 473 Pa. 576, 375 A.2d 1267, 1273 (1977), that the introduction of the n.o.v. concept ... is hardly a radical change, nor does it dictate that a much closer or different scrutiny of an arbitration award will be available than under the [essence test]. This case, however, was decided under the Arbitration Act of 1927, which had a judgment nov standard, but did not expressly apply to public sector collective bargaining agreements as did the UAA. See Pennsylvania State Education Association v. Appalachia Intermediate Unit 08 , 505 Pa. 1, 476 A.2d 360, 362-63 (1984) (holding that the section of the UAA governing power of a reviewing court to modify or correct an arbitration award is a substantial reenactment of the corresponding provision of the Arbitration Act of 1927). In considering a motion for judgment nov, the court must view the evidence and all reasonable inferences that arise from the evidence in a light most favorable to the verdict winner. The court can enter judgment nov only if no two reasonable persons could fail to agree that the verdict is improper. Northwest Savings Association v. Distler , 354 Pa.Super. 187, 511 A.2d 824, 825 (1986).
Our Supreme Court has, through a variety of exceptions, albeit by a different name but with the same goal - the public policy exception, which replaced the core functions test, which replaced the manifestly unreasonable test - made the essence test the same as the judgment nov/error of law test.
III.
A.
However, what is before us is the review of an Act 111 grievance arbitration award. Our Supreme Court has applied the narrow certiorari test rather than the essence test to police and firefighter grievance arbitrations, notwithstanding that the UAA provides for a judgment nov/error of law standard for all arbitrations.
Act 111 was enacted following a 1968 constitutional amendment to amend Article III, Section 31 of the Pennsylvania Constitution that provided an exception to the prohibition of the delegation of a municipal function to a private individual by authorizing the General Assembly to enact legislation to allow a private arbitrator to set the terms and conditions of employment for police and firefighters. Grievance arbitration, however, was not constitutionally prohibited prior to this amendment. This is evident by the requirement of mandatory grievance arbitration contained in Act 195 which would not have been possible if it were unconstitutional. Erie Firefighters Local No. 293 of the International Association of Firefighters v. Gardner , 406 Pa. 395, 178 A.2d 691 (1962).
It outlines a procedure for uniformed personnel to engage in such bargaining that culminates in binding interest arbitration pursuant to specified procedures. Through those procedures, a collective bargaining contract or an interest arbitration award would govern the terms and conditions of employment. The provisions of Act 111 deal mainly with interest arbitration and the resolution of grievances are barely mentioned in Act 111 except for one brief reference in Section 1, 3 P.S. § 217.1, that mentions settlement of grievances. Unlike Section 903 of Act 195, Act 111 does not expressly mandate grievance arbitration. See also Upper Makefield Township v. Pennsylvania Labor Relations Board , 717 A.2d 598, 601-03 (Pa. Cmwlth. 1998), affd on other grounds , 562 Pa. 113, 753 A.2d 803 (2000). Until the Pennsylvania Supreme Courts decision in Betancourt , there was a dispute over whether Act 111 even provided for grievance arbitration. See Pennsylvania State Police v. Pennsylvania State Troopers Association (Betancourt) , 540 Pa. 66, 656 A.2d 83, 87 (1995).
There is no scope of review for arbitration awards contained in Act 111. No scope of review was needed, though, since Section 7 of Act 111 states that [n]o appeal [from an arbitration award] shall be allowed to any court. 43 P.S. § 217.7(a). Shortly after Act 111 was enacted, our Supreme Court in City of Washington v. Police Department of Washington (Washington Arbitration) , 436 Pa. 168, 259 A.2d 437, 441 (1969), held that the narrow certiorari scope of review applied to an appeal of an Act 111 interest arbitration award.
