Act 111; Arbitrator’s Authority in a Grievance Arbitration

City of Pittsburgh v. Fraternal Order of Police Fort Pitt Lodge No. 1, 189 A.3d 491 (Pa. Cmwlth. 2018), allocatur granted Jan. 16, 2019, appeal docket 2 WAP 2019

This case arises from a grievance filed by the Fraternal Order of Police Fort Pitt Lodge No. 1 (FOP) under the collective bargaining agreement (CBA) between the City of Pittsburgh (City) regarding pay for City police officers who were required to work on one of their two consecutive weekly days off as crowd and traffic control during the 2016 Pittsburgh Marathon. 

In its grievance, FOP asserted that the City was required, under the CBA, to pay officers whose pass day was canceled a minimum of eight hours of overtime and a total of twelve hours of overtime if they were required to report before their regular shift time. FOP requested relief on behalf of “any bargaining unit members” who were not paid in accordance with FOP’s contentions. Slip Op. at 4. The City denied that officers called out to work on a pass day were entitled to a minimum of eight or twelve hours of overtime, and those portions of the grievance proceeded to arbitration in accordance with the CBA.

Under the CBA, where a special event requires additional police for crowd and traffic control, the private business running or sponsoring the event must pay off-duty police officers for this “secondary employment” at a rate of pay agreed upon by the City and the private business. The CBA provides that “[a]ll secondary employment will be voluntary” and “[n]o police officer will be compelled to work for a Secondary Employer.” The section of the CBA governing grievances provides that “[t]he Arbitrator shall not have the right to add to, subtract from, modify, or disregard any of the terms or provisions of the Agreement.” Slip Op. at 3.

The grievance arbitrator found that the CBA provision entitling officers to to a minimum of four hours of overtime pay when called to work outside their regularly scheduled shift applied to officers whose pass days were canceled so they could work the Pittsburgh Marathon. However, the arbitrator entered an award in favor of FOP, reasoning that because the officers were deprived of a full day off and eight hours is the length of a normal workday, the officers were entitled to eight hours’ overtime pay for canceled pass days.

The City appealed the award to the Allegheny Court of Common Pleas, arguing that the arbitrator exceeded her powers by awarding a remedy not provided for in the CBA. Common Pleas agreed with the City and vacated the award. FOP appealed to Commonwealth Court, arguing that the common pleas court could not set aside the arbitrator’s award because the award does not require an illegal act and relates to terms and conditions of employment, and because any error by the arbitrator is at most an error of law.

Commonwealth Court summarized the applicable law as follows:

A police grievance arbitration award may be set aside as exceeding the arbitrator’s powers if the award requires the public employer to commit an illegal act or if the award orders an act that does not relate to terms or conditions of employment. In contrast, mere errors of law are insufficient to set aside such an award as exceeding the arbitrator’s powers. Accordingly, the fact that an arbitrator erroneously interpreted or misapplied language in the collective bargaining agreement in resolving an individual grievance is not a valid basis for vacating an Act 111 arbitration award.

An Act 111 arbitrator may not, however, equitably reform the terms of a collective bargaining agreement under the guise of a grievance arbitration.

Slip Op. at 6-7 (internal citations omitted).

Commonwealth Court agreed with FOP that the arbitrator’s award does not require an illegal act by the City and that it relates to terms and conditions of employment, as it concerns compensation and hours of employment. However, the court found that the arbitrator here did not “merely misapply language in the collective bargaining agreement in resolving an individual grievance” – the award “reformed the CBA to add a provision for compensation for loss of pass day that is not in the CBA and made this ruling as to all affected officers in the bargaining unit.” Slip Op. at 9.  Commonwealth Court agreed with the trial court that the arbitrator erred by failing to base her award on a provision of the CBA related to compensation, overtime, or callouts, thereby creating a remedy “that she acknowledged did not exist in the CBA.” Slip Op. at 9-10. While “such an addition to the CBA is the function of an interest arbitration,” – namely, the issuance an award applicable to all police officers in the bargaining unit, not just the grievants – Commonwealth Court affirmed common pleas order, reasoning that the award here exceeded the arbitrator’s powers in this grievance arbitration. Slip Op. at 10.

The Supreme Court of Pennsylvania granted allocatur on the following issue:

Did the Commonwealth Court ignore this Supreme Court’s existing mandate to defer to a grievance arbitrator’s straightforward interpretation of contract language by mislabeling her award the construction of an equitable result, thereby weakening the general assembly’s intent for Act 111 awards to create a final and binding resolution of contract disputes?