The Pennsylvania Supreme Court has agreed to hear arguments over whether a grievance arbitrator overstepped her authority in determining that Pittsburgh police officers are entitled to eight hours’ pay whenever they’re called into work on a scheduled day off, known as a “pass day.”
Specifically, the justices are set to re-examine how much deference appellate courts should afford to Act 111 grievance arbitrators.
Last June, a three-judge panel of the Commonwealth Court affirmed an Allegheny County trial court’s ruling tossing out the arbitration award. The appeals court said in its June 21, 2018, opinion that the grievance arbitrator’s award “created a remedy for loss of a pass day that she acknowledged did not exist in the [collective bargaining agreement]” between the city of Pittsburgh and the Fraternal Order of Police Fort Pitt Lodge No. 1.
Under the CBA, according to the appeals court’s opinion, a police officer’s normal workweek consists of five workdays and two consecutive days off. Section 8.D of the CBA states that “ ‘an employee called out to work for any period other than the period of his or her previously scheduled hours of work shall be guaranteed at least four hours of work or pay and shall be compensated at applicable overtime pay rates for such “call out” time.’”
The CBA does not, however, contain any provision specifically addressing compensation for canceled pass days or excluding canceled pass days from the compensation Section 8.D, the appeals court noted.
After 70 officers were called out on their pass days to work as crowd and traffic control during the 2016 Pittsburgh Marathon, the FOP filed a grievance against the city, arguing that it was required under the CBA to pay officers whose pass days were canceled a minimum of eight hours of overtime and a total of 12 hours of overtime if they were required to report before their regular shift time.
The grievance arbitrator found that Section 8.D’s provision that officers are entitled to a minimum of four hours of overtime pay when they’re called to work outside their regularly scheduled shift applied to officers whose pass days were canceled so they could work the Pittsburgh Marathon. Despite that, the grievance arbitrator ultimately determined that officers should be entitled to eight hours’ overtime pay for canceled pass days because they were deprived of a full day off and eight hours is the length of a normal workday.
The city challenged the award, arguing that the arbitrator exceeded her powers by fashioning a remedy for police officers that is not specifically provided for in the CBA. The FOP countered that the award could not be set aside because it did not require an illegal act, it relates to terms and conditions of employment and because any error by the arbitrator was at most an error of law.
The trial court vacated the award and the FOP appealed to the Commonwealth Court.
Senior Judge James Gardner Colins, writing for a Commonwealth Court panel that also included Judges Michael Wojcik and Patricia McCullough, said the FOP was correct that the award did not require an illegal act and was related to terms and conditions of employment.
“The arbitration award did not, however, merely misapply language in the collective bargaining agreement in resolving an individual grievance,” Colins said. “Rather, it 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.”
And despite acknowledging the provisions of Section 8.D, Colins said, the arbitrator disregarded them in creating the award.
“Instead of basing her award on an interpretation of these provisions or any other provision of the CBA related to compensation, overtime, or callouts, the arbitrator held that officers were entitled to a minimum of eight hours of overtime pay for cancellation of a pass day because ‘the city could not partially cancel a pass day without negating the concept of 2 consecutive days off,’” Colins said.
In its one-page Jan. 16 order, the Supreme Court agreed to address a single question on appeal: “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?”
Reached for comment on the allocatur grant, the FOP’s attorney, Christopher Cimballa of Welby, Stoltenberg, Cimballa & Cook in Pittsburgh, said the fact that the justices have agreed to hear arguments “is really exciting.”
Kelly Mistick of the City of Pittsburgh Law Department could not be reached for comment on the allocatur grant.