City Of Philadelphia v. Int'l Ass'n Of Firefighters

• Decision Date: 23 July 2010
• Citation: 999 A.2d 555
• Parties: CITY OF PHILADELPHIA, Appelleev.INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 22, Appellant.
• Court: Pennsylvania Supreme Court

999 A.2d 555

CITY OF PHILADELPHIA, Appelleev.INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 22, Appellant.

Supreme Court of Pennsylvania.

Argued March 3, 2009.

Decided July 23, 2010.

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Nancy B.G. Lassen, Richard G. Poulson, Willig, Williams & Davidson, Philadelphia, for International Association of Firefighters, Local 22.

Eleonor N. Ewing, City of Philadelphia Law Department, for City of Philadelphia.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

OPINION

Chief Justice CASTILLE.^**

In this appeal, we review the Commonwealth Court's Order reversing the Order of the court of common pleas in part and vacating several provisions of an award issued by an arbitration board under the Act Governing Collective Bargaining by Policemen or Firemen (“Act 111” or “Act”).¹ The provisions in question required that appellee City of Philadelphia (“City”) collectively bargain the effects of closing several fire companies before the closures could be implemented by the City, establish a new pilot program for providing emergency medical services, and that the City revise the procedure by which paramedics fill open firefighter positions. For the reasons that follow, we affirm the Order of the Commonwealth Court, albeit on different grounds in part. Part I, Part II, Part III, Part IV(B), as to Paragraph 9(A) of the Award, and Part IV(C), as to Paragraph 9(B) of the Award, of this Opinion are supported by a majority of the Court. Part IV(A), as to Paragraph 12 of the Award, is supported by three of the six Justices participating in this decision; accordingly, this Court is affirming by an equally divided Court, the Commonwealth Court's Order invalidating Paragraph 12 of the Award.

I

The City and appellant International Association of Fire Fighters, Local 22 (“Union”) were parties to a collective bargaining agreement (“CBA”) that expired on June 30, 2005. After negotiations to replace the agreement reached an impasse, the Union sought binding interest arbitration under Act 111.² A three-person arbitration board as required by the Act was convened and sixteen days of hearings followed, during which testimony and exhibits were received. Much of the evidence centered on the City's five-year financial plan adopted pursuant to the Pennsylvania Intergovernmental Cooperation Authority Act, and whether the City could financially afford increased benefits for employees of the Philadelphia Fire Department (the “Department”). Relevant to the present appeal, the parties disagreed on both the measures that should be taken to address the safety and health impact of the City's decision to decommission several fire companies and on the attrition rate that was occurring among fire service paramedics.

In mid-2006, in a 2-1 decision, the arbitration board issued its award covering the period July 1, 2005 through June 30, 2008. See In re City of Phila. & Phila. Fire Fighters' Union, IAFF Local 22, American Arbitration Association Case No. 14-L-360-00464-05 (June 28, 2006) (“Award”). The Award, under Paragraph 12, obligated the City to meet and discuss its intentions with the Union before the closing of a fire company. If the parties failed to agree on the “effects” of the closure,³ the City was compelled to commission an independent impact study to address the expected financial savings and effects upon services, bargaining unit members, and safety. In the event the Union disagreed with the study's findings, the parties were to negotiate in good faith to resolve disputes surrounding firefighter safety. If those negotiations failed, the Union was permitted to submit the dispute to grievance arbitration. The arbitrator of the grievance, however, would not be able to alter the City's decision to reduce or eliminate fire companies, but could “order any necessary modifications to the plan which would maintain compliance with relevant safety standards.” Award at 22-23, ¶ 12.⁴

The Award also contained two provisions, both appearing in Paragraph 9, relating to the Department's provision of emergency medical services.⁵ The object of Paragraph 9 was to alleviate the high levels of stress, burnout, and attrition that fire service paramedics were sustaining due to the nature of their work. Paragraph 9(A) stemmed from a Union proposal and obligated the Department to create a new two-year “ALS-Engine Pilot Program.” Under the Program, the Department would assign firefighters who had previously worked as paramedics to newly formed ALS Engine companies, and could cross-train paramedics who were on the Firefighter eligible list and assign them to an ALS Engine company every fourth tour of duty. Paragraph 9(B), which neither party proposed, altered the established procedure for transferring from paramedic to firefighter status, giving paramedics with five or more years of service additional points in the testing process and prohibiting the City from refusing to appoint any paramedic whose name reached the Fire Fighter eligible list. ⁶ See Award at 19-20, ¶ 9.⁷