At that time, the narrow certiorari test was common. There were many categories of administrative decisions where the General Assembly had stated there should be no right of appeal to a court from that administrative determination. Other statutes were silent as to whether a party had the right to appeal the administrative decision. Even though the statute prohibited any appeal or did not authorize an appeal, our Supreme Court dealt with this matter by adopting rules that addressed each of those situations. It provided for a narrow certiorari scope of review for appeals brought when the statute said there would be no appeal from an agency decision. However, where the statute was silent on the right to appeal, our Supreme Court adopted a broad certiorari standard, similar to the administrative agency scope of review. No matter which standard of review applied, an appeal was by petition for allowance of appeal and not by right. This is why the narrow certiorari test was applied to review police and firefighter arbitration awards.
After Article V, Section 9 of the Pennsylvania Constitution was adopted in 1968, providing for the right of appeal of all common pleas and administrative agency decisions, the narrow and broad certiorari standards of review were abandoned as no longer necessary and the rules that created those standards are no longer extant. All other appeals previously not permitted were now allowed under the statutory standard of review, such as that in the Administrative Agency Law. The only appeals for which the vestigial court-created narrow certiorari standard still apply are appeals from police and firefighter arbitration awards.
B.
The issue of whether police grievance arbitration awards as opposed to interest arbitration awards were governed by narrow certiorari was not decided until almost 30 years after the enactment of Act 111. In Betancourt , our Supreme Court, while acknowledging that Act 111 provided detailed procedures for interest arbitration and how it was to be conducted, provided no such direction for grievance arbitration. The Court decided that since Act 111 purportedly authorized grievance arbitration for police and firefighter personnel, it was the intent of the General Assembly in Act 111 to impose a restraint on judicial activism in order to ensure swift resolution of disputes involving police and firefighters that made the narrow certiorari standard applicable, not the judgment nov/error of law/essence test. It stated:
We are not persuaded that the legislature intended grievance arbitration awards to be subject to broader judicial review than are interest arbitration awards. There is no indication, either in the Act itself or in the history of the Act, that the legislature intended appeals from grievance arbitration awards to be subject to greater judicial involvement than interest arbitration awards. We will not now allow a scope of review [essence test] which is markedly broader than narrow certiorari for Act 111 grievance arbitration. To do so would allow the courts to interfere impermissibly with the legislative scheme as the courts would be able to alter Act 111 arbitration awards by means of an unauthorized expansion of the proper scope of review. Such a result would run counter to the legislatures intent. Thus, we hold that the proper scope of review is narrow certiorari.
Betancourt , 656 A.2d at 89 (emphasis in original).
As a result of Betancourt, the application of the narrow certiorari test means that courts could not review arbitrator decisions that reinstate police officers who engage in illegal conduct. See Pennsylvania State Police v. Pennsylvania State Troopers Association (Smith) , 559 Pa. 586, 741 A.2d 1248 (1999) (holding that the Court could not disturb an arbitrators reinstatement of a state trooper who jammed his loaded, police-issued weapon into his ex-girlfriends mouth and threatened to kill her, as well as later being arrested that day for driving under the influence, simple assault, and making terroristic threats, charges to which he subsequently pleaded guilty); City of Philadelphia v. Fraternal Order of Police, Lodge No. 5 , 711 A.2d 1060 (Pa. Cmwlth. 1998) (holding that the Court could not disturb an arbitrators reinstatement of a Philadelphia police officer who crashed her police cruiser into parked cars while under the influence of alcohol and cocaine).
Not only did the Betancourt decision limit the ability of courts to review disciplinary decisions involving criminal conduct, it also limited the ability of courts to review an arbitration award in which an arbitrator has essentially rewritten the parties agreement or issued an award that is so illogical that the parties never intended the result. For example, in Bensalem Township v. Bensalem Township Police Benevolent Association , 803 A.2d 239 (Pa. Cmwlth. 2002), we held that we could not review an arbitrators award that clearly violated the provisions of the collective bargaining agreement. In that case, the township discharged a police officer who was subsequently reinstated by an arbitrator. The collective bargaining agreement prohibited an arbitrator from awarding monetary relief in excess of one year. The narrow certiorari test prevented the Court from examining an arbitrators award that not only reinstated the police officer, but awarded him 21 months back pay and benefits - nine months more than the parties authorized under the collective bargaining agreement.
