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Pennsylvania State Police v. Pennsylvania State Troopers' Association

April 13, 2010

PENNSYLVANIA STATE POLICE, PETITIONER
v.
PENNSYLVANIA STATE TROOPERS' ASSOCIATION (TROOPER CHRISTOPHER J. WINESBURG), RESPONDENTS



The opinion of the court was delivered by: Senior Judge Friedman

Argued: March 15, 2010

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

The Pennsylvania State Police (PSP) petitions for review of that part of the August 19, 2009, Act 111*fn1 grievance arbitration award that sustained the grievance filed by Trooper Christopher Winesburg (Grievant) and directed PSP to reimburse Grievant for pay denied during a seventeen-day suspension that PSP imposed on Grievant pursuant to section 4 of the Confidence in Law Enforcement Act*fn2 (CILEA), 53 P.S. §752.4. We affirm.

Grievant is a Pennsylvania State Trooper and a member of the PSP unit covered under the Act 111 collective bargaining agreement (CBA) between PSP and the Pennsylvania State Troopers' Association (Association).*fn3 On the weekend of March 1, 2008, Grievant was involved in an incident with Angela Dempsey after both left a nightclub in Ocean City, Maryland. Ocean City police were called to the scene, but they did not file criminal charges against Grievant or against Trooper Ryan Wietry, who had accompanied Grievant to the club and was present during the incident. However, on March 13, 2008, Dempsey filed a private complaint against Grievant, (R.R. at 210a-11a, 440a-42a), and he was charged with second degree assault under the Maryland Criminal Code. The penalty associated with conviction on that offense is equivalent to the penalty for a felony of the second degree in Pennsylvania, 18 Pa. C.S. §106(b)(3), and, therefore, would prohibit Grievant's employment as a law enforcement officer under section 3 of the CILEA, 53 P.S. §752.3.*fn4 Thus, on April 15, 2008, PSP suspended Grievant without pay pending the outcome of the criminal charge. (R.R. at 428a-30a.) In doing so, PSP acted pursuant to section 4 of the CILEA, 53 P.S. §752.4, which requires that "a law enforcement officer charged with an offense that would prohibit employment as such under section 3 [of the CILEA] shall immediately be suspended from employment until final disposition of the charge.."*fn5

The charge against Grievant was nolle prossed on May 5, 2008, and, thereafter, PSP notified Grievant that his CILEA-mandated suspension was rescinded. (R.R. at 431a.) Although Grievant was returned to work, he was placed on restricted duty pending an internal investigation by PSP regarding his actions during the Maryland incident. (R.R. at 400a; 432a-33a.) On May 20, 2008, Grievant filed a grievance pursuant to Article 28 of the CBA,*fn6 requesting rescission of the CILEA-mandated, seventeen-day suspension without pay and seeking payment of wages lost during that period.*fn7 (R.R. at 424a-27a.) While this grievance was being processed, PSP conducted its internal investigation, (R.R. at 401a-02a), and, on February 25, 2009, PSP notified Grievant that he was suspended for fifteen days without pay based on violations of six PSP field regulations.*fn8 (R.R. at 405a-06a.) PSP also disciplined Trooper Wietry in connection with the Maryland incident, (R.R. at 419a-20a), and Trooper Wietry and Grievant each filed a grievance challenging the discipline imposed.*fn9 (R.R. at 409a-10a; 417a-18a).

Thereafter, pursuant to the CBA, the Association demanded arbitration regarding PSP's administrative penalties against Trooper Wietry and Grievant. In addition, the Association demanded arbitration of the seventeen days of pay withheld from Grievant due to the CILEA suspension. Thereafter, Ralph Colflesh (Arbitrator) was appointed to hear and decide the following three issues:

1. Did [PSP] have just cause to suspend [Grievant] for fifteen days? If not, what shall the remedy be?

2. Did [PSP] have just cause to reprimand Trooper Wietry? If not, what shall the remedy be?

3. Did [PSP] have the right to withhold pay from [Grievant] for the seventeen days he was suspended pursuant to the [CILEA]? If not, what shall the remedy be?

(Arbitrator's op. at 5.)

At evidentiary hearings held on May 5, 2009, and July 20, 2009, both parties presented witnesses and non-testimonial evidence in support of their respective positions, and, following the submission of briefs, the record was closed. In an Award Without Opinion (Award), issued August 19, 2009, the Arbitrator sustained the grievances as to the alleged violations of field regulations by Grievant and Trooper Wietry. Concluding that there was no "just cause" for discipline based on those alleged violations, the Arbitrator rescinded Grievant's fifteen-day suspension without pay and restored his wages for that period, and the Arbitrator rescinded the letter of reprimand issued to Trooper Wietry. (Award at 1-2.) These portions of the Arbitrator's Award are not challenged here.

With respect to the issue of the CILEA-imposed suspension of Grievant, the Arbitrator stated as follows:

Further, although the Commonwealth had not only the right but the obligation under the [CILEA] to suspend [Grievant's] employment during the pendency of certain privately lodged criminal charges against him in Maryland, its decision to withhold wages for the period of that suspension from employment after those charges were "nolle prossed" was a disciplinary action which required "just cause" under the parties' [CBA]. There was insufficient evidence to convince the ...


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