Michael G. Lutz Lodge No. 5, of the Fraternal Order of Police v. City of Philadelphia

[J-8-2015]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
MICHAEL G. LUTZ LODGE NO. 5, OF : No. 42 EAP 2014
THE FRATERNAL ORDER OF POLICE, :
: Appeal from the Order of the
Appellant : Commonwealth Court entered on January
: 2, 2014 at No. 114 CD 2013, affirming the
: Order of the Court of Common Pleas of
v. : Philadelphia County, Civil Division,
: entered on December 27, 2012 at No.
: 2165 October Term 2011
CITY OF PHILADELPHIA, :
: ARGUED: May 5, 2015
Appellee :
OPINION
MADAME JUSTICE TODD DECIDED: December 21, 2015
In this appeal by allowance, we consider the breadth of the authority of an
interest arbitration panel acting pursuant to the Policemen and Firemen Collective
Bargaining Act (“Act 111”).1 For the reasons that follow, we find that an interest
arbitration panel’s authority is limited to addressing issues properly submitted to the
panel, or those questions reasonably subsumed within those issues. As we conclude
the panel in this matter exceeded its authority by speaking to an issue that was neither
bargained over, raised in prior related proceedings before the panel, nor reasonably
subsumed within the issue that was properly before the panel, we reverse the order of
the Commonwealth Court which affirmed the underlying interest arbitration award.
1
Act of June 24, 1968, P.L. 237, as amended, 43 P.S. §§ 217.1-217.10.
The facts underlying this matter are not in dispute. June 30, 2009 marked the
expiration of the collective bargaining agreement between Appellee, the City of
Philadelphia (“City”), and Appellant, the Michael G. Lutz Lodge No. 5 of the Fraternal
Order of Police (“FOP”), which is the exclusive collective bargaining representative for
the bargaining unit of Philadelphia police officers. After negotiations to reach a
successor contract failed to resolve bargaining disputes directly, the parties proceeded
to binding interest arbitration, pursuant to Section 4 of Act 111, 43 P.S. § 217.4.2 After
numerous days of hearings, spanning five months, on December 18, 2009, the interest
arbitration panel (“Panel”) issued an award (“2009 Award”) which spoke to certain
specific disputed issues, and put into place a new collective bargaining agreement
extending from July 1, 2009 through June 30, 2013 (“Agreement”). Except as modified
by the 2009 Award, all other terms of the prior collective bargaining agreement
remained in effect. 2009 Award, § 23.
One issue before the Panel, which is the focus of this appeal, concerned
advance notification and premium overtime for police officers for court appearances.
Specifically, Section 14 of the 2009 Award provides:
Effective January 1, 2010, officers who do not receive notice
at least 48 hours in advance of the time they are directed to
appear for a required court appearance, other than a
preliminary hearing, scheduled for a date the officer is not
scheduled to work, shall be paid a minimum of 4 hours of
overtime at a rate of 2.5 times the employee’s regular rate.
2
“Interest arbitration,” as more fully discussed below, is the dispute resolution process
utilized when an employer and a union are unable to agree on the terms of a potential
collective bargaining agreement. This may be contrasted with “grievance arbitration,”
which is the process through which the parties resolve disputes which arise as to the
proper interpretation of, or compliance with, an existing collective bargaining agreement.
Twp. of Moon v. Police Officers of the Twp. of Moon, 498 A.2d 1305, 1308 n.5 (1985).
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2009 Award, § 14. In addition to this notification and compensation provision, the 2009
Award also allowed that certain officers who had obtained a specified amount of
seniority would no longer be required to reside within the City of Philadelphia. 2009
Award, § 6. Finally, the Panel took the step of retaining jurisdiction to resolve any
disputes which arose “regarding implementation” of the 2009 Award. 2009 Award, §
22.3
Thereafter, and in light of Section 14 of the 2009 Award, the Philadelphia Police
Department (“Department”) issued a notification which addressed certain classes of
court appearances within the 48-hour window and premium overtime compensation
which was contained in the 2009 Award. Specifically, the Department declared that if
an officer was properly notified at least 48 hours ahead of time of a court appearance on
a scheduled day off, and the case was continued until the next day, the officer would not
be entitled to the premium overtime, even if he did not receive additional notification.
