                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Borough of Gettysburg,                  :
                         Appellant      :
                                        :
                   v.                   :
                                        :
International Brotherhood of Teamsters, :           No. 1460 C.D. 2019
Local 776, Police Labor Organization :              Submitted: May 11, 2020


BEFORE:        HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE J. ANDREW CROMPTON, Judge


OPINION BY
JUDGE COVEY                                         FILED: June 5, 2020

               The Borough of Gettysburg (Borough) appeals from the Adams County
Common Pleas Court’s (trial court) September 20, 2019 order denying the Borough’s
Petition to Vacate Grievance Arbitration Award (Petition to Vacate). The Borough
presents three issues for this Court’s review: (1) whether the Arbitrator exceeded his
powers by creating a new set of job duties in conflict with the parties’ Collective
Bargaining Agreement (CBA) and infringing on the Borough’s inherent managerial
rights, and by addressing Michael Carricato’s (Grievant) Loudermill hearing,1 which
was raised in a separate grievance that the International Brotherhood of Teamsters,
Local 776, Police Labor Organization (Union) voluntarily waived; (2) whether the
Borough was denied procedural due process when the Arbitrator ruled against the
Borough for failing to do something that was legally impossible for it to do; and (3)
whether the standard of review for cases arising out of what is commonly referred to




      1
          Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).
as Act 1112 should encompass a public policy exception under the excess powers
prong of narrow certiorari. After review, we affirm.
                The Borough hired Grievant as a police officer in March 2014. In
March 2017, the Borough Police Department (Department) referred a criminal
investigation involving Grievant to the Adams County District Attorney’s (DA)
Office.3      At or around the same time, the Department placed Grievant on
administrative leave with pay. The Department returned Grievant to active service in
early October 2017, except for his patrol duties, and notified the DA’s Office.
Adams County DA Brian Sinnett (DA Sinnett) had periodic conversations with then-
Chief of Police Joseph Dougherty (Chief Dougherty) before Grievant’s return to
work, including discussions about the DA not prosecuting any matters based solely
upon Grievant’s observations and testimony.                   Chief Dougherty shared these
discussions with Mayor Theodore Streeter (Mayor Streeter).
                Upon Grievant’s return to active service, Mayor Streeter sent a letter to
DA Sinnett asking that DA Sinnett put the DA’s determination concerning Grievant
in writing. By October 10, 2017 letter, DA Sinnett stated:

                I am in receipt of a letter dated October 3, 2017 from Mayor
                [] Streeter regarding [Grievant’s] return to active duty. As
                you are aware, [the D]epartment referred a criminal
                investigation involving this officer to my office and we
                have proceeded accordingly.           As a result of that
                investigation, while not complete, it is the position of this
                [DA’s O]ffice that [it] will not participate in any future
                cases which are based solely upon the uncorroborated
                observations and testimony of [Grievant]. This is as a result
                of our pending investigation and information revealed as
                part of that[,] as well as the deliberative process of the
                [DA].


      2
          Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1–217.10.
      3
          The record does not reveal the alleged crime, nor any underlying facts.


                                                  2
            I know you and I have discussed these matters periodically
            with some detail throughout the investigation. I wish to
            stress that I am sharing this with you solely as a law
            enforcement colleague and as the head of [the D]epartment.
            Please do not disseminate this letter or the information
            contained therein to any other non-law enforcement entity.
            I cannot stress this enough. Dissemination would result in
            this office potentially failing to interact with [the
            D]epartment as a whole going forward.
            I welcome the opportunity to discuss this matter with you at
            your convenience.

