City of Pittsburgh v. Fraternal Order of Police
| Decision Date | 22 January 2020 |
| Docket Number | No. 2 WAP 2019,2 WAP 2019 |
| Citation | 224 A.3d 702 |
| Parties | CITY OF PITTSBURGH, Appellee v. FRATERNAL ORDER OF POLICE, FORT PITT LODGE NO. 1, Appellant |
| Court | Pennsylvania Supreme Court |
Christopher Joseph Cimballa, Esq., Richardson Todd Eagen, Esq., Welby, Stoltenberg, Cimballa & Cook, LLC, Ronald Ryan Retsch, Esq., for Appellant.
Kelly Mistick, Esq., City of Pittsburgh Law Department, for Appellee.
OPINION
The appellant, a police bargaining unit proceeding on behalf of its members, seeks the benefit of a grievance arbitration award that was overturned by a statutory appeals court. The matter arises in the context of the special statutory provisions governing collective bargaining arrangements between police and firefighting personnel and their public employers, known as "Act 111."1
The collective bargaining agreement governing the terms and conditions of employment by officers of the City of Pittsburgh's Bureau of Police prescribes that a normal workweek consists of five workdays and two consecutive days off, also referred to as "pass days." See Working Agreement between the City of Pittsburgh and the Fraternal Order of Police Fort Pitt Lodge No. 1, January 1, 2010 - December 31, 2014 (the "CBA" or the "Working Agreement") § 8.A.2.2 The CBA also admonishes that its provisions concerning normal hours of work "shall not be construed, either, as a guarantee of hours of work and pay or as a basis for calculating overtime hours of work and pay, except as provided for, otherwise, in this Agreement." Id. § 8.A.
The following general rule pertains to "call outs," or days when officers are required to work outside their normal employment schedule:
an employee called out to work for any period other than the period of his or her previously scheduled hours of work shall be guaranteed at least four (4) hours of work or pay and shall be compensated at applicable overtime pay rates for such ‘call out’ time. Previously scheduled hours of work of any affected employee shall not be rearranged or reduced because of call out work under these provisions.
The CBA also authorizes "secondary employment," via which members of the bargaining unit may be permitted by the City to wear the Pittsburgh Police uniform and use police equipment at special events and to be paid by a secondary employer. CBA § 24. Per the agreement, however, all secondary employment is subject to the City's approval and must be voluntary, such that "[n]o police officer will be compelled to work for a Secondary Employer." CBA § 24(2).
Finally, the CBA provides for mandatory arbitration of grievances but cautions that "[t]he Arbitrator shall not have the right to add to, subtract from, modify, or disregard any of the terms or provisions of the Agreement." CBA § 5.C.3.b.
The City hosts an annual marathon which, in 2016, was organized and administered by several large, private companies. About 100 police officers were needed to provide crowd control, road closures, and traffic management for the event. Initially, the Bureau of Police solicited volunteers from among those officers who would otherwise be off duty to work under a secondary employment arrangement. Numerous positions remained unfilled, however, and the Bureau proceeded to require about 70 officers to work on their pass days. Email of M. Isaj, dated Apr. 28, 2016 ("It was decided today at the Command Staff Meeting that we will be forcing City Wide the least senior 70 Officers, and least senior 9 Sergeants to work the Marathon."). These officers were paid a minimum of four hours overtime at a time-and-a-half rate, plus additional overtime for any more hours worked. Pursuant to the terms of the CBA, the appellant herein -- the Fraternal Order of Police (the "FOP") -- filed a grievance challenging the amount of compensation provided. See CBA § 5 (Grievance Procedure).