C.
I respectfully urge our Supreme Court to reexamine its holding in Betancourt. Making any attempt to divine the intent from Act 111 as to what standard of review should apply is unwarranted. This is especially so when the General Assembly has provided in the UAA, 42 Pa.C.S. § 7302, in plain and mandatory language, that the judgment nov/error of law standard should be used to review all collective bargaining grievance arbitrations. This was not an accident. When adopting the National Uniform Arbitration Act, the General Assembly inserted 42 Pa.C.S. § 7302 into that act to set the judgment nov/error of law standard. It could not be clearer.
Because the UAA is clear as to the standard of review in grievance arbitration cases, it is not necessary to discuss the factors relied on in Betancourt to justify its adoption of the narrow certiorari test. However, a short discussion of the factors relied on in Betancourt to find that the narrow certiorari test applied are in order. One factor mentioned in Betancourt is that courts would impermissibly interfere with police and firefighter arbitration awards and those appeals would get bogged down in the courts if the judgment nov/error of law/essence test applied. That fear is simply not warranted. Even though the judgment nov/error of law standard allows slightly more judicial oversight than the essence test, it is not an intrusive scope of review. This test was formulated so courts would be deferential to arbitration awards and intervene only where an arbitrator clearly did not satisfy his obligation to interpret the collective bargaining agreement or acted in a way that no reasonable person could accept the outcome. Moreover, the same judicial procedures essentially are followed regardless of whether the arbitration award is reviewed under the narrow certiorari scope of review or the essence test, and the essence test is not mired in protracted litigation.
Finally, applying the narrow certiorari test does not serve the public interest because it does not allow courts to review arbitration awards to determine whether an award sanctions a police officers conduct that harms the public, breaches the public trust or brings discredit on the ability of the police department to carry out its functions. If the judgment nov/error of law test applies, courts could review the decision of the arbitrator, a private party, to determine if his decision was against public policy. See Philadelphia Housing Authority v. American Federation of State, County and Municipal Employees, District Council 33, Local 934 , 617 Pa. 69, 52 A.3d 1117 (2012) (holding that an arbitration award reinstating an employee discharged for acts constituting sexual harassment violated well-defined and dominant public policy). Courts could also review the conduct in this case to determine whether any reasonable person would arrive at the same decision that this arbitrator did.
Now to this appeal and why I am compelled to dissent.
IV.
In this case, the trial court concluded that the arbitrator exceeded his powers by ordering the Commission to return Hobart to his position when he would not have access to PennDOT, JNET and CLEAN records. The trial court also found that because Hobart would be in the area where the computers were located, he could potentially see data that he was not entitled to see, risking the Commissions continued access to those portals. The trial court found that Hobart sexually stalked a female coworker and that the award would force Hobarts victim to continue working with him.
The majority, while substantially agreeing with the trial court, nonetheless vacated the order because it found it was premature to decide whether the award putting Hobart back to work compels the Commission to be at risk for losing access to PennDOT, JNET and CLEANs systems, as well as potential criminal liability if Hobart happens to see any protected data generated by those systems. It then modified the trial courts order finding just cause to dismiss by ordering that until such a time that Hobart and the Department have exhausted all avenues of relief to regain Hobarts access to PennDOT, JNET and CLEANs systems, the question of whether the award can be implemented without violation of law cannot be decided finally. It then vacated the trial courts order and remanded the matter to the trial court with instruction to stay the matter until Hobart and the Department have exhausted all avenues to reinstate Hobarts access to these systems, at which time the trial court may then consider the question of whether the Commission can implement the award without violating the law. The net effect is that if Hobart does not get his permanent revocations to PennDOT, JNET and CLEANs systems reversed, then the arbitrators decision will be reversed.
