Yesterday, we reported on a Commonwealth Court decision that basically concluded that an arbitrator’s award ordering the reinstatement of a discharged employee who is incapable of performing his job violates the “essence test.” We also noted that a subsequent decision of the court seems to be a bit in conflict with that holding. Let’s take a closer look at that decision.

The Commonwealth Court addressed (what appeared to be) a similar question in the context of a state trooper. The Trooper, a male, had a romantic relationship with a female, which ultimately failed. Thereafter, the female Trooper filed complaints that alleged the male Trooper was harassing her. The Pennsylvania State Police conducted an investigation and found the complaints unsubstantiated. Alleging the same behavior, the female Trooper filed for a Protection of Abuse order (PFA). A judge ultimately issued the PFA, which had a condition that the male Trooper could not carry a firearm. Because he could not carry a firearm, the male Trooper was placed on restrictive duty pending an additional internal investigation. Upon confirming that the PFA included a condition that barred him from carrying a firearm, the State Police terminated the male Trooper.

The Trooper filed a grievance and ultimately submitted the issue to arbitration. The arbitrator ordered that the Trooper be reinstated. The State Police appealed to the Commonwealth Court. Same result as the correctional officer, right? He cannot perform the essential duties of his position, so requiring his employment infringes managerial rights? Nope.

There are two key differences. First, unlike the correctional officer, whose collective bargaining rights are set out in the Public Employee Relations Act (PERA), the state trooper’s collective bargaining rights are established under Act 111. In reviewing arbitration awards under PERA the court uses the highly deferential essence test. However, in reviewing arbitration awards under Act 111, the court uses an even more deferential and narrow test. It is indeed narrow, justifying a vacation of an arbitrator’s award only if there is a lack of jurisdiction, irregularity of proceedings, excess in the exercise of powers, or deprivation of constitutional rights. The State Police argued that the Trooper’s reinstatement was in excess of the arbitrator’s powers. The court disagreed, finding that there is only an excess use of powers if the award requires an illegal act or performance of an act which cannot be done voluntarily. No such excess was present here.

The second difference is more fundamental: unlike the correctional officer, the State Police’s justification for the Trooper’s termination was not his inability to perform the essential functions of a police officer (carry a firearm), but it was the harassing conduct underlying the issuance of the PFA. According to the State Police, the underlying conduct violated department regulations for “unbecoming conduct” and “conformance of laws.” However, those regulations required physical abuse, commission of a felony or misdemeanor, or use of a firearm. None of the harassing conduct underlying the PFA involved any of this type of conduct. Thus, the court found the arbitrator did not exceed his authority in concluding that there was not just cause for the Trooper’s termination.

So, for our public employer subscribers, these cases serve as a reminder that arbitrator decisions are subject to great deference on appeal, making success during arbitration of critical importance. But more importantly, it makes clear that if you are planning on terminating an employee who has established that he or she is unable to perform the essential duties of his or her position, that must be the documented basis (or at least part) for the termination.