City of Pittsburgh v. FOP Fort Pitt Lodge No. 1 , 189 A.3d 491 ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Pittsburgh :
:
v. :
: No. 954 C.D. 2017
Fraternal Order of Police : Argued: May 7, 2018
Fort Pitt Lodge No. 1, :
:
Appellant :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY
SENIOR JUDGE COLINS FILED: June 21, 2018
This matter is an appeal from an order of the Allegheny County Court
of Common Pleas (common pleas court) that vacated an Act 1111 grievance
arbitration award under the collective bargaining agreement (CBA) between the City
of Pittsburgh (City) and the Fraternal Order of Police Fort Pitt Lodge No. 1 (FOP)
concerning pay for City police officers who are required to work on one of their two
consecutive weekly days off. For the reasons set forth below, we affirm.
The CBA provides that City police officers’ normal workweek shall
consist of five workdays and two consecutive days off, referred to as pass days.
1
The Act of June 24, 1968, P.L. 237, No. 111, as amended, 43 P.S. §§ 217.1–217.10, commonly
referred to as Act 111, governs the collective bargaining rights of police and fire personnel.
(CBA §§ 3.E.2, 8.A.2, Reproduced Record (R.R.) at 75a, 93a.)2 The CBA states
that its provisions concerning the 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, R.R. at 93a.)
The CBA provides with respect to officers required to work outside
their normal work schedule:
Call Outs - Except for Court or Magistrate sessions covered by
Paragraph B above, 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, R.R. at 96a) (emphasis added). The CBA provides that “[i]f officers
are forced to work on pass days, then the order of selection shall be by inverse
seniority.” (Id. § 9.C, R.R. at 100a.) The CBA, however, contains no provision
specifically addressing compensation for canceled pass days or excluding canceled
pass days from the general provision for compensation for call outs in Section 8.D.
In collective bargaining, the FOP had unsuccessfully sought to make the following
change in the CBA:
2
The CBA in the record states on its face that it is the CBA between the City and the FOP for the
period January 1, 2010 to December 31, 2014 and states “Draft 4/25/11” on each page. The CBA
also provides that although its term ends December 31, 2014, it “shall remain in force and effect
from year to year thereafter unless either party shall notify the other in writing on or before July
1, of 2014 and on or before July 1 of each calendar year thereafter, of any desire to terminate and/or
modify any of its provisions in effect at that time, as of the first day of the next following calendar
year.” (CBA § 25, R.R. at 202a.) The parties do not dispute that this is the CBA that was in effect
in May 2016.
2
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.
(Original Record Item (R. Item) 9, Ex. A to City Brief in Support of Common Pleas
Court Petition for Review at 3 ¶9.)
Under the CBA, where a special event in the City requires additional
police for crowd and traffic control, the private business running or sponsoring the
event pays off-duty police officers for this work, known as “secondary
employment,” at a rate of pay agreed upon by the City and the private business.
(CBA § 24, R.R. at 199a-201a.)3 The CBA provides that “[a]ll secondary
employment will be voluntary” and that “[n]o police officer will be compelled to
work for a Secondary Employer.” (Id. § 24.2, R.R. at 199a.) The section of the
CBA governing grievances 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.” (Id. § 5.C.3.b, R.R. at 85a.)
On May 1, 2016, the City hosted the 2016 Pittsburgh Marathon.
(Arbitration Award, R.R. at 15a.) There were insufficient secondary employment
volunteers to supply the 100 officers needed to provide police coverage for this
event. (Id., R.R. at 15a-16a, 19a.) On May 1, 2016, the City therefore called out 70
police officers to work the Pittsburgh Marathon either before the start of their shift
or on what would have been one of their pass days. (Id., R.R. at 16a, 19a.)4 The
officers required to work on their pass days were selected by inverse seniority. (Id.,
3
See also City of Pittsburgh v. Fraternal Order of Police Fort Pitt Lodge No. 1 (On-Duty and Off-
Duty Pay for Events), 111 A.3d 794, 796-97 (Pa. Cmwlth. 2015) (en banc).
4
On-duty police officers, paid in accordance with the CBA, may also work at the same event as
officers working secondary employment. See On-Duty and Off-Duty Pay for Events, 111 A.3d at
797.
3
R.R. at 16a.) The City paid the officers who were required to work the Marathon
the overtime rate of pay for those hours. (Common Pleas Court Petition for Review
¶5, R.R. at 207a; R. Item 5, FOP Response to Common Pleas Court Petition for
Review ¶5.)