The Department reasoned that, as the officer had been notified, there was no disruption
to his or her personal schedule. In response, the FOP filed grievances pursuant to the
grievance arbitration clause of the Agreement, seeking a determination that the
Department did not properly comply with Section 14 of the 2009 Award. While those
grievances were pending, however, the FOP also sought an immediate hearing before
the Panel to resolve issues which arose from the City’s implementation of the 2009
3
We note the anomaly of the interest arbitration panel’s retention of jurisdiction “to
resolve any disputes regarding implementation of the 2009 Award,” 2009 Award, § 22,
as the resolution of disputes over proper application and interpretation of a collective
bargaining agreement is typically in the nature of grievance arbitration.
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Award’s court notice provisions, pursuant to the retainer of jurisdiction provision. 2009
Award, § 22.
In response, the City submitted a proposal, 11 days before the hearing, seeking,
inter alia, that the City be permitted to provide officers notice of court appearances
electronically through a telephone number or email. As background, evidently as far
back as 1999, when the Department received notice from the Philadelphia District
Attorney’s Office, or a subpoena from private counsel, that a police officer was needed
to appear in court, notification to the officer was provided in person, through the officer’s
platoon commander, who was required to ensure that the officer received and signed
the notice. In rare instances, officers were notified by messenger or telephone, if time
or circumstances did not permit notification by the platoon commander. If the officer did
not comply with the notice, he or she could have been subjected to discipline. The
Department’s proposed notification procedures changed this system, and included a
process by which notification was deemed to be sufficient if a message was left on an
officer’s voicemail, and, further, such notice was considered to be sufficient for all court
appearances, not just those to be completed within 48 hours.
The FOP responded that the Panel did not have the jurisdiction or authority to
grant the City’s request, as the proposal implicated the manner of notice, which was not
the subject of Section 14, and, further, that implementation of Section 14 was the only
issue then before the Panel. The City asserted that, by returning to the Panel (in
interest arbitration) concerning the implementation of Section 14, the FOP brought the
manner of notification within the Panel’s jurisdiction and authority. Moreover, the City
claimed that the manner of notification was linked to the issue of payment of the
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premium overtime for late notification, as well as the relaxed residency requirements in
Section 6. More specifically, with respect to the second point, the City maintained that,
in light of the relaxed residency requirement for officers, electronic notification was
required to ensure that greater than 48 hours notice was given to officers so that their
lives would not be disrupted and so that the City would not have to pay premium
overtime for tardy notice.
On October 6, 2011, the Panel, in a divided 2-1 decision (the “2011 Award”),
found in favor of the City, determining in Section 4 of the 2011 Award that: (1) the
Department could provide electronic notice of a court appearance using an officer’s
email address or telephone number, thus requiring all officers to provide the Department
with an email address or telephone number; (2) any officer who chose telephone notice
was required to have an answering machine or voicemail service; (3) the sending of an
email or leaving a message would constitute sufficient notice of an officer’s required
court appearance; and (4) any officer who did not comply with the electronic notification
policy would be ineligible for premium overtime and subject to discipline. 2011 Award,
§ 4. The Panel majority recognized that the notice issue was not before the Panel
during the 2009 interest arbitration, but, nevertheless, believed it was “part-and-parcel”
of Section 14’s implementation. The FOP-appointed arbitrator filed a vigorous dissent,
asserting that the majority had changed what he believed to be a grievance arbitration
proceeding into an interest arbitration proceeding, and, thereby altered the terms of the
