Supplemental Brief — Kane Gas Light & Heating Co. v. International Brotherhood of Firemen & Oilers, Local 112

No. 82-1046 Citice- Supreme Court, U.S.

Tr rT D

| _ ‘In The FEB 23 i983

| Aupreme Court of the Hrited State

+

October Term, 1982

KANE GAS LIGHT AND HEATING COMPANY,

Petitioner,

vs.

INTERNATIONAL BROTHERHOOD OF FIREMEN AND

OILERS, LOCAL 112,

Respondent.

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the Third Circuit

SUPPLEMENTAL BRIEF FOR PETITIONER

JOHN A. BOWLER JOHN W. ENGLISH

162 West Sixth Street 204 West 6th Street

Erie, Pennsylvania 16501 Erie, Pennsylvania 16507

(814) 454-4533 (824) 453-8984

Attorneys for Petitioner

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No. 82-1046

Supreme Court of the Hnited States

o—

October Term, 1982

KANE GAS LIGHT AND HEATING COMPANY,

Petitioner,

VS.

INTERNATIONAL BROTHERHOOD OF FIREMEN AND

OILERS, LOCAL 112,

Respondent.

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the Third Circuit

SUPPLEMENTAL BRIEF FOR PETITIONER

Since filing its reply to the respondent’s opposition brief,

on February 15, 1983, petitioner has learned only today, February

16, of a recent decision (not yet reported) entered January 28,

1983 by the Supreme Court of Pennsylvania which gives important

judicial support of the petitioner’s contentions in this case.

Attached as Appendix A, is a copy of the unanimous opinion

of that court, written by Chief Justice Samuel J. Roberts in the

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case Of Philadelphia Housing Authority v. Union of Security

Officers No. 1 (Pa. Supreme Court Appeal No. 81-3-404).

At issue on that appeal was the validity of an award of an

arbitrator which reinstated a security officer employed by

appellant, Philadelphia Housing Authority, whom the Authority

had discharged. The Authority’s petition to modify or correct

the arbitrator’s award was denied by the Court of Common Pleas

of Philadelphia, and the denial was affirmed by a divided panel

of the Commmonwealth Court {Philadelphia Housing Authority

v. Union of Security Officers No. 1, 55 Pa. Cmwlth. Ct. 640,

423 A. 2d 1123 (1980)]. The Supreme Court of Pennsylvania

granted allowance of appeal, and by its order entered January

28, 1983, reversed the order of the Commonwealth Court and

vacated the award of the arbitrator.

The factual situations and the legal principles involved are

similar in both the Philadelphia Housing case and the pending

Kane Gas case.

The Pennsylvania Supreme Court concluded that on the facts

found by the arbitrator in the Philadelphia Housing case, that

he was without authority to overturn the Philadelphia Housing

Authority’s discharge of the employee, and it held that the

arbitrator’s decision to reinstate the employee was unjustified by

any terms that were or could properly have been contemplated

by the parties to the collective bargaining agreement. The

Pennsylvania Supreme Court’s reasoning can equally apply to the

present case.

Since the reasoning and holding of the Supreme Court of

Pennsylvania and the United States Court of Appeals for the Third

Circuit appear to be in conflict on the same matter — judicial

review of an arbitrator’s award — the petitioner suggests that

such conflict should be considered by the Supreme Court of the

3

United States as an additional reason for granting the writ of

certiorari in this pending case.

Respectfully submitted,

JOHN A. BOWLER

JOHN W. ENGLISH

Attorneys for Petitioner

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APPENDIX A

iN THE SUPREME COURT OF PENNSYLVANIA

Eastern District

No. 81-3-404

ARGUED: October 26, 1982

FILED: January 28, 1983

PHILADELPHIA HOUSING AUTHORITY,

Appellant

Vv.

UNION OF SECURITY OFFICERS #1

Appeal from an order of the Commonwealth Court at No. 862

C.D. 1979, entered December 31, 1980, affirming an order of

the Court of Common Pleas of Philadelphia, at No. 65 January

Term, 1979, entered March 27, 1979.

OPINION OF THE COURT

ROBERTS, C.J.

At issue on this appeal is the validity of an award of an

arbitrator which reinstated a security officer employed by appellant

Philadelphia Housing Authority whom the Authority had

discharged. The Authority’s petition to modify or correct the

arbitrator’s award was denied by the Court of Common Pleas

of Philadelphia, and the denial was affirmed by a divided panel

of the Commonwealth Court. Philadelphia Housing Authority

v. Union of Security Officers No. 1, 55 Pa.Cmwith.Ct. 640, 423

A.2d 1123 (1980). We granted allowance of appeal, and now

reverse the order of the Commonwealth Court and vacate the

award of the arbitrator.

The security officer, Richard Green, was discharged on March

27, 1979, for allegedly using his position to obtain for his own

benefit $900 belonging to Henry Herbert, an elderly resident at

the housing project where Green had worked. Following Green’s

discharge, appellee Union of Security Officers No. 1 sought

reinstatement of Green pursuant to the grievance procedure

provided in the collective bargaining agreement between the parties.

The agreement provided that ‘‘[t}he Authority may for just cause

take whatever disciplinary action it deems appropriate at its

discretion.’’ When the parties failed to reach an agreement, the

union invoked its right to arbitration.

At the arbitration hearing, the arbitrator found that Green,

by virtue of a relationship of trust and confidence with Herbert,

had induced Herbert to deposit $900 in a joint bank account,

ostensibly as a fund for Herbert’s funeral expenses, that Green

had withdrawn the money for his own use, and that Green had

lied to his employer during the investigation of his conduct. Despite

these findings, the arbitrator reinstated Green without loss of

seniority or other benefits, believing that the loss of back pay

for the eight months during which Green had been suspended

was ‘‘sufficient punishment.”’

The arbitrator’s reinstatement of Green was apparently based

on the arbitrator’s finding that Green had induced Herbert to

part with his money by playing on their personal friendship and

not, as alleged by the Housing Authority, by taking advantage

of his position as a security officer. Such a distinction, however,

does not mitigate the severity of the offense or justify the

arbitrator’s reversal of the Authority’s decision to discharge a

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dishonest employee. The defrauding of an elderly tenant, whether

friend or stranger, by a housing authority security officer is

unquestionably conduct justifying the officer’s discharge. Indeed,

such dishonest conduct constitutes an affront to the integrity of

the entire Housing Authority security force.

It is well settled that an arbitrator’s award will be upheld

if the arbitrator’s interpretation of the collective bargaining

agreement is reasonable. See, e.g., International Brotherhood of

Firemen and Oilers, AFL-CIO Local 1201 v. School District of

Philadelphia, 465 Pa. 356, 350 A.2d 804 (1976). Here, however,

it is manifestly unreasonable to conclude that the Housing

Authority could have intended to bargain away its absolute

responsibility to ensure the integrity of its housing security force

by discharging an officer who has defrauded one of the very people

whom he is paid to protect. Having found that security officer

Green had defrauded an elderly tenant and then lied about his

conduct, the arbitrator was without authority to overturn the

Authority’s discharge of Green. As the arbitrator’s decision to

reinstate Green was unjustified by any terms that were or could

properly have been contemplated by the parties to the collective

bargaining agreement, the order of the Commonwealth Court

affirming that decision must be reversed, and the award of the

arbitrator vacated.

Order of the Commonwealth Court reversed, and the award

of the arbitrator vacated.

Former Chief Justice O’BRIEN did not participate in the

decision of this case.