Sunday, March 15, 2015

Court: Arbitrator improperly decided what the contract should say, not what it does say. Award vacated.

A police officer represented by Fort Pitt Lodge 1 of the FOP filed a grievance concerning his compensation for working certain special events. The cba between the Union and the City of Pittsburgh contained a provision concerning "Secondary Employment." This secondary employment consisted of off-duty employees performing safety, peacekeeping or traffic control at large scale events such as concerts or sporting events. The cba provided that no employee would be compelled to perform such employment but that the compensation for employees engaged in such employment would be "the rate of pay ... as agreed upon by and between the City and the Secondary Employer." The City's agreed upon rate of pay was the overtime rate for a fourth year police officer ($42.12 per hour) regardless of the officer's rank or seniority.

Grievant was assigned, as part of his regular on duty shift to direct traffic at a sporting event. Also working at that event for a secondary employer was an off duty officer. Grievant claimed he should have received the higher secondary employment rate of pay. Grievant and another officer filed similar grievances for other instances where both an on duty officer and an off duty officer were working the same event. The grievances did not challenge the right of the Department to assign an officer to the event, but sought to have all employees, both off and on duty, paid the secondary employment rate.

Arbitrator Phillip Parkinson sustained the grievance. He concluded:

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

The City sought to vacate the award, claiming that the Arbitrator exceeded his authority, that his award unduly infringed on a managerial prerogative of the City and that it mandated the City to carry out an "illegal" act. 

The Common Pleas Court (in a decision that can be found here) upheld the City's appeal and vacated the award. The Court concluded that the arbitrator had in fact exceeded his authority, observing "...the material facts are utterly undisputed and the arbitrator did not interpret the collective bargaining agreement but, rather, explicitly disregarded its clear terms." He also found that the award improperly infringed on the City's managerial prerogative to negotiate the terms and conditions of compensation of on duty officers. He noted:

The arbitrator's award in no respect suggests that the collective bargaining agreement is unclear with regard to the amount of compensation owed to on-duty officers who are reassigned to special events at which off-duty secondarily employed officers will be performing similar or identical work, but rather the arbitrator simply observes that such an arrangement "appear[s] to be inequitable." This plainly constitutes a finding, not that the arbitrator believes that the collective bargaining agreement actually provides for a higher compensation rate for on-duty officers reassigned to special events, but rather that the collective bargaining agreement should provide a higher rate of compensation for on-duty officers reassigned to special events. 

On the Union's appeal, the Commonwealth Court has now affirmed. Applying reasoning substantially similar to that of the lower court, the Commonwealth Court determined:

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.
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.

 The opinion of the Commonwealth Court can be found here.

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