Reproduced Record (R.R.) at 228a.
            Chief Dougherty shared the contents of DA Sinnett’s letter with
Borough Manager Charles Gable (Manager Gable). Chief Dougherty then met with
Grievant on October 30, 2017. On November 8, 2017, Manager Gable and Mayor
Streeter conducted a Loudermill hearing for Grievant, who attended with his Union
representative. At the hearing, Grievant was told of the contents of DA Sinnett’s
letter, but the letter was not produced. Thereafter, Manager Gable met with Borough
Council and recommended that Grievant’s employment be terminated. Borough
Council voted to discharge Grievant.
            By November 14, 2017 letter, Manager Gable notified Grievant of his
employment termination. On November 20, 2017, Grievant filed a grievance. The
Borough denied the grievance and the matter proceeded to arbitration. The Arbitrator
held a hearing on November 16, 2018. On May 9, 2019, the Arbitrator sustained the
grievance, finding the Borough did not have just cause to terminate Grievant’s
employment. The Arbitrator ordered that Grievant be immediately reinstated and
made whole with respect to pay and benefits (minus interim earnings), subject to
Grievant satisfying all physical fitness for duty requirements, as well as any
necessary training obligations. The Borough filed the Petition to Vacate, which the
trial court denied on September 20, 2019. The Borough appealed to this Court.


                                         3
               At the outset,

               [j]udicial review of an arbitration award arising under [Act
               111] is in the nature of narrow certiorari. Under this
               standard, a review in court is limited to questions regarding:
               (1) the jurisdiction of the arbitrator; (2) the regularity of the
               proceeding; (3) an excess of the arbitrator’s powers; and (4)
               the deprivation of constitutional rights. The standard of
               review to be applied is two-fold. A court’s review is a
               plenary, non-deferential standard where the resolution of
               the issues turns on a question of law or application of law to
               undisputed facts. However, where the question depends on
               fact-finding or upon interpretation of the collective
               bargaining agreement, the court is bound by the arbitrator’s
               determination even if the arbitrator is wrong.

City of Phila. v. Fraternal Order of Police, Lodge No. 5, 181 A.3d 485, 489 (Pa.
Cmwlth. 2018) (original bold emphasis omitted) (quoting Town of McCandless v.
McCandless Police Officers Ass’n, 952 A.2d 1193, 1196 n.6 (Pa. Cmwlth. 2008))
(bold emphasis added; citations omitted).
               The Borough first argues that the Arbitrator exceeded his powers by
creating a new set of job duties in conflict with the CBA and infringing on the
Borough’s managerial rights. Specifically, the Borough contends that the Arbitrator’s
award forces the Borough to employ an officer who can no longer fulfill the required
job duties specified in Article V of the CBA. The Borough cites Department of
Corrections, State Correctional Institution at Forest v. Pennsylvania State
Corrections Officers Ass’n, 173 A.3d 854 (Pa. Cmwlth. 2017) (SCI-Forest), to
support its position that the award infringes on the Borough’s managerial rights.
               The Union rejoins that the Arbitrator did not exceed his powers, but
rather, he properly determined that Grievant’s discharge was not based on the
contractually required just cause. The Union relies upon City of Philadelphia v.
Local International Ass’n of Firefighters, Local 22, 999 A.2d 555 (Pa. 2010), as
controlling.

                                              4
             Initially,

             the excess of powers prong of narrow certiorari focuses
             upon the particular action an [arbitrator] took in resolving
             an Act 111 dispute and asks whether the action was
             authorized. In [City of Washington v. Police Department of
             the City of Washington, 259 A.2d 437 (Pa. 1969)], [the
             Pennsylvania Supreme Court] stated:
                 Whether the decision maker in an adjudicatory
                 process has been guilty of an excess in the exercise
                 of power depends fundamentally on whether he has
                 gone outside the boundaries of his authority. No
                 adjudicatory body has unlimited discretion. At the
                 very least, each and every adjudicator is bound by
                 the Constitution of the United States; and most are
                 bound by even tighter strictures. The restrictions
                 may go to the nature of the controversies which they
                 can decide, the parties who may appear before them,
                 the type of relief they may grant, or any other
                 element in the adjudicatory process.
             [Id.] at 441.

