Brady Does Not Allow Employer To Fire Officer Without Providing Reasons

This article appears in the August 2020 issue of our monthly newsletter, Public Safety Labor News.

The Borough of Gettysburg, Pennsylvania and Local 776 of the Teamsters Union are parties to a labor contract covering police officers. In March 2017, the Borough’s Police Department referred a criminal investigation involving an officer (referred to only as “Grievant”) to the district attorney’s office. The District Attorney began an investigation, and eventually sent a letter to the police chief. The letter read in part:

“As you are aware, the Department 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 office that it will not participate in any future cases which are based solely upon the uncorroborated observations and testimony of the officer. 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 Department as a whole going forward.”

The Borough began disciplinary proceedings against the officer and scheduled a Loudermill hearing. At the hearing, the officer was told of the contents of the DA’s letter but the letter was not produced. When the Borough fired the officer, Local 776 challenged the decision in arbitration.

The Arbitrator found that the Borough lacked just cause to terminate the officer and ordered that the officer be reinstated and made whole for all lost wages and benefits. The Borough then challenged the Arbitrator’s decision in the Pennsylvania Commonwealth Court.

The Borough first argued that the Arbitrator’s award exceeded his jurisdiction because it forced the Borough to employ an officer who could no longer fulfill all required job duties. The Court disagreed, holding that “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.’ 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.

“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.”

The Borough argued that the Arbitrator exceeded his powers by addressing the officer’s Loudermill hearing. The Court again disagreed, noting that “Article XXV(D) of the CBA expressly mandates that prior to the implementation of any discipline which would result in a loss of compensation, ‘a non-probationary officer shall receive a due process proceeding of the type required by Loudermill.’ Because due process rights were contained in the CBA, the Arbitrator did not exceed his powers by addressing Grievant’s Loudermill hearing in his just cause determination.”

The Borough next argued 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 contended 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.

The Court found this argument unavailing, holding “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 itself in a situation wherein it could not provide the required information, not the Arbitrator.”

Finally, the Borough argued that the Court should find that the Arbitrator’s opinion violated public policy. The Court was unconvinced, citing the words of the Pennsylvania Supreme Court: “Broadening the narrow scope of review to 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 Employer’s recommendation to include this ill-defined term within the narrow scope of review, we would markedly increase the judiciary’s role in arbitration awards. This would undercut the Legislature’s intent of preventing protracted litigation in this arena.”

Borough of Gettysburg v. International Brotherhood of Teamsters, Local 776, 2020 WL 3022985 (Pa. Cmwlth. 2020).

Also in the August 2020 issue:

  • Contract’s Wage Provisions Not Constitutionally Protected
  • Interview For FF Position Ends With Arrest
  • Training Cost Repayment Agreement Cannot Conflict With CBA
  • Another Officer Loses A Brady Lawsuit Against A Prosecutor
  • Refusal To Amend Report Not Constitutionally Protected
  • Conduct And Statements Not Offensive Enough To Establish Harassment
  • Racist Comments From Hearing Board Member Violate Due Process
  • Refusal To Abide By Grievance Resolution Is Unfair Labor Practice
  • Lost Marijuana Results In Loss Of Chief’s Job
  • Lack Of Response From Dispatch Basis For PTSD Claim
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