Pennsylvania State Police v. Pennsylvania State Troopers Ass'n

PELLEGRINI, Judge. Because it is incomprehensible that an arbitrator would put back to work a state trooper who, after drinking heavily, pulls his service revolver on a woman in the midst of a disagreement and threatens to blow her brains out, the Pennsylvania State Police petitions for review of an arbitration decision finding no just cause for the dismissal of Trooper Rodney Smith. The facts are not disputed. On the evening of May 19, 1995, Smith, who was off-duty, left a bar about 6:30 p.m. where he had been drinking since noon. He saw an old girlfriend, whom he had not seen for four or five years, and he stopped his car and induced her to stop her car. Smith allegedly wanted to speak to her because he believed she owed him money, about 30 dollars. An argument ensued between them, ending when Smith pulled his service revolver, forced it between her teeth and threatened to “blow off your head”. Smith then drove away to continue drinking. He later returned to the scene, where the woman had summoned the police. Smith was arrested, charged with three counts of driving under the influence and one count each of simple assault and making terroristic threats. He pled guilty to the five charges. Based on this incident, the State Police notified Smith that he was dismissed because his actions violated the regulations regarding “Unbecoming Conduct” and “Conformance to Laws”. Smith, through the Pennsylvania State Troopers Association (Union), grieved his dismissal. The arbitrator found that although the record clearly established that Smith committed the criminal offenses, the discipline imposed was excessive.1 The Arbitrator modified the discharge by directing an immediate reinstatement of Smith (amounting to a suspension of eight and one-half months), without payment of lost wages, and imposed one year of probation. The State Police argue that it is manifestly unreasonable for an arbitrator to put back to work a state trooper who had been dismissed by the State Police for egregious, criminal behavior, lessening the public’s trust in its law enforcement. While the manifestly unreasonable standard is applied to arbitrators’ decisions regarding all other public employees,2 in Pennsylvania State Police v. Pennsylvania State Troopers’ Association (Trooper James Betancourt), 540 Pa. 66, 656 A.2d 83 (1995), the Supreme Court, reversing this court, rejected such a review over an arbitrator’s awards under Act 111.3 The Supreme Court held that a court’s scope of review over an arbitrator’s award in Act 111 grievance arbitration is narrow certiora-ri, which is limited to questions regarding: (1) the jurisdiction of the arbitrator, (2) the regularity of the proceedings, (3) an excess of the arbitrator’s powers,4 and (4) deprivation of constitutional rights. Id. Even though we would emphatically agree with the State Police that the arbitrator’s decision was manifestly unreasonable because Smith’s conduct — excessive drinking, brandishing his service revolver against a [690] member of the community, forcing the revolver into her mouth, threatening to “blow your head off” — was egregious, criminal and violative of the public trust, we are simply unable to act due to the narrow certiorari standard mandated by the Betancourt decision. Under the present state of the law, if Smith had “blown off” the woman’s head, as he explicitly threatened to do with the gun in his hand, and the arbitrator had put him back on the job as a law enforcement officer, this court could do nothing. While such an outcome is incomprehensible, it is just as incomprehensible that there is no review or accountability if an arbitrator makes such an irrational decision.5 Because of our extremely limited review of the arbitrator’s decision, no one — not the governor, not the State Police, not this court, not the Supreme Court, unless it reverses Betancourt, or the General Assembly, unless it amends Act 111 — has the power to change an arbitrator’s irrational award.6 By putting this trooper back to work, this arbitrator not only increased the risk to the public, but also brought disrespect to the force, making it more difficult for other troopers who carry out their day-to-day duties in a professional and competent manner. We remind arbitrators, even though they may be virtually unaccountable, that they are not involved in the usual industrial arbitration setting.7 When the employer is a public employer and the arbitrator is acting as a part of the public system, one of his or her basic concerns should be the public trust in police officers8 or other public employees. When they make their decisions, arbitrators must recognize their fiduciary obligation to the public to make sure that police officers properly serve the community. Only because we are compelled to do so, we affirm the arbitrator’s award.9 [691] ORDER AND NOW, this 24th day of July, 1997, the award by Arbitrator Stanley J. Schwartz sustaining the grievance filed by the Pennsylvania State Troopers Association on behalf of Trooper Rodney Smith is affirmed. Footnotes [1] The Arbitrator stated that the just cause analysis was "whether, on a comparative basis, discipline had been meted out fairly and uniformly.” (Arbitrator’s decision, p. 6). [2] An extremely narrow exception first set forth in Philadelphia Housing Authority v. Union of Security Officers # 1, 500 Pa. 213, 455 A.2d 625 (1983), the manifestly unreasonable doctrine has been applied to all public employees except police officers and fire fighters. See County of Centre v. Musser, 519 Pa. 380, 548 A.2d 1194 (1988); Liquor Control Board v. Independent State Stores Union, 520 Pa. 266, 553 A.2d 948 (1989); American Federation of State, County and Municipal Employees v. Borough of State College, 133 Pa.Cmwlth. 