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Michael G. Lutz Lodge No. 5 of the Fraternal Order of Police v. City of Philadelphia

Commonwealth Court of Pennsylvania

January 2, 2014

Michael G. Lutz Lodge No. 5 of the Fraternal Order of Police, Appellant
v.
City of Philadelphia

Argued: October 9, 2013

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

OPINION

ANNE E. COVEY, Judge

Michael G. Lutz Lodge No. 5 of the Fraternal Order of Police (FOP) appeals from the Philadelphia County Common Pleas Court's (trial court) December 27, 2012 order denying its petition to vacate the October 6, 2011 court notice interest arbitration award (2011 Award). The issues for this Court's review are: (1) whether the trial court erred by concluding that the June 15, 2010 proceeding before the interest arbitration panel (Panel) constituted interest arbitration hearings, [1] as opposed to grievance arbitration hearings;[2] (2) whether the trial court erred by improperly applying the narrow certiorari scope of review;[3] and, (3) whether the trial court erred by failing to vacate the portion of the 2011 Award that changed the court notice distribution procedures for police officers.

The FOP is the exclusive collective bargaining representative of the City of Philadelphia's (City) police officers. The FOP and the City have long been parties to collective bargaining agreements. After the parties were unable to agree on the terms and conditions of a July 1, 2009 to June 30, 2014 collective bargaining agreement (CBA), the Panel was convened and hearings were held pursuant to the Policemen and Firemen Collective Bargaining Act (Act 111).[4]

One of the issues before the Panel was the manner in which the City police department (Department) notified police officers for court appearances they were expected to attend within 48 hours of the proceeding. Said notices purportedly caused severe disruptions to the officers' personal lives. The FOP presented considerable evidence on this issue. On December 18, 2009, the Panel issued an interest arbitration award (2009 Award) for the parties' CBA. Section 14 of the 2009 Award stated:

Effective January 1, 2010, officers who do not receive notice at least 48 hours in advance of the time they are directed to appear for a required court appearance, other than a preliminary hearing, scheduled for a date the officer is not scheduled to work, shall be paid a minimum of 4 hours of overtime at a rate of 2.5 times the employee's regular rate.

Reproduced Record (R.R.) at 26A. Section 22 of the Panel's 2009 Award also provided: "The Panel shall retain jurisdiction over this [2009] Award in order to resolve any disputes regarding implementation of its terms."[5] R.R. at 28a.

On January 13, 2010, the Department issued a "General Message" to all commanding officers and Department heads regarding "Notices With Less Than 48 Hours Notice, " which quoted the above-captioned language, and added:

2. THE 48 HOUR NOTIFICATION STARTS WHEN THE OFFICER IS NOTIFIED.
3. THE OVERTIME RATE WILL NOT APPLY TO DUPLICATE COURT NOTICES FOR THE SAME COURT CASE WHICH ARE RECEIVED [WITHIN] LESS THAN 48 HOURS OF THE COURT DATE[, ] PROVIDED THAT THE FIRST NOTICE WAS RECEIVED 48 HOURS OR MORE BEFORE THE SCHEDULED DATE.
4. IF AN OFFICER HAS COURT ALREADY SCHEDULED ON THEIR REGULAR DAY OFF AND THEY RECEIVE AN ADDITIONAL COURT NOTICE FOR A DIFFERENT CASE WITH LESS THAN 48 HOURS NOTICE, THEY ARE NOT ENTITLED TO THE ADDITIONAL OVERTIME RATE. THIS OFFICER WAS PREVIOUSLY SCHEDULED FOR COURT AND THE NEW NOTICE DID NOT CAUSE A DISRUPTION IN THE OFFICER'S SCHEDULE [sic].
5. IF AN OFFICER IS PROPERLY NOTIFIED OF A JURY TRIAL (AT LEAST 48 HOURS NOTICE) AND THE CASE IS CONTINUED TO THE NEXT DAY, THE OFFICER IS NOT ENTITLED TO THE ADDITIONAL OVERTIME. THE OFFICER HAS BEEN NOTIFIED OF THE TRIAL AND THERE IS NO DISRUPTION TO THE OFFICER'S SCHEDULE.
6. COMMANDING OFFICERS WILL ENSURE THAT ALL PERSONNEL UNDER THEIR COMMAND ARE MADE AWARE OF THE CONTENTS OF THIS MESSAGE.

R.R. at 208a-209a, 217a-218a, 358a. In response to the above "General Message", the FOP filed a series of grievances contesting the City's alleged failure to abide by Section 14 of the 2009 Award. See R.R. at 407a-460a. By March 7, 2010 email, the FOP asked the Panel for "an IMMEDIATE hearing before the Panel to resolve issues that have arisen regarding the City's implementation of the overnight court notice provisions of [the 2009] Award." R.R. at 405a.