I disagree with the majority because nothing that the arbitrator ordered would cause the Commission to commit an illegal act. Nothing in the arbitrators award requires that the Commission give Hobart access to those portals, only that it continue to employ him as a police officer. Under the award, it is up to the Commission to fashion a position in which Hobart would not have access to that information. While not having access to those portals would limit his usefulness and cause expense and difficulty within the Commission, to fashion such an award does not require the Commission to perform an illegal act. Unfortunately, under the narrow certiorari test, added expense and inconvenience does not justify a reversal of the arbitrators award.
While the arbitrators award is unreasonable, under the narrow certiorari standard, because the arbitrator had the right to determine whether there was just cause for termination, the award did not order the Commission to do anything illegal and there was no deprivation of anyones constitutional rights, I would reinstate the arbitrators award and reverse the trial court. Accordingly, I respectfully dissent.
JNET is the Commonwealths primary public safety and criminal justice computer information system. JNETs integrated justice portal provides a common online environment for authorized users to access public safety and criminal justice information. This critical information comes from various contributing municipal, county, state and federal agencies.
CLEAN is used by the Commonwealths criminal justice agencies to access drivers license and motor vehicle information, state criminal history record information, the Commonwealths central registry for protection from abuse orders, law enforcement messaging capabilities, and a host of other services.
Under the essence test, the court makes an initial determination as to whether the issue is embraced by the agreement giving the arbitrator the authority to hear the matter. If so, the award is upheld if it can be rationally derived from the agreement, allowing reversal only where the award is genuine and indisputably without foundation in or fails to logically flow from the agreement. The essence test requires a determination of whether the agreement encompasses the subject matter of the dispute. See State System of Higher Education (Cheyney University) v. State College University Professional Association (PSEA-NEA) , 560 Pa. 135, 743 A.2d 405 (1999) ; Leechburg Area School District v. Dale , 492 Pa. 515, 424 A.2d 1309 (1981).
The origin of the test comes from the seminal Steelworkers trilogy of cases. See United Steelworkers of America v. Enterprise Wheel and Car Corporation , 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960) ; United Steelworkers v. American Manufacturing Company , 363 U.S. 564, 80 S.Ct. 1363, 4 L.Ed.2d 1432 (1960) ; United Steelworkers v. Warrior and Gulf Navigation Company , 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) ; see also Major League Baseball Players Association v. Garvey , 532 U.S. 504, 121 S.Ct. 1724, 149 L.Ed.2d 740 (2001). Those cases dealt with the standard to be used to review grievance arbitration awards under the federal Labor Management Relations Act of 1947, 29 U.S.C. §§ 141 - 197.
Unlike the Public Employe Relations Act (Act 195), Act of July 23, 1970, P.L. 563, as amended , 43 P.S. §§ 1101.101 - 1101.2301, the federal Labor Management Relations Act of 1947 does not make arbitration mandatory; rather, it must be agreed to and made part of a collective bargaining contract. Section 301, 29 U.S.C. § 185, provides that suits may be brought demanding specific performance of collective bargaining agreements. As the [House and Senate] Conference Report state, [o]nce the parties made a collective bargaining contract, the enforcement of that contract should be left to the usual processes of law .... Textile Workers of America v. Lincoln Mills of Alabama , 353 U.S. 448, 452, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957).
It is worthwhile to note that Act 195, even though it requires arbitration, does not provide for a scope of review. When Act 195 was enacted, the Arbitration Act of 1927, 5 P.S. §§ 161 - 181, repealed by the Act of October 5, 1980, P.L 693, which applied to all public contracts, provided for the judgment nov standard. 42 Pa.C.S. § 7302 provides the standard of review of grievance arbitration awards.
Act of July 23, 1970, P.L. 563, as amended , 43 P.S. §§ 1101.101 - 1101.2301.
The public policy exception requires the application of a three-prong test:
First, the nature of the conduct leading to the discipline must be identified. Second, we must determine if that conduct implicates a public policy which is well-defined, dominant, and ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests. Third, we must determine if the arbitrators award poses an unacceptable risk that it will undermine the implicated policy and cause the public employer to breach its lawful obligations or public duty, given the particular circumstances at hand and the factual findings of the arbitrator.
