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An arbitrator’s award of a remedy in excess of a collective bargaining agreement in an Act 111 arbitration can stand, the Pennsylvania Commonwealth Court has ruled. “At issue in this case is what can be done when an arbitrator, in an Act 111 arbitration, awards a remedy expressly prohibited by the collective bargaining agreement. The answer is not much,” Judge Dan Pellegrini wrote for the court in Bensalem Township v. Bensalem Township Police Benevolent Association Inc. Judges James Gardner Colins and Jess S. Jiuliante also sat on the panel. Act 111, or Collective Bargaining for Police & Firemen Act of the Pennsylvania Borough Code and Related Laws, gives police and fire personnel employed by the commonwealth the right to collective bargaining of terms and conditions of their employment. In March 1999, Bensalem Township discharged Charles J. Maddocks, a patrolman with the township’s police department. The township alleged that Maddocks violated the department’s code of conduct when he sought a district justice nomination for a May 1999 primary election. Maddocks’ offenses, the township said, included circulating a petition for his candidacy for public office, taking an active part in an election and soliciting money without proper authorization. After his discharge, the benevolent association requested that Maddocks be reinstated and filed for relief pursuant to the CBA’s grievance procedure. The challenge of Maddocks’ dismissal turned to the collective bargaining agreement. Article 23 of the CBA provides that “the arbitrator shall be limited in establishing or awarding a remedy of relief for any grievance filed under this agreement that allows monetary relief, including, but not limited to, back pay, to a term of no more than one year.” In June 1999, Richard Kasher, an arbitrator, was assigned Maddocks’ case. Pursuant to the CBA, any arbitration ruling would be binding. Kasher found that the township failed to comply with the disciplinary procedures in the township’s police rules, that the charges brought against Maddocks were premature, that Maddocks was not put on notice that he would be terminated for his political activity and, therefore, that Maddocks was not terminated for just cause. Kasher then ordered that Maddocks be reinstated, that his record be expunged, and that Maddocks be awarded 21 months of back pay, even though the terms of the CBA limit backpay to 12 months. After the award, the township filed a petition in the Bucks County Court of Common Pleas to modify the award. The court denied the request to modify, and the township appealed to the Commonwealth Court. Contending that Kasher’s award should be vacated because the award was outside the scope of the CBA, the township argued that the decision was beyond Kasher’s jurisdiction and consequently exceeded his authority. The court reluctantly disagreed with the township’s argument. “Because that award does not require the township to perform an illegal act or require the township to perform an act which it could not do voluntarily, we cannot say, unfortunately, that [Kasher] exceeded his authority,” Pellegrini wrote. According to precedent set in City of Philadelphia v. Fraternal Order of Police Lodge No. 5, an arbitrator acts in excess only when he or she orders that an illegal act be carried out, and that only acts that could be done voluntarily by an employer can be ordered. The court also said, with hesitation, that the township addressed the wrong issue in its jurisdiction argument because jurisdiction is based on the power to decide an issue in a dispute and is not based on the fashioning of an award. “In this case, the issue in dispute submitted to [Kasher] was whether just cause existed to terminate Patrolman Maddocks, and because neither party alleges that [Kasher] did not have jurisdiction to determine that issue, we cannot, unfortunately, say that he acted outside of his jurisdiction. Accordingly, only because we are compelled to do so, we affirm the arbitrator’s award.”

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