On May 24, 2016, the FOP filed a grievance asserting that the City was
required under the CBA to pay the officers required to work before the start of their
shift a minimum of four hours of overtime regardless of the number of extra hours
worked and to pay officers whose pass day was canceled a minimum of eight hours
of overtime and a total of twelve hours of overtime if they were required to report
before their regular shift time. (Grievance, R.R. at 42a.) In the grievance, the FOP
requested relief on behalf of “any bargaining unit members” who were not paid in
accordance with those contentions. (Id.) The FOP also asserted that the City
violated the CBA because it required officers to work to fill secondary employment
positions. (Id.; FOP Arbitration Brief, R.R. at 2a.) In the initial stages of the
grievance process, the City sustained the grievance with respect to officers for whom
May 1, 2016 was their normal workday and who were required to work before the
start of their regular shift, agreed that those officers were entitled to a minimum of
four hours of overtime pay, and also agreed that officers called in on a pass day were
entitled to a minimum of four hours of overtime pay. (Arbitration Award, R.R. at
17a; 7/13/16 City Grievance Response, R.R. at 46a.) The City, however, denied the
grievance with respect to the FOP’s contentions that officers called out to work on a
pass day were entitled to a minimum of eight or twelve hours of overtime, and those
portions of the grievance proceeded to arbitration before a single arbitrator.
(Arbitration Award, R.R. at 13a, 17a; 7/13/16 City Grievance Response, R.R. at 46a-
47a.)
4
The arbitrator held a hearing on the grievance on October 3, 2016. On
January 31, 2017, the arbitrator issued an award ruling that the officers required to
work on a pass day were entitled to a minimum of eight hours of overtime for their
work on May 1, 2016, but rejecting the FOP’s contentions that they were entitled to
an additional four hours of overtime and that the City violated the CBA provisions
on secondary employment. (Arbitration Award, R.R. at 19a-22a.) The arbitrator
noted that the CBA “does not specifically address compensation for the cancellation
of a pass day.” (Id., R.R. at 20a.) The arbitrator also recognized that Section 8.D of
the CBA “provides Officers with a minimum of 4 hours of overtime pay when
‘called out to work for any period other than the period of his or her previously
scheduled hours of work’” and that “[t]his callout provision applied to the
cancellation of Officers’ pass day on May 1, 2016, setting a minimum of 4 hours of
overtime pay for the callout work.” (Id., R.R. at 20a-21a (quoting the CBA).) The
arbitrator held, however, that officers were entitled to eight hours of overtime pay
for being called out to work on a pass day because they were deprived of having a
full day off and the normal workday is eight hours. (Id.)
The City filed a petition for review in the common pleas court seeking
to vacate the arbitrator’s award on the ground that the arbitrator exceeded her
powers. On June 22, 2017, the common pleas court vacated the arbitrator’s award.
The court recognized that review of the award was limited to four areas: 1) whether
the arbitrator had jurisdiction; 2) regularity of the proceedings; 3) whether the
arbitrator exceeded her powers; and 4) whether there was a deprivation of
constitutional rights. (Common Pleas Court Op. at 6-7.) The common pleas court
vacated the arbitrator’s award on the ground that it was unsupported by anything in
the CBA and “fashion[ed] the officers’ compensation beyond that which they have
5
collectively bargained to receive,” stating that the arbitrator “form[ed] a remedy for
the Police when no such remedy was provided by the actual language of the
agreement.” (Id. at 9.) The FOP timely appealed the common pleas court’s decision
to this Court.5
Section 7(a) of Act 111 provides that an arbitration award under its
provisions “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). Judicial review of
police grievance arbitration awards is therefore limited to narrow certiorari review
under which the arbitration award may be set aside only 1) if the arbitrator lacked
jurisdiction to issue the award; 2) for irregularity in the arbitration proceedings; 3)
if the arbitrator exceeded her powers; or 4) where there was a deprivation of
constitutional rights. City of Philadelphia v. Fraternal Order of Police Lodge No. 5
(Breary), 985 A.2d 1259, 1266 (Pa. 2009); City of Philadelphia v. Fraternal Order
of Police, Lodge No. 5 (Staff Inspector Appeal), 768 A.2d 291, 294 (Pa. 2001);
Pennsylvania State Police v. Pennsylvania State Troopers Association (Smith &
Johnson), 741 A.2d 1248, 1251 (Pa. 1999); Pennsylvania State Police v.
Pennsylvania State Troopers’ Association (Betancourt), 656 A.2d 83, 89-90 (Pa.
1995).
A police grievance arbitration award may be set aside as exceeding the
arbitrator’s powers if the award requires the public employer to commit an illegal
act or if the award orders an act that does not relate to terms or conditions of
employment. Staff Inspector Appeal, 768 A.2d at 296-97; Smith & Johnson, 741
5
The Court’s review of whether the common pleas court erred in vacating the arbitration award is
plenary. City of Philadelphia v. Fraternal Order of Police Lodge No. 5 (Breary), 985 A.2d 1259,
1266 (Pa. 2009).
