Appealed From No. PF-C-95-48-W. State Agency, Pennsylvania Labor Relations Board.
Before: Honorable Doris A. Smith, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Senior Judge Narick.
The opinion of the court was delivered by: Narick
The issue before this Court is whether a city ordinance passed in 1981, but not implemented until 1995, can be challenged in 1995, as an unfair labor practice.
The Fraternal Order of Police, Haas Memorial Lodge No. 7 (FOP) appeals from the order of the Pennsylvania Labor Relations Board (PLRB) that vacated the hearing examiner's determination and directed the FOP's charge of unfair labor practice against the City of Erie (City) be dismissed. We affirm.
In 1950, the City enacted an ordinance establishing a police pension plan (plan). In 1971, the City amended the plan to provide an automatic cost of living allowance (COLA), as determined by the United States Department of Labor.
On February 11, 1981, the City enacted Ordinance 3A-1981, which further amended the plan to provide that effective January 1, 1981, any individual subsequently hired by the police department would not receive the automatic COLA. The FOP, as exclusive bargaining representative of the City's police officers, were present at the public meeting of City Council when ordinance 3A-1981 was passed. The FOP advised its members of the action taken by the City but did not raise any objections or challenge the City's unilateral action.
From 1981 to 1994, the City erroneously failed to adjust its contribution to the police pension fund to reflect Ordinance 3A-1981. In 1994, the City became aware of its error as did the FOP. Between April and June 1994, the Pension Board distributed an updated set of bylaws to all current employees and retirees, which stated that the police officers hired after January 1, 1981 "shall not receive the automatic cost of living increase to pension benefits." (FOP Exhibit 6 at 13-14.)
After the FOP and the City reached impasse in its negotiations for a 1995 collective bargaining agreement, the parties engaged in interest arbitration. At hearing on January 30, 1995, before the interest arbitration panel, the City presented testimony that its 1995 budget did not include funding for a pension COLA for police officers hired after January 1, 1981.
On February 22, 1995, the FOP filed a charge of unfair labor practices with the PLRB, alleging that the City violated Section 6(1)(e) of the Pennsylvania Labor Relations Act (PLRA), Act of June 1, 1937, P.L. 1168, as amended, 43 P.S. § 211.6(1)(e) *fn1 by unilaterally changing the plan to deny an automatic COLA to police officers hired after January 1, 1981.
The City filed a motion to quash the unfair labor practice charge as untimely filed under the six-week limitation period set forth in Section 9(e) of PLRA, 43 P.S. § 211.9(e). The hearing examiner denied the City's motion and held a hearing where the parties entered into several stipulations and the FOP presented two witnesses and several exhibits.
The hearing examiner entered a proposed decision and order, which concluded that the FOP's unfair labor practice charge was timely filed. The City filed exceptions and the PLRB entered a final order, which concluded that the FOP's unfair labor practice charge was ...