2009 Award without proper authority. The FOP appealed the Panel’s 2011 Award.
On December 27, 2012, the Philadelphia County Court of Common Pleas upheld
the arbitration award. The court, after determining that the matter was an appeal of an
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interest arbitration award, and not the appeal of a grievance award, opined that the
Panel did not exceed its powers in issuing Paragraph 4 of the 2011 Award, as, in its
view, the issue of manner of notification was properly before the Panel. More pointedly,
the court determined that the Panel did what the FOP requested the Panel to do —
resolve issues surrounding the implementation of Section 14 of the 2009 Award, a
matter for which the Panel specifically retained jurisdiction. Like the Panel, the trial
court concluded that the manner of notification and payment of premium overtime were
linked, and, as the Panel was not limited to addressing whether the premium overtime
pay provided for in Section 14 could be given, it possessed the authority to include
Paragraph 4 in the 2011 Award in crafting the appropriate relief. The FOP filed an
appeal to the Commonwealth Court.
An en banc Commonwealth Court, in a sharply divided 4-3 published opinion,
affirmed. Michael G. Lutz Lodge No. 5 v. City of Philadelphia, 84 A.3d 343 (Pa. Cmwlth.
2014). Writing for the majority, Judge Anne Covey, made threshold determinations that
the proceeding was in the nature of an interest arbitration rather than a grievance
arbitration, and that the authority of the Panel was at issue, not the jurisdiction of that
tribunal.4 As to the question of the Panel’s authority to speak to the manner of
notification, the majority noted that the FOP never disputed that the entirety of Section
4
The distinction between authority and jurisdiction is subtle but important. As our Court
has explained, “Jurisdiction and power are not interchangeable . . . [j]urisdiction relates
solely to the competency of the particular court or administrative body to determine
controversies of the general class to which the case then presented for its consideration
belongs. Power, on the other hand, means the ability of a decision-making body to
order or effect a certain result.” Riedel v. Human Relations Comm’n of the City of
Reading, 739 A.2d 121, 124 (Pa. 1999).
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14 was at issue during the hearings regarding implementation and that the manner of
notification issue was merely an extension of the payment issue. Moreover, the majority
pointed out that the 2011 Award regarding how notices are delivered relates directly to
how the court notification provision is implemented. Further, the majority opined that, as
the method of delivery of notice was not explicitly provided for in the 2009 Award,
Paragraph 4 of the 2011 Award did not impermissibly alter the prior award. Thus, the
majority concluded the Panel did not exceed its authority, and it affirmed the arbitration
award.
Judge Kevin Brobson filed a dissenting opinion, joined by Judge Bernard
McGinley, reasoning that the manner of notice should not have been the subject of the
2011 Award, as it was not before the Panel after the parties reached impasse in 2009.
Judge Brobson believed, however, that the Panel exceeded its jurisdiction over the
matter, not just its power or authority. According to Judge Brobson, the Panel had
jurisdiction only over matters which were originally before it in 2009, when it retained
jurisdiction. As the manner of notice was a term and condition of employment, Judge
Brobson observed that the matter must have been bargained over to impasse, i.e.,
where the parties could not resolve outstanding disputes between them, which was not
the case, in order to invoke interest arbitration. Thus, according to Judge Brobson, the
Panel did not have jurisdiction over the question of manner of notice.
Judge Patricia McCullough penned a concurring and dissenting opinion in which
she found that the Panel exceeded its authority in addressing a waived issue, as the
manner of notice was never bargained over prior to the 2009 interest arbitration
hearings, and the matter was not raised at the 2009 hearings. Judge McCullough
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warned against using the process of implementation to serve as a means to reopen the
contract. Thus, according to Judge McCullough, the Panel had no authority to place the
manner of notice question at issue.
The FOP appealed, and we granted allocatur on the issue of the breadth of an
interest arbitration panel’s authority to address a question which was not bargained over
and not directly at issue before the panel in the prior interest arbitration award.
Specifically, we granted allowance of appeal on the following issues:
Whether the Commonwealth Court’s order allowing a panel
of arbitrators to address an issue never raised in the
underlying interest arbitration proceedings is contrary to
decades of authority from courts of this Commonwealth
limiting the authority of arbitrators to address only those
issues timely and properly placed before them?
