The opinion of the court was delivered by: Robert Simpson, Judge
Argued: December 13, 2011
BEFORE: HONORABLE DAN PELLEGRINI, Judge*fn1
HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge
In this appeal, the City of Scranton (City) petitions for review of a 2011 Final Order (2011 Final Order) of the Pennsylvania Labor Relations Board (PLRB or Board) essentially directing the City to comply with the Strategic Implementation Team (SIT) Agreement it entered into with its police union, the Fraternal Order of Police, E.B. Jermyn Lodge No. 2 (FOP). In the SIT Agreement, the City agreed to hire civilian clerical positions (SIT clerks) to assist the police by completing forms and other paperwork in exchange for the elimination of police officer positions. For the reasons that follow, we affirm the Board's 2011 Final Order.
A. SIT Agreement; 1997 Brogan Award
During negotiations in 1993 for a new collective bargaining agreement (CBA), the City and the FOP organized the SIT Committee in a joint effort to professionalize and restructure the City's police department. Thereafter, the parties entered into the SIT Agreement, which reduced the manning compliment from 156 to 140 police officers. The parties made the SIT Agreement, as amended, part of the 1996-2002 CBA. In return for the reduction in police officers, the City agreed to add 11 additional SIT clerks to five existing clerical positions. The SIT clerks would assist the City's police officers by completing their paperwork, a clerical function traditionally performed by bargaining unit members. By "civilianizing" these clerical functions, the City's police officers would have more time on the street.
The SIT Agreement specified the following positions:
Position Current Propose Add
Criminal Information Spec. 0 1 1 Clerk/Typist Detectives -- [D]ays 1 1 0 Clerk/Typist Detectives - Evenings 0 1 1 Records/Administration 4 6 2 Training 0 1 1 Deputy Chief/Captains 0 1 1 Desk (2 for 2 shifts) 0 4 4 Grant Writer 0 1 1 Total 5 16 11 See Article IX(G) of the Amended SIT Agreement at 13-14 (Civilianization of Police Department Functions); Reproduced Record (R.R.) at 576a.
After the City failed to hire the required number of SIT clerks in 1995 and 1996, the FOP filed a grievance. In 1997, Arbitrator Margaret R. Brogan determined the City violated the SIT Agreement by failing to hire six SIT clerks. In an arbitration award issued pursuant to the Policemen and Firemen Collective Bargaining Act*fn2 (Act 111), Arbitrator Brogan directed the City to comply with the SIT Agreement and hire the requisite number of SIT clerks (Brogan Award). As damages, Arbitrator Brogan directed the City to pay the appropriate FOP bargaining unit members the cash value of the average salary and benefits for each SIT clerk the City should have hired from the date they should have been hired until someone is hired.
Meanwhile, in January 1992 the Pennsylvania Department of Community and Economic Development determined the City to be a "financially distressed municipality" under the Municipalities Financial Recovery Act*fn3 (Act 47) and appointed the Pennsylvania Economy League of Central Pennsylvania, LLC, as the City's Act 47 coordinator (Plan Coordinator) to develop a recovery plan.*fn4
Pursuant to the terms of the parties' last two CBAs, Plan Coordinator chaired the SIT Committee.
In 2002, the City adopted its second recovery plan (2002 Recovery Plan). The City remains a financially distressed municipality under Act 47.
Relevant here, Chapter II-B of the 2002 Recovery Plan contains provisions governing: "Management Rights" (the City shall have the right to determine the organizational structure and operation of each department); "Personnel Costs" (no back wages or other retroactive adjustments shall be paid); "Elimination of Minimum Manning" (any provision of CBA between City and its unions regarding minimum manning requirements is eliminated; City shall have right to lay-off any employees for economic or any-reasons, without limitation). See R.R. at 354a-58a.
Also, Section II-B(1) of the Plan's "Provisions Specifically for the Police Department," titled "Organizational Structure and Scheduling," provides in part:
1. Organizational Structure and Scheduling. Scranton Police Department shall be modified organizationally, structurally, and functionally to ensure necessary cost containment, while ensuring the best possible service to the citizens of Scranton. The police department's existing shifts/platoons and the current organizational plan developed by the SIT Committee shall be modified to better reflect the temporal, demographic, and geographical conditions of the City.
