Commonwealth Court panel affirms arbitrator's decision ordering back pay for suspended state trooper

A Commonwealth Court panel has affirmed the decision of an arbitrator who instructed

the Pennsylvania State Police to award $15,000-plus in back pay to a state trooper who had been placed on temporary leave while dealing with personal problems.

The three-judge panel on Oct. 2 issued an opinion affirming the Feb. 4 decision of arbitrator William J. Miller, Jr. directing the Pennsylvania State Police to compensate Trooper Michael Keyes in the amount of $15,810.08, which had initially been deducted from a back pay arbitration award to offset Keyes’ earned income from another employer.

The case dated back to early February 2007 when Keyes was removed from duty due to a number of suicide attempts, one of which resulted in Keyes’ involuntary commitment, background information shows.

A grievance was filed on Keyes’ behalf by the state police union challenging the trooper’s removal from duty, and after it was denied, an arbitrator ordered that Keyes be returned to limited duty on Oct. 20, 2008, but without back pay.

The state police appealed that decision to Commonwealth Court, which upheld the arbitrator’s award.

A subsequent application for appeal was denied by the state Supreme Court.

While the various appeals were under way, however, the PSP did not allow Keyes to return to work, according to the Commonwealth Court opinion.

On July 9, 2010, the PSP placed Keyes back on the payroll and compensated him for back pay, but the organization withheld $15,810.08, money that Keyes had earned while working as a bus driver in a supplementary fashion while he was on suspension from the state police.

After the union filed another grievance seeking full compensation for back pay, the commonwealth sent the union a letter stating that it viewed the issue as non-arbitrable because it was not encompassed by the collective bargaining agreement between the union and the PSP.

The case then went to arbitration before Miller, who found that the offset for outside employment was arbitrable, and the dispute progressed to arbitration on the merits, the background information shows.

The Commonwealth Court panel wrote that because no contractual provision or past practice addressed this exact issue, the arbitrator determined that the earlier arbitration award, which reinstated Keyes to limited duty, intended to reinstate Keyes immediately at the time of the award, yet the trooper was not actually reinstated until after the PSP exhausted its legal remedies.

“Because the award was to be implemented immediately, the Arbitrator found that the offset on Keyes’ back pay award was not authorized by the Agreement or established past practice, and he ordered PSP to pay Keyes $15,810.08 as reimbursement for the improper offset,” the Commonwealth Court’s opinion states.

The appeal to Commonwealth Court followed, with the PSP arguing that the arbitrator exceeded his jurisdiction in determining that the PSP could not offset Keyes’ interim earnings.

In its opinion, the appellate panel disagreed with the PSP, writing that “the propriety of PSP’s offset was submitted to the Arbitrator for resolution and was necessarily within his jurisdiction to decide.”

The panel further determined that absent ordering an illegal act, as long as an award is within the arbitrator’s jurisdiction, is not in excess of his powers, or is not unconstitutional, “an arbitrator’s award is not reviewable.”

The PSP had also argued that when there is no provision of the collective bargaining agreement that applies, it contends the arbitrator’s award should have allowed the compensation offset, especially where it is established that there was a past practice of allowing offsets for earned salary from back pay awards.

The appellate panel, however, again disagreed, writing that no past practice on the issue has been found by the arbitrator.

The opinion was signed by Commonwealth Court President Judge Dan Pellegrini. He was joined in the decision by Judges Renee Cohn Jubelirer and Rochelle S. Friedman.