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CITY PHILADELPHIA v. FRATERNAL ORDER POLICE (02/26/88)

decided: February 26, 1988.

CITY OF PHILADELPHIA, APPELLANT
v.
FRATERNAL ORDER OF POLICE, LODGE NO. 5, AND ARBITRATOR DAVID WEINSTEIN, APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the case of City of Philadelphia v. Fraternal Order of Police, Lodge No. 5 and Arbitrator David Weinstein, No. 3045, February Term, 1987.

COUNSEL

Susan Shinkman, Divisional Deputy City Solicitor, for appellant.

Anthony J. Molloy, Jr., Mozenter, Molloy and Durst, for appellees.

Judges Colins, Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino. Judge Colins dissents.

Author: Palladino

[ 114 Pa. Commw. Page 97]

City of Philadelphia (Appellant) appeals an order of the Court of Common Pleas of Philadelphia County (trial court), which affirmed the decision of an arbitrator reversing Appellant's decision to discharge Reginald Adams, Willie Carroll, Bennie Noble, and George Smith (Grievants). We affirm.

Grievants were employed as police officers by Appellant and were union members of Fraternal Order of Police, Lodge No. 5 (Appellee). On February 26, 1986, the City of Philadelphia Police Department's Internal Affairs Division received an anonymous complaint about unusual behavior of some uniformed police officers. A surveillance team from Internal Affairs conducted an investigation of the complaint from February 27, 1986 to March 17, 1986 and observed a pattern where Grievants spent all of their time together, when not on assignment, in the area around Cobbs Creek Parkway in Philadelphia. The surveillance team also reported observing erratic driving of a patrol car and a flash of fire in the same area. On the day following the fire incident, the surveillance team returned to the area where Grievants allegedly were present and found a charred bottle cap, a straw, and a police report booklet. These materials were determined to be consistent with the use of

[ 114 Pa. Commw. Page 98]

"crack," a refined form of cocaine. Grievants were also allegedly observed on duty outside of their assigned patrol sectors.

After concluding this investigation, the Police Department first requested that Grievants submit to urinalysis. Grievants refused to do so. The Police Department then ordered Grievants to submit to urinalysis. Grievants again refused to do so and were suspended with intent to dismiss. Grievants were later discharged for refusing a direct order, falsification of patrol log entries, and activity not in their assigned sector.

Grievants filed grievances against Appellant pursuant to procedures in the collective bargaining agreement between Appellant and Appellee and the matter was submitted to arbitration.*fn1 After a hearing, by decision dated January 17, 1987, an arbitrator determined that Appellant did not have the power to order Grievants to submit to urinalysis and directed that the discharges be modified to thirty (30) day disciplinary suspensions.*fn2 The arbitrator concluded that prior rulemaking was necessary before a refusal to submit to urinalysis could justify a discharge. The arbitrator also determined that even if Appellant could order Grievants to submit to urinalysis, such order was improper in this case because Appellant lacked "reasonable suspicion" that Grievants were using drugs while on duty.

Appellant then filed a Petition for Review of Arbitration with the trial court. On June 17, 1987, the trial court issued an order affirming the award of the arbitrator and ...


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