Id. at 364a. Chapter II-B of the Plan, pertaining to "Clerical and Nonunion," provided in relevant part: 7. S.I.T. Clerks. Notwithstanding any prior arbitration award, the City shall have the right to determine the number and type of S.I.T. clerks, and the S.I.T. clerk position which reports directly to the Deputy Chief/Patrol shall be eliminated.
C. 2003 Grievance; 2004 Light Award
In 2002, Mayor Christopher Doherty took office, and the City adopted the 2002 Recovery Plan. In January 2003, the City directed the elimination of seven SIT clerk positions and refused to fill a then-existing vacancy. In response, the FOP filed a grievance alleging the City violated the SIT Agreement.
The grievance proceeded to hearing before Arbitrator Robert E. Light. The City argued the 2002 Recovery Plan specifically provided the City with the authority to eliminate certain SIT positions that were no longer needed. Moreover, the City asserted it placed computers in all of the police vehicles. The City argued that as a result of these actions there was not enough work for the full complement of SIT clerks to perform.
The Light Award is crucial to resolution of the current controversy. Arbitrator Light determined the City unilaterally reduced the number of required SIT clerks and thereby ignored the language in the 1996-2002 CBA, which incorporated the SIT Agreement. He observed the parties agreed that the SIT Agreement, as renewed and amended in 1999, continued in effect. It unmistakably provided for additional SIT clerks. Arbitrator Light also noted the parties agreed the City failed to comply with the SIT Agreement. See Opinion and Award of Robert E. Light, 09/13/04; R.R. at 14a-35a.
Arbitrator Light further recognized the SIT Agreement did not violate the 2002 Recovery Plan because it preceded the Plan. He determined the City violated the SIT Agreement by not filling the additional positions. Consequently, he ordered the immediate employment of the following eight SIT clerks: one "Clerk/Typist Detectives-Evenings," two additional SIT clerks in "Records/Administration," one SIT clerk for "Deputy Chief/Captains" and four additional SIT clerks for the "Desk." R.R. at 32a.
In addition, Arbitrator Light ordered the City to make the FOP whole by paying FOP bargaining unit members on the payroll during the appropriate time periods back pay in the amount of the full cash value the City would have paid if the required SIT clerks were employed. This included payment for wages, health insurance benefits at the family level and other benefits. See id. at 32a-33a.
Also, having found the City acted in bad faith by failing to constantly employ the SIT clerks required by the SIT Agreement, Arbitrator Light directed the City to pay the FOP's reasonable attorney's fees incurred in the arbitration proceedings. Id. at 34a.
D. Petition to Vacate Light Award; Appeal
In response, the City filed a petition to vacate the Light Award in the Court of Common Pleas of Lackawanna County (common pleas court). Before the common pleas court, the City argued the Light Award violated Section 252 of Act 47, which provides (with emphasis added): "A collective bargaining agreement or arbitration settlement executed after the adoption of a plan shall not in any manner violate, expand or diminish its provisions." 53 P.S. §11701.252.
Applying the narrow certiorari test,*fn5 the common pleas court denied the City's petition to vacate because the 1996-2002 CBA and the SIT Agreement existed prior to the 2002 Recovery Plan. The City appealed. This Court, in an en banc decision, agreed with the common pleas court's analysis, noting the SIT Agreement predated the 2002 Recovery Plan. See City of Scranton v. E.B. Jermyn Lodge No. 2 of the Fraternal Order of Police, 903 A.2d 129 (Pa. Cmwlth. 2006), appeal denied, 591 Pa. 717, 919 A.2d 959 (2007) (Pellegrini, J.) (Scranton FOP (2006)).
In Scranton FOP (2006), we also rejected the City's argument that Arbitrator Light exceeded his powers by awarding attorney's fees and back pay, which amounted to punitive damages assessed against a government entity and its taxpayers. See City of Phila., Office of Hous. & Cmty. Dev. v. Am. Fed. of State Cnty. & Mun. Emp., Local Union No. 1971, 583 Pa. 121, 876 A.2d 375 (2005) (the arbitrator's award of back pay against a Commonwealth agency constituted an award of punitive damages against a government agency in violation of well-established public policy). In Philadelphia Office of Housing, our Supreme Court recognized that under the "essence test," used to review grievance arbitration awards under the Public Employe Relations Act (PERA),*fn6 reviewing courts may reverse an arbitrator's award of punitive damages based on public policy considerations. However, under Act 111's narrow certiorari review, an arbitrator only exceeds his authority if he mandates an illegal act be carried out or requires a public employer do that which it could not do voluntarily. Borough of ...