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CITY PITTSBURGH v. FRATERNAL ORDER POLICE (01/13/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 13, 1986.

CITY OF PITTSBURGH, APPELLANT
v.
FRATERNAL ORDER OF POLICE, FORT PITT LODGE NO. 1, APPELLEE. FRATERNAL ORDER OF POLICE, FORT PITT LODGE NO. 1, APPELLANT V. CITY OF PITTSBURGH, APPELLEE

Appeals from the Order of the Court of Common Pleas of Allegheny County in case of Fraternal Order of Police, Fort Pitt Lodge No. 1 v. City of Pittsburgh, No. SA 844 of 1982.

COUNSEL

Richard J. Joyce, Assistant City Solicitor, with him, D. R. Pellegrini, City Solicitor, for appellant/appellee, City of Pittsburgh.

Bryan Campbell, with him, Anthony C. Busillo, for appellee/appellant, Fraternal Order of Police, Fort Pitt Lodge No. 1.

President Judge Crumlish, Jr., Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 94 Pa. Commw. Page 170]

The City of Pittsburgh (City) and the Fraternal Order of Police, Fort Pitt Lodge No. 1 (FOP) entered into binding arbitration pursuant to Act 111*fn1 in 1983. The City appealed certain provisions of the arbitrator's award to the Allegheny County Common Pleas Court, which upheld paragraph nos. 2, 12, and 14 of the award but struck paragraph nos. 10 and 13. The parties cross-appeal to this Court. We affirm the trial

[ 94 Pa. Commw. Page 171]

    court's decision in paragraph nos. 10, 12, 13 and 14, but reverse in paragraph no. 2.

Our scope of review of an arbitration award under Act 111 is restricted to questions of law and the regularity of the proceedings. City of Erie, Pa. Appeal, 74 Pa. Commonwealth Ct. 245, 459 A.2d 1320 (1983); appeal dismissed, 505 Pa. 505, 481 A.2d 610 (1984).

The City contends that the trial court erred in holding that paragraph no. 2 did not create an illegal agency shop. Paragraph no. 2 provides:

Agency Shop and Dues Check-Off:

(a) No member of the bargaining unit shall be required to become or remain a member of the Union, but any member of the bargaining unit who elects not to join or remain a member of the Union shall be required to pay the Union an amount equal to 75% of the monthly and/or yearly dues which are payable to the Union by members of the Union. (Emphasis added.)

The City argues that a literal reading of this provision makes the payment of dues by non-union members a condition of employment and would require dismissal of non-complying employees, which is contrary to Section 7 of what is commonly known as the Policemen's Civil Service Statute.*fn2 We agree.

An agency shop provision is within the scope of an Act 111 arbitration award. Commonwealth v. State Conference of State Police Lodges, 88 Pa. Commonwealth Ct. 356, 489 A.2d 317 (1985). The essence of an agency shop is a requirement that all employees, union and non-union alike, pay a service fee to the union as a condition of employment in order to help defer bargaining and contract administration expenses. Burse v. Pennsylvania Labor Relations Board, 56 Pa. Commonwealth Ct. 555, 425 A.2d 1182 (1981).

[ 94 Pa. Commw. Page 172]

However, if an agency shop clause requires the government employer to perform any duty which is specifically prohibited by some controlling statutory authority, it is illegal. State Conference of State Police Lodges.*fn3

We read paragraph no. 2 as explicitly requiring all non-union members to pay a union fee as a condition of employment. Any provision in an award of an arbitrator pursuant to Act 111 must of necessity involve the "terms and conditions" of employment.*fn4 As a condition of employment, the provision "contemplates the discharge from county employment of any [policeman] who is not in good-dues-standing with a union to which he may or may not belong." Allegheny County Firefighters, 7 Pa. Commonwealth Ct. at 86, 299 A.2d at 62. In this posture, the provision conflicts with the Policemen's Civil Service Statute by requiring discharge for reasons which may not constitute "just cause" and, in so doing, usurps the authority of a trial court or the mayor to determine the penalty for failure to comply. State Conference of State Police Lodges. We strike paragraph no. 2 from the award.

The City next contends that paragraph no. 12 of the award is contrary to Section 701 of the Pittsburgh Home Rule Charter*fn5 because it makes seniority an element

[ 94 Pa. Commw. Page 173]

    of merit examinations. Paragraph no. 12 provides:

Promotional Examinations : Employees who take promotional examinations shall have 1/2 point added to their actual examination scores for each complete year served by them in the Department of Police to a maximum of five (5) additional points at 10 or more complete years of service. Promotional candidates must have completed a minimum of six (6) years of service at the time of such examination in order to receive a length of service credit.