6
A.2d at 1252; Betancourt, 656 A.2d at 90. In contrast, mere errors of law are
insufficient to set aside such an award as exceeding the arbitrator’s powers. Staff
Inspector Appeal, 768 A.2d at 297; Smith & Johnson, 741 A.2d at 1252; Betancourt,
656 A.2d at 90. Accordingly, 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.
Pennsylvania State Police v. Pennsylvania State Troopers’ Association (Keyes), 54
A.3d 129, 133-34 (Pa. Cmwlth. 2012); Borough of Montoursville v. Montoursville
Police Bargaining Unit, 958 A.2d 1084, 1091-92 (Pa. Cmwlth. 2008); Bensalem
Township v. Bensalem Township Police Benevolent Association, Inc., 803 A.2d 239,
242-43 (Pa. Cmwlth. 2002), appeal dismissed as improvidently granted, 849 A.2d
1152 (Pa. 2004); Township of Ridley v. Fraternal Order of Police Lodge No. 27, 718
A.2d 872, 875 (Pa. Cmwlth. 1998).
An Act 111 arbitrator may not, however, equitably reform the terms of
a collective bargaining agreement under the guise of a grievance arbitration. City of
Pittsburgh v. Fraternal Order of Police Fort Pitt Lodge No. 1 (On-Duty and Off-
Duty Pay for Events), 111 A.3d 794, 801-02 (Pa. Cmwlth. 2015) (en banc). In On-
Duty and Off-Duty Pay for Events, in a grievance arbitration under the same CBA at
issue here, the arbitrator held that on-duty police officers assigned to work special
events were entitled to be paid at the same rate of pay as off-duty officers working
the same event in secondary employment, on the ground that they were doing the
same work at the same event. Id. at 797-98. This Court en banc rejected the
argument that the award could not be set aside under narrow certiorari review
because it related to a term and condition of employment and did not require an
illegal act, and affirmed the trial court’s order vacating the award. Id. at 800-02.
7
The Court concluded that the arbitrator’s award exceeded his jurisdiction and powers
as a grievance arbitrator because he reformed the CBA, rather than interpreting what
the agreement provided, stating:
It is the substance of the award, not merely the subject matter of
the award or the question put to the arbitrator, that is critical to
whether the reviewing court’s review has confined itself to the
limits of narrow certiorari.
The arbitrator had jurisdiction over the question put to him, as
found by the trial court. However, in fashioning his award, the
arbitrator exceeded both his jurisdiction and authority. The
purpose of grievance arbitration is to resolve disputes over a
provision of an existing contract. The arbitrator explained his
award on the grounds that it would be “inequitable” not to give
on-duty officers the same wage paid to an off-duty officer. An
Act 111 grievance arbitrator does not have jurisdiction or
authority to rely on principles of equity to reform the CBA.
Id. at 801. The Court held that such an arbitration award exceeded the arbitrator’s
powers because it converted the grievance arbitration before him into an interest
arbitration, explaining:
Instead of acting solely as a grievance arbitrator, the arbitrator
stepped into the shoes of an interest arbitrator by issuing an
award applicable to all police officers in the bargaining unit, not
just the grievants. The arbitrator decided, apparently, what the
CBA should say and did not rely upon what it does say. This he
lacked power to do.
* * *
In sum, the arbitrator had jurisdiction to decide a grievance that
the wages paid to on-duty police officers violated the CBA.
However, in fashioning this award, he acted as an interest
arbitrator, which exceeded his jurisdiction and authority in a
grievance arbitration.
8
Id. at 801-02. The Supreme Court denied the FOP’s petition for allowance of appeal
of this decision. City of Pittsburgh v. Fraternal Order of Police Fort Pitt Lodge No.
1 (On-Duty and Off-Duty Pay for Events), 124 A.3d 310 (Pa. 2015).
The FOP argues that the common pleas court could not set aside the
arbitrator’s award because the award does not require an illegal act and relates to
terms and conditions of employment and because any error by the arbitrator is at
most an error of law. We do not agree.
The FOP is correct that the award does not require an illegal act by the
City. It also relates to terms and conditions of employment, as it concerns
compensation and hours of employment. Section 1 of Act 111, 43 P.S. § 217.1; Staff
Inspector Appeal, 768 A.2d at 297. 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.
(Arbitration Award, R.R. at 20a.) 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. (Id., R.R. at 20a-21a.)
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 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.” (Id., R.R. at 20a.) In
essence, the arbitrator created a remedy for loss of a pass day that she acknowledged
9
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 the function of an interest arbitration and
exceeded the arbitrator’s powers in this grievance arbitration. Id. at 801-02.
Because the arbitrator exceeded her powers, the common pleas court
properly vacated the arbitrator’s award. We therefore affirm the common pleas
court’s order.
____________________________________
JAMES GARDNER COLINS, Senior Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Pittsburgh :
:
v. :
: No. 954 C.D. 2017
Fraternal Order of Police :
Fort Pitt Lodge No. 1, :
:
Appellant :
ORDER
AND NOW, this 21st day of June, 2018, the order of the Court of
Common Pleas of Allegheny County in the above-captioned case is AFFIRMED.
____________________________________
JAMES GARDNER COLINS, Senior Judge