Int’l Ass’n of Firefighters, 999 A.2d at 564-65 (italics added).
             Article III of the CBA provides:

             It is recognized that the well-being of both parties to [the
             CBA] is directly dependent upon the skills and efficiency
             with which the police business of the Borough is conducted,
             and that any assumption of the functions of management by
             representatives of the Union is contrary to the intent and
             purpose of such [CBA]. The authority and responsibility
             for management of the police business and activities of the
             Borough shall rest with the Borough and its appointed or
             elected representatives, and the Union, or its
             representatives, shall not unlawfully interfere with the
             exercise of such authority and responsibility.
             The Union recognizes that management retains certain
             rights, and the management representatives of the Borough
             may exercise the following rights unless specifically
             modified by a term or provision of the [CBA]:


                                           5
            A. Hire, direct, transfer, assign, promote, retain, lay off and
            recall [p]olice personnel; Discipline, including, but not
            limited to, suspension, demotion or discharge Officers
            only for just cause, subject to the provisions of this
            [CBA] and applicable laws;
            B. Determine the methods and means by which the
            operations of the [] Department are to be conducted, and to
            maintain the efficiency thereof; and
            C. Nothing herein shall, in any manner, be construed as a
            waiver of any right guaranteed to municipal employees by
            the applicable Civil Service Acts of the Commonwealth
            pertaining to Borough Police Forces, or any terms of this
            [CBA].
R.R. at 3a-4a (emphasis added). Article V of the CBA describes:
            The duties of a [p]olice [o]fficer covered by this [CBA]
            shall include the enforcement of all Borough ordinances,
            together with state and federal statutes, where that authority
            is delegated to them. Officers shall be required to perform
            any duties which are reasonably related to criminal law
            enforcement, crime prevention, police community relations,
            protection of life and property, public safety, the arrest and
            apprehension of offenders, or the enforcement of Borough
            ordinances which reasonably require the intervention of the
            [] Department.
R.R. at 4a. Article XXV of the CBA mandates:
            A. In general, discipline shall be progressive, though certain
            offenses will justify, in and of themselves, the immediate
            use of suspension without pay or dismissal.
            B. Discipline may take the form of demotion, a written
            reprimand, a suspension without pay, or dismissal
            (removal). Demotions can be either non-disciplinary or
            disciplinary in nature. The nature of any demotion
            decision shall be specifically stated.
            C. The Pennsylvania courts hold [p]olice [o]fficers to a
            particularly high standard of conduct and this is a factor in
            disciplining [p]olice [o]fficers.



                                          6
            D. Prior to the implementation of any discipline which
            would result in a loss of compensation, a non-
            probationary [p]olice [o]fficer shall receive a due
            process proceeding of the type required by [Loudermill].
            However, any such Loudermill type proceedings shall not,
            in any way, constitute a waiver of any hearing rights or
            other rights afforded an [o]fficer pursuant to the Civil
            Service provisions of the Borough Code or this [CBA].
            E. The asserted basis for a non-disciplinary demotion
            may be challenged in the same manner as discipline may
            be challenged.
            F. An [o]fficer may challenge the imposition of discipline
            either through civil service procedures or the grievance
            procedure, but not both. Initiating an appeal in one of these
            forums shall be an election of that forum and a waiver of
            the alternative forum.
            G. All discipline must be for just cause. In determining
            whether just cause existed for discipline, any trier of fact
            must reference the body of civil service case law which has
            been developed relative to the disciplining of [p]olice
            [o]fficers, including the case law which applies to the
            severity of the discipline imposed.

R.R. at 24a (emphasis added).
            SCI-Forest did not involve an Act 111 arbitration; thus, the standard of
review in SCI-Forest was the essence test, which does not include an excess of
powers prong. In SCI-Forest, the grievant worked as a corrections officer at the State
Correctional Institution at Forest (SCI-Forest). During the incidents at issue, the
grievant was a maintenance rover. The duties for that post included supervising a
crew of inmates in the maintenance annex of the prison. As a maintenance rover, the
grievant supervised the crew of inmates that unloaded deliveries from delivery trucks
and patrolled the area to maintain the security of the entrance and exit near the back
dock. The grievant was discharged based on, inter alia, a video showing the grievant
and inmates removing food and supplies from the trucks and storing them in a
dumpster. The arbitrator in that case determined that the grievant should not be in a

