Ben Patchen Esq., Campbell Durrant, P.C. | April 2025
In 2025, the Pennsylvania Supreme Court is set to consider the appropriate standard for appeals of grievance arbitration awards for public sector employees. Unionized public sector employees in Pennsylvania fall under two statutes, the Pennsylvania Employee Relations Act (“PERA” or “Act 195”) or the Policemen and Firemen Collective Bargaining Act (“Act 111”). Act 195 applies primarily to non-uniformed employees, while Act 111 applies to uniformed employees. Under both Act 111 and Act 195, Pennsylvania courts have established an extremely deferential review of arbitration awards, resulting in municipalities’ limited ability to successfully appeal outrageous grievance arbitration decisions reinstating employees who committed severe misconduct, including violating the law.
The courts have established a public policy exception to arbitration awards under Act 195. Under the public policy exception, an arbitration award will not be upheld if it contravenes public policy. The public policy exception is a narrow exception, prohibiting a court from enforcing an arbitrator’s award that contravenes public policy. This public policy exception has been applied to cases where arbitrators have reinstated a teacher who faced criminal charges after she suffered a drug overdose and passed out on school property; where arbitrators reinstated employees despite the arbitrators’ finding that the employee had committed severe sexual harassment; a case where a teacher had been found to have inappropriately touched female students; and most recently, in a case where a Pennsylvania university patrol officer was reinstated despite making public Facebook posts which were racist, xenophobic, transphobic, dangerous, race baiting, and glorified and defended excessive police force.
Historically, this public policy exception has not been applied to Act 111 grievance arbitration appeals, allowing arbitration awards to stand even if they would violate public policy under the Act 195 analysis. This has resulted in police officers and firefighters being reinstated despite arbitrators’ findings that they had engaged in severe misconduct. However, in 2024, the Pennsylvania Supreme Court agreed to review the Act 111 appeal standard, including a review of whether the Court should adopt a public policy exception similar to Act 195. The case currently before the Supreme Court involves an arbitrator reinstating a Philadelphia Police Lieutenant who was fired for sending a bestiality video to two women he supervised and had told one of the women that she could mislead investigators reviewing the incident. Although the public policy exception is narrow, the Pennsylvania Supreme Court’s decision in this case could open the door for Courts to overturn arbitration awards that violate public policy under Act 111.
The second case currently before the Supreme Court involves a university police officer who was terminated and reinstated by an arbitrator despite the arbitration finding that the officer had made outrageous public Facebook posts denigrating the same community he swore an oath to protect. This police officer fell under Act 195 because he was employed by a Pennsylvania university. Because he was under Act 195, the university was able to successfully appeal the Act 195 arbitration award under the public policy exception. However, the employee appealed to the Pennsylvania Supreme Court, and the Supreme Court agreed to review the proper remedy when a court finds that an arbitration award violates public policy under Act 195. The Union and the employee are taking the position that the Court should send the case back to the arbitrator for another arbitration decision when it finds the arbitration award violated public policy. Historically, when courts have found that arbitration awards have violated public policy, they have vacated the award, resulting in the initial employment decision standing. In this case, if the Supreme Court sides with the employee, it may result in sending the case back to an arbitrator who previously found that the employee engaged in the accused conduct, but believed that no penalty was appropriate, and ordered that he be reinstated with full backpay, potentially resulting in another appeal and protracted litigation.