Court Upholds Arbitrator’s Decision Allowing Officer To Work In Bar

The Township of Wilkins, Pennsylvania is party to a collective bargaining agreement with the Wage Policy Committee of the Wilkins Police Department for collective bargaining purposes. A clause in the collective bargaining agreement deals with the ability of officers to engage in off-duty work.

Officer Jon Sherman is a member of the Committee’s bargaining unit. Sherman was approached by Brewstone’s, a bar/restaurant, to work as a secondary checker of identifications, where a bartender or hostess suspected an identification was not authentic. Under Brewstone’s proposal, Sherman would not wear a uniform, serve alcohol, or act as a bouncer. If he were to believe that someone had offered a fake identification, he would call the police department.

When the Township denied Sherman’s request to work off duty at Brewstone’s, the Committee challenged the Township’s decision in arbitration. An arbitrator sustained the grievance.

Addressing the “potentially problematic situations” raised by the Township, the Arbitrator found that if Sherman were to find a fake identification, “he would tell the individual he was calling the police, but would not attempt to stop the person if he or she left. If a fight occurred, he would also call the Department.” Additionally, the Arbitrator found that “in general, when not on duty, if Sherman saw a crime being committed, he would not intervene, unless it was a life threatening situation, but would consider himself duty bound to report the matter to the appropriate police department.”

The Arbitrator concluded that “the undisputed evidence is that the establishment is an upscale, family place as distinguished from a nuisance bar or one where an officer’s presence would serve to legitimize a questionable establishment. The duties described would not involve condoning or even punishing, but rather preventing, underage drinking and the undesirable conduct, including driving under the influence, that may result.

“Preventing minors from obtaining alcohol seems to me consistent with the interests of the Township and its residents, rather than in conflict with those interests. Checking IDs, like working security at an athletic event or a retail establishment, helps to deter and prevent criminal activity and if anything furthers the interest of the Employer in preserving the peace.”

The Township challenged the Arbitrator’s decision in court, arguing primarily that the Arbitrator wrongly ordered it to pay lost wages to Sherman in compensation for the work he missed at Brewstone’s. Pennsylvania’s Commonwealth Court upheld most of the Arbitrator’s award, but remanded the matter back to the Arbitrator on the matter of how much Sherman should be paid.

The problem with what the Arbitrator did, the Court found, was that “the Arbitrator proceeded to consider and award to Sherman an unidentified amount of damages for potential loss of off-duty wages without examining the question of whether Sherman actually lost wages. The Arbitrator failed to provide the Township with an opportunity to present evidence that Sherman did not experience any lost off-duty wages or, if he did lose some off-duty wages, the amount of those lost wages. Such an action is more than an evidentiary ruling; it is one that deprived the Township of a party’s right to litigate fully an issue that is of essence to the Arbitrator’s award.

“Moreover, Sherman failed to offer evidence concerning his alleged lost wages. Unlike other cases where an arbitrator may be able to discern back pay amounts based upon the terms and conditions set forth in a collective bargaining agreement, in a case such as this where such information is likely in the hands of third parties, it was improper for the Arbitrator to issue an award that was silent as to the amount of lost wages. Consequently, we conclude that the Arbitrator’s action of issuing an award providing for lost off-duty wages, without any record support for such an award, and failing to provide the Township with an opportunity to refute the claim, triggered a violation of the Township’s due process rights.”

The Court ordered the Arbitrator to “take whatever procedural measures are required to determine whether Sherman is entitled to damages, and, if so, the amount of damages.”

Township of Wilkins v. Wage Policy Committee, 2015 WL 5438860 (Pa. Cmwlth. 2015).