Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Township v. Wage Policy Committee of Wilkins Township Police Department

Commonwealth Court of Pennsylvania

May 18, 2017

Wilkins Township, Appellant
v.
The Wage Policy Committee of the Wilkins Township Police Department

          Argued: April 4, 2017

          BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge

          OPINION

          P. KEVIN BROBSON, Judge

         Appellant Township of Wilkins (Township) appeals from an order of the Court of Common Pleas of Allegheny County (trial court). The trial court confirmed a supplemental grievance arbitration award awarding damages in the form of lost wages to Wilkins Township Police Officer Jon Sherman (Sherman). Sherman is represented by the Wage Policy Committee of the Wilkins Police Department (WPC) for collective bargaining purposes. For the reasons that follow, we affirm the order of the trial court.

         On August 8, 2012, Sherman submitted to the Wilkins Township Police Department a form entitled "Off Duty Employment, " setting forth notice that Sherman was contemplating off-duty employment at Brewstone's, a bar and restaurant. According to the information Sherman provided on the form, the position at Brewstone's involved checking identification on Thursdays, Fridays, and Saturdays from 12:00 a.m. through 2:00 a.m. Initially, the Chief of Police advised Sherman that no police officer could accept employment at Brewstone's unless the Board of Commissioners (Board) approved the employment. On August 21, 2012, the Board advised Sherman that the employment at Brewstone's was prohibited based upon its conclusion that checking identifications and providing security at a bar constituted a conflict of interest with Sherman's duties as a police officer. On September 24, 2012, Sherman filed a grievance to proceed to arbitration pursuant to the collective bargaining agreement between the Township and the WPC (CBA) and in accordance with the law commonly known as Act 111 (Act 111).[1] The primary focus of Sherman's grievance arbitration[2]request was to challenge the Board's conclusion that the proposed off-duty employment constituted a conflict of interest.[3]

          On May 20, 2013, the appointed Arbitrator conducted a hearing. According to the Arbitrator's opinion and award, the parties "exchanged" briefs on June 17, 2013. (Reproduced Record (R.R.) at 50a.) In his opinion and award, the Arbitrator noted that the issue in the grievance, as agreed upon by WPC and the Township, was "whether the Township violated the [CBA] when it refused to allow [Sherman] to engage in outside employment at Brewstone's." (R.R. at 52a.)

         Sherman asserted that the proposed off-duty employment would not create a conflict of interest in light of the fact that the position does not call upon Sherman to act in the capacity of a police officer but, rather, only requires him to evaluate potentially fake identifications and to call on-duty police for assistance. The Township asserted that a police officer's employment in a bar or tavern creates a conflict of interest. The Arbitrator upheld Sherman's grievance and also ordered the Township to "make [Sherman] whole for the net ('take home') earnings he lost as a result of its forbidding him from [working at Brewstone's.]" (R.R. at 54a.) The Township filed a petition to vacate the award with the trial court, challenging the Arbitrator's award of lost earnings on two grounds: (1) lack of jurisdiction of the Arbitrator to award lost wages when Sherman did not raise the issue of lost wages before or during the hearing but, instead, raised the issue in his post-hearing brief to the Arbitrator; and (2) violation of due process where Sherman did not raise the issue of lost wages in the grievance notice or during the Arbitrator's hearing.

         The trial court affirmed the Arbitrator's award, concluding that the award does not provide for a specific amount of lost wages but rather lays the framework for a "back pay hearing."[4] The Township appealed the trial court's decision to this Court, arguing the following issues: (1) whether the inclusion in the award of an as-yet undetermined amount of lost wages violates the Township's procedural due process rights; and (2) whether the Arbitrator lacked jurisdiction to consider the lost-wages issue based upon the allegation that Sherman failed to raise the issue in a timely manner.

