City of Pittsburgh v. Fraternal Order of Police Fort Pitt Lodge No. 1

• Decision Date: 12 March 2015
• Docket Number: No. 521 C.D. 2014,521 C.D. 2014
• Citation: 111 A.3d 794
• Parties: CITY OF PITTSBURGH v. FRATERNAL ORDER OF POLICE FORT PITT LODGE NO. 1, (on–duty and off–duty pay for events), Appellant.
• Court: Pennsylvania Commonwealth Court

111 A.3d 794

CITY OF PITTSBURGH

v.FRATERNAL ORDER OF POLICE FORT PITT LODGE NO. 1, (on–duty and off–duty pay for events), Appellant.

No. 521 C.D. 2014

Commonwealth Court of Pennsylvania.

Argued Nov. 12, 2014.

Decided March 12, 2015.

Bryan B. Campbell, Pittsburgh, for appellant.

Wendy Kobee, Assistant City Solicitor, Pittsburgh, for appellee.

BEFORE: DAN PELLEGRINI, President Judge, and RENÉE COHN JUBELIRER, Judge, ROBERT SIMPSON, Judge, MARY HANNAH LEAVITT, Judge, and P. KEVIN BROBSON, Judge.

OPINION BY Judge LEAVITT.

The Fraternal Order of Police Fort Pitt Lodge No. 1 (Union) appeals an order of the Court of Common Pleas of Allegheny County reversing an Act 111¹ grievance arbitration award that required the City of Pittsburgh to pay on-duty police officers working at large-scale events the same wages that off-duty police officers receive from private employers to do the same work. The trial court concluded that the award was not rationally related to the collective bargaining agreement and infringed upon the City's managerial prerogative. The Union argues that the trial court erred and exceeded the narrow certiorari scope of review applicable to Act 111 arbitration. For the reasons that follow, we affirm.

The Union and the City executed a collective bargaining agreement (CBA) called the “Working Agreement” that covered the period January 1, 2010, through December 31, 2014. The CBA addresses the compensation for on-duty police officers at several points.² Relevant hereto is Section 24 of the CBA, entitled “Secondary Employment,” which permits police officers to engage in secondary employment when they are off-duty. As explained by the trial court, “secondary employment” involves the performance of safety, peacekeeping and traffic control duties both before and after large-scale events in the City such as concerts and sporting events. The private businesses that engage the services of off-duty police officers for secondary employment are called “secondary employers,” and they are responsible for the compensation of these off-duty officers.³ Reproduced Record at 2a: 137–141 (R.R. ––––).

Section 24 of the CBA states that all secondary employment is voluntary and “[n]o police officer will be compelled to work for a Secondary Employer.” R.R. 1a: 144. The City's Special Events Office assigns officers who volunteer for secondary employment, and secondary employers can request the assignment of specific officers. Section 24 specifies the pay for secondary employment as follows:

Police officers engaged in secondary employment will receive the rate of pay for such work as agreed upon by and between the City and the Secondary Employer.

Id. The “agreed upon rate of pay” for secondary employment is the overtime rate for a fourth year police officer, which is $41.12 per hour. Arbitrator's Award at 3–4. Any officer working secondary employment is paid that hourly wage, regardless of his rank or seniority.

The City often directs on-duty officers to do traffic control at a large public event where off-duty officers are also working in a secondary employment assignment. The Union does not challenge the City's right to order on-duty police officers to work these events, who are paid their normal wages as set forth in the CBA.

On February 17, 2013, the City assigned Officer Robert Swartzwelder to direct traffic before a sporting event during his regular on-duty shift. Approximately 60 feet away, an off-duty officer was also directing traffic on behalf of a secondary employer. The City paid Swartzwelder the rate of pay owed under the CBA; the off-duty officer working secondary employment was paid the secondary employment rate of pay, which was higher than Swartzwelder's hourly wage. Swartzwelder filed a grievance, demanding to be paid the secondary employment rate of pay. By September 1, 2013, Officer Swartzwelder had filed six more similar grievances. In addition, Officer David Lincoln filed a grievance on August 18, 2013, stating that he too directed traffic at a sporting event while on-duty, for which he earned less than off-duty officers who were directing traffic as secondary employment.

The City denied the grievances. The Union and City then proceeded to grievance arbitration. The arbitrator identified the issue as follows:

[W]hether on-duty officers who are assigned to work with off-duty officers who have volunteered to work large scale events for secondary employers should be paid at the same rate of pay that the off-duty officers are receiving.

Arbitrator's Decision at 6.

