PA FOP

Pennsylvania State
Fraternal Order of Police

							State Lodge Legal Report - July 2000

STATE F.O.P. ATTORNEY'S UPDATE

Lightman & Welby
2705 North Front Street
P.O. Box 911
Harrisburg, Pennsylvania, 19108-0911

Gary M. Lightman, Esquire     Sean T. Welby, Esquire
Eric C. Stoltenberg, Esquire   Anthony M. Caputo, Esquire    Ian J. Blynn, Esquire
Richardson Todd Eagen, Esquire    Emma A. Cuevas, Esquire

PROBATIONARY POLICE OFFICERS	COMPLIANCE WITH GRIEVANCE ARBITRATION AWARD
INDIVIDUAL BARGAINING	AGREEMENTS TO ARBITRATE
ELIMINATION OF ESTABLISHED DAYS OFF	DISCHARGE & REINSTATEMENT

PROBATIONARY POLICE OFFICERS

1. Upper Makefield Township v. PLRB, (Pa. Supreme Court, 6/00).

The Pennsylvania Supreme Court has held that a probationary police officer is not entitled to the protections of Act 111, or of a collective bargaining agreement with regard to termination from employment. In the case decided, a probationary police officer was terminated from employment. A grievance was filed and the employer refused to process the grievance. The PLRB ordered the employer to process the grievance and it did so to the final step in the grievance procedure. The grievance procedure did not specifically provide for arbitration of unresolved grievances, and the employer refused to arbitrate. The PLRB again ordered the employer to arbitrate.
    On appeal, the Commonwealth Court held that Act 111 does not mandate arbitration and that it is not an unfair labor practice to refuse to arbitrate where the contract does not so provide. The police association and PLRB appealed to the Supreme Court over the issue of whether Act 111 mandates the arbitration of all grievances.
    The Supreme Court refused to address the issue brought to it by the police association and PLRB. Instead, for the first time it raised the probationary status of the police officer and affirmed the refusal to arbitrate on that basis. This decision therefore does not resolve the issue of whether Act 111 mandates arbitration and lets stand the Commonwealth Court's ruling that the Act does not. Until the Supreme Court addresses this issue, it is important that all grievance procedures mandate the arbitration of all unsettled grievances.
    Members should note that the Court left open the possibility that a collective bargaining agreement could specifically include probationary officers in the scope of coverage for grievance and benefit issues. TOP

2. F.O.P., Lodge #9 v. City of Reading

A probationary officer was discharged by the City of Reading for allegedly engaging in conduct unbecoming an officer. The officer contested the dismissal by filing a grievance, arguing the collective bargaining agreement permitted all "employees" to file a grievance and "employees" were defined to be all sworn members of the Bureau of Police except the Chief of Police, Deputy Chief, Captains and Inspectors. The City argued that the grievance procedure was not an available remedy to probationary officers. In support of this position, the City cited Township of Sugarloaf v. Bowling, 722 A.2d 246 (Pa. Cmwlth. 1998), wherein the court held, "absent specific language in the collective bargaining agreement itself to that effect, or other specific contractual or legislative requirements, a probationary officer is not subject to the protections of a collective bargaining agreement." The FOP's position was that the collective bargaining agreement was specific in defining employees to include probationary officers. Citing the Bowling decision, the Arbitrator concluded that the contract language was not specific enough with respect to the availability of the grievance procedure to probationary officers and denied arbitrability. TOP

INDIVIDUAL BARGAINING

Upper Southampton Township, PLRB Final Order, 6/2000

The PLRB dismissed a complaint of unfair labor practices regarding officers who are unilaterally appointed to "acting" managerial positions outside of the bargaining unit. Upper Southampton Township appointed a permanent Sergeant who was a member of the bargaining unit to the temporary position of "acting Lieutenant" outside of the unit. The Township then dealt directly with the officer on matters such as wages and other terms and conditions of employment. The Association filed a charge contending that since the member remained a permanent member of the bargaining unit without a valid permanent appointment to the position of Lieutenant, the Township could not deal directly with the officer on mandatory subjects of bargaining. The Board held that since the appointment was to a position outside of the unit, there was no bargaining obligation even where the appointment was temporary. TOP