                                          7
position that requires his supervision of inmates. Although the arbitrator ruled the
Department of Corrections (DOC) had just cause to discipline the grievant, he found
that employment termination was not warranted and reinstated the grievant. On
appeal, this Court held: “By reinstating [the g]rievant to a corrections officer position
while placing a restriction on him that is irreconcilable with the statutory definition of
correction officer, thereby infringing on [DOC’s] managerial right to direct
corrections officers at SCI-Forest, the [a]rbitrator’s award failed to satisfy the essence
test.” Id. at 860.
               Here, unlike in SCI-Forest, the Arbitrator did not find Grievant
committed misconduct and place restrictions on Grievant as a result thereof. Rather,
the Arbitrator opined: “I am unable to address the substantive merits of the Borough’s
termination decision in this case, since I find that the Borough failed to provide []
Grievant adequate procedural due process prior to terminating his employment.”
R.R. at 40a. In sum, the Arbitrator determined that, since Grievant was not given any
basis for his discharge, and therefore no ability to defend himself at the required
Loudermill hearing, the Borough “did not have just cause to fire him.” R.R. at 43a.
Accordingly, the Borough’s reliance on SCI-Forest is misplaced as it is inapposite.
               This Court concludes that the instant case is closely aligned with
International Ass’n of Firefighters,4 wherein the Pennsylvania Supreme Court
explained:

               Given the General Assembly’s intent in passing Act 111, . .
               . when reviewing a disputed [grievance] in an Act 111 []
               arbitration award, a court should first inquire whether the
               [grievance] concerns a topic that is subject to the right of
               collective bargaining, i.e., is rationally related to the terms
               and conditions of employment. If the topic is so subject,

       4
          This Court acknowledges that International Ass’n of Firefighters involved an interest
arbitration and although this case arises from a grievance arbitration, the standard of review is the
same in both instances.
                                                 8
             the court should next inquire whether the award also
             implicates the non-bargainable managerial prerogatives of a
             public employer. If the award does, the court must then
             determine whether the award unduly infringes upon the
             exercise of those managerial responsibilities. If the award
             does not unduly infringe upon their exercise, the award
             concerns a subject that lies within the scope of collective
             bargaining . . . , falls within the [arbitrator’s] Act 111
             powers, and is confirmable. If, however, the award unduly
             infringes upon the exercise of managerial responsibilities,
             then the award concerns a managerial prerogative that lies
             beyond the scope of collective bargaining, reflects an
             excess of the [arbitrator’s] Act 111 powers, and is voidable.

Int’l Ass’n of Firefighters, 999 A.2d at 570-71.
             Here, the disputed issue was whether Grievant was discharged for just
cause, which is clearly controlled by the CBA. Further, the award reinstated Grievant
on the basis of no just cause, which is also undoubtedly among the Arbitrator’s
powers. Consequently, “the award [does not] unduly infringe[] upon the exercise of
[the Borough’s] managerial responsibilities[.]” Id. at 571. Accordingly, the award
does not “reflect[] an excess of the [Arbitrator’s] Act 111 powers[.]” Id.
             The Borough further argues that the Arbitrator exceeded his powers by
addressing Grievant’s Loudermill hearing, which was raised in a separate grievance
that the Union voluntarily waived.

             Initially, we note that the term ‘just cause’ was not defined
             by the parties in the [CBA]. By failing to agree upon and
             incorporate a definition of just cause into the [CBA], and by
             casting the [A]rbitrator into the role of resolving disputes
             arising under the [CBA], we believe that it is clear that the
             parties intended for the [A]rbitrator to have the authority to
             interpret the terms of the agreement, including the
             undefined term ‘just cause’ and to determine whether there
             was just cause for discharge in this particular case.

Office of Attorney Gen. v. Council 13, Am. Fed’n of State, Cty. Mun. Employees,
AFL-CIO, 844 A.2d 1217, 1224 (Pa. 2004).


                                           9
The Arbitrator reinstated Grievant because the Borough failed to provide Grievant
adequate procedural due process at his Loudermill hearing by not telling him the
reason for his employment termination. Article XXV(D) of the CBA expressly
mandates:

            Prior to the implementation of any discipline which would
            result in a loss of compensation, a non-probationary [p]olice
            [o]fficer shall receive a due process proceeding of the type
            required by [Loudermill]. However, any such Loudermill
            type proceedings shall not, in any way, constitute a waiver
            of any hearing rights or other rights afforded an [o]fficer
            pursuant to the Civil Service provisions of the Borough
            Code or this [CBA].

