In a precedent-setting case, the Commonwealth Court of
Pennsylvania has sided with the City of Bradford in the termination
of a garbage man found to have stolen money on his route in
2003.

In a 19-page majority opinion dated June 28, Judge Bonnie
Brigance Leadbetter explains that the termination of James Taylor,
30, of Bradford, from the City of Bradford Department of Public
Works was justified because of the theft.

The Court ruled that a public employer cannot bargain away its
right to terminate an employee “whose conduct hampers the
employer’s performance of its duties or its ability to insure the
health, safety and welfare of its citizens.”

With the ruling, the Commonwealth Court upheld a Dec. 3, 2004,
order by McKean County President Judge John Cleland which
overturned an arbitrator’s award and dismissed Taylor from the
city’s employment.

According to court records, the case began on May 23, 2003. At
that time, Taylor noticed a purse in an open garbage bag while he
was collecting garbage, put the bag in the packer of the garbage
truck, the bag spilled open and a large sum of money fell out.
Taylor took the money and it was later turned over to police.
Taylor was subsequently charged with theft.

On May 29, 2003, the city issued a disciplinary report and
Taylor was ultimately terminated. The Teamsters Local Union 110
filed a grievance and arbitration followed. The arbitrator, Edward
J. O’Connell, ruled that the city’s reaction was too harsh and the
maximum penalty allowed for under the disciplinary schedule agreed
to under a collective bargaining agreement was a 10-day
suspension.

The city appealed the arbitrator’s award to the McKean County
Court of Common Pleas, saying the city has a right to terminate
someone for engaging in theft while on duty representing the
city.

Cleland agreed and vacated the arbitrator’s award.

“I presume it should be patently obvious why, once the
arbitrator concluded that Taylor engaged in ‘serious misconduct’ by
stealing from a city resident while he was on duty, preventing the
city from discharging him would seriously interfere with the city’s
ability to perform a core municipal function,” Cleland
explained.

The Teamsters appealed Cleland’s ruling to the Commonwealth
Court.

Leadbetter, in the Court’s opinion, agrees with Cleland.

“It is beyond reasonable dispute that the misconduct found here
bears directly upon the city’s performance of its public
function.”

Citing a few Supreme Court cases, Leadbetter continues, “our
Supreme Court has clearly stated that a (collective bargaining
agreement) cannot be interpreted in a manner that results in the
public employer’s relinquishing its power to terminate a
thief.”

However, the opinion notes, the city did agree to make
provisions for alternate punishments in some other cases relating
to theft.

“In this case there is an indication that the city intended to
bargain away its right to terminate an employee for theft in some
cases,” the opinion reads, “and it is upon that provision that the
union relies.”

The collective bargaining agreement with the Teamsters did not
require termination in all instances involving theft and provided
for lesser penalties such as suspensions.

“The union argues that the arbitrator simply enforced a contract
provision to which the city specifically agreed,” the opinion
reads. That is not the case, the Commonwealth Court found.

“That assertion is based upon the false premise that all theft
offenses are the same for these purposes, when plainly they are
not.”

In conclusion, Leadbetter writes, “a public employer does not
have the authority to expressly bargain away its ability to
terminate an employee whose conduct hampers the employer’s
performance of its duties …, and any such provision in a
(collective bargaining agreement) cannot be given effect.”

Mark Hollenbeck, city solicitor, said Tuesday that the Court’s
opinion “clarifies the position the city was taking all along.”

“A public employer has an absolute right to discharge an
employee for theft,” he said. “When it happens while (an employee)
is on duty, the city has the absolute right to terminate.

“This case really helps clarify what the law is. The city has a
zero tolerance policy as to theft,” Hollenbeck said.