City of Pgh v. Frat. Order of Police, Aplt. ( 2020 )

[J-84-2019]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
CITY OF PITTSBURGH, : No. 2 WAP 2019
:
Appellee : Appeal from the Order of the
: Commonwealth Court entered 6/21/18
: at No. 954 CD 2017, affirming the order
v. : of the Court of Common Pleas of
: Allegheny County entered 6/22/17 at
: No. SA 17-000208
FRATERNAL ORDER OF POLICE, FORT :
PITT LODGE NO. 1, :
:
Appellant : ARGUED: October 15, 2019
OPINION
CHIEF JUSTICE SAYLOR DECIDED: JANUARY 22, 2020
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
1 Police and Firemen Collective Bargaining Act, Act of June 24, 1968, P.L. 237, No. 111
(as amended, 43 P.S. §§217.1-217.10).
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.
CBA §8.D.
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).
2 Although the term stated at the outset of the CBA expired prior to the events giving
rise to the dispute in this case, the agreement also provides that it remains in effect from
year to year, unless and until one of the parties expresses a desire to modify or cancel.
See CBA §25.
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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 (“The
purpose of canceling pass days and calling officers into work before their regularly
scheduled shift was to fill Secondary Employment (Pittsburgh Marathon) posts of a
preplanned Secondary Employment detail which the City could not fill through
volunteers.”). Along these lines, the FOP referred to the event as “the May 1, 2016
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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 (“Although the Marathon contained
secondary employment positions, the call outs issued here were in no way connected to
secondary employment as defined by the contract.”). 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. (citing City of Pittsburgh v. FOP, Fort Pitt Lodge No. 1 (On-
Duty and Off-Duty Pay for Events), 111 A.3d 794, 802 (Pa. Cmwlth.), appeal denied,
633 Pa. 750, 124 A.3d 310 (2015) (per curiam)).4
3 The FOP also asserted that officers who already were scheduled for duty but were
required to report early on account of the marathon were entitled to additional
compensation. That matter was separately resolved during the course of the arbitration
proceeding and is not presently relevant.
4 The City’s explanation seems to be that, having failed to secure enough officers willing
to be paid by the marathon’s promoters, the City undertook to shoulder the financial
burden by mobilizing the necessary officers to support the event via the primary
employment infrastructure. The parties have not supplied much further detail,
presumably since -- as developed below -- the secondary-employment dynamic is no
longer directly relevant to their arguments.
[J-84-2019] - 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 (“[A]n officer’s only contractual right to compensation for being
called out to work on a pass day is provided for in Section 8[.D].”); id. at 6 (“This
provision is meant to ensure that any inconvenience an officer suffers from a call out is
compensated by [a] four hour guarantee[.]”). 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
[J-84-2019] - 5
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 (“[T]here is no language defining the compensation to be paid for the cancellation of
a pass day, whether a pass day can be partially cancelled, or when a pass day shift
begins for purposes of cancellation and compensation.”). 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 of the number of
forced hours actually worked.
[J-84-2019] - 6
Id. at 9.5 Given that the normal workday was comprised of eight hours, see CBA
§8.A.1, the arbitrator concluded that each officer was entitled to eight hours of overtime
pay for the cancelled pass day. See id.
Turning to Section 8.D’s treatment of call outs -- and having already concluded
that call outs differed from pass-day cancellations and that officers were entitled to eight
hours of overtime pay based on such “cancellations” -- the arbitrator reasoned, as
follows, that Section 8.D had effectively been mooted:
[Section 8.D’s] callout provision applied to the cancellation of
Officers’ pass day[s] on May 1, 2016, setting a minimum of
four hours of overtime pay for the callout work. Because a
pass day is an entire day off encompassing an 8-hour shift,
the 4-hour minimum was more than met. With the callout
being the cancellation of the entire pass day, Officers were
entitled to 8 hours of overtime pay, even if a lesser number
of hours was worked.