ELIMINATION OF ESTABLISHED DAYS OFF

Latrobe City Police Department, Arbitration Award, 6/2000

An arbitrator has held that the elimination of an established day off choice violates the past practice provisions of a collective bargaining agreement. The collective bargaining agreement between the City of Latrobe and the Latrobe Police does not address scheduling, but does provide that there shall be no changes in bargaining items which are past practices. For the last seventeen years, officers were allowed to bid for a Sunday-Monday day off combination. The City subsequently eliminated the Sunday-Monday choice and substituted a Monday-Tuesday choice. The arbitrator held that day off combinations were a mandatory subject of bargaining under Act 111 and based upon the past practice language of the contract, would not be changed without negotiation. TOP

COMPLIANCE WITH GRIEVANCE ARBITRATION AWARD

Pennsylvania State Troopers Association, PLRB 6/2000

The Pennsylvania State Police placed a blanket prohibition on all outside employment in accident reconstruction which would involve testimony in court as an expert witness. A grievance arbitrator directed the State Police to rescind the prohibition, ruling that the contract required a conflict of interest to prohibit outside employment and that such a determination must be made on a case by case basis. In doing so, the Arbitrator noted certain cases where conflicts might be more prevalent and others where conflicts ordinarily would not be expected to arise.
In response, the State Police reissued the prohibition, prohibiting testimony in those cases noted by the arbitrator where the potential for conflict was increased. The PLRB ruled that an employer may not pick and choose to rely on portions of an arbitrator's opinion, but instead must comply precisely with the Award directed, even if it disagrees with it. TOP

AGREEMENTS TO ARBITRATE

City of Lebanon, Arbitration Award (5/00)

Police Department rules and regulations prohibited outside employment with businesses or concerns which did business with the City. A police officer applied for permission to work outside employment with a county agency, supervising children at a group home. When the request was denied on the basis that the County did business with the City, the Officer sought to appeal pursuant to the Local Agency Law.
    Where outside employment rights are governed by Departmental Rules and Regulations which are not incorporated into a collective bargaining agreement, a local agency appeal is appropriate. McKenna v. North Strabane Township, (Pa. Commonwealth Ct. 1997). The rules and regulations under which the officer's request was denied were not incorporated into the collective bargaining agreement and the contract did not address the issue of outside employment. A grievance was not therefore possible.
    After hearing the matter, the City Council determined that it did not wish to involve itself in local agency appeals and ordered that the parties proceed to arbitration on these issues. When the police association demanded arbitration, the City refused, citing the lack of contractual provisions regarding outside employment.
    The arbitrator ruled that the issue was properly subject to arbitration. Under the Third Class City Code, the City Council has the right to enter into collective bargaining agreements. Further, in this role, the City Administration (Mayor and Police Chief) is subordinate to Council. Since Council directed arbitration and the police association accepted this, an agreement to arbitrate the dispute had been reached and the dispute was properly arbitrable. TOP

DISCHARGE & REINSTATEMENT

Hogue v. Pulaski Township, Lawrence County Court (6/00)

Police officer discharged from employment without hearing appealed discharge to Lawrence County Court. County Court ordered officer reinstated due to failure to afford officer a hearing. When the Township did not reinstate the Officer, the Officer petitioned the County Court to enforce its prior Order. The County Court refused, ruling that its prior order of reinstatement did not really mean reinstatement but only that the officer should have a hearing. The Pennsylvania State Lodge intervened and appealed to the Commonwealth Court which held that "reinstatement" meant at a minimum, paying the officer and granting him his benefits. The Commonwealth Court held that the County Court could not change its initial Order after more than thirty (30) days had passed, and remanded the matter back to the County Court for enforcement of its initial reinstatement Order.
On remand, the County Court refused to order the Township to reinstate the officer, start payroll and enroll him in benefit programs. The County Court held (and we are not making this up) that the Commonwealth Court's direction that a reinstated police officer be paid and given benefits "obviously shows a misinterpretation" of the initial Order of reinstatement and that the Commonwealth Court "may have failed to read" the County Court's earlier opinion. The Pennsylvania State Lodge will be returning to the Commonwealth Court in this matter. TOP