At the hearing before the arbitrator, Officer Swartzwelder testified that he has been a police officer for 26 years. Off-duty officers working secondary employment earn over $13 more per hour than he earns while on-duty. This means that a new officer standing near Swartzwelder and doing the same work can be paid considerably more than Swartzwelder earns while on-duty.⁴

On September 30, 2013, the arbitrator issued an award sustaining the grievances on a prospective basis, effective immediately. The award directed the City to pay on-duty police officers working large events the same rate being paid to off-duty officers working those events on a secondary employment detail. The arbitrator concluded that it would be unfair to pay on-duty officers less than those doing secondary employment, explaining as follows:

[I]t would appear to be inequitable for an on-duty officer to be called to supplement the secondary off-duty officers for an event such as a large concert or an event, for example, at the Consol Energy Center but be paid at a lesser rate of pay.... This raises a valid and legitimate pay concern for an on-duty officer.... It does not appear justifiable for these on-duty officers doing the same work at the same event as the secondary officers yet receiving a lesser rate of pay. Therefore, it is my conclusion, based upon the grievances and the arguments presented, that on-duty officers sent to work special events should be paid at the same rate of pay as the rate being paid to officers working the special events as a secondary employment detail.

Arbitrator's Decision at 6–7.

The City appealed. The trial court vacated the arbitrator's award and dismissed the grievances. The trial court held that the arbitrator exceeded his authority because his award (1) was not rationally related to the terms and conditions of the grievants' employment under the CBA and (2) infringed upon the City's managerial prerogative to negotiate the compensation for on-duty officers as set forth in the CBA.⁵ The trial court concluded that the arbitrator violated Section 5(C)(3)(b) of the CBA, which states that the arbitrator “shall not have the right to add to, subtract from, modify, or disregard any of the terms or provisions of the [CBA].” CBA at 25; R.R. 1a: 29. The arbitrator disregarded the CBA's term on the compensation owed to on-duty police officers and instead made a judgment as to what the CBA should say as opposed to what it actually says. The trial court observed that the arbitrator did not interpret the CBA, which was evidenced by the fact that he did not, because he could not, point to any language from the CBA to support his analysis.

The trial court also determined that the arbitrator's invocation of principles of equity and fairness had no place in a grievance arbitration, which is governed by the language of the CBA.⁶ The trial court criticized the arbitrator's comparison of the pay owed to off-duty officers working secondary employment to on-duty officers working for the City. It found this comparison to be as baseless an exercise as a comparison of the wages of Pittsburgh police officers and Philadelphia police officers. Neither exercise is contemplated by the CBA. The trial court held, simply, that it was irrelevant to the grievant what anyone, other than another on-duty Pittsburgh police officer, earns. The trial court concluded that if the Union wants higher pay for on-duty officers doing the same work as off-duty officers on secondary employment, it must negotiate that with the City through the collective bargaining process. The Union appealed to this Court.

On appeal, the Union argues that the trial court erred by exceeding the scope of review applicable to Act 111 arbitration awards. The Union contends that the arbitrator interpreted the CBA and did not exceed his jurisdiction or his authority. That a reviewing court does not agree with the arbitrator's analysis is of no moment. For its part, the City responds that the trial court applied the proper scope of review and correctly reversed the arbitrator's award because the arbitrator purported to settle a grievance but, in actuality, acted as an interest arbitrator, which he is not permitted to do.

We begin with a review of the law relevant to an Act 111 arbitration. Act 111 precludes police and fire personnel from striking; in return it gives them the right of collective bargaining with their public employers over the “terms and conditions of their employment,” which include “compensation, hours, working conditions, retirement, pensions and other benefits.” 43 P.S. § 217.1.⁷ If the parties cannot agree on the terms and conditions of employment, they can proceed to interest arbitration, which involves “the resolution of an impasse in collective bargaining over the terms of a new contract.” Township of Moon v. Police Officers of the Township of Moon, 508 Pa. 495, 498 A.2d 1305, 1308 n. 5 (1985). Interest arbitration is an extension of the collective bargaining process. Borough of Gettysburg v. Teamsters Local No. 776, 103 A.3d 389, 391 n. 1 (Pa.Cmwlth.2014). Where the parties reach an impasse in negotiations, Act 111 requires either party to provide notice to the other and to specify the issue in dispute before requesting interest arbitration. Id. at 393. If the Act 111 requirements are not followed, the arbitrator lacks jurisdiction to fashion an interest arbitration award. Id. at 396. In addition, Act 111 provides for...