Miles v. FOP Lodge #5

217 A.3d 892

Jamie M. MILES, Appellant

v.FOP LODGE #5 and City of Philadelphia

No. 966 C.D. 2018

Commonwealth Court of Pennsylvania.

Submitted on Briefs March 15, 2019

Decided August 23, 2019

John R. Bielski, Philadelphia, for Appellee FOP Lodge #5.

Elise Bruhl, Sr. Attorney, Philadelphia, for Appellee City of Philadelphia.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MICHAEL H. WOJCIK, Judge

OPINION BY JUDGE COHN JUBELIRER

Jamie M. Miles, pro se, appeals from the Order of the Court of Common Pleas of Philadelphia County (common pleas) that dismissed Miles' Motion to Vacate Arbitration Award (Motion) for lack of standing. Common pleas held that, absent language in a collective bargaining agreement (CBA) allowing otherwise, the right to appeal an unfavorable arbitration award belongs to the parties to the CBA, here FOP Lodge #5 (Union) and the City of Philadelphia (City), and, therefore, only they have standing to appeal the Arbitration Award that upheld the City's discharge of Miles from her position as a City police officer.¹

The issue before this Court is narrow: whether Miles has standing² to appeal the unfavorable Arbitration Award where Union did not represent her in her Arbitration due to a conflict, instead authorizing her and her private counsel to pursue her case. Union and the City assert this Court recently held that, under this CBA and the parties' past practices, an individual grievant may not appeal an unfavorable arbitration award. FOP Lodge #5 v. City of Philadelphia , 182 A.3d 1076 (Pa. Cmwlth. 2018) ( Herder ). Miles asserts her situation is unique because, due to Miles' ongoing lawsuit against Union and its counsel, Union did not represent or aid her during her arbitration proceedings, beyond providing her an allowance to pay her private counsel. Because Union did not participate in the Arbitration due to a conflict of interest, Miles maintains she has standing to appeal, since Union declines to do so. Miles further argues that Union breached its duty of fair representation in a variety of ways which, she contends, gives her individual standing to appeal the Arbitration Award. Based on the unique circumstances of this case, where, perceiving a conflict of interest, Union withdrew itself from participating in and making legal decisions about Miles' Arbitration, and instead authorized Miles to pursue her own Arbitration, Herder is distinguishable, and Miles may appeal the Arbitration Award. Accordingly, we vacate common pleas' Order and remand for further proceedings.

A detailed recitation of the underlying facts of Miles' employment and grievance is not necessary, but the following facts set the background for how the issue of Miles' standing arose. Union and the City are parties to a CBA. (Arbitration Award at 2.) The CBA contains grievance procedures, which culminate in final and binding arbitration before the American Arbitration Association (AAA). (Id. ) In 2011, Miles was suspended and then discharged for allegedly falsifying public documents. Union grieved Miles' discharge through final and binding arbitration and prevailed, in part, obtaining her reinstatement but without back pay or benefits. The discipline underlying this arbitration award remained on Miles' record. Believing, among other things, that her 2011 discharge was retaliatory and that Union did not properly handle the arbitration, Miles filed a lawsuit in December 2014 against Union alleging it breached its duty of fair representation and against Union's counsel alleging legal malpractice.³

In May 2014, Miles became the subject of an internal investigation based on allegations that she falsified a document related to a May 28, 2014 automobile accident involving Miles' boyfriend. It was during this investigation that Miles initiated her lawsuit against Union and Union's counsel based on the prior arbitration. Following the investigation, Miles received a 30-day suspension with Notice of Intent to Dismiss on September 18, 2015. She later received a Notice of Dismissal "alleg[ing] that Miles had engaged in Conduct Unbecoming, Article 1, Section 010-10, specifically, ‘Knowingly and willfully making a false entry in a department record or report ,’ " and a charge of "Conduct Unbecoming, Article 1, Section 011-10, ‘Abuse of Authority .’ " (Arbitration Award at 2.) Union filed a grievance on Miles' behalf on September 21, 2015, which the City denied. When the issue could not be resolved between the parties, Union referred the matter to AAA for arbitration.