Id. at 10. Notably, this passage from the arbitrator’s reasoning stands in substantial
tension with her initial premises that cancellations and call outs are different, such that --
in spite of the CBA’s explicit treatment of compensation for call outs -- there was nothing
in the CBA addressing cancellations.
The City filed a petition for review in the common pleas court, see 42 Pa.C.S.
§933(b), serving as a statutory appeals court. According to the City, the award
exceeded the arbitrator’s authority conferred by the CBA and represented an attempt to
interject equitable principles as a means of altering the agreement’s explicit terms.
5 Among other difficulties associated with the arbitrator’s reasoning, her alternative
explanation, expressed “[i]n other words,” simply does not follow from the initial one. In
this regard, the first proposition stated above concerns the CBA’s general approach of
allowing for two consecutive days off, and the second one concerns the impact of a call
out upon an individual pass day.
[J-84-2019] - 7
The statutory appeals court set the award aside. Initially, the court recognized,
as follows, that judicial review of an arbitration award involving police and firemen is
narrowly constrained.
The scope of review applicable to Act 111 grievance
arbitration appeal[s] is well settled; that being narrow
certiorari review, which allows the court to inquire into only
four areas: (1) the jurisdiction of the arbitrator; (2) the
regularity of the proceedings; (3) an excess of the arbitrator’s
powers; and (4) deprivation of constitutional rights.
City of Pittsburgh v. FOP, Fort Pitt Lodge No. 1, No. SA 17-000208, slip op. at 6-7 (C.P.
Allegheny Oct. 23, 2017) (citing Town of McCandless v. McCandless Police Officers
Ass’n, 587 Pa. 525, 534, 901 A.2d 991, 996 (2006), and PSP v. PSTA
(Betancourt), 540 Pa. 66, 71, 656 A.2d 83, 85 (1995)).
Unfortunately, after referencing narrow certiorari review, the statutory appeals
court nevertheless proceeded to apply the essence test, which pertains to judicial
review of arbitration awards outside the Act 111 context. See, e.g., PSSHE (Cheyney
Univ.) v. State College Univ. Prof’l Ass’n (PSEA-NEA), 560 Pa. 135, 150 n.9, 743 A.2d
405, 413 n.9 (1999) (“We make clear that this extremely limited narrow certiorari scope
of review is distinct from, and inapplicable to, our analysis of the essence test.”
(emphasis added)). Upon such application, the court found “no authority within the four
corners of the collective bargaining agreement to justify the award of January 31, 2017.”
Indeed, the court characterized the award as being contorted. See City of Pittsburgh v.
FOP, No. SA 17-000208, slip op. at 9. According to the statutory appeals court, the
award gave the appearance that “the arbitrator picked various paragraphs and clauses
of the agreement and melded the same together to form a remedy for the Police when
no such remedy was provided by the actual language of the agreement.” Id. The court
held that neither it nor the arbitrator has authority to “fashion the officers’ compensation
[J-84-2019] - 8
beyond that which they have collectively bargained to receive.” Id. Further, the
statutory appeals court emphasized that equitable relief is not permitted in an arbitration
proceeding under a contract. Id.The FOP lodged an appeal in the Commonwealth Court. Notably, consistent
with the arbitrator’s apparent rejection of its position that forcing schedule deviations to
compensate for the failure to secure enough officers accepting secondary employment
was tantamount to compelling secondary employment, the FOP did not pursue this
argument before the intermediate court. See Brief for Appellant dated Jan. 3, 2018, in
FOP, Fort Pitt Lodge No. 1 v. City of Pittsburgh, No. 954 CD 2017 (Pa. Cmwlth.), 2018
WL 4827056, at *4-18. Instead, the FOP criticized the statutory appeals court for
erroneously employing the essence test in the Act 111 arbitration context, disregarding
the sharply confined parameters of narrow certiorari review, and otherwise departing
from the “extreme deference” due an arbitrator. Id. (citing, inter alia, Town of
McCandless, 587 Pa. at 532, 901 A.2d at 995).
