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

189 A.3d 491

CITY OF PITTSBURGH

v.FRATERNAL ORDER OF POLICE FORT PITT LODGE NO. 1, Appellant

No. 954 C.D. 2017

Commonwealth Court of Pennsylvania.

Argued: May 7, 2018

Filed: June 21, 2018

Christopher J. Cimballa, Pittsburgh, for appellant.

Kelly Mistick, Pittsburgh, for appellee.

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY SENIOR JUDGE COLINS

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. (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:

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. , 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.)

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 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) , 604 Pa. 267, 985 A.2d 1259, 1266 (2009) ; City of Philadelphia v. Fraternal Order of Police, Lodge No. 5 (Staff Inspector Appeal) , 564 Pa. 290, 768 A.2d 291, 294 (2001) ; Pennsylvania State Police v. Pennsylvania State Troopers Association (Smith & Johnson) , 559 Pa. 586, 741 A.2d 1248, 1251 (1999) ; Pennsylvania State Police v. Pennsylvania State Troopers' Association (Betancourt) , 540 Pa. 66, 656 A.2d 83, 89–90 (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 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...