Whether the Commonwealth Court’s order allowing a panel
of arbitrators to address an issue never raised in the
underlying interest arbitration proceedings is contrary to
decades of authority from courts of this Commonwealth
stating that decisions of Act 111 arbitrators are to be
rendered swiftly and with finality?
Michael G. Lutz Lodge No. 5 v. City of Philadelphia, 101 A.3d 782, 783 (Pa. 2014)
(order).
By way of background, in public sector labor law there are primarily two types of
alternative dispute resolution processes - interest arbitration and grievance arbitration.
In interest arbitration, an arbitration panel determines the terms and conditions of
employment after the parties fail to reach an agreement through collective bargaining
negotiations. Interest arbitration is, in essence, the process by which the parties,
through a neutral arbitrator or panel, create a collective bargaining agreement. This
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process may be contrasted with grievance arbitration, in which the parties dispute the
proper interpretation or application of provisions contained in an existing collective
bargaining agreement. Thus, while interest arbitration leads to the creation of a
collective bargaining agreement, grievance arbitration is the process by which the
parties settle disputes concerning the interpretation or application of an extant collective
bargaining agreement. In the matter sub judice, it appears that there was some
controversy below as to whether this appeal involved interest arbitration or the review of
a grievance arbitration award. Before us, however, the FOP does not seriously dispute
that the issue should be considered a vestige of an interest arbitration award, 43 P.S.
§ 217.7, and, thus, we proceed accordingly.5
5
The FOP, at one point, seemingly concedes that the proper context is that of interest
arbitration. Appellant’s Brief at 23 (“As the Panel in this case was sitting as an interest
arbitration panel, then it is necessary to recall the specific and mandatory requirements
of Act 111 with regard to the convening of such panels.” (emphasis original)). Further,
the FOP raised the nature of the arbitration proceedings as a discrete issue before the
Commonwealth Court, but does not do so before our Court. Yet, the FOP in its principal
brief also suggests this matter should be considered in the context of a grievance
arbitration. Appellant’s Brief at 34 (“The Panel here improperly disturbed this balance
by doing that which it was [not] empowered to do by either the parties’ agreement or Act
111: disturb the balance by playing interest arbitrator in the context of a grievance
arbitration proceeding.”). In its reply brief, however, the FOP first articulates its view
that the underlying proceeding unequivocally constituted a grievance arbitration. As the
FOP (1) filed grievances under the Agreement and for arbitration before the interest
arbitration Panel; (2) in its principal brief does not in any meaningful fashion challenge
the lower tribunal’s determination that the proceedings before us are in the context of an
interest arbitration proceeding; (3) did not raise this question as a discrete issue before
our Court; and (4) may not raise a new issue, or adequately develop an existing issue,
in a reply brief, see Commonwealth v. Fahy, 737 A.2d 214, 218 n.8 (Pa. 1999) (reply
brief may not be a vehicle to raise new issues or to argue issues raised but
inadequately developed in appellant’s original brief), we address this matter as one
sounding in interest arbitration.
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Interest arbitration constitutes a significant component of a more global balancing
or compromise with respect to the rights of employees and employers in public sector
labor relations. The foundational principles which underlie this balance were considered
by our Court in two cases decided the same day: Borough of Ellwood City v. PLRB,
998 A.2d 589 (Pa. 2010), and City of Philadelphia v. IAFF, 999 A.2d 555 (Pa. 2010).
We explained in those cases that, in 1968, in the face of illegal strikes and labor unrest
in the public sector, the General Assembly enacted Act 111, which granted to police and
fire personnel the right of collective bargaining. We noted that “[t]he law relating to
police and fire personnel, whose services are so vital to an ordered society . . . was
created to strike a more perfect balance between the need of the Commonwealth to
insure public safety and the rights of the worker.” Ellwood City, 998 A.2d at 595
(quoting Pennsylvania State Police v. Pennsylvania State Troopers’ Ass’n (Betancourt),
656 A.2d 83, 89 (Pa. 1995)).
Thus, central to Act 111 and its passage to quell labor unrest was the employees’
ability to “have the right to bargain collectively with their public employers concerning
the terms and conditions of their employment, including compensation, hours, working
conditions, retirement, pensions and other benefits, and . . . the right to an adjustment
or settlement of their grievances or disputes in accordance with the terms of [Act 111].”