The Commonwealth Court affirmed. See City of Pittsburgh v. FOP, Fort Pitt
Lodge No. 1, 189 A.3d 491 (Pa. Cmwlth. 2018). The court recognized that Act 111
admonishes that an arbitration award under the enactment “shall be final on the issue or
issues in dispute and shall be binding upon the public employer and the policemen or
firemen involved” and that “[n]o appeal therefrom shall be allowed to any court.” Id. at
495 (quoting 43 P.S. §217.7(a)). It explained, nonetheless, that to protect against
untenable irregularities in the arbitration process, narrow certiorari review pertains. See
id.
Even so, the intermediate court acknowledged that “mere errors of law are
insufficient to set aside such an award as exceeding the arbitrator’s powers.” Id. at 495
(citing, inter alia, Betancourt, 540 Pa. at 79, 656 A.2d at 90). Accordingly, the court
[J-84-2019] - 9
highlighted that, “the fact that an arbitrator erroneously interpreted or misapplied
language in the collective bargaining agreement in resolving an individual grievance is
not a valid basis for vacating an Act 111 arbitration award.” Id. (citations omitted).
The Commonwealth Court cautioned, however, that “[a]n Act 111 arbitrator may
not . . . equitably reform the terms of a collective bargaining agreement under the guise
of a grievance arbitration.” Id. (citing On-Duty and Off-Duty Pay for Events, 111 A.3d at
801-02 (holding that an Act 111 arbitrator had exceeded his jurisdiction and authority by
requiring that on-duty and off-duty officers working the same event in secondary
employment were entitled to equal pay as an equitable matter, albeit that such pay
equality was not provided for in the applicable collective bargaining agreement)).
The intermediate court proceeded to credit the FOP’s observation that the
arbitration award under review does not require an illegal act and that it relates to terms
and conditions of employment. See generally City of Phila. v. FOP, Lodge No. 5, 564
Pa. 290, 299-301, 768 A.2d 291, 296–97 (2001) (discussing these considerations in
delineating the parameters of narrow certiorari, excess-of-authority review).
Nevertheless, the court reasoned:
The arbitration award did not, however, merely misapply
language in the collective bargaining agreement in resolving
an individual grievance. Rather, it reformed the CBA to add
a provision for compensation for loss of pass day that is not
in the CBA and made this ruling as to all affected officers in
the bargaining unit. The arbitrator acknowledged that the
CBA did not contain any provision for additional
compensation for the cancellation of a pass day. Moreover,
the arbitrator held that Section 8.D of the CBA applied to the
cancellation of pass days and provided that four hours was
the minimum overtime pay set by the CBA for such a callout.
Instead of basing her award on an interpretation of these
provisions or any other provision of the CBA related to
compensation, overtime, or callouts, the arbitrator held that
officers were entitled to a minimum of eight hours of
[J-84-2019] - 10
overtime pay for cancellation of a pass day because “the
City could not partially cancel a pass day without negating
the concept of 2 consecutive days off.” In essence, the
arbitrator created a remedy for loss of a pass day that she
acknowledged did not exist in the CBA; she “decided,
apparently, what the CBA should say and did not rely upon
what it does say.” On-Duty and Off-Duty Pay for Events,
111 A.3d at 801. Such an addition to the CBA is a function
of an interest arbitration and exceeded the arbitrator’s
powers in this grievance arbitration. Id. at 801-02.
City of Pittsburgh v. FOP, 189 A.3d at 496-97 (emphasis added; citations partially
omitted). See generally Michael G. Lutz Lodge No. 5, FOP v. City of Phila., 634 Pa.