Section 701 of the Charter clearly permits merit promotions to be a proper subject for collective bargaining. Moreover, Section 6 of the Policemen's Civil Service Statute*fn6 and the Charter permit seniority to be a consideration in granting promotions. See McGrath v. Staisey, 433 Pa. 8, 11, 249 A.2d 280, 281 (1968).*fn7 The numerical crediting of seniority does not violate the Charter or the Civil Service Statute. See Sitarik v. Civil Service Commission of Pittsburgh,

[ 94 Pa. Commw. Page 17476]

Pa. Commonwealth Ct. 29, 462 A.2d 966 (1983). We affirm the validity of paragraph no. 12.

The City further contends that the trial court erred in upholding paragraph no. 14 of the award, which provides:

National Fraternal Order of Police President : Any member of the bargaining unit who shall be elected to the office of National President of the Fraternal Order of Police shall be granted upon request a maximum of ten (10) days paid leave in order to attend to the duties of his office.

It argues that the FOP did not specifically request this award, that it does not rationally relate to an officer's duty and, in effect, requires the City to lend financial support to the union, which is a violation of Section 6 of the Pennsylvania Labor Relations Act (PLRA).*fn8

There is no statutory authority or Home Rule Charter provision prohibiting the City from granting leaves of absence to the national FOP president for attendance at professional meetings. The provision is not only contained within the scope of the demands filed by the FOP*fn9 but it bears a rational relationship

[ 94 Pa. Commw. Page 175]

    to a police officer's duty because it exposes a department to innovative techniques of law enforcement and sound administrative practices which are the normal and customary topics covered in such educational conferences. Federation of Police, E. B. Jermyn Lodge No. 2 v. City of Scranton, 26 Pa. Commonwealth Ct. 513, 364 A.2d 753 (1976). It is clear to us that the City is not subsidizing the union but merely is providing paid leave time for the commendable purpose of improving the department's efficiency. We affirm the validity of paragraph no. 14.

The FOP contends that the trial court erred in striking paragraph no. 10 because the subject of a legal defense fund is within the scope of an arbitration award and because the City should have the right

[ 94 Pa. Commw. Page 176]

    to determine which civil judgments against policemen are to be paid from city funds.

Paragraph no. 10 provides:

Legal Representation : The City shall pay the amount of any final civil judgment or verdict rendered against an employee following a determination by the City that that employee acted reasonably and in the good faith belief that his actions were lawful and proper under the circumstances.

We agree with the trial court that there is no specific statutory authority which permits cities of the second class to engage in collective bargaining on this issue. Moreover, Section 8548(a) and (b) of the Political Subdivision Tort Claims Act*fn10 expressly requires a

[ 94 Pa. Commw. Page 177]

    judicial determination of whether an employee acts in good faith and within the scope of his employment. The City may not elect those officers whom it chooses to indemnify. We affirm the trial court's elimination of this provision.

Finally, the FOP contends that the trial court erred in striking paragraph no. 13 of the award since the provision merely provides a procedure for periodic review of assignments and does not usurp the superintendent's discretionary authority to promote and demote detectives. Paragraph no. 13 reads:

(a) An employee who is transferred to the Detective Bureau shall be recommended to a police merit board for assignment to Detective Class III after serving a maximum of ninety days in the Detective Bureau from the date of transfer.

(b) An employee who has served as a Detective Class III for a maximum period of twelve months shall be recommended to a police merit board for assignment to Detective Class II.

(c) An employee who has served as a Detective Class II for a maximum of twelve months shall be recommended to a police merit board for assignment to Detective Class I.

(d) Whenever for any reason with the discretion of the Superintendent of Police, it is deemed necessary or desirable to reassign any employee who has been classified as a Detective Class III, II or I to his former civil service position, the employee shall have the right to be advised in advance of such intended action as well as the reason or reasons therefor. Such employee shall have the right to respond to such writing either personally or through his union representative.

[ 94 Pa. Commw. Page 178]

We agree with the trial court that this provision, requiring a mandatory promotion review, exceeds the City's statutory powers. Section 6.1 of the Policemen's Civil Service Statute*fn11 places no limitation on

[ 94 Pa. Commw. Page 179]

    the superintendent's authority to reassign detectives or to advise them of their reassignments, and the mandatory recommendation process circumvents the legislatively enacted plan of superior officer recommendations.

We reverse that portion of the trial court's order which upholds paragraph no. 2; we affirm the remainder of the order as to paragraphs nos. 10, 12, 13 and 14.

Order

The order of the Allegheny County Common Pleas Court, No. SA 844 of 1982 dated August 25, 1983, is affirmed as to paragraphs nos. 10, 12, 13 and 14 of the arbitration award and reversed as to that portion which upholds paragraph no. 2 of the award.

Disposition

Affirmed in part and reversed in part.


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