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City of Wilkes-Barre v. Wilkes-Barre Fire Fighters Association Local 104

March 22, 2010

THE CITY OF WILKES-BARRE, APPELLANT
v.
WILKES-BARRE FIRE FIGHTERS ASSOCIATION LOCAL 104, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO



The opinion of the court was delivered by: Judge Brobson

Argued: February 8, 2010

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

The City of Wilkes-Barre (the City) appeals an order of the Court of Common Pleas of Luzerne County (trial court) that denied the City's petition to review arbitration opinion and award and affirmed an Act 111*fn1 grievance arbitration award (Award) in favor of the Wilkes-Barre Fire Fighters Local Union (Union). In the Award, Arbitrator Robert E. Light (Arbitrator) concluded that:

(1) grievance filed by the Union was subject to arbitration and (2) the Union had proved that the City had violated the applicable collective bargaining agreement (CBA) with regard to parity provisions between firefighters and police officers.

The facts as revealed in the arbitrator's Award are summarized below. The Union and the City were parties to a CBA that covered the period from January 1, 1997, through December 31, 2000 (CBA 1). When, at the end of that period, the City and the Union were unable to agree to the terms of a new CBA, they began to engage in interest arbitration under the law commonly known as Act 111. That arbitration produced an interest arbitration award (IAA), which applied to the period from January 1, 2001, through December 31, 2003. The IAA did not affect a "parity" provision contained in CBA 1, which required that Union members receive parity in wages with members of the City's police department.

By the time the IAA expired at the end of 2003, the Union and the City were unable to agree to terms of a new CBA and, consequently, again engaged in interest arbitration. Before an arbitrator resolved the arbitration, the parties entered into a settlement agreement that they agreed would be incorporated into a new CBA (CBA 2). The parties signed CBA 2 on February 28, 2005, and that agreement covers the period from January 1, 2004, through December 31, 2010. CBA 2 includes a provision that waives the parity provision of CBA 1 for the period covered by CBA 2.

On October 5, 2007, the Union filed a grievance. The Union's grievance focused on a document titled "Memo of Understanding," which was an agreement between the City and the Police Benevolent Association (PBA Memo or Memo), executed on or about July 12, 2002. The PBA Memo purports to increase the police unit bargaining members' yearly compensation. In its grievance, the Union claimed that the City failed to provide a similar increase to the Union's members, thereby violating the parity provision in effect at the time the City and police officers' union entered into the 2002 PBA Memo. The City's Human Resources Director, Christine Jensen (Jensen), denied the grievance on October 17, 2007, and the Union pursued its claim through arbitration.

In defending the grievance, the City argued that the Union's grievance was untimely because the Union failed to file the grievance within five days of the date of the PBA Memo, as required under the terms of CBA 2, which was the CBA in effect at the time the Union filed the grievance. The arbitrator found in favor of the Union. In his Award decision, the arbitrator first recited the language of Article 20 of CBA 2 (effective January 1, 2004, onward). Section 1 of Article 20 was unchanged from CBA 1 and provided:

Section 1. Any increase in salary which is granted during the term of this contract to any employee of the Police Department which is greater than that received by any employee of the bargaining unit, who is in a classification which had the same salary range as the classification of such Police Department employee during the 1967-1968 fiscal year, and who has the same length of service in his classification . shall be simultaneously effective for such employee of the bargaining unit, and shall be in addition to the provisions of this contract. For purpose of this section, the term "increase in salary" shall mean and include any increase in annual salary, any provision or for any increase in longevity pay, or any increase in insurance or pension benefit. (R.R. 26a.) CBA 2, however, also included the following sentence in amended Section 2: "Parity with Police Department employees in health insurance and wages for all bargaining unit members shall be waived for the period January 1, 2004 through and including December 31, 2010."

The arbitrator also observed the details of the PBA Memo, which provided, inter alia, for payments of $1,300 for each member on October 15, 2002, and January 15, 2003, and for annual payments of $1,500 to each member every January 15 beginning on January 15, 2004.

Before addressing the merits of the grievance, the arbitrator first considered the City's contention that the Union's grievance was untimely. Pertinent to that question was the testimony of Thomas Makar (Makar), the President of the Union. Makar testified that a neighbor who was a retired police officer gave him a number of papers in which he thought Makar might be interested. Makar stated that he found the PBA Memo among those papers, and that, upon investigation, he determined that the City, in its budget, had identified the payments made pursuant to the PBA Memo as being part of the police officers' salary.

The arbitrator found that the Union's delay in filing the grievance was not grounds to dismiss the grievance because the Union filed the grievance shortly after it first became aware of the PBA Memo. The arbitrator believed Makar's description of how he learned of the PBA Memo and its ramifications, and reasoned that he filed the grievance within a day or two of reading the PBA Memo, thereby complying with the five-day filing requirement.

As to the second issue, the arbitrator concluded that the parties did not intend that the new language of Article 20, Section 2 (the parity waiver) would allow the City to avoid violations that occurred before the effective date of CBA 2 if the Union had no reason to know of the pre-2004 violations. The arbitrator concluded that the annual payments to the police officers under the PBA Memo constituted increases in salary. With regard to the new language of Section 2, the arbitrator opined that this provision was a waiver of parity of ...


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