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CITY LEBANON v. DISTRICT COUNCIL 89 (07/07/78)

decided: July 7, 1978.

THE CITY OF LEBANON
v.
DISTRICT COUNCIL 89, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO, APPELLANT



Appeal from the Order of the Court of Common Pleas of Lebanon County in case of The City of Lebanon v. District Council 89, American Federation of State, County and Municipal Employees, AFL-CIO, No. 2662 of 1976.

COUNSEL

Jonathan Walters, with him Richard Kirschner, Neal Goldstein, and Markowitz & Kirschner, for appellant.

George E. Christianson, with him Christianson & Meyer, for appellee.

Judges Crumlish, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 36 Pa. Commw. Page 443]

This is an appeal from a decision of the Court of Common Pleas of Lebanon County that an arbitrator's

[ 36 Pa. Commw. Page 444]

    award, reinstating three discharged employees of the City of Lebanon, be set aside. The issue before us is whether or not the arbitrator erred in refusing to accept as true those facts which were established by guilty verdicts in prior criminal proceedings against the discharged employees. We hold that the lower court was authorized by Section 11(d) of the Act of April 25, 1927, P.L. 381, No. 248, as amended (Arbitration Act), 5 P.S. ยง 171(d), to review the arbitrator's ruling on this issue and that it correctly decided that an arbitrator must accept the facts as established by the guilty verdict here. However, we resubmit this matter to the arbitrator to determine whether or not these facts constitute just cause for dismissal within the meaning of the collective bargaining agreement.

At approximately 4 a.m. on January 16, 1976, Dale Spesak, Terrence Snyder, and Robert Donmoyer (employees), employees of the City of Lebanon (City) and members of District Council 89, American Federation of State, County and Municipal Employees (Union), were arrested and charged with criminal mischief for allegedly opening a fire hydrant. On February 17, 1976, these individuals received notice that they were laid off from their positions with the City.*fn1 They were tried by a jury on charges of criminal mischief and convicted on March 5, 1976. They were formally discharged by the City on March 8, 1976.

Under the collective bargaining agreement between the City and the Union, an employee could be discharged for "just cause." The propriety of these discharges was submitted to arbitration pursuant to the grievance provisions of the agreement. The Union and

[ 36 Pa. Commw. Page 445]

    the City agreed that the arbitrator would hear no testimony but would base his determination upon the official transcript of the criminal proceedings.

The arbitrator ruled that he was not bound by the jury's findings of fact.*fn2 His own independent examination of the testimony failed to sufficiently convince him that any one or all of the three employees had in fact opened the fire hydrant. He therefore concluded that the employees had not been discharged for just cause and ordered their reinstatement. When this award ...


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