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City of Scranton v. Fire Fighters Local Union No. 60

April 4, 2011

CITY OF SCRANTON
v.
FIRE FIGHTERS LOCAL UNION NO. 60,
APPELLANT



The opinion of the court was delivered by: Johnny J. Butler, Judge

Argued: February 7, 2011

BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE JOHNNY J. BUTLER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE BUTLER

This appeal, arising out of a grievance arbitration award issued on remand (Remand Award), involves the City of Scranton (City) and its fire fighters. The International Association of Fire Fighters, Local Union No. 60 (Union) again challenges the applicability of the Municipalities Financial Recovery Act (Act 47)*fn1 to an arbitration award issued under the Policemen and Firemen Collective Bargaining Act (Act 111).*fn2 Here, the Union appeals from an order of the Court of Common Pleas of Lackawanna County (trial court) that granted the City's petition to vacate the Remand Award. The trial court determined that the Arbitrator exceeded his authority by sustaining the grievance based on a "binding past practice" eliminated from the parties' past collective bargaining agreement (CBA) by the City's current Act 47 recovery plan (2002 Recovery Plan), and this Court's decision in City of Scranton v. Fire Fighters Local Union No. 60, of the International Ass'n of Fire Fighters, AFL-CIO, 964 A.2d 464 (Pa. Cmwlth. 2009) (Scranton Fire Fighters (2009)), appeal granted, ___ Pa. ___, 995 A.2d 1180 (2010). Upon review, we affirm.

I. Background

In January, 1992, the Department of Community and Economic Development (DCED) determined the City to be a financially distressed municipality for purposes of Act 47. The City is currently operating under its third recovery plan.*fn3

Chapter II-B of the 2002 Recovery Plan (Labor Relations, Cost Containment, and Related Provisions)*fn4 includes the following provisions:

1. Management Rights. The City shall have the right to determine the organizational structure and operation of each Department including, but not limited to, the right to determine and change job duties for each position, the right to determine and change schedules for each employee, and the right to assign work to any employee. Any provision in any [CBA] which is inconsistent with, or which interferes with, the rights of the City as set forth above, shall be eliminated to the extent of such inconsistency or interference, and the City's management rights, as set forth above, shall not be the subject of any grievance procedure or arbitration clause in any [CBA] between the City and any of its unions.

7. Elimination of Minimum Manning. Any provision of any [CBA] between the City and any of its Unions concerning minimum manning requirements for any particular bargaining unit, shift, platoon, job classification, specialization or position shall be eliminated. The City shall have the sole right to determine the number of personnel employed and utilized by the City. Further, the City shall have the right to layoff any employees for economic or any other reasons, without limitation.

16. Elimination of Past Practices. Any provision or clause in any [CBA] which protects past practices, or any rights which are not specifically set forth in the [CBAs], shall be eliminated. The Unions shall be given the opportunity to identify and negotiate any specific practices or rights which they would like to preserve and have included in future [CBAs].

Reproduced Record (R.R.) at 226-32 (emphasis added).

Further, Section II-B(1) of the 2002 Recovery Plan's "Provisions Specifically for the Fire Department," ("Organization and Scheduling"), pertinently provides:

The City shall reorganize its Fire Department in order to more efficiently deploy fire personnel.

It shall be the sole discretion of the City to determine the number and type of apparatus to be employed by the City as well as the number of fire companies and fire stations.

Id. at 233-34 (emphasis added).

In Scranton Fire Fighters (2009), we modified the parties' 2006 interest arbitration award (2006 Interest Award), which became effective January 1, 2003, to include, among other items, the above provisions of the 2002 Recovery Plan.*fn5

Turning to the present matter, in Fire Fighters Local Union No. 60, of the International Association of Fire Fighters, AFL-CIO v. City of Scranton, 937 A.2d 600 (Pa. Cmwlth. 2007) (Scranton Fire Fighters (2007)), we reviewed the facts giving rise to the grievance at issue. We noted that the parties' 1996-2002 CBA (1996 CBA) included, in part, the following provisions:

ARTICLE VIII

WAGES

8. All past agreements between the parties, all prior arbitration awards between the parties including all of the provisions of said agreements and awards, and all of the past practices of the City of Scranton which inure to the benefit of the bargaining unit shall be continued, and are hereby incorporated by reference herein as though the same were fully set forth at length, and are hereby made a part hereof, except as the same are specifically modified herein.

ARTICLE XIX

SAFETY AND HEALTH

1. The City and the Union shall cooperate in the area of safety. Periodic on-duty safety meetings shall be held and safety training shall be emphasized.

See Scranton Fire Fighters (2007), 937 A.2d at 601-02 (emphasis added).

The 1996 CBA expired on December 31, 2002. Prior to January, 2004, the Fire Department's standard deployment of personnel and apparatus for responding to automated alarms (alarms triggered by a device; no human prompt) consisted of two engine companies, one rescue company, one truck company and a supervisor's vehicle. This deployment usually involved a total of 13 fire fighters. The City used this deployment in responding to automated alarms for the past 20 years.

However, the Department did not follow this deployment when the City experienced inclement weather and hazardous driving conditions due to ice and snow. In such instances, the City reduced deployment from two engine companies to one, ...


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