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City of Pittsburgh v. Fraternal Order of Police Fort Pitt Lodge No. 1

Commonwealth Court of Pennsylvania

March 12, 2015

City of Pittsburgh
v.
Fraternal Order of Police Fort Pitt Lodge No. 1, (on-duty and off-duty pay for events), Appellant

Argued November 12, 2014.

Page 795

Appealed from No. SA13-01109. Common Pleas Court of the County of Allegheny. Colville, J.

Bryan B. Campbell, Pittsburgh, for appellant.

Wendy Kobee, Assistant City Solicitor, Pittsburgh, for appellee.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge. OPINION BY JUDGE LEAVITT. Judge McGinley and Judge McCullough did not participate in the decision in this case.

OPINION

Page 796

MARY HANNAH LEAVITT, Judge

The Fraternal Order of Police Fort Pitt Lodge No. 1 (Union) appeals an order of the Court of Common Pleas of Allegheny County reversing an Act 111[1] grievance arbitration award that required the City of Pittsburgh to pay on-duty police officers working at large-scale events the same wages that off-duty police officers receive from private employers to do the same work. The trial court concluded that the award was not rationally related to the collective bargaining agreement and infringed upon the City's managerial prerogative. The Union argues that the trial court erred and exceeded the narrow certiorari scope of review applicable to Act 111 arbitration. For the reasons that follow, we affirm.

The Union and the City executed a collective bargaining agreement (CBA) called the " Working Agreement" that covered the period January 1, 2010, through December 31, 2014. The CBA addresses the compensation for on-duty police officers at several points.[2] Relevant hereto is Section 24 of the CBA, entitled " Secondary Employment," which permits police officers to engage in secondary employment when they are off-duty. As explained by the trial court, " secondary employment" involves

Page 797

the performance of safety, peacekeeping and traffic control duties both before and after large-scale events in the City such as concerts and sporting events. The private businesses that engage the services of off-duty police officers for secondary employment are called " secondary employers," and they are responsible for the compensation of these off-duty officers.[3] Reproduced Record at 2a: 137-141 (R.R. ).

Section 24 of the CBA states that all secondary employment is voluntary and " [n]o police officer will be compelled to work for a Secondary Employer." R.R. 1a: 144. The City's Special Events Office assigns officers who volunteer for secondary employment, and secondary employers can request the assignment of specific officers. Section 24 specifies the pay for secondary employment as follows:

Police officers engaged in secondary employment will receive the rate of pay for such work as agreed upon by and between the City and the Secondary Employer.

Id. The " agreed upon rate of pay" for secondary employment is the overtime rate for a fourth year police officer, which is $41.12 per hour. Arbitrator's Award at 3-4. Any officer working secondary employment is paid that hourly wage, regardless of his rank or seniority.

The City often directs on-duty officers to do traffic control at a large public event where off-duty officers are also working in a secondary employment assignment. The Union does not challenge the City's right to order on-duty police officers to work these events, who are paid their normal wages as set forth in the CBA.

On February 17, 2013, the City assigned Officer Robert Swartzwelder to direct traffic before a sporting event during his regular on-duty shift. Approximately 60 feet away, an off-duty officer was also directing traffic on behalf of a secondary employer. The City paid Swartzwelder the rate of pay owed under the CBA; the off-duty officer working secondary employment was paid the secondary employment rate of pay, which was higher than Swartzwelder's hourly wage. Swartzwelder filed a grievance, demanding to be paid the secondary employment rate of pay. By September 1, 2013, Officer Swartzwelder had filed six more similar grievances. In addition, Officer David Lincoln filed a grievance on August ...


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