City of Bradford v. Teamsters Local Union No. 110 , 25 A.3d 408, 414 (Pa. Cmwlth. 2011) (quoting Westmoreland Intermediate Unit # 7 v. Westmoreland Intermediate Unit # 7 Classroom Assistants Educational Support Personnel Association, PSEA/NEA , 595 Pa. 648, 939 A.2d 855, 866 (2007) ) (citations omitted).
In City of Easton v. American Federation of State, County and Municipal Employees, AFL-CIO, Local 447 , 562 Pa. 438, 756 A.2d 1107 (2000), abrogated by Westmoreland , 939 A.2d 855, an arbitrator who required reinstatement of an employee determined to have engaged in egregious misconduct that strikes at the very core function of public enterprise, deprived an employer of its ability to perform essential functions, including the ability to discharge, and the arbitrators award was deemed irrational and, therefore, failed the essence test.
The manifestly unreasonable standard applied where an arbitrator found:
[A] public employee engages in outrageous conduct that amounts to or almost arises to the level of criminality, and the conduct of those employees is toward a group of people that they serve, protect, or have a special relationship to, or is a breach of a special trust, then it is manifestly unreasonable to conclude that the public employer could have intended to bargain away its absolute responsibility to ensure the integrity of its agency, and thus, the arbitrator must affirm the dismissal once a finding of just cause has been made.
American Federation of State, County, and Municipal Employees Local 2026, District Council 83, AFL-CIO v. Borough of State College, 133 Pa.Cmwlth. 521, 578 A.2d 48, 51 (1990). See also Philadelphia Housing Authority v. Union of Security Officers # 1 , 500 Pa. 213, 455 A.2d 625 (1983) ; County of Centre v. Musser , 519 Pa. 380, 548 A.2d 1194 (1988) ; Pennsylvania Liquor Control Board v. Independent State Stores Union , 520 Pa. 266, 553 A.2d 948 (1989).
Act of June 24, 1968, P.L. 237, No. 111, as amended , 43 P.S. §§ 217.1 - 217.10.
It now reads, with the amendment in italics:
The General Assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes or perform any municipal function whatever.
Notwithstanding the foregoing limitation or any other provision of the Constitution, the General Assembly may enact laws which provide that the findings of panels or commissions, selected and acting in accordance with law for the adjustment or settlement of grievances or disputes or for collective bargaining between policemen and firemen and their public employers shall be binding upon all parties and shall constitute a mandate to the head of the political subdivision which is the employer, or to the appropriate officer of the Commonwealth if the Commonwealth is the employer, with respect to matters which can be remedied by administrative action, and to the lawmaking body of such political subdivision or of the Commonwealth, with respect to matters which require legislative action, to take the action necessary to carry out such findings.
Pa. Const. art. 3, § 31. (Emphasis added.)
While Act 111 does, in passing, mention settlement of grievances, based on the history behind the amendment to Pennsylvania Constitution art. 3, § 31 and Act 111, which involves the right to interest arbitration, a better interpretation is that when Act 111 refers to settlement of grievances, it is not referring to grievance arbitration but to grievances relating to terms of conditions of employment, not grievances arising out of the contract. See also Erie Firefighters Local No. 293 .
43 P.S. § 1101.903.
Article V, Section 9 provides that: There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights of appeal as may be provided by law. Pa. Const. art. 5, § 9.
2 Pa.C.S. §§ 501 - 508, 701 - 704.
For a full discussion of this issue, see MEC Pennsylvania Racing v. Pennsylvania State Horse Racing Commission , 827 A.2d 580, 586-87 (Pa. Cmwlth. 2003).
I note that in its brief, the Berks County Fraternal Order of Police, Lodge # 71 (FOP) disputes the claim that a female coworker was stalked because there are no women police officers employed by the Department.
I also disagree with the majority vacating the trial courts decision to await exhaustion of all avenues to reinstate Hobarts access to the systems. Arbitrators decide grievance arbitration cases as they find them, and the trial court, not being the factfinder, reviews the arbitrators award as issued.