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Fraternal Order of Police, Lodge #5 v. City of Philadelphia

Commonwealth Court of Pennsylvania

April 4, 2018

Fraternal Order of Police, Lodge #5 and Arthur Herder
v.
City of Philadelphia Appeal of: Arthur Herder

          Argued: March 8, 2018

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

          OPINION

          ROBERT SIMPSON, Judge.

         BY JUDGE SIMPSON

         In this grievance arbitration matter, Arthur Herder (Grievant) appeals an order of the Court of Common Pleas of Philadelphia County (trial court)[1] that denied Grievant's petition to intervene and to vacate a grievance arbitration award issued under the statute known as the Policemen and Firemen Collective Bargaining Act, [2] more commonly referred to as Act 111. The award concluded that the City of Philadelphia (City) had just cause to terminate Grievant for conduct unbecoming an officer. The trial court agreed with the City and Grievant's union, the Fraternal Order of Police, Lodge No. 5 (Union), that in accord with the parties' collective bargaining agreement (CBA), and their longstanding practices, only City and the Union, as the parties to the CBA, have standing to initiate arbitration or appeal an adverse arbitration award.

         Grievant contends the trial court erred in determining he lacked standing to bring his petition to intervene and to vacate the arbitration award. In response, the City and the Union assert: Grievant cannot challenge an arbitration award as an intervenor where neither the City nor the Union instituted an action in the trial court in which Grievant could intervene; Grievant cannot challenge an arbitration award as a plaintiff or petitioner where he is neither a party to the CBA nor authorized by the CBA to initiate arbitration; and, even assuming, for sake of argument, that Grievant had standing to challenge the arbitration award, his challenge did not raise any issues reviewable under Act 111's narrow certiorari standard. For the reasons that follow, we affirm.

         I. Background

         The City hired Grievant as a police officer in 1993. Since 2006, the City suspended Grievant on three occasions. Grievant received a 30-day suspension in 2007 for vandalizing his wife's vehicle. In 2012, the City twice suspended Grievant for abusing his authority while off duty. The City also twice transferred Grievant for threatening behavior toward his coworkers.

         In January 2015, the City Police Department's Office of Internal Affairs (OIA) learned of a road rage incident in Cheltenham Township, a neighboring municipality. During the incident, Grievant allegedly exited his vehicle and threatened two high school seniors who blew their horn at Grievant for passing their car in the opposing traffic lane and then making a left turn before they could do so. Grievant stopped his vehicle, walked up to the driver's window, cursed at him, and threatened to "put bullet holes in him." See Arbitrator's Award (Award), 10/14/16, at 5; Reproduced Record (R.R.) at 36. When returning to his vehicle, Grievant lifted his shirt to reveal a handgun. Id. Grievant then made a shooting gesture toward the driver with his thumb and index finger. Id.

         The two students reported the incident to their school police officer and the Cheltenham Police Department. They accurately reported Grievant's license plate number and described him and his vehicle. At the time of the incident, Grievant was on injury leave.

         OIA performed its own investigation and determined that "more likely than not" Grievant engaged in the misconduct as alleged. Award at 6; R.R. at 37. OIA presented its findings to the Police Board of Inquiry (Board), which found Grievant guilty of "conduct unbecoming" under four sections of the Department's Disciplinary Code.[3] The Board recommended a 120-day suspension (30-day suspension without pay on each of the four charges). Id. However, the Police Commissioner terminated Grievant's employment.

         Thereafter, the Union filed a grievance, which the City denied. The Union demanded arbitration. In April 2016, Arbitrator James M. Darby (Arbitrator) conducted a hearing at which the parties presented their evidence and arguments. The Union argued that the City failed to establish just cause for Grievant's termination. In an October 2016 decision, Arbitrator found, based on the totality of the evidence presented, that more likely than not Grievant engaged in the alleged conduct. See Award at 14-15; R.R. at 45-46. Arbitrator also determined Grievant's actions constituted "conduct unbecoming" under three sections of the Department's Disciplinary Code.[4] Award at 15; R.R. at 46. Taking into consideration Grievant's prior disciplinary history, Arbitrator determined Grievant had notice that the City had just cause to terminate his employment based upon another incident of conduct unbecoming an officer.

         In November 2016, Grievant filed a petition to intervene and vacate the arbitration award with the trial court. In accord with a rule to show cause, the City and the Union filed responses in opposition to Grievant's petition. On December 30, 2016, the trial court entered an order denying Grievant's petition to intervene and vacate. Grievant timely appealed to the Superior Court, which transferred the appeal here.

         In an opinion in support of its order, the trial court observed that Section XXI of the parties' 2014-17 CBA (R.R. at 112-13), governing grievance and arbitration procedure, does not specify who has the right to demand arbitration, or to appeal an adverse arbitration award. Nonetheless, the trial court agreed with the City and the Union that such authority rests solely with the exclusive parties to the CBA, which are the ...


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