The gravamen of the FOP's complaint was its assertion that the City violated the bargaining agreement by "mandating officers work secondary employment when the CBA states it is strictly voluntary." Undated Brief for the FOP, Fort Pitt Lodge No. 1 in Grievance 2016-026 (City, Bureau of Police) (hereinafter "Pittsburgh Marathon Overtime Pay Grievance"), at 2; accord Pittsburgh Marathon Overtime Pay Grievance, at 1 (). Along these lines, the FOP referred to the event as "the May 1, 2016 Callout and Pass Day cancellation for a Secondary Employment detail." Id. As relevant here, the FOP claimed that the officers should have received a minimum of eight hours of overtime pay. See Brief for the FOP in Pittsburgh Marathon Overtime Pay Grievance, at 3.3 Notably, the grievance placed specific sections of the CBA before the arbitrator, namely: "Section 4 Management, Section 8 Hours of Work, Section 24 Secondary Employment, Section 6 Salaries, Section 9 Overtime, and Section 17 Scope of Agreement." Pittsburgh Marathon Overtime Pay Grievance at 1.
In response, the City took the position, rather cryptically, that "secondary employment ... is not at issue here." Undated Brief for the City in Pittsburgh Marathon Overtime Pay Grievance, at 6; see also id. at 6 n.1 (). The City also observed that "the Commonwealth Court has already decided that the City is not obligated to pay officers working on-duty at special events the same rate as officers working secondary employment details." Id. ().4
The City stressed that the CBA specifically established a rate of pay for scenarios in which officers are required to work outside of their regularly scheduled shifts, see CBA § 8.D, and that officers had been compensated by the City in strict conformity with this provision. See Brief for the City in Pittsburgh Marathon Overtime Pay Grievance, at 7 (); id. at 6 (). It was the City's position that, "[s]ustaining this grievance would impose ... an entirely new contractual obligation upon the City and, therefore, exceed the scope of grievance arbitration." Id.
At the initial administrative levels of review, see CBA § 5.C.1-.2, the grievance was denied in relevant part. The presiding city officials reasoned that officers called out to work at the marathon were paid in accordance with the CBA, because they received overtime pay for all hours worked, subject to a four-hour minimum. See Letter of Assistant City Solicitor dated July 13, 2016, in Pittsburgh Marathon Overtime Pay Grievance, at 2-3 (invoking, in substance, CBA § 8.D). The officials also disagreed with the FOP's position that those officers whose pass days were canceled were entitled to a minimum of eight hours of pay at the overtime rate simply for being called out to work. See id.
Per the CBA, an arbitration ensued. See CBA § 25.C.3. Initially, the arbitrator rejected the FOP's lead contention that the City had violated Section 24.2 of the agreement. According to the arbitrator:
The evidence does not indicate that the City breached [Section 24.2's prohibition against forcing officers to accept secondary employment]. Rather, as documented in [email announcements by the Bureau of Police], it addressed the situation by cancelling the pass days of approximately 70 Officers, forcing these Officers to come in and work various hours on their scheduled day off.
Pittsburgh Marathon Overtime Pay Grievance, at 8-9 (J. Desimone Jan. 31, 2017). Although the arbitrator concluded that the City "was permitted to cancel the Officers' pass day to work the detail," she nevertheless discerned an issue as to the appropriate compensation for such cancellation. Id. at 9.
In this respect, the arbitrator apparently regarded cancellation of pass days and summoning (or "calling out") off-duty officers for work to be entirely separate and distinct matters. Without offering any supportive basis for this distinction, and initially putting aside the specific call-out language of Section 8.D of the CBA, the arbitrator found that there was nothing in the CBA governing compensation for cancelled pass days. See id. at 9 (). The arbitrator thus reasoned that it was necessary to "look to related contractual language regarding hours of work and compensation in order to determine the parties' intent with regard to these pass day subjects." Id. at 9.
In this regard, the arbitrator deemed it significant that pass days are to be scheduled in 2-day increments, reasoning as follows:
Because a pass day is 1 of 2 entire days during the 7-day week, the City could not partially cancel a pass day without negating the concept of 2 consecutive days off, at least for purposes of compensation. In other words, a pass day encompasses the entire day in which the Officer is not required to work his normal 8-hour shift. As such, when the City cancelled Officers' pass day[s] so as to force them to work the 2016 Marathon on May 1, 2016, it effectively cancelled the entire pass day, regardless...
To continue reading
Request your trial