A Pennsylvania State Police trooper fired for unbecoming conduct after he was accused of harassment by a female trooper can return to work because the incidents that led to his dismissal were not proven at an arbitration hearing, the Commonwealth Court has ruled.
A split three-judge panel issued a memorandum Jan. 5 finding that an arbitration award reinstating trooper Craig Acord was within the arbitrator’s authority.
“Because the award does not require the PSP to perform an illegal act that it could not do voluntarily, the arbitrator did not exceed his authority,” Senior Judge Dan Pellegrini wrote for the 2-1 majority in Pennsylvania State Police v. Pennsylvania State Troopers Association. “Moreover, because the parties stipulated that the arbitrator had jurisdiction to decide whether there was just cause to discharge grievant and to decide the remedy, the arbitrator clearly acted within his jurisdiction.”
Trooper Rachel Jones filed several complaints against Acord alleging harassing behavior following the end of their relationship in 2014, including a protection from abuse order filed in 2015 that was made permanent in 2016, Pellegrini said. The PFA restricted Acord from carrying a gun until May 2018, which led him to be placed on restricted duty because he could not perform his normal duties.
In October 2016, Acord was officially dismissed with a notice of disciplinary penalty that indicated he violated regulations regarding unbecoming conduct and conformance to laws. Pellegrini noted that the notice did not list his inability to perform an essential job function because of the PFA as a reason for his dismissal.
In March 2017, an arbitrator ordered Acord to be reinstated, primarily because he found that the decision to discharge was based on two underlying incidents of harassing conduct that were the subject of two internal investigations and were found “not sustained,” nor were they proven at the arbitration hearing or considered when a disciplinary action report was issued. The award said Acord should not lose seniority and should be made whole for any losses suffered as a result of his discharge, including back pay.
On appeal, the PSP argued that the award exceeded the arbitrator’s powers and that there were irregularities in the proceedings.
Pellegrini relied on the Commonwealth Court’s 2002 ruling in Bensalem Township v. Bensalem Township Police Benevolent Association for its holding that if an award does not require the performance of an illegal act or one that a party cannot do voluntarily, it does not exceed an arbitrator’s authority.
“Because the [notice of disciplinary penalty] did not discharge grievant because of his inability to carry a firearm or carry out essential job functions, the limited issue before the arbitrator was whether the aforementioned reasons demonstrate ‘just cause’ for discharge, and ‘if not, what shall the remedy be?’” Pellegrini said.
The award did not overstep that issue, the court found.
Pellegrini also said that because the PFA did not establish physical abuse, the commission of a felony or misdemeanor, or the use of a firearm to threaten another, the PSP failed to prove that Acord committed either of the violations of the collective bargaining agreement with which he was charged, making the arbitrator’s award proper.
There was also nothing irregular in the arbitration proceeding, despite the arbitrator’s reliance on the PFA and not on prior internal reports and investigations to support the PSP’s contention that it had just cause, Pellegrini said.
“Just because a party does not agree with an arbitrator’s evidentiary rulings does not make the process irregular, even if the arbitrator’s rulings were inconsistent or just plain wrong,” Pellegrini said.
A spokesman for the PSP declined to comment on the case. Sean Welby of Welby, Stoltenberg, Cimballa & Cook, who represented Acord and the Pennsylvania State Troopers Association, did not return a call for comment.