326, 335-36, 129 A.3d 1221, 1226-27 (2015) (elaborating on the distinction between
grievance and interest arbitration). The court also observed that the FOP, during the
collective bargaining process, had unsuccessfully sought to make a pertinent change in
the CBA.6
The FOP’s appeal was allowed to consider the following issue, as framed by the
bargaining unit:
Did the Commonwealth Court ignore this Supreme Court’s
existing mandate to defer to a grievance arbitrator’s
straightforward interpretation of contract language by
mislabeling her award the construction of an equitable result,
thereby weakening the general assembly’s intent for Act 111
awards to create a final and binding resolution of contract
disputes?
6 Specifically, the Commonwealth Court pointed to the following proposed amendatory
language:
Pass Day Cancellations (Section 8): Amend Section 8(D) to
provide an 8-hour work guarantee and require compensation
at the double-time rate on all occasions where an employee
is required to work on a pass day.
City of Pittsburgh v. FOP, 189 A.3d at 493 (citations omitted).
[J-84-2019] - 11
City of Pittsburgh v. FOP, Fort Pitt Lodge No. 1, ___ Pa. ___, 200 A.3d 937 (2019) (per
curiam).
The parties agree that the narrow certiorari framework serves as the governing
scope of review. Under that framework, as noted, courts only consider the jurisdiction
and authority of the arbitrator, the regularity of the proceedings, and whether any
constitutional rights have been violated. See, e.g., Borough of Ellwood City v. Ellwood
City Police Dep't Wage & Policy Unit, 573 Pa. 353, 359-60, 825 A.2d 617, 621 (2003).
Consistent with the parties’ arguments, authority -- and jurisdiction to some extent -- are
presently at the forefront.
In terms of the applicable standard of review, the FOP initially contends that it is
plenary. See Brief for Appellant at 3. Nevertheless, the bargaining unit’s substantive
arguments are more consistent with the City’s acknowledgement that -- where
resolution of whether the issue involved implicates one of the four areas of inquiry
encompassed by narrow certiorari depends upon an interpretation of a collective
bargaining agreement or fact-finding -- the review is highly deferential, and the
reviewing court is bound by the arbitrator’s determination, even if incorrect. Compare
id. at 22 (crediting the standard of review set forth in PSP v. PSTA (Styers), 840 A.2d
1059, 1062-63 (Pa. Cmwlth. 2004), encompassing an “extreme standard of deference”),
with Brief for Appellee at 1-2 (same, with citation to this Court’s decision in Town of
McCandless, 587 Pa. at 540, 901 A.2d at 1000-01).
On the merits, the FOP discusses the special role of Act 111, which was
designed to balance the interests of the Commonwealth in promoting public safety and
the labor rights of critical public-service personnel. See generally Town of McCandless,
587 Pa. at 535-36, 901 A.2d at 997-98 (quoting PSP v. PSTA (Smith & Johnson), 559
Pa. 586, 591-92, 741 A.2d at 1251-52 (1999)). The union emphasizes that, as part of
[J-84-2019] - 12
this equilibrium, police and fire personnel were denied the right to strike, but their
employment interests were nonetheless protected via mandatory collective bargaining
and access to arbitration. Accord id.
The FOP further explains that narrow certiorari review of Act 111 arbitration
awards, on the one hand, vindicates the manifest public interest in the timely, certain,
and final resolution of labor disputes in the police and firefighter arenas. See, e.g., Twp.
of Sugarloaf v. Bowling, 563 Pa. 237, 241, 759 A.2d 913, 915 (2000) (“To ensure that
resolution of labor disputes [between police and firefighters and their public employers
is] both swift and certain, involvement by the judiciary in the resolution of Act 111
disputes is most severely circumscribed.”). On the other hand, the judiciary was bound
to screen against the possibility that arbitrators might stray outside the purview of
legitimate dispute resolution. See City of Phila. v. FOP, 564 Pa. at 299, 768 A.2d at 296(expressing a concern with avoiding “investing Act 111 arbitrators with limitless
powers.”).