The City-appointed arbitrator dissented from inter alia, Paragraphs 9 and 12 of the Award. Relative to Paragraph 12, he expressed that the arbitration board lacked jurisdiction to fashion any award pertaining to the closure of fire companies, as that topic fell within the City's inherent managerial policy over which the City has no obligation to bargain. The arbitrator noted, moreover, that since the close of testimony, the City's position that it was only obligated to bargain concerning the impacts of fire company closure after such decommissioning had occurred, was buttressed by the Commonwealth Court's issuance of an opinion in another case involving the parties. See Philadelphia Fire Fighters' Union, Local 22 v. City of Philadelphia., 901 A.2d 560 (Pa.Cmwlth.) appeal denied, 588 Pa. 786, 906 A.2d 545 (2006) ( Fire Fighters I ).⁸

As to Paragraph 9(A), the dissent opined that the proposed ALS-Engine Pilot Program impinged upon managerial policy, as it interfered with “manning and standards of service.” The dissent continued, “This is more than an innocuous ‘pilot program.’ Rather, it is a program that directly interferes with the Department's ability to establish standards of service and it interferes with the [Fire] Commissioner's ability to select and direct personnel as necessary to provide services to the citizens of Philadelphia.” In re City of Phila. & Phila. Fire Fighters' Union, IAFF Local 22, American Arbitration Association Case No. 14-L-360-00464-05, at 6-7 (June 28, 2006) (H. Thomas Felix, II, Esq., dissenting).

Finally, the dissent took issue with Paragraph 9(B) because the subject of paramedic transfer was not a topic in controversy before the board and no evidence on the subject was presented to the board. According to the dissent, paramedic transfer only arose as a dispute between the parties after the record was closed, and was resolved by the board on the basis of information received outside of the proceedings. In addition, the dissent found that portion of the Award violative of state law governing preference in the hiring of veterans, and, like Paragraph 9(A), to implicate matters of inherent managerial policy, namely, the City's hiring decisions for positions in the Department.

On July 27, 2006, the City filed a petition in the Philadelphia Court of Common Pleas to vacate several provisions of the Award, including Paragraphs 9(A), 9(B), and 12.⁹ As to these paragraphs, the City claimed that the arbitration board exceeded its jurisdiction or authority because they concerned non-bargainable matters of inherent managerial responsibility. As to Paragraph 9(B), the City additionally claimed that the board did not have the authority to address the subject matter, since it concerned a topic the Union failed to raise. In response, the Union filed a counterclaim, seeking the Award's confirmation. On September 6, 2006, the common pleas court denied the City's petition, granted the Union's counterclaim, and confirmed the Award. On October 6, 2006, the City filed an appeal with the Commonwealth Court, raising the same issues as to Paragraphs 9 and 12 that it raised in the trial court.

The Commonwealth Court addressed the City's issues in a memorandum opinion. See City of Philadelphia v. International Ass'n of Fire Fighters Local 22, No.1906 C.D.2006, 929 A.2d 1275 (Pa.Cmwlth.Aug.24, 2007) ( Fire Fighters II ). The court first observed that its scope of review in Act 111 appeals was limited to narrow certiorari, and indicated that the City's contentions that several provisions in the Award concerned topics that are not subject to collective bargaining under Act 111 or that they addressed issues that were not placed in dispute raised reviewable questions of the board's jurisdiction and/or authority.

Turning to the City's contentions regarding Paragraphs 9(A) and 9(B), which mandated that the City establish the ALS-Engine Pilot Program and appoint any paramedic whose name appeared on the Fire Fighter eligible list, respectively, the court explained the framework it would apply in deciding whether the provisions fell outside of Act 111's purview. The court stated:

In general, an issue is deemed bargainable if it bears a rational relationship to an employee's duties. However, “where a managerial policy substantially outweighs the impact of an issue on employees, the topic will be deemed a managerial prerogative and non-bargainable.” This court has held that it is a managerial prerogative to establish and utilize methods to select and use personnel as well as to measure and evaluate employee performance. Policies to achieve these ends are “essential to the proper and efficient functioning” of a police or fire department.

Fire Fighters II, Memorandum Op. at 10 (citing Fraternal Order of Police (FOP) Rose of Sharon Lodge No. 3 v. PLRB, 729 A.2d 1278, 1281 (Pa.Cmwlth.1999) and quoting Schuylkill Haven Borough v. Schuylkill Haven...