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FRATERNAL ORDER POLICE LODGE NO. 5 AND ROBERT S. HURST v. CITY PHILADELPHIA AND KEVIN M. TUCKER (07/22/88)

decided: July 22, 1988.

FRATERNAL ORDER OF POLICE LODGE NO. 5 AND ROBERT S. HURST, APPELLANTS
v.
CITY OF PHILADELPHIA AND KEVIN M. TUCKER, APPELLEES



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia and Kevin M. Tucker, No. 807 July Term 1986.

COUNSEL

Anthony J. Molloy, Jr., with him, Robert B. Mozenter, Mozenter, Molloy & Durst, for appellants.

Ralph J. Teti, Chief Deputy City Solicitor, for appellees.

Judges Craig and MacPhail, and Senior Judge Narick, sitting as a panel of three. President Judge Crumlish, Jr., and Judges Doyle, Barry, Colins, Palladino, McGinley and Smith. Opinion by Judge Doyle. Concurring Opinion by Judge Palladino. Dissenting Opinion by Judge McGinley. Judge Barry joins in dissent.

Author: Doyle

[ 118 Pa. Commw. Page 133]

The Fraternal Order of Police, Lodge No. 5 (FOP) seeks review of an order of the Court of Common Pleas of Philadelphia County which confirmed an Act 111*fn1 arbitration award allowing the Philadelphia Police Department (Department) to administer a polygraph test to all applicants who wished to transfer voluntarily into the Department's Special Investigations Unit (SIU). We affirm.

On January 31, 1986, Philadelphia Police Commissioner Kevin M. Tucker caused a directive to be sent by teletype advising all Department personnel of the formation of the SIU. The SIU was founded to help fight corruption within the Department, and to pursue major

[ 118 Pa. Commw. Page 134]

    investigations involving organized crime, drugs, prostitution, gambling and vice. Paragraph three of the teletype read "[a]mong other considerations for acceptance to the unit shall be the requirement to submit to a polygraph examination and personal interview."*fn2 Another requirement of the process was the filling out of a questionnaire which was to be verified by polygraph. Shortly after the teletype, the FOP filed a grievance claiming that the directive's requirement that all SIU applicants submit to a polygraph test constituted a unilateral change in the FOP members' conditions of employment, in violation of the collective bargaining agreement.*fn3

On February 6, 1986, the FOP also filed a Complaint in Equity seeking a status quo injunction restraining the City of Philadelphia (City) from enforcing the polygraph requirement pending arbitration of the FOP's grievance. At the initial hearing on the equity matter, the trial judge advised the parties that a Commonwealth Court decision on polygraph testing was due soon, Marion v. Green, 95 Pa. Commonwealth Ct. 210, 505 A.2d 360 (1986), petition for allowance of appeal denied, 514 Pa. 633, 522 A.2d 560 (1987). Consequently, the City agreed to the judge's request that the polygraph testing be delayed pending this Court's decision in Marion.

Two days after our decision in Marion, the City of Philadelphia, at the behest of the Department, proposed the following regulation:

[ 118 Pa. Commw. Page 135]

Assignment and transfer for uninformed positions within the Police Department in units specifically assigned to the investigation or enforcement of narcotics, vice (gambling, prostitution, liquor), organized crime, intelligence, and internal police investigations may be conditioned upon the satisfactory completion of a polygraph examination at the discretion of the Police Commissioner.

The Department also informed the trial judge at the second hearing in the quity action that it would postpone implementation of the polygraph examinations pending the outcome of arbitration.

On April 17, 1986, a hearing was held before an arbitrator at which both sides presented live testimony, as well as the testimony adduced at previous proceedings in both state and federal court.*fn4 Ultimately, he ruled that there was nothing in the collective bargaining agreement touching upon the establishment of varying criteria when assignments or transfers to special units are being affected. The arbitrator also found that the Department had no duty to bargain regarding voluntary transfers and/or assignments and that the Department and the FOP had not shown that it and the City had, by prior practice, shown any criteria by which voluntary transfers and/or assignments would be made within the Department, or that the polygraph examination was an excluded criterion. Last, and most important, the arbitrator found that the Department's imposition of the

[ 118 Pa. Commw. Page 136]

    polygraph requirement under the circumstances did not violate our decision in Marion.*fn5

The FOP then filed a petition for relief under Section 7314 of the Uniform Arbitration Act, 42 Pa. C.S.

[ 118 Pa. Commw. Page 137]

ยง 7314, in the court of common pleas seeking to vacate the award. That court upheld the arbitrator's decision ...


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