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City of Philadelphia v. Fraternal Order of Police

Commonwealth Court of Pennsylvania

March 26, 2018

City of Philadelphia
v.
Fraternal Order of Police, Lodge No. 5, Appellant

          Argued: March 8, 2018

          BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

          OPINION BY JUDGE COVEY

          ANNE E. COVEY, JUDGE

         The Fraternal Order of Police Lodge No. 5 (FOP) appeals from the Philadelphia County Common Pleas Court's (trial court) December 21, 2016 order granting the City of Philadelphia's (City) Petition to Vacate Arbitration Award (Petition) and vacating Arbitrator James C. Peck Jr.'s (Arbitrator Peck) award (Award) retroactively promoting Lieutenant Jonathan Josey (Lieutenant Josey) from an invalid promotion list.[1] The FOP presents three issues for this Court's review: (1) whether the issue before Arbitrator Peck was within the terms of the 2014-2017 collective bargaining agreement (CBA); (2) whether the trial court erred by substituting its own judgment for that of Arbitrator Peck; and (3) whether the Award should be affirmed. After review, we affirm.

          Background

         On September 30, 2012, Lieutenant Josey was assigned to police the City's annual Puerto Rican Day Parade's after-party. During the course of this assignment, Lieutenant Josey had an interaction with Aida Guzman (Guzman) that was recorded on a cell phone and subsequently posted to the Internet for public viewing. The video showed Lieutenant Josey swinging his right hand and making contact with Guzman's upper body. Guzman fell to the ground and suffered minor facial injuries. Thereafter, then-City Police Commissioner Charles Ramsey viewed the video and concluded that Lieutenant Josey had used excessive force and violated the City Police Department's (Department) Disciplinary Code by making false entries in official documents related to Guzman's arrest. Following the City's issuance of a Notice of Intention to Dismiss, the City formally terminated Lieutenant Josey's employment on November 1, 2012.

         The FOP filed a grievance pursuant to the parties' CBA challenging Lieutenant Josey's employment termination and, on June 24 and 25, 2013, Arbitrator David J. Reilly (Arbitrator Reilly) conducted a hearing. On August 10, 2013, Arbitrator Reilly issued his award, as follows:

1. The grievance is granted.
2. The City did not have just cause to discharge [Lieutenant] Josey, effective November 1, 2012.
3. The City will promptly restore [Lieutenant] Josey to his former position within the Department as a Lieutenant in the Highway Patrol Unit without loss of seniority. In addition, the City will make him whole for all wages and benefits lost as a consequence of his suspension and subsequent discharge through the date of his reinstatement, less all outside wages and other earnings received by him as to this period. I will retain jurisdiction of this matter to resolve any dispute as to the monies to be paid to him based on this award, including the issue of whether [Lieutenant] Josey satisfied his obligation to mitigate his damages.
4. The Department will revise [Lieutenant] Josey's personnel record to delete all references to his November 1, 2012 discharge to the maximum extent permitted under the governing law.

         Reproduced Record (R.R.) at 43a (emphasis added). In accordance with the award, Lieutenant Josey was reinstated without loss of seniority or compensation.

         Facts

         In early 2014, Lieutenant Josey took and passed the City's promotional exam for Police Captain and, in June 2014, was ranked 15 out of 57 candidates. In January 2015, the City's Human Resources' Office certified a list of 20 names to the Department to fill 13 Police Captain vacancies. Lieutenant Josey was ranked 15 on the list of 20 names. The 13 vacancies were filled by candidates ranked 1 to 5 and 7 to 14. In February 2015, a list of 17 names was certified to the Department, on which Lieutenant Josey was now the highest-ranking candidate. Lieutenant Josey was interviewed by the Promotional Review Board, consisting of Inspectors Anthony Washington and Joel Dales, and Chief Inspector Christopher J. Flacco (Chief Inspector Flacco). During the interview, Chief Inspector Flacco questioned Lieutenant Josey about the September 30, 2012 incident. While the other two Inspectors recommended Lieutenant Josey for promotion, Chief Inspector Flacco provided a memorandum to City Police Commissioner Ross (Commissioner Ross) in which he did not recommend Lieutenant Josey for promotion because of the September 30, 2012 incident and its detrimental long-term impact on the relationship between the Department and the community it serves, as well as undermining his ability to command. Commissioner Ross elected to bypass Lieutenant Josey and promoted the next candidate on the list.

         On February 25, 2016, the FOP filed a grievance on Lieutenant Josey's behalf, challenging the denial of his promotion and, on May 17, 2016, Arbitrator Peck conducted a hearing. On July 27, 2016, Arbitrator Peck issued the following award:

1. The grievance alleging that the [] Department violated the [CBA], by refusing to promote [Lieutenant] Josey to the rank [of] Captain is cognizable under the terms of the [CBA], and is therefore arbitrable.
2. The City's decision to deny promotion to the rank of Captain to [Lieutenant] Josey, solely and exclusively upon prior discipline which had been expunged from his personnel record, is a violation of [Lieutenant] Josey's rights under the [CBA].
3. The City is directed to retroactively promote [Lieutenant] Josey to the rank of Captain, as of the date when he would have otherwise have been promoted, but for the discrimination which was visited upon him. Further, the City shall make [Lieutenant] Josey whole for any and all wages and benefits he ...

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