43 P.S. § 217.1; Ellwood City, 998 A.2d at 595-96. As our Court explained in Twp. of
Moon, “the General Assembly was committed to the view that the right to collective
bargaining over terms and conditions of employment was critical to the restoration and
maintenance of harmony in the public employment sector.” 498 A.2d at 1309.
Ultimately, we stressed in Ellwood City that “the importance of collective bargaining over
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the terms and conditions of their employment cannot be understated.” Ellwood City,
998 A.2d at 596. The right to strike to pressure a public employer to reach an
agreement, however, was withheld, due to the critical services provided by safety
personnel, and the egregious consequences that could result if such employees were
on strike. Thus, police and fire personnel gave up any ability to strike for the guarantee
of collective bargaining and the possibility of binding interest arbitration if negotiations
failed to culminate in a contract. Simply stated, binding interest arbitration is the quid
pro quo for police and fire personnel relinquishing any right to strike.
Consistent with this quid pro quo deal struck by the legislature is the idea of
circumscribed judicial review of interest arbitration awards. We have long held that
judicial review of an Act 111 interest arbitration award is proper only within the limited
realm of narrow certiorari. Betancourt, 656 A.2d at 89-90. Indeed, as oft-repeated in
our decisional law, the General Assembly initially provided for no judicial review of
arbitration awards, but subsequent caselaw by our Court recognized a limited ability for
court review, declaring that the narrow certiorari scope of review was appropriate for
judicial review of interest arbitration awards. Washington Arbitration Case, 259 A.2d
437, 441 (Pa. 1969). Under this narrow certiorari scope of review, a court may review
arbitration awards only to consider questions concerning: (1) the jurisdiction of the
arbitrators; (2) the regularity of the proceedings; (3) an excess of the arbitrator’s power;
and (4) deprivation of constitutional rights.
Here, the parties dispute whether the manner of notification issue was properly
before the Panel. Thus, the threshold question for us is whether this issue implicates
any of the four permissible areas of inquiry allowed under narrow certiorari. We recently
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answered that question in Dept. of Corrections v. Pa. State Corrections Officers Assoc.,
12 A.3d 346, 356 n.15 (Pa. 2011), wherein we held that “[a]n award pertaining to an
issue that was not placed in dispute before the board also reflects an excess of the
arbitrators’ powers,” citing Appeal of Upper Providence Police, 526 A.2d 315, 322 n.5
(Pa. 1987). As the question of waiver implicates the narrow certiorari prong regarding
the excess of an arbitrator’s powers, we may consider the substance of the underlying
issue of whether the arbitration panel exceeded its authority when it considered the
proper manner of notification of police officers regarding court appearances under
narrow certiorari review.6
Turning to the arguments of the parties, Appellant, the FOP, offers that Act 111
arbitrators are constrained in their authority and limited to those issues which are placed
before them by the parties. This approach, as asserted by the FOP, is based in notions
of adequate notice and an opportunity to be heard, as well as based in Act 111 which
requires the submission of the issues in dispute at least 110 days prior to the start of the
6
The FOP seemingly contends, in part, that their challenge is to the jurisdiction of the
interest arbitration panel. Generally, the question of whether a tribunal has jurisdiction
to decide an issue focuses upon whether that tribunal is competent to determine
controversies of the general class to which the case presented for its consideration
belongs. Heath v. WCAB (Pa. Bd. Prob. & Parole), 860 A.2d 25, 29 (Pa. 2004).