521, 578 A.2d 48, 51 (1990). See also DePaulo v. City of Albany, 49 N.Y.2d 994, 996-97, 406 N.E.2d 1064, 1066, 429 N.Y.S.2d 171, 172 (1980) (Wachtler, J., concurring) ("In view of the singular responsibility and trust necessarily reposed in our police it would seem essential that the determination as to whether an officer should remain on the force, at least in cases where the conduct in question concerns a violation of the officer’s oath, should be made only by those persons entrusted by the public with that responsibility. Only those persons ... are directly answerable to that community.") [3] Act 111 is the commonly used name of the Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1 -217.10, which applies to police and fire personnel. [4] An arbitrator exceeds his powers where he mandates that an illegal act be carried out. Id. [5] "It is ironic that we can review arbitrators’ decisions as being against public interest that relate to clerks and typists, but not police officers” who carry guns. City of Philadelphia v. Fraternal Order of Police Lodge No. 5, 658 A.2d 453, 458 (Pa.Cmwlth.1995) (Pellegrini, J., concurring). [6] I am not as sanguine as Judge Doyle about his rationalization that, even absent a narrow certio-rari scope of review, the arbitrator’s dismissal would be affirmed because the penalty imposed was comparable to other discipline imposed in similar cases. While shooting a bartender off-duty while drinking may be a comparable offense, the only thing comparable about not discharging in that case is that outcome is just as outrageous and irrational as this one. I also disagree with Judge Doyle’s conclusion that under Act 111 the parties themselves could adopt a different scope of review — the essence test — if they chose to do so by engaging in collective bargaining. Our Supreme Court in Betancourt made it explicitly clear the only scope of review available for both interest and grievance arbitration was set by Act 111 as narrow certiorari. Act 111 only allows parties to bargain regarding concerns related to the terms and conditions of the their employment and nothing else. Moreover, parties are not free to negotiate away a court's scope of review that has been set by statute. [7] "The resolution of labor disputes in the public sector involves complex issues of considerable public import” which an arbitrator, unlike the public employer, is generally unaware of. Developments in the Law—Public Employment, 97 Harv. L.Rev. 1676, 1708-09 (1984). "[A]n arbitrator is unelected, unaccountable, and quite possibly ignorant of how citizens feel about the labor dispute and ancillary matters of public concern.” Id. [8] This is not just the view of the present writers but is recognized by other arbitrators. In Delaware River Port Authority v. Independent Bridge Workers, 76 Lab. Arb. (BNA) 350, 355 (1981) (Raffale, Arb.), the arbitrator wrote: The reaction by the public to the outrage committed by the employee is a valid standard for determining just cause. The public is unlikely to tolerate a public authority treating with restraint any atrocity committed on an individual member of the public, ... The reaction of the public is relevant when dealing with an organization accountable to the public. See also Roger I. Abrams, Governance of Public Enterprises: The Power Issue in Public Sector Grievance Arbitration, 67 Minn. L.Rev. 261, 286 (1982) ("Grievance arbitration must therefore be tailored to the distinctive task at hand — the resolution of disputes between the government and a union representing public workers. The process will flourish in the public sector only if grievance arbitrators ... accommodate the distinctive needs of the public sector.”). [9] The State Police also contends that the arbitrator exceeded his authority because he did not determine the issue of just cause based on this case, but was reviewing procedures by searching for proportionality in discipline. The issue presented to the arbitrator allowed him to determine whether dismissal was appropriate and, if not, what action should be taken against Smith. To determine what that disciplinary action should [691] be, the arbitrator compared the discipline imposed in what he considered to be similar cases. Although the parties may disagree about whether cases are similar, again, given our very limited scope of review, we cannot reverse the arbitrator’s award.