In all events, the FOP emphasizes, “[u]nder narrow certiorari, the appellate
court’s role is to be one of restraint and extreme deference to the arbitrator’s decision,”
and courts are to refrain from engaging in merits review of arbitration proceedings. Brief
for Appellant at 16, 22. In this regard, the FOP relates that errors of law committed by
an Act 111 arbitrator fall outside narrow certiorari’s appropriate purview. See, e.g., Brief
for Appellant at 23 (“[T]he fact that an arbitrator either erroneously interpreted or
misapplied language in a CBA in resolving an individual grievance is not a valid basis
for vacating an Act 111 arbitration award.”).
According to the union, the Commonwealth Court “consciously overreached” and
exhibited “deliberate indifference” to the narrow certiorari construct by deeming an
asserted error of law fatal to the arbitrator’s resolution of a dispute entrusted to her
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under the CBA. Id. at 17. Along these lines, the FOP charges that the intermediate
court exceeded the established scope of review by displacing the arbitrator’s
interpretation of the CBA and mislabeling the remedy she awarded as an equitable one.
See id. at 37. As a matter of policy, the union argues:
The Commonwealth Court’s opinion, if permitted to stand,
creates an immediate vehicle for destabilization of the
collective bargaining rights of police officers and firefighters,
which is harmful to the general public, as it undermines the
goals of Act 111 in ensuring an actual resolution of disputes
between police employees and their municipal employers.
Id. at 38.
The City, on the other hand, contends that, once the arbitrator rejected the FOP’s
position that the municipality had breached the CBA by requiring officers to engage in
secondary employment, she should have simply denied the grievance.7 Consistent with
the Commonwealth Court’s decision, the City argues that the arbitrator improperly acted
as an interest arbitrator by fashioning compensation in excess of what the CBA
provided, thus exceeding her powers under Act 111. See, e.g., Brief for Appellee at 9,
17 (“Only an interest arbitration panel is empowered with the necessary delegation of
authority to modify mandatory subjects of bargaining.”).
7 Despite portraying the matter of secondary employment as presently irrelevant, the
City offers an extra-record explanation for why it believes that Section 24 of the CBA
(Secondary Employment) lacked effectiveness at the time of the marathon. See Brief
for Appellee at 5 n.1. The explanation concerns a memorandum of understanding
between the City and the FOP entered in 2013. See id.
As the City recognizes, however, the effectiveness of such memorandum is a contested
matter in ongoing litigation presently before the Commonwealth Court, see FOP, Fort
Pitt Lodge No. 1, 1414 CD 2019, and there is simply no need for this Court to delve into
the matter here.
[J-84-2019] - 14
In the City’s view,
This case demonstrates why the limits of a grievance
arbitrator’s authority cannot precisely mirror that of an
interest arbitrator’s without eroding the parties’ right to
engage in collective bargaining. Otherwise, a grievance
arbitrator, finding no ambiguous term to interpret, nor any
other contract violation to remedy, can take a frolic through
the parties’ agreement, reconstruct it to suit her sense of
fairness, and remain immune from judicial review.
Id. at 9. In this regard, the City offers a series of rather effective criticisms of the
arbitrator’s reasoning. See id. at 19 (relating that, in “find[ing] that officers were entitled
to a different guaranteed rate of pay when subject to a schedule modification,” the
arbitrator “ignored other provisions in the contract that already compensate officers for
work outside their normal shifts”).
Consistent with its pervading focus on the terms of the CBA, the City contends
that it could not, consistent with the bargaining agreement, voluntarily vary the terms
and conditions of officers’ employment. See id. at 21-22. From the City’s point of view,
this demonstrates that the arbitrator exceeded her authority, given that she was
permitted to require the City to do only that which it could do voluntarily. See, e.g., City
of Pittsburgh v. FOP, Fort Pitt Lodge No. 1, 595 Pa. 47, 54, 938 A.2d 225, 230 (2007);
Betancourt, 540 Pa. at 79, 656 A.2d at 90. It is the City’s position that, contrary to the
FOP’s prognosis of destabilization, the Commonwealth Court’s order preserves the
well-settled distinction between binding interest arbitration and grievance arbitration.