Consistent therewith, our Court has explained that the question of an Act 111
arbitrator’s jurisdiction traditionally poses the single question: “did the decision-maker in
the adjudicatory process act in that general class of controversies that the law
empowers it to consider.” City of Philadelphia v. Int’l Ass’n of Firefighters, Local 22, 999
A.2d 555, 564 (Pa. 2010). We find that the Commonwealth Court below properly
concluded that “jurisdiction is not at issue since there is no question that the Panel was
initially convened and subsequently reconvened to resolve disputes arising out of the
[Agreement’s] court notice provision.” Michael G. Lutz Lodge No. 5, 84 A.3d at 351. As
issues involving court notices are within the general class of controversies the Board
was authorized to hear, we agree that jurisdiction is not at issue in this appeal.
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fiscal year. See 43 P.S. § 217.2. Applying these guidelines, the FOP maintains that at
no point during the negotiations or the 2009 interest arbitration proceedings did the City
or the FOP seek modification of the existing manner of officer notification. The FOP
asserts that, in 2011, the Panel did not limit itself to the narrow issue before it —
whether, in implementing Section 14 of the 2009 Award, the City had violated the
Agreement by failing to pay officers who had received less than 48 hours’ notice for
court at 2.5 times their pay. Rather, the Commonwealth Court ignored these limiting
principles and impermissibly expanded the concept of notification to include manner of
notice which, according to the FOP, rewrites a section of the Agreement which was
never placed at issue by the City or the FOP. The FOP claims that compensation for
court appearances is distinct from the manner of notification, and, according to the FOP,
the Panel had the authority only to require that the 2009 Award be implemented. The
FOP offers that, under the Commonwealth Court’s approach, any issue which remotely
touches an issue already decided may be revisited, and completely re-written, and, in
the instant case, expanded, as the notice provision applies now to all court
appearances. The FOP stresses that this requires officers, at their own expense, to
purchase smart phones and answering machines, and face discipline if they do not
comply. Finally, the FOP warns that such an open-ended approach to arbitration will
disrupt the finality sought by the legislature when it enacted Act 111 and its dispute
resolution process.
In response, the City, first raises a somewhat technical aspect of the
proceedings, which was adopted by the Commonwealth Court majority, Michael G. Lutz
Lodge No. 5, 84 A.3d at 351 n.11, looking back to the 2009 Award proceedings and
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offering that the FOP’s proposal requested that no discipline be imposed on an
employee for less than 48 hours written notice. The Panel did not include this limitation
in its Award. This, according to the City, placed the issue of court notices, and the
manner of notification (in writing) of court notices before the Panel in 2009. The City
also claims that the manner of notification had never been part of a collective bargaining
agreement, but was memorialized in a “Department Directive,” which was a unilaterally-
adopted management policy, and, thus, was evidence that the Panel did not disrupt an
existing agreement. Related thereto, the City points out that the FOP invoked the
Panel’s jurisdiction to resolve differences between the parties on the implementation of
the 2009 Award, and, after the FOP’s request for a hearing, the FOP did not object to
the City’s subsequent submission regarding electronic notice in the hearings which
culminated in the 2011 Award. Thus, the City argues the Panel did not exceed its
authority as the issue of the manner of notification was at all times properly before the
Panel.
Similarly, the City maintains that the 2011 Award dealt with implementation of the
2009 Award, which subsumed the issue of manner of notification, as the 2009 Award,
which granted premium overtime and allowed officers to live outside of the City,
substantially increased the financial and operational burden on the Department to
deliver court notices to officers. Moreover, the City offers that, once an issue is properly
in dispute, the arbitration panel may resolve that issue in a fair manner within the total
context of the award. Therefore, the City argues that, once the FOP sought to
reconvene the Panel regarding notice implementation issues, the City, to save
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resources and avoid unnecessary litigation, permissibly chose to place its proposed
changes to the manner of notification before the Panel as well.