         On appeal, we held that the Arbitrator did not exceed his jurisdiction by awarding lost wages. Township of Wilkins v. The Wage Policy Comm'n of the Wilkins Twp. Police Dep't (Jon Sherman, Grievant), (Pa. Cmwlth., No. 833 C.D. 2014, filed May 15, 2015) (Sherman I). Citing Bensalem Township v. Bensalem Township Police Benevolent Association, Inc., 803 A.2d 239 (Pa. Cmwlth. 2002), for the proposition that "the jurisdiction of an arbitrator goes to his or her power to decide an issue in dispute rather than to his or her fashioning of an award, " we reasoned that the Township contested the form of relief granted by the Arbitrator, rather than the Arbitrator's power to decide the issue of off-duty employment, and, thus, the Arbitrator did not exceed his jurisdiction. Sherman I, slip op. at 8.

         We further held that the Award violated the Township's procedural due process rights because the Arbitrator issued an award ordering the Township to "make [Sherman] whole for the net ('take home') earnings he lost as a result of its forbidding him from [working at Brewstone's]" rather than calculating a specific amount of damages. (R.R. at 54a.) We determined that the Arbitrator triggered a violation of the Township's due process rights by awarding Sherman an unidentified amount of damages for a potential loss of off-duty wages without allowing the Township to submit arguments or present evidence on the issue of lost wages. Accordingly, we vacated the Award to the extent that it awarded damages in the form of lost wages and remanded the matter to the trial court with the instruction that the trial court remand the matter to the Arbitrator for further proceedings.

         On October 2, 2015, the Arbitrator conducted a hearing on the issue of damages. At the October 2, 2015 hearing, Sherman called as a witness Kenny Rosensteel, the former assistant general manager of Brewstone's, who testified that a normal work day for Sherman would have been from 11 p.m. to 2 a.m. and he would have been paid at a rate of $60 per hour. Rosensteel additionally testified that Brewstone's hosted special events where Sherman could have worked additional hours. The Township offered a Bureau of Labor Statistics document indicating that the median wage for "Security Guards and Gaming Surveillance Officers" was $11.55 per hour in 2012. (R.R. at 70a.) The Township also provided Sherman's time and attendance records, which included dates that Sherman took sick leave or vacation time. The Township entered into evidence a letter, dated September 10, 2013, advising counsel for the WPC that it would permit Sherman to assume off-duty employment at Brewstone's as of that date. Brewstone's ceased operations on July 18, 2014, after which Sherman began working intermittently off-duty at Buffalo Wild Wings and the Residence Inn for approximately 3-4 hours per week at a rate of $60 per hour.

         The Arbitrator calculated an award of lost wages for the time period of August 21, 2012, when the Township denied Sherman's request for off-duty work, and September 10, 2013, when the Township sent a letter advising WPC that it would permit Sherman to pursue off-duty employment. The Arbitrator found that there were a total of 165 potential work days for Sherman during that time period and that, based on his vacation and sick leave history, he likely would have worked 139 of those days for 3 hours per day, for a total of 417 potential work hours. The Arbitrator further concluded that Sherman would have been paid at a rate of $60 per hour. Accordingly, the Arbitrator issued a supplemental award ordering the Township to compensate Sherman for the lost potential work hours in the amount of $25, 020.00.

         On December 23, 2015, the Township filed in the trial court a petition to vacate the grievance arbitration award, which is the subject of the appeal now before this Court. The Township argued that the Arbitrator violated the due process rights of the Township by granting damages for lost wages when the issue of lost wages was not included in the original grievance. On June 20, 2016, the trial court denied the Township's petition and confirmed the supplemental award, concluding that this Court's earlier decision had determined that the Arbitrator had jurisdiction to decide whether Sherman was entitled to damages in the form of lost wages.

         The Township raises the following issues before this Court: (1) whether the Arbitrator violated the Township's due process rights by awarding lost wages, even though Sherman did not expressly request damages in the form of lost wages in his initial grievance; (2) whether the Arbitrator exceeded his authority by concluding that Sherman was not required to specifically request lost wages in his initial grievance; and (3) whether the trial court erred in concluding that the issues raised by the Township had been previously decided by our decision in Sherman I. Sherman argues that the issues of the Arbitrator's jurisdiction and his authority to award damages in the form of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.