See Brief for Appellee at 25 (“There is nothing to suggest that prohibiting grievance
arbitrators from acting as interest arbitrators will have a deleterious effect on labor
peace.”).
Finally, the City invokes Article III, Section 31 of the Pennsylvania Constitution.
See PA. CONST., art. III §31 (providing -- notwithstanding the general prohibition against
[J-84-2019] - 15
delegation of certain powers related to municipal functions -- that the General Assembly
may enact laws, inter alia, providing for binding arbitration implemented by “panels or
commission, selected and acting in accordance with law for the adjustment or
settlement of grievances or disputes or for collective bargaining between policemen and
firemen and their public employers”). To the extent that the procedural safeguards of
Act 111 pertaining to interest arbitration are not scrupulously observed, the City
contends that modification of a collective bargaining agreement is constitutionally
impermissible. See Brief for Appellee at 20-21.
Applying narrow certiorari review centering on jurisdiction and authority, we
initially conclude that the arbitrator had jurisdiction over the present controversy. The
jurisdictional assessment, in this context, concerns subject matter jurisdiction. See,
e.g., City of Arnold v. Wage Policy Comm. of the City of Arnold Police Dep’t, 643 Pa. 28,
36-37, 171 A.3d 744, 749 (2017) (citing City of Phila. v. IAFF, Local 22, 606 Pa. 447,
462, 999 A.2d 555, 564 (2010) (“The inquiry that the jurisdiction prong of narrow
certiorari has traditionally posed is a single and straightforward question—did the
decision-maker in the adjudicatory process act in that general class of controversies
that the law empowers it to consider.”)). Under this Court’s decisional law, “an arbitrator
has jurisdiction to adjudicate the class of disputes arising out of a CBA between a public
employer and its firefighters or police employees, rationally related to the terms and
conditions of their employment.” Id. at 37-38, 171 A.3d at 750.
Indeed, although the City has understood the Commonwealth Court’s opinion as
encompassing a holding that the arbitrator lacked jurisdiction over the present labor
dispute, see Brief for Appellee at 8, the municipality does not presently defend the
decision on such terms. See, e.g., Brief for Appellee at 21 (acknowledging that, as a
jurisdictional matter, “public employers are bound to proceed to arbitration even when a
[J-84-2019] - 16
contract interpretation grievance is meritless or does not concern a legitimate dispute
between the parties” (citing Pittsburgh Joint Collective Bargaining Comm. v. City of
Pittsburgh, 481 Pa. 66, 70-71, 391 A.2d 1318, 1320 (1978)). For this reason, the City
concentrates on the matter of authority. See, e.g., id.8
In terms of the arbitrator’s authority, this Court’s recent decisions recognize the
broad authority of an arbitrator to address terms and conditions of employment. See,
e.g., Smith & Johnson, 559 Pa. at 592, 741 A.2d at 1252 (observing that the “definition
of what constitutes ‘an excess of an arbitrator's powers' [is] far from expansive.”). As
long as an award concerns terms and conditions of employment, and the arbitrator does
not require the performance an illegal act -- or one that a party could not do voluntarily --
the authority prong of narrow certiorari review is generally met. See, e.g., City of
Pittsburgh v. FOP, 595 Pa. at 54, 938 A.2d at 230; City of Phila. v. FOP, 564 Pa. at 299-
301, 768 A.2d at 296–97.9 Along these lines, the City itself concedes (at least in one
8 The Commonwealth Court’s explicit holding was based on an excess-of-powers
rationale, but its reasoning was largely premised on On-Duty and Off-Duty Pay for
Events, 111 A.3d at 801-02, which blended the jurisdictional and excess-of-authority
aspects of narrow certiorari review. See id.