With respect to the substance of the 2011 Award, the City offers that providing
for other-than-personal notice is eminently reasonable in this electronic age, did not
require an illegal act, and, thus, satisfied the extremely limited scope of review of an Act
111 arbitration award. Further, the City maintains that, in its 2011 Award, the Panel did
not create new terms out of whole cloth, but merely addressed implementation issues
which were before it, and that the 2011 Award was not inconsistent with any contract
term between the parties. Thus, the City argues the Panel did not “re-write” the
Agreement, as alleged by the FOP. Moreover, the City contends that, because police
officers were previously required to provide a telephone number for emergency
notification, the electronic delivery of notices is not a significant change in the parties’
existing non-contractual practice. Further, the City emphasizes that the FOP offered no
evidence at the hearing as to any burden on the officers due to the proposed electronic
notification. Thus, not only was the 2011 Award consistent with the prior Act 111
procedures, according to the City, the actual award was consistent with, and a mere
logical expansion of, existing practice. Finally, contrary to the FOP’s claims, the City
argues that the 2011 Award complied with the FOP’s due process rights, as the FOP
invoked the Panel’s jurisdiction, had notice of the issues in advance of the hearing, was
represented by counsel, and had the opportunity to present evidence.
Although our Court has not directly spoken to the breadth of an interest
arbitration panel’s ability to consider an issue before it, both statutory provisions and
caselaw inform our decision today. Specifically, Act 111 requires that collective
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bargaining “shall begin at least six months before the start of the fiscal year of the
political subdivision . . . and any requests for arbitration, as herein provided, shall be
made at least one hundred ten days before the start of the fiscal year.” 43 P.S. § 217.2.
Bargaining to impasse, of course, is the prerequisite to the initiation of interest
arbitration. 43 P.S. § 217.4; Philadelphia Fire Officers Ass’n v. PLRB, 369 A.2d 259 (Pa.
1977). Specifically, when impasse is reached, “either party to the dispute, after written
notice to the other party containing specifications of the issue or issues in dispute, may
request the appointment of a board of arbitration.” 43 P.S. § 217.4. While this Court
has not spoken directly to this issue in this context, the Commonwealth Court has for
decades indicated that Act 111 arbitrators may decide only those matters submitted to
them, and an award outside of the issues presented is unenforceable. See, e.g., City
of Wilkes Barre v. City of Wilkes Barre Benevolent Ass’n, 814 A.2d 285, 291 (Pa.
Cmwlth. 2002); In re Arbitration Award Between Yoder Police and Lower Yoder Twp.,
654 A.2d 651, 653 (Pa. Cmwlth. 1995). As noted by the Commonwealth Court, “where
a demand is a major one or cannot be fairly subsumed within an issue, it must be
specifically raised.” City of Pittsburgh v. FOP, Fort Pitt Lodge No. 1, 850 A.2d 846, 854
(Pa. Cmwlth. 2004). Thus, the statutory framework and the Commonwealth Court
caselaw speaking to the interest arbitration process require impasse; that discrete
issues be submitted to interest arbitration for contract formulation by the interest
arbitration panel; and that issues not so preserved, unless reasonably subsumed within
properly preserved issues therein, are beyond the scope of the interest arbitration
process and will not be enforceable.
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Consistent with Act 111 and prior Commonwealth Court caselaw, and as a
crucial part of the quid pro quo balance between the rights of public employers and
public employees, we hold an interest arbitration award under Act 111 may embrace
only those issues which the submitting party has specifically raised in the notice of
arbitration, or which are reasonably considered as subsumed within those issues.
While granted broad powers, and, as noted above, free from only the most limited of
judicial review, an arbitration panel “does not sit to dispense [his or her] own brand of . .
. justice.” Cf. United Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593,
597 (1960). As artfully explained by the Commonwealth Court, “[A]n arbitrator does not
have a roving commission to do what he or she believes is necessary to put everything
right, to construct a ‘better agreement.’ Arbitrators are required to address the issues
submitted within the context of the positions of the parties and effectuate the relief
requested, not to reform the collective bargaining agreements.” Marple Twp. v.