On June 4, 2010, in advance of the hearing, the City provided the FOP and the Panel with its proposed resolution of "Implementation of Court Appearances." Supplemental Reproduced Record (S.R.R.) at 1b-2b. The FOP did not object to the City's submission.[6] The Panel held an evidentiary hearing on June 15, 2010. On September 16, 2011, a majority of the Panel issued the 2011 Award in which the Panel held, in pertinent part:

[T]he heart of Section 14 is the timeliness of court appearance notification. The City arbitrator and Chair see the manner of notification to be part-and-parcel of Section 14's provisions in that the manner of notification is as much a part of Section 14's implementation as is the question of what days would the premium overtime payments cover. Leaving the manner of notification untouched would be a dereliction in the Board's responsibility to resolve issues pertaining to the implementation of the [2009] Award's substance.
After considering the vigorous arguments of both sides, a majority of the Board is persuaded that notification in the 21st Century can effectively be achieved by the use of either telephone calls or email. Since all officers are already required to provide a telephone contact number to the
Department this same number can be used for court notices. For those who have ready access to computers with email, that technology is also an effective means of notification. Officers should be free to choose which method they prefer, and the Department should comply with that request. Additionally, it is wise to encourage the parties to confer through their representatives directly so they can resolve any difficulties in these methods of notification that may be unforeseen by the Panel. The parties are further encouraged to develop techniques that will enhance the notification process for both sides.
. . . .
Award:
. . . .
[T]he City will be required to pay back pay for the City's failure to pay double time and a half for "late" notices of jury trials on regularly scheduled days off only as follows:
. . . .
4. Effective November 15, 2011[, ] the City shall be permitted to deliver court notices in accordance with the following:
a. No later than November 1, 2011[, ] all officers shall be required to provide the Department with either an e-mail address or a telephone number at which the officer will receive court notices. If the officer chooses telephonic notice, the telephone number used for such notice may be the same as the number provided to the Department under current requirements. An officer who chooses telephonic notice is required to maintain an answering machine or voice mail service on the designated number. It is the officer's responsibility to keep this information current with the Department at all times.
b. As of November 1, 2011[, ] an officer who fails to designate an e-mail address or telephone number to the Department for court notices shall not be entitled to receive overtime at the 2.5 rate provided for in Section 14 [of the 2009 Award], and shall be further subject to discipline under relevant Department policies requiring the furnishing of information.
c. The Department will use the officer's designated e-mail address or telephone number to notify the officer of court appearances. In addition, the Department shall provide notice of court appearances at the officer's district in accordance with current practice.
e. Officers are required to comply with all court notices.

FOP Br. Ex. 1 (2011 Award) at 10-14. Only the FOP's arbitrator objected to the Panel's inclusion of the City's notice procedure amendments on the basis that the Panel was re-drafting CBA terms which went beyond the Panel's limited jurisdiction of hearing disputes regarding implementation of the CBA's existing terms.

The FOP filed a petition with the trial court to vacate the 2011 Award. The trial court denied the petition on December 27, 2012. The FOP appealed to this Court. Thereafter, the trial court issued its opinion on March 6, 2013.

The FOP first argues that the trial court erred by concluding that the proceedings before the Panel constituted interest arbitration hearings, as opposed to grievance arbitration hearings. We disagree.

'Grievance' or 'contract interpretation' arbitration is distinguished from 'interest' arbitration. 'Grievance arbitration' is the arbitration which occurs when the parties disagree as to the interpretation of an existing collective bargaining agreement. 'Interest arbitration' is the arbitration which occurs when the employer and employee are unable to agree on the terms of a collective bargaining agreement.

Town of McCandless v. McCandless Police Officers Ass'n, 587 Pa. 525, 528 n.2, 901 A.2d 991, 993 n.2 (2006) (emphasis added).

In its 2009 Award, an interest arbitration award, the Panel expressly retained jurisdiction over that Award in order to resolve any disputes regarding implementation of its terms. The FOP did not object to the Panel's retention of jurisdiction to resolve CBA term implementation.[7] Equally as important, the FOP expressly invoked Section 22 by requesting "an IMMEDIATE hearing before the Panel to resolve issues that have arisen regarding the City's implementation of the overnight court notice provisions of [the 2009] Award." R.R. at 405a (emphasis added). The FOP's request mirrors Section 22's language: "retain jurisdiction . . . to resolve any disputes regarding implementation of its terms." R.R. at 28a. In addition, at the June 15, 2010 hearing, the FOP did not object to the neutral arbitrator's opening statement:

This hearing has been convened to address an issue that arises out of the 2009 interest arbitration awarded by the [P]anel and issued December [the] 18th of 2009 concerning court notices.
I also should mention that Section 22 of the [2009 Award] retains jurisdiction of the [P]anel for issues that arise from the implementation of that order, so that is our jurisdiction, and the court notice aspect of the ...

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