The notion that jurisdiction, in the grievance arbitration setting, should be assessed
according to the specific terms of the collective bargaining agreement under
consideration finds some support in minority expressions of individual Justices. See,
e.g., City of Arnold, 643 Pa. at 51-52, 171 A.3d at 757-58 (Saylor, C.J., concurring).
Such positions, however, have not garnered the support of a majority of this Court.
See, e.g., id. at 37-38, 171 A.3d at 750 (reflecting the majority’s application of a subject-
matter litmus extraneous to the terms of the bargaining agreement in issue).
9 It is also necessary for the complaining party to identify, before the arbitrator, the
particular issues in dispute. See City of Phila. v. IAFF, 606 Pa. at 464, 999 A.2d at 565.
Here, although the City offers a colorable complaint that the focus before the arbitrator
on the secondary employment issue was predominant, the FOP did specifically invoke
Sections 8 (Hours of Work) and Section 9 (Overtime) of the CBA, see Pittsburgh
(continued…)
[J-84-2019] - 17
passage from its brief) that, “[w]here resolution [of a labor dispute] depends upon
interpretation of a collective bargaining agreement or undisputed facts, the Court is
bound by the arbitrator’s determination, even if incorrect.” Brief for Appellee at 1-2
(citing Town of McCandless, 587 Pa. at 532, 901 A.2d at 995).
The Commonwealth Court recognized that the disputed award concerns terms
and conditions of employment, see City of Pittsburgh v. FOP, 189 A.3d at 496, and
certainly the City does not dispute this. Accordingly, the City premises the relevant line
of its argument on illegality -- or the assertion that it cannot be required to do what it
could not do voluntarily -- based on terms and conditions specified in the CBA. See,
e.g., Brief for Appellee at 21-22.
If, however, the requirement of voluntariness turned on the specific matters to
which the parties can be said to have agreed in a bargaining agreement, narrow
certiorari, excess-of-authority review would simply collapse into the essence test
applicable to labor arbitrations outside the Act 111 context. See Millcreek Twp. Sch.
Dist. v. Millcreek Twp. Educ. Support Personnel Ass’n, ___ Pa. ___, ___, 210 A.3d 993,
996 (2019) (explaining that, under the essence test, grievance arbitrators may decide
only issues encompassed by a collective bargaining agreement, and their awards must
be upheld if the arbitrator’s interpretation can rationally be derived from the agreement).
But this Court has maintained that the assessment of terms and conditions is within the
domain of arbitrators. For example, in City of Philadelphia v. Fraternal Order of Police,
the Court specifically rejected an argument that an arbitrator misinterpreted the
management rights clause of a collective bargaining agreement. The Court reasoned:
“Such an argument . . . is not cognizable within the confines of the narrow certiorari
(…continued)
Marathon Overtime Pay Grievance at 1, which served as the ostensible basis for the
award.
[J-84-2019] - 18
scope of review’s definition of an excess of the arbitrator’s powers as it is, in effect, an
argument that the arbitrator erred as a matter of law.” City of Phila. v. FOP, 564 Pa. at
300-01, 768 A.2d at 297.
Thus, it is clear from the prior decisions that voluntariness is assessed with
regard to matters to which the parties could lawfully agree, for example, according to
the legal demarcation between bargainable terms and conditions of employment and
managerial prerogatives. See City of Allentown v. IAFF Local 302, 638 Pa. 584, 595-
96, 157 A.3d 899, 906 (2017) (explaining that subjects that are inherently matters of
managerial prerogative are not subject to bargaining, and an arbitrator may exceed his
or her powers by intruding upon these).
Notably, over the years, various Justices -- including this author -- have taken a
position, similar to that of the City, that the essence test should apply to grievance
arbitrations conducted in the Act 111 framework and/or that grievance awards involving
police and fire-fighting personnel should be subject to judicial review for manifest
unreasonableness. See, e.g., Town of McCandless, 587 Pa. at 534 n.10, 901 A.2d at996 n.10 (collecting minority expressions in this vein). See generally John P.