R.R. at 24a. Because the due process rights were contained in the CBA, see cf.
Bethel Park Sch. Dist. v. Bethel Park Fed’n of Teachers, Local 1607, 55 A.3d 154
(Pa. Cmwlth. 2012), the Arbitrator in the instant appeal did not exceed his powers by
addressing Grievant’s Loudermill hearing in his just cause determination.
            The Borough next asserts that it was denied procedural due process
when the Arbitrator ruled against the Borough for failing to do something that was
legally impossible for it to perform. Specifically, the Borough contends that the
Arbitrator concluded that the Borough had an obligation under Loudermill to inform
Grievant about why the DA’s Office no longer intended to prosecute cases involving
Grievant, as outlined in DA Sinnett’s October 10, 2017 letter.          The Borough
maintains that it did not possess, has never possessed and could not lawfully obtain
that information.    The Union responds that the Borough was not denied the
opportunity to offer testimony or evidence but, rather, the Borough had a full and fair
opportunity to be heard, to present evidence, to authenticate evidence subject to
dispute and proper objection and, nonetheless, chose not to avail itself of what it now
says was an essential element of its case.      As such, it cannot be said that the



                                          10
Borough’s procedural due process rights were in any way compromised in the
arbitration proceeding, much less denied.
             The Borough cites City of Philadelphia v. Fraternal Order of Police
Lodge No. 5 (Breary), 985 A.2d 1259 (Pa. 2009), to support its position. In Breary,
after the union subpoenaed documents from the City of Philadelphia (City) for an
arbitration hearing, and the City did not provide them, the union requested sanctions.
The arbitrator continued the hearing for oral argument on the sanctions. In the
interim, the City discovered that the subpoenas were not honored due to a clerical
error and provided the documents two weeks before the next hearing date. The
arbitrator nevertheless precluded the City from presenting any evidence relating to
the subpoenaed documents as a sanction for not immediately providing the
documents. This Court vacated the arbitrator’s award in favor of the union because
preclusion of all evidence was essentially a dismissal of the case in violation of the
City’s due process rights. The Pennsylvania Supreme Court affirmed this Court’s
decision.
             Here, the Borough is essentially asking this Court to find that the
Borough’s denial of Grievant’s due process rights in not providing the reasons for his
dismissal is justified because the Borough could not obtain said information, and for
the Arbitrator to base his award on the Borough’s failure to provide said information
denied the Borough its due process rights. This Court cannot draw such a conclusion.
The Borough chose to discharge Grievant due to a letter for which the underlying
basis was unknown. Thus, the Borough put it itself in a situation wherein it could not
provide the required information, not the Arbitrator. Accordingly, the Borough’s due
process rights were not violated.
             Lastly, the Borough asserts that the standard of review for Act 111 cases
should encompass a public policy exception under the excess powers prong of narrow
certiorari. The Pennsylvania Supreme Court rejected that contention in Pennsylvania
                                            11
State Police v. Pennsylvania State Troopers Ass’n (Smith & Johnson), 741 A.2d 1248
(Pa. 1999), as follows:

             Broadening the narrow certiorari scope of review to include
             a provision which would allow the courts to interfere with
             an arbitrator’s award whenever that award could be deemed
             to be violative of ‘public policy’ - however that nebulous
             concept may be defined by a particular appellate court -
             would greatly expand the scope of review in these matters.
             If we were to adopt [the appellant’s] recommendation to
             include this ill-defined term within the narrow certiorari
             scope of review, we would markedly increase the
             judiciary’s role in Act 111 arbitration awards. This would
             undercut the legislature’s intent of preventing protracted
             litigation in this arena.

Id. at 1252-53 (italics added). Accordingly, the standard of review for Act 111 cases
does not encompass, and this Court will not expand it to include, a public policy
exception under the excess powers prong of narrow certiorari.
             For all of the above reasons, the trial court’s order is affirmed.



                                        ___________________________
                                        ANNE E. COVEY, Judge




                                           12
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Borough of Gettysburg,                  :
                         Appellant      :
                                        :
                   v.                   :
                                        :
International Brotherhood of Teamsters, :   No. 1460 C.D. 2019
Local 776, Police Labor Organization :


                                    ORDER

            AND NOW, this 5th day of June, 2020, the Adams County Common
Pleas Court’s September 20, 2019 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