Delaware County FOP Lodge 27, 660 A.2d 211, 215 (Pa. Cmwlth. 1995).
Further, and related thereto, while an interest arbitration panel may retain
implementation jurisdiction, as was the case here, this power to insure an award is
achieved should not serve as a means to reopen the underlying agreement. Indeed, if
significant terms and conditions of employment not bargained over could subsequently
be made part of a collective bargaining agreement in this fashion, “a host of arbitration
awards may be re-opened to litigate matters not previously considered under the guise
of implementation.” Michael G. Lutz Lodge No. 5, 84 A.3d at 363 (McCullough, J.,
Concurring and Dissenting). This, in turn, would not only vitiate the initial phase of the
collective bargaining process — the actual give-and-take of negotiations between the
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parties — but, more importantly, would severely undermine the core policies
undergirding interest arbitration — a swift, inexpensive, and final achievement of a
collective bargaining agreement between the parties.
Applying these legal principles to the matter sub judice, the parties herein never
bargained to impasse over the specific issue of the manner of notification, even though
the manner of notice was in place for decades. Moreover, the parties did not raise the
issue before the 2009 arbitration panel, and the 2009 Award itself said nothing about
the manner of officer notification. Indeed, we reject the City’s, and the Commonwealth
Court’s, somewhat technical reasoning that, because the FOP requested “48 hours
written notice,” that the method of delivery was at issue in 2009, as written notice was
part of the existing practice regarding delivery at that time. Rather, the discrete issue of
the manner of notification came to the fore only when raised by the City at the time the
FOP sought to enforce implementation of the 2009 Award. Related thereto, the
jurisdictional basis for the Panel’s consideration of questions of implementation, by its
plain language, is limited to the implementation of the terms of the 2009 Award. See
2009 Award, § 22 (“The Panel shall retain jurisdiction over this Award in order to resolve
any disputes regarding implementation of its terms.” (emphasis added)). Yet, the 2009
Award did not speak by its terms about the manner of notification of police officers.
While the manner of notification was not expressly raised by the parties, as noted
above, interest arbitrators may speak to an issue if it is reasonably subsumed within the
issues properly before the arbitration panel. Under the circumstances before us,
however, we simply cannot conclude that the issue of the manner of notification was
reasonably subsumed in, or “part-and-parcel” of, the overall notice compensation
[J-8-2015] - 18
question. The 2009 Award did not address in any fashion the manner in which notices
were to be distributed. The 2011 Award, however, made drastic changes to the existing
and long-standing manner of notification procedure. Yet, the timing of notification and
premium overtime compensation for an officer’s court appearance are simply not
directly related to, or even dependent upon, the manner of notification. The manner of
notification is not implicit in, nor inherently comingled with, the distinct issue of notice
compensation. Indeed, the requirements regarding the timing of notification and
increased compensation for court appearances may be achieved without a change to
the manner of notification. Thus, we hold that the Panel exceeded its authority in
addressing the manner of notification.
Finally, we offer no opinion as to the merits of the in-person notice system in
place in Philadelphia, and recognize that electronic notification may be a more modern,
efficient, and fiscally advantageous manner to provide court notices to police officers.
Yet, issues over alteration of a decade’s long policy by the City should be resolved
through the give and take of collective bargaining within the confines of Act 111, and
arbitrators should not stray from the issues properly placed before them, even if well
intended. Rather, it is for the parties to negotiate in the first instance over significant
and long-standing terms of employment, and, the parties are free to bargain over
electronic notification in future negotiations.
The order of the Commonwealth Court is hereby reversed. Jurisdiction
relinquished.
Mr. Chief Justice Saylor and Mr. Justice Stevens join the opinion.
Mr. Justice Eakin files a dissenting opinion.
[J-8-2015] - 19
Mr. Justice Baer files a dissenting opinion.
[J-8-2015] - 20