In an October 29, 2015 letter to Miles, Union indicated it had filed a demand for arbitration with AAA challenging her discharge in order "to preserve [her] rights in the time limits provided by the CBA." (Union Letter to Miles, Oct. 29, 2015, (Letter) at 1.) However, noting that Miles had filed a suit against both Union and the "law firm that commonly represents [Union's] grievants in arbitration," Union expressed its "belief that both [it] and the law firm would have a conflict in pursuing this case on [her] behalf ." (Id. (emphasis added).) In light of this conflict, Union stated:

a) [it] will pay not more than $5,000.00 to an attorney of your choice to represent you in these proceedings . The money will be paid on a monthly basis and is to be accompanied by an invoice and time sheets reflecting the professional services performed on your behalf in pursuit of the Demand for Arbitration during the preceding month; as well as any direct out of pocket expenses that may be incurred in that pursuit. With the exception of payment of arbitrator's fees and expenses as set forth below, all other costs and expenses, including excess attorney's fees and costs that you incur, will be solely and exclusively your responsibility .

b) The [Union] shall assume responsibility for the payment of all costs and fees imposed by the arbitrator and the [AAA] in the resolution of this matter.

You should have your attorney advise the undersigned in writing of his representation of you with regard to the arbitration. All bills and other communications from that attorney should be sent directly to the undersigned ....

The next step in the arbitration process is the selection of an arbitrator. We would assume your attorney would want to participate in this process and select the arbitrator of his/her choice . Accordingly, we have alerted the [AAA] to the fact that you will be represented by private counsel in this matter and the [AAA] is to cooperate with you . Your attorney may contact the ... case manager at the [AAA] for further instructions[.]

....

I wish you the best of luck in your efforts to re-secure your employment.

(Id. (emphasis added).) Consistent with this letter, Miles hired a private attorney who represented her in the Arbitration proceedings.

Following an evidentiary hearing, at which both the City and Miles presented evidence, the Arbitrator denied the grievance. The Arbitrator concluded the City did not violate the CBA when it discharged Miles from her position because it had just cause for doing so, particularly given Miles' prior discipline for similar conduct. When neither Union nor the City appealed the Arbitration Award, Miles, pro se, filed the Motion with common pleas on January 9, 2017.⁴ The City filed an Answer, in which it challenged Miles' standing to appeal the Arbitration Award, as well as the Motion's merits. (Record (R.) Item 6.) Union also filed an Answer in opposition to the Motion on the basis that Miles lacked standing to appeal the Arbitration Award because only it and the City, as the exclusive parties to the CBA, could file an appeal under the CBA's terms.⁵ (R. Item 8.) Following a hearing and after considering the Motion and the responses thereto, common pleas denied the Motion for lack of standing by Order dated on April 4, 2017.

Miles appealed and, after she filed a Concise Statement of Errors Complained of on Appeal, common pleas issued a responsive opinion. Common pleas explained that, under the CBA, Union, "not ... Miles, has the contractual right to appeal an arbitration award," citing Bonifate v. Ringgold School District , 961 A.2d 246, 253 (Pa. Cmwlth. 2008), and Krenzelak v. Canon-McMillan School District , 129 Pa.Cmwlth. 490, 566 A.2d 346, 347-48 (1989), for the proposition that individual union members do not have standing to appeal an arbitration award unless the relevant collective bargaining agreement specifies otherwise. (Common Pleas Opinion (Op.) at 1 & n.1.) Common pleas concluded the CBA here does not specifically give individual union members appeal rights and, therefore, Miles did not have standing to appeal the unfavorable Arbitration Award. Common pleas further held that Miles could not "overcome this bar by alleging that [Union] breached its duty of fair representation in its handling of her claim at arbitration," citing " Krenzelak [, 566 A.2d] at 348 (holding that granting appellant's motion to vacate an arbitration award on the basis of unfair representation, even if proven, would not be appropriate and that ‘an employee who believes a union has breached its duty of fair representation must file an independent action against the union ....’)[.]" (Common Pleas Op. at 1 & n.2.)

On appeal,⁶ Miles argues she has standing to appeal the Arbitration Award. She contends that Union, in this matter, deviated from its past practice and duty to represent her due to what Union saw as a conflict of interest, which makes her, not Union, the party to the present grievance Arbitration. Relying on Union's October 29, 2015 letter, Miles asserts Union was "conflicted out of her grievance" and she "reasonably believe[s this] granted [her] individual standing." (Miles' Brief at 19.) Herder is distinguishable, she argues, because, there, Union did represent the grievant at the arbitration. Miles further argues she has standing because she "properly named [Union] as a defendant [in the Motion] and pled specific facts to show...