McLaughlin & Patrick J. Harvey, Betancourt and the Narrow Certiorari Scope of Review
of Appeals from Act 111 Grievance Arbitration Awards: Its Time Has Already Come and
Gone, 5 U. PA. J. LAB. & EMP. L. 427, 437 (2003) (contending that the failure of narrow
certiorari review, in the grievance arbitration setting, to focus on the terms of the
collective bargaining agreement “cheapens the value of collective bargaining under Act
111, and threatens to deteriorate the process to an empty formality”). These
expressions, however, have failed to command majority support. Moreover, the
Legislature has had decades to consider the substantial and important questions being
raised by members of this Court about the severe constraints on judicial review of Act
[J-84-2019] - 19
111 grievance arbitration awards, but the Assembly has not undertaken to alter the
prevailing law restricting such review to narrow certiorari. See generally PPL Elec. Utils.
Corp. v. City of Lancaster, ___ Pa. ___, ___, 214 A.3d 639, 647–48 (2019) (explaining
that, “when the legislature declines to amend a statute in contravention of this Court's
prior interpretation of the statute, we may presume that our prior interpretation was and
remains consistent with legislative intent.” (citations omitted)).
As the FOP stresses, the prevailing majority position, in this regard, is predicated
on the substantial labor rights withheld from police and firefighting personnel on account
of their critical role in promoting the health and safety of the public. See, e.g., City of
Allentown, 638 Pa. at 594-95, 157 A.3d at 905-06. And Act 111 does specifically
provide that an arbitration award "shall be final on the issue or issues in dispute and
shall be binding upon the public employer and the policemen or firemen involved" and
that "[n]o appeal therefrom shall be allowed to any court.” 43 P.S. §217.7(a).
Certainly, an Act 111 grievance arbitrator should not undertake to equitably
reform a collective bargaining agreement. Absent an indisputably overt instance of
reformation, however, we find the task of distinguishing between such an innovation and
errors of law in the interpretation to be unmanageable. Cf. Smith & Johnson, 559 Pa. at
593-94, 741 A.2d at 1252-53 (refusing to incorporate review for violations of public
policy into narrow certiorari, since such a focus “--- however that nebulous concept may
be defined by a particular appellate court -- would greatly expand the scope of review . .
. undercut[ting] the legislature’s intent of preventing protracted litigation in this arena”).
Presently, we agree with the FOP that the arbitrator’s legal reasoning, however flawed,
demonstrates sufficient interpretative focus.10
10In this regard, we appreciate the City’s observation that the CBA provides 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. Again, however, under
(continued…)
[J-84-2019] - 20
Finally, with respect to the City’s constitutional argument, this has been raised for
the first time in a responsive brief before this Court, and the FOP has not submitted a
reply. Absent such counter-advocacy, this case does not present an ideal vehicle to
delve into the application of Article III, Section 31 of the Pennsylvania Constitution.
Moreover, the City has not developed a record of the actual fiscal impact of the
arbitrator’s decision. In this regard, the courts have not been informed as to how many
hours of officers’ work at the marathon fell between the undisputed four-hour minimum
and the eight hours due under the arbitration award. In the circumstances, while we
certainly do not foreclose the possibility of an as-applied challenge to an Act 111
grievance arbitration award under Article III, Section 31, as a prudential matter we
decline to proceed beyond the parameters of the case presented to the statutory
appeals and intermediate courts and the reasoning they applied.
The order of the Commonwealth Court is reversed, and the matter is remanded
for reinstatement of the arbitration award.
Justices Baer, Todd, Donohue, Dougherty, Wecht and Mundy join the opinion.
(…continued)
prevailing law, an arbitrator’s legal errors in the interpretation of the labor agreement fall
outside the scope of appropriate judicial review in the Act 111 context.
[J-84-2019] - 21