Appeal from the Order of the Court of Common Pleas of Mercer County in case of Rose of Sharon Lodge No. 3, Fraternal Order of Police, by Gerald E. Saul, President, and Bernard A. Sigler, Secretary, Trustees ad litem, and in their own right, Plaintiffs, v. City of Sharon; Basil C. Scott, Mayor; Thomas S. Bailey, John H. Evans, Everett B. Ogden, Maurice P. Keaveny, Harold E. Bell, Members of the Council of the City of Sharon, Defendants, No. 6 June Term, 1971.
John J. Regule, City Solicitor, for appellants.
Francis J. Fornell, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Dissenting Opinion by Judge Kramer. Dissenting Opinion by Judge Mencer.
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On March 24, 1971, the City of Sharon, a third class city, enacted Ordinance 4-71 which required all present employees of the City Police Department, Fire Department, and Department of Public Works to take and pass a physical examination administered by the city's physician as a "condition for continued employment." The ordinance further provided that refusal to take such examination shall be reason for a ten-day suspension and continued refusal shall be reason for discharge.*fn1
Prior to the enactment of Ordinance 4-71, an Arbitration Agreement had been entered into by the parties to this suit, i.e., the City of Sharon and the City of Sharon Fraternal Order of Police. An arbitration award was made, pursuant to the Act of June 24, 1968, P.L. 237, No. 111, 43 P.S. § 217.1 et seq. (Act 111), concerning a clothing allowance, hospitalization benefits, longevity allowance, and wages. The award also stated that "[a]ll other conditions of work and benefits not in conflict with this award shall continue as presently in force."*fn2 Appellees, plaintiffs below, as the bargaining unit for the policemen of the city, filed a complaint
[ 11 Pa. Commw. Page 280]
in equity in Common Pleas Court to enjoin the city and its officials, appellants here, from enforcing Ordinance 4-71 as it applies to policemen of the city. The lower court agreed with the appellees' contention that physical examinations are a matter for collective bargaining under Act 111 and enjoined the city from enforcing Ordinance 4-71. This appeal followed.
The issue involved here was succinctly phrased in the appellees' brief: "May a Third Class City enact an ordinance requiring its policemen to take and pass a complete exam given by a city physician at least once a year as a condition for continued employment in the City in light of [Act 111]?" The lower court found the city had no such right. We disagree and must reverse.
In determining that a physical examination was a term of employment and not a prerogative of management, the lower court relied upon several federal decisions, all of which deal with the private sector of labor relations. As was noted in Pennsylvania Labor Relations Board v. State College Area School District, 9 Pa. Commonwealth Ct. 229, 236, 306 A.2d 404, 409 (1973), federal decisions in the private sector are of little precedent or assistance in construing State statutes dealing with labor relations in the public sector. See Washington Arbitration Case, 436 Pa. 168, 177, 259 A.2d 437, 442 (1969).
Appellant, relying upon a provision of The Third Class City Code, Act of June 23, 1931, P.L. 932, Article XX, as amended, 53 P.S. § 37001, that "[c]ouncil shall prescribe all necessary rules and regulations for the organization and government of the police force," argues that it has the express managerial right to enact an ordinance requiring presently employed policemen to take an ...