Appeal from the Order of the Commonwealth Court entered on August 24, 2007 at No. 1906 CD 2006, affirming in part, reversing in part the Order of the Court of Common Pleas, Philadelphia County, Civil Division entered on September 6, 2006 at No. 3316 July Term 2006.
The opinion of the court was delivered by: Mr. Chief Justice CASTILLE*fn1
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
In this appeal, we review the Commonwealth Court's Order reversing the Order of the court of common pleas in part and vacating several provisions of an award issued by an arbitration board under the Act Governing Collective Bargaining by Policemen or Firemen ("Act 111" or "Act").*fn2 The provisions in question required that appellee City of Philadelphia ("City") collectively bargain the effects of closing several fire companies before the closures could be implemented by the City, establish a new pilot program for providing emergency medical services, and that the City revise the procedure by which paramedics fill open firefighter positions. For the reasons that follow, we affirm the Order of the Commonwealth Court, albeit on different grounds in part. Part I, Part II, Part III, Part IV(B), as to Paragraph 9(A) of the Award, and Part IV(C), as to Paragraph 9(B) of the Award, of this Opinion are supported by a majority of the Court. Part IV(A), as to Paragraph 12 of the Award, is supported by three of the six Justices participating in this decision; accordingly, this Court is affirming by an equally divided Court, the Commonwealth Court's Order invalidating Paragraph 12 of the Award.
The City and appellant International Association of Fire Fighters, Local 22 ("Union") were parties to a collective bargaining agreement ("CBA") that expired on June 30, 2005. After negotiations to replace the agreement reached an impasse, the Union sought binding interest arbitration under Act 111.*fn3 A three-person arbitration board as required by the Act was convened and sixteen days of hearings followed, during which testimony and exhibits were received. Much of the evidence centered on the City's five-year financial plan adopted pursuant to the Pennsylvania Intergovernmental Cooperation Authority Act, and whether the City could financially afford increased benefits for employees of the Philadelphia Fire Department (the "Department"). Relevant to the present appeal, the parties disagreed on both the measures that should be taken to address the safety and health impact of the City's decision to decommission several fire companies and on the attrition rate that was occurring among fire service paramedics.
In mid-2006, in a 2-1 decision, the arbitration board issued its award covering the period July 1, 2005 through June 30, 2008. See In re City of Phila. & Phila. Fire Fighters' Union, IAFF Local 22, American Arbitration Association Case No. 14-L-360-00464-05 (June 28, 2006) ("Award"). The Award, under Paragraph 12, obligated the City to meet and discuss its intentions with the Union before the closing of a fire company. If the parties failed to agree on the "effects" of the closure,*fn4 the City was compelled to commission an independent impact study to address the expected financial savings and effects upon services, bargaining unit members, and safety. In the event the Union disagreed with the study's findings, the parties were to negotiate in good faith to resolve disputes surrounding firefighter safety. If those negotiations failed, the Union was permitted to submit the dispute to grievance arbitration. The arbitrator of the grievance, however, would not be able to alter the City's decision to reduce or eliminate fire companies, but could "order any necessary modifications to the plan which would maintain compliance with relevant safety standards." Award at 22-23, ¶12.*fn5
The Award also contained two provisions, both appearing in Paragraph 9, relating to the Department's provision of emergency medical services.*fn6 The object of Paragraph 9 was to alleviate the high levels of stress, burnout, and attrition that fire service paramedics were sustaining due to the nature of their work. Paragraph 9(A) stemmed from a Union proposal and obligated the Department to create a new two-year "ALS-Engine Pilot Program." Under the Program, the Department would assign firefighters who had previously worked as paramedics to newly formed ALS Engine companies, and could cross-train paramedics who were on the Firefighter eligible list and assign them to an ALS Engine company every fourth tour of duty. Paragraph 9(B), which neither party proposed, altered the established procedure for transferring from paramedic to firefighter status, giving paramedics with five or more years of service additional points in the testing process and prohibiting the City from refusing to appoint any paramedic whose name reached the Fire Fighter eligible list.*fn7 See Award at 19-20, ¶9.*fn8
The City-appointed arbitrator dissented from, inter alia, Paragraphs 9 and 12 of the Award. Relative to Paragraph 12, he expressed that the arbitration board lacked jurisdiction to fashion any award pertaining to the closure of fire companies, as that topic fell within the City's inherent managerial policy over which the City has no obligation to bargain. The arbitrator noted, moreover, that since the close of testimony, the City's position that it was only obligated to bargain concerning the impacts of fire company closure after such decommissioning had occurred, was buttressed by the Commonwealth Court's issuance of an opinion in another case involving the parties. See Philadelphia Fire Fighters' Union, Local 22 v. City of Philadelphia., 901 A.2d 560 (Pa. Cmwlth.), appeal denied, 906 A.2d 545 (2006) (Fire Fighters I).*fn9
As to Paragraph 9(A), the dissent opined that the proposed ALS-Engine Pilot Program impinged upon managerial policy, as it interfered with "manning and standards of service." The dissent continued, "This is more than an innocuous 'pilot program.' Rather, it is a program that directly interferes with the Department's ability to establish standards of service and it interferes with the [Fire] Commissioner's ability to select and direct personnel as necessary to provide services to the citizens of Philadelphia." In re City of Phila. & Phila. Fire Fighters' Union, IAFF Local 22, American Arbitration Association Case No. 14-L-360-00464-05, at 6-7 (June 28, 2006) (H. Thomas Felix, II, Esq., dissenting).
Finally, the dissent took issue with Paragraph 9(B) because the subject of paramedic transfer was not a topic in controversy before the board and no evidence on the subject was presented to the board. According to the dissent, paramedic transfer only arose as a dispute between the parties after the record was closed, and was resolved by the board on the basis of information received outside of the proceedings. In addition, the dissent found that portion of the Award violative of state law governing preference in the hiring of veterans, and, like Paragraph 9(A), to implicate matters of inherent managerial policy, namely, the City's hiring decisions for positions in the Department.
On July 27, 2006, the City filed a petition in the Philadelphia Court of Common Pleas to vacate several provisions of the Award, including Paragraphs 9(A), 9(B), and 12.*fn10 As to these paragraphs, the City claimed that the arbitration board exceeded its jurisdiction or authority because they concerned non-bargainable matters of inherent managerial responsibility. As to Paragraph 9(B), the City additionally claimed that the board did not have the authority to address the subject matter, since it concerned a topic the Union failed to raise. In response, the Union filed a counterclaim, seeking the Award's confirmation. On September 6, 2006, the common pleas court denied the City's petition, granted the Union's counterclaim, and confirmed the Award. On October 6, 2006, the City filed an appeal with the Commonwealth Court, raising the same issues as to Paragraphs 9 and 12 that it raised in the trial court.
The Commonwealth Court addressed the City's issues in a memorandum opinion. See City of Philadelphia v. International Ass'n of Fire Fighters Local 22, No. 1906 C.D. 2006 (Pa. Cmwlth. Aug. 24, 2007) (Fire Fighters II). The court first observed that its scope of review in Act 111 appeals was limited to narrow certiorari, and indicated that the City's contentions that several provisions in the Award concerned topics that are not subject to collective bargaining under Act 111 or that they addressed issues that were not placed in dispute raised reviewable questions of the board's jurisdiction and/or authority.
Turning to the City's contentions regarding Paragraphs 9(A) and 9(B), which mandated that the City establish the ALS-Engine Pilot Program and appoint any paramedic whose name appeared on the Fire Fighter eligible list, respectively, the court explained the framework it would apply in deciding whether the provisions fell outside of Act 111's purview. The court stated:
In general, an issue is deemed bargainable if it bears a rational relationship to an employee's duties. However, "where a managerial policy substantially outweighs the impact of an issue on employees, the topic will be deemed a managerial prerogative and non-bargainable." This court has held that it is a managerial prerogative to establish and utilize methods to select and use personnel as well as to measure and evaluate employee performance. Policies to achieve these ends are "essential to the proper and efficient functioning" of a police or fire department.
Fire Fighters II, Memorandum Op. at 10 (citing Fraternal Order of Police (FOP) Rose of Sharon Lodge No. 3 v. PLRB, 729 A.2d 1278, 1281 (Pa. Cmwlth. 1999) and quoting Schuylkill Haven Borough v. Schuylkill Haven Police Officers Ass'n, 914 A.2d 936, 941 (Pa. Cmwlth. 2006) and Delaware County Lodge No. 27, FOP v. PLRB, 722 A.2d 1118, 1121 (Pa. Cmwlth. 1998)).
Applying these principles, the court highlighted the City's evidence on Paragraph 9(A)'s ALS-Engine Pilot Program, showing that the Program would exacerbate the current shortage of units to respond to emergency calls, hinder the City's ability to deploy resources where it believed they were needed, increase the costs of training, and burden personnel operating in the field. The court concluded that Paragraph 9(A) directly infringed upon the City's ability to manage its resources, direct its personnel, and provide its citizens the services it deemed best. The court further concluded that since "these managerial interests [of the City] have been judicially recognized as managerial prerogatives that substantially outweigh any impact on employees, the matter [in Paragraph 9(A)] was not subject to bargaining." Id. at 12. Accordingly, the court held that the arbitration board exceeded its jurisdiction and/or authority in rendering that portion of the Award. For the same reasons, the court found that the arbitration panel did not have the jurisdiction or authority to award Paragraph 9(B). The court explained:
We reach a similar conclusion regarding the provision that: "The City may not refuse to appoint any Fire Service paramedic whose name has been reached on the Fire Fighter eligible list." As this court has noted above, it is management's prerogative "to establish and utilize a method to aid in selecting and directing its personnel and in measuring and evaluating their performance. The ability to formulate policies in these areas is essential for the proper and efficient functioning" of the department. Again, mandating that the City appoint any paramedic whose name appears on the [F]ire [F]ighter eligible list deprives the City of discretion in promotion and appointment, thereby limiting its inherent authority to select and direct its personnel.
Id. at 13 (quoting the Award at 19-20, ¶9(B) and Delaware County Lodge No. 27, 722 A.2d at 1121.).*fn11
Likewise, the Commonwealth Court concluded that the arbitration board lacked the jurisdiction and/or authority to require in Paragraph 12 of the Award that the City arbitrate the impact of its decision to eliminate fire companies before moving forward with the closures. The court noted that its decisional law "establishes that an employer is not required to engage in pre-implementation bargaining with respect to changes in the size of its fire and police departments or plans to close stations. Rather, such policy decisions are a matter of inherent managerial prerogative not subject to arbitration or arbitral review." Id. at 14. Relying on its decision in International Ass'n of Firefighters, Local 669 v. City of Scranton, 429 A.2d 779, 781 (Pa. Cmwlth. 1981), the court determined that Paragraph 12's requirements impermissibly vested the Union and employees with the right to impact major governmental decisions, such as spending, budgeting, the level of fire protection the City would provide, and, ultimately, taxation. To reconcile this determination with the Fire Fighters I panel's holding regarding the Department's Redeployment Plan, the court explained:
The fact that we concluded in Fire Fighters I that the arbitrator's decision regarding the Redeployment Plan could not be reviewed under narrow certiorari does not command a different result here. There, the arbitrator's decision stemmed, in part, [from] an interpretation of the management's rights clause [of the CBA] and fact-finding regarding [the] safety of the Plan. Moreover, the grievance arbitrator specifically found that closure of firehouses is a managerial prerogative and so refrained from entering an award outside the scope of bargainable issues. Therefore, unlike the present arbitrators, he did not exceed his authority/jurisdiction.
Accordingly, the Commonwealth Court reversed part of the trial court's order and vacated Paragraphs 9(A), 9(B), and 12 of the Award. This Court granted the Union's Petition for Allowance of Appeal, asking that we consider whether the Commonwealth Court erred. See City of Philadelphia v. International Ass'n of Firefighters, Local 22, 955 A.2d 1013 (2008) (per curiam).
As a threshold matter, we begin with the scope and standard of review in Act 111 interest arbitration appeals. Even though Act 111 provides that the decision of an interest arbitration board is final and binding on the issues in dispute and "[n]o appeal therefrom shall be allowed to any court[,]" this Court has long recognized the practical reality that review of an arbitration board's award is not entirely precluded. See 43 P.S. § 217.7(a); Town of McCandless v. McCandless Police Officers Ass'n, 901 A.2d 991, 997 (Pa. 2006). Indeed, shortly after Act 111 became law, this Court determined that arbitration awards were reviewable under now former Supreme Court Rule 681/2 because, among other things, "'no adjudicatory body has unlimited discretion,' and 'each and every adjudicator is bound by the Constitution' and particularly by 'the mandates of due process.'" Id. at 999 (quoting Washington Arbitration Case, 259 A.2d 437, 440-41 (Pa. 1969)). Rule 681/2 pertained generally to those decisions that were unappealable by statute and to agency decisions stated to be final and conclusive, and set forth a procedure for effecting this Court's historical King's Bench power of common law certiorari. Id. at 998 & n.12; see Washington Arbitration, 259 A.2d at 441. Under narrow certiorari review, a court considers questions relating to four issues: (1) jurisdiction; (2) the regularity of the proceedings; (3) excess in exercise of powers; and (4) deprivations of constitutional rights. City of Pittsburgh v. FOP, 938 A.2d 225, 229 (Pa. 2007). Although Rule 681/2 was rescinded in 1972, narrow certiorari remains the appropriate construct for review of Act 111 arbitration awards. Appeal of Upper Providence Twp., 526 A.2d 315, 318 (Pa. 1987).
In applying narrow certiorari review in this case, the Commonwealth Court noted that "whether a matter involves arbitral authority or jurisdiction is not always clear[,]" and set forth its ruling by stating that the arbitration board "exceeded its jurisdiction and/or authority," in awarding Paragraphs 9(A), 9(B), and 12. Fire Fighters II, Memorandum Op. at 12, 13, 15 & n.9.*fn12 The court's apparent reluctance to specifically determine which one (or two) grounds of narrow certiorari -- jurisdiction or the excessive use of powers -- was implicated, and the inconsistent treatment these grounds have received in cases suggest that they are not thoroughly understood.*fn13 Accordingly, we take this opportunity to discuss these issues to provide guidance and to better focus our review.
As observed, narrow certiorari is a settled scope of review, emanating from this Court's historical and inherent powers. The inquiry that the jurisdiction prong of narrow certiorari has traditionally posed is a single and straightforward question -- did the decision-maker in the adjudicatory process act in that general class of controversies that the law empowers it to consider. See Dauphin Deposit Trust Co. v. Myers, 130 A.2d 686, 694 (Pa. 1957) (citations omitted) (applying narrow certiorari review and stating: "Jurisdiction relates to the competency of the particular administrative agency or Court 'to determine controversies of the general class to which the case presented for its consideration belonged.'"), cited in Washington Arbitration, 259 A.